Calcutta High Court (Appellete Side)
Krishnapada Pal & Ors vs Union Of India & Ors on 27 February, 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 4645 of 2018
Krishnapada Pal & Ors.
Vs.
Union of India & Ors.
With
WPA 4646 of 2018
With
WPA 4647 of 2018
With
WPA 4648 of 2018
With
WPA 4649 of 2018
With
WPA 4650 of 2018
With
WPA 4651of 2018
With
WPA 4652 of 2018
With
WPA 4654 of 2018
With
WPA 4655 of 2018
With
WPA 4656 of 2018
With
WPA 4658 of 2018
With
WPA 4659 of 2018
With
WPA 4660 of 2018
2
With
WPA 4661 of 2018
With
WPA 4662 of 2018
With
WPA 4663 of 2018
With
WPA 6820 of 2018
With
WPA 6822 of 2018
With
WPA 6830 of 2018
For the petitioner : Mr. Achyut Basu,
Mr. Kartik Chandra Kapas,
Ms. Punam Basu,
Mr. Srikumar Chakraborty
Mr. Somen Bose
Mr. Anirban Saha
For the I.O.C : Ms. Vineeta Meharia
Ms. Urmila Chakraborty,
Mr. Amit Meheria,
Ms. Paramita Banerjee,
Ms. Subika Paul,
Ms. Amrita Das
For the P.F. Authority : Mr. Prasd
Heard on : 30.01.2023, 22.02.2023, 23.02.2023,
24.02.2023 & 27.02.2023.
Judgment on : 27.02.2023
Raja Basu Chowdhury, J:
1. The aforesaid writ applications raise common questions as such
hearing of the aforesaid writ applications are taken up together.
3
Although the aforesaid writ applications have been filed, inter alia,
challenging the Notification dated 22nd August 2014 and the Circular
dated 31st May, 2017, issued by the Union of India and the Additional
Provident Fund Commissioner respectively, these matters essentially
relate to claim for higher pension.
2. The petitioners are the retired employees of Indian Oil Corporation
Limited and were members of the Employees Pension Scheme 1995
(hereinafter referred to as the "said Scheme"). It is also the petitioners'
case that they had exercised their options as provided in paragraph
26(6) of the Employees Provident Fund Scheme 1952. Subsequently
when the Notification dated 22nd August 2022 was issued, inter alia,
challenging the same the aforesaid writ applications were filed.
3. Mr. Basu learned advocate representing the petitioners submits that
during the pendency of the aforesaid proceedings, the issue as
regards the validity and legality of the Notification dated 22nd August,
2014 has been finally decided by the Hon'ble Supreme Court in the
case of Employees Provident Fund Organisation and Another v.
Sunil Kumar B. and Others, reported in 2022 SCC OnLine SC
1521. It is submitted that the Hon'ble Supreme Court has since
despite declaring the provisions contained in the Notification dated
22nd August, 2014, as legal and valid has, however, read down certain
provisions of the scheme. By placing reliance on two several
departmental instructions dated 29th December 2022 and 20th
4
February, 2023, it is submitted that in compliance of the direction
issued by the Hon'ble Supreme Court, in the judgment delivered in
the case of Employees Provident Fund Organisation and Another
(supra), the Employees Provident Fund Authorities have opened a
window for the petitioners to submit options both under proviso to
paragraph 11(3) as also paragraph 11(4) of the said Scheme. It is
submitted that the petitioners are covered by the aforesaid
instructions and as such, this Hon'ble Court should direct the
Employees Provident Fund Authorities to permit the petitioners to
exercise option, in terms of the judgment delivered by the Hon'ble
Supreme Court in Employees Provident Fund Organisation and
Another (supra), as also in the light of the two departmental
instructions issued by the respondent authorities. He says that the
aforesaid direction is necessary, since the aforesaid matters have
been pending before this Hon'ble Court and is considered as sub
judice, unless the aforesaid direction is given the Provident Fund
Authorities shall not accept the option forms from the petitioners.
