@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe Petitioners have filed the present writ of mandamus in directing the first Respondent/Regional Provident Fund
Commissioner, Tirunelveli to pay the pension legally to be paid to the Petitioners as per Employees'' Provident Funds Pension Scheme, 1995 from
the date of resignation dated 5/3/2003 and 13/10/2003 respectively.
2. According to the learned Counsel for the Petitioners, the Petitioners had joined the services of the second Respondent/Sri Ganapathy Mills
Company Ltd as employees on 19/10/1980. At the time of their joining, they submitted their School Transfer certificates. Their Employees''
Provident Fund Account numbers are TN/273/998 and TN/273/990 respectively. Their Date of Birth as per school Transfer Certificates and also
the Declaration Forms submitted to E.S.I Corporation by the second Respondent are 27/12/1947 and 3/8/1952 respectively. The E.S.I Identity
cards also refer to the date of birth of the Petitioners are 27/12/1947 and 3/8/1952 respectively. In E.S.I Corporation records, the Petitioners date
of birth are entered as 27/12/1947 and 3/8/1952 respectively.
3. The learned Counsel appearing for the Petitioners urge before this Court that the first Respondent/Regional Provident Fund Commissioner,
Tirunelveli has issued circular to all the members of the Employees'' Provident Fund organisation to furnish the revised Form 2 self-declaration form
so as to rectify the defects, if any in the proof of age immediately after the introduction of the Employees'' Provident Funds Pension Scheme. As
directed by the first Respondent, the forms have been duly filled in and sent through the second Respondent with certificates for the proof of age
by the Petitioners. As such the revised Form No. 2 dated 21/2/1997 and 12/4/1997 nomination and declaration form have been sent to the first
Respondent through the second Respondent together with School Transfer Certificates. Moreover, Form -5 of the Employees'' Provident Funds
Scheme, 1952 and the Employees'' Pension Scheme, 1995 have been sent to the first Respondent through the second Respondent wherein the
date of birth of the Petitioners have been mentioned as 27/12/1947 and 3/8/1952 respectively.
4. Advancing his arguments, it is the contention of the learned Counsel appearing for the Petitioners that in case of doubt as to proof of age of the
Petitioners, the first Respondent/Regional Provident Fund Commissioner, Tirunelveli should have clarified with the Petitioners or through the
second Respondent/Sri Ganapathy Mills Company Ltd., in regard to the proof of age of the Petitioners. The first Respondent has not sent any
communication to the Petitioners or to the second Respondent with regard to the proof of age of the Petitioners. The Petitioners are of the firm
belief that proper entries would have been made by the first Respondent as regards the Date of Birth of the Petitioners. After completion of
minimum age of 50 years, the Petitioners are qualified to get the benefit of pension Scheme, since they were worked with the second
Respondent/Sri Ganapathy Mills company Ltd., and resigned from their service on 5/3/2003 and 13/10/2003 respectively, after completion of 55
years, 3 months and 8 days & 50 years respectively.
5. The principal contention projected by the learned Counsel for the Petitioners is that the first Respondent/Regional Provident Fund
Commissioner, Tirunelveli has failed to implement the pension Scheme eligible to the Petitioners and the Petitioners had sent letters to the first
Respondent requesting them to pay the pension under the scheme to which they are eligible. However, the first Respondent/Regional Provident
Fund Commissioner, Tirunelveli has sent reply dated 1/12/2003 and 19/3/2004 respectively informing the Petitioners that in the scheme
certificates, the date of birth of the Petitioners have been recorded as 1/4/1957 and 1/4/1958 respectively.
6. The case of the Petitioners is that the first Respondent/Regional Provident Fund Commissioner, Tirunelveli has made wrong entries in the
scheme certificates and therefore, the second Respondent/Sri Ganapathy Mills Company Ltd., through its letters dated 24/9/2003 and 25/6/2004
respectively addressed to the first Respondent/Regional Provident Fund Commissioner, Tirunelveli has stated that the Petitioners date of Birth has
been wrongly mentioned as 1/4/1957 and 1/4/1958 respectively in the scheme certificates. But the actual date of birth of the Petitioners are
27/12/1947 and 3/8/1952 respectively and as such they are entitled to receive the pension.
