Calcutta High Court (Appellete Side)
Sudhamoy Misra vs Union Of India & Ors on 28 April, 2023
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Raja Basu Chowdhury
WPA 26760 of 2022
Sudhamoy Misra
Versus
Union of India & Ors.
For the Petitioner : Mr. Indranath Mitra
For the Union of India : Mr. Rajesh Kumar Shah
For the PF Authorities : Mr. Anil Kumar Gupta
For the Respondent : Mr. Arnab Roy
No. 5, 8 and 9.
Heard on : 18.04.2023
Judgment on : 28.04.2023
Raja Basu Chowdhury, J:
1. The present writ application has been filed, inter alia, praying for
a direction upon the Regional Provident Commissioner, Kolkata
to release the monthly pension of the petitioner.
2. The petitioner had joined as Group-D in West Bengal State Co-
operative Agriculture and Rural Development Bank Ltd., being
the respondent no. 5 herein in the year 1975. The petitioner
enjoyed pensionable service and was covered by the Employees
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Pension Scheme, 1995 (hereinafter referred to as the 'said
Scheme').
3. Mr. Mitra learned advocate appearing in support of the aforesaid
writ application submits that in the year 2011, the respondent
no. 5 had issued a notification dated 26th April, 2011, thereby
offering its employees an opportunity to exercise option, in terms
of paragraph 11(3) proviso of the said Scheme. It is submitted
that while the petitioner was in employment, the petitioner
having come across the above notification, had exercised his
option in terms of paragraph 11(3) proviso of the said Scheme
and thereby had agreed to pay @8.33 per cent as contributions
on his salary exceeding Rs.6500/-.
4. Mr. Mitra, learned advocate, submits that both the respondent
no.5 and the Provident Fund authorities acted on the basis of the
aforesaid option and started realizing the additional Provident
Fund contributions from the petitioner, for the same to be
remitted to the pension fund. It is the petitioner's case that
notwithstanding realizing additional Provident Fund
contributions from both the petitioner and other similarly placed
persons in the employment of the respondent no.5, since the
Provident Fund authorities were not disbursing higher pension
by acting in terms of paragraph 11(3) proviso of the said Scheme,
a representation was made by the respondent no. 5 to the
Regional Provident Fund Commissioner, requesting them to look
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into the matter and to release higher pension to the employees of
respondent no.5 who had since been superannuated. By letter
dated 26th April, 2013, the Provident Fund Authorities rejected
the claim for disbursal of higher pension.
5. Mr. Mitra submits that being aggrieved by the order of rejection,
a writ application was filed before this Court by the West Bengal
State Co-operative Agriculture and Rural Development Bank
Employees' Association which was registered as W.P. 2381 (W) of
2014. By an order dated 20th March, 2014, this Hon'ble Court,
while setting aside the rejection dated 26th April, 2013, directed
the Provident Fund Commissioner to settle the pensionary
benefits of the employees of the respondent no.5, subject to such
employees fulfilling all other requirements.
6. In the interregnum, however, the said Scheme was amended and
paragraph 11(4) of the said Scheme was inserted with effect from
1st September, 2014, thereby permitting the employees who had
been contributing on the salary exceeding Rs.6500/- per month,
to exercise fresh option jointly with the employer, for contributing
on the salary exceeding Rs.15000/- per month, subject to the
employees contributing @1.16 per cent on the salary exceeding
Rs.15000/- as an additional contribution from and out of the
contributions payable by the employees for each month under
the provisions of the Act or rules made thereunder.
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7. By relying on a supplementary affidavit affirmed by the petitioner
on 11th April, 2023, Mr. Mitra submits that consequent upon the
petitioner exercising his option claiming higher pension, the
General Manager of the respondent no.5, under cover of letter
dated 16th July, 2015, had forwarded the documents as sought
for by the Office of the Regional Provident Fund Commissioner,
which included the option forms for deduction of contribution for
higher wages. Mr. Mitra by relying on the letter dated 16th July,
2015, issued by the General Manager of the respondent no.5
addressed to and duly receipted by the Office of the Regional
Provident Fund Commissioner, submits that the petitioner had
duly exercised his option in terms of paragraph 11(4) of the said
scheme which was also acknowledged by the Provident Fund
authorities.
