IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
WP(C) NO. 32643 OF 2015
PETITIONERS:
1 K.P.SURESH KUMAR,
AGED 52 YEARS,
SECRETARY (RETIRED), THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862,
PALODE, KARIMANCODE P.O., THIRUVANANTHAPURAM
2 T.R. PRADEEP KUMAR,
SECRETARY, THE PALODE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE P.O.,
THIRUVANANTHAPURAM
3 P.T. AJITHKUMAR,
ASSISTANT SECRETARY, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
4 M. PREMAKUMAR,
RECOVERY OFFICER,THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
5 R. VAIJU KUMAR,
BRANCH MANAGER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
6 K.C. SANDHYA,
BRANCH MANAGER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
7 V.R. SATHEESHKUMAR,
BRANCH MANAGER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
WP(C) NO. 32643 OF 2015 -2-
8 S. KALAMINI,
SENIOR SUPERVISOR, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO. T
862, PALODE, KARIMANCODE PO, THIRUVANANTHAPURAM
9 M. GIREESH KUMAR,
SENIOR SUPERVISOR, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
10 B.K. AJITH,
JUNIOR SUPERVISOR, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
11 S. JAYAMOLD,
SENIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
12 N. BEENA,
SENIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
13 S. SREEKALA,
JUNIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
14 A. SHANAVAS,
JUNIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE P.O., THIRUVANANTHAPURAM
15 S. BINDHU KUMARY,
SENIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
WP(C) NO. 32643 OF 2015 -3-
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
16 B. UNNIKRISHNAN,
DRIVER,THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
17 M. JAYACHANDRAN NAIR,
ATTENDER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
18 P. GEETHA,
ATTENDER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
19 B.S. VINEESH,
ATTENDER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
20 S. RAJU,
DRIVER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
21 T. SURESHKUMAR,
DRIVERM THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
22 SOUMYA,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
WP(C) NO. 32643 OF 2015 -4-
23 K.G. ANI,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
24 RAGHI,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
25 REENA,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
BY ADVS.
SRI.P.C.SASIDHARAN
SRI.ARAVINDA KUMAR BABU T.K.
RESPONDENTS:
1 STATE OF KERALA,
RERPESENTED BY ITS SECRETARY TO GOVERNMENT,
LABOR AND REHABILITATION DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM-695 001
2 THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION
BOARD,
REPRESENTED BY IT SECRETARY,
KERALA STATE CO-OPERATIVE EMPLOYEE'S PENSION
BOARD, PB NO. 85, KALA NIVAS, T.C. NO. 27/156,
157, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA
COLLEGE, THIRUVANANTHPAURAM-695 001
3 THE REGIONAL PROVIDENT FUND COMMISSIONER,
WP(C) NO. 32643 OF 2015 -5-
EMPLOYEES PROVEIDENT FUND ORGANISATION,
REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN,
PATTOM,THIRUVANANTHAPURAM-695 04
4 THE ASSISTATN PROVIDENT FUND COMMISSIONER,
(PENSION), EMPLOYEES PROVIDENT FUND
ORGANISATION,REGIONAL OFFICE, BHAVISHYA NIDHI
BHAVAN, PATTOM,THIRUVANANTHPAURAM-695 004
5 REGIONAL PROVIDENT FUND COMMISSIONER
(PENSION), BHAVISHYA NIDHI BHAVAN,
14-BHIKAJI CAMA PALACE, NEW DELHI-110 066
6 THE PALODE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD.,
NO. T 862,KARIMANCODE P.O., THIRUVANANTHPURAM.
REPRESENTED BY ITS SECRETARY-695 001
7 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHPAURAM-695 001
BY ADVS.
SRI.S.SUJIN, SC, EMPLOYEES PROVEIDENT FUND
ORGANISATION
SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
EMPLOYEES PENSION BOARD
SHRI.AJIT G ANJARLEKAR
SRI.GOVIND PADMANAABHAN
SRI.MANU V.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 32643 OF 2015 -6-
JUDGMENT
Petitioners 25 in number have approached this Court under Article 226 of the Constitution of India with the following prayers:
"i. issue a writ of certiorari or other appropriate writ, order or direction to quash Exhibits P4, P5 and P6; ii. issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to permit the petitioners to continue under E.P.F. Scheme itself and grant their benefits under the E.P.F. Act and the scheme framed thereunder;
iii. Declare that the action of the respondents 2 and 7 directing the society to bring it under the purview of the Self Financing Pension Scheme is highly unjust and illegal; and v. to issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of the case."
