(1) WP No. 2034/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2034 OF 2001 Smt.Surekha Mohiniraj Joshi] R/o 6, New Mukundnagar, ] PETITIONER. Gajanan Housing Society, ] Ahmednagar. ] VERSUS 1] Maharashtra State Road ] Transport Corporation, ] Ahmednagar, Through ] Divisional Controller, ] Ahmednagar. ] ] 2] Asstt. Regional Provident ] Fund Commissioner, ARPFC’s ] Office, Wani House, Nashik ] ] 3] Inspector of Provident, ] Inspectorate of Provident ] Manmad Road, Ahmednagar. ] ] 4] Regional Provident Fund ] RESPONDENTS. Commissioner,RPFC’s Office,] 341, Bhavishya Nidhi Bhavan] Bandra (East), Mumbai-51 ] ] 5] Central Provident Fund ] Commissioner, PPF Organisa-] -tion, Central Office,HUDCO] Vishala, 14, Bhikaji Kama ] Palace, New Delhi. ] ] 6] Respondent No.6 is deleted ] ] 7] Union of India, Through ] Standing Counsel,High Court] of Bombay, Bench at ] Aurangabad. (2) WP No. 2034/2001 ----- Mr.V.J.Dixt,Senior Counsel,for the petitioner. Mr.M.K.Goyanka,Advocate,for respondent No.1. Mr.K.B.Choudhari,Advocate,for respondent Nos.2 to 5. ----- CORAM : Naresh H. Patil and N.D.Deshpande, JJ. DATE : 9th July, 2009. ORAL JUDGMENT [ PER – NARESH H. PATIL, J.] 1] The petitioner’s husband was working with Maharashtra State Road Transport Corporation (for short “Corporation”). He was appointed in the year 1967. According to Corporation’s service record extract, which is placed on the record of this Court, petitioner’s husband opted to continue under M.S.R.T.C. Contributory Provident Fund. Petitioner’s husband died on 1st February, 1995. The Petitioner, the widow of employee of Corporation, filed application in the year 1997 for claiming benefits of Employees’ Pension Scheme, 1995 (for short “Scheme of 1995”). Her request was rejected. The petitioner, therefore, challenges the said action and decision taken by respondents in rejecting her claim. 2] The learned Senior Counsel Shri.V.J.Dixit, appearing for petitioner, submits that petitioner’s husband died between crucial period of 1st April, (3) WP No. 2034/2001 1993 and 15th November, 1995 and in view of provisions of the Family Pension Scheme, 1971 (for short “the Scheme of 1971”) and the Employees’ Pension Scheme, 1995 petitioner is entitled to claim family pension. The learned Senior Counsel Shri.Dixit for petitioner placed reliance on following reported judgments. 1. Sunanda vs. R.P.F.Commissioner, Aurangabad [2005(4) Mh.L.J. 525]. 2. D.S.Nakara v. Union of India [(1983) 1 SCC 305], 3. DTC Retired Employees’ Association v. Delhi Transport Corporation [(2001)6 SCC 61] 3] According to learned Senior Counsel Shri.Dixit, even if it is assumed, as submitted by the employer, that the petitioner’s husband opted to continue under M.S.R.T.C. Contributory Provident Fund, the petitioner’s husband would automatically become member of the Employees’ Pension Scheme of 1995 and in view of provisions of para 7(1) of the Scheme of 1995 he would be deemed to have exercised the option of joining the Scheme on his death. (4) WP No. 2034/2001 4] The learned counsel Shri.K.B.Choudhari, appearing for Provident Fund authorities, submitted that the petitioner’s husband opted to continue under the M.S.R.T.C. Contributory Provident Fund and he was not the member of Family Pension Scheme of 1971. He did not deposit one month’s membership contribution, which is a mandatory requirement under the scheme and, therefore, employee’s widow would not get benefit of provisions of Employees’ Pension Scheme of 1995. The counsel placed reliance on a judgment delivered in Writ Petition No.3603 of 2001, dated 30th October, 2002 [The Maharashtra State Transport Retired Employees Association Vs. The State of Maharashtra]. 5] The learned counsel Shri.M.K.Goyanka, appearing on behalf of respondent Corporation, supported the contentions raised by learned counsel Shri.K.B.Choudhari. The counsel submitted that the petitioner had withdrawn the entire benefits of contributory provident fund. The counsel submitted that the deeming clause as envisaged in para 7(1) of the Scheme of 1995 will have to be read with the provisions of para 6(c) of the Scheme of 1995 though petitioner’s husband died between crucial period i.e. 1st April, 1993 to 15th November, 1995. The counsel placed reliance on a reported judgment in Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi [AIR 2008 SC 1114]. We have perused the judgments (5) WP No. 2034/2001 cited by the learned counsel appearing for the contesting parties. 