C.W.P.No.14246 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.14246 of 2010 Date of Decision:- 20.04.2011 Surjit Kaur ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Amit Mehta, Advocate, for the petitioner. Ms.Monica Chhibber Sharma, DAG, Punjab, for respondents No.1 to 3. Mr.Rajdeep Singh Cheema, Advocate, respondent No.4. *** AUGUSTINE GEORGE MASIH, J. (Oral) Petitioner has filed this writ petition claiming grant of family pension to her being widow of Mohinder Singh who died on 9.2.1992 during his service in the Municipal Council (now Nagar Council), Barnala. Prayer has also been made for setting aside the order dated 3.3.2004 (Annexure P-7) vide which a speaking order rejecting the claim of the petitioner was passed by respondent No.3 in compliance with the order passed by this Court in an earlier writ petition preferred by the petitioner i.e. C.W.P.No.16419 of 2003. It is the case of the petitioner that her husband Mohinder Singh was employed as a Mate with effect from 1.2.1978 with Municipal Council, C.W.P.No.14246 of 2010 -2- Barnala and his services were confirmed vide order dated 2.6.1979. While he was serving the respondents, he died in harness on 9.2.1992. On 16.3.1994, Punjab Municipal Employees Pension and General Provident Fund Rules, 1994 (hereinafter referred to as '1994 Rules') were published and the same were made applicable with effect from 1.4.1990. It is on the basis of the applicability of 1994 Rules with effect from 1.4.1990 that the petitioner is claiming her benefit of family pension for the service rendered by her husband with the Municipal Council, Barnala. As per Rule 3(1)(a), the option to opt for the 1994 Rules was to be exercised within a period of four months from the date of joining duty after return from leave and within four months from the date of the publication of the 1994 Rules. Admittedly, no option was given by the petitioner and for this, explanation submitted by the petitioner is that since her husband had died on 9.2.1992, the option could not have been exercised. The petitioner enquired from the office of the Municipal Council, Barnala, with regard to the benefit of 1994 Rules. She was informed that the Contributory Provident Fund which she had received, may be deposited. Accordingly, she deposited ` 24851/- on 11.3.1999. Despite various visits and representations when no family pension was granted to the petitioner, she filed a writ petition being CWP No.16419 of 2003 wherein direction was issued to the respondents to consider the claim of the petitioner and pass a speaking order. In compliance thereto, order dated 3.3.2004 (Annexure P-7) was passed rejecting the claim of the petitioner on the ground that the petitioner had not opted for the grant of family pension within the stipulated period and further that her husband had already died on 9.2.1992 well before the stipulated period and, therefore, she would not be C.W.P.No.14246 of 2010 -3- entitled to the family pension. This order has been challenged by her in the present writ petition. In response to the notice issued by this Court, reply has been filed by the respondents. In the reply filed by respondent No.4, a communication dated 28.5.1998 has been appended as Annexure R-1 whereby again an opportunity was given to such employees who had retired between the period 1.4.1990 to 28.7.1994 i.e. the date of publication of the 1994 Rules and coming into force thereof to give their options within a period of one month from the date of issue of the said letter. In response to this communication also, no option was given by the petitioner. Reliance has been made on a Division Bench judgment of this Court in the case of Raju Sharma vs. State of Punjab and others, being C.W.P.No.1810 of 2002, decided on 9.12.2003, wherein similar controversy was dealt with by this Court and the claim of the petitioner therein was rejected. Counsel for the petitioner submits that the claim of the petitioner is fully justified as within the period stipulated under the Rules, since the husband of the petitioner had already died on 9.2.1992, there was no occasion for her to give her consent for applicability of the 1994 Rules. Further, she being a widow was not aware of the benefit which she could have availed of under the 1994 Rules. He further states that the amount of Contributory Provident Fund was deposited by her on an assurance given by the respondents that she would be granted the benefit of family pension and now they having retained the amount for more than 11 years, cannot be allowed to turn around and say that she would not be entitled to the said benefit and can take back her Contributory Provident Fund. His further submission is that as per proviso (c ) under Rule 3(1) of the 1994 Rules, in C.W.P.No.14246 of 2010 -4- case an employee exercises his option within the stipulated period, he shall be deemed to have opted for these Rules. On these basis, he contends that since