4. Ms. Meharia, learned advocate representing the Indian Oil
Corporation Limited, has taken me through the said Scheme. By
referring paragraph 3 of the said Scheme, she submits that from and
out of the contributions payable by the employer as required under
Section 6 of the Employees' Provident Fund and Miscellaneous
Provisions Act, 1952 (hereinafter referred to as the "said Act") a part
of the contribution representing 8.33% of the employees' pay shall be
remitted by the employer to the employees' pension fund. She says
that paragraph 3.2 of the said Scheme provides that the Central
Government shall also contribute at the rate of 1.16% of the pay of
the members of the said Scheme and credit the contribution to the
employees' pension fund, however the proviso to the said paragraph
limits the contributions payable by the employer and the Central
Government on the pay of the member on his pay upto Rs.
5,000/6,500/15,000/-. She submits that by introducing the proviso
to paragraph 11(3) and paragraph 11(4) the cap of Rs.
6,500/15,000/- had been removed and the members have been
granted an opportunity to seek higher pension, by requiring the
employer to contribute at the rate of 8.33 per cent only on actual pay
of the employees and to remit the same to the pension fund. She says
that proviso to paragraph 11(3) of the said Scheme was amended by
Notification dated 22nd August, 2014.
5. She says that the legality and validity of the Notification dated 22nd
August, 2014, has since been finally decided by the Hon'ble Supreme
Court in the case of Employees Provident Fund Organisation and
Another (supra) and such issue is no longer res integra. She says
that only those employees of the respondent no.7 who had either
exercised the option prior to 1st September, 2014 and those
employees, who had retired from service after 1st September, 2014 are
entitled to the benefit of the aforesaid judgment, subject to such
employees satisfying the other conditions as set forth in paragraph
11(4) of the said Scheme. On instructions, she has also confirmed the
particulars of the employees, who were in service as on 1st September,
2014. She says that none of the petitioner have, however, exercised
option under proviso to paragraph 11(3) of the said Scheme.
6. Mr. Prasad learned advocate representing the Provident Fund
Authorities by placing reliance on the judgment delivered in the case
of R.C. Gupta & Ors. v. Regional Provident Fund Commissioner,
Employees Provident Fund Organization & Ors., reported in
(2018) 14 SCC 809, submits that exercise of option under paragraph
26(6) of the Employees Provident Fund Scheme, 1952 is a necessary
precursor to exercise option under proviso to paragraph 11(3) of the
said Scheme. He says that in the instant case, since the petitioners
have exercised option under paragraph 26(6) of the Employees'
Provident Fund Scheme 1952, the petitioners who had not retired
from service as on 1st September, 2014, shall be entitled to the benefit
of the judgment delivered in the case of Employees Provident Fund
Organisation and Another (supra). He, however, submits that the
Provident Fund Authorities have already issued departmental
instructions dated 29th December, 2022 and 20th February, 2023. He
says if the petitioners are otherwise eligible then there would be no
difficulty on the part of the Provident Fund Authorities to accept their
option forms in terms of paragraph 5 of the departmental instruction
dated 20th February, 2023.
7. Heard the learned advocates appearing for the respective parties and
considered the materials on record. I find that the larger issue which
falls for consideration in the aforesaid writ applications has already
been decided by the Hon'ble Supreme Court in the case of Employees
Provident Fund Organisation and Another (supra). I also find that
the Hon'ble Supreme Court in paragraph 46 thereof has been, inter
alia, pleased to observe as follows:-
"46. We accordingly hold and direct:--
(i) The provisions contained in the notification no. G.S.R.
609(E) dated 22nd August 2014 are legal and valid. So
far as present members of the fund are concerned, we
have read down certain provisions of the scheme as
applicable in their cases and we shall give our findings
and directions on these provisions in the subsequent sub-
paragraphs.
(ii) Amendment to the pension scheme brought about by
the notification no. G.S.R. 609(E) dated 22nd August 2014
shall apply to the employees of the exempted
establishments in the same manner as the employees of
the regular establishments. Transfer of funds from the
exempted establishments shall be in the manner as we
have already directed.
(iii) The employees who had exercised option under the
proviso to paragraph 11(3) of the 1995 scheme and
continued to be in service as on 1st September 2014, will
be guided by the amended provisions of paragraph 11(4)
of the pension scheme.
(iv) The members of the scheme, who did not exercise
option, as contemplated in the proviso to paragraph 11(3)
of the pension scheme (as it was before the 2014
Amendment) would be entitled to exercise option under
paragraph 11(4) of the post amendment scheme. Their
right to exercise option before 1st September 2014 stands
crystalised in the judgment of this Court in the case
of R.C. Gupta (supra). The scheme as it stood before
1st September 2014 did not provide for any cutoff date
and thus those members shall be entitled to exercise
option in terms of paragraph11(4) of the scheme, as it
stands at present. Their exercise of option shall be in the
nature of joint options covering pre-amended paragraph
11(3) as also the amended paragraph 11(4) of the
pension scheme.
