1 J-WP-123-13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 123 OF 2013
Maharashtra Gramin Bank,
Head Office at Shivajinagar Nanded
through its General Manager
Mr. G.G.Wakade, General Manager. ..... PETITIONER
...V E R S U S...
1. Union of India,
Through the Secretary
Ministry of Labour,
Shram Shakti Bhawan,
Rafi Marg,
New Delhi - 110 001.
2. The Central Provident Fund
Commissioner, Employees
Provident Fund Organization,
Bhavishya Nidhi Bhawan,
14, Bhikaji Cama Place,
New Delhi 110 006.
3. The Regional Provident Fund
Commissioner, 341,
Bhavishya Nidhi Bhawan,
Bandra (East), Mumbai 400 051.
4. Shri E. S. Gaikwad,
Assistant Provident Fund
Commissioner, (Compl),
Sub Divisional Officer,
Plot No.2, Town Center,
Commercial Area, CIDCO,
Aurangabad 431 003.
4A. Assistant Provident Fund
Commissioner, (Compl),
Sub Divisional Officer,
Plot No.2, Town Center,
Commercial Area, CIDCO,
Aurangabad 431 003.
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5. Maharashtra Regional Rural Bank
Employees Union (Recognized-AIBEA),
Through General Secretary.
6. Maharashtra Gramin Bank Karmachari
Sanghathana (NOBW), Through the
General Secretary.
7. Maharashtra Gramin Bank Employees
Federation, Through the General
Secretary.
8. Maharashtra Gramin Bank Officers
Organization (NOBO) through the
President.
9. Maharashtra Regional Rural Bank
Officers Association (AIBOA)
through the General Secretary.
10. Maharashtra Gramin Bank Officers
Federation, Through the General
Secretary.
Respondents Nos.5 to 10 are
Residents of Nanded,
C/o Maharashtra Gramin Bank,
Head Office, Shivajinagar, Nanded. ... RESPONDENTS
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Shri M. G. Bhangde, Senior Counsel with Shri S. N. Tapdia, Adv. for the petitioner.
Shri R. S. Sundaram, Advocate for the respondent Nos.1, 3, 4 and 4-A.
Shri Uday Dastane, Advocate for the respondent No.6.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
13/07/2017.ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.) ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 3 J-WP-123-13.odt By this writ petition, the Maharashtra Gramin Bank seeks a direction against the provident fund authorities to refund the employers provident fund contribution, paid in excess, with interest @ 18 % per annum. The petitioner has challenged the communications of the Assistant Provident Fund Commissioner rejecting the request of the petitioner for refund of the amount.
Few facts giving rise to the petition are stated thus:- The provisions of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the scheme framed thereunder were made applicable to the petitioner - bank w.e.f. 01/09/1979. As per the provisions of the Act and the scheme, employees provident fund contribution to the extent of 10 % of the salary could have been deducted from the salary of its employees and the bank was required to pay an equal amount towards the employers contribution. On 29/08/1981, a scheme was framed by the petitioner - bank for granting better benefits pertaining to provident fund to its employees and the bank was exempted from the applicability of the provisions of the Act and the scheme. As per the scheme framed by the bank, there was no ceiling on the contribution that could be made by the employees. The petitioner - bank had to make contribution that matched the contribution made by the employees. On 14/10/1991, the provident fund authorities revoked the exemption granted to the bank. The bank, then decided to apply the provisions of the Act and the scheme to its ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 4 J-WP-123-13.odt employees once again, so that deductions could be made from the salary of the employees only to the extent of 10% as per clause 2(f) of the Statutory Scheme. According to the bank, since the exemption was revoked and the petitioner was suffering huge losses due to the scheme that was in operation from 29/08/1981, a notice of change under Section 9-A of the Industrial Disputes Act was given by the petitioner - Bank on 20/06/1998. The employees of the bank were aggrieved by the said notice of change and they served a strike notice on the bank, dated 26/09/1998. The Central Government referred the dispute between the bank and its employees to the Central Government Industrial Tribunal in July, 2001. During the pendency of the