the husband of the petitioner had not given the option, the petitioner would be entitled to the benefit of this deeming clause of exercising option which would entitle her to the claim of family pension. On the other hand, counsel for the respondent No.4 submits that this very issue has been dealt with by the Division Bench judgment of this Court in Raju Sharma's case (supra) and, therefore, no different view can be taken in this matter as it would be a binding precedent on this Court. I have heard counsel for the parties and gone through the records of the case. In the light of the Division Bench judgment of this Court, specifically dealing with virtually the same set of facts and the Rules, a different view as has been taken by the Division Bench of this Court in CWP No.1810 of 2002 Raju Sharma vs. State of Punjab and others, decided on 9.12.2003, would not be possible. The relevant portion of the order is reproduced here-in-below:- “3. Exercise of Option (1) The option under clause (ii) of sub-rule (3) of rule 1 to elect to be governed by these rules, shall be exercised in the Form appended to these rules so as to reach the competent authority within a period of four months from the date of publication of these rules in the official Gazette; Provided that- (a) in the case of an employee who on the date of publication of these rules was on leave, the option shall C.W.P.No.14246 of 2010 -5- be exercised within a period of four months from the date of joining his duty after returning from leave; (b) Where an employee is under suspension on that date, the option shall be exercised within a period of four months from the date of his returning to duty, and (c ) in case of an employee who dies without exercising his option within the stipulated period, he shall be deemed to have opted for these rules. (2) The employees, who opt for these rules, shall cease to avail the benefit of Contributory Provident Fund and the employees who opt out of these rules, shall continue to avail the benefit of Contributory Provident Fund.” Rule 3 envisage that the concerned employee should exercise his option (to be governed by the 1994 Rules), within four months from the date of publication of these Rules. The 1994 Rules were published on 16.3.1994. It was, therefore, imperative for the concerned employee to have exercised his option on or before 15.7.1994. It is not the case of the petitioner that his father, or any his brother, or he himself, exercised that option under rule 3 within the stipulated time. That being so it prima facie appears that the petitioner is not entitled to any benefits flowing out of the 1994 Rules. The contention of the learned counsel for the petitioner, however, based on Rule 3 is that for C.W.P.No.14246 of 2010 -6- employees who have died, it would be deemed as it the deceased employee has exercised his option in favour of 1994 Rules. In this behalf, reliance has been placed by learned counsel for the petitioner on proviso (c ) under Rule 3(1). We are unable to accept the contention of the learned counsel for the petitioner. Proviso (c ) under Rule 3(1) is applicable in case an employee dies within the stipulated period. In so far as the stipulated period is concerned, the same is four months from the date of publication of the Rules. In view of the above, the stipulated period would run from 16.3.1994 to 15.7.1994. The petitioner's father did not die within the stipulated period. He infact died well before the stipulated period on 24.12.1991. It is, therefore, not possible for us to accept that the petitioner can claim benefit of proviso (c ) under Rule 3 (1) of the 1994 Rules, or his claim to family pension for the service rendered by his father. In view of the conclusion drawn above, we are satisfied that the petitioner has no right or entitlement, whatsoever, to draw any benefit under the 1994 Rules. Dismissed.” In view of the above, the claim of the petitioner relying on proviso (c ) under Rule 3 (1) of the 1994 Rules, cannot be accepted. As regards the contention of the petitioner that the amount of ` 24851/- which has been retained by the respondent-Municipal Council with effect from 11.3.1999 till date, even if is to be returned, should be C.W.P.No.14246 of 2010 -7- returned with penal interest as the Nagar Council has utilized the said amount all through this period and also with an assurance that the petitioner would be entitled to the benefit of family pension. This contention of the counsel for the petitioner appears to be quite reasonable and justified. Accordingly, a direction is issued to Nagar Council, Barnala- respondent No.4 to refund the amount of ` 24851/- to the petitioner within a period of two weeks from today. The petitioner shall be entitled to 6% interest from the date of deposit till the date of refund of the said amount. The writ petition stands disposed of accordingly. April 20, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE