| SooperKanoon Citation | sooperkanoon.com/1234153 |
| Court | Karnataka High Court |
| Decided On | Sep-13-2022 |
| Case Number | WP 11790/2021 |
| Judge | SURAJ GOVINDARAJ |
| Appellant | Mr M V Kanakaraj |
| Respondent | The Regional Commissioner |
- 1 - WP No.11790 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU ® DATED THIS THE13H DAY OF SEPTEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.11790 OF2021(L-PF) BETWEEN: MR. M.V.KANAKARAJ S/O. M.V. VEERICHETTIAR, AGED ABOUT70YEARS RESIDING AT9222-A, VEERASAM COLONY, ALANGOMBU, COIMBATORE (DT), TAMIL NADU - 641 302 ... PETITIONER (BY SRI. HEMANTH RAO, ADVOCATE) AND:
1. THE REGIONAL COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANIZATION HAVING OFFICE AT: PRAGATI MAHALAKSHMI BUILDING, 1 & 2 FLOOR, 2ND STAGE, YESHWANTHPUR, BANGALORE - 560 022.
2. UNION OF INDIA REPRESENTED BY MINISTRY OF LABOUT & EMPLOYEMENT, SHRAM SHAKTI BHAWAN RAFI MARG. NEW DELHI - 110 001. (DELETED RESPONDENT NO.2 VIDE
ORDERDATED2007.2022 ) ... RESPONDENTS (BY SMT. NANDITA D. HALDIPUR, ADVOCATE FOR R1; SRI. POOJAPPA J., CGC FOR R2) - 2 - WP No.11790 of 2021 THIS WRIT PETITION IS FILED UNDER ARTICLE226AND227OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE PETITIONERS PROVIDENT FUND ACCOUNT, DECLARE PARAGRAPH NO.60(6) OF THE EMPLOYEES PROVIDENT FUND SCHEME1952TO BE UNCONSTITUTIONAL AND ULTRA VIRES THE CONSTITUTION OF INDIA AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP AND HAVING BEEN RESERVED FOR
ORDERS ON2308.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER1 The petitioner is before this Court seeking for the following reliefs: a. Call for records of the Petitioner's provident fund account. b. Consequently, direct the Respondent No.1 to pay interest on the provident fund dues of the Petitioner from 03.04.1979 till date. c. Direct the Respondent No.1 to pay all the amounts outstanding and payable to the Petitioner. d. Direct the Respondent No.1 to pay interest at 12% p.a. from 02.03.2017 to 08.02.2021 in terms of Paragraph No.72(7) of the Scheme.
2. The petitioner claimed to have been earlier working with Tata Construction and Projects Ltd., also known as Tata Davy Limited as an Engineer from 03.04.1979 to 25.11.1991. During his employment, he was allotted PF No.KN/10701/286 as regards - 3 - WP No.11790 of 2021 which the petitioner and his employer were making payment of their respective provident fund contributions by way of compulsory deductions.
3. The petitioner left the services of Tata Davy Limited in the year 1991 and thereafter, he was employed in various jobs across India. Hence, he was unable to collect the provident fund dues which had accrued to his account. In the year 2017, the petitioner visited the respondent's office and submitted his claim in the form provided by the respondent. The said claim of the petition not having been processed, the petitioner visited the office of the respondent on several occasions. There being no positive answer, the petitioner was constrained to issue a legal notice dated 04.11.2020. It is only thereafter that the respondent made payment of a sum of Rs.1,14,307/- on 08.02.2021, which is nearly four years after submission of the application.-. 4 - WP No.11790 of 2021 4. The petitioner upon receipt of the money, had issued another legal notice dated 22.11.2021, calling upon the respondent to give the details of the calculation of the said amount and it is stated that the entire amount had not been paid and as such, called upon the respondent to process the entire claim of the petitioner. The same not having been done, the petitioner is before this Court seeking for the aforesaid reliefs.