7. As a matter of fact, for the letters of the second Respondent/Sri Ganapathy Mills Company Ltd dated 24/9/2003, 15/3/2004, 25/6/2004 and
4/8/2004 respectively, the first Respondent/Regional Provident Fund Commissioner, Tirunelveli has furnished replies dated 8/6/2004 and
30/9/2004 respectively in and by which it is mentioned that in regard to the age once given cannot be changed in future on any account and no
further correspondence will be entertained in this regard. But the second Respondent/Sri Ganapathy Mills Company Ltd., submitted the
justification certificates, Form 5 certificates, ESI identity cards, school Transfer Certificates along with the letters dated 16/1/2005 and 16/12/2004
respectively. All the required documents have been sent by the second Respondent/Sri Ganapathy Mills Company Ltd., to the first
Respondent/Regional Provident Fund Commissioner, Tirunelveli, but the first Respondent has failed to respond to the various letters addressed to
him.
8. The learned Counsel appearing for the Petitioners contend that the first Respondent/Regional provident Fund Commissioner has not disputed
the revised Form No. 2 and thereby accepted the said forms and also the School Transfer Certificates and in as much the Transfer Certificates are
genuine, the Petitioners were under the impression that the first Respondent has accepted the same.
9. The learned Counsel appearing for the Petitioners submit that the first Respondent, who is a quasi-judicial authority in disposing number of
petitions as per Section 7 A of the E.P.F Act and also to pass orders under other provisions of the Act has failed to provide an opportunity to the
Petitioners in accordance with the principles of natural justice.
10. The learned Counsel appearing for the Petitioners expatiating the submissions contend that as per the provisions of the Employees'' Provident
Fund Scheme, 1995 under paragraph 16 - A of the Employees'' Pension Scheme, 1995 none of the pension benefits under the Scheme shall be
denied to any member or beneficiaries for want of compliance of the requirements by the employer.
11. Apart from the above, it is the plea of the Petitioners that on the date of resignation, the Petitioners had rendered 55 years, 3 months and 8
days of service & 51 years 2 months and 10 days of service respectively and hence as per the Employees'' Pension Scheme, since they had
crossed 50 years of age as per para 12 (7) of the said Scheme, they are eligible to receive the pension at 3% reduced pension. But this aspect of
the matter has not been appreciated by the first Respondent/Regional Provident Fund Commissioner, Tirunelveli in proper perspective which has
resulted in serious miscarriage of justice and therefore, prays for allowing the writ petitions in the interest of justice.
12. Per contra, it is the submission of the learned Counsel for the first Respondent/Regional Provident Fund Commissioner, Tirunelveli that the
Petitioners being employees of the second Respondent/Sri Ganapathy Mills Company Ltd., which is an establishment covered under the
Employees Provident Fund and Miscellaneous Provisions Act, 1952 and that they were enrolled to the Employees'' Provident Fund with effect
from 1/4/1981 and their P.F. A/c Nos are TN/273/998 and TN/273/990 respectively. The age of the Petitioners as on 1/4/1981 was 24 years
and 23 years respectively as per the information provided by their employer through statutory returns at the time of enrolment and therefore, their
date of Birth have been arrived at as 1/4/1957 and 1/4/1958 respectively.
13. The learned Counsel appearing for the first Respondent submitted that the Petitioners had resigned from their service on 5/3/2003 and
13/10/2003 respectively and on receipt of the claim applications, as far as the Petitioner in W.P. (MD) No. 6382 of 2005 is concerned, his
provident fund account has been settled partly during July 2003 and as far as the Petitioner in W.P. (MD) No. 6384 of 2005 is concerned, his
provident fund account has been settled partly during January 2004 and full and final payment was made during August 2004. Moreover, the claim
in Form 10 D submitted by the Petitioners have been processed under a Scheme Certificate bearing Nos. 24481 and 26969 have been issued on
14/10/2003 and 19/3/2004 respectively as per the provisions under paragraph 12 (8) of Employees Pension Scheme, 1995 because of the reason
that they had not attained the minimum age of 50 years as on the date of submission of claim applications to receive reduced pension.
