Dr. D.P.Choudhury, J.
1. Challenge has been made to the non-deposit of E.P.F. contribution by the employer for the period from June, 2002 to March, 2005 even though recovered from the petitioner resulting the petitioner being deprived of his pension from the E.P.F. Authority under the Employment Pension Scheme, 1995 (hereinafter called as „the Scheme, 1995) and non-payment of salary for the period from June, 2002 to March, 2005. FACTS
2. The factual matrix leading to the case of the petitioner is that the petitioner was working as Senior Executive in the Co-operative Spinning Mills of Orissa, Bargarh since November, 1973. While working as such, the opposite party no.2-Orissa State Cooperative Spinning Mills Federation Limited, i.e, 'SPINFED' was created by the State Government under which all the Spinning Mills established by the State Government in the Co-operative Department including the Utkal Weavers‟Co-operative Spinning Mills, Khurda (hereinafter called as 'the USPIN') were managed and controlled by the SPINFED. After creation of SPINFED, during the year 1987, the petitioner was transferred from Orissa Weavers‟Co-operative Spinning Mills, Bargarh to Kaling Weavers‟Co-operative Spinning Mills, Dhenkanal and thereafter the petitioner was transferred to different organizations under SPINFED, finally retired while working in USPIN in October, 2005. It will not be out of place to mention here that the petitioner worked there from June, 2002 to October, 2005. Be it stated that during such incumbency, his EPF contribution was not deposited. The petitioner retired under Voluntary Retirement Scheme on 29.10.2005 after receiving the VRS dues as per letter dated 29.10.2005 of the Managing Director, USPIN.
3. It is the further case of the petitioner that he was not paid his salary during the period from June, 2002 to March, 2005 while he was working as Managing Director of USPIN amounting to Rs.3,37,134/- and even though an amount of Rs.54,653/- was recovered from his salary towards employee share, the employer did not deposit the said amount along with employer share of EPF with the Regional Provident Fund Commissioner, Bhubaneswar, opposite party no.4 for which he did not get the pension from opposite party no.3 after his retirement. The petitioner, on enquiry, came to know that the employer has submitted Form-10 showing the date of leaving of service by the petitioner as 2.4.2002. Be it stated that the petitioner while retired from service on 29.10.2005, he has filled up Form-10 mentioning his date of leaving and submitted the same to the employer for onward transmission to opposite party no.4, but it seems the date of leaving has been scored through in order to save the employer from depositing EPF dues for the period from June, 2002 to March, 2005. It is stated that the attempt is deliberate and fraughted with malafideness. The petitioner has requested the opposite party no.4 time and again to direct the employer to deposit the EPF dues and pay his salary so that he can get pension from opposite party no.4. Since the opposite party no.4 has remained silent to the request of the petitioner, the petitioner is compelled to file this writ petition for a direction to the opposite parties to pay his unpaid salary for the above period and to pay the pension.
4. Per contra, the opposite parties have filed their respective counters. Opposite party no.1 filed counter affidavit stating therein that he has no role to play so far as payment of unpaid salary to petitioner and disbursement of the pension, which is directly related to opposite party no.4 for which the opposite party no.1, being the State Government, is not liable to make any arrear payment or pension whatsoever.