6] From the perusal of provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, the Family Pension Scheme, 1971, the Employees’ Pension Scheme, 1995 and in the facts of the case, we find that the petitioner’s husband had opted to continue M.S.R.T.C. Contributory Provident Fund. There is no record to show that at any point of time he opted to be a member or continued under the Family Pension Scheme of 1971. He died on 1st February, 1995. The petitioner is claiming benefit under the provisions of the Scheme of 1995. It would be necessary to reproduce the provisions of clauses 6 and 7 of the Scheme of 1995, which reads thus: “Membership of the Employees’ Pension Scheme. 6. Subject to sub-para (3) of paragraph 1,the Scheme shall apply to every employee- (a) who on or after the 16th November, 1995, becomes a member of the Employees’ Provident Funds Scheme, 1952, or of the provident funds of the factories and other establishments exempted by the (6) WP No. 2034/2001 appropriate Government under section 17 of the Act, or in whose case exemption has been granted under paragraph 27 or 27A of the Employees’ Provident Funds Scheme, 1952, from the date of such membership; (b) who has been a member of the ceased Employees’ Pension Scheme, 1971, before the commencement of this Scheme from 16th November, 1995; (c) who is ceased to be a member of the Employees’ Family Pension Scheme, 1971, between 1st April, 1993 and 15th November, 1995, and opts to exercise his option under paragraph 7; (d) who has been a member of the employees’ provident fund or of the provident funds of factories and other establishments exempted by the appropriate Government under section 17 of the Act or in whose case exemption has been granted under paragraph 27 or 27A of the Employees’ Provident Funds Scheme, 1952, on 15th November, 1995, but not being a member of the creased Employees’ Family Pension Scheme, 1971, opts to exercise his option under paragraph 7. Retention of membership. 6A. A member of the Employees’ Pension Fund shall continue to be such member till he attains the age of 58 years or he avails of the withdrawal benefit to which he is entitled under paragraph 14 of the Scheme, or dies, or the pension is vested in him in terms of paragraph 12 of the Scheme, whichever is earlier. (7) WP No. 2034/2001 Option for joining the Scheme. 7. (1) Members referred to under sub- paragraph (c) of paragraph 6 who have died between 1st April, 1993 and 15th November, 1995, shall be deemed to have exercised the option of joining the scheme on the date of his death. (2) Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment. (3) Members, referred to in sub-paragraph (c) of paragraph 6, shall have the option to join the Scheme as per the provisions of paragraph 17 from 16th November, 1995. 7] For appreciating the Family Pension Scheme, 1971 and Employees’ Pension Scheme, 1995, we have perused the following reported judgments of the Apex Court : 1. Mafatlal Group Staff Association v. regional Commissioner, Provident Fund [(1994) 4 SCC 58], 2. Otis Elevator Employees’ Union S.Reg. v. Union of India [(2003) 12 SCC 68), 3. Viju w/o Manohar vs. Secretary, Govt. of India [2005(3) Mh.L.J.51]. We may refer to para 6 of the judgment in (8) WP No. 2034/2001 the case of Mafatlal Group Staff Association cited (supra), which reads thus : 6. Clause 3 of the Scheme framed by the Central Government under Section 6-A provides that every person who becomes a member of the Employees’ Provident Fund Scheme on or after 1-3-1971 shall automatically become a member of the Family Pension Fund Scheme. So far as the existing members of the Employees’ Provident Fund are concerned, the clause gave them an option to come under the Family Pension Scheme or to stay out. Such an option was not given to employees who became members of the Employees’ Provident Fund on or