DEVI PRASAD SINGH, J. - (1.)HEARD Shri Alok Mathur learned Counsel for the petitioner and Shri Sharad Kumar Srivastava learned Counsel for the respondent No. 3.
(2.)THE brief facts of the case are that respondent No. 3 was appointed and joined as Watchmen in Central Storage Depot, Government of India on 12.12.1960 at Kanpur. Later on he was promoted on the post of dusting operator in the year 1972. On coming in to force of Food Corporation of India Act, the services of respondent No. 3 was transferred to Food Corporation of India in accordance to Section 21 of the Food Corporation of India Act. Respondent No. 3 was required to give option as to whether pension and provident fund as applicable in Central Government employees shall apply in his case or he shall adopt the service benefits of Food Corporation of India. According to petitioner, respondent No. 3 had not given any option. However, learned Counsel for the respondent No. 3 submitted that in pursuance to circular dated 11.1.1977, respondent No. 3 had given an option on 29.6.1977, which was duly forwarded by Assistant Manager, (D) Food Corporation of India, Faizabad to its office at Lucknow. It appears that in spite of sending of option by respondent No. 3, when no action was taken by the petitioner and decision was not communicated, another option was given by respondent No. 3 on 21.9.1979, which was duly forwarded by Additional District Manager Shri P. K. Keshwani to Lucknow Office of petitioner. During the pendency of present controversy, respondent No. 3 was retired from service on 31.1.1995.
In the year 1995 after attaining the age of 58 years when respondent No. 3 informed relating to age of superannuation then he had again claimed for continuance in service up to age of 60 years keeping in view the option given 1997 followed by in 1979. However, authorities not heeded to his argument and repeated representation submitted by the respondent No. 3 was not adjudicated keeping in view the option sent by him. On account of dispute relating to age of superannuation keeping in view the option given by respondent No. 3 in the manner referred hereinabove the Central Government had made a reference under Section 10 of the Industrial Dispute Act for adjudication to the Presiding Officer, Labour Court, Kanpur. The Presiding Officer, Labour Court after providing due opportunity of hearing to the parties had recorded a finding that petitioner has given option in the years 1977 and 1979 in the manner discussed hereinabove. Accordingly, he was entitled to attain the age of superannuation at the age of 60 years. Relevant portion from the impugned award rendered by Labour Court is reproduced as under: -

"The case of the workman is that again in the year 1979 he was asked to submit option form in the prescribed proforma and he along with other employees who were posted at Faizabad submitted their option and a photocopy of option form submitted by him on 21.9.1979 is Annexure 3 to the statement of claim. That document has been filed separately which is Ext. W-2 on the record. This option form also appears to be counter signed by Sri P. K. Keshwani, Assistant Manager (QC), FSD Faizabad. This again appears to have been counter signed by District Manager, FCI, Faizabad. This option form also supports the case of the concerned workman that he submitted option again in the year 1979 to the Management of FCI but the Management of FCI did not preserve the same and deprived the concerned workman from the terminal benefits which he was entitled to get on the basis of his option. It appears that when the concerned workman came to know from the letter of Deputy Manager for Zonal Manager, New Delhi dated 24.1.1994 he made representation to the authorities of the FCI that he had given option in the prescribed form within the prescribed time twice and he is wrongly shown not to have give option for retiral benefits applicable to the Central Government and (sic) even the Assistant Manager (A), Faizabad wrote to the Regional Manager that Sri Sayed Khan had given option as required under the notification and he had submitted a photocopy of his option which was being forwarded for necessary action and he was entitled to retire at the age of 60 years according to his option."

(3.)THEREAFTER , Labour Court had again proceeded to held that an employee can not deprive from the benefit which was available in accordance to statutory provisions and for the negligence on the part of officers of the petitioner workmen should not be suffered, to quote: -
"In these circumstances the concerned employee cannot be deprived of the benefits, which he had opted within the prescribed time in the prescribed option form. For the negligence on the part of the officers and employees of the FCI within the prescribed time."