14. Continuing further, the Petitioners in their letters dated 19/11/2003 and 25/6/2004 respectively have requested for the change of their date of
birth from 1/4/1957 to 27/12/1947 & 1/4/1958 to 3/8/1952 respectively. However, they have been informed through their letters dated
1/12/2003 and 13/9/2004 respectively issued by the first Respondent that the age furnished at the time of joining the Mills/establishment cannot be
changed at a later point of time. The second Respondent/Sri Ganapathy Mills Company Ltd., through its letters dated 15/3/2004 had mentioned
that 27/12/1947 is the correct date of birth of the Petitioner in W.P. (MD) No. 6382 of 2005 and it is necessary that the Petitioner in W.P. (MD)
No. 6382 of 2005 has to avail the pension benefits in time. Again, the second Respondent has been informed as per letters dated 8/6/2004 and
2/11/2004 respectively of the first Respondent that the age once given cannot be changed at a subsequent point of time. Legal notices dated
19/4/2005 and 11/4/2005 respectively had been sent by the Petitioners to the first Respondent/Regional provident Fund Commissioner, Tirunelveli
and a suitable reply has been sent by the first Respondent through its letters dated 8/6/2005 and 8/7/2005 respectively informing that the age once
furnished by the employer in the statutory returns at the time of enrolment in E.P.F cannot be changed or altered later.
15. The learned Counsel appearing for the first Respondent contends that on introduction of Employees Pension Scheme, 1995 with effect from
16/11/1995 all the members under the said Scheme were required to execute Form 2 (revised), so as to furnish the complete details of family
members and also nominee for the purpose of the scheme and indeed the Petitioners had submitted nomination and declaration Form 2 dated
21/2/1997 in and by which the Date of Birth of the Petitioners has been mentioned as 27/12/1947 and 3/8/1952 respectively and since nearly, 6
lakhs accounts of Provident Fund subscribers are there, it is practically impossible to inform each and every member.
16. The Head Office of the first Respondent has issued instructions that the date of birth furnished by the existing members of Family Pension
Scheme, 1971 in Form 2 (revised) after instruction of Employees Pension Scheme, 1995 shall not be taken and only the age/date of birth already
furnished in the statutory returns at the time of enrolment is to be taken for computing benefits as per Employees Pension Scheme, 1995. Form 2 is
not the statutory return prescribed for changing or altering the date of birth already furnished.
17. The Petitioners as per the information available on the source document Form 9 will be attaining the age of 50 years only on 1/4/2007 and
1/4/2008 respectively. Return Form No. 5 is a monthly return to be submitted by the Employer, furnishing the details of employees enrolled to the
Employees'' Provident Fund Scheme, 1952 during particular month. On receipt of claim in Form 10 -D, as the Petitioners had not attained the
minimum age of 50 years, Scheme Certificate dated 14/10/2003 and 19/3/2004 respectively mentioned in paragraph 12 (8) of Employees Pension
Scheme 1995 have been issued. The Petitioners through their letters dated 19/11/2003 and 25/6/2005 respectively requested to change their date
of birth.
18. Added further, the particulars furnished in the nomination and declaration Form 2 is only for updating the details of family members and
execution of nomination for the purpose of paying nominee pension and it is not practically possible to inform each and every member.
19. The core contention put forward on the side of the first Respondent/Regional Provident Fund Commissioner, Tirunelveli is that the date of
birth/age particulars provided by the existing members of the Family Pension Scheme, 1971 as on 15/11/1975 cannot be changed and any change
in the particulars after the introduction of Employees Provident Fund Scheme, 1995 i.e., after 16/11/1995 cannot be accepted. In short, the date
of birth/age particulars provided at the time of enrolment alone shall be taken into account for the purpose of computing various benefits under the
Scheme. Form No. 2 is a nomination and declaration form which can be submitted by the Provident Fund members whenever they want to file
nomination or they want to change the existing nomination. The particulars furnished in the nomination declaration Form 2 is only for updating the
details of family members etc. The Petitioners will be attaining the age of 50 years on 1/4/2007 and 1/4/2008 respectively only. He can draw
reduced pension as provided under paragraph 12 (7) only from 1/4/2007 and 1/4/2008 respectively. Hence, they have been issued with the
Scheme certificates in accordance with the provisions of paragraph 12 (8) of Employees'' Pension Scheme, 1995.
