Shekhar B. Saraf, J. -
(1.) This is an application under Article 226 of the Constitution of India wherein the writ petitioner has been aggrieved by the non-payment of his provident fund, provident fund linked insurance and the incorrect date of resignation in the Pension Payment Order (PPO) book maintained by the respondent company in respect of the provident fund linked pension.
(2.) The chronological facts leading to the instant writ petition are as follows:
a. On 5th December, 1996, a show cause notice [hereinafter referred to as the 'said show cause notice'] was issued by the Financial Controller of The Statesman Ltd. [hereinafter referred to as the 'respondent company'] upon the writ petitioner alleging misconduct on the part of writ petitioner along with one Mr. Santosh Kumar Das.
b. The writ petitioner replied to the said show cause notice and the respondent company being dissatisfied with the said reply an enquiry was commenced. The Enquiry Officer submitted its report on 25th February, 1999, and in the said report the writ petitioner was held guilty against the charges levelled against him in the said show cause notice. The writ petitioner also replied to the said report of the Enquiry Officer through a letter dated 29th March, 1999.
c. On 16th April, 1999, the writ petitioner received a letter issued by respondent company dismissing the writ petitioner from the service with immediate effect.
d. Thereafter, the respondent company moved an application before the Ld. First Industrial Tribunal [hereinafter referred to as the 'said tribunal'] under section 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval of the decision taken by the respondent company with respect to the dismissal of employment of the writ petitioner and the same was rejected by the said tribunal by an order dated 19th May, 1999.
e. The respondent company being aggrieved by the order dated 19th May, 1999, passed by the Ld. First Industrial Tribunal filed a writ petition bearing W.P. No. 1372 of 1999 praying before the court to quash the order passed by the said tribunal. By the judgment dated 25th April, 2003, this court was pleased to uphold the order passed by the said tribunal and the writ petition was dismissed.
f. Being aggrieved by the judgment dated 25th April, 2003, the respondent company preferred an appeal before the Division Bench of this Court bearing APO No. 291 of 2003. With respect to the appeal an order was passed by the Division Bench dated 21st September, 2006, wherein it was held that the writ petitioner is willing to resign from service from 15th October, 2006, and the respondent company being the employer of the writ petitioner would pay a sum of Rs. 5,50,000/- [Rupees Five Lacs Fifty Thousand Only] in terms of full and final settlement of the writ petitioner's claim. The relevant portion of the order is delineated below:
"It now appears that the concerned employee is willing to resign from service with effect from October 15, 2006. The appellant/employer is ready and willing to pay a sum of Rs. 5 lacks in full and final settlement of his retrenchment compensation. The respondent/employer however, insists that he should be paid a sum of Rs. 6 lacks. Since the parties have already agreed to shaver employer - employee relationship we feel interest of justice would sub-serve if we direct the appellant to pay a sum of Rs. 5.5 lacks in full and final settlement of the claim of the employee.
Mr. Saha appearing for the appellant submits that a sum of Rs. 1 lack would be paid by 15th October 2006. He also assures this Court that the unpaid salary for the month of August, September and part of October 2006 would be paid to the employee concerned by 28th September 2006. Mr. Saha submits that a cheque for the amount payable for the month of August 2006 has already been sent by Registered post.
Mr. Kar appearing for the employee on instruction submits and undertakes to return the said cheque as and when received by him.
The unpaid salary so directed to be paid by September 28, 2006 must be paid through Mr. Kar's Advocate on record within the stipulated date.
With regard to compensation, Rs, 1 lack must be paid by 15 October 2006 as submitted by Mr. Saha. The balance Rs. 4.5 lacks be paid in 12 equal monthly instalment commencing from 15 November 2006 and thereafter 15th day of every succeeding month.
In default of payment of any instalment the entire amount then due and payable would become payable along with interest at the rate of 6% per annum and the concerned employee would be entitled to take appropriate steps for recovery of the said sum in accordance with law.
The appellant would take necessary steps for release of the monthly provident Fund link pension payable to the employee. The employee would also assist the employer/appellant in this regard for early release of the pension.
It is made clear that this order would also resolve all controversy between the employer /appellant and the employee being the respondent No. 2 in all pending civil and criminal proceedings."
g. On 20th December, 2006, the order of the Division Bench dated 21st September, 2006, was modified to the extent that the lump sum amount payable to the writ petitioner should be treated as retiral benefit. The relevant portion of the order dated 20th December, 2006, is presented below:
"Our judgment and order dated September 21, 2006 is modified to the extent that the lump sum amount payable to the respondent employee should be treated as retiral benefit. The judgment and order dated September 21, 2006 is modified accordingly. Let the same be incorporated in the original judgment and the order dated September 21, 2006."
h. The writ petitioner by way of a letter dated 23rd March, 2007, wrote to the General Manager Finance of the respondent company asking to take necessary steps with the P.F. Commissioner's office for expeditious settlement of his P.F. linked pension account.
i. On 29th March, 2007, the Assistant P.F. Commissioner wrote to the respondent company that the claim of the writ petitioner could not be processed and further instructed to submit the necessary documents with respect to the claim. Again, on 13th August, 2010, the Assistant P.F. Commissioner by a letter informed the respondent company to submit all the documents with respect to the claims made by the writ petitioner for early settlement of the claim.
j. Thereafter, on 7th February, 2014, the Assistant P.F. Commissioner wrote to the Director of the respondent company with respect to the redressal of grievance made by the writ petitioner in the form of a complaint. The relevant extract of the letter is delineated below:
"A complaint has been received from the above named individual on the issue that P.F. Contribution deducted from his salary for the period from 1998-99 to 15/10/2006 has not been deposited in P.F. Account and owing to that effect he has been deprived from the actual benefit of Pension provided under the Scheme.
Photocopy of the complaint letter date 05/2/2014 received at this end are enclosed herewith for necessary action in the matter.
You are therefore directed to take immediate steps to resolve the grievance of the aforesaid member and forward the action taken report within 7 days on receipt of this communication. Moreover, B. Mukhopadhyay, EO will be visiting your office and therefore it is requested to share with all relevant records for his verification."
k. On 22nd July, 2014, Assistant P.F. Commissioner wrote to the Manager of the respondent company stating that the claim of the writ petitioner could not be settled because of two reasons. For a clear understanding the relevant portion of the letter is produced below:
"With reference to the above, it is stated that the claim of your employee cannot be settled at this stage due to the following reasons:
1) Date of leaving of the member is 15/10/06, instead of 02/4/99 as per judgment of Hon'ble High Court, Calcutta and reason of leaving service retirement instead of dismissed.
2) Return in F/7PS & F/8PS from 4/99 to 12/2004 may be sought for from the estt as per Judgment of Hon'ble High Court, Calcutta Dt. 21.9.06 & 20.12.06 instead of 15/10/06 as the member attained the age of 58 yrs as on 1/1/05.
Hence, the claim in F/10D is enclosed herewith for resubmission along with correction of reason of leaving service and date and summary of 4PS, 5PS, 7PS & 8PS with 07(seven) days from the date of receive of this communication."
l. Thereafter, on 16th February, 2015, the writ petitioner made a representation before the Regional Provident Fund Commissioner-I reiterating the entire facts of the case and also stated his rights so that necessary action could be taken with respect to the non-receipt of Provident Fund from the respondent company.
m. On 3rd February, 2016, Assistant P.F. Commissioner wrote to the Senior Vice President & The Chairman of the respondent company by way of a letter that relevant reply is yet to be received from the respondent company with respect to the claim made by the writ petitioner. Thereafter, the same was also informed to the writ petitioner by the Assistant P.F. Commissioner through a letter dated 12th May, 2016.
n. The writ petitioner on 7th December, 2017, again made a representation before the Regional Provident Fund Commissioner-I having issue with respect to non-payment of Provident Fund and less payment of Provident Fund linked monthly pension from due date and also made reference to an earlier letter dated 16th February, 2015.
o. Finally, on 1st January, 2018, the Regional Provident Fund Commissioner by a letter informed the writ petitioner that the respondent company has been approached number of times by his office but no concrete reply has been submitted, and it is due to the non-cooperation of the respondent company that his office was unable to serve the ends of justice with respect to the claims made by the writ petitioner.
p. Hence, the writ.
(3.) The writ petitioner has now filed this writ petition praying before this court to direct the respondents to correct the date of resignation of the writ petitioner and re-calculate the actual amount of dues with respect to provident fund and pension payable to him by the respondents along with the interest. It is pertinent to mention that in the present writ with the leave of the court the writ petitioner is appearing in person.;