IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9271 of 2009 Ramanuj Singh, Son of Late Mishri Lal, resident of Village- Goharpur, Post Office- Kothia, Police Station-Didarganj, District- Patna………………………………………………………….….Petitioner. Versus 1. The Regional Provident Fund Commissioner, Employees’ Provident Fund Organisation, Regional Office,Bhavishyanidhi Bhawan, ‘R’- Block, Road No. 6, Patna-800001. 2. The Assistant Provident Fund Commissioner(Accounts), Employees’ Provident Fund Organisation, Regional Office, Bhavishyanidhi, Bhawan, ‘R’ Block, Road, No. 6, Patna-800001……..…..Respondents. ----------- For the petitioner: Mr. Suresh Kumar, Advocate. For the respondents: M/S. Shailendra Kumar Sinha & Prashant Sinha, Advocates. ----------- 3. 12.09.2011. Heard learned counsels for the petitioner and the respondents. 1. The writ application has been filed for:- (i) Quashing the order of the Assistant Provident Fund Commissioner(Accounts)by which the petitioner’s claim for benefit under the Employees Deposit-Linked Insurance Scheme, 1976 made in Form 5(IF) has been rejected vide Letter No. 1611 dated 15.09.2008, as contained in Annexure-3, on the ground that the employee, i.e., the father of the petitioner died after 2 leaving service. (ii) Quashing the similar order of the Assistant Provident Fund Commissioner (Accounts) issued vide Letter No. 2314 dated 07.01.2009 as contained in Annexure-5. (iii) Directing the respondent no.2 to accept the application of the petitioner for claiming benefit under the Employees’ Deposit Linked Insurance Scheme, 1976 and to make admissible payment to the petitioner. 2. The factual matrix of the case is that the father of the petitioner, Late Mishri Lal, was an employee of M/S. Pradeep Lamp Works, Jai Krishan Road, Post Office- Begumpur, Patna City, District-Patna. The father of the petitioner worked for the period 1965-93. Being the employee of the aforesaid firm, the father of the petitioner was made Employees Provident Fund member and was allotted Account No. BR-30/984, whereupon deductions were made on regular basis. In 1993, the father of 3 the petitioner was removed from service, which was challenged under the Industrial Disputes Act, wherein certain payments were directed to be made. The father of the petitioner, all of a sudden, died on 28.01.2008. The petitioner thereafter submitted an application for payment of Assurance Benefit under the Employee’ Deposit- Linked Insurance Scheme, 1976 in Form 5(IF) for withdrawal of Provident Fund through Form No. 20 and Form 10C for family pension. 3. The Assistant Provident Fund Commissioner (Accounts), respondent no. 2 passed an order vide letter no. 1611 dated 15.09.2008 as contained in Annexure-3, for payment of E.P.F. amount and also for payment of family pension amount but returned the Form No. 5(IF) of the assurance benefit under the Employees’ Deposit Linked Insurance Scheme, 1976 on the ground that the father of the claimant had died much after leaving the service and hence the claimant is not entitled for getting benefit under the said Scheme. The provident fund amounting to Rs. 43420/- 4 was credited in the account of the petitioner on 16.09.2008 and similarly family pension of Rs. 1615/- was also credited in his account on 19.01.2009, whereas the claim for payment of Assurance Benefit was turned down by respondent no.2. A letter was transmitted on 14.11.2008 to the Assistant Provident Fund Commissioner, through the petitioner’s lawyer, stating therein that the petitioner’s father remained a member of the Fund even after his death and he had not withdrawn the amount of provident fund and according to paragraph 26A of the Employees’ Provident Funds and Miscellaneous Provisions Act(hereinafter referred to as the Act), a member of the Fund shall continue to be member until he withdraws the amount standing to his credit in the Fund. Accordingly, a request was made to consider the grievance of the petitioner. The Assistant Provident Fund Commissioner (Accounts), Employees’ Provident Fund Organization, Patna, vide letter no. 2314 dated 07.01.2009 rejected the claim of the petitioner on the ground that the 5 petitioner is not entitled for the benefits under the Assurance Scheme since his father died much after leaving the service. Hence, the present writ application. 4. Section 2(j) of the Act defines- “member” means a member of the Fund whereas Section 2(h) defines- “Fund” means the provident fund established under a Scheme. Section 3(ia) defines “Insurance Fund” means the Deposit-linked Insurance Fund established under sub- section (2) of section 6C. Section 2(ib) defines “Insurance Scheme” means the Employees” Deposit-linked Insurance Scheme framed under sub- section(1) of section 6C. Section 6C of the Act envisages the creation of Employees’ Deposit-linked Insurance Scheme. Section 6(C) of Sub Section 1 and 2 of the Act reads as follows:- 6C. Employees’ Deposit-linked Insurance Scheme.