Judgment:
S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[1].IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
S.B.CIVIL WRIT PETITION NO.8888/2014 Murad Ali Mehar versus The New India Assurance Company LTD.& ORS.Date of order : 31.7.2015 HON'BLE Mr.JUSTICE SANDEEP MEHTA Mr.Anil Bhandari, for the petitioner.
Mr.Jagdish Vyas, for the respondents.
<><><> Through this writ petition, the petitioner Murad Ali Mehar has approached this Court praying for the following relief:- “I.
The communication dated 13.11.2014 (Anx11) may kindly be quashed to the extent the respondents seek to make payment of provident fund of Company’s contribution with interest.
II.
The respondents may be directed to treat the petitioner to have opted for pension under Pension Scheme, 1995.
III.
The respondents may kindly be further directed to release the amount of monthly pension, arrears of pension, commutation of pension, petitioner’s own contribution towards provident fund alongwith interest to the petitioner w.e.f.13.8.2013 along with interest at the rate of 18% per annum till realization.
IV.
During the pendency of the writ petition if any order adveRs.to the interest of the petitioner is passed by the respondents, then the same may be taken on record S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[2].and be quashed.”
.
Facts in brief are that the petitioner was inducted as a Probationary Development Officer Gr.II in the New India Assurance Company Limited (hereinafter referred to as ‘the Company’) in the year 1988.
He joined services at Barmer Office of the Company on 5.8.1988.
He was confirmed in service vide order dated 14.5.1990.
Thereafter, by order dated 18.12.1991, the petitioner was afforded promotion to the post of Development Officer Gr.I, w.e.f.1.4.1991.
The Government of India, exercising powers conferred upon it by Section 17A of the General Insurance Business (Nationalisation) Act, 1972, issued a notification dated 28.6.1995 and made the Pension Scheme applicable to the employees of the General Insurance Industry.
As per the said notification, benefit of Pension Scheme was extended to the serving employees of the Corporation.
It was further specified in the scheme that the employees would be required to exercise the option of becoming a member of the pension fund within the window of 120 days from the date to be notified.
The petitioner claims that he exercised the option for adopting the Pension Scheme of 1995 on 25.10.1995 i.e.within the stipulated time frame.
The option form submitted by the petitioner was forwarded by the respondent No.3 (Divisional Manager) to the respondent No.2 (Chief Regional S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[3].Manager) at Jaipur.
A duly attested copy of the application form dated 25.10.1995 has been placed on record of the writ petition.
The petitioner applied for being sanctioned housing loan in the year 1997 upon which, certain queries were raised from the Office of the Chief Regional Manager.
One of the queries was regarding the pension option form submitted by the petitioner.
The Divisional Manager informed the Chief Regional Manager by letter dated 21.11.1997 that the petitioner had opted for pension scheme and a photocopy of the petitioner’s option form was also enclosed with the information.
The supporting documents to establish these facts have been placed on record of the writ petition.
The petitioner submitted an application dated 13.5.2013 to the Chief Regional Manager communicating his intent to seek voluntary retirement with a prior notice of three months from the date of the application.
The petitioner clearly mentioned in the application that he was a pension optee and was entitled to seek voluntary retirement as per the applicable service rules.
In turn, the Divisional Manager by letter dated 12.8.2013 intimated the petitioner that his application for voluntary retirement had been accepted by the competent authority by order dated 12.8.2013 and as a consequence, the petitioner was relieved from service on 12.8.2013.
Before being relieved, the petitioner was directed to fill certain forms S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[4].for gratuity, commutation of pension etc.which he complied.
The petitioner claims to have received the reimbursement of leave encashment, gratuity etc.to the tune of Rs.8,06,322/- and GSLI of Rs.63,876/-.
However, the pension was not released to the petitioner despite completing all required formalities.
The Chief Regional Manager made an inquiry from the Divisional Manager as to whether the petitioner had opted for pension.
The Divisional Manager, after inspecting the petitioner’s service record intimated the Chief Regional Manager by letter dated 29.1.2014 that the petitioner had opted for pension.
Alongwith the said letter/intimation, a copy of the petitioner’s pension option form was also enclosed.
It was also mentioned that the provident fund statement of the petitioner for the years 2002 and 2003 reflected his position as a pension optee.
However, in the provident fund statement of the year 2008, the employer’s contribution was shown and against the claim of pension ‘N’ was indicated.
The petitioner asserts that having retired as a pension optee on 12.8.2013, it was incumbent upon the respondent Company to release his pension forthwith but till date, the pensionary benefits have not been released to the petitioner.
The petitioner submitted numerous applications to the authorities for releasing his monthly pension, commutation of pension and contribution to the provident fund, however, no S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[5].response was forthcoming thereto.
The petitioner also submitted an application to the authorities under the RTI Act seeking information as to whether an employee was allowed to change the pension option which he had submitted under the scheme of 1995.