There was uncertainty as regards validity of the post
amendment scheme, which was quashed by the
aforesaid judgments of the three High Courts. Thus, all
the employees who did not exercise option but were
entitled to do so but could not due to the interpretation on
cut-off date by the authorities, ought to be given a further
chance to exercise their option. Time to exercise option
under paragraph 11(4) of the scheme, under these
circumstances, shall stand extended by a further period
of four months. We are giving this direction in exercise of
our jurisdiction under Article 142 of the Constitution of
India.
Rest of the requirements as per the amended provision
shall be complied with.
(v) The employees who had retired prior to 1st September
2014 without exercising any option under paragraph
11(3) of the pre-amendment scheme have already exited
from the membership thereof. They would not be entitled
to the benefit of this judgment.
(vi) The employees who have retired before 1st September
2014 upon exercising option under paragraph 11(3) of the
1995 scheme shall be covered by the provisions of the
paragraph 11(3) of the pension scheme as it stood prior
to the amendment of 2014.
(vii) The requirement of the members to contribute at the
rate of 1.16 per cent of their salary to the extent such
salary exceeds Rs. 15000/- per month as an additional
contribution under the amended scheme is held to be
ultra vires the provisions of the 1952 Act. But for the
reasons already explained above, we suspend operation
of this part of our order for a period of six months. We do
so to enable the authorities to make adjustments in the
scheme so that the additional contribution can be
generated from some other legitimate source within the
scope of the Act, which could include enhancing the rate
of contribution of the employers. We are not speculating
on what steps the authorities will take as it would be for
the legislature or the framers of the scheme to make
necessary amendment. For the aforesaid period of six
months or till such time any amendment is made,
whichever is earlier, the employees' contribution shall be
as stop gap measure. The said sum shall be adjustable
on the basis of alteration to the scheme that may be
made.
(viii) We do not find any flaw in altering the basis for
computation of pensionable salary.
(ix) We agree with the view taken by the Division Bench
in the case of R.C. Gupta (supra) so far as interpretation
of the proviso to paragraph 11(3) (pre-amendment)
pension scheme is concerned. The fund authorities shall
implement the directives contained in the said judgment
within a period of eight weeks, subject to our directions
contained earlier in this paragraph.
(x) The Contempt Petition (C) Nos. 1917-1918 of 2018 and
Contempt Petition (C) Nos. 619-620 of 2019 in Civil
Appeal Nos. 10013-10014 of 2016 are disposed of in the
above terms."
8. As would appear from the above, only those employees who had
exercised option under the proviso to paragraph 11(3) of the said
Scheme and continued to be in service as on 1st September, 2014 will
be guided by the amended provision of the paragraph11(4) of the said
Scheme. The members of the scheme who did not exercise option as
contemplated in the proviso to paragraph 11(3) of the said Scheme (as
it was before 2014 amendment) would be entitled to exercise option
under paragraph 11(4) of the said Scheme. Their exercise of option
shall be in the nature of the joint options covering pre-amended
paragraph 11(3) as also amended paragraph 11(4) of the Scheme. In
the present case none of the ex-employees of the respondent no.7 had
exercised their option in terms of paragraph 11(3) of the said Scheme
(pre-amendment). As per paragraph 2(ix) of the said Scheme a
member, ceases to be a member of the pension fund from the date of
attaining 58 years of age or from the date of vesting admissible
benefits under the said scheme whichever is earlier. It would also
appear from the aforesaid judgment that the Hon'ble Supreme Court
had made it clear that the employees who had retired prior to 1st
September, 2014 without exercising any option in terms of paragraph
11(3) of the pre-amendment scheme and have already exited from the
membership thereof shall not be entitled to the benefit of the
judgment.
9. Without going into any controversy at this stage and taking into
consideration the chart made over by the petitioners' advocate
particulars whereof have been confirmed by Mr. Meheria the
learned advocate appearing for the respondent no.7, it would
appear that the following petitioners are otherwise eligible for
exercising their options, particulars of the petitioners matter wise
are set out herein below:-
WPA 4646 of 2018
2 Uttam Kumar Kharna 71364
5 Shyamal Kumar Patra 71750
6 Bimal Kumar Das 71560
8 Chitta Ranjan Kapat 71379
9 Anup Kumar Jana 71789
WPA 4647 of 2018
6 Syamal Kumar Das 71559
7 Babulal Manna 71782
WPA 4648 of 2018
2 Sambhunath Maity 71422
3 Sital Prasad Maity 71416
4 Balaram Mondal 71278
WPA 4649 of 2018
2 Suddhadev Maity 71431
3 Giridhari Das 71415
WPA 4650 of 2018
3 Gitangsu Das 71663
4 Sankar Kumar Gayen 71923
6 Arati Rani Bera 71326
WPA 4651 of 2018
7 Sakti Pada Paul 71400
8 Dilip Kumar Parua 71748
WPA 4652 of 2018
1 Dilip Kumar Sarkar 71444
7 Gobinda Charan Bera 71289
8 Shymal Kumar Halder 71149
WPA 4654 of 2018
1 Arabinda Maiti 71522
5 Mrinal Kanti Das 71270
WPA 4655 of 2018
3 Mrinal Kanti Mondal 71411
WPA 4657 of 2018
7 Pradyot Kumar Jana 71399
10 Sabyasachi Tripathi 71441
WPA 4658 of 2018
Nil
WPA 4659 of 2018
Nil
WPA 4660 of 2018
1 Amrit Lal Khanra 71843
10 Ram Gopal Samanta 71284
WPA 4661 of 2018
5 Chandan Kr. Adhikary 71552
WPA 4662 of 2018
1 Madan Mohan Ghoria 71804
7 Chitta Ranjan Ghanti 71406
8 Subal Chandra Maity 71420
WPA 4663 of 2018
1 Ramendra Nath Mondal 71766
10 Sambhu Charan Jana 71602
WPA 6820 of 2018
3 Sakti Prasad Mishra 71677
6 Susil Tirky 71119
10 Nirajan Pramanik 71664
WPA 6830 of 2018
1 Sk. Md. Ilyas 71507
5 Ujjal Kumar Barik 71746
6 Sudarsan Pramanik 71265
10 Jyotirmay Maity 71517
10. In view of the aforesaid, only those employees of the respondent
no.7, who were in service as on 1st September, 2014, and were
members of the said scheme shall be entitled to exercise the option
which shall cover (pre-amended previous scheme) paragraph 11(3) as
also paragraph 11(4) of the said Scheme. The aforesaid option should
be exercised jointly with the respondent no.7.
11. Mr. Prasad has, however, submitted that the Provident Fund
Authority in compliance of the directions passed by the Hon'ble
Supreme Court has already issued departmental instructions dated
20th February, 2023 setting out the modalities for exercise of joint
option by the ex-employees, who continued to be members of the
scheme as on the cut-off date.
12. Having regard to the aforesaid, I direct both the Indian Oil
Corporation and the Provident Fund Authorities to act in terms of the
directions issued by the Hon'ble Supreme Court in the case of
Employees Provident Fund Organisation and Another (supra).
The Indian Oil Corporation, the respondent no.7 is directed to jointly
exercise option along with eligible petitioners indicated hereinabove in
the manner as directed by the Hon'ble Supreme Court, within the
time specified, having due regard to the departmental instructions
dated 20th February, 2023, issued by the provident fund Authorities.
13. In the light of the aforesaid, the respondent nos. 5 being the
Assistant Provident Fund Commissioner (pension) Regional/sub
Regional office, Employees Provident Fund Organization (EPFO), D.K.
Block, Sector II, Salt Lake City, Kolkata 700091, is directed to accept
the option forms, from the eligible petitioners as indicated
hereinabove and the respondent no.7 and to re-compute the
pensionary benefits payable to the petitioners, by issuing revised
pension payment orders upon making adjustments and by realizing
additional contributions as may be necessary, and to complete the
entire exercise within a period of two months from the date of
furnishing the joint option forms, both by the eligible petitioners as
also by Indian Oil Corporation Limited.
14. Court fees paid are found to be sufficient.
15. With the above observations and directions, the aforesaid writ
petitions stand disposed of.
16. There shall, however, be no order as to costs.
17. Urgent photostat certified copy of this order, if applied for, be given
to the parties upon compliance of necessary formalities.
(Raja Basu Chowdhury, J.)
