ORDER
T.N. Singh, J.
1. Persistant denial for long seven years of her claim for family pension made the desparate widow letter- petition this Court a year ago. Gopal, her husband, died on April 21, 1979. Then began her struggle for survival to feed and rear five minor children, besides nursing one in the womb and keeping her own body and soul together.
2. Glimpses of her agonising travail came to be noticed by this Court when her petition dated October 4, 1989 was listed on November 11, 1989. Office was directed to issue notices to respondents 1 and 2 (Secretary, M.P. Electricity Board (hereinafter, MPEB or Board), Jabalpur and Divisional Engineer, MPEB, Gwalior respectively) and respondent No. 3, Regional Provident Fund Commissioner, Indore. To expedite disposal, the notices were made returnable in four weeks and were directed to be served on Standing Counsel for the respondents - Shri K.N. Gupta and Shri N.P. Mittal, respectively. On January 16, 1990, Shri Gupta filed a joint return of respondents 1 and 2 of which copy was furnished to Shri Mittal and his prayer for filing return of respondent No. 3 within two weeks was granted. On March 15, 1990, it was noted that pleadings were complete and for disposal of the matter in motion hearing on March 22, 1990, petitioner's prayer made on that date was allowed. Unfortunately, it could be heard only on September 10, 1990.
3. Several documents have come on record in the pleadings filed by the parties. To wit -Annexures A/1 to A/11, filed by the petitioner, Annexures R/4, R41 to R5 (viii), filed by respondents 1 and 2, with the return filed on December 15, 1989 and subsequently on March 22, 1990. Be it noted that on behalf of respondent No. 3, 'reply' was filed on February 2, 1990, but with that no document was filed.
4. In their joint return, respondents 1 and 2 have supported the petitioner and they have submitted that for delay in settlement of petitioner's claim, they are not to be blamed. They had done all that was possible for them to do and that on one pretext or other, respondent No. 3 was delaying the settlement. From their Annexure R/1, it appears clear that on July 22, 1983, Joint Director (Accounts). MPEB, Jabalpur, had forwarded to respondent No. 3 necessary documents for settlement of petitioner's claim, made in prescribed from 10-A(PPF), stating that Gopal was a Member of the Family Pension Scheme, 1971 and he was allotted FPF Account No. 119433. Entries to be completed by the employer appearing at pages 5 and 6 of the form required to be 'duly verified' were attested under his Seal and Signature by respondent No. 1. Against Clause (i), it was 'certified' that the deceased was admitted as Family Pension Fund Member with effect from March, 1973; and against Clause (iii), 'Contributions to the Family Pension Contribution Account were remitted in respect of Gopal, son of Baldeo, for the minimum period of two years from the date of enrolment of the member to the Family Pension Scheme', Last pay drawn by deceased was stated as Rs. 339.90 (basic pay + D.A. etc) and it was also verified that 'deceased member was on the rolls till the date of his death' which was also verified as April 21, 1979. Certificate of date of birth (July 1, 1942) as also the Death Certificate were sent with the letter and therein it was stated, 'Late Shri Gopal was appointed in Board's service w.e.f. July 25, 1977'.
5. Respondent No. 2 wrote to respondent No. 3 in June, 1984 (vide Annexure P/2) for early settlement of petitioner's claim, but the latter appears to have slumbered until petitioner's legal notice (Annexure P/5) reached him to which he responded vide his letter dated June 14, 1989 (Annexure P/7), She was informed that her claim could be settled if 'Provident Fund Code No' and 'Khata No. ' were communicated to him. Those she ascertained as per Annexure P/9, on July 6, 1989, from respondent No. 2 - Code No. MP 4974 and Khata No. C-119443- and these were communicated to respondent No. 3 on July 12, 1989, as per Annexure P/10. She expected, accordingly, early settlement of her claim, but that did not happen. Surprisingly, in this Court, in his reply respondent No. 3 made a volte face and took the stand that petitioner is not entitled to Family Pension. Three grounds are given to support the stand: Her deceased husband was enrolled as a member on July 25, 1977 and had not contributed to the Family Pension Scheme for a period exceeding two years; a sum of Rs. 107/- being his contribution, including interest accrued, had been paid to the petitioner as per para 33 of Family Pension Fund Scheme and the petitioner having accepted that amount, she was estopped from claiming Family Pension; MPEB fell under 'exemption list' and amount of Provident Fund was available, therefore, with the Board, respondents 1 and 2.
