CW 507/04 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.507/04 Smt. Mithilesh Sharma Versus The Secretary, Labour Department & Ors. DATE OF ORDER : 10/03/2010 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Devendra Raghava, for petitioner Mr. R.P. Vijay ] for respondents Ms. Anisha Jain ] *** Widow of deceased employee Late Shri Naresh Kumar Sharma, who was serving as Junior Engineer in Kota Thermal Power Station, Kota died while in service on 11th July, 1982 holding his PF Account No.119211759, has approached this Court by filing of instant petition with the legitimate grievance that family pension to which she is entitled for under Employees' Family Pension Scheme, 1971, has been arbitrarily denied by the respondents. As alleged in the petition, the petitioner's husband Late Shri Naresh Kumar Sharma was appointed in Erstwhile Rajasthan State Electricity Board and while serving in Kota Thermal Power Station, died while in service on 11th July, 1982. After his death, the petitioner submitted application for grant of family pension under Employees' Family Pension Scheme, 1971 and necessary formalities were also complied with, but the same was not paid despite several representations & reminders and when legal notice CW 507/04 [2] remained unheeded, widow approached this Court by filing of instant petition. Reply has been filed by Commissioner, Provident Fund and so also by other respondents [employer]. So far as Provident Fund Department [respondent Nos.2 & 3] are concerned, it has been averred that contribution for the period from 1st November, 1981 to 11th July, 1982 was deposited by respondent No.4 and one year of reckonable service is pre-requisite to get pension, whereas the total reckonable service of deceased for grant of pension was 8 months & 10 days. However, as per Clause 28 of Pension Scheme, 1971, if total reckonable service is less than one year, family members are entitled for lump sum life assurance benefit under the Scheme of 1971 and the petitioner was informed vide communication dt.18/5/04 [Ann.R2/1] & dt.31/05/04 [Ann.R2/2] respectively. This all communications have taken place after she has approached this Court by filing of instant petition. At the same time, other respondents have also filed their reply since it was evasive. This Court vide order dt.27th April, 2006 directed the respondents to clarify the factual position. In compliance thereto, additional affidavit on behalf of respondent Nos.4 & 5 has been filed in which it has been deposed that contribution CW 507/04 [3] towards Provident Fund was remitted by erstwhile RSEB for the period falling between 1st November, 1981 to 11th July, 1982 and his contribution of Provident Fund for the period from 21st June, 1980 to 30th October, 1981 could not have been remitted to the department as he had worked at three different places namely; Alwar, Udaipur and thereafter, at Kota Thermal Power Station, Kota and earlier circles fall within the jurisdiction of Jaipur Vidhyut Vitaran Nigam and Ajmer Vidhyut Vitaran Nigam and all past cases are to be dealt with by Rajasthan Rajya Vidhyut Prasaran Nigam and no record is available as to why his contribution was not deducted and while the employee remained posted at KTPS, deductions were made and if at all, it could be deposited with interest as has been asked by Provident Fund Department, it is a liability of the Rajasthan Rajya Vidhyut Prasaran Nigam. Counsel for respondent Nos.2 & 3 submits that since they have not received contribution for one year which is being considered to be a reckonable service for grant of family pension under the Scheme, 1971, hence, the same has rightly been denied to her. I have heard Counsel for parties and with their assistance examined the material on record. It appears from the record that her husband Late Shri Naresh Kumar Sharma served from 23rd CW 507/04 [4] January, 1980 till his death i.e. upto 11th July, 1982 and holding PF A/c No.119211759 under Employees Family Pension Scheme, 1971, one is entitled for family pension, if he has completed reckonable service referred to under Para 2(f) of the Scheme. Para 2(f), being relevant for the present purpose, is reproduced as under: “2[f] 'reckonable service' means service rendered by a member of the Family Pension Fund in respect of which contribution are payable under this Scheme and includes any period of service in respect of which no wages are drawn by such member on account of temporary closure of the establishment, strike, lock-out or leave without pay, or for any other reason, of a similar nature or otherwise, and in respect of which contributions [both the member's and employer's shares] are payable by diversion from his Provident Fund Account as provided in sub-paragraph (2- A) of Paragraph 9 of this Scheme and also includes any period of service in respect of which wages are drawn but no contributions are payable in terms of sub-paragraph (4) of Paragraph 9 and which shall be deemed to have been paid for purposes of Paragraphs 28, 31 and 32 of this Scheme. Provided that no period of service, in respect of which no wages are drawn by a member.