5. The contention of Sri. Hemanth Rao, learned counsel appearing for the petitioner is that:
5. 1. The petitioner having been employed with Tata Davy Limited, the contribution thereof having been made by the petitioner and the employer, it was but required for the respondent to make payment of the due contribution along with accumulated interest thereon.-. 5 - WP No.11790 of 2021 5.2. In this regard, he relies upon sub paragraph (6) of paragraph 72 of the Employment Provident Fund Scheme, 1952 (hereinafter referred to as the "Scheme" for short), the same is reproduced hereunder for easy reference:
"72(6) Any amount becoming due to a member as a result of (i) supplementary contribution from the employer in respect of leave wages, arrears of pay, instalment of arrear contribution received in respect of a member whose claim has been settled on account but which could not be remitted for want of latest address, or (ii) accumulation in respect of any member who has either retired from service after attaining age of fifty-five years or migrated abroad permanently or died, but no application for withdrawal under paragraphs 69 or 70 has been preferred within a period of thirty-six months from the date it becomes payable, or if any amount remitted to a person, is received back undelivered, and is not claimed again within a period of thirty-six months from the date it becomes payable, shall be transferred to an account to be called the Inoperative Account: Provided that in the case of a claim for the payment of the said balance, the amount shall be paid by debiting the Inoperative Account: Provided further that if any amount becoming due to a member, as a result of supplementary contributions on account of litigation or default by the establishment or a claim which has been settled but is received back undelivered not attributable to the member, shall not be transferred to the inoperative account."
- 6 - WP No.11790 of 2021 5.3. By relying upon the above, he submits that prior to the amendment in the year 2016, the requirement under the said sub paragraph was that the employee should have ceased to be employed, which would make the account inoperative if no claim was made within a period of three years after such employment ceasing. 5.4. But however, from and after the amendment, which came into effect from 11.11.2016, the word “ceased to be employed” has been replaced with “retired from service after attaining the age of 55 years or migrated abroad permanently”. 5.5. Thus, the account would not become inoperative from the date of ceasing to be employed with the employer but from the date on which the employee retired from service after attaining the age of 55 years and no - 7 - WP No.11790 of 2021 application for withdrawal of the amount had been made within a period of 36 months thereafter. 5.6. He submits that the petitioner attained the age of 55 years on 01.06.2007 and therefore, the period of three years has to be calculated there from which would entitle the petitioner for interest in terms of sub-paragraph '6' of paragraph '60' of the Scheme since there was no embargo on payment of interest thereon until the amendment made thereto in the year 2011, which came into effect from 01.4.2011. Sub-paragraph '6' of paragraph '60' of the Scheme is reproduced hereunder for easy reference:
"(6) Interest shall not be credited to the account of a member from the date on which it has become Inoperative Account, under the provisions of sub-paragraph (6) of paragraph 72:
" - 8 - WP No.11790 of 2021 5.7. By relying upon the above sub-paragraph '6' of paragraph '60' of the Scheme , he submits that the obligation of the Employees Provident Fund (EPF) authorities to make payment of interest would continue irrespective of whether the account had become inoperative or otherwise, since it is only by virtue of the insertion of sub- paragraph '6' to paragraph '60' of the Scheme that an embargo has been imposed that the interest will not be credited after the account becomes inoperative. 5.8. He however, relies upon sub-paragraph '6' of paragraph '72' of the Scheme to contend that post the amendment made in the year 2016, the petitioner's account not having become inoperative, the embargo under sub-paragraph '6' of paragraph '60' of the Scheme would not apply to the account of the petitioner and as such, from the year 2016 interest would have - 9 - WP No.11790 of 2021 to be paid on the contributions made to the EPF account by the petitioner and his employer. 5.9. The respondent had made payment of interest until the year 2011. The petitioner fairly submits that from 15.01.2011 to 11.11.2016, the petitioner would not claim any interest because there was an embargo during that period. However, the embargo being lifted on 11.11.2016 and being not applicable to the petitioner, the petitioner would be entitled to interest from 11.11.2016 till payment thereof. 5.10. In this regard, he relies upon the decision of the Hon’ble Punjab and Harayana High Court in the case of Jagdish Kumar Vs. Employees' Provident Fund Commissioner in C.W.P.No.10071/2014 dated 14.09.2015, more particularly paragraphs '4' and '10' thereof, which are reproduced hereunder for easy reference: - 10 - WP No.11790 of 2021
