JOGINDER KUMAR AGGARWAL Vs. EMPLOYEES PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) The petitioner joined his services as Company Secretary in Haryana Seeds Development Corporation Limited (hereinafter referred to as 'the Corporation') on 4.9.1977. In February 1978, he became member of the Employees Provident Fund Scheme, 1952 (hereinafter referred to as 'the Provident Fund Scheme, 1952') and Family Pension Scheme, 1971, (hereinafter referred to as 'the Pension Scheme 1971'). He continuously paid his contributory share in the aforesaid Schemes until 1991 when his services were terminated by the respondent-Corporation. He challenged the order of his termination by filing CWP No. 6900 of 1991 before this Court. After his termination, the petitioner was in financial constraints, therefore, he withdrew his entire amount of provident fund as well as his contribution of Rs. 5150/- under the Pension Scheme, 1971. Subsequently, his order of termination was set aside by this Court vide order dated 25.1.1995. The respondent corporation challenged that order by filing L.P.A. No. 202 of 1995 which was also dismissed. Ultimately, on 23.1.1998, the petitioner was reinstated in service of the respondent-Corporation with all consequential benefits and with continuity in service. Though the petitioner joined his service on 23.1.1998 yet the respondent-Corporation deducted and deposited with the Regional Provident Fund Commissioner the amount of contributions payable under the Provident Fund Scheme, 1952, Pension Scheme, 1971 and Employees Pension Scheme, 1995 from 10.1.1991 to 23.1.1998 because the petitioner was reinstated in service with continuity. Since the Employees Pension Scheme, 1995 had become applicable w.e.f. 16.11.1995, the deductions were made from the salary of the petitioner under the Provident Fund Scheme, 1952 and Pension Scheme, 1971 upto 15.11.1995 and thereafter under the Provident Fund Scheme, 1952 and Employees Pension Scheme, 1995 from 16.11.1995 to 31.5.2000, on which date the petitioner retired on attaining the age of superannuation.

(2.) The contention of the petitioner is that he has completed more than 23 years of service and thus became entitled to the benefit of monthly pension as provided in para 10(2) of the Employees Pension Scheme, 1995 but the respondents have illegally rejected the claim of the petitioner on the ground that he ceased to be the member of the Provident Fund Scheme, 1952 as well as the Pension Scheme, 1971 on his withdrawing the contribution from the said Scheme in the year 1991 after his dismissal. Learned counsel for the petitioner submitted that since the petitioner was reinstated in service on 23.1.1998 with continuity of service and the respondent-Corporation deducted and deposited the amount of contribution towards the Provident Fund Scheme, 1952 as well as Pension Scheme, 1971 for the period 10.1.1991 to 15.11.1995 and towards the Provident Fund Scheme, 1952 and Employees Pension Scheme, 1995 from 16.11.1995 to 23.1.1998, therefore, there was neither any gap in the continuity of service nor there was any gap in making the contribution towards the aforesaid Schemes. The only thing was that the petitioner had withdrawn the amount of his contribution towards the Provident Fund Scheme, 1952 and then Pension Scheme, 1971 at the time when he was in harness and out of job. For that, he immediately after joining the service moved an application before respondent No. 3 requesting that his membership in the Employees Pension Scheme, 1995 be restored and he offered to deposit the amount withdrawn by him under the Provident Fund Scheme, 1952 and Pension Scheme, 1971 with interest, but his request was not accepted by the respondents in an illegal and arbitrary manner.

(3.) On the other hand, learned counsel for the respondents submitted that since the petitioner did not serve the respondent-Corporation for 10 years as member of the Employees Family Pension Scheme from 10.1.1991 to 31.5.2000, he was not entitled to pension. It was further submitted that with the withdrawal of the contribution towards the Pension Scheme, 1971, the petitioner ceased to be the member of the said Scheme and he cannot be given the benefit of the previous service in view of the fact that he ceased to be the member of the Scheme and as such he does not fall under the definition of 'Member' under the Employees Pension Scheme, 1995 as according to para 6A of the said Scheme, a member of the Employees Pension Fund shall continue to be such member till he attains the age of 58 years or he avails the withdrawal benefit to which he is entitled under para 14 of the Scheme, or dies, or the pension is vested in him in terms of para 12 of the Scheme, whichever is earlier. Learned counsel for the respondents submitted that according to the explanation attached to the definition of Member in Clause 2(1)(ix) of the Employee Pension Scheme, 1995, which provides that an employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the Scheme, whichever is earlier. With the support of the aforesaid two provisions, it is contended by the respondents that with the withdrawal of the amount of the Scheme, the petitioner ceased to be the member of the Pension Scheme 1971, therefore, his previous service cannot be taken into consideration for the purpose of counting the qualifying service and for the grant of monthly pension under the Scheme of 1995.