2. The facts leading to filing of the writ petition are that the 1st respondent retired from the service of the 6 th respondent, the Palod Co-operative Agricultural and Rural Development Bank Limited and the other petitioners are WP(C) NO. 32643 OF 2015 -7- employees therein. The society established a Contributory Provident Fund in accordance with the provisions contained in the Kerala Co-operative Societies Act. But society and its employees were contributing amounts to the said provident fund. From 1.1.1982, the employees of the society were enrolled as members of Employees Provident Fund Scheme, 1952 and the balance available to the credit of the employees in the Contributory Provident Fund established by the society was transferred to the Provident Fund established under the Act. Vide Ext.P1 Order dated 19.6.2006, Government by invoking the powers under Section 17 (1C) of the EPF & MP Act, 1952 granted exemption to the primary co-operative societies from the applicability of the provisions of the E.P.F. Pension scheme so as to enable the employees of the societies to enrol as members of the Self Financing Pension Scheme. Petitioners challenged this order before this Court in WP(C) NO. 32643 OF 2015 -8- W.P(C).187 of 2010. The writ petition was dismissed against which W.A.No.741/12 was filed. Writ appeal was disposed of vide Ext.P2, in terms of judgment in W.A.1216/12 declaring that transfer of fund from Employees Provident Fund Scheme, 1952 and Employees Pension Scheme, 1995 of any retired or continuing member should be made only with his/her consent.
3. Vide Ext.P4 communication, the Regional office of the Employees Provident Fund Organisation informed the society that the request made by the 1st petitioner seeking pension cannot be considered. It was also directed therein to furnish the Pension Fund Account Number of all the employees for transferring the accumulations in the Employees' Pension Scheme to the Co-operative Pension Fund Corpus. Thereafter the Kerala State Co-operative Employees Pension Board vide Ext.P5 addressed the society to take steps to submit application to enroll all the WP(C) NO. 32643 OF 2015 -9- employees under their scheme and to allot code number.
4. Learned counsel for the petitioners submitted that the stand of the respondents 2, 3 and 7 in compelling the society to enroll the employees under the Co-operative Pension Board is highly illegal when there is a binding judgment in favour of the petitioners.
5. On the contrary, learned counsel for the respondents 3 to 5 opposed the prayer relying upon the Division Bench judgment of this Court in the review petitions filed on the writ appeal judgment relied on by the petitioners, reported as the Employees Provident Fund Organisation, Thiruvananthapuram Vs. Kerala State Co-operative Employees Pension Board, Thiruvananthapuram (2016 (5) KHC 414).
6. I have heard counsel for the parties and appraised the paper books.
WP(C) NO. 32643 OF 2015 -10-
7. It is a matter of record that the Society is a Primary Society and in this regard the judgment of this Court in W.P.(C) No.13504 of 2011 titled as Soleman N.M., Mudakkuzha Service Co-operative Bank Vs. State of Kerala and Others has been overruled in the Review Petition reported in 2016 (5) KHC 414 (supra), wherein it has been held that the Government had introduced a Self Financing Pension Scheme for establishment of pension fund for payment of pension to the employees of the Co- operative Societies. On advent of the scheme the establishment of the bills remain registered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act 1954 (hereinafter referred to as 'EPF Act' for short). For the purposes of the implementation of the pension scheme introduced by the State Government it was necessary to get exemption and exclusion from the provisions of the EPF Act and Section 17 WP(C) NO. 32643 OF 2015 -11- of the aforementioned Act prescribed the provisions. The contention that EPF Act is more beneficial to the employees and compelled to join the self financial scheme had been negated in paragraph Nos.7 & 8 of the judgment in Employee Provident Fund Organisation (supra). The same are extracted hereinbelow:
"7. The Pension Board constituted under the 'Self Financing Pension Scheme' formulated by the State Government went up in appeal against the above said judgment of the Single Judge. Those writ appeals were disposed of through the judgments which are sought to be reviewed herein. While disposing the writ appeals the Division Bench observed that, it is not necessary to decide the issue as to which among the schemes is more favourable to the employees. It was observed that, it would be safe to leave such question to the decision of the employees, as to which among the Employees Pension Scheme, 1995 or the Self Financing Pension Scheme of the State Government is more beneficial to them. Crux of the issue considered by the Division Bench is that, whether there is any mandatory legal requirement under the KCS Act or under the EPF Act to terminate the existing membership of the employees in the Employees Pension Scheme, 1995 and to transfer the funds to the Self Financing Pension Scheme, with respect to the retired and working employees who are members of the 1952 scheme. Referring to the proviso introduced to S.61(1) of the KCS Act and also to the provisions of the R.58 of the Kerala Co-operative Societies Rules, WP(C) NO. 32643 OF 2015 -12- this Court noticed that, after establishment of the Self Financing Pension Scheme the provisions of EPF Act do not apply to the establishments, which are required to establish a Provident Fund by itself, so as to enable the operation of the Self Financing Pension Scheme But at the same time, this Court noticed that the proviso to R.58(1) as well as sub-rule (4) of R.58 and found that, neither the State Government nor the Board administering the Self Financing Scheme cannot compel transfer of the funds of individual employees, who are members of the Employees Provident Fund Scheme, 1952 and Employees Pension Scheme, 1995, without their consent. But after arriving at such a finding, the Division Bench in the judgment impugned herein observed as follows:
"Since both the appellant as well as Employees Provident Fund Organisation and the Pension Fund operate for the benefit of the employees, we feel those who wish to opt to transfer the membership from the Employees Provident Fund Scheme, 1952 and the Employees Pension Scheme, 1995 can apply for the same and in such cases the EPF Commissioner should transfer the funds. In other words, transfer of fund from EPF Scheme, 1952 and Employees Pension Scheme, 1995 of any retired or continuing member should be made only with his/her consent. It is for the appellant to fix a time limit for exercising the option for retired employees and for serving employees and in all such cases fund will be transferred to the appellant Board from the Employees Provident Fund and Pension Schemes."
