Rehamat Be (Smt.) Vs. Regional Provident Fund Commissioner and Another - Court Judgment

Excerpt:
- industrial disputes act, 1947. sections 2(s), 33 & industrial disputes (central)rules, 1957, rule 61: [subhash b. adi, j] protected workmen - held, status of being a protected workmen can be conferred only if employee is workman within meaning of section 2(s) of act and rule 61. except in case of dispute 1% of total number of workman employed in establishment is to be recognized as protected workman. merely because appointment order says workmen on promotion as team leader came under category of supervisor would not by itself confer status of manager on the supervisor. what is required to be noticed is actual discharge of function in the capacity of supervisor or in the capacity of manager. more so, when only recommending power to sanction leave is conferred on them and not sanctioning power. granting of e-mail id or recommending for sanction of leave cannot be characterised to say that, they are independently discharging power over some of the employees. 1. the husband of the petitioner herein late abdul sattar was employed by the k.s.r.t.c. he joined service on july 6, 1962. with effect from march 1, 1971 the employees' provident fund pension scheme was made applicable to the corporation as well. it is the case of the petitioner that her husband had joined this scheme and deductions from his salary were being made for the purpose of contribution to the fund ever since september, 1971. her husband died on july 4, 1973. it is seen that in 1995 the petitioner applied to the first respondent to settle the family pension due to the family of the deceased abdul sattar. by annexure-c order the same was rejected with the following endorsement. '14-a. the claimant is not eligible to monthly pension since the deceased member has not completed the qualifying service (minimum reckonable service of two years.)' 2. she repeated another representation annexure-d followed with a representation annexure-e to the employer of her late husband, namely the k.s.r.t.c. finding that these representations have not been acted upon, the petitioner has moved this court for appropriate relief. 3. the grievance of the petitioner in short is that despite the collection of contribution to family pension fund from march 1971, the pensionary benefit is illegally being withheld by the respondent. 4. the employee in question was a member of the exempted pension fund scheme operated by the employer k.s.t.r.c. by virtue of paragraph 3 of family pension scheme, 1971 the said scheme applied to the deceased with effect from march 1, 1971. under para-4 thereof the employee was given option to join the scheme. sub para-2 of para-4 grants a period of six months from march 1, 1971 to exercise the option. it means a person who desires to be a member of the scheme as on march 1, 1971 need exercise his option before september 1, 1971. para 4(3) casts a duty on the employer to collect the option within the period specified in para 4(2) and forward the same before the period stipulated under para 4(2). in otherwards, an option exercised by a person even if on march 1, 1971, need be forwarded by the employer before september, 1, 1971. para 15 casts further duty on the employer to send within fifteen days of the commencement of the scheme to the commissioner a consolidated return of the employees entitled to become members of the pension scheme. a scheme is said to commence with respect to an employee only when he joins the same. a conjoint reading of paras 4(2), 4(3)and para 15 would show that when the scheme is introduced for the first time on march 1, 1971 and thereafter it will enable the employer to send the contemplated statement by september 15, 1971. if the statement is sent by that time it has to be reckonable as valid and it could be deemed to be so with effect from march 1, 1971, the date of introduction of the scheme. para 28 deals with the entitlement for family pension. it states that if a member dies within the period of reckonable service but before attaining 60 years family pension shall be paid provided there has been contribution for not less than 2 years (as the paragraph stood at the relevant time.) the reckonable service is held to be two years at relevant time. 4a. now para 2(f) defines reckonable service. it means service rendered by a member in respect of which contributions are payable under the scheme. now, if a member has opted to join the scheme with effect from march 1, 1971 the scheme itself indicates that the option statement need be submitted within six months thereof and read with para 15 thereof the period stands extended upto september 15, 1971. therefore, the fact that the employer had not submitted the statement then and there on the commencement of the scheme i.e., march 1, 1971 will not have any penal consequence as far as the right of the employee is concerned. we may advert to para 10 of the scheme as well. para 10 reads thus : '10 payment of contribution-(1) the employer shall, in the first instance, pay both the contributions payable to the family pension fund by himself and also, on behalf of the member of the family pension fund employed by him directly or by or through a contractor, the contribution payable to the family pension