Ashis Kumar Sahoo & Ors vs Union Of India & Ors
2023 Latest Caselaw 3412 Cal

Form No.J(2)

                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE
Present :

The Hon'ble Justice Raja Basu Chowdhury

                             WPA 2243 of 2020
                                 with
                             CAN 1 of 2023
                                  &
                             CAN 2 of 2023

                         Ashis Kumar Sahoo & Ors.
                                     Vs.
                           Union of India & Ors.


For the petitioners                   :       Mr. Ashim Kumar Roy
                                              Mr. Sutanu Chakraborty

For the PF authorities                :       Mr. S.C.Prasad

For the respondent no.4               :       Mr. Ritwik Pattanayak

Heard on                              :       22.09.2022, 28.11.2022,
                                              24.02.2023, 28.02.2023,
                                              08.05.2023, 15.05.2023

Judgment on                               :   16.05.2023


Raja Basu Chowdhury, J:


                          In re: CAN 1 of 2023

1. The present application has been filed, inter alia, to record the

death of the petitioner nos. 7, 10, 15, 31, 35, 36, 49, 67, 81, 83,

86, 106 & 107, as mentioned in paragraphs 3(a) to 3(m) of the

aforesaid application.

2. Learned advocate appearing for the petitioners submits that there

is a typographical error in the prayer portion of the aforesaid

application. He prays for leave to correct the error.

3. Considering the submission made and as prayed for, leave is

granted to the learned advocate appearing for the petitioners to

correct the prayer portion of the application.

4. Mr. Roy, learned advocate appearing for the petitioners submits

that the nominees of the deceased petitioners need to be

brought on record. According to Mr. Roy, the deceased

petitioners in the respective declarations filed before the

Provident Fund Authorities, had identified the nominees who

are sought to be brought on record. He submits that the

aforesaid nominees are all major and su juris. He prays for

impleading the aforesaid nominees who are identified in the

cause title, as proposed nominees of the respective deceased

petitioners.

5. Mr. Pattanayak, learned advocate appearing for the respondent

no. 4, does not raise any objection.

6. Heard the learned advocates appearing for the respective parties

and considered the materials on record. Taking into

consideration the statements made in paragraph 3 of the said

application and the fact that the petitioners identified therein

have already died, let the death of the aforesaid petitioners be

recorded and there being no impediment in bringing their

nominees on record, let such nominees be substituted in place

and stead of the deceased petitioners.

7. CAN 1 of 2023 is accordingly disposed of.

8. Department is directed to carry out the aforesaid directions.

In re: CAN 2 of 2023

1. This application has been filed, inter alia, for recording the death

of the petitioner nos. 56, 75 and 88

2. Mr. Roy, learned advocate appearing for the petitioners submits

that the aforesaid petitioners have died and he prays for

recording of death of the aforesaid petitioners.

3. Heard the learned advocates appearing for the respective parties

and considered the materials on record. Taking into

consideration the submissions made by the parties, I am of the

view that the factum of death of the petitioners, whose

particulars have been provided in paragraph 4 of the application,

be recorded.

4. CAN 2 of 2023 is accordingly disposed of.

In re : WPA 2243 of 2020

1. The present writ application has been filed, inter alia, praying for

a direction upon the respondents to refix the petitioners pension

on the basis of their actual salary, the petitioners seek a

direction on the respondents to permit them to exercise option in

terms of paragraph 11(3) and 11(4) of the Employees Provident

Fund Scheme (as amended), 1995 (hereinafter referred to as the

said Scheme).

2. The petitioners are the retired employees of Contai Co-operative

Bank Limited and were members of the said Scheme.

