IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 14292 of 2008 (OA No. 3661/ 2006) Date of decision: 17.5.2010. Gomti Devi …Petitioner. Versus H.R.T.C. and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. R.S.Gautam, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate for respondent No.1. Mr. Rahul Mahajan, Advocate for respondent No.2. Kuldip Singh, Judge ( Oral ) The petitioner is the widow of Labh Singh, Tyreman who died on 16.5.1999. The petitioner has prayed a direction to the respondents for releasing pension and retiral benefits to her alongwith interest at the rate of 10% till actual payment. The brief facts of the case are that Labh Singh husband of the petitioner joined on 4.10.1974 as Helper with respondent No.1 and was promoted as Assistant Tyreman on 4.1.1985. He was charge- sheeted on 9.2.1987 and penalty of removal from service was imposed. The appropriate Government in the year 1997 made a 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 reference to the learned Labour Court for adjudication of the dispute regarding termination of Labh Singh. Labh Singh died and his legal representatives namely widow, sons and daughters were brought on record. The learned Labour Court on 1.12.2003 answered the reference, the operative part of the reference is as follows: “In the result, the reference is answered in favour of the deceased petitioner-workman through his LRs. Consequently the removal of the deceased from service by Respondent No.3 w.e.f. 12.3.1991 is held to be illegal and unjustified. But since he has already died during pendency of the reference on 16.5.1999 as stated by his wife PW-1 Smt. Gomti Devi which fact is not disputed on behalf of the Respondents, orders regarding his re- instatement in service cannot be passed. However, in the facts and circumstances of the case, the LRs of the deceased shall be entitled for 50% of the back wages payable to the deceased during the period he was removed from service till his death, that is 6.3.1991 to 16.5.1999. Smt. Gomti Devi wife of the deceased shall be entitled to half of the amount of back wages and the remaining half shall go to other LRs of the deceased namely Smt. Paramjit Kaur, Kumari Rani Devi, Kumari Raj Kumari (daughters), Shri Dhani Ram and Sh. Sanjeev Kumar (sons) in equal shares. Service benefits qua the deceased such as pension and gratuity etc., shall also be payable to his aforesaid LRs in accordance with law. Let a copy of the award be sent to appropriate Government for publication in the official gazette in accordance with law.” 3 2. The further case of the petitioner is that after the award dated 1.12.2003 she made several representations to the respondent No.1 –Corporation to release retiral benefits in her favour. The petitioner had received communication dated 19.9.2005 from respondent No.2 to the effect that pension benefit cannot be paid to petitioner because respondent No.1 had withdrawn from the Pension Scheme after June, 1995. The pensionary benefits are to be settled by respondent No.1 and the amount of pension deducted from the salary of Labh Singh during 1975 to 1991-92 can be transferred to the Corporation. 3. The petitioner after receiving communication dated 19.9.2005 again made representation to the Corporation on 31.10.2005 and requested for grant of pension and other benefits to her at an early date. The respondent No.1 took the stand that Labh Singh was appointed in respondent No.1 – Corporation on 2.10.1974, he was covered under Contributory Provident Fund (CPF) Scheme and was a member of Family Pension Fund ( F.P.F) and had been contributing FPF since 2.10.1974 to 25.2.1991 when he was removed from service. After the death of Labh Singh on 16.5.1999 the legal heirs of Labh Singh are entitled to the benefit of Family Pension under F.P.F. Scheme. The petitioner again made representations but to no avail. 4. The further case of the petitioner is that the learned Labour Court on 1.12.2003 had set-aside the termination of Labh Singh and petitioner was held entitled to retiral benefits of Labh Singh in accordance with law. The deceased was covered under F.P.F. Scheme and was a member of F.P.F. when he was removed 4 from service. As such, the respondents are liable to pay retiral benefits to the petitioner along with interest. 5. The respondent No.1 has contested the petition by filing reply and has taken preliminary objection that petition is not maintainable as Labh Singh was covered under CPF Scheme and was a member of F.P.F. and was contributing F.P.F. since 2.10.1974 to 25.2.1991 with F.P.F. Account No. HP/11865/814. On 5.6.1995 when respondent No.1 introduced Family Pension Scheme Labh Singh was not on the rolls of respondent No.1. He stood removed from service on 25.2.1991 and his reference against removal was pending before the learned Labour Court. In these circumstances, Labh Singh could not exercise option when Family Pension Scheme was introduced by respondent No.1 in the year 1995. The deceased shall be deemed to be covered under C.P.F. Scheme . The Family Pension is to be paid by respondent No.2 in view of the fact that the deceased was member of Contributory Provident Fund when he was removed from service. However, contribution of Labh Singh in F.P.F from 2.10.1974 to 25.2.1991 is still lying with respondent No.1 and further contribution towards Family Pension Fund from 25.2.1991 to 16.5.1999 has been paid to respondent No.2 vide letter dated 18.1.2006. The respondent No.1 has reiterated its stand of preliminary objection on merits also. 6. The