-(1) The Central Government may, by notification in the Official Gazette, frame a scheme to be called the Employees’ Deposit-linked Insurance 6 Scheme for the purpose of providing life insurance benefits to the employees of any establishment or class of establishments to which this Act applies. (2) There shall be established, as soon as may be after the framing of the Insurance Scheme, a Deposit-linked Insurance Fund into which shall be paid by the employer from time to time in respect of every such employee in relation to whom he is the employer, such amount, not being more than one percent of the aggregate of the basic wages, dearness allowance and retaining allowance (if any) for the time being payable in relation to such employee as the Central Government may, by notification in the Official Gazette, specify. Explanation- For the purposes of this sub-section, the expressions, “dearness allowance” and “retaining allowance” have the same meanings as in Section 6. 5. The Employees’ Deposit-linked Insurance Scheme, 1976 (hereinafter referred to as “the Insurance Scheme”) came into force on the Ist day of August, 7 1976. Paragraph no. 2(b) of the Insurance Scheme defines assurance benefit as follows: 2(b)”assurance benefit” means a payment linked to the average balance in the Provident Fund Account of an employee, payable to a person belonging to his family or otherwise entitled to it in the event of death of the employee while being a member of the Fund.” Paragraph No. 26A of the Employees” Provident Fund Scheme, 1952 envisages the retention of the membership which reads as follows: 26A. Retention of membership-(1) A member of the Fund shall continue to be member until he withdraws under paragraph 69 the amount standing to his credit in the Fund or is covered by a notification of exemption under Section 17 of the Act or an order of exemption under paragraph 27 or paragraph 27A. Explanation:- In the case of claim for refund by a member under sub-paragraph (2) of paragraph 69, the membership of the Fund shall be deemed to have been terminated from the date the payment is 8 authorized to him by the authority specified in this behalf by Commissioner irrespective of the date of claim. (2) Every member employed as an employee other than an excluded employee, in a factory or other establishment to which this Scheme applies shall contribute to the Fund, and the contribution shall be payable to the Fund in respect of him by the employer. Such contribution shall be in accordance with the rate specified in paragraph 29: Provided that subject to the provisions contained in sub-paragraph(6) of paragraph 26 and in sub-paragraph(1) of paragraph 27,or sub-paragraph(1) of paragraph 27A, where the monthly pay of such a member exceeds(six thousand five hundred rupees) the contribution payable by him, and in respect of him by the employer, shall be limited to the amounts payable on a monthly pay of (six thousand and five hundred rupees) including (dearness allowance, retaining allowance(if any) and cash value of food concession. 6. Hence, it becomes apparent that the 9 admissibility of benefit of the Assurance Scheme would be decided on the fact as to whether the employee was member of the Fund or not and as per paragraph 26A of the Employees’ Provident Fund Scheme, 1952 a member of the Fund shall continue to be member until he withdraws the amount standing to his credit in the fund. Admittedly, the employee died on 28.01.2008 and the amount of provident fund was paid to the petitioner on 16.09.2008. 7. In view of this Court, the employee remained a member of the Fund as on the date of death and till the date, the provident fund amount was not paid to him. Though a document has been brought on record by way of counter affidavit to suggest that the assurance benefit can only be given to the family members of the employee, if the employee dies in harness, however, there is no material nor any averment which has been brought on record to suggest that it is a part of the scheme and besides this, that document does not find figure anywhere in the Employees’ Deposit-linked Insurance 10 Scheme, 1976. Moreover, neither of the parties have brought on record the actual assurance policy, enabling the court in evaluating the terms and conditions of the Insurance. 8. In the circumstances, considering the legal propositions enumerated above, since both the impugned orders as contained in Annexures 3 and 5 have been passed with very cryptic reasoning and appears to be absolutely non-speaking which is contrary to the definition of the assurance benefit as given in paragraph 2(b) of the Employees’ Deposit- linked Insurance Scheme, 1976 and also contrary to the definition of retention of the membership of the Provident Fund as given in Paragraph 26(a) of the Employees’ Provident Fund Scheme, 1976, this Court has no option but to quash Annexures-3 and 5 with direction to the authorities to consider the claim of the petitioner afresh, in accordance with law after giving due opportunity to the petitioner within a period of three months from the date of receipt/production of a copy of this 11 order. 9. Accordingly, this writ application is allowed to the extent as indicated above. U. K. ( Dinesh Kumar Singh, J)