Lalman Sahu vs Employees Provident Fund ...
2022 Latest Caselaw 2144 Chatt

                                       1

                                                                          NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                      Writ Petition (S) No. 2358 of 2022

     Lalman Sahu S/o Rugsa Sahu, Aged About 67 Years, R/o Milan Chowk,
     Kutudand Sahu Bada, District Bilaspur, Chhattisgarh.

                                                                   ---- Petitioner

                                    Versus

  1. Employees Provident Fund Organization Through Commissioner,
     Regional Office- Raipur, Raipur, Chhattisgarh- Block- D, Scheme 32,
     Indira Gandhi Commercial Complex, Pandri, Raipur, Chhattisgarh

  2. Zila Shakari Central Bank, Bilaspur Chhattisgarh, Through Chief
     Executive Officer, Bilaspur, Chhattisgarh.
                                                               ---- Respondents

For Petitioner : Mr. Basant Kaiwartya, Advocate For Respondent no.1 : Mr. Sunil Pillai, Advocate For Respondent no.2 : Mr. Jitendra Shrivastava, Advocate

Hon'ble Shri Justice P. Sam Koshy Order On Board 05.04.2022

1. The challenge in the present writ petition is to the order dated

25.02.2022 Annexure P-1 whereby the respondent no.1 has passed an

order revising the pension of petitioner and has also cancelled the earlier

revised PPO that was issued.

2. The whole issue involved in the present writ petition is whether the

petitioner is entitled for pension at the revised pay or the pre-revised pay.

3. The petitioner was granted the benefit of revised pension w.e.f.

18.05.2018 and by virtue of the revised pension the petitioner was

getting monthly pension of Rs.8,270/-. The said pension was revised by

respondent no.1 pursuant to an order that was passed by the Hon'ble

Supreme Court in the case of R. C. Gupta & others Vs. Regional

Provident Fund Commissioner in S.L.P. No. 33032-33033 of 2016

decided on 14.10.2016. Based upon the judgment of the Hon'ble

Supreme Court in the case of R. C. Gupta (supra) the EPF department

had issued a circular for implementation of the same vide order dated

23.03.2017. Based upon which the pension payable to the petitioner

stood revised after obtaining the additional contribution from the

petitioner to be deposited with the EPF organization.

4. Subsequently, the EPF department itself has now approached the

Supreme Court for review of the judgment passed in the case of R. C.

Gupta (supra) which was filed by the EPF department on 13 th March,

2019 i.e. subsequent to the pension of petitioner getting revised. The

review petition is said to have been entertained by the Hon'ble Supreme

Court and the matter has been ordered to be placed before Hon'ble the

Chief Justice of India. The review petition thereafter has not been listed.

There is no order as such passed by the Hon'ble Supreme Court in the

review petition permitting the EPF department for restoring the pension

as it stood prior to the filing of the revision petition.

5. That in the light of the review petition having been entertained by the

Hon'ble Supreme Court the EPF department now has unilaterally issued

Annexure P-1 cancelling the revised PPO which was issued in favour of

petitioner and has reduced the monthly pension to Rs.2190/- from

February, 2022 onwards whereas till January, 2022 the petitioner had

been receiving Rs.8,270/- as the monthly pension. Thus, there is a

substantial reduction in the monthly pension vide the impugned order

Annexure P-1.

6. Today, when the matter is taken up for hearing, learned counsel for

petitioner brought to the Court's notice an order in identical set of facts

from the Madhya Pradesh High Court where also a similar action of the

EPF department was assailed in WP No. 3841/2021 in the case of

Hemant Dhere Vs. The Employees Provident Fund Organization &

Others. The said writ petition was allowed and disposed of vide order

dated 08.06.2021. The Madhya Pradesh High Court while allowing the

writ petition held as under:

"In the present case, the respondent No.2/3 has given a complete go-bye to the principles of natural justice.

So far as the contention of the respondents that the subject matter of the controversy is pending sub judice before the Supreme Court is concerned, it is suffice to mention here that this Court has not considered the merits of the case. The impugned order dated 21.1.2021 is being set aside on the ground of violation of natural justice. On one hand, the stand of the respondents is that the subject matter is pending sub judice, therefore, this Court should not decide the controversy and on the other hand, the respondents themselves are passing orders. It is for the respondents to consider their own stand. Under these circumstances, this Court is left with no other option but to quash the order dated 21.1.2021 passed by the respondent No.2 in Case No.EPF/RO/MP/ GWL/Pension/PPO/Higher Pension/25852 with cost of Rs.5,000/- to be paid by the respondent No.3 personally. The said cost shall not be reimbursed to the respondent No.3 by the Department. The cost be deposited in the account of the petitioner within a period of 15 days from today.

The matter is remanded back to the respondent No.2 to take a final decision in the matter after giving opportunity of personal hearing to the petitioner as well as by taking into consideration that the subject matter of the case is already sub judice before the Supreme Court. With aforesaid observations, the petition is finally disposed of."

7. At this juncture, learned counsel for respondent no.1 submits that the

reason why the respondents seems to have passed the impugned order

is considering the financial implication that may occur to the department

in the event the review petition before the Supreme Court in the case of

R. C. Gupta (supra) stands allowed. He submits that once the petitioner

is granted pension at the revised rate, considering the substantial hike

in pension, it would be difficult for the EPF department subsequently to

recover this excess payment or the difference of pension between pre-

revised and revised pension, in the event the review petition before the

Supreme Court stands allowed. On the contrary, if in the review petition

the EFP department is unsuccessful, the petitioner can always be paid

the difference amount at a latter stage also.

8