"4. Because of the policy underlying sub-para 6 of Paragraph 72 and sub-para 6 of Paragraph 60 these provisions cannot be read narrowly in a manner that interest on the amounts shall not be credited to the account of the member from the date it becomes a Inoperative Account under the provisions of sub-para 6 of Paragraph 72 of the Scheme. The prohibition is really addressed to the EPF organization for maintenance of its books of accounts that interest shall not be credited to the account of the member. But that does not mean that interest would not accrue when not credited to the Inoperative Account and stands only deactivated for the time being and can never be brought to life. This is the only just and equitable interpretation that can be placed on the social welfare beneficial legislation as the Act and the scheme are built sincerely for the purposes they are meant to serve inasmuch as members should not lose their right to their own money earning interest accruing silently on such amounts as sit in the Fund while earning interest for the organization. In appears trite that an Inoperative Account should mean an account which has died with respect to interest by lapse of thirty six months from the date it becomes payable. Inoperative Account means only a deactivated account which has been frozen by notification for the time being as an accounting method in transaction of PF business but it does not mean that right to interest stands extinguished since the principal amount is not money lying in the Fund in hard cash locked in trunks but in the economics of the flow MONIKA VERMA201509.21 12:37 I attest to the accuracy and authenticity of this document Chandigarh of money in circulation. The RPFC does not say that the amounts lying in the Fund are not invested to earn interest under the scheme or not are collateral for debts, assets and liabilities or to run the show.
10. Consequently, for the above recorded reasons, the petition is allowed. A direction is issued to the Organization to make current the "Inoperative Account" qua the petitioner and pay - 11 - WP No.11790 of 2021 the accrued interest as a vested right as calculated in a sum of Rs.61,587/- for 31 months for the period 1.4.2011 to 31.10.2013. The amount of interest be paid to the petitioner within two months from the date of receipt of a certified copy of this order after observing the due formalities required by the procedure established by law. There will however be no order as to costs in view of rights declared by process of interpretation in this order when none existed in past precedents and at last none of which were brought to the notice of the Court". 5.11. Relying on the above, he submits that once there is a contribution made and continues to be in the custody of EPF, any interest or income earned from the said contribution would have to be made by the EPF authority by making payment thereof to the employee since it is from and out of the amounts standing to the credit of the employee that the respondent / EPF authorities would have earned the amounts. 5.12. He relies upon the decision of the Hon'ble Madras High Court in the case of M.V.Ramakrishnan Vs. The Provident Fund - 12 - WP No.11790 of 2021 Commissioner and others in W.P.No.29166/2017 dated 05.12.2018 more particularly paragraphs '8' and '9' thereof, which are reproduced hereunder for easy reference:
8. Admittedly, the petitioner ceased to be in employment from July 2006. Therefore, as per the above amended provision of sub paragraph 6 of paragraph 72, his account became an inoperative account, as admittedly he has not made any application for withdrawal within a period of 36 months from the date such amount became payable. When such being the statutory provision, I do not think that the petitioner is entitled to seek interest for the period, to which such payment of interest was specifically barred in view of the amendment made to sub paragraph 6 of paragraph 72 with effect from 01.04.2011, as stated supra.