5. Opposite party no.2 has filed counter affidavit refuting the allegations of the petitioner. It is the case of the opposite party no.2 in his counter that the petitioner was a common cadre employee of SPINFED, an apex organization of Weaver‟s Co-operative Spinning Mills and provides guidelines and advisory services in the areas of technical, managerial and marketing as and when required by the Members, Spinning Mills. The Registrar of Co-operative Societies, Orissa, vide order no.10516 dated 4.5.1989, constituted an Appointment Committee and framed regulations, namely, 'The Common Cadre of Key Personnel of the Co-operative Spinning Mills', Rules, 1989 (in short 'the Rules, 1989'). It is the further case of the opposite party no.2 that as per the provisions enumerated in Chapter-V and Clause-VI, the petitioner was transferred to different Spinning Mills where he rendered his services and received salary from the concerned Mills. The petitioner, being transferred to Gangpur Spinning Co-operative Mills, Sundergarh, joined as Authorized Officer of the said Mill with effect from 20.3.1993 till 7.6.2002. In addition to this, the petitioner was assigned with additional charge of Chief Executive, USPIN but latter the Mill had not deposited the EPF dues of the petitioner with EPF Authorities although the petitioner was receiving the salary from said Mill till his retirement. It is further stated that the income and payment statement of USPIN for the period from 1.4.2002 to 31.3.2003 indicate that a sum of Rs.1,64,800/- was drawn as part payment to 30 essential staff including the Managing Director against salary and similarly from the receipt and expenditure statement for the period 1.4.2003 to 31.3.2004 indicate that Rs.1,80,800/- was drawn as part salary advance to staff including the Managing Director, who is none other than the petitioner. Similarly, from the receipt and expenditure statement for the period from 1.4.2004 to 31.3.2005, it appears that Rs.28,950/- was drawn as advance salary by the Managing Director. It is the case of the opposite party no.2 that while the petitioner was serving at Gangpur Weavers‟Co-operative Spinning Mills Limited had opted for VRS which was sponsored by the Government. The petitioner‟s VRS application was forwarded to opposite party no.2 and that in turn forwarded the same to Government for acceptance and sanction of necessary funds. So, the petitioner has neither any claim from the SPINFED nor from the Government after the cut-off date, i.e, 31.3.2001. Further, the opposite party no.2 has admitted that he is liable for payment of the EPF dues of the petitioner, if any, till the cut-off date.
6. The counter by opposite party no.3 came to be filed refuting the allegations made in the writ petition. It is the case of the opposite party no.3 that during the relevant period, i.e, June, 2002 to March, 2005, the petitioner himself was an employee of opposite party no.2, i.e, SPINFED with additional charge of USPIN which has latter become defunct since 1998. Since the opposite party no.3-Mill was a defunct unit, the petitioner confined with the additional charge of the same after handing over charge of Gangpur Weavers‟Co-operative Spinning Mills Limited, Sundergarh. On 29.3.2001, the petitioner had applied to retire voluntarily with effect from 31.3.2001 and the same was also accepted. But, as his VRS dues were not paid, he had to file a writ petition before this Court, i.e, W.P.(C) No.6198 of 2005 and this Court, without entering into the merits of the case, directed the petitioner to make fresh application before the opposite party nos.3 and 4 and the opposite parties were directed to take a decision thereon in accordance with law. In pursuance of the order of this Court, the petitioner represented to the opposite party no.2 with an undertaking to the Managing Director of SPINFED that he would not claim any salary, ex-gratia, gratuity etc., if any, in future either from SPINFED or from Government after the cut-off date, i.e, 31.3.2001. Accordingly, the VRS pensionary benefits have been paid with effect from 31.3.2001. Since he has forfeited the benefits for remaining service period, he has forfeited his claim in question. As the opposite party no.3-Mill has become defunct since 1998 and the petitioner was a regular employee of SPINFED, he was only confined with additional charge of the Managing Director of opposite party no.3-organization and he has not drawn any salary. On the other hand, he has disbursed the money to other employees. When he has not drawn any salary, the question of payment of EPF contribution to the EPF Authorities does not arise. After he was paid the money under the Voluntary Retirement Scheme, the petitioner made a petition for payment of arrear salary dues and EPF dues. Since the petitioner had abandoned his claim by giving undertaking vide Annexure-C, the claim for such arrear salary or pension is barred by the principles of constructive resjudicata.