proceedings before the Tribunal, the bank continued to deduct the amount as per the scheme of the bank and deduction of the salary to the extent of more than 10 % was made. By the Judgment and Award dated 25/10/2002, the Tribunal held that the action on the part of the bank to reduce the rate of contribution of provident fund of it's employees was not just. The Tribunal held that the workmen of the bank, that had submitted their statement of claim would continue to draw the benefit of getting equal contribution towards provident fund from the bank according to existing practice, without any ceiling on the wages. The award of the Tribunal was challenged by the petitioner in Writ Petition No.2751/2003. While admitting the Writ Petition, the learned Single Judge of this Court directed the petitioner - bank to contribute the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 5 J-WP-123-13.odt provident fund without any ceiling on wages. The Court however, restrained the provident fund authorities from disbursing the amount that was paid by the petitioner - bank to the authorities as per the impugned order, over and above the ceiling limit, to the employees. Therefore, by way of interim relief, the provident fund authorities were restrained from disbursing the part of the amount of contribution of the petitioner - bank that was paid in excess of the ceiling prescribed by Clause 2(f) of the Statutory Scheme. The writ petition was allowed by the learned Single Judge by the Judgment dated 18/09/2008. The learned Single Judge held that the bar of Section 12 of The Employees' Provident Funds and Miscellaneous Provisions Act would not operate, as was held by the Tribunal in the impugned award and the petition would succeed. The learned Single Judge therefore allowed the writ petition by making the rule absolute in terms of prayer clause (1) by which the petitioner - bank had sought for quashing and setting aside of the order of reference made by the Central Government, the award of the C.G.I.T. dated 25/10/2002 and the couple of communications of the provident fund authorities that directed the petitioner to continue with the scheme framed by the petitioner - bank for its employees. Being aggrieved by the Judgment of the learned Single Judge allowing the writ petition, the provident fund authorities and the Union of the employees filed a Letters Patent Appeal. The Letters Patent Appeal bearing No.349/2008 was dismissed by the order dated 14 th November, ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 6 J-WP-123-13.odt 2008 and the Judgment of the learned Single Judge was upheld. The Union of the employees challenged both the judgments of the High Court before the Hon'ble Supreme Court in a Special Leave Petition. The Hon'ble Supreme Court, by the Judgment dated 9 th September, 2011 dismissed the appeal filed by the employees union after holding that the view expressed by the learned Single Judge and affirmed by the Division Bench of the High Court is just, fair, appropriate and in consonance with the provisions of The Employees' Provident Funds and Miscellaneous Provisions Act. After the Hon'ble Supreme Court dismissed the appeal filed by the employees union in September, 2011, the petitioner - bank asked the provident fund authorities to refund their part of the excess contribution that was made after the issuance of the notice of change till the learned Single Judge allowed the writ petition filed by the petitioner. By the impugned communications, the provident fund authorities rejected the request of the bank for refund of the amount on the ground that the voluntary contribution deducted from the employees' salary or wages, as also the contribution of the employer - bank had been credited to the account of the employees as per the statutory returns submitted by the bank. Being aggrieved by the refusal on the part of the provident fund authorities to refund the amount that was paid by the petitioner - bank in excess towards the employers contribution, the bank has filed the writ petition. In the aforesaid set of facts, the petitioner - bank has sought a direction ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 7 J-WP-123-13.odt against the respondent - provident fund authorities to refund the amount that was paid towards the employers contribution, in excess.