9. There is no dispute to the fact that the petitioner is entitled to get interest with effect from 11.11.2016, as admitted in the counter affidavit, in view of the subsequent amendment taken place to paragraph 72(6) with effect from 11.11.2016. The petitioner has not chosen to challenge the amendment made to paragraph 72(6) with effect from 01.04.2011 as stated supra. Under such circumstances, this Court is of the view that the petitioner is not entitled for payment of interest for the period 2011-12 to 2016-17. However, the respondents are directed to make the payment of principal amount as well as interest for the http://www.judis.nic.in K.RAVICHANDRABAABU,J.-. 13 - WP No.11790 of 2021 VRI undisputed period, if not already paid, to the petitioner within a period of four weeks from the date of receipt of a copy of this order. With the above observations, the writ petition is disposed of accordingly. No costs. 5.13. Relying on the above, he submits that by virtue of the amendment to sub-paragraph '6' of paragraph '72' of the Scheme, the inoperability of the account has now been conditioned on the employee having retired and or migrated abroad permanently. Both these conditions not being applicable to the petitioner, the petitioner would be entitled to interest post 11.11.2016. 5.14. On the basis of the above, he submits that the petition is to be allowed and the reliefs be granted.
6. Per contra, Smt. Nandita D. Haldipur, learned counsel for respondent No.1 / EPF authorities would contend that: - 14 - WP No.11790 of 2021 6.1. There are no records which are available with the respondent authorities as to what the petitioner did post his leaving Tata Constructions and Project Ltd., on 25.11.1991 since his account was not transferred to any other employer. 6.2. In terms of paragraph 57 of the Scheme, if a member were to cease to be employed in one region and or secures employment with any other employer, it was required for the employer and or the employee to transfer the said account to the new employer and or for the new employer to seek for such transfer which has not been done in the present case. 6.3. The petitioner admittedly having left the services in the year 1991 after a lapse of 26 years, has filed an application for withdrawal of the amounts standing to his credit only in the year 2017. The petitioner having attained - 15 - WP No.11790 of 2021 superannuation at the age of 55 years on 01.06.2007, the embargo which had been created in terms of sub-paragraph '6' of paragraph '60' of the Scheme, disentitles the petitioner from any interest post the said embargo having been imposed by way of an amendment which came into force on 01.04.2011. 6.4. It is for this reason that the respondent made payment of interest until 01.04.2011 and not thereafter. The petitioner cannot claim the benefit of the subsequent amendment in the year 2016, nor claim interest post the year 2016, since the petitioner's account became inoperative within three years from the date on which the petitioner attained the age of 55 years, i.e., on 31.05.2009 since no application had been filed for withdrawal of the amount between 01.06.2006 to 31.05.2009.-. 16 - WP No.11790 of 2021 6.5. The application which had been submitted by the petitioner at Annexure-D was also incomplete inasmuch as the said application had been endorsed by the Corporation Bank and not by the employer of the petitioner. The petitioner has not produced all the necessary documents to process the said application inasmuch as no KYC details or acceptance on the part of the employer has been produced by the petitioner. 6.6. It took a considerable amount of time for the respondent authorities to re-build the file of the petitioner inasmuch as it is the respondent authorities, who have secured all the documents from the former employer of the petitioner and various other authorities and this aspect took a considerable amount of time and as soon as the same was done, an amount of Rs.1,14,307/- was paid on 08.02.2021 and the - 17 - WP No.11790 of 2021 balance amount of Rs.1,88,381/- was paid immediately thereafter. Thus, she submits that there was no delay on the part of the respondent, the respondent acted in all fairness and made payment of the amount due. 6.7. She relies upon the decision of the Hon'ble Delhi High Court in the case of Alok Kumar Agarwal Vs. Union of India and others in W.P.(C).No.2759/2021 and CM.APPL.No.8306/2021 decided on 20.09.2021, more particularly paragraphs '28', '29' and '43' thereof which are reproduced hereunder for easy reference:
28. As per this Press Release dated 29th March, 2016, the intention behind the 2016 amendment was to bring in provisions to ensure that interest would be paid even on Inoperative Accounts. However, when one reads the Notification dated 11th November, 2016, it is clear that the said benefit was extended only to certain categories of persons. Vide Notification dated 11th November, 2016, the words 'ceased to be employed' were omitted from the provision, and instead, the words 'retirement after attaining age fifty-five years or migrated abroad permanently' were introduced. Further, the words 'or transfer' were omitted from the provision. Therefore, prior to the - 18 - WP No.11790 of 2021 2016 amendment, upon cessation of employment or death of an employee or transfer, if an application for withdrawal under Paragraph 69 or 70, was not filed within a period of 36 months from the date when the accumulated fund becomes payable, it could have led to an account being declared Digitally Signed By:DEVANSHU JOSHI Signing Date:20.09.2021 17:25:23 inoperative. Whereas, post the 2016 amendment, an account would become inoperative only if a member has retired from service after attaining age fifty-five years or migrated abroad permanently or died, without having filed an application for withdrawal under Paragraph 69 or 70 within a period of 36 months from the date the accumulation becomes payable. Thus, prior to 2016, in case of cessation of employment from one employer to another or transfer of the employee from one establishment to another, where the latter employer or establishment is not covered under the Act, if an application for withdrawal of the amount was not filed within 36 months, the account would be rendered inoperative. Post-2016, if the employee, even in the case of transfer to an employer or establishment not covered by the Act, fails to file an application for withdrawal of the amounts in his account within 36 months, the account would not be rendered inoperative. The second proviso to Paragraph 72(6) also gave benefit to such persons who may have received supplementary contributions. If the claim sent to such employees is returned due to reasons not attributable to the said employee, then the account would not be treated as inoperative and would continue to earn interest. Thus, the 2016 amendment, extended benefit to only a class of persons and not to all persons whose accounts were rendered inoperative. It is clear that the Press Release which was issued was not fully given effect to in the amendments, as the amendments did not extend the benefit to all categories of persons, despite claiming so.-. 19 - WP No.11790 of 2021 29. In the present case, the Court is concerned with the Petitioner who retired from service after attaining fifty-five years of age, and has not filed an application for withdrawal under Paragraph 69 or 70 within a period of 36 months from the date the accumulation becomes payable. Whether such a Digitally Signed By:DEVANSHU JOSHI Signing Date:20.09.2021 17:25:23 person would get the benefit of interest on the accumulations in his EPF account even after the account is declared inoperative, in terms of Paragraph 72(6) of the EPF Scheme, 1952, is the question before this Court.
43. Thus, the interest in the present case, beyond the period of 36 months, is not liable to be paid to the Petitioner. 6.8. By relying on the above, she submits that in terms of the benefit which has been extended, the said benefit cannot accrue beyond the period of three years after the petitioner having attained 55 years of age, which he did on 31.05.2009. The respondent, in all fairness had made payment of interest and the principal amount due until the year 2011. The petitioner cannot seek for the benefits post the - 20 - WP No.11790 of 2021 amendment in the year 2016 and as such, the said payments have not been made.
7. In re-joinder, Sri. Hemanth Rao, learned counsel for the petitioner would submit that:
7. 1. The application of the petitioner which had been submitted in the year 2017, in terms of Annexure-D, has been processed by the respondent without the petitioner furnishing any more details. 7.2. The respondent ought to have processed the application within 20 days of the application having been submitted in terms of sub- paragraph '7' of paragraph '72' of the Scheme, not having done so. 7.3. The respondent would be liable for the consequences as stated in the subparagraphs. Sub-paragraph '7' of paragraph '72' is reproduced hereunder for easy reference: - 21 - WP No.11790 of 2021 (7) The claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within (20 days) from the date of its receipt by the Commissioners. if there is any deficiency in the claim, the same shall be recorded in writing and communicated to the application within 20 days from the date of receipt of such application. In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 20 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner.