7. Be it stated that Form-10 was submitted by SPINFED, who is the employer of the petitioner, of which the scoring of any date of his retirement is not related to opposite party no.3. As the SPINFED is the employer of the petitioner and the SPINFED has allowed voluntary retirement under Annexure-B, the question of depositing of EPF dues by the opposite party no.3 is unsustainable in the eye of law. It is stated that the petitioner has received the dues of Rs.5,26,838/- under VRS from the Government in P.E. Department through his employer. It is further stated that since the dispute between the parties regarding taking of salary is a dispute covered under Section 68 of the Co-operative Societies Act and if at all the dispute exists, the same is to be adjudicated under Section 70 of the said Act by the authority and this Court has no jurisdiction to entertain this writ petition, which is liable to be dismissed on that ground alone.
8. The opposite party no.4 filed separate counter affidavit stating therein that the petitioner became a member of the provident fund on 1.8.1987 vide Account No.OR/1833/2064 being allowed to him. According to him, he left service on 1.9.1989 and again he joined on 1.4.1996 having Account No.OR/4101/76 and left service on 2.4.2002 vide Form-10. It is the further case of the opposite party no.4 that vide Form Nos.19 and 10D in respect of the member have been returned to establishment vide letter No.3499 dated 15.12.2006 but no clarification of the establishment of SPINFED has been received so as to settle Form Nos.19 and 10D of the petitioner. Therefore, the opposite party no.4 is unable to settle the pension and provident fund in respect of the petitioner.
Mr. Somanath Mishra, learned counsel for the petitioner submitted that the claim of the petitioner is confined to the period from June, 2002 to March, 2005 when he was working as Managing Director of USPIN and he further stated that after creation of SPINFED, all the Mills in the State of Orissa became member of SPINFED who is the apex body in respect of spinning mills. He further submitted that the petitioner after rendering 31 years 11 months of continuous service at different Mills, retired from service after taking VRS on 29.10.2005 while working as Managing Director of USPIN. According to him, since the petitioner has retired from service while working under opposite party no.3-organization, the latter is required to pay salary and EPF dues contribution so that the petitioner can avail the pension from opposite party no.4. He further submitted that the opposite party no.2 is not an employer even after the SPINFED was constituted because an employee is to settle the pensionary benefits in the organization where he last employed since the employer has got duty to deposit the EPF dues under the Employees‟Provident Funds and Miscellaneous Provisions Act, 1952 (in short „the Act‟) in their account. So, the opposite party no.4 is to disburse the pension of petitioner. He admitted that the petitioner has received his dues under the VRS from the State Government but he is not able to get his pension which is the only source of his livelihood. So, he prayed to direct the opposite parties to pay the arrear salary and pension for the period in question.
10. Mr.Milan Kanungo, learned Senior Advocate for the opposite party no.2 submitted that the petitioner was not an employee of SPINFED because SPINFED is the policy making body of spinning mills in areas of technical, managerial and marketing as required by the member of the spinning mills. The petitioner was a common cadre employee of SPINFED for the purpose of rendering service to different member of spinning mills. According to this opposite party, the Registrar of Co-operative Societies, Orissa, vide order no.10516 dated 4.5.1989, constituted an Appointment Committee and framed regulations, namely, 'The Common Cadre of Key Personnel of the Co-operative Spinning Mills', Rules, 1989 for regulating the matter of appointment, transfer and disciplines of key personnel in the spinning mills. Under that regulation, the Managing Director of the Mill is a key personnel and according to Sub-clause-(ii) of Clause-2(b) of Chapter-VI, the service benefits of the key personnel of spinning mills shall be given by the USPIN. So the SPINFED cannot by virtue of such rules pay any pensionary benefits to the petitioner as he was working in the USPIN at the time of retirement. While the petitioner was Authorized Officer of Gangpur Spinning Co-operative Mills, Sundergarh he was assigned additional charge of Executive Officer of USPIN on account of relinquishment of the then M.D. of USPIN. Latter on, the petitioner handed over the charge of Gangpur Spinning Co-operative Mills, Sundergarh on 7.6.2002. It is the case of this opposite party that the petitioner had joined as Managing Director of USPIN on 16.11.2000 and he has received payment of Rs.1,64,800/- from 1.4.2002 to 31.3.2003 as part payment to thirty essential staff including the Managing Director. Similarly, the petitioner has also drawn as part salary advance for the period from 1.4.2003 to 31.3.2004 and 1.4.2004 to 31.3.2005. As the petitioner has executed undertaking on 27.10.2005 that he has no claim to receive either from SPINFED or from the Government after the cut-off date, i.e, 31.3.2001, the opposite party no.2 is only liable to pay the EPF dues till the cut-off date but not afterwards. On the other hand, he denied about any liability of opposite party no.2 to pay any dues for the relevant period to the petitioner.