fund by such member. (2) in respect of employees employed by or through a contractor, the contractor shall recover the contribution payable to the family pension fund by such employees and shall pay to the principal employer the said amount together with an equal amount of contribution payable to the family pension fund by the employer. (3) it shall be the responsibility of the principal employer to pay both the contributions payable to the family pension fund by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor.' 5. hence if the employee has exercised the option sometime after march 1, 1971 the employer is bound to pay both the contributions for himself and for on behalf of the employee in the first instance. it is immaterial whether the employee has made his contribution in this behalf or not. the responsibility is that of the employer to contribute to the fund. it may further be seen that as per para 12 of the scheme the employer is entitled to recover the member's share of contribution by deducting the same from his wages. this provision clearly indicates that an employee is to be protected if once he has joined the scheme and the duty is on the employer to remit the contribution. it also indicates that there is no penal consequence if the option exercised is not forwarded to the commissioner as soon as it is done by the employee. 6. thus in a given case (sic) it has therefore to be held that if it is shown that the employee has exercised his option to join the family pension scheme after its coming into force, the employer should exercise the right conferred on him under para 10 cited above and thereafter the employer should submit the return to the competent authority as contemplated under para 15 before the due date. and if he has done so, it has to be treated as if it is made by him from the date the employee exercised the option. the fact that it did not reach the corporation forthwith is of no consequence as far as the right of the employee is concerned. this is the reason why para 10 provided that the employer shall pay the contribution of the employee, as well at the first instance. if we are to hold that the period of reckonable service will commence only after such actual receipt of the amount of contribution by the corporation it would amount to rendering paras 4, 10 and 15 futile and otiose. 7. now in the instant case, it is seen that the employer has remitted the family pension fund after recovering the same from the month of october 1971. as can be seen from para 10 of the scheme, the recovery and remittance of the contribution is the responsibility of the employer. if there is a default on the part of the employer, the employee cannot be visited with any penal consequence. if the worker has opted the scheme the employer ought to have commenced the contribution. it is seen from the facts which were made available to me the deceased employee is seen admitted to the scheme on august 31, 1971. as stated the employer himself has a grace period of six months under para 4(2) and fifteen days under para 15 to remit the amount. therefore any shortage to this extent in reckoning the reckonable service has to be condoned. in the instant case, the employee died on july 4, 1973. it means reckoning the above said period the employee should have deemed to have completed the reckonable service of two 39 years. the stand taken by the first respondent to the contrary is hence not sustainable. 8. the consequential result would be that it should be held that the family of the deceased employee is entitled to receive the pension as quantified under para 28 of the scheme. 9. mr. shailendrakumar, learned counsel for the first respondent submitted that the entire contribution made by the employer on behalf of the deceased employee were refunded to the employer under para 33 of the scheme on january 16, 1997. besides, it is seen that the k.s.r.t.c. the employer submitted the statutory contribution card contemplated under para 14 of the scheme only on september 4, 1995 showing the break up of the contribution on behalf of the employee. the whole complication in settling the claim of the family arose solely due to the negligence and criminal laches on the part of the employer. no doubt the petitioner has also delayed in approaching this court; but it does not mean that the employer can flout the statutory obligation cast on them under the family pension scheme, 1971. if the first respondent is called upon to pay the pension as quantified under para 28 after it having refunded the amount to the employer it will not be wholly just. all the same it is seen from the records that it has released only the share of contribution of the deceased worker which is rs. 198/- the employer's contributions is still with the first respondent. taking into all circumstances i direct that the employer shall remit the amount refunded to it by the first respondent namely the single share contribution of the deceased employee at rs. 198/- by january 31, 1997. the petitioner shall be entitled to receive the family pension as quantified in para 28 of the scheme in accordance with law. the petitioner shall be entitled to recover the costs of the proceedings from the 2nd respondent. advocate fee is rs. 1,000/-. the writ petition stands disposed of as above.