6. In this context, it is necessary, therefore, to refer to Annexures 4 and 5 series. Those documents are statements prescribed under the Employees Family Scheme, 1971. The first statement (Annexure R/4) gives Gopal's 'Date of joining F.P.F. 4/71' and 'Dale of leaving service - 4/79'; and for the 'reckonable service' different periods are mentioned for years 1971 to 1979. Annexure R/5 series are statements in Form 7 (FPF) prescribed under the Employees' Family Pension Scheme, 1971 'for exempted establishments only'. Particulars in those statements comprise of wages paid to the worker, his share and employer's share as contribution to Family Pension Fund. It appears that monthly contribution of Gopal to the said fund as also Board's contribution is duly recorded on monthly basis for the period between April 1971 and April, 1979. It is also recorded therein 'Contribution not made during August, 1977 to November, 1977 due to account number not allotted.'
7. On facts, therefore, we have found it impossible to appreciate the contention of respondent No. 3 that petitioner was not entitled in law to family pension. We would examine presently the statutory provisions, but we would like to record our finding in regard to facts established as undisputed. At the time of his death, petitioner was aged about 37 years. He had been in service of MPEB atleast since April, 1971 and that contribution was made by him on monthly basis since April, 1971 to the Family Pension Fund till his death, except for the period between August to November, 1977 as 'account number' had not been allotted. It is necessary, however, to refer to Annexure P/111 wherein it is mentioned that with effect only from July 25, 1977, he became a 'regular' employee of the Board in the post of 'Helper' though it is mentioned therein at the same time that he had joined service on July 3, 1970 but continued as a daily-rated worker from July 3, 1970 to July 24, 1977. The further fact mentioned is that he had not submitted his 'option'. We must recall, however, that in the claim form, facts certified by respondent No. 2 are that since March, 1973, he was admitted as 'Member' of the Family pension Fund and that the last pay drawn by him was Rs. 399.90.
8. Stage is now well set to test on statutory anvil petitioner's entitlement. We accordingly refer to the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, for short, the Act, and Employees' Family Pension Scheme, 1971, for short, Pension Scheme. Section 6A was inserted in the Act w.e.f. from April 23, 1971, and simultaneously other new provisions were also made in the Act. Section 2(gg) contemporaneously enacted defines the term 'Family Pension Fund' while Section 2(fff), the term 'exempted establishment'. The terms 'employee' and 'member' are defined in Clauses (f) and (j) respectively of Section 2. We propose to extract first relevant parts of Section 6A:
'6-A, Employees' Family Pension Scheme-
(1) The Central Government may, by notification in the Official Gazette, frame a scheme to be called the Employees' Family Pension Scheme for the purpose of providing family pension and life assurance 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 Family Pension Scheme, a Family Pension Fund into which shall be paid from time to time in respect of every such employee-
(a) such portion, not exceeding one-fourth, of the amount payable under Section 6 as contribution by the employer as well as the employee, as may be specified in the Family Pension Scheme,
(b) such sums as are payable by the employer of an exempted establishment under Sub-section (6) of Section 17, and ....'
Schedule III of the Act as per Section 6(4) is required to specify matters for which provision is to be made in the Family Pension Scheme. Some of the matters enumerated in the said Schedule are - class of employees to whom the Family Pension Scheme shall apply; the time within which the option to join the Scheme is to be exercised; portions of employer's and employee's contribution to be credited to the Family Pension Fund; contribution to be made by Central Government to the said Fund; Scales of Family Pension and the manner in which the exempted establishments have to pay contributions (both the employer's and employee's share).