11. Mr.P.N.Mohapatra, learned counsel for the opposite party no.3 submitted that since the SPINFED being the apex body engaged key personnel and the petitioner was in additional charge of USPIN, which has no any fund to manage the salary of the staff, the question of payment of arrear salary to the petitioner does not arise. He further submitted that when the petitioner himself has admitted that he has not received any salary for the relevant period as asked for, the question of depositing the PF dues by deducting from his salary does not arise. He further submitted that the petitioner being not a regular employee of the opposite party no.3 and only was in additional charge being permanent employee of SPINFED, the opposite party no.3 is not liable to pay any salary or EPF dues but SPINFED has got all responsibilities to pay the salary, if any. Moreover, he submitted that the petitioner has already received his VRS dues from the State Government to the extent of Rs.5,26,838/- and he has also disclaimed his pensionary benefits by giving undertaking on 27.10.2005 for which the opposite party no.3 is not liable to pay any pensionary benefits to the petitioner.
12. Learned counsel for the opposite party no.4 submitted that the SPINFED, being an employer, has submitted Form-10 by showing the retirement date of the petitioner as 2.4.2002 but not 29.10.2005. As long as the contribution is not deposited, the petitioner is not able to get any benefit out of PF fund and so also the opposite party no.4 is not liable to pay any pension to the petitioner. Learned counsel for the opposite party no.4 further submitted that after the formalities being observed, the opposite party no.4 would disburse pension to the petitioner.
13. The petitioner has filed rejoinder raising objections to the submissions made in the counter by the opposite parties. In the rejoinder, the petitioner admitted that after handing over charge of the Gangpur Weavers‟Co-operative Spinning Mills Limited vide office order dated 3.6.2002, he remained as Managing Director of the USPIN. It is also revealed from the rejoinder that the petitioner had filed W.P.(C) No.1955 of 2002 for non-payment of salary from May, 2002 onwards and the same was disposed of by this Court on 5.9.2002 directing the opposite parties to pay the dues of the petitioner. Be it stated that the petitioner had applied for voluntary retirement but as no action was taken, he filed W.P.(C) No.6198 of 2005 before this Court and this Court vide order dated 21.6.2005, disposed of the said case. After disposal of W.P.(C) No.6198 of 2005, there was mutual discussion between the petitioner and the opposite parties and a letter was sent by the petitioner on 24.10.2005 for out of Court settlement with regard to the dues of the petitioner from May, 2002 to March, 2005 and the petitioner gave options vide Annexure-9 for consideration by the opposite parties. The petitioner had proposed that his services from 1.4.2001 may be treated as contractual service under the disposal of the management of USPIN and the monthly remuneration would be Rs.9000/- per month and he would not claim any gratuity, compensation etc. for the period from 1.4.2001 till he is relieved either from USPIN or from SPINFED and he would not claim any leave statutory benefits etc. as applicable to other staff of USPIN. But for payment of VR dues, the opposite parties took an undertaking from the petitioner to the effect that he would not claim salary, ex-gratia, gratuity etc. either from SPINFED or from the Government after the cut-off date, i.e, 31.3.2001 in future, but by such undertaking, his unpaid salary from June, 2002 to October, 2005 must be brushed aside. The petitioner stated to have revoked the undertaking as per letter dated 30.11.2006. He has also mentioned that USPIN has paid the subsistence allowance to him for the month of May, 2005 to July, 2005. Further in the rejoinder, it has been admitted that the State Government in Textile and Handloom Department in letter dated 22.5.2003 has clarified that USPIN is responsible for disbursement of salary of the petitioner. Neither the opposite party no.2 nor the opposite party no.3 is paying the dues to the petitioner. At paragraph-10 of the rejoinder, the petitioner has mentioned that on 7.1.2009, opposite party no.2 addressed a letter to opposite party no.3 for settlement of the dues of the petitioner by treating the petitioner as contractual employee with effect from 1.4.2001 till the date of the relieve, i.e, 29.10.2005 and his remuneration should be Rs.9000/- per month subject to recovery of any money from the petitioner and before any such agreement is reached, the petitioner should withdraw the present writ petition and agreement should be executed by the petitioner to that extent. The petitioner has no objection to withdraw this writ petition provided the dues are paid amicably and in this regard, he has written a letter vide Annexure-15.
