M. C. JAIN, J. - (1.) THIS special appeal is directed against the judgment of the learned Single Judge dated October 15, 1985, whereby, he directed the apellant-Bank to determine the amount of provident fund and gratuity within a period of four months from the said date and pay the same to the petitioner. It was further ordered that the petitioner is entitled to the interest of the rate of 12 percent from August 7, 1980 i. e. after three months from the date of his discharge, and he is also entitled for compensation of Rs. 5000/- for having delayed the payment of provident fund and gratuity and he is further entitled to costs of Rs. 2000/ -.
(2.) THE petitioner was an Officer in the State Bank of Bikaner & Jaipur (for short 'the Bank') till he was discharged from the service by order dated May 6, 1980 after disciplinary action. That order was challenged by the petitioner by a writ petition but the writ petition was dismissed on April 15, 1984 and the special appeal against the order of dismissal is pending in this Court. After the discharge from the service, the petitioner was not paid the amount of provident fund and gratuity, so, he submitted an application dated 24,12. 80 (Ex. 1) to the Managing Director and vide Ex. 2 dated September 24, 1982, the officer-in-charge of the Bank in response to the petitioner's letter dated September 10, 1982 addressed to the Managing Director informed the petitioner to forward an application, addressed to the trustees-State Bank of Bikaner and Jaipur Employees Provident Fund Bikaner to enable to refund the provident fund balance. THE petitioner then served a notice dated May 11, 1983 through his Advocate Shri Jaswant Raj Tatia addressed to the Branch Manager and the Managing Director and copy whereof was forwarded to the trustees Staff Provident Fund for necessary action. In response to that notice, the officer-in charge of the Provident Fund Section of the Bank wrote to the petitioner's Advocate vide Ex. 3 dated May 14, 1983, in which, the letter addressed to the Branch Manager, Managing Director and the Trustees was as know -ledged and it was advised that the matter has been taken up with the Branch and also with the controller with regard to refund of the provident fund balance and it was further stated that he will be advised in the matter shortly and it was also informed that certain amount stands credited to the provident fund account of Shri Mehta in respect of contribution during the period of October, 1977, June 1978 and September 1978. When payment was not made to the petitioner, the petitioner filed the writ petition on July 16, 1984. On behalf of the Bank, reply to the writ petition was filed on November 6, 1984. One of the trustees of State Bank of Bikaner & Jaipur Employees Provident Fund Shri Singhla filed a reply to the writ petition on May 13, 1985 and additional reply to the writ petition was further filed by the Bank on May25, 1985. In these replies, various, objections were raised. The learned Single Judge after hearing the parties allowed the writ petition and directed and ordered as above. Dis-satisfied with the judgment of the learned Single Judge, the Bank and the Trustees of the State Bank of Bikaner and Jaipur Employees Provident Fund have preferred this appeal. We have heard Mr. M. M. Vyas, learned counsel for the appellants, and Mr. M. Mridul, learned counsel for the respondent. Mr. M. M. Vyas, learned counsel for the appellants first of ail submitted that the writ petition is liable to be dismissed on the ground that all individual trustees of the State Bank of Bikaner and Jaipur Employees Provident Fund were not made parties to the writ petition and the Trustees of gratuity fund have also not been made parties. The trustees of the Employees Provident Fund as well as of the gratuity fund are the necessary parties. Without giving them an opportunity of hearing, no direction could be given by the learned Single Judge. Mr. Vyas submitted that it is only the Trustees of the two funds, who were under an obligation to make payment of the provident fund and gratuity amount and no mandamus can be issued to those who have not been heard and who have not been made parties to the writ petition. He referred to the provisions of the Regulations No. 48 and 49 in Chapter IX on Terminal Benefits of the State Bank of Bikaner & Jaipur (Officers') Service Regulations, 1979 (hereinafter referred to as 'the Service Regulations') and to the provisions contained in the State Bank of Bikaner and Jaipur Employees' Provident Fund Regulations, 1969 (hereinafter referred to as 'the P. F. Regulations1! and the State Bank of Bikaner and Jaipur (Payment of Gratuity to the employees') Regulations, 1970 (hereinafter referred to as 'the Gratuity Regulations') Mr. Vyas submitted that under the P. F. and Gratuity Regulations, the provident fund and gratuity fund vest in the respective trustees of the two funds and the Bank is completely divested of the fund and ceases to have any control. The liability to make payment out of the funds is that of the trustees, so the trustees of the two funds are the necessary parties Impleading the body of trustees in the name of the trustees relating to the Employees' Provident Fund is of no consequence. The trustees of the Employees' Provident Fund as such have not been served and the trustees of the gratuity fund have not at all been impleaded as parties. Mr. Vyas in support of his contention, placed reliance on the decision of the Supreme Court in Prabodh Verma vs. State of Uttar Pradesh (1 ). In that case, the Shikshak Sangh and the private management had filed a writ petition to challenge the validity of the Uttar Pradesh Ordinance No. 22 of 1978 but did not make Reserve Pool teachers, who were to be deprived of their chance of appointment in vacancies in the posts of teachers in such institution, in case of success as respondents. It was held that the High Court ought not to have proceeded to hear and dispose of the writ petition without insisting upon the reserve pool teachers being made the respondents to the writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large and had the petitioners refused to do so, to dismiss the writ petition for non- joinder of necessary parties.