8. In reply, Smt. Nandita D. Holdipur, learned counsel for respondent No.2 would submit that:
8. 1. There is no such default, which has been committed by the respondent inasmuch as submitted earlier, the entire file has been re- built by the respondent and the amounts paid. 8.2. There are no malafide on the part of the respondent and as such, the penal consequences as envisaged in sub-paragraph '7' of paragraph '72' of the Scheme would not be applicable to the respondents.-. 22 - WP No.11790 of 2021 8.3. She submits that the decision of the Hon'ble Madras High Court would not be applicable for the reason that in the M.V. Ramakrishnan’s case (supra), the employee therein had not superannuated as on the date on which the application was filed. The employee continued to be in service and as such, it is the Delhi High Court judgment in Alok Kumar Agarwal’s case (Supra) which is applicable.
9. Heard Sri. Hemanth Rao, learned counsel for the petitioner and Smt. Nandita D. Haldipur, learned counsel for respondent No.1 and perused papers.
10. The points that would arise for determination of this Court are:
1. Whether an employee who has made an application post the amendment in the year 2016 would be entitled to the benefit of the amendment, which came into force on 11.11.2016?.
2. Whether an employee who has retired in the year 2006, can claim the benefit of the amendment in the year 2016?. - 23 - WP No.11790 of 2021 3. Whether there is any delay on part of the respondent in making payment of the amount due to the petitioner?.
4. What order?.
11. I answer the above points as under:
12. Answer to point No.1: Whether an employee who has made an application post the amendment in the year 2016 would be entitled to the benefit of the amendment, which came into force on 11.11.2016?. 11.1 Sub-paragraph '6' of paragraph '72' and Sub- paragraph '6' of paragraph '60' of the Scheme have been reproduced herein above. Sub- paragraph '6' of paragraph '60' of the Scheme was introduced by way of amendment on 01.04.2011, stating that the interest would not be credited to the account of a member from the date on which it became inoperative under sub-paragraph '6' of paragraph '72' of the Scheme. 11.2 As on 01.04.2011, in terms of sub-paragraph '6' of paragraph '72' of the Scheme, an account - 24 - WP No.11790 of 2021 became inoperative if an employee had ceased to be employed and not made an application for withdrawal within a period of three years. Thus, reading of sub-paragraph '6' of paragraph '60' and sub-paragraph '6' of paragraph '72' of the Scheme as it stood on 01.04.2011 would indicate that merely on an employee ceasing to be employed would bring about the inoperability of the account if withdrawal is not sought for within three years and such cessation which would in terms bring about the embargo on sub-paragraph '6' of paragraph '60' of the Scheme as regards crediting of interest to such inoperative account. 11.3 There is a further amendment in the year 2016 with effect from 11.11.2016, where the word "ceased to be employed" was replaced with the words "retired from service after attaining age of 55 years or migrated abroad permanently or - 25 - WP No.11790 of 2021 died". Thus, as on 11.11.2016, in the event of an employee having retired from service on attaining age of 55 years or migrated abroad permanently or died and no application for withdrawal was preferred within a period of 36 months from such date, then the embargo as regards payment of interest in terms of sub- paragraph '6' of paragraph '60' of the Scheme would become applicable. 11.4 In the event an application is made prior to 2011, by virtue of which sub-paragraph '6' of paragraph '60' of the Scheme was added, then the embargo on the payment of interest would not arise whether an employee has ceased to be an employee or not in terms of sub- paragraph '6' of paragraph '72' of the Scheme. Sub-paragraph '6' of paragraph '72' of the Scheme only gives the reasons and/or the occurrence of events which would render an account inoperative, the embargo being - 26 - WP No.11790 of 2021 stipulated only under sub-paragraph '6' of paragraph '60' of the Scheme. 11.5 Upon the introduction of sub-paragraph '6' of paragraph '60' of the Scheme, an embargo has been introduced preventing the crediting of interest on inoperative accounts, which came into effect from 01.04.2011. As on 01.04.2011, an account would be inoperative in the event of an employee ceasing to be employed and not having made an application for withdrawal of the amounts from the Provident Fund account. 11.6 Thus, if the employee had ceased to be employed prior to 31.03.2008, and no application for withdrawal of the amount had been made, then the embargo under sub- paragraph '6' of paragraph '60' of the Scheme would disentitle the employee from collecting any interest.