14. POINT FOR CONSIDERATION The point for consideration is as to whether the petitioner is entitled to any salary or EPF dues for the relevant period?
It is admitted fact that the petitioner was an employee under different spinning mills which are managed and controlled by SPINFED and he started his career in 1973. It is also admitted fact that the petitioner under Voluntary Retirement Scheme, retired on 29.10.2005 while working under opposite party no.3-organization. It is not in dispute that the petitioner has received the VRS dues to the extent of Rs.5,26,838/- on 29.10.2005 and he has not received any FP/pension from opposite party no.4.
16. Learned counsel for the petitioner submitted that on 8.1.1991 the petitioner was transferred to Gangpur Weavers‟Co-operative Spinning Mills, Sundergarh and ultimately transferred to USPIN and worked there from June, 2002 to October, 2005. On the other hand, learned counsel for the opposite party no.3 submitted that the petitioner was in additional charge of opposite party no.3-organization as he was working as Authorized Officer of Gangpur Weavers‟Co-operative Spinning Mills, Sundergarh. Learned counsel for the opposite party no.2-SPINFED submitted that the petitioner handed over charge of the spinning mill of Sundergarh on 7.6.2002 although before handing over, he was given additional charge of opposite party no.3-spinning mill while he was working as Authorized Officer of spinning mill of Sundergarh. It is further contended by the learned counsel for the opposite party no.2 that from 7.6.2002 till 29.10.2005, the petitioner was the Managing Director of opposite party no.3-spinning mill.
17. The petitioner and opposite parties have filed documents in support of their respective contentions. Annexure-1 shows that the petitioner handed over the charge of the Office of the Managing Director of opposite party no.3-spinning mill on 29.10.2005 AN. Annexure-A/3 to the counter affidavit of opposite party no.3 shows that on 17.5.2000, the petitioner being the Authorized Officer of Gangpur Weavers‟Co-operative Spinning Mills, Sundergarh, remained in additional charge of opposite party no.3-organization on deputation. Annexure-8 shows that opposite party no.2-SPINFED has passed the order on 3.6.2002 directing the petitioner to hand over charge of Gangpur Weavers‟Co-operative Spinning Mills, Sundergarh to one Narayan Sahu, Dy. Manager, SPINFED. From the rejoinder of the petitioner and the counter of opposite party no.2, it is revealed that that the petitioner handed over charge on 7.6.2002. These documents go on to show that from 17.8.2000, the petitioner was in dual charge, but from 7.6.2002 he resumed as Managing Director of USPIN till his voluntary retirement on 29.10.2005. The financial stringency of opposite party no.3 is not a ground to deny their liability and, if at all, the opposite party no.3 is not able to pay, the opposite parties 1 and 2 shall ensure as it is the apex body of opposite party no.3.
