BARIN GHOSH, C. J. (Oral)

The learned counsel, appearing on behalf of respondent No. 1/writ petitioner, who is dead, as well as the heirs of respondent No. 1, submits that his clients have no objection to the Application for condonation of delay in filing the Substitution Application being allowed and also the Substitution Application being allowed. We have considered the averments made in the Application for condonation of delay in filing the Substitution Application and, being satisfied with the sufficiency of the reasons furnished for the delay, allow the same. There is no dispute that respondent No. 1 has died and her heirs have been sought to be brought on record by substitution. We, accordingly, allow the Application for substitution. Let the amendment be effected within one week.

2. The learned counsel appearing on behalf of the respondents also do not wish to file any objection to the Application for condonation of 41 days’ delay in preferring the appeal. We have also considered the averments made in the Application and, being satisfied with the sufficiency of the reasons furnished for the delay, allow the same.

3. Heard learned counsel for the parties.

4. The husband of the original respondent No. 1/writ petitioner was an employee of the Uttar Pradesh Khadi and Village Industries Board, i.e. the appellants herein. He became such an employee before 30th December, 1989. On 30th December, 1989, the Uttar Pradesh Khadi and Village Industries Board Act, 1960, was amended. By that amendment, provision for payment of pension to the employees of the Khadi Board had been made. In terms thereof, the employees had to give option for pension with General Provident Fund scheme or for Employees’ Provident Fund scheme. Under the General Provident Fund scheme, the employee, alone, makes the contribution. Under the Employees’ Provident Fund scheme, the employer as well as the employees make contribution. While effecting such amendment, it was provided that, if an employee fails to give his option for either of them, it would be deemed that the employee concerned has opted for pension scheme with General Provident Fund. The husband of the original respondent No. 1/writ petitioner died in harness, whereupon, appellant Khadi Board purported to give some amount to the original respondent No. 1/writ petitioner on account of Employees’ Provident Fund and Group Insurance and held out that, that much and nothing further she is entitled to. This aspect of the matter was brought to the notice of this Court by filing a writ petition. Since there cannot be any estoppel against the statute, nor waiver against the same, the Court has allowed the writ petition. Aggrieved thereby, the present appeal has been preferred.

5. The fact remains that, nowhere in the counter affidavit filed to the writ petition, nor in the grounds of appeal, it has been contended that the husband of the original respondent No. 1/writ petitioner had opted to remain in the Employees’ Provident Fund scheme. That being the situation, there is no scope of interference, except that payment already made, purporting to be on account of Employees’ Provident Fund and Group Insurance, which is no part of Pension-cum-General Provident Fund, may be recovered from the pensionary and General Provident Fund dues. With the modification as above, we dispose of the appeal and direct that the payment due be calculated and paid within a period of three months from the date of production of a certified copy of this order.