REGIONAL PROVIDENT FUND COMMISSIONER Vs. GOPAL CHANDER NEGI

JUDGEMENT

(1.) This appeal is against the order of the learned District Forum, Shimla, dated 7.8.2002, whereby the complaint of the respondent has been allowed to the extent that the appellant -Regional Provident Fund Commissioner has been directed to refund an amount of Rs. 21,873/ -to the respondent with interest @ 9% per annum from the date of the complaint alongwith litigation cost of Rs. 500/ -.

(2.) The above direction in the impugned order has been given on the basis that in the absence of any record to show whether the service rendered by the respondent in the HP. Agro Industries Corporation as. a Clerk and thereafter in the office of the Director, Primary Education, Himachal Pradesh is less than 10 years to make him eligible to avail the withdrawal benefits as alleged in the complaint or the eligible service rendered by him is for more than 10 years which would disentitle him from taking benefit in terms of Rule 12 of the Employees Pension Scheme, 1995. It appears that the District Forum has wrongly placed the onus on the appellant as opposite party to prove whether the respondent is entitled to withdrawal benefits on the basis of having rendered less than 10 years service or is disentitled because of rendering more than 10 years service. In the reply to the complaint a plea has specifically been taken that the withdrawal benefits cannot be allowed as eligible service is more than 10 years. From the record, it is clear that the respondent as complaint did not file any rejoinder meaning thereby there was no rebuttal nor it is controverted to the specific question of fact taken in the reply that he could not be allowed withdrawal benefits as the eligible service in his case was more than 10 years. Even from a bare reading of the complaint, it does not show as to how many years of service the respondent as complainant had rendered so as to entitle him to withdrawal benefits as prayed in his complaint. Therefore, having failed to plead or prove, as there is no such evidence on the record that he was entitled to such withdrawal benefits, the District Forum appears to have gone completely off the track in allowing his complaint to the extent indicted above.

(3.) In order to get to the root of the matter, during the course of hearing of this appeal, we had directed the respondent through his learned Counsel to file his affidavit regarding the period of his service in H.P. Agro Industries Corporation as a Clerk and for that time was granted to him. Therefore, a number of more opportunities were allowed to him at his request to file requisite affidavit but till date no such affidavit has been filed. Not only that, the appeal having been enlisted for hearing yesterday i.e. 22.2.2005, neither the respondent nor his Counsel put in appearance and the hearing was adjourned for today, when also the respondent is not represented by anybody. This would clearly justify the inference on our part that the respondent had in fact put in more than 10 years of service as pleaded in the reply to the complaint and was thus not entitled to the withdrawal benefits prayed by him in his complaint.