ORDER
1. A very, very short point is involved in this appeal. Admittedly the appellant is the wife of the deceased Jiwan Rai, who was holding Provident Fund Account No. D/31/87 of Tetulmari Colliery. The appellant's claim was that she being a nominee of the deceased Jiwan Rai was entitled to receive the full Provident Fund amount standing credited in the aforesaid account, but the Regional Commissioner, Coal Mines, Provident Fund Region-II, Dhanbad (respondent No. 2 in this appeal) rejected the appellant's claim for receiving the entire Provident Fund amount and instead held and directed that the appellant along with parents of the deceased and the appellant's children would be paid the Provident Fund amount in equal shares.
This was done vide Order dated 27.2.2002, passed by respondent No. 2. The appellant feeling aggrieved, challenged this Order by filing W.P. (C) No. 1974 of 2002, but the learned Single Judge dismissed the writ application; hence this appeal under Clause 10 of the Letters Patent.
2. We have perused the Order dated 27.2.2002 passed by respondent No. 2. We have also seen carefully the relevant paras of the Coal Mines Provident Fund Scheme framed under Section 3 of the Coal Mines Provident Funds and Miscellaneous Provisions Act, 1948 and issued vide Notification dated 11.12.1948. It is the undisputed case of the parties before us that the payment of the accumulated Provident Fund standing to the credit of the deceased employee (Member of the Scheme) is made in accordance with Para 64 of the Scheme. Actually it is Clauses (i) and (ii) of Para 64, which deal with the aspect of payment. For ready reference, we reproduce hereinbelow Para 64 of the scheme, as it relates to the present case :--
'64. Accumulation of a deceased member to whom payable.--On the death of a member before the amount standing to his credit has become payable, or where the amount has become payable, before payment has been made-
(i) if a nomination made by the member in accordance with paragraph 62 subsists, the amount standing to his credit in the Fund or that part thereof to which the nomination relates, shall become payable to his nominee or nominees in accordance with such nomination;
(ii) if no nomination subsists or if the nomination relates only to a part of the amount standing to his credit in the Fund, the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall become payable to the members of his family in equal shares.
Provided that no share shall be payable to-
(a) sons who have attained majority;
(b) sons of a deceased son who have attained majority;
(c) married daughters whose husbands are alive;
(d) married daughters of a deceased son whose husbands are alive; if there is any members of the family other than those specified in Clauses (a), (b), (c) and (d) :
Provided further that the widow or widows, and the child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived the member and had not attained the age of majority at the time of the member's death. (iii) In any case to which the provisions of Clause (i) and (ii) do not apply the whole amount (that would have been otherwise payable in his case) shall be payable to the person legally entitled to it];..........'
Since Para 64 makes a mention of nomination in terms of Para 62, it shall be advantageous to take note of Para 62 of the Scheme as well, in so far as it relates to nomination. Clauses (1), (2) and (3) of Para 62 of the Scheme read thus :--
'62. Nomination.--(I) Each member, or if he is a minor his guardian shall make in his declaration in Form 'A' (to be submitted in duplicate) a nomination conferring the right to receive the amount that may stand to his credit in the Fund in the event of his death before the amount standing to his credit has become payable, or where the amount has become payable, before payment has been made.
(2) A member, or if he is a minor his guardian, may in his nomination distribute the amount that may stand to his credit in the Fund amongst his nominees at his own discretion.
(3) If a member has a family at the time of making a nomination, the nomination shall be in favour of one or more persons belonging to his family. Any nomination made by such member in favour of a person not belonging to his family shall be invalid.
'Provided that any nomination made by a member before his/her marriage in favour of his/her dependent parents shall be deemed to be invalid from the day on which the member marries; and the member shall make a fresh nomination...' Had the deceased Jiwan Rai made any nomination in terms of Para 62 (supra) in favour of the appellant?
3. The appellant claims that he had made such a nomination. If indeed the deceased had made such a nomination in favour of the appellant, in terms of Clause (i) of Para 64 (supra) the amount is payable to the appellant being such a nominee. In that case, it becomes the entitlement of the appellant as a nominee to receive the entire amount of the Provident Fund. Only if it is held that no nomination was made by the deceased in favour of the appellant, Clause (ii) of Para 64 (supra) will come into play under which the amount would be payable to the members of the family in equal shares. We may wish to note the expression 'Family' as has been defined in Para 2(h) of the Scheme and as per this definition the 'family' means the wife, children and dependent parents of the deceased (Member of the Scheme). A reading of the Order dated 27.2.2002, passed by respondent No. 2 even though does suggest that he made a reference to Para 64 (supra), yet without at all indicating as to whether any nomination was made by the deceased in favour of the appellant or no such nomination was made, he by passing a cryptic Order held that the entire Provident Fund amount would not be paid to the appellant and that it had to be shared between the appellant, her children and the parents of the deceased. To say the least, the Order dated 27.2.2002 suffers from an error apparent on the face of the Order, inasmuch as the only basic issue relating to the entitlement or non-entitlement of the appellant to receive the entire Provident Fund amount has not even been touched by respondent No. 2. Either in hot haste or without any application of mind, respondent No. 2 decided the important question of entitlement of the appellant without any reference to the vital aspect, whether the appellant was or was not the nominee of the deceased.
4. It is respondent No. 2, who is the best person to take a decision on the aforesaid question. We are saying so because he is the person who has to appreciate the facts and go through the materials on record as also peruse the papers and documents. By his cryptic Order, he unnecessarily drove the party to this avoidable litigation.
5. For the foregoing reasons, therefore, we allow this appeal and while setting aside the Order dated 22.3.2002 passed by the learned Single Judge in WP (C) No. 1974 of 2002, also consequentially quash and set aside the Order dated 27.2.2002 passed by respondent No. 2, and, based on the observations hereinabove made, we direct respondent No. 2 to once again consider the entire case and after offering opportunity of hearing to the appellant as well as the parents of the deceased to pass final order afresh, which should be a well reasoned and speaking order. The needful shall be done by respondent No. 2 positively within three months from today. To make it possible to happen, we direct respondent No. 2 to ensure that he serves notices upon the appellant and the parents of the deceased to appear before him sometime in the month of March 2003, preferably in the first fortnight of March, 2003.
6. The appeal is, accordingly, allowed.No order as to costs.