IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No.704 of 2011 (O&M) Date of Decision: April 25, 2011 Municipal Council, Dhariwal …Appellants Versus Mewal and Ors. …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. V.K. Sandhir, Advocate, for the appellant. ***** 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 02.02.2011 rendered by learned Single Judge holding that the writ petitioner-respondent is entitled to the grant of family pension on the premise that her deceased husband is deemed to have exercised the option for the pension scheme. The aforesaid relief has been granted to her subject to her returning the entire arrears of Contributory Provident Fund along with interest as may be determined by the competent authority. Learned Single Judge has also quashed memo dated 01.09.2009 (P-6) and subsequent order dated 20.01.2011 (P-7). By these two orders, her claim for grant of family pension was rejected on the ground that her deceased husband did not exercise option for pension scheme within the stipulated period while he was in service. 2. The husband of the writ petitioner-respondent joined the Municipal Council, Dhariwal on 10.05.1998 and continued to serve the LPA No.704 of 2011 (O&M) Municipal Council till his death on 11.01.2008. His wife writ petitioner- respondent No.1 then applied for grant of family pension, which was denied on the ground that her husband did not opt for pension within the stipulated period prescribed under the proviso to Rule 3 (ii) of the Punjab Municipal Employees Pension and General Provident Fund Rules, 1994 (for brevity, 'the Rules'). According to the aforesaid Rule, an employee was expected to exercise option within four months from the date of publication of the Rules. Learned Single Judge found that there was nothing on the record to conclusively suggest that an opportunity to exercise option was provided at the departmental level or he was made aware of the implication of the non- exercise of such option. 3. When the matter came up for hearing on 18.04.2011, Mr. Sandhir, learned counsel for the Municipal Council – appellant had raised an argument that the husband of the writ petitioner-respondent did not intentionally and consciously exercise the option as per the requirement of proviso to Rule1 (3) (ii) of the Rules. We ask Mr. Sandhir to produce the original record, which he has produced. A perusal of the record shows that neither circular was issued for exercise of option nor there is anything on record, which may suggest that the petitioner has signed to opt for Contributory Provident Fund Scheme as against Pension Scheme. On the contrary, there is a letter dated 03.08.1994 available on record, which shows that the State Government was to inaugurate the pension scheme on 15.08.1994. Accordingly, a request was made by the Director, Local Bodies, Punjab, Chandigarh to all Regional Deputy Directors to swung into action and take various steps as specified in the letter. According the direction No.2 issued in that letter a specific mention has been made to launch a campaign to obtain option from retired as well as in service 2 LPA No.704 of 2011 (O&M) employees who were willing to join the pension scheme. The scheme is deemed to have come into force from 01.04.1990. According to Clause 5, those employees who have already retired and have received the payment of Contributory Provident Fund were also entitled to join the pension scheme. They were required to refund the employees share received by them along with interest @ 10% from the date of receipt of Contributory Provident Fund to the date of repayment. In accordance with the circular No.3 issued vide memo No.SA-1-DLG/DCFA-94/24898-902 dated 03.08.1994, the employees should have been asked to exercise option and sign the papers showing the option exercised. There is no document on record showing any option having been ever obtained. Therefore, we find that the conclusion recorded by the learned Single Judge is unexceptionable and does not require any interference. Accordingly, the appeal is liable to be dismissed. 3. Mr. Sandhir, learned counsel for the Municipal Council- appellant has pointed out from some loose sheets collected in another file that the husband of the writ petitioner – respondent has given in writing that he did not exercise option earlier on account of domestic problems. We are not impressed with the aforesaid contention. Firstly, this is not the stand taken before the learned Single Judge. Secondly, on the basis of the aforesaid letter found in loose paper file, it cannot be concluded that the Municipal Council- appellant discharged its duties by inviting option. There is no credible evidence on record to that effect. Therefore, such a letter cannot be made basis for declining the relief of family pension to the widow of a deceased employee. Accordingly, we find no substance in the aforesaid contention and rejected the same. 3 LPA No.704 of 2011 (O&M) 4. For the reasons mentioned above the appeal does not warrant admission. Accordingly, this appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (T.P.S. MANN) April 05, 2011 JUDGE Rajan 4