IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7038 of 2004 Sanoj Kumar Rai son of Gulabi Lal Rai, resident of mohalla Kurji Baluper, Patna … … Petitioner Versus 1. The Asstt.Provident FundCommissioner(Pension) Office at R-Block, Road No. 6, Patna, 2. The Asstt.Provident Fund Commissioner Officer, office at R-Block, Road No. 6, Patna, Bihar, 3. The Managing Director, United Paper Boards Limited Tulsi Apartment Ist Floor, Govind Mitra Road Patna-4 … … Respondents For the Petitioner: M/s Md. Khurshid Alam, Md. Naseem Mukhar, Advocates For the Respondents: Mr. R.S. Pradhan, Sr. Advocate Mr. Amarendra Narayan Rai, Advocate … 11 15.09.2011 Heard learned counsel for the petitioner and the respondents. In view of the joint submission made on behalf of the petitioner and respondent nos. 1 and 2 that the lis is only between the aforesaid parties, no notice is being issued to respondent no. 3 and the matter is being disposed of at this stage. The writ petitioner seeks direction to the respondent nos. 1 and 2 for the payment of pension under the Employees’ Pension Scheme, 1995 (hereinafter to be referred to as “the Scheme”) brought by the Central Government in exercise of the powers conferred by section 6A of the Employees’ Provident Fund & 2 Miscellaneous Provisions Act, 1952 (hereinafter to be referred to as “the Act”). In view of the nature of the order, which is to be passed in this case, I deem it proper to incorporate the relevant facts as under:- The petitioner was appointed as electrician on 30.03.1999 in United Paper Mills Private Limited and he was getting salary and allowance and was a permanent member of the Employees’ Provident Fund. He met with an accident and became permanently disabled as his hand had to be amputated on 04.06.2000 in view of the recommendation of the concerned doctor. A certificate to that effect dated 15.06.2000 has been brought on record as Annexure 1. The petitioner applied for grant of pension under prescribed proforma. By a letter dated 03.08.2003 (Annexure 2) written by the respondent-Assistant Provident Fund Commissioner to the District Medical Officer, Sadar Hospital, Samastipur a request was made to constitute a Medical Board to examine him and issue a certificate in the enclosed proforma enclosed. The proforma, which was enlcosed with the aforesaid letter, has not been brought on record either by the petitioner or 3 the respondents. However, the petitioner appeared before the Board on 23.09.2003, which would be evident from Annexure 3 dated 26.09.2003 written by the Civil Surgeon-cum-Chief Medical Officer, Samastipur, to the respondent no. 2. The medical certificate issued by the Medical Board dated 23.09.2003 has also been appended therewith. The petitioner claims that even though it appears from the certificate granted by the Medical Board that amputation of his left hand has rendered the petitioner permanently and totally unfit for the employment which he was performing at the time of such disablement, the petitioner is not being given pension as per Clause 15 of the Scheme even though he is entitled thereof. A counter affidavit has been filed on behalf of the respondent nos. 1 and 2 taking a stand that in view of the conjoint reading of the provisions as contained in clause 15 of the Scheme, the definition of permanent and total disablement under clause 2(xvi) and the circular no. Pension/2(4)/Clarification/96/dated 24th March, 1999 clarifying that incapacitating any member rendering unfit for the ongoing employment or rendering unfit for any 4 employment partially would not be sufficient for grant of pension as there is no such certificate granted by the Medical Board disclosing that the disablement has rendered permanent and total disablement upon the petitioner rendering him unfit for all the works which he was capable of doing before such disablement, the petitioner would not be entitled for grant of pension under the Scheme. Learned counsel for the petitioner submits that the definition of permanent and total disablement as contained in paragraph 2(xvi) of the Scheme is pari materia to the section 2(1)(l) of the Industrial Disputes Act. In Pratap Narayan Singh Deo v. Shrinivas Sabata and another (AIR 1976 Supreme Court, 222) a case arising out of for grant of compensation under Industrial Dispute Act, the Apex Court has held that the meaning of incapacitating workman for all work which he was capable of performing at the time of the disablement as held by the Labour Commissioner would mean disablement incapacitating the workman from doing the work at the time of disablement. Thus, in view of the aforesaid decision, learned counsel contended that the 5 respondents should be direction to grant pension under the Scheme. On the other hand, Mr. R.S. Pradhan, learned senior counsel for respondent nos. 1 and 2, submitted that since this scheme has been floated by the Central Government providing social security covered under the Scheme after aforesaid the decision of the Apex Court in Pratap Narayan Singh Deo(supra) and, thus, the Central Government was entitled to clarify any ambiguity or confusion under the Scheme. Learned counsel has produced a copy of the circular dated 24th March, 1999 at the time of hearing, addressed to all the Regional Provident Fund Commissioners and other concerned officers clarifying that incapacitation of any member rendering unfit for the ongoing employment or rendering unfit for any employment partially would not be sufficient for grant of pension. From the bare perusal of the aforesaid circular, it appears that the clarification is a directive to the Medical Boards for grant of medical certificates to the concerned employees. A proforma has also been attached along with the aforesaid circular as Annexure II and there 6 is a clause in the proforma as under:- “Whether permanent total disablement incapacitated the Member employee for all work which he/she was capable of performing at the time of disablement” However, as I have observed earlier that though the letter dated 13.08.2003 written by the Employees’ Provident Fund Organisation to the District Medical Officer, Sadar Hospital, Samastipur has been brought on record by the petitioner which also incorporates that a proforma for the purpose has also been attached thereto but neither of the parties has brought on record the proforma which was attached therewith. However, from the perusal of the medical certificate as contained in Annexure 3 it appears that the same is not in the proforma which has been provided along with the circular clarifying the issue inasmuch as there is no answer to the concerned clause of the aforesaid proforma which was required to be incorporated and answered by the Medical Board. Thus, the stand taken by the respondents, in view of the absence of such certificate, that pension cannot be granted to the petitioner would not be sustainable in the eyes of law as there is no answer to the concerned clause contained in 7 the proforma appended with the aforesaid circular which was required to be incorporated by the Medical Board. The Medical Board has opined only regarding the work which the petitioner was capable of performing at the time of disablement. The petitioner cannot be held responsible for the omission by the Medical Board. Thus, without expressing any opinion regarding the entitlement of the petitioner as per the provision of the scheme in view of the fact that the certificate granted by the Medical Board itself is not in accordance with the proforma as contained in the concerned clarification as stated above, the petitioner is directed to move before the respondent no. 2 along with a certified copy of this order within four weeks and upon receipt of such representation/application, the respondent no. 2 would be obliged to reconstitute a Medical Board appending therewith copies of Annexures 1 and 2 as appended with this writ application as also the aforesaid circular containing the clarification and proforma. The Board would be obliged to grant a certificate in accordance with law in the proforma prescribed appended with the circular. Upon receipt of the medical certificate the Assistant 8 Provident Fund Commissioner (Pension) would be entitled to take a decision in accordance with law in the matter. Accordingly, this writ application stands disposed of with the aforesaid observation and direction. SC ( Dr. Ravi Ranjan, J.)