1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3679/04 R.P. Garg vs. The Oriental Insurance Co. Ltd. & Ors. Date of order : 9/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.C. Taylor for the petitioner. Shri Rajendra Kr. Salecha for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner with the prayer that the respondents be directed to treat the petitioner as a pension optee and accordingly grant him pension with effect from 1.4.1995, consequent upon the acceptance of his prayer of voluntary retirement. Shri M.C. Taylor, learned counsel for the petitioner has argued that the petitioner was a member of Provident Fund Scheme and was regularly contributing to the fund where the respondents also used to contribute. It was argued that the petitioner pursuant to adoption of the pension scheme by the respondents from their employees from the year 1995 submitted an 2 option form on 19.10.1995. The petitioner submitted the option, even then the respondents did not make payment of pension to him and insisted that he should refund balance of the amount of provident fund to the tune of Rs.36,323.44 paisa. Learned counsel submitted that the petitioner insisted that this amount was non refundable and therefore the petitioner could not be required to refund the same. The respondents thereupon arbitrarily by their letter dated 29.1.1996 conveyed to him that in case the petitioner did not refund the same amount, this offer shall became ineffective and his name shall be removed from the list of pension optees. It was argued that even if aforesaid amount was to be refunded by the petitioner according to Rule 48 of the General Insurance Employees Pension Scheme, 1995, the respondents could make a recovery amount in accordance with law but they could not certainly withheld the payment of pension. Learned counsel for the respondent opposed the writ petition and submitted that Rule 48 could be invoked only when the 3 pension was held admissible to the petitioner. The option form submitted by the petitioner was conditional, in para 3 of it, petitioner had undertaken to refund to the company the entire amount of non refundable withdrawal. Having so undertaken, the petitioner could not insist on non refunding. His name was therefore rightly struck off the list of pension optees and a communication to that effect was addressed to the petitioner on 29.1.1996. Consideration of the arguments aforesaid and perusal of material on record clearly show that petitioner had originally undertaken to refund the said amount to the respondent company, the entire amount of non refundable and subsequently he had a change of mind and insisted that it was not possible for him to refund the same amount as the amount was not refundable. Now before this Court, learned counsel for the petitioner has argued that respondents, if they held that certain amount was due to be recovered from the petitioner, they could resort to Rule 48 of the Scheme of 1995 and recover the said amount out of the arrears 4 of pension payable to the petitioner. Obviously, the petitioner has suffered all these years owning to his stubborn attitude. Having undertaken to refund the entire amount of non refundable withdrawal, his action in not refunding the said amount was not at all justified. At the same time, it is clear that petitioner had submitted option although it was a conditional option but from the year 1st April, 1995 till now the amount of pension, which otherwise would have been payable to him has not been paid. Learned counsel for the petitioner has argued that while on the one hand, the respondents insisted the petitioner by their letter dated 22.12.1995 that he should deposit the amount of Rs.36,623.44 paisa on the same day, on the other hand, they have not paid to the petitioner the amount of provident fund of Rs.4,02,919/-. Learned counsel for the respondent however submitted that since the voucher was not signed by the petitioner, the amount of provident fund could not be paid to him and in any case this amount of provident fund would have become payable to the petitioner on the 5 date, he voluntary retired from service. This controversy can be resolved by directing the respondents to deduct the amount of Rs.36,623.44 paisa from the provident fund amount which they are required to pay to the petitioner on the date of his retirement with effect from 1.4.2004. The respondents shall be entitled to charge interest @ 6% per annum on the amount of Rs.36,623.44 paise. At the same time, the respondents shall also be required to pay to the petitioner interest @ 6% on the due amount of provident fund and other dues which becomes payable to him consequent upon the compliance of this judgement. The writ petition is accordingly allowed. The respondents are directed to comply the judgment of this Court within a period of two months from the date of receipt of copy of this judgement. (MOHAMMAD RAFIQ), J. RS/