respondent No.2 has also filed reply and has submitted that petition against respondent No.2 is not maintainable. The respondent No.1 after June, 1995 was exempted under Chapter 9, Section 17 of the Employees Provident Fund and 5 Miscellaneous Provision Act, 1952 from the Employees Provident Fund Scheme, Pension Scheme etc.. The respondent No.1 being the principal employer and exempted is liable to make payment of all the outstanding dues to the petitioner. The respondent No.1 after March, 1991 had stopped paying the amount of contribution of the employer and employee share under the Employee Provident Fund and Misc. Provision Act, 1952 as the respondent No.1 had removed Labh Singh husband of the petitioner from the service. The respondent No.2 has further taken the stand that only 20 employees opted to remain in the erstwhile employees FPF Scheme, 1971 and after introduction of CPS on 16.11.1995 they switched over to new pension scheme. Labh Singh was not among the 20 employees who opted for P.F.Pension Scheme. In fact Labh Singh was removed from service on 12.3.1991 and he ceased to be an employee of respondent No.1. The respondent No.2 had already communicated vide letter dated 19.9.2005 his willingness to transfer the amount of pension from 1975 to 1991-92 as per Chapter IX of the E.P.F. Act, 1952. 7. I have heard the learned counsel for the parties. It is admitted case of the parties that Labh Singh was an employee of respondent No.1. He was removed from service. The appropriate Government made reference regarding the termination of services of Labh Singh. The learned Labour Court on 1.12.2003 answered the reference as noticed above. The award dated 1.12.2003 attained finality. In the award dated 1.12.2003 the termination of Labh Singh on 12.3.1991 was held illegal. It was also observed that since Labh Singh had died on 16.5.1999 during the pendency of 6 reference, it was ordered that legal representatives of Labh Singh shall be entitled for 50% of the back wages payable to deceased during the period he was removed from service till his death i.e. 6.3.1991 to 16.5.1999. it was also held that Smt. Gomti Devi wife of the deceased shall be entitled to half of the amount of back wages and the remaining half shall go to other L.Rs of the deceased namely Smt. Paramjit Kaur, Kumari Rani Devi, Kumari Raj Kumari (daughters), Shri Dhani Ram and Sh. Sanjeev Kumar (sons) in equal shares. Service benefits qua the deceased such as pension and gratuity etc., shall also be payable to his aforesaid LRs in accordance with law. 8. The precise grievance raised by the petitioner is that respondents have not paid the retiral benefits to the legal representatives of Labh Singh despite the award dated 1.12.2003 of the learned Labour Court. It has come on record that respondent No.1 has introduced Pension Scheme in 1995 and discontinued Provident Fund Pension Scheme. It has also come on record that an option was given to the employee to give his option and in case the option is not given then the employee will be governed by Pension Scheme, 1995. Labh Singh was not in service when Pension Scheme, 1995 was introduced by respondent No.1. On 1.12.2003 the learned Labour Court made the award and set- aside the termination dated 12.3.1993 of Labh Singh. But unfortunately, when the award was made Labh Singh had already died on 16.5.1999. In other words, notionally Labh Singh would be deemed in service when Pension Scheme, 1995 was introduced by respondent No.1. It is nobody’s case that Labh Singh had given 7 option for contributing Scheme under the Employees Provident Fund and Misc. Provision Scheme, 1952. it is also the case of the respondent NO.1 that in absence of option given an employee, he is to be governed by 1995 Scheme. In other words, Labh Singh would be deemed to be governed by 1995 Scheme and not by Scheme under Employees Provident Fund and Misc. Provision Scheme, 1952. The learned counsel for the respondent No.1 has submitted that the amount contributed by Labh Singh is lying with respondent No.2 prior to 1991. The learned counsel for the respondent No.1 has further submitted that the contribution of Labh Singh from 1991 to 1999 was sent to respondent No.2. The learned counsel for the respondent No.2 has submitted that it is clear from Annexure A-9 that Rs. 21672/- was sent by respondent No.2 to Respondent No.1. This amount has been returned back by respondent No.1 to respondent No.2. The learned counsel for respondent No.2 has submitted that in any case if respondent No.2 has not remitted the amount of contribution of Labh Singh from 1975 to 1991 to respondent No.1, then that shall be remitted. 9. It is clear from record that Labh Singh was covered by 1995 Scheme of respondent No.1, therefore, it is the liability of respondent No.1 to give retiral benefits of Labh Singh to his legal heirs in accordance with law. The petition is allowed with a direction to respondent No.1 to pay retiral benefits of Labh Singh to his legal heirs in accordance with law within a period of three months from today. The respondent No.2 shall remit the contribution of Labh Singh to respondent No.1 from 1975 to 1991 in case it has already not been remitted within a period of one month. In case the retiral 8 benefits of Labh Singh are not paid to the legal heirs of Labh Singh within a period of three months from today, then respondent No.1 shall pay 9% interest on that amount till its payment. CMP(T) No. 2286 of 2008 Infructuous in view of disposal of the main petition. ( Kuldip Singh ), May 17, 2010, Judge. (GR)