18. On the other hand, it is revealed from the rejoinder of the petitioner that such document has been taken from the petitioner by the opposite parties 2 and 3 to ensure earlier pension of the VR dues. Whether the undertaking has been given under compulsion or not but the fact remains, as available from the material, as discussed above, that VR dues has been made available keeping the calculations for payment of the VR dues as on 31.3.2001 although the petitioner had worked till 29.10.2005. This act also finds force from the document vide Annexure-9 that on 24.10.2005, the petitioner gave conditions for out of Court settlement that his services from 1.4.2001 should be treated as contractual under the disposal of the management of USPIN that payment of monthly remuneration @ Rs.9000/- per month and would not claim gratuity, ex-gratia for the period after 1.4.2001 either from SPINFED or from USPIN. Not only this but also the petitioner has filed a letter of the SPINFED vide Annexure-14 to show that the opposite party no.2 has agreed to the terms and conditions of the petitioner, as made above, provided the petitioner would withdraw this writ petition. Thus, the opposite parties have tried to twist the arm of the petitioner by giving such proposal on 7.1.2009, i.e., long after four years of his retirement under VR Scheme.
19. Apart from this, facts lead to the conclusion that the petitioner has been paid the VR dues up to 31.3.2001 and thereafter he has worked being Managing Director of USPIN till 29.10.2005 and no salary whatsoever has been paid neither by USPIN nor by SPINFED. The said date 31.3.2001 has been admitted by both the parties as cut-off date which is nothing but the date by which voluntary retirement applications would be received to minimize the financial burden of the concerned organization. Voluntary Retirement Scheme is introduced with cut-off date, so that the employees who have worked till then will retire either receiving three months salary in advance. But, the date of retirement is not necessarily the cut-off date although said date by which an employee can apply for voluntary retirement. So, in the instant case 31.3.2001 is a cut-off date by which the petitioner has applied on 29.3.2001 for retirement from Government service. On perusal of the case records of W.P.(C) No.1955 of 2002, it appears that the Division Bench of this Court have disposed of that writ petition on 5.9.2002 with a direction to the opposite parties to ensure the payment of salary of the petitioner said to be due from May, 2002. Since out of Court settlement could be reached, as it appears from the above discussion, the petitioner was continuing with such scale of salary along with necessary other allowances as he was getting before 31.3.2001 till 29.10.2005. In the above order of this Court, it is opposite parties 1 and 2 to ensure that opposite party no.3 to pay the dues. Not only this but also it is for the opposite party no.3 to deposit the PF dues, leave salary and gratuity as per the Rules, 1989, as discussed above with the opposite party nos.1 and 2, who would ensure for depositing the same with opposite party no.4 for payment of pension of the petitioner. In the case of D.S. Nakara & others –V- Union of India; (1983) 1 SCC 305 where Their Lordships at paragraph-31 have observed as under:
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1.From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to requirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.' The aforesaid decision has been followed in the case of Chairman, Railway Board & others –V- C.R. Rangadhamaiah & others; AIR 1997 SC 3828. 20. With due regard to the above decisions, it must be held that the pension of the petitioner should be made available to him because same is not a charity or luxury but a compensation to the concerned petitioner for the service rendered to the organization. The point is answered accordingly. 21. CONCLUSION In view of the aforesaid analysis, it appears that the petitioner has entered into third round of litigation before this Court and in last two occasions, he has got order of this Court but could not be successful. However, in terms of the above discussions, the writ petition is disposed of with a direction to the opposite party no.3 to pay the arrear salary of the petitioner from 1.4.2001 to 29.10.2005 to him and would deposit the PF contribution, gratuity and leave salary after due calculation with the opposite parties 1 and 2, who would ensure of payment of gratuity and leave salary to the petitioner and deposit of the PF contribution with the opposite party no.4, who would also ensure the payment of PF pension to the petitioner in accordance with law. It is needless to say that if the direction of this Court in W.P.(C) No.1955 of 2002 has been complied, the same be adjusted with the money calculated to be paid to the petitioner. So, the opposite parties are directed to comply the order of this Court by completing the entire process within a period of six months from today failing which the same shall be paid to the petitioner with interest at the rate of 9% per annum from the date of his superannuation till actual payment.