-. 27 - WP No.11790 of 2021 11.7 However, if a person had ceased to be employed post 01.04.2008, in that event, a period of three years would have to be calculated from the date on which the employee ceased to be employed. The date on which the three years would lapse would make the said account inoperative, bringing into force the embargo under sub-paragraph '6' of paragraph '60' of the Scheme. 11.8 In the present case, we are concerned with an application being filed in the year 2017. On 11.11.2016, sub-paragraph '6' of paragraph '72' of the Scheme came to be amended insofar as the words "ceased to be employed" were replaced with the words "retired from service after attaining age of 55 years or migrated abroad permanently". 11.9 Thus, post the amendment, which came into effect from 11.11.2016, the cessation of employment would become irrelevant, and - 28 - WP No.11790 of 2021 what would be relevant is retirement from service after attaining age of 55 years or migrated abroad permanently. To calculate the date on which the account became inoperative, the account would become inoperative after a lapse of three years from the date on which the employee retired from service after attaining age of 55 years or the date on which the employee migrated abroad permanently and did not make an application for withdrawal within a period of three years thereafter. 11.10 Thus, post the amendment in the year 2016, there is a benefit extended to the employee going beyond the cessation of employment to retirement. Thus, in the event of an application being filed post the amendment dated 11.11.2016, the embargo under sub-paragraph '6' of paragraph '60' of the Scheme would not be applicable so long as the application filed post 11.11.2016 is within a period of 3 years of - 29 - WP No.11790 of 2021 the employee having retired from service after attaining age of 55 years or migrated aboard permanently. As a corollary, in the event of an application for withdrawal being made beyond a period of three years from the date on which an employee retired after attaining age of 55 years or having migrated abroad permanently, then the said account would be rendered inoperative bringing into effect the embargo under sub- paragraph '6' of paragraph '60' of the Scheme disentitling the employee from any interest payable on the said account. 11.11 Hence, I answer point no.1 by holding that an employee who has either retired from service after attaining age of 58 years or migrated to abroad permanently or died but no application has been made 36 months prior to 11.11.2016 would not be entitled to the benefit of the amendment which came into force on 11.11.2016.-. 30 - WP No.11790 of 2021 13. Answer to point No.2: Whether an employee who has retired in the year 2006, can claim the benefit of the amendment in the year 2016?. 12.1 In terms of the amendment which came about on 11.11.2016 to sub-paragraph '6' of paragraph '72' of the Scheme, an account would be rendered inoperative in the event of no application for withdrawal has been made within three years of the employee retiring from service upon attaining age of 55 years or migrating abroad permanently. 12.2 Thus, if a person retires in the year 2006 and no application has been made within a period of three years thereafter, the account has been rendered inoperative, thus bringing into force the embargo under sub-paragraph '6' of paragraph '60' of the Scheme. Thus, such a person would not get the benefit of the amendment carried out to sub-paragraph '6' of paragraph '60' of the Scheme on 11.11.2016.-. 31 - WP No.11790 of 2021 14. Answer to point No.3: Whether there is any delay on part of the respondent in making payment of the amount due to the petitioner?. 14.1 Having held that the petitioner was not entitled to any interest on account of the amendment which came into force in the year 2011, I am of the considered opinion that there cannot be said to be any delay on part of the respondent in making payment of the amount due, if any, to the petitioner.
15. Answer to point No.4: What order?. 14.1 In view of the answers to the above questions in the present case, the petitioner has left the service of Tata Davy Limited in the year 1991 and has retired in the year 2006 after attaining the age of 55 years and no application for withdrawal of the amounts has been made within three years of the date of retirement, as required by the 2011 amendment or within three years of the amendment i.e., by - 32 - WP No.11790 of 2021 31.3.2014. Therefore, the petitioner is not eligible for any interest post 2016. Hence, I pass the following: ::
ORDER:: The Writ Petition stands dismissed. Sd/- JUDGE GJM