Gouri Shankar Mishra And ANR v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.10955 of 2013 ======================================================

1. Gouri Shankar Mishra S/O Late Jibach Mishra Resident Of MohallaKashipur, P.O.- Samastipur, P.S.- Samastipur Town, Distt.- Samastipur

2. Mandakini Devi W/O Shiv Shankar Mishra Resident Of MohallaKashipur, P.O.- Samastipur, P.S.- Samastipur Town, Distt.- Samastipur .... .... Petitioner/s

Versus

1. The State Of Bihar

2. The Principal Secretary The Department Of Co-Operative, Government Of Bihar Patna

3. The Employees Provident Fund Organization, Bhimajee Cama Place, New Delhi- 66, Represented Through Its Secretary

4. The Employees Provident Fund Commissioner, Regional Office, Patna, Bihar

5. The Employees Provident Fund Commissioner, Regional Office, Muzaffarpur, Bihar

6. The Laheriasarai-Samastipur-Daulatpur Central Co-Operative Bank Ltd. Presently Known As The Darbhanga District Central Coopearative Bank Ltd., Laheriasarai represented through its Liquidator

7. The Liquidator, The Laheriasarai-Samastipur-Daulatpur Central CoOperative Bank Ltd. Presently Known As The Darbhanga District Central Cooperative Bank Ltd. Laheriasarai

8. The Samastipur District Central Cooperative Bank Ltd. Samastipur, Represented Through Its Managing Director, The Samastipur District Central Cooperative Bank Ltd. Samastipur

9. The Managing Director, The Samastipur District Central Cooperative Bank Ltd. Samastipur .... .... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Rajeev Ranjan For the Respondent/s : Mr. Prashant Sinha Mr. Sanjay Kumar AC to SC 1 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 23-09-2015 Heard Sri Rajeev Ranjan, learned counsel for the petitioners, learned AC to SC No. 1, Sri Prashant Sinha, learned counsel, who has appeared on behalf of the Respondent No. 3 to 5/ Employees Provident Fund Organization and Sri Sanjay

2/5 Kumar, learned counsel, who has appeared on behalf of the Respondent No. 8 and 9.

Two petitioners, who claim to be son and daughter- inlaw of one Late Jibach Mishra, have approached this Court invoking its writ jurisdiction to direct the Respondent No. 3 to 5 to pay entire dues of Provident Fund of Late Jibach Mishra. Late Jibach Mishra was earlier employed in the LaheriasaraiSamastipur- Daulatpur Central Co-operative Bank Ltd. presently known as Darbhanga District Central Co-operative Bank Ltd., Laheriasarai, which was covered under the scheme of Employees' Provident Funds And Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act 1952"). The said Establishment was provided the Fund Code bearing No. BR/1752. It is case of the petitioners that father of the petitioner no. 1 namely, Late Jibach Mishra retired in the month of January, 1985 and died in the month of September, 1985.

At later stage Darbhanga District Central Co-operative Bank Limited, Laheriasarai was bifurcated into two identity i.e. Darbhanga District Central Co-operative Bank Ltd., Laheriasarai and Samastipur District Central Cooperative Bank Ltd., Samastipur. It has been pleaded that services of late Jibach Mishra was transferred to the Samastipur District Central Co-operative Bank Ltd.

3/5 the month of January, 1985. By way of referring to Annexure - "1" to the writ petition it has been argued that under the head of Provident Fund, deduction was made from the salary of Late Jibach Mishra. Learned counsel for the petitioners further submits that after bifurcation entire detail was sent by the Darbhanga District Central Co-operative Bank Ltd., Laheriasarai to Samastipur District Central Co-operative Bank Ltd., Samastipur and detail of father of petitioner no. 1 has also been mentioned. According to learned counsel for the petitioners as per paragraph no. 26 of the Employees' Provident Fund Scheme, 1952 membership of Fund shall continue until it is withdrawn. According to learned counsel for the petitioners since membership of the father of the petitioner no.

1 was continuing, it was duty on the part of the Employees Provident Fund Organization to pay the deducted Provident Fund amount, which has not been done. Learned counsel for the petitioners has also tried to impress upon the Court that under the Employees Provident Funds And Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act 1952") certain guidelines have been prescribed which is mandatory in nature. As per Section 8 of the Act 1952 mode of recovery from employer has been prescribed. Similarly under Section 17B liability of Establishment has also been fixed.

4/5 further been argued that in a similarly situated case a bench of this Court on 18.3.2013 in CWJC No. 3781 of 2013 by Order Dated 18.3.2013 had disposed of the writ petition with a direction to Employees Provident Fund Commissioner to take consequential steps for release of Provident Fund amount. On aforesaid grounds a prayer has been made to direct the Respondents to pay the Provident Fund amount of the father of petitioner no. 1 Late Jibach Mishra to the petitioners.

Sri Prashant Sinha, learned counsel for the Respondent /Employees Provident Fund Organization by way of referring to submissions made in the counter affidavit has raised preliminary objection on the ground of maintainability of the writ petition. He submits that the present writ petition has been filed almost after 28 years of death of the employee. By way of referring to the counter affidavit he further submits that the available Form - "24" reflects that no contribution was received from Late Jibach Mishra. The record does not reflect any receipt of contribution for Late Jibach Mishra. He further submits that petitioners' case is not similar to the case i.e. CWJC No. 3781 of 2013. He submits that in said case most of the contributions were received whereas in respect of Late Jibach Mishra there is no record suggesting receipt of any contribution.

5/5 Besides hearing learned counsel for the parties, I have also perused the materials available on record. The writ petition is primarily required to be rejected on the ground that after 28 years from the death of the employee the petitioners' claiming to be legal heirs of the employee have approached this Court without giving any plausible explanation for delayed approach. Secondly, the present writ petition is required to be rejected on the ground that before approaching this Court no demand of justice was made. In the writ petition there is no chit of paper to suggest that before approaching this Court petitioners had approached the authority concerned demanding justice.

So far as the scheme is concerned, there is no doubt regarding the provisions but fact remains that the claim of the petitioners are completely stale and the counter affidavit of Employees Provident Fund Organization suggests that whatever record is available it does not reflect any contribution from the employee concerned. Accordingly, in view of the facts and circumstances particularly the fact that petitioners' have approached this Court belatedly that too, without demanding justice before the authority concerned, I do not find any ground to interfere with the matter. The writ petition stands dismissed.