IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.29397 of 2008 V.A.Yesan Basha .. Petitioner /Petitioner Vs. Regional Provident Fund Commissioner-II, Sub Regional Office, Vellore. .. Respondent /Respondent This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records from the respondent relating to the impugned order in TN/VL/8213/ENF/2008, dated 17.3.2008 and to quash the same and to direct the respondent to pay the arrears of family pension to the legal heirs of the petitioner's mother late Smt.Ayesha Bi For Petitioner : .Mr.R.Rajaram For Respondent : Ms.V.J.Latha - - - - ORDER The petitioner has filed the present writ petition seeking to challenge an order of the respondent Regional Provident Fund Commissioner-II, Vellore, dated 17.03.2008. By the impugned order, the respondent held that the petitioner's claim to accept the revised Form 10 submitted in the year 1986 and to grant widow family pension to the petitioner's mother Smt. Ayesha Bi cannot be accepted under the Employees Family Pension Scheme,1971. 2.On notice from this Court, Ms.V.J.Latha, learned counsel is appearing for the respondent. But no counter affidavit was filed. The case of the petitioner was that he is the son of late Abdul Majeed, who was working as Beedi Bundle Packer in M/s.V.K.Abdul Jabbar Sahib & Sons, Vellore from the year 1967. He went on medical leave from 18.01.1982. He died on 09.04.1982. He was suffering from Tuberculosis. He was on the roll of the establishment of the employer till his death on 09.04.1982. Even though these facts were admitted by the employer, by letter dated 13.12.1986 in a reply to the query made by the respondent, dated 3.12.1986, they had further stated that Form 10A which was sent in the year 1982 was erroneous and the respondent should accept the revised Form-10. On account of death of his father, his mother Ayesha Bi being the wife of late Abdul Majeed was entitled to get widow pension. When the same was not paid, the said Ayesha Bi had https://hcservices.ecourts.gov.in/hcservices/ filed a claim petition before the Labour Court being C.P.No.2229 of 1993. The said claim petition was dismissed as not maintainable by an order dated 05.12.1995. 3.Thereafter, another claim petition was filed in C.P.No.646 of 2003 claiming wages for the period from 18.1.1982 to 09.04.1982. The labour court vide order dated 21.04.2004 held that the petitioner's father was actually in service till his death, i.e., 9.4.1982. But since he had not actually worked during the said period, he was not eligible for any wages on the basis of No work No pay. The said order was not challenged by the employer. The petitioner's mother filed a claim before the respondent requesting for family pension. As per para 7 of the 1971 Pension Scheme, an enquiry was held. During the pendency of the enquiry, the petitioner's mother died on 28.10.2006. Thereafter, the petitioner filed a memo, dated 11.12.2006 to bring the legal heirs on record. That petition was allowed and the legal heirs were brought on record. In view of the above, the respondent ought to have held that the petitioner's mother was entitled for widow pension for the period from 09.04.1982 to 28.10.2006. But the respondent purporting to exercise the power under para 7 of the 1971 Scheme had held that there was delay in making a claim. The claim was made after four years after the demise of the petitioner's father and two years after the entire amount was settled to the petitioner's mother. The only ground under which rejection was made was that the statement given by the employer in the letter dated 13.12.1986 was not supported by any evidence. The employer had denied before the labour about about the petitioner's father applying for medical leave. They contended that the petitioner's father was a daily wage worker and did not come to work from 18.1.1982. Therefore, the statement of the employer made subsequently on 13.12.1986 was a misrepresentation. Since the employer did not produce even a scrap of paper and took contradictory statement before the labour court, the revised form cannot be accepted. 4.A perusal of the impugned order shows that the respondent was some how bound to reject the case of the petitioner only because of the finance liability that may be fasten on them. On the other hand, in the present case, the finding of the labour court in C.P.No.646 of 2003, dated 21.4.2004 was that the petitioner's father was in service till the date of his death, i.e. 9.4.1982. Admittedly, his employment was under the Beedi and Cigar Workers (Conditions of Employment) Act, 1966. The petitioner's father had been working in M/s.V.K.Abdul Jabbar Sahib Sons from 1967. At the time of his death, he had put in 15 years of service and that the employment of the petitioner's father was accepted. The term "employee" is defined under Section 2(f) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966. It does not make any distinction between the daily wage worker or monthly wage earner. On the other hand, Section 31 of the Act is made mandatory so as to make the employer not to dispense with the services of the employee, who had put in 6 months of service except for reasonable cause and without giving such employee at lease one month notice or wage in lieu of such notice. Therefore, even if the petitioner's https://hcservices.ecourts.gov.in/hcservices/ father was on medical leave from 18.01.1982 to 09.04.1982 and he was not paid wages in terms of the Contract of employment, he could not have been terminated from service without complying with Section 31 of the Act. Since he had died after 15 years of service, there can never be any presumption of abandonment from service under the Act. Since he had died while his name was still in the roll of employment, it has to be deemed that he was in continuous employment. As per 1971 Pension Scheme, since the member of the pension scheme had died while in service, his widow is entitled for getting family pension. 5.In view of the above, the writ petition will stand allowed and the impugned order will stand set aside. The respondent is hereby directed to grant family pension to the legal heirs of late Abdul Majeed on account of widow pension to which Smt.Ayesha Bi is entitled to for the period from 09.04.1982 to 28.10.2006. This exercise shall be carried out within a period of eight weeks from the date of receipt of copy of this order. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Regional Provident Fund Commissioner-II, Sub Regional Office,Vellore. 1 cc To Mr.R.rajaram, Advocate, SR.30084 1 cc To M/s.V.J.Latha, Advocate, SR.29499 ORDER IN W.P.NO.29397 of 2008 UG(CO) SRA (12/05/2011) https://hcservices.ecourts.gov.in/hcservices/