9. Section 14 of the Act provides for penalties and different acts of the employer contravening the specific provisions of the Act are specified as offences punishable with imprisonment for a term which may extend to six months, with or without fine. Section 14B empowers the Central Provident Fund Commissioner to recover from the employer as 'damages' the amount of arrears in the event of his committing default in payment of the contribution to the Family Fund. We extract, in extenso, Section 17(6)
'(6) Subject to the provisions of Sub-section (1-d), the employer of an exempted establishment or of an exempted employee of an establishment to which the provisions of the Family Pension Scheme apply, shall, notwithstanding any exemption granted under Sub-section (1) or Sub-section (2), pay to the Family Pension Fund such portion of the employer's contribution as well as the employee's contribution to its provident fund within such time and in such manner as may be specified in the Family Pension Scheme.'
About Sub-section (1-A), it may be noted that thereunder Central Government reserves to it-self the right not to apply the provision of Family Pension to any establishment when it is of the opinion that employees of that establishment are in enjoyment of similar benefits and those are' on the whole not less favourable.'
10. We refer now to some of the important provisions of the Pension Scheme which had come into force with effect from March 1, 1971. As per para 1(iii), the scheme is meant to apply to 'the employees of all factories and other establishments to which the Act applies'. The term 'reckonable service' is defined in para 2(f) to mean, 'service rendered by member of the Family Pension Fund in respect of which contributions are payable under the Scheme'. Para 3 is quoted in full:
'3. Membership of the Family Pension Fund - Subject to sub- paragraph (3) of Paragraph 1, this Scheme shall apply to every employee-
(a) 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;
Provided that an employee who attains the age of more than 59 years on the date on which he would, but for this proviso, have become eligible for membership or have been required to become a member of this Scheme, shall not be eligible for membership under this Scheme.'
Para 4 deals with option for joining the Scheme and 4-A provides for cases of belated compliance of the statutory provision; sub-paras (3) in both cases contemplate, however, that 'it shall be duty of every employer to get the option' exercised by 'every member' within the time specified. Recovery of Member's share of contribution is contemplated 'by means of deduction from his wages', as per para 12, on daily, weekly or fortnightly basis and to be totalled up as 'monthly deduction'; as per sub-para 3, these 'shall be deemed to have been entrusted' to the (employer) for the purpose of paying the contribution to the Family Pension Fund'. Preparation of contribution cards, submission of returns to the Commissioner and maintenance of records by the employer are contemplated in paras 14 and 15. Commissioner is required to allot 'Separate Account Number' to members of Family Pension Fund employed in exempted establishments, as per para 18(3).
11. The scale of Family Pension payable is provided in para 28 of which relevant part is extracted:
'Pay of the member per month on which contribution to the FamilyPension Fund is payable
Monthly rate of FamilyPension
1. BelowRs. 400/-
30% of pay subjectto a minimum of Rs.60/-and a maximumof Rs. 120/-....
Explanation 3. In the case of a piece-rated or a daily-rated employee, who was a member of the Family Pension Fund, the rate of full pay last drawn by him during the period for which the contribution to the Family Pension , Fund was recovered, shall be determined by taking into account his average earnings in the twelve months preceding that in which he died.'
The Family Pension, as per para 29, is payable to only one person at a time. The widow gets if she is alive; failing her, other near relations specified therein. As per para 30, 'Family Pension shall become payable from the day immediately following that on which a member of the Family Pension Fund dies'. Para 31-A deals with disposal of contribution in respect of a member of the Family Pension Fund who had become qualified; it provides for 'refund' of the contribution made by the member along with interest thereon at the rate of 5 1/2 percent per annum to a member of his family in case he dies before contributing to the Pension Fund for a minimum period of one year. Admittedly, however, before this para as also para 28 were amended w.e.f. from August 24, 1982, the period of 'one year' mentioned in both paras was 'two years'.
12. It became necessary for us to make a careful survey of the provisions of the Act and the pension scheme for finally deciding petitioner's claim and making affirmative order in that regard because we found untenable, in the facts and circumstances of the case, Shri Mittal's plea that it may be case only for a direction to respondent No. 3 for a proper disposal of petitioner's claim. After lapse of more than seven years, to subject petitioner to the ordeal of further protraction in final settlement of her apparently irrefutable claim appeared to us to be too unjust a plea to be entertained. Accordingly on merits, we propose to deal and dispose of all the contentions Shri Mittal has raised to support the stand of respondent No. 3, manifested in his return and in the prayer that the petition be 'ordered to be dismissed with costs'.