20. The date of birth particulars furnished at the time of enrolment cannot be altered or changed at a later point of time and that too after leaving
the service. In this connection, the learned Counsel appearing for the first Respondent/Regional Provident Fund Commissioner, Tirunelveli relies on
the judgment of the Honourable Supreme Court in Civil Appeal No. 6142 of 2000 {arising out of SLP (Civil) No. 14116 of 1999} that the date
of birth cannot be changed long after joining the service and the said judgment will apply squarely to the present facts and circumstances of the
cases.
21. The second Respondent/Sri Ganapathy Mills Company Limited, in counters filed in W.P.M.P. No. 6926 and 6928 of 2005 in W.P. (MD)
Nos. 6382 and 6384 of 2005 respectively as among other things mentioned that in the School Certificates, the Petitioners date of birth is
mentioned as 27/12/1947 and 3/8/1952 respectively and that the second Respondent/Sri Ganapathy Mills Company Ltd., is on the firm belief that
proper entries would have been made by the first Respondent/Regional Provident Fund Commissioner, Tirunelveli as to the date of birth of the
Petitioners and on the date of resignation from the second Respondent, the Petitioners had completed the age of 50 years and as such the
Petitioners are eligible to receive the pension from the first Respondent as per Employees Pension Scheme, 1995.
22. The contention of the second Respondent/Mills as seen from the counters is that the first Respondent/Regional Provident Fund Commissioner
ought to have considered the genuineness of the case of the Petitioners and in fact has summarily rejected the letters of the second
Respondent/Mills furnishing all the documents and the first Respondent has to act necessarily in terms of the provisions of Employees Pension
Scheme, 1995 under paragraph 16 A of the Employees Pension Scheme, 1995.
23. The learned Counsel appearing for the first Respondent/Regional Provident Fund Commissioner, Tirunelveli relies on the decision of
Honourable Supreme Court in G.M. Bharat Coking Coal Ltd., v. Shib Kumar Dushad and Ors. reported in 2001 LLR 74, wherein it has held that
Employee filing a writ petition claiming that his Date of Birth to be corrected in service records as 9/2/1946 as mentioned in certificate acquired by
him, it is specifically mentioned that in case of dispute over the Date of Birth of an existing Employee, who has neither a Matriculation Certificate
Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the Date of Birth to be authentic, the
employer is to refer the matter to the Medical Board and therefore, no fault can be found with the action taken by the Appellant to refer the case of
the Respondent to the Medical Board and the Medical Board as laid down in the instructions, is to consider the matter on the evidence available
with the colliery management in accordance with the requirement of medical jurisprudence. Further, in the present case, the Medical Board
determined the age of the Respondent to be 52 years in 1998 and the employer (Appellant) accepted such determination and there was hardly any
scope for the High Court to interfere with the Date of Birth as determined by the employer (Appellant herein) and issue of writ of mandamus that
the date as claimed by the employee should be accepted. Consequently, the judgment of the High Court was set aside.
24. In the revised Form 2 under the caption nomination and declaration form, the Petitioners date of birth is mentioned as 27/12/1947 and
3/8/1952 respectively. Even in paragraph 36 (2) (a) and (b) of the Employees Provident Funds Scheme and in paragraph 20 (2) of the
Employees'' Pension Scheme, 1995, pertaining to the return of employees qualifying for membership of Central Provident Fund, Employees
Pension Fund and Employees Deposit link Insurance Fund to be sent to the Commissioner with Form 2, the date of birth of the Petitioners is
mentioned as 27/12/1947 and 3/8/1952 respectively. However, in the letters of the second Respondent/Mills dated 15/3/2004 and 25/6/2004
respectively addressed to the first Respondent/Regional Provident Fund Commissioner, Tirunelveli it is inter alia mentioned that ""actually the date
of birth of the Petitioners is mentioned as 27/12/1947 and 3/8/1952 respectively and there are no past records available in their office pertaining to
the Employees Pension Scheme, 1995 and therefore, the second Respondent has requested to amend the date of birth of the Petitioners as
27/12/1947 and 3/8/1952 respectively to avail the pension benefits in time. The first Respondent through its Assistant Accounts Officer dated
8/6/2004 and 13/9/2004 respectively had sent replies to the second Respondent/Mills that as far as their age is concerned, once given by a
member cannot be changed in future on any account and that no further correspondence in this regard shall be entertained. Again, the second
Respondent/Mills has sent a reply to the first Respondent/Regional Provident Fund Commissioner, Tirunelveli dated 16/1/2005 and 16/12/2004
respectively that as per their records, the Petitioners Date of Birth is mentioned as 27/12/1947 and 3/8/1952 and the ESI Identity Card xerox
copies also mentions the Date of Birth of the Petitioners as 27/12/1947 and 3/8/1952 respectively and therefore, requested to disburse the pension
to the Petitioners at the earliest.