3. Mr. Roy, learned advocate appearing for the petitioners, by

drawing attention of this Court to a supplementary affidavit filed

by the petitioners submits that the issue as regards legality

and/or validity of the notification dated 22nd August 2014 having

been finally decided by the Hon'ble Supreme Court in the case of

Employees Provident Fund Organization & Anr. v. Sunil

Kumar B.1 and the Hon'ble Supreme Court having opened a

window for the petitioners to exercise joint option in terms of

paragraph 11(3) and 11(4) of the said scheme, the petitioners

had duly, in terms of the direction passed by the Hon'ble

Supreme Court, applied by submitting their joint option forms

which have been duly executed by the petitioners and their ex

employer, Contain Co-operative Bank Limited, the respondent

no.4. He, however, submits that the Provident Fund authorities

2022 SCC Online SC 1521

are not treating the same as a valid exercise of option. Unless

specific direction is issued to treat the options already exercised

by the petitioners as valid, the petitioners shall suffer irreparable

loss.

4. He has also disclosed a chart in the letterhead of the respondent

no.4 showing, the date of exist, and last drawn salary of the

respective petitioners.

5. Mr. Prasad, learned advocate appearing for the Provident Fund

Authorities by placing before this Court, the judgment delivered

by the Hon'ble Supreme Court in the case of Employees'

Provident Fund Organization (supra), has clarified that only

those petitioners who were in service as on 1st September 2014

are otherwise eligible to exercise joint option in terms of the said

scheme. He says that simply because all the petitioners have

submitted their options that does not make all the petitioners

eligible, to exercising option under the said scheme.

6. He further submits by placing reliance on an office

memorandum dated 23rd April 2023 issued by the Regional P.

F.Commissioner-I (Pension) addressed to all the Addl. CPFCs,

Zonal Offices and all RPFCs/OICs, Regional Offices, that in

terms of the judgment delivered by the Hon'ble Supreme Court

in the case of Employees' Provident Fund Organization

(supra), specific instructions have been issued for

implementation of such order. He says online facility has already

been deployed and is available for exercising option.

7. He submits that the petitioners are required to exercise the

option in the manner, as provided by the respondent Provident

Fund Authorities in the said circular. He says that in the event,

the petitioners are otherwise qualified in terms of the judgment

delivered by the Hon'ble Supreme Court, in such event the

options to be exercised by the petitioners shall be accepted and

revised Pension Payment Order shall be issued in favour of the

petitioners.

8. He further submits that in terms of the direction passed by the

Hon'ble Supreme Court, the time provided in the circular dated

23rd April 2023 has since been extended up to 26th June 2023,

for exercise of joint options as contemplated in paragraphs 11(3)

and 11(4) of the said Scheme.

9. Heard the learned advocates appearing for the respective parties

and considered the materials on record. I find that the Hon'ble

Supreme Court in the case of Employees' Provident Fund

Organization and Another (supra) 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."

10. 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 paragraph 11(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.

11. In the present case none of the ex-employees of the respondent

no.4 had exercised their option in terms of paragraph 11(3) of the

said Scheme (pre-amendment). As per paragraph 2(11) 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.

12. Without going into any controversy at this stage and taking

into consideration the chart made over by the petitioners'

advocate on the letterhead of the respondent no. 4, which has

also been confirmed by Mr. Pattanayak, learned advocate

appearing for the respondent no. 4, it would appear that the

following petitioners are otherwise eligible for exercising their

options, particulars of the petitioners are set out herein below:-

Last Drawn Salary of Retired Employees before their exit from EPS Membership on attaining 58 years