He was intimated by a letter dated 1.8.2014 that such a change was not permissible.
Thereafter, the petitioner forwarded numerous reminders to the respondents requesting for release of his withheld pensionary benefits.
The respondents addressed an offer letter dated 13.11.2014 to the petitioner with a statement of provident fund enclosing therein vouchers of Rs.15,74,126/- inclusive of interest towards the alleged contribution of the Company as well as the petitioner @ Rs.7,87,063/- each.
The petitioner was asked to sign the vouchers and return the same immediately.
The petitioner claims that the offer of provident fund was totally illegal and thus, he did not accede thereto.
Raising a grievance that though he had opted for the pension scheme in the year 1995, the respondents have illegally treated the petitioner as a contributory provident fund member and have unjustly refused to release rightful pensionary benefits to the petitioner and accordingly, he has approached this Court by way of the instant writ petition praying for a direction to the respondents to release his withheld pensionary benefits with interest.
S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[6].A notice to show cause was issued to the respondents, who have filed a reply thereto.
A half hearted attempt is set up in the reply to portray that the petitioner was not a member of the pension scheme but was rather a member of the contributory provident fund scheme and therefore, he is not entitled to receive pensionary benefits under the Scheme of 1995.
Statements reflecting credit of Company’s contributions towards the provident fund account of the petitioner are filed alongwith the reply.
However, the fact regarding the petitioner’s option for pension having been received by the Company is not disputed.
It is stated that some discrepancy occurred while processing the petitioner’s pension option form and therefore, his name remained in the discrepancy list and he was continuously treated as a provident fund optee.
On the strength of these averments, the respondents have attempted to set up a case that the petitioner being a provident fund optee is not entitled to claim the benefits of the pension scheme.
Shri Anil Bhandari, learned counsel for the petitioner contended that the fact regarding the petitioner being a pension scheme optee is amply established from the admitted documents available on record.
As per him, the respondents have not disputed that the petitioner had submitted the duly verified pension form to his authorities and as such, they are S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[7].prohibited from contesting the petitioner’s claim for pensionary benefits as per the Scheme of 1995.
He further submitted that the plea taken by the respondents in their reply that the petitioner was a member of the contributory provident fund scheme is absolutely incorrect and baseless, inasmuch as, no sooner, the petitioner opted for the pension scheme then it was obligatory for the respondents to have treated him as a member of the pension scheme and to have extended to him, all benefits falling dues thereunder upon his retirement.
He submitted that the petitioner has been deprived of his rightful pensionary benefits for almost two years and as such, the writ petition be accepted and the respondents be directed to release the pension/commutation of pension and all other terminal benefits to the petitioner as per his entitlement with interest.
Shri Jagdish Vyas, learned counsel for the respondents attempted to defend the action of the respondents in treating the petitioner to be a member of the contributory provident fund scheme and thereby denying him the benefits of the pension scheme.
However, in reference to the pleadings set up in the reply, he candidly conceded that the petitioner’s pension form was received by the Company in the stipulated period but owing to some discrepancy, the petitioner was placed in the discrepancy list.
He contended that for this S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[8].reason, the pensionary benefits were not extended to the petitioner and instead, he was offered a huge sum of more than fifteen lac rupees treating him to be a member of the CPF scheme but he refused to accept the same.
Thus, he urged that the petitioner is not entitled to the relief claimed in the writ petition.
I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
It is not disputed by the respondents that upon introduction of the Pension Scheme 1995, the petitioner exercised the option for pension by filling the requisite forms way-back in the year 1995.
In this view of the matter, the respondents cannot be permitted to take a somersault and claim that the petitioner was treated to be a member of the contributory provident fund scheme owing to some discrepancy at their end.
The admitted documents available on record clearly reflect that the petitioner had exercised a timely rightful option for becoming a member of the pension scheme under the Scheme of 1995.
Thereafter, there was no occasion for the respondents to have assigned him a status as a member of the CPF Scheme.
The discrepancy if any appears to have cropped up owing to some communication gap between the Regional Office and the Divisional Office of the Company S.B.Civil Writ Petition No.8888/2014 Murad Ali Mehar versus The New India Assurance Co.LTD.& ORS.[9].and the petitioner cannot be made to suffer for that reason.
As a consequence of the above discussion, the writ petition deserves to be and is hereby allowed.
The respondents are directed to forthwith release all the pensionary/terminal benefits to the petitioner in accordance with law.
For the delay in disbursal of the pensionary benefits, the petitioner shall be entitled to interest @ 9% per annum on the accrued amount as per the ratio of the judgment rendered by the Hon'ble Supreme Court in the case of S.K.Dua versus State of Haryana & Anr.
reported in (2008).SCC44 No order as to costs.
(SANDEEP MEHTA).J.
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