Shri Bhangde, the learned senior counsel appearing for the petitioner - bank submitted that as per the interim order passed by the learned Single Judge in Writ Petition No.2751/2003, the provident fund authorities were restrained from disbursing the excess amount that was paid by the bank towards the employers contribution. It is submitted that by the interim order dated 10 th February, 2004, the provident fund authorities were restrained from disbursing the part of the amount of contribution of the petitioner - bank that was paid over and above the ceiling prescribed by Clause 2(f) of the Statutory Scheme. It is submitted that though the C.G.I.T. had held that the action on the part of the petitioner - bank of reducing the rate of contribution towards the provident fund was not just and the workmen - employees would continue to draw the benefit of getting equal contribution towards the provident fund from the bank as per its existing practice, the award of the Tribunal was set aside by the learned Single Judge. It is submitted that the learned Single Judge had not only set aside the award of the Tribunal but had also quashed and set aside the order of the Central Government referring the matter to the Industrial Tribunal dated 20/07/2001, as also the communications of the provident fund authorities asking the petitioner - bank to continue paying higher contribution without any ceiling. It is submitted that the declaration ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 8 J-WP-123-13.odt granted by the learned Single Judge that the bar of Section 12 of The Employees' Provident Funds and Miscellaneous Provisions Act would not operate and that the notice of change was legal would relate back to the date of issuance of the notice of change, dated 26/09/1998. The learned counsel relied on the Judgments of the Hon'ble Supreme Court, reported in (2003) 4 SCC 147 and (1972) 3 SCC 684 to substantiate his submission. It is submitted that a Court would generally adjudicate upon the antecedent rights of the parties. It is submitted that when a Court decides that a particular interpretation given to a particular provision earlier was not legal, it declares the law as it stood from the beginning, as per its decision. It is submitted that by the interim order of the learned Single Judge, the provident fund authorities were restrained from disbursing the excess contribution made by the petitioner - bank to the employees and the said restrainment order clearly shows that the Court desired that the amount paid by the petitioner - bank towards its contribution, if found to be in excess should be returned to the petitioner - bank in case it succeeds. It is submitted that the reliance placed by the counsel for the employees on the Judgment of the Hon'ble Supreme Court, reported in AIR 1960 Supreme Court 879 for denying the relief to the petitioner is ill- founded as in the said decision, the Hon'ble Supreme Court was only required to consider whether in the circumstances of that case, the employer was guilty of altering the conditions of service of the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 9 J-WP-123-13.odt employees on the basis of the notice of change during the pendency of the proceedings. It is submitted that the law laid down in the said Judgment cannot be made applicable to the case in hand.
Shri Sundaram, the learned counsel for the provident fund authorities denied the claim of the petitioner - bank. It is submitted that no doubt, the authorities were restrained from disbursing the excess amount paid by the petitioner - bank towards its contribution but as 216 employees of the bank had retired during the pendency of the proceedings before the learned Single Judge, their provident fund accounts were settled and the excess contribution made by those employees and the employer - bank was credited in the bank accounts of the employees. It is submitted that in view of the Section 10 of The Employees' Provident Funds and Miscellaneous Provisions Act, any amount standing in the fund to the credit of the employees is not capable of being attached and hence it would not be possible for the provident fund authorities to recover the amount that was credited to the bank accounts of the retired employees with the consent of the bank. It is submitted that at the time of retirement of the employees a Form is required to be signed by the employer and the employee and submitted to the provident fund authorities and since the petitioner - bank had signed the Forms in respect of the retired employees without raising any objection against the disbursement of the excess amount, the provident fund authorities had released the excess amount in ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 10 J-WP-123-13.odt favour of the retired employees. It is stated that it is not possible for the provident fund authorities to recover the amount that may have been paid to the employees in excess under a bona fide belief that it was liable to be paid. The learned counsel sought for the dismissal of the writ petition.
Shri Dastane, the learned counsel for the employees union opposed the prayer made in the writ petition, particularly on two grounds. The learned counsel took this Court through the provisions of Section 9-A and 33 of the Industrial Disputes Act to canvass that when a notice of change is given by the employer, the conditions of service of the employees - workmen would remain unchanged during the pendency of the proceedings either before the Conciliation Officer or a Court or Tribunal. It is submitted that immediately after the notice of change was given by the petitioner - bank on 26/09/1998, the employees union had raised a dispute and the Central Government had referred the matter to the Tribunal. It is submitted that in view of the provisions of Section 33 (1) (a) of the Industrial Disputes Act, the petitioner - bank could not have altered the conditions of service of its employees to the prejudice of the employees, save with the express permission in writing, of the authority before which the proceedings were pending. It is submitted that it is nobody's case that during the pendency of the proceedings before the Conciliation Officer or