( 1 ) BEING aggrieved against the order rendered in Writ Petition No. 18021 of 2001 dated 12-10-2001, the above appeal was preferred by the Regional Provident Fund commissioner, A. P. and another. The respondent - Deepak Kulkarni is a member of the provident fund by virtue of his employment in M/s. Bakelite Hylam limited. He submitted a claim in Form 10-D of Employees Pension Scheme, 1995 in June, 2000 for payment of disablement pension. He was referred to Regional Medical Board, gandhi Hospital for the medical examination and report and a certificate about the nature and percentage of the disablement to decide the eligibility for disablement pension under the Employees pension Scheme, 1995 which is framed under the Employees Provident Fund and miscellaneous Provisions Act, 1952. The medical Board issued a report and certificate after examining the respondent herein by letter dated 4-4-2001. The Medical Board certified that the case of the respondent is a permanent disability of 75 to 80%. The case of the respondent was rejected by the second appellant since the disability although permanent, is only to the extent of 75 to 80%, but not total i. e. 100%. According to the respondent, the second appellant cannot sit over the decision of the Medical Board and therefore, the order passed by him is contrary to law and contrary to the provisions of Employees Pension Scheme, 1995. Therefore, he preferred the writ petition to declare the proceedings of the second appellant herein dated 21-6-2001 refusing to consider his application for payment of disability pension as illegal and contrary to the provisions of the Employees pension Scheme, 1995.

( 2 ) THE writ petition was resisted by the appellants by filing a counter-affidavit. According to the appellants, the claim of the respondent was correctly rejected and that the respondent was issued with a scheme to enable him to draw the reduced pension on attaining the age of 50 years or otherwise the respondent can opt for withdrawal of provident fund which can be granted immediately. It is further submitted that the appellants are entrusted with the responsibility of extending the benefits only in cases where the conditions laid down in the scheme are fulfilled or otherwise the scheme will become unviable.

( 3 ) IT is further submitted that both paras 2 (xvi) and 15 of the Scheme clearly lay down that the disablement should be permanent and total. The word total has to be taken as 100% in terms of percentage and that the Central office of the appellants had issued a clarification in this regard through their Circular No. Pension/2 (4)/ clarification/96 dated 24-3-1999 to the above effect basing on the opinion of the actuary. It is also submitted that the medical Board assessed the disability of the respondent herein as permanent to the extent of 75 to 80% and that the Medical board is conscious of the percentage of the disability and thus they have not mentioned the word total in their certificate. Thus, it is submitted that the rejection of the claim of the respondent herein is correct.

( 4 ) I. VENKATANARAYANA. J. allowed the writ petition filed by the respondent herein by observing: in the present case, the petitioner suffered 75% to 80% disability. Total disablement is defined under Sec. 2 (1) of the Workmen s Compensation Act, 1923. The work, which the workman was capable of performing at the time of the accident, is material to consider whether it is a case of total disablement in view of the injuries sustained in the accident. If the workman is incapacitated to do all the work which he was capable of performing at the. time of the accident, it is a case of total disablement. In the present case, the workman is totally incapacitated to do the work which he was capable of performing at the time of the accident and, therefore, it can be treated as total disablement. This issue is already settled by this Court in the National Insurance Company Ltd. v. Mohd. Saleem Khan and G. Anjane

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