25. It is not in dispute that the Petitioners/members had issued a Lawyers'' notices dated 19/4/2005 and 11/4/2005 respectively to the first
Respondent/Regional Provident Fund Commissioner, Tirunelveli inter alia stating that the Petitioners after completing 23 years of service is not able
to receive the benefits of Employees Provident Fund benefits and even as per the Scheme Certificates, they have to wait for 10 years to receive
their position and the action of the first Respondent is in violation of Employees Provident Fund Act and principles of natural justice and amount to
deficient service and therefore, has called upon the first Respondent to disburse the pension with effect from 30/10/2003.
26. To the Lawyers'' notices dated 19/4/2005 and 11/4/2005 respectively issued by the writ Petitioners, the first Respondent/Regional Provident
Fund Organisation have sent replies dated 8/6/2005 and 8/7/2005 stating that the Dsate of Birth of the Petitioner in W.P. (MD) No. 6382 of 2005
has been arrived as 1/4/1957 and the same has been furnished in the Scheme Certificate No. 24481 and the particular of the members'' age once
furnished by the Employer in the statutory returns at the time of enrolment cannot be altered later and that too after leaving the service and after
settlement of accounts.
27. On a careful consideration of the respective contentions, this Court is of the considered view that the age of the Petitioner in W.P. (MD) No.
6382 of 2005 has been given as 24 years as on 1/4/1981 by his employer namely the second Respondent/Mills in the statutory returns submitted
at the time of enrolment of the Petitioner and therefore, the date of birth of the Petitioner in W.P. (MD) No. 6382 of 2005 has been arrived as
1/4/1957 and the same has been mentioned in the Scheme certificate No. 24481.
28. The request of the Petitioners in the present writ petitions is that they are the sole bread winner of their respective families and they are now
without employment and as per paragraph 16 A of the Employees Pension Scheme, 1995 and as per the provisions of Employees Pension
Scheme, 1995, the pension benefits under the scheme shall not be denied to any member or beneficiary for want of compliance with the
requirement by the employer and since the first Respondent/Regional Provident Fund Commissioner, Tirunelveli has not acted in terms of the
Provident Fund Scheme and the Employees Provident Fund Act, the writ petitions have to be allowed and that the Petitioners have to be paid the
pension to which legally, they are entitled to.
29. The learned Counsel appearing for the first Respondent/Regional Provident Fund Commissioner invites the attention of this Court to paragraph
16 of the Employees Family Pension Scheme, 1971 in and by which, it is stated as follows:
Every employer in relation to a factory or other establishment to which the Act applies or is applied hereafter shall furnish to the Regional
Commissioner, particulars of all the branches and departments, owners, occupiers, Directors, partners, managers or any other pension or persons
who have the ultimate control over the affairs of such factory or establishment and also send intimation of any change in such particulars within
fifteen days of such change, to the Regional Commissioner by Registered Post
and in the said case, the same has not been done by the second Respondent/Mills and therefore, at a later point of time, it is not open to the
Petitioners to seek for alteration of change of date of birth.
30. On a perusal of paragraph 16 A of the Employees Pension Scheme, 1995 speaks of guarantee of Pensionary benefits and as per the Scheme
of pensionary benefits cannot be denied to any member or a beneficiary for non-compliance of requirements by the employer under sub-paragraph
(1) of paragraph 3 provided, however, that the employer shall not be absolved of his liabilities under the Scheme.