8. The petitioner says that an appeal was carried from the order
dated 20th March, 2014. The order passed by the learned Single
Judge was set aside by the Hon'ble Division Bench of this Court
by an order dated 4th April, 2016, inter alia, by observing as
follows: -
"In order to ascertain this, material to be produced by
the employee and the employer cannot be decided in
the lis initiated at the instance of the association,
particularly when conflicting documents coming forth
before this Court and also in the light of not submitting
proper format for claim of such benefit giving details as
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indicated in the requisite format under the statute and
procedure.
In the light of above practical difficulty we are of the
opinion there cannot be uniform direction to consider all
the members of the association for higher pension
benefit. Each case has to be decided depending upon
establishment of contribution as indicated in the
amended paragraph 11 of the Scheme.
.........................................................
We reserve liberty to be (Sic; read: the) members of the
respondents/writ petitioners to approach the appellant
Authority in terms of proper requisite application and
also place on record requisite information as required in
paragraph 11 of the amended Scheme and the same
shall be considered by the Provident Fund
Commissioner in accordance with the procedure
contemplated after giving opportunity of hearing to the
employees and the employer.
9. Mr Mitra submits that since the petitioner had exercised his
option in terms of paragraph 11(4) of the said Scheme
consequent upon paragraph 11(4) being inserted by notification
dated 22nd August, 2014, the petitioner did not make any further
application in terms of liberty reserved by the Hon'ble Division
Bench of this Court. He says that the aforesaid option exercised
by the petitioner under paragraph 11(4) of the said Scheme was
duly acted upon by the respondent no. 4. By referring to the
communication dated 19th January, 2021, issued by the
Provident fund authorities address to the respondent no. 5, a
copy whereof was marked to the petitioner, it is submitted that
the Provident fund authorities taking note of the option exercised
by the petitioner in terms of paragraph 11(4) of the said Scheme
had called upon the petitioner to deposit a sum of Rs 3,67,727/-
on the basis of calculations made by them towards differential
payment to be made by the petitioner for the period from
November 1995 to July 2013 with applicable rate of interest, in
order to be entitled to higher wage pension. It is submitted that
the petitioner while acting on the basis of the aforesaid
requisition had duly deposited with the respondent no. 4 the
differential sum, whereupon the pension payment order (PPO)
digitally signed on 19th March, 2021, was issued, thereby
sanctioning Rs 11,701/- as pension. The aforesaid PPO also
records the petitioner's pensionable salary as Rs 39,238/- per
month.
10. By referring to the affidavit in opposition filed by the
respondent no.4, it is submitted that the respondent no.4 in its
opposition has in fact admitted that it has stopped higher
pension to the petitioner and that the PPO digitally signed on 19 th
March, 2021, had been revised, by issuing a PPO prepared on
15th December, 2022. The aforesaid revision of the petitioner's
pension is illegal. The revised PPO dated 15th December, 2022, is
contrary to the pension scheme. This Hon'ble Court may be
pleased to direct the Provident Fund Authorities to revise the PPO
dated 15th December, 2022, and to release and disbursed higher
pension in favour of the petitioner. By relying on an unreported
judgement delivered by the Division Bench of this Hon'ble Court
in MAT 311 of 2023 and MAT 312 of 2023, he submits that in
identical facts the Hon'ble Division Bench had been pleased to
affirm the direction for re-computation of the pensionary benefits
as directed by this Court, in respect of a retired employee of the
responding no. 5 from whom the Provident fund authorities
despite realising additional contribution for disbursing higher
pension, had been withholding the same on the alleged ground
that the option exercised by such an employee was irregular. He
says that the facts in this case are identical. This Hon'ble Court
should be pleased to grant similar relief to the petitioner.