13. We do not think if it is at all necessary in this case to examine the retrospectivity of the amendment made in paras 28 and 31-A of the Pension Scheme. In our view, it would matter little even if petitioner is not held entitled to the benefit of the amendment because in the instant case, it has been found as a fact that petitioner's husband's contribution to the Family Pension Fund dated back to April, 1971 and that continued without break, on monthly basis, till his death in April, 1979. His contribution being evidently for over two years, the question to be considered only is whether the petitioner can be denied Family Pension on the ground that he became a 'regular employee' of the Board w.e.f. from July 25, 1977 and in that capacity, he did not complete two years before his death. To answer that question, we have to refer to the provisions of paras 2(f), 3, 12 and 28 of the Pension Scheme and also to Section 2(f) of the Act. We extract Section 2(f) because the term defined therein is used in paras 3, 12 and 28 of the Pension Scheme and the definition is crucial to petitioner's entitlement:
'employee' means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his wages directly or indirectly from the employer, and includes any person employed by or through a contractor in or in connection with the work of the establishment'.
Any person doing any kind of work 'for wages' in an 'establishment' is regarded as 'employee' for the purpose of the Act and the Pension Scheme even if he is employed through a Contractor. We find no intrinsic evidence in the definition to accept Shri Mittal's contention that only to a 'regular' employee the Act and the Pension Scheme apply; and any other employee cannot be a 'member' of the Pension Scheme so as to confer a right to claim 'family pension' under Para 28 of the Pension Scheme. Explanation 3 of Para 28 explicitly contemplates entitlement of a 'piece-rated or daily-rated, employee', deriving authority from Sections 2(f) and 6A.
14. Section 6A uses the word 'employee' under which the Family Pension Scheme is made; and as per Sub-section (4) thereof and provisions of Schedule III, Clause (1), under the Scheme itself, 'employees or class of employees' to whom that shall apply can be indicated. According to para 3 of the Pension Scheme, the only embargo against enrolment under the Scheme of an 'employee' is the age-bar; that is fixed at 59 years. Any other 'employee' who contributes to the Family Pension Fund in the manner prescribed under Para 12 has a right to be enrolled as a 'Member' of the said Scheme. Support for this view is provided by Para 6 also, for membership of the said Fund once acquired ceases only in two contingencies; when the employee becomes entitled to withdraw benefits to which he is entitled under the Scheme or he dies during the period of 'reckonable service'. As soon as deduction from wages is made of any employee under para 12 by his employer, and that is continued for the period of 'reckonable service', employee's membership of the Fund would continue because the employer is 'deemed to have been entrusted' with employee's contribution. We emphasise that crucial and conclusive determinants of entitlement of family pension are provided in Paras 3, 12 and 28; and not elsewhere. Absence of formal option, contemplated in Paras 4 and 4-A, does not defeat claimant's right otherwise acquired.
15. We would hold, therefore, that Gopal, petitioner's husband, had become a member of the Family Pension Fund since 1971 in virtue of deductions made from his wages by the employer regularly, every month, till his death, but for a brief spell of four months, and that also not due to the fault of either, but due to the account number not being allotted by the Commissioner. In our view, the membership of the Pension Fund is not dependent on such an allotment as that can be made at any time and that is not necessarily a condition- precedent for acquisition of membership of the said Fund. Para 18(1), in terms, says; 'For the purposes of this Scheme, the members of the Family Pension Fund shall retain the account numbers, if any, allotted to them under the scheme. If there is no such number, fresh numbers will be allotted by the Commissioner'. In that regard, we may observe that although in the Claim Form of the petitioner, respondent No. 2 has given March, 1973 as the date of commencement of membership of Family Pension Fund of her husband, that cannot be accepted. That has been arbitrarily fixed. No reasons are given in the return of respondent No. 2 to support that dale and in Annexure P/11, we find a different fact disclosed that contribution to petitioner's husband's Family Pension Fund was suspended for four months in 1977 on account of non-allotment to him of the account number.
