1 S.B.CIVIL WRIT PETITION NO. 2368/1998 Yashoda Devi Ajmera Vs. Union of India & Ors. Date of Order :: 09.03.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr Vinay Jain, for the petitioner/s. ... By this petition for writ a challenge is given to the order dated 18.6.1998 passed by the Assistant Commissioner/Incharge, Dy, Regional Provident Fund Office, Udaipur, desiring to recover a sum of Rs. 87342/-. In brief facts of the case are that husband of the petitioner late Sh. Vridichand was in employment of M/s Associated Instruments Manufacturers Pvt. Ltd from the month of May 1964 to September 1971 and was having Provident Fund Account with No.DL/2617/1. After leaving services of M/s Associated Instruments Manufacturers Pvt. Ltd. the petitioner joined services with M/s Rajasthan Cooperative Spinning Mills Ltd. Gulabpura, Bhilwara as Stores Superintendent-cum- Accounts Officer in the month of October 1971. He remained in services of the aforesaid employer up to the month of December 1973. Subsequent thereto he joined services with Rajasthan Cooperative Spinning Mills Ltd., Gulabpura, Bhilwara in the year 1976 with a new PF Account No. RJ/1775/530. Sh. Vridichand while serving Rajasthan Cooperative Spinning Mills Ltd., Gulabpura, Bhilwara died on 25.3.1989, accordingly, as per the Employees Family Pension Scheme, 1971 pension was 2 accorded to the present petitioner. By the order impugned the Assistant Commissioner, Employees Provident Fund Organization, Udaipur instructed the petitioner to refund a sum of Rs. 87,342/- being said to be paid erroneously to her. While challenging the same it is contended by learned counsel for the petitioner that the recovery impugned is sought to be made in violation of principles of natural justice and also that no payment as alleged was paid erroneously. As per the petitioner she was entitled to receive family pension under the Scheme of 1971. As per the respondent Employees Provident Fund Organization, husband of the petitioner was in service of the Associated Instruments Mfrs. Pvt. Ltd. up to the month of September 1971 and as such on the date the Employees Family Pension Scheme, 1971 came into force i.e. first day of March 1971, he was required to submit an option as per Clause IV of the Scheme concerned but he did not choose to opt for the pension scheme, therefore, he was an existing employee, and therefore, was not covered by the Employees Family Pension Scheme, 1971. Heard counsel for the petitioner and perused the record. It is true that the petitioner was in employment of M/s Associated Instruments Mfrs. Pvt. Ltd. up to the month of September 1971 that 3 includes the period in which the Scheme of 1971 came into force, as such, the petitioner was having an opportunity to opt for pension scheme as per clause IV of the Scheme of 1971. However, on this count alone the respondents can not deny family pension to the petitioner under the Scheme of 1971. As per para 3(a) of the Scheme, “an employee who becomes a member of the Employees' Provident Fund or of provident funds of factories and other establishments exempted under Section 17 of the Act on or after the 1st day of March 1971 shall be a member of the Family Pension Scheme. The petitioner though left services of M/s Associated Instruments Mfrs. Pvt. Ltd. without submitting any option as per Para 4 of the Scheme 1971, but subsequent thereto he was not a member of any provident fund scheme of factory or establishment exempted under Section 17 of the Employees Provident Funds And Misc Provisions Act, 1952. He became such member in 1976 only and as such his earlier account is not required to be taken into consideration for determination of employees family pension under the Scheme of 1971. The petitioner being widow of late Sh. Vridichand became entitled for getting family pension for the services rendered by her husband with Rajasthan Cooperative Spinning Mills Ltd. from 1976 onwards only. As such, for determination of petitioner's pension the only relevant account is RJ/1775/530. The account No.DL/2617/1 was closed by late 4 Sh. Vridichand, and therefore, that can not be treated as an adverse fact to deny pension under the Scheme of 1971. The amount relating to account No.DL/2617/1 was also withdrawn by late Sh. Vridichand in the month of March 1974. The respondents, as a matter of fact, should have not taken into consideration the first account number of late Sh. Vridichand while determining and then denying pensionary rights to the petitioner. As such the order impugned apparently is bad. Accordingly, this petition for writ is allowed. The order impugned dated 18.6.1998 is declared illegal, and therefore, the same is quashed. The respondents are restrained from effecting recovery from the petitioner in a tune of Rs. 87,342/- and further they are directed to make payment of pension to the petitioner as per Employees Family Pension Scheme 1971 against the right accrued under the account No.RJ/1775/530. No order as to costs. (GOVIND MATHUR), J. Jgoyal '