the Tribunal, permission was granted in writing to the petitioner to alter the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 11 J-WP-123-13.odt condition of making a higher contribution towards provident fund that is, above the ceiling prescribed by Clause 2 (f) of the Statutory Scheme. It is submitted that if the condition of service could not have been altered and the petitioner - bank could not have reduced the amount of contribution by applying the ceiling prescribed by Clause 2 (f) of the Statutory Scheme, the bank would not be entitled to recover what was rightfully contributed for the benefit of the employees under Section 33 of the Industrial Disputes Act. It is submitted that Section 33 of the Industrial Disputes Act injuncts the employer from altering the service conditions and merely because the learned Single Judge had set aside the award passed by the Tribunal and had granted the declaration as claimed by the petitioner - bank, the said declaration could not have had the effect of withdrawing the benefit that was granted in favour of the employees in view of the provisions of Section 33 of the Act. It is submitted that the interim order passed by the learned Single Judge on 10/02/2004 does not create any right in favour of the petitioner - bank. It is submitted that the interim order dated 10/02/2004 favours the employees and not the petitioner - bank as the prayer made by the petitioner for grant of interim relief was rejected. It is submitted that the petitioner would not be entitled to seek a direction against the provident fund authorities to refund the excess amount paid by the petitioner - bank towards the employers contribution as a specific prayer in that regard was not made by the petitioner in the petition filed ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 12 J-WP-123-13.odt before the learned Single Judge. It is submitted that a prayer seeking the refund of the excess amount could have been made in the writ petition presented before the learned Single Judge and since it was not made, the petitioner would not be entitled to make the said prayer by filing this writ petition in view of the principles of constructive res judicata. It is submitted that by placing reliance on the Judgment of the Hon'ble Supreme Court, reported in (1985) 4 SCC 71 that the provisions of a Welfare Legislation should be construed liberally. Also, reliance is placed on the Judgments, reported in (2011) 3 SCC 408 and (2005) 8 SCC 423 to substantiate the submission pertaining to the applicability of the principles of constructive res judicata. Reliance is placed on the Judgment, reported in (2005) 8 SCC 423 to canvass that an interim order would cease to have effect after the final order is passed by the Court and hence, the interim order passed by the learned Single Judge dated 10/02/2004 restraining the provident fund authorities from disbursing the amount of contribution of the employer
- bank, over and above the ceiling prescribed by Clause 2 (f) of the Statutory Scheme to the employees would cease to have effect, no sooner than the learned Single Judge allowed the writ petition on 18/09/2008 without confirming the interim order.
On hearing the learned counsel for the parties, it appears that after the exemption from the provisions of The Employees' Provident Funds and Miscellaneous Provisions Act and the scheme was ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 13 J-WP-123-13.odt granted to the petitioner - bank on 29/08/1981, the petitioner had evolved the scheme in which there was no ceiling on the contribution payable by the employees towards the provident fund, as prescribed by Clause 2 (f) of the Statutory Scheme. Though the exemption granted to the petitioner - bank was revoked by the provident fund authorities on 14/10/1991, the petitioner - bank continued to deduct the amount of contribution of the employees from their salary, over and above the statutory limit of 10 % till it decided to change the condition in regard to the payment of contribution in excess of the ceiling prescribed by Clause 2 (f) of the Statutory Scheme by giving a notice of change under the provisions of Section 9-A of the Industrial Disputes Act on 26/09/1998. The employees union raised a dispute before the Conciliation Officer and the Central Government referred the matter to the C.G.I.T. by the order dated 20/07/2001. During the pendency of the proceedings before the Tribunal, the bank continued to deduct the contribution over and above the ceiling prescribed by Clause 2 (f) of the Statutory Scheme from the salary of its employees and contributed equally, as per the scheme of the bank. The Tribunal answered the reference against the petitioner - bank after holding that the action on the part of the bank of intending to reduce the rate of contribution of provident fund of its employees was not just. The Tribunal went on to hold that the employees - workmen that had submitted their statement of claim shall continue to draw the benefit of getting equal contribution ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 14 J-WP-123-13.odt towards provident fund from its employer - bank. What was challenged by the petitioner in the writ petition before the learned Single Judge was the order of the Government making a reference of the dispute dated 20/07/2001 to the CGIT, the award dated 25/10/2002 and the communications of the provident fund authorities that had directed the petitioner - bank to continue paying the contribution that was above the ceiling limit. It would be necessary to reproduce prayer clause (1) in the writ petition at this stage as the learned Single Judge had made the rule absolute in terms of prayer clause (1) that reads thus ;- "Prayer Clause (1) : Quash and set aside the order dated 20/07/2001 (Annexure No.7) passed by the respondent No.1 Union of India, Award dated 25/10/2002 (Annexure No.10) passed by the C.G.I.T., Nagpur, communication dated 13/05/1999 (Annexure No.11) and 27/04/2001 (Annexure No.12) issued by the respondent No.3 and 4 respectively and it be declared that the liability of the petitioner to make payment of Provident Fund is restricted to and is as per the provisions of the Statutory Scheme only."
