IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 OP.No. 17765 of 2001(M) PETITIONER(S): 1. M.T. BALAN, AGED 64, S/O. CHANDUKUTTY, HOUSE NO. 29/1993, PULAPARAMBIL HOUSE, PIPELINE ROAD, P.O. KUTHIRAVATTOM, CALICUT-16. 2. P. RAJAPPAN, SREYAS, PALAKKANDI, CHOOLOOR, VIA. R.E.C., CALICUT. BY ADV. SRI.SIVAN MADATHIL RESPONDENT(S): 1. CENTRAL PROVIDENT FUND COMMISSIONER (PENSION), EMPLOYEES PROVIDENT FUND ORGANISATION, HUDCO VISHALA, 14, BHIKAJI CAMA PLACE, NEW DELHI -110 060. 2. REGIONAL PROVIDENT FUND COMMISSIONER, REGIONAL OFFICE, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BHAVAN, ERANHIPALAM, CALICUT-6. 3. THE COMMONWEALTH WEAVING FACTORY, CALICUT, REP. BY ITS DIRECTOR. 4. THE GRASIM INDUSTRIES LTD., MAVOOR, CALICUT, REP. BY ITS PRESIDENT. 5. UNION OF INDIA, REP. BY SECRETARY TO GOVERNMENT, INDUSTRY & LABOUR, NEW DELHI. ADV. SRI.E.K.NANDAKUMAR FOR R4 SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R1,2 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 & R5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 17765/2001. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF OPTION FORM FOR E.P.S. 1995. EXT.P2 TRUE COPY OF 10-D APPLICATION FORM. EXT.P3 TRUE COPY OF NOTICE DT. 8-9-1998. EXT.P4 LETTER DT. 29-9-1999. EXT.P5 TRUE COPY OF LAWYER NOTICE. EXT.P6 LETTER DT. 15-12-1999. EXT.P7 INTIMATION DT. 23-8-1996. EXT.P8 LAWYER NOTICE DT. 30-9-1999. EXT.P9 LETTER DT. 28-5-1999. EXT.P10 LETTER DT. 27-3-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 17765 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th day of February, 2010. J U D G M E N T Counsel for the petitioners is absent. Heard counsel for the Provident Fund Organisation. 2. The 1st petitioner was an employee of the 3rd respondent -Commonwealth Factory, Calicut and the 2nd petitioner was an employee of the 4th respondent-Grasim Industries Ltd., Mavoor, Calicut. They applied for pension under the Employees Pension Scheme, 1995, which was rejected by Ext. P3 dated 8-9-1998 by the following intimation: “You are not eligible for pension under Employees Pension Scheme 1995 since you have not opted for pension in prescribed time, i.e before the settlement of E.P.F. The application in F/10-D is, therefore, rejected and returned herewith.” According to the petitioners, the petitioners have submitted their option to join the pension scheme before their employer in time for onward transmission to the Provident Fund Organisation. The 1st petitioner would contend that on a request to his employer for information regarding the date of submission of the option, he has been favoured with Ext. P4, whereby he has been informed that his option form was forwarded to provident fund authorities in February, 1996 along with those of other similarly situated employees. As far as the 2nd petitioner is concerned, he would submit that going by Ext. P7 communication from the provident fund authorities themselves, his option form was received and accepted by the Provident Fund Organisation. Therefore, according to to them, they submitted their option within time and therefore they are entitled to be considered for payment of pension. 3. In the counter affidavit filed on behalf of respondents 1 and O.P. No. 17765/2001 -: 2 :- 2, in paragraphs 4 and 5, it is stated thus: “4. The first petitioner had joined the Employees Provident Fund Scheme, 1952 on 1-12-1954 and settled his Provident Fund Account on 25-3-1996. He exercised his option to join the Employees Pension Scheme, 1995 only on 30-3-1998 that is two years after the settlement of his Provident Fund Account. Therefore, he is not eligible to join the Employees Pension Scheme, 1995. 5. Similarly, the second petitioner joined as a member of the Employees Provident Fund Scheme, 1952 on 1-7-1965 and settled his Provident Fund Account on 29-1-1996. He submitted the option form to join the Employees Pension Scheme, 1995 only on 8-3-1996 that is after the settlement of his Provident Fund Account. Therefore, he is also not eligible to join the Employees Pension Scheme, 1995.” In view of the above pleadings, the only question to be decided is as to whether the petitioners have filed their option before their provident fund account was settled. 4. Going by Ext. P4 communication from the employer of the 1st petitioner, his option form was forwarded to the Provident Fund Organisation in February, 1996. If that is believed, then even going by the averment of respondents 1 and 2, the 1st petitioner is entitled to pension since his provident fund account was settled only on 25-3- 1996. I am inclined to believe the employer's letter in this regard since no evidence has been produced before me by respondents 1 and 2 to prove otherwise. The petitioners are ordinary workmen, who are not well conversant with the intricacies of law. It is all the more so in the case of the Employees Pension Scheme, which contains very many provisions which, are very difficult to understand even for advocates. Therefore, I am of opinion that when the Provident Fund Organisation had evidence with them as to the date of the receipt of the option form and they did not produce them, there is nothing wrong in believing the word of the employer in the matter. If that be O.P. No. 17765/2001 -: 3 :- so, the 1st petitioner had not closed his provident fund account prior to the submission of his option. Consequently, going by the averments of respondents 1 and 2 themselves, the 1st petitioner is entitled to be considered for payment of pension. 5. As far as the 2nd petitioner is concerned, Ext. P7 is the list of employees of the 4th respondent whose option forms have been received and accepted by the Provident Fund Organisation on the strength of an amendment to the provisions of the 1995 pension scheme. In the above circumstances, I think that it is too late for the day of the Provident Fund Organisation to contend that the 2nd petitioner's option for pension cannot be accepted. Accordingly, Ext. P3 is quashed. Respondents 1 and 2 are directed to consider the option of the petitioners for pension as having been filed in time in accordance with law and process the same as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. If, in the meantime, anything has to be done by the petitioners for sanction of pension, they shall be informed so in writing. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/