after 1-3-1971 – and this distinction forms the basis for the complaint of discrimination made by the writ petitioner- appellants.” We may also refer to para 9 of the judgment in the case of Otis Elavator Employees’ Union cited (supra), which reads thus: 9. In the year 1995, a comprehensive Employees’ Pension Scheme was introduced replacing the Family Pension Scheme of 1971. The Pension Scheme is funded by diversion of 8.33% employer’s share in the provident fund and contribution of the Central Government was @ 1.6 per cent, totalling 9.5%. Assets and liabilities of ceased family pension fund were taken over by the new Scheme and family pension fund as on 15-11-1995 forms the initial corpus of the pension fund and all accumulations to the provident fund up to 15-11-1995 (9) WP No. 2034/2001 remain intact and likewise the employees’ contribution to the provident fund remains untouched. Similarly, balance of 1.67% employer’s share of contribution to the provident fund will continue to be part of the fund. The salient features of the Scheme are: (1) pension payment for life to a member on superannuation or retirement and in the event of becoming totally and permanently invalid during employment period; (2) family pension payment upon death of the member irrespective of death occurring while in service, away from employment or after retirement as a pensioner; and (3) facility for commutation of pension up to 1/3rd by a member and also return of capital on option-formula basis. We may further refer to paras 10 and 11 of the judgment in the case of Viju w/o Manohar Sawle cited (supra), which reads thus: 10. A conjoint reading of the aforesaid provisions would, thus, show that the 1995 Scheme is automatically made applicable to all such persons who were members of the 1971 Scheme, on 16th November, 1995. It is also clear from sub-paragraph (1) of para 7 that 1995 Scheme would also be made applicable to all such members who were members of the 1971 Scheme and who had died between 1st April 1993 and 15th November, 1995, due to the deeming provision of they having (10) WP No. 2034/2001 exercised the option of joining the 1995 Scheme on the date of the death. 11. Insofar as the persons who ceased to be the members of the 1971 Scheme between 1st April, 1993 to 15th April, 1995, the 1995 Scheme would be applicable to them if they opt to exercise option under para 7. Sub- paragraph (2) of para 7 would show that such members will have the option to join the Scheme as per the provision of paragraph 17 from the date of the exit from the employment. Paragraph 17 would show that if such members decide to opt for the 1995 Scheme, they will have to refund benefits received by them under the earlier Scheme along with interest @ 8.5% per annum from the date of withdrawal of benefit. Para 18 required the employer to ask every person who is entitled to become a member of the 1995 Scheme to furnish and that person on such demand is required to furnish to the employer for communication to the Commissioner, the particulars concerning himself and his family in the form prescribed by the Central Provident Fund Commissioner.” 8] We find that in view of the fact that petitioner’s husband opted to continue under the M.S.R.T.C. Contributory Provident Fund, it will not be possible now for the petitioner to claim benefit under the Employees’ Pension Scheme of 1995. After notification of the Scheme of 1995, the Family Pension Scheme of 1971 ceased to operate and the corpus lying under the Scheme of 1971 was utilized (11) WP No. 2034/2001 for enhanced benefits envisaged under the Scheme of 1995. Considering the purpose for which the Scheme of 1995 was devised and the conditions and restrictions put under the same for benefit of the Scheme, we find, in the facts of this case that the petitioner was not entitled to claim the benefits. Therefore, we are of the opinion that the petitioner is not entitled for the benefit of Employees’ Pension Scheme of 1995. We, therefore, find that the petition is meritless and it deserves to be dismissed. 9] Petition is dismissed. Rule discharged. [ N.D.Deshpande,J.] [ Naresh H. Patil,J.] pcr/o/wp2034.01