AVINASH ANANT VAIDYA Vs. REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) AVINASH Anant Vaidya is the Petitioner before us. He was working as Sales Manager since the year 1995 with M/s. Kopran Limited having its office at 1076, Parijat House, Worli, Mumbai (hereinafter to be referred as 'Employer '). The Petitioner and the employer were contributing the provident fund. As a Sales Manager, the Petitioner was entrusted with the activities of the sales. He had a touring job and would tour various States for promotion of the sales. The Petitioner met with an accident at Dadar Railway Station on 25 -6 -2000 while coming to Mumbai by Barelly -Dadar Express after finishing his work. He was taken to K.E.M. Hospital by railway police. On 7 -7 -2000 he was transferred to Lifeline Hospital, Nashik and was discharged on 31 -8 -2000. Due to the injuries sustained by him in the accident, the Petitioner 's both legs were amputated. Since he was unable to do the work and discharge his duties, the unfortunate circumstances left no choice for him but to resign from his job on 10 -1 -2001. For the purposes of disability pension and withdrawal of provident fund, all requisite forms including Form 10 -D under the Employees ' Provident Fund Scheme, 1952 were submitted by the employer to the Assistant Provident Fund Commissioner (Pension), Thane -Respondent No.4. The Respondent No. 4 was requested to forward the pension and provident fund papers to Nashik Provident Fund Region and also to have the medical examination of the Petitioner conducted by the Medical Board. It appears that the Respondent No. 4 vide communication dated 8 -3 -2002 directed the Petitioner to get the certificate from the Medical Board, locally constituted by the Civil Surgeon. Since the Civil Surgeon, Nashik was not the competent authority as per the provident fund norms, ultimately, the matter was referred to Dhule Medical Board for the medical examination of the Petitioner to ascertain the nature and percentage of disablement for deciding the eligibility for disablement pension under the Employees ' Pension Scheme, 1995. The Petitioner appeared before the Dhule Medical Board for medical examination on 28th August, 2002. By letter dated 15 -1 -2003, the Assistant Provident Fund Commissioner. Nashik -Respondent No. 3 intimated to the Petitioner that he was not entitled for disability pension as his disability percentage was 90%. Aggrieved by the said communication, the present writ petition has been filed.

(2.) THE Respondents filed reply affidavit on 2nd April, 2004 and have denied Petitioner 's claim of disablement pension. It is averred in the reply that since the Medical Board has not certified 100% disablement, the disablement pension was not payable. According to the Respondents, for claim of disablement pension under the Employees ' Pension Scheme, 1995, the employees must have suffered permanent total disablement and that means the disablement must be 100%.

(3.) PARAGRAPH 2(xvi) of the Employees ' Pension Scheme, 1995 defines permanent total disablement for the purposes of the scheme and it reads thus - "2(xvi) "Permanent total disablement" means such disablement of permanent nature as incapacities an employee for all work which he/she was capable of performing at the time of disablement regardless whether such disablement is sustained in the course of employment or otherwise."