8. The Employees Provident Fund Organisation is seeking review of the above quoted observations, by raising contention that exemption / exclusion cannot be granted to individual employees of a registered establishment. Rather, the contention is that, the exemption or exclusion contemplated under S.17(1C) or under S.16(1)(b) can be granted only to an WP(C) NO. 32643 OF 2015 -13- establishment. On behalf of the employee's organisations and the individual employees, who were petitioners in the writ petitions, it is vehemently contended that, their membership in the Employees Pension Scheme, 1995 are not liable to be terminated or that they cannot be compelled to join the Self Financing Pension Scheme. Referring to various provisions in the EPF Act and in the schemes formulated thereunder it is contended that, such transfer can be made only on the basis of consent of the individual employee concerned. In this regard much emphasis was placed on provisions contained in S.17C of the EPF Act, 1952 as well as in Paragraph 13 of the Employees Pension Scheme, 1995. It is also pointed out that, with respect to retired employees benefits available to them or any of their service conditions could not be altered unilaterally, after their retirement, in any manner prejudicial to them. Various legal precedents settled on this point were also pointed out during the argument."
It is prerogative of the Government to grant exemption from the applicability of the EPF Act. Employees cannot compel the authorities from laying challenge to exemption. No ground for interference is made out. Writ petition is dismissed.
Sd/-
AMIT RAWAL
vv JUDGE
WP(C) NO. 32643 OF 2015 -14-
APPENDIX OF WP(C) 32643/2015
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GO(MS) NO 44/06/LBR
DT. 19/5/06
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WA 741/12
DT. 20/7/12
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION SENT BY
THE SOCIETY DT. 11/5/15
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DT.
23/7/15 ISSUED BY THE REGIONAL OFFICE OF THE EMPLOYEES PROVIDENT FUND ORGANISATION EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DT.15/9/15 ALONG WITH ITS TRANSATION EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 8TH RESPONDENT DT.16/9/15 ALONG WITH ITS TRANSATION EXHIBIT P7 TRUE COPY OF THE LIST OF SOCIETIES, RECEIVED UNDER THE R.T.ACT EXHIBIT P8 TRUE COPY OF EPF ELECTRONIC CHALLAN CUM RETURN FOR THE PERIOD FROM AUGUST 2019 WITH REGARD TO THE EPF CONTRIBUTION REMITTED BY THE 6TH RESPONDENT.
EXHIBIT P8(a): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM RETURN FOR THE PERIOD FROM SEPTEMBERT 2019 WITH REGARD TO THE EPF CONTRIBUTION REMITTED BY THE 6TH WP(C) NO. 32643 OF 2015 -15- RESPONDENT.
EXHIBIT P8(b): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM RETURN FOR THE PERIOD FROM OCTOBER 2019 WITH REGARD TO THE EPF CONTRIBUTION REMITTED BY THE 6TH RESPONDENT.
EXHIBIT P8(c): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM NOVEMBER
2019 WITH REGARD TO THE EPF
CONTRIBUTION REMITTED BY THE 6TH
RESPONDENT.
EXHIBIT P8(d): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM DECEMBER
2019 WITH REGARD TO THE EPF
CONTRIBUTION REMITTED BY THE 6TH
RESPONDENT.
EXHIBIT P9: TRUE COPY OF THE PAYMENT CONFIRMATION
RECEIPT FROM AUGUST 2019 ISSUED BY THE EPF ORGANISATION.
EXHIBITP9(a): TRUE COPY OF THE PAYMENT CONFIRMATION RECEIPT FROM SEPTEMBER 2019 ISSUED BY THE EPF ORGANISATION.
EXHIBIT P9(b): TRUE COPY OF THE PAYMENT CONFIRMATION RECEIPT FROM OCTOBER 2019 ISSUED BY THE EPF ORGANISATION.
EXHIBIT P9(c): TRUE COPY OF THE PAYMENT CONFIRMATION RECEIPT FROM NOVEMBER 2019 ISSUED BY THE EPF ORGANISATION.
EXHIBIT P9(d): TRUE COPY OF THE PAYMENT CONFIRMATION RECEIPT FROM DECEMBER 2019 ISSUED BY THE EPF ORGANISATION.
WP(C) NO. 32643 OF 2015 -16-RESPONDENT EXHIBITS EXHIBIT R2(A) TRUE COPY OF THE JUDGMENT DATED 07.02.2012 IN W.P.(C) NO.13504/2011 ALONG WITH W.P.(C) NO.187/2010.
EXHIBIT R2(B) TRUE COPY OF THE JUDGMENT IN R.P.NO.992/2016 AND CONNECTED CASES DATED 27.07.2016.