11. Per contra, Mr. Gupta, learned advocate appearing for the
Provident Fund Authorities, submits that the petitioner did not
exercise his option in terms of paragraph 11(3) of the said
scheme. By referring to the notification dated 26th April, 2011,
which is at page 24 of the writ application, it is submitted that
the said notification is contrary to paragraph 11(3) of the said
scheme and no option on the basis thereof could be exercised by
the petitioner. By referring to the order passed by the Hon'ble
Division Bench of this Court dated 4th April, 2016, it is submitted
that despite the Hon'ble Division Bench reserving liberty to the
employees of the respondent no.5 to approach the Provident
Fund Authorities with requisite application, the petitioner had
not approached them and as such is not entitled to get higher
pension. By referring to sub-paragraph (e), (f), (g) and (h) of the
paragraph 5 of the affidavit filed by the Provident Fund
Authorities, he submits that since the provisions of paragraph
11(3) proviso and paragraph 11(4) of the said scheme had not
been complied with by the petitioner as well as the respondent
no.5, and since no option form was submitted by the petitioner
prior to 1st September, 2014, the petitioner is not eligible for
higher pension beyond the wage ceiling limit. It is still further
submitted, that the PPO directing disbursal of higher pension
was withdrawn, since the matter was pending before the Hon'ble
Supreme Court. He says, the said issue has now been resolved
and, in this context, he relies on the judgment delivered by the
Hon'ble Supreme Court in the case of The Employees' Provident
Fund Organization & Anr. v. Sunil Kumar B. & Ors., reported
in 2022 SCC OnLine SC 1521. By relying on an unreported
judgment delivered by this Hon'ble Court in the case of Sankar
Prasad Mukherjee & Ors. v. West Bengal State Minor
Irrigation Corporation Ltd. & Ors. in WPA 8600 of 2019 on
27th February, 2023, he submits that similar directions as passed
in WPA 8600 of 2019, may be passed in the aforesaid matter, and
in the event the petitioner exercises his option jointly with the
respondent no.5, his case for higher pension shall be considered.
12. Mr. Roy, learned advocate appearing for the respondent
no.5, 8 and 9, submits that the respondent no.5 had jointly, with
the petitioner, exercised the option under paragraph 11(3)
proviso as also under paragraph 11(4) of the said scheme, and
had duly forwarded the documents to the respondent no.4. He
submits that all option forms were duly acted upon by the
Provident Fund Authorities. The Provident Fund Authorities are
bound to adhere to their communication dated 19th January,
2021. The respondent no.4 having realised additional
contribution from the petitioner for disbursing higher pension,
cannot deny higher pension to the petitioner.
13. I have heard the learned advocates appearing for the
respective parties and have considered the materials on record. I
find admittedly the writ petitioner was in employment with the
respondent no. 5 and the petitioner was enjoying a pensionable
service. I find from the affidavit filed by the respondent nos.5, 8
and 9 that the option form exercised by the petitioner on 30th
April, 2011, has been annexed to such affidavit. The said option
was obviously exercised in terms of paragraph 11(3) proviso of
the said Scheme. I also find that the Provident Fund Authorities
by their communication dated 19th January, 2021, had while
processing the petitioner's claim for higher pension, having found
that EPS contributions on actual salary was not deposited for the
period November, 1995 to July, 2013, had called upon the
petitioner to make payment of a sum of Rs.3,67,727/- towards
differential payment for the period November, 1995 to January,
2021, together with applicable interest. From the aforesaid
communication read with PPO digitally signed on 19th March,
2021, it would be apparent that the aforesaid differential sum of
Rs.3,67,727/-, also included the employees contribution payable
by the petitioner, on actual salary exceeding Rs.15,000/- from
November, 2014 to July, 2013, inasmuch as the PPO clearly
records pensionable salary was Rs.39,238/- per month. It is,
therefore, apparent that the petitioner had not only exercised his
option jointly with the respondent no.5 but the respondent no.4
while acting on the basis thereof had also realised additional
contribution from the petitioner, as payable by the petitioner for
each month under the provisions of the Act, to avail higher
pension.
14. In the affidavit-in-opposition, the respondent no.4 has only
attempted to make out a case that by reasons of non-compliance
of the provisions of paragraph 11(3) proviso and paragraph 11(4)
of the said Scheme, and the order passed by the Division Bench
of this Hon'ble Court, the petitioner is not entitled to higher
pension. The aforesaid stand taken by the respondent no.4 is
illegal to say the least. From the communication dated 19 th
January, 2021, it would be apparent that the respondent no.4
had not only acted on the basis of paragraph 11(3) proviso but
paragraph 11(4) of the said Scheme and had realised additional
contribution from the petitioner in terms of the paragraph 11(4)
of the said Scheme.