31. As per paragraph 14 (1) of Employees'' Pension Scheme, 1995 if a member has not rendered the eligible service prescribed in paragraph 10
on the date of exit, or on attaining 58 years of age, whichever is earlier, he shall be entitled to a withdrawal benefit as laid down in Table ''D'' or
may opt to receive the scheme certificate provided on the date of he has not attained 58 years of age.
32. This Court aptly points out that in the decision in Convent of Jesus and Mary v. Regional Provident Fund Commissioner,Dehradun reported in
2005 LLR 517, it is held that ''for redressal of a grievance, an employer can file an appeal before the appellate Tribunal under the Employees''
Provident Fund and Miscellaneous Provisions Act, instead of a writ petition in the High Court.
33. It is to be noted that a review petition filed within the prescribed period against an order of the Provident Fund Commissioner is to be decided
on merits as per the decision in Sinero Hotels (P) Ltd. v. Regional Provident Fund Commissioner, Panaji, Goa, reported in 2005 LLR 919.
34. At this stage, this Court worth recalls the decision of the Honourable Supreme Court in Ugra Chandra Mishra Vs. Union of India (UOI) and
Others, , wherein it is laid down that ''a member of Employees'' Provident Fund having not exercised his option for Employee''s Family Pension
Scheme, 1971, in terms of its paragraph 4 read with Form I, cannot claim that he had automatically become the member of Employee''s Family
Pension Scheme.
35. As far as the case of the Petitioner in W.P. (MD) No. 6382 of 2005 is concerned, on receipt of claim in Form D inasmuch as the Petitioner
has not attained the minimum age of 50 years as on 14/10/2003 and the first Respondent on receipt of claim in Form 10 (D) has issued Scheme
Certificates in accordance with the provision under paragraph 12 (8) of Employees Pension Scheme, 1971, the Petitioner has not completed 50
years of age and any change in particulars after introduction of Employees'' Provident Funds Scheme after 16/11/1995 cannot be accepted by the
first Respondent and also the age provided by the Petitioner at the time of his enrolment to the Employees'' Provident Fund Scheme, 1952 cannot
be changed.
36. As far as the Petitioner in W.P. (MD) No. 6384 of 2005 is concerned, on receipt of claim in Form 10 (D) and since the Petitioner has not
attained the minimum age of 50 years, the Scheme Certificate dated 19/3/2004 as provided under paragraph 12 (D) of Employees Pension
Scheme, 1995 has been issued and the employer viz., the second Respondent/Mills as per letter dated 7/10/2004 has only furnished a fresh Form
5 instead of furnishing a copy of Form 5 submitted the original and also not furnished the justification for the age already furnished to the office of
the first Respondent and therefore, the request for change of Date of Birth has not been accepted and the same was informed as per letter dated
2/11/2004.
37. Therefore, the aspect of considering the documents furnished by the Petitioners after the introduction of Employees Pension Scheme, 1995
does not arise on any score. Indeed, the Petitioner draw or reduced Pension as per paragraph 12 (7) only from 1/4/2007 and therefore, they have
been issued with the Scheme Certificate in accordance with the provisions of paragraph 12 (8) of Employees Pension Scheme. To put it precisely,
the date of birth furnished by the Petitioners in a fresh Form 2 executed by an existing member under Family Pension Scheme, 1971 as on
15/11/1995 is not to be taken into account as per the existing instructions, as informed by the first Respondent/Regional Provident Fund
Commissioner.
38. In view of the qualitative and quantitative discussions mentioned supra and also this Court taking note of the entire gamut of the facts and
circumstances of the case in an integral manner comes to an inescapable conclusion that the date of birth/age provided by a member/Petitioner at
the time of enrolment of Employees'' PF cannot be changed by him at a subsequent point of time and that too the Petitioners after leaving the
service. Viewed in that angle, the writ petitions filed by the Petitioners san merit and resultantly, the writ petitions fail.
39. In the result, the writ petitions stand dismissed, leaving the parties to bear their own costs. Consequently, the connected Miscellaneous
Petitions are also dismissed.