D.G.R.PATNAIK, J. - (1.) HEARD J.C to Sri J. Mazumdar, learned Counsel for the petitioner, J.C. to Sri P.P.N. Roy, learned Counsel for the respondent Regional Provident Fund Commissioner and Sri Sanjay Piprawal, learned Counsel for the respondent Hindustan Fertilizer Corporation Limited.
(2.) THE petitioner in this writ application has prayed for issuance of an order quashing the letter dated 19.01.2004 (Annexure -4) issued by the Respondent No. 2 whereby the petitioner has been advised to submit an account payee demand draft of any nationalized bank drawn in favour of the Trusties H.F.C. Ltd., Employees Provident Fund, EP & ARC payable at Kolkata for an amount of Rs. 43,000/ -, during the period from 03.02.2004 to 10.02.2004 for settlement of monthly pension claim under the EPS -95 scheme. A further prayer has been made for quashing the letter dated 25.02.2004 (Annexure -6) issued by the Respondent No. 3 whereby the Respondent No. 3 has refused to return the contribution, deducted from the salary of the petitioner, unless the demanded amount of Rs. 43,000/ - is deposited by the petitioner. Learned Counsel for the petitioner would explain that the petitioner's claim is on two basic grounds. The first being that under the Employees Pension Scheme which was in force during the period when the petitioner was in service, a duty was cast upon the employer to seek the option from the employee in respect of the particular scheme of pension which he desires to adopt. No such option was ever demanded from the petitioner. Secondly, the payment of pension under the scheme was payable to the petitioner in the month of April, 2003 when the petitioner had voluntarily retired from service. Learned Counsel explains that during this period, another Employees Pension Scheme of 1995 was introduced. The vires of the Scheme was challenged before the Supreme Court in the case of OTIS Elevator Employees Union and Ors. V/s. Union of India and Ors. reported in AIR 2004 Sc 3264 and ultimately, upon considering the matter, the Supreme Court had declared the scheme to be intra -vires and mandatory upon the employer and the employees. Learned Counsel submits that the directives of the Supreme Court will not apply to the case of the petitioner in view of the fact that even before the passing of the judgment, the petitioner had already retired from service and he was certainly entitled for the payment of pension under the scheme which was in force and was applicable to him on the date of his retirement. Learned Counsel adds further that the refusal of the respondent employer by virtue of the impugned letter to pay the pension of the petitioner as per the earlier scheme, is totally illegal and arbitrary.
(3.) LEARNED Counsel for the respondent employer submits, on the other hand, that earlier the entire amount of contribution, which was deducted from the petitioner's salary, was forwarded to the Regional Provident Fund Commissioner Office but the same was returned with a directive that fresh papers should be forwarded in consonance with the 1995 Scheme.;