The learned Single Judge had not only quashed and set aside the award of the Tribunal but had also set aside the order of the Government making a reference of the dispute to the Tribunal, dated 20/07/2001 as also the communications of the provident fund authorities rejecting the prayer of the petitioner - bank of paying its contribution as per the ceiling prescribed by Clause 2 (f) of the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 15 J-WP-123-13.odt Statutory Scheme. The Judgment of the learned Single Judge dated 18/09/2008 was upheld by the Division Bench in the Letters Patent Appeal and both the Judgments of this Court were upheld by the Hon'ble Supreme Court while dismissing the Special Leave Petition filed by the employees union. The Hon'ble Supreme Court held that the order of the learned Single Judge that was affirmed by the Division Bench of the High Court is just, fair, appropriate and in consonance with the provisions of The Employees' Provident Funds and Miscellaneous Provisions Act.
In our view, immediately after the Hon'ble Supreme Court dismissed the petition filed by the employees, it was necessary for the provident fund authorities to refund the bank's contribution that was over and above the ceiling prescribed by Clause 2 (f) of the Statutory Scheme. Before the learned Single Judge, what was sought to be challenged by the petitioner - bank was the order of the Central Government making the reference as also the order of the Tribunal answering the reference against the petitioner - bank. As soon as the prayer made by the petitioner in prayer clause (1) of the writ petition was allowed, the provident fund authorities were obliged to refund the amount that was paid by the petitioner - bank in excess, towards its contribution. No doubt, the provident fund authorities could have waited till the order passed by the learned Single Judge attained finality as it was further subjected to challenge. In the circumstances of the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 16 J-WP-123-13.odt case, it was not necessary for the petitioner - bank to have made a specific prayer for a direction against the provident fund authorities to refund the excess amount to the petitioner - bank as the said prayer was implicit in the prayer made by the petitioner for quashing and setting aside the award passed by the Tribunal, the orders of the provident fund authorities and the order of the Government making the order of reference, specially when the matter arose from the award passed by the CGIT on a reference made by the Central Government. Once it was held by the learned Single Judge that the notice of change given by the petitioner - bank was valid, the bank was entitled to seek the recovery of the excess amount of contribution paid by it. The principles of constructive res judicata would not apply to this case as it was not necessary for the petitioner - bank to specifically make a prayer for refund of the amount, as no sooner than the prayer made in prayer clause (1) of the petition was granted, the provident fund authorities were liable to refund the contribution made by the petitioner - bank in excess of the limit provided by Clause 2 (f) of the Statutory Scheme. It cannot be said that in view of the provisions of Section 33 of the Industrial Disputes Act, since the employer - bank was not permitted to alter the conditions of service of the employees during the pendency of the proceedings before the Tribunal, the petitioner - bank would not be entitled to recover the amount paid by the petitioner - bank in excess of the ceiling prescribed by Clause 2 (f) of the Statutory Scheme. After the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 17 J-WP-123-13.odt Courts have held that the notice of change given by the petitioner - bank on 26/09/1998 was legal and valid, it cannot be said that merely because the petitioner - bank continued to make the contribution in excess of the ceiling prescribed by Clause 2 (f) of the Scheme, the said amount cannot be refunded to the petitioner. It is rightly submitted on behalf of the petitioner - bank that the Judgment, reported in AIR 1960 Supreme Court 879, on which reliance has been placed by the counsel for the employees union cannot be made applicable to the facts of this case. The question before the Hon'ble Supreme Court in the said case was whether the employer therein had contravened the provisions of Section 33 of the Industrial Disputes Act and while answering the said question, the Hon'ble Supreme Court held that the conditions of service do not stand changed when the proposal is made or the notice is given but when the change is actually effected. The Hon'ble Supreme Court held in the circumstances of the that case that while deciding whether an employer has contravened the provisions of Section 33 of the Industrial Disputes Act, it would be necessary to ascertain the time, when the change of which the notice under Section 9-A is given, is actually effected. The Hon'ble Supreme Court held while considering the question of contravention of the provisions of Section 33 of the Act by the employer that the said provisions could be attracted only if at the time of actual effecting of the change, the proceedings are pending before the Tribunal.