16. Another related contention of Shri Mittal shall be disposed of now. That, as earlier alluded, is also based on Annexure P/11 disclosing that petitioner's husband had not filled in the option paper, contemplated in para 4-A of the Pension Scheme. We reiterate that the question of his exercising his option does not arise in the facts and circumstances of the case. Although MPEB is an 'exempted establishment', right to be enrolled as a member of Family Pension Fund of its employees is within the contemplation of para 3(a) of the Pension Scheme and no bar is envisaged thereunder against employees of 'exempted establishments' from being so enrolled, without exercising his option. It is true, as per paras 4 and 4-A, provision is made for exercise of option and also the period within which that has to be done. But, sub-para (iii) thereof makes it employer's duty to get the option 'exercised by every member'. It is very clear, therefore, right to be enrolled as member is not dependent on exercise of 'option'. The provision in that regard is directory and not mandatory; that is not a condition-precedent to acquisition of membership of the Family Pension Fund. How could, or why should, the employee suffer for the employer's default? Obviously, the Pension Scheme does not, therefore, contemplate any penalty against the employee. The acquiscence of the employee in the continued deduction made from his wages towards his contribution to the said Fund would be deemed exercise by him of his option to be a member of the said Fund. As recently held in Karnal Leather Karmacharies' case (1989-II-LLJ-550 at 556) not only language, but importantly, the underlying idea and purpose of the provision in question has to be examined for determining if it is mandatory.
17. While disbursal of Family Pension is made the duty of the 'Commissioner' (respondent No. 3), the requirement to be fulfilled for disbursal of family pension to the eligible claimant is provided in para 28 and his disqualification in para 31-A. The deceased has to be a 'Member' within the meaning of the term employed in para 3 read with para 12; he must have been in 'reckonable service before attaining the age of 60 years'; and his contribution to the Fund should have been for a period of not less than two years/one year. In our view, the only consequence of default of any duty by the employer, would render him vulnerable to prosecution under Section 14 of the Act; Section 14B renders him liable for 'damages' for default in the payment of any contribution to the Fund, Neither default taints in any manner claimant's entitlement envisaged under Para 28. Shri Bhatnagar's reliance on Poonamal v. Union of India, (1985) 3 SCC 345, may be noted in this context. Contributory Family Pension Scheme of 1964 was made non-contributory in 1977. Denial of benefit of the non-contributory scheme to wives and dependents of those Government servants who had earlier not opted for 1964 Contributory Scheme was held viola-live of Article 14. Their Lordships observed that a Family Pension Scheme is devised to compensate the Government servant who has rendered service for the benefit of his widow and minor dependents. They are entitled thereto not only as a matter of right, but also as fulfilment of a constitutional promise partaking the character of public assistance in cases of unemployment, ill-health, disablement or similar other cases of undersaid want. The contention of Shri Mittal, evidently, can be accepted at the peril of flouting the supreme judicial mandate.
18. His contention (hat MPEB being 'exempted establishment' and on that ground, relief be refused to the petitioner is too naive and is liable to be summarily rejected. Section 2(fff) defines that term to mean such establishment 'in respect of which an exemption has been granted under Section 17 from the operation of all or any of the provisions of any Scheme ...'. In the instant case, the position of facts is well-established that MPEB, has not been exempted in terms of Section 17(1-A) from operating the Family Pension Scheme. Indeed, Section 17(6), extracted above, makes it clear that the Scheme applies to an 'exempted establishment'. We have referred to materials galore to establish on facts the position that MPEB has adopted the Pension Scheme and deceased Gopal was enrolled as a 'Member' of the said Scheme, factually operated in its establishment by the employer Board.
19. We deal now with surviving contention of Shri Mittal that claim of the petitioner be thrown over-board as she accepted payment of Rs. 107/- being the 'refund' of the contribution to the Family Pension Fund made by her husband as contemplated under para 31-A. In her rejoinder, the petitioner has averred that she being a 'poor illiterate woman' she accepted the payment without understanding the implications thereof. About her illiteracy we have no doubt; she has affixed her thumb impression to the pleading filed in this court and indeed, in the claim form which she filed in 1983, she also affixed her thumb impression. Obviously, she is abjectly penured; she has managed to mail to this Court the unstamped petition stating on oath, that she and her children are suffering great hardship and are deprived of 'source of subsistence'. It is only during the course of hearing that her lawyer, who had served the Demand of Justice Notice and had pursued her case earlier, appeared to assist the Court. Although Shri Mittal has relied on Kamal Singh v. Union of India (1988-I-LLJ-326), relevance of that to the facts and circumstances of the instant case, we have failed to comprehend. Because 15 years' qualifying service in Army as per relevant statutory provision had not been completed, he was held not entitled to pension. On facts, in the instant case, petitioner's disqualification in terms of para 31-A is not established. Before his death, Gopal's contribution to the Family Pension fund was not less than one year/two years; that was well over seven years.