15. It would, thus, be evident from the documents on record
that the petitioner, along with his employer, the respondent no.
5, had jointly exercised the option under paragraph 11(4) of the
said Scheme and the respondent no.4 while acting on the basis
thereof had realized additional contribution payable by the
petitioner along with interest in terms of paragraph 11(4) of the
said Scheme. In such circumstances, as to whether the petitioner
had exercised such option, strictly in terms of the provisions of
paragraph 11(3) and 11(4) of the said Scheme loses much of its
significance. The respondent no.4 having called upon the
petitioner to deposit the additional contribution on actual salary
which exceeded Rs.15,000/- per month, had obviously realised
the same in terms of paragraph 11(4) of the said scheme. Having
done so, respondent no.4 cannot turn around and claim that the
petitioner having not approached them with requisite application,
in terms of the liberty reserved by the Hon'ble Division Bench is
not entitled to claim higher pension. I find that no proper
explanation is also forthcoming as to why the petitioner's revised
pension had also been stopped. The issue before the Hon'ble
Supreme Court having been resolved, there cannot be any
impediment in disbursing higher pension in favour of the
petitioner. As such directing the petitioner to once again exercise
option in terms of paragraph 11(3) and 11(4) would be iniquitous
to say the least.
16. As rightly pointed out by Mr. Mitra, I also find that in
identical facts the Division Bench of this Hon'ble Court in MAT
311 of 2023 and MAT 312 of 2023 had been pleased to affirm the
direction for re-computation of pensionary benefits passed by
this Court, by treating the option exercised by an ex-employee of
the respondent no. 5 under paragraph 11 (4) of the said scheme
as valid, and had also directed the Provident fund authorities to
release appropriate monthly pension at higher rate along with
arrears as may be found due, by issuing revised pension payment
order. As such I am of the view that similar relief cannot be
denied to the petitioner.
17. Although the petitioner had asserted that the petitioner
had deposited contributions as was directed to be paid by the
Employees' Provident Fund Organization and had deposited a
sum of Rs. 3,67,727/-, and that no additional contribution is
payable, yet without going into such controversy, it would be
prudent to direct the respondent no. 4 to ascertain whether the
petitioner had contributed @1.16 per cent on the salary
exceeding Rs.15,000/- as an additional contribution from and
out of the contributions payable by the petitioner for each month
in terms of paragraph 11(4) of the said Scheme and in the event
of shortfall, to realise the same from the petitioner along with
interest.
18. I find that the Hon'ble Supreme Court despite declaring the
requirement of members to contribute @1.16 per cent on the
salary to the extent of salary exceeding Rs.15,000/- as an
additional contribution under the said Scheme to be ultra vires,
has suspended the operation of such order for a period of 6
months, so as to enable the authorities to make adjustments in
the Scheme so that additional contribution can be generated. As
such as and when adjustments are made, it is only natural that
the petitioner would also get benefit thereof.
19. In the light of the aforesaid, the respondent no. 4 is
directed to re-compute the pensionary benefits payable to the
petitioner, by treating the petitioner to have validly exercised
options under paragraph 11(3) proviso and paragraph 11(4) of
the said Scheme, by revising the PPO prepared on 15th December,
2022, and release appropriate monthly pension in favour of the
petitioner at higher rate along with all arrears, as may be found
due by issuing revised Pension Payment Order.
20. In the event the respondent no.4 proposes to re-fix the
pension payable to the petitioner less than Rs.11,701/-,
appropriate reasons must accompany such PPO to justify such
revision in accordance with paragraph 11(4) of the scheme. It is
made clear that the PPO revision should strictly be made in
terms of paragraph 11(4) of the said Scheme and based on
observations made herein.
21. The entire exercise must be completed within a period of 2
(two) months from the date of communication of this order. The
directions are peremptory.
22. With the above directions and observations, the writ
application being WPA 26760 of 2022 is disposed of.
23. There shall be no order as to costs.
24. Urgent photostat certified copy of this order, if applied for,
be given to the parties on priority basis upon completion of
requisite formalities.
(Raja Basu Chowdhury, J.)
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