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18 J-WP-123-13.odt The principle that the interim relief merges with the final order and that it ceases to have effect after the final order is rendered is well settled but the petitioner - bank has not claimed the relief on the basis of the interim order. The petitioner - bank has sought the relief on the basis of the final order passed by the learned Single Judge, by which the award passed by the Tribunal was set aside. The interim order is referred to in this case, particularly with a view to substantiate the submission that the amount paid by the petitioner - bank in excess of the prescribed limit in Clause 2 (f) of the Statutory Scheme was required to be retained in the custody of the provident fund authorities till the matter was finally decided. If the Court did not intend that the excess amount should be returned to the petitioner - bank on its success in the writ petition, there may not have been a restrainment order against the provident fund authorities, not to disburse the amount to the employees during the pendency of the writ petition. We are surprised that despite the restrainment order of this Court, dated 10/02/2004 in Writ Petition No.2751/2003, the provident fund authorities have high-handedly credited the excess amount paid by the petitioner - bank towards its contribution for 216 retired employees of the bank, in their bank accounts after their retirement. We are not inclined to accept the submission made on behalf of provident fund authorities that the said amount was released in favour of the employees with the consent of the petitioner - bank. In the additional ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 19 J-WP-123-13.odt affidavit filed by on behalf of the petitioner - bank, it is pointed out by supporting documents that it was conveyed to the provident fund authorities by the petitioner - bank that while releasing the provident fund to its employees, the effect of the interim order of the High Court dated 10/02/2004 in Writ Petition No.2751/2003 should be noted. By the communications that are annexed to the additional affidavit-in-reply filed on behalf of the petitioner, it is pointed out that the provident fund authorities were warned that action of releasing the provident fund to the employees could be taken only in accordance with the interim order of restrainment, dated 10/02/2004. Despite the said warning that is conveyed by affixing a rubber stamp on the Forms in respect of the retired employees, it appears that the provident fund authorities have released, even the amount of the employers contribution that was in excess of the ceiling prescribed by Clause 2 (f) of the Statutory Scheme. If the provident fund authorities have not acted in consonance with the orders passed by the learned Single Judge of this Court on 10/02/2004, only the authorities are to be blamed. While holding that the provident fund authorities would be liable to return the employers contribution that was paid over and above the ceiling prescribed by Cause 2 (f) of the Statutory Scheme, we are not inclined to accept the submission made on behalf of the provident fund authorities that in view of the provisions of Section 10 of The Employees' Provident Funds and Miscellaneous Provisions Act, they would not be entitled to attach the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 20 J-WP-123-13.odt amount standing to the credit of the employees in the fund. The reference to the provisions of Section 10 of The Employees' Provident Funds and Miscellaneous Provisions Act is not well founded. The provisions of Section 10 of the Act would not be applicable in a case like the one in hand. The Judgments, reported in (1972) 1 SCC 814 and (1999) 6 SCC 82, (1985) 4 SCC 71, (2011) 3 SCC 408 and (2005) 8 SCC 423, and relied on by the learned counsel for the employees union cannot be made applicable to the facts of this case. When the notice of change given by the petitioner - bank is held to be valid and legal, there is no question of construing the provisions of the Industrial Disputes Act and The Employees' Provident Funds and Miscellaneous Provisions Act liberally.
For the reasons aforesaid, the writ petition is allowed. The respondents - provident fund authorities are directed to refund the provident fund contribution made by the petitioner - bank in excess of the statutory limit in respect of its employees during the period from 01/11/1998 to 31/10/2008 to the petitioner - bank with statutory interest @ 12 % per annum from the date of payment of the excess contribution, till the date of realization of the amount. Since the amount of Rs.22,00,00,000/- (Rs.Twenty Two Crore) that was deposited by the provident fund authorities in this Court in terms of the interim orders passed in this petition was withdrawn by the petitioner - bank with the permission of this Court, we direct the petitioner - bank ::: Uploaded on - 19/07/2017 ::: Downloaded on - 19/07/2017 23:47:16 ::: 21 J-WP-123-13.odt to adjust the amount to which it is entitled in terms of this order, and return the amount that may be in excess, to the provident fund authorities. If any amount is payable by the provident fund authorities to the petitioner - bank after deducting the sum of Rs.22,00,00,000/-, the same may be paid by the authorities to the petitioner - bank within one month.
Rule is made absolute in the aforesaid terms with no order as to costs.
On the request made by the counsel for the employees union, the part of the interim order dated 16 th December, 2013 that pertains to the undertaking of the petitioner - bank to repay the amount, within a period of seven days would continue for a period of six weeks only.
JUDGE JUDGE
Choulwar
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