20. By accepting that payment, according to us, she is not estopped from enforcing her claim under para 28 because there can be no estoppel against statute. Secondly, we are still to come across such rule of law that permits estoppel to be pleaded against illiteracy and abject penury. In full understanding of its consequence, if any act is done voluntarily without any compulsion, a valid basis for the plea may be established. The plea cannot succeed on proving merely 'detriment'; respective conducts of the representor and representee are essential determinants of the doctrine. As observed in Snell's Principles of Equity (1982 Edition, p.557), 'mere acts of forbearance or indulgence, without more, do not create rights'. The doctrine operates, it is observed, 'where by his words or conduct one party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) and the other party acts upon it, altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it.'
21. Accordingly, in our view, all the contentions agitated by Shri Mittal on behalf of respondent No. 3, must fail. We hold the petitioner entitled to disbursal by respondent No. 3 of family pension, in virtue of membership of the Family Pension Fund of her deceased husband Gopal, as contemplated in paras 28, 29 and 35 of the Pension Scheme. She is entitled to be paid Family Pension on and from April 22, 1979 as contemplated under Para 30 of the said Scheme. We hold that her husband Gopal had rendered 7 years 8 months 'reckonable service' and as such, the rate of family pension applicable to him would be as contemplated under Para 28(2), which we extract:
'(2) Where an employee who has been a member of this Family Pension Fund for a period not less than 7 years during the period of reckonable service, the above rate of family pension shall be subject to the following modifications:
(a) for a period of 7 years from the date of death or, till the date on which the member of the Family Pension Fund would have reached the age of 60 years had he remained alive, whichever period is shorter, the family pension payable shall be at 50% of pay as determined for the purpose of sub-paragraph (1) subject to a maximum of twice the family pension mentioned in the Table;
(b) the family pension payable after the expiry of the period referred to in Clause (a) shall be the same as in the Table.
Provided that the Family Pension shall not be in any case less than Rs. 60/- per month.'
However, as that is subject to the ceiling of Rs. 120/- set out in the parent provision (Table), pay drawn by her husband being Rs. 399.90, as certified in the claim form by respondent No. 2, she is not entitled to be paid more than that amount.
22. It is a fit case for saddling exemplary costs on defendant No. 3 even if petitioner's claim for interest cannot be entertained. In the Act and the Pension Scheme under which she is enforcing her rights, there is no provision in that regard. It is not possible also to invoke the provisions of the Interest Act, 1978 because the claim she is enforcing in these proceedings cannot be regarded as 'debt or damages' within the meaning of the expression used in Section 3 of the said Act. The widow was left in the lurch to fend for herself and for her five minor children when her husband died in 1979 though as per law, she was entitled to be paid family pension on and from the very next day of his death. In this Court respondents 1 and 2 extended their wholesome cooperation and during the last seven years, they have consistently and assiduously extended the same support. Surprisingly, respondent No. 3 raised in this Court a baseless and vexatious defence and has been deferring settlement of petitioner's claim on flimsy pretexts. Accordingly, we order that the petitioner shall be paid a sum of Rs. 2,000/- as costs which may not, though, adequately compensate the suffering she has undergone during last seven years and protraction of proceedings in this Court. In awarding costs, the writ Court, in our opinion, can legitimately follow the principles engrafted in Sections 35A and 35B, Procedure Code.
23. The petition accordingly stands allowed. We direct respondent No. 3, Regional Provident Fund Commissioner, M.P., Indore, to arrange disbursal within two months, of arrear family pension to the petitioner as per her entitlement herein fixed and to continue to disburse the same regularly to her upto the date of her death or remarriage as contemplated under Para 29. Costs herein awarded to her must also be paid within the same period.