Row Sl. No. Name of the Date of Exit Last Drawn Sl. As per Retirees/Petitioners from Salary before No. Writ Membership Exit from on attaining Membership 58 years 20 31 Biswanath Kar 26.12.2015 Rs.53249.82 21 33 Chandi Charan 27.04.2015 Rs.34122.93 Nayak 40 56 Milan Kumar Maiti 06.10.2016 Rs.68763.30 50 67 Pranabendra Maiti 06.05.2015 Rs.48953.30 71 90 Sibendu 02.04.2015 Rs.48953.30 Bhattacharya 91 1 Ashis Kumar Sahoo 23.12.2014 Rs.62310.60 92 3 Ajit Kr. Roy Ari 24.10.2016 Rs.32701.13 93 4 Amal Das 27.11.2015 Rs.37639.58 94 5 Amitava Pahari 08.07.2016 Rs.70829.60 95 6 Amiya Kumar Das 06.12.2014 Rs.42169.80 96 8 Anil Giri 01.06.2017 Rs.49736.96 97 9 Anil Kumar Das 19.11.2014 Rs.42312.05 98 20 Asit Baran Sahoo 20.08.2016 Rs.61528.60 99 23 Aswini Kumar 09.12.2015 Rs.33251.43 Pradhan 100 27 Bikash Ch. Sinha 31.12.2014 Rs.47048.55 101 28 Bimal Kr. Panda 21.07.2016 Rs.65249.00

102 32 Bibhabasu Dey 24.02.2016 Rs.56912.58 103 41 Goutam Kumar Das 21.01.2016 Rs.56912.58 104 50 Kajeswar Pandit 10.11.2016 Rs.41816.70 105 52 Kanchan Gopal 09.05.2015 Rs.50634.10 Bhattacharya 106 53 Madan Kumar 20.12.2015 Rs.45924.30 Kamilya 107 61 Nikhil Huzzat 04.01.2017 Rs.46616.12 108 69 Pravansu Pati 11.01.2017 Rs.40785.41 109 73 Ram Chandra Misra 20.01.2015 Rs.48883.40 110 92 Smt. Asha Nayak Mal 30.09.2014 Rs.45551.25 111 95 Subhas Ch. Jana 18.08.2015 Rs.50778.70 112 97 Suvendu Kumar 19.11.2015 Rs.51954.76 Maity 113 98 Subodh Ch. Jana 11.09.2015 Rs.38193.29 114 100 Sudip Kanti Hatua 18.04.2016 Rs.54316.34 115 103 Suprakash Jana 11.01.2016 Rs.59233.50 116 109 Swapan Kumar Misra 26.10.2016 Rs.57327.00 117 116 Tarun Kanti 03.09.2015 Rs.62062.85 Mahapatra

13. In view of the aforesaid, only those employees of the

respondent no.4, 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 options should be exercised jointly with the respondent

no.4

14. Mr. Prasad has, however, submitted that the Provident Fund

Authority in compliance with the directions passed by the Hon'ble

Supreme Court has already issued departmental instructions dated

23rd April, 2023 and online facility has been deployed which was

available on the basis of the said letter upto 3rd May, 2023.

According to Mr. Prasad, the last date for filing option forms has

been extended till 26th June 2023.

15. Having regard to the aforesaid, I direct the petitioners as also the

respondent nos.3 and 4 to act in terms of the directions issued by

the Hon'ble Supreme Court in the case of Employees' Provident

Fund Organization and Another (supra). The Contai Co-operative

Bank Limited, being the respondent no.4 is directed to jointly

exercise options along with eligible petitioners indicated hereinabove

in the manner as directed by the Hon'ble Supreme Court, within the

extended time provided for by the Provident Fund Authorities that is

26th June, 2023.

16. In the light of the aforesaid, the respondent no. 3 being the

Assistant Provident Fund Commissioner (pension) Regional/sub

Regional office, Employees Provident Fund Organization (EPFO),

Bhavishyanidhi Bhawan 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 to re-compute the

pensionary benefits payable to the eligible 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 three months from

the date of furnishing the joint option forms, both by the eligible

petitioners as also by the respondent no. 4.

17. Court fees paid are found to be sufficient.

18. With the above observations and directions, the aforesaid writ

petition stands disposed of.

19. There shall, however, be no order as to costs.

20. Urgent Photostat certified copy of this order, if applied for, be

given to the parties upon compliance of necessary formalities

(Raja Basu Chowdhury, J.)

Saswata Assistant Registrar (Court)