- (i) after the name of the member has been struck off from the rolls of the employer of the member;or (ii) [** *] (iii) after there ceases to be any amount in the fund or in the provident fund of an exempted establishment, as the case may be, lying to the credit of the member concerned, shall be treated as reckonable service; (g) all other words and expressions shall have the meaning respectively assigned to them in the Act or the Employees' Provident Funds Scheme, 1952”. CW 507/04 [5] However, the period of reckonable service makes an incumbent entitled for grant of pension includes period of service in respect of which no wages are drawn by such member on account of temporary closure of the establishment, strike, lock-out or leave without pay, or for any other reason, of a similar nature or otherwise, and with certain conditions stipulated therein. Thus, in the absence of contribution paid under the Scheme for the exigency referred still it has been considered to be a reckonable service. However, Paragraphs 31, 31-A & 32 of the Scheme certainly depicts that a member of Family Pension Fund who has contributed to the Family Pension Fund for a period of not less than one year dies during the period of reckonable service, lump sum payment towards life assurance fund shall be payable to his family or if member dies before contributing to the Family Pension Fund for a period of one year, amount of his contribution credited to the Family Pension Fund along with interest shall be refunded to member of his family as has been defined in Para 29 of the Scheme. But, from the Scheme of 1971, it is clear that it is the duty of the employer to make deductions and pay the contribution of employer & employee and payment of contribution as per Para 10, in the first instance, has to be paid by the CW 507/04 [6] employer to the Family Pension Fund by himself and also on behalf of members of Family Pension Fund. At the same time, duty has been casted upon employer under Para 15 to send to the Commissioner within 15 days of the commencement of the Scheme, a consolidated return of the employees entitled to become members of the Family Pension Fund and such statements have to be updated from time to time. It is not the case of either of the respondents that after the petitioner joined service and became member of Family Pension Fund, he ever made a request not to deduct his monthly contribution from his salary towards Family Pension Fund and being a statutory deduction it was incumbent upon Provident Fund department also to see that when one has become a member and account number has been allotted to him whether the payment of contribution has been made by the employer or not and it was their legal obligation, but if either of the respondents have failed to discharge their obligation in making deductions/contributions towards a member of Family Pension Fund, atleast a person to whom family pension is payable under Para 29, cannot be deprived of their right conferred under the Scheme, 1971. As observed supra, this Scheme being a beneficial legislation provides social protection to the dependants of the members of Family CW 507/04 [7] Pension Fund Scheme and at the same time, cast obligations upon employer and the department to see that payment of contribution is regularly made to the Family Pension Fund by the employer as on behalf of member of the Family Pension Fund employed by him directly or through a contractor. At the same time, it is the duty of the principal employer for making appropriate contribution towards Family Pension Fund. However, after Family Pension Scheme, 1995 came into force which applies to existing Employees of Family Pension Scheme, 1971 and all entrants to EPF from 16th November, 1995 onwards became entitled for Family Pension Scheme, 1995 and under the Scheme of 1971, one year was a reckonable service for grant of family pension, whereas under the Scheme of 1995 Para 16 benefit has been extended to a member who dies while in service provided atleast one month's contribution has been paid into Employees' Pension Scheme, 1995. Obviously in absence of contribution being made by employer, dependants of member of the Family Pension Fund cannot be deprived of pension admissible under the Scheme of Rules, 1971. However, it will not preclude the respondent Nos.2 & 3 to charge contribution along with interest from its employer, but impediment of monthly contribution, if not made in the facts of instant case will not come in the way of a widow in getting her family CW 507/04 [8] pension under the Employees' Family Pension Scheme, 1971. Consequently, writ petition stands allowed. Respondents are directed to release family pension which is due and admissible to her in terms of Employees' Family Pension Scheme, 1971 from the date she became entitled for under law and arrears after its due computation towards family pension may be paid to her along with interest @9% from the date it became due till its actual payment. However, respondent Nos.2 & 3 will be at liberty to charge contribution along with interest from the employer of the deceased. Respondents shall ensure compliance within three months. No cost. [AJAY RASTOGI], J. FRBOHRA507CW2004.doc