(3.) MR. Vyas also referred to a decision of this Court in Bikaner Cold Storage Company v. Regional Provident Fund Commissioner (2 ). It was held that in the absence of the Central Government, the question of its powers u/s 19a of the Employees' Provident Funds and Misc. Provision of the Act, 1952 cannot be decided. Mr. Mridul, learned counsel for the respondent, on the other hand-submitted that the Trustees of the Employees Provident Fund have been impleaded as parties and service on appellant No. 2 was effected on the officer-in-charge of the Trustees. Mr. C. L. Syngla received the notice as Officer-in-charge of the Trustees of the State Bank of Bikaner and Jaipur Employees' Provident Fund, so it should be taken that the Trustees of the Employees Provident Fund are before the court and they were served and Shri C. L. Syngla as one of the Trustees had put appearance on behalf of the Trustees, so this contention is of no avail to the appellants that the Trustees of the Employees" Provident Fund are not parties to the writ petition and that an opportunity of hearing was not given to them. As regards, the Trustees of the Gratuity Fund, Mr. Mridul submitted that the Trustees of the Gratuity Fund as such have no independent existence. The Board of Directors of the appellant-Bank constitute the Trust and when the Bank is impleaded as a party then the Board of Directors are very much before the Court. He also urged that the liability for payment of Provident Fund and Gratuity is of the Bank. How and in what manner the provident fund and gratuity fund are administered or managed is the internal management of the Bank and it may be that these funds have come into existence under the Regulations but these funds have no existence as such and so, the writ petition is not liable to be dismissed on the aforesaid ground. Reliance was placed by Mr. M. Mridul, learned counsel for the respondent on the decision of the Supreme Court in Murari Mohad Deb vs. The Secretary to the Govt. of India (3 ). The court observed;- "if there was technical error in the draftsmanship of the petitioner by a lawyer, a Forester a class IV low grade servant should not have been made to suffer. An oral request to correct the description of the first respondent would have satisfied the procedural requirement. By raising and accepting such a contention, after a lapse of six years, the law is brought into ridicule. The Court could have conveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard, The contention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commissioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers. Therefore, not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence" We have considered the respective contentions of both the sides. Regulation 48 of the Service Regulations provides that every officer shall become a member of the Provident Fund and shall subscribe and agree to be bound by the rules of the Fund and Regulation 48 (2) enjoins upon the Bank to contribute to the Provident Fund in accordance with the rules governing the Provident Fund from time to time. Regulation 49 makes the provision for Gratuity. Regulation. 49 (2) provides for extent of gratuity payable to the officer. Regulation 49 (6) lays, down the procedure to be adopted by all the Branches with a view to stream-line and expedite settlement of claims of retrial benefits to the members of the staff. The employee is required to submit separate applications to the Branch Manager for payment of the Provident Fund and Gratuity. The Branch Manager is required to forward these applications along with the particulars of amounts due to the Bank or no dues certificate as the case may be along with the particulars mentioned in Clause (a ). Under Clause (b) the controlling authorities at Head Office are required to ensure that the particulars are received not only from their branches but will have them scrutinised with in a period of 10 days from the date of receipt at their Secretariat After scrutiny of the applications, the controlling authorities are required to counter sign and forward the same to the officer-in-charge, Provident Fund Section in case of application of Provident Fund and in case of applications for payment of gratuity, the Controlling Authorities shall forward these applications to the Manager, Finance and Accounts after calculating the gratuity payable to the employees to enable to make payment soon-after retirement. It is further provided in sub-clause (iii) of Clause (b) that as the Managing Director is the Executive Trustee empowered to carry or* day to day administration of the gratuity fund, all the cases of payment of gratuity either under the Gratuity Regulations or under the Payment of Gratuity Act, 1972 should be sent to the Manager, Finance and Accounts being Secretary of the Gratuity Fund, who will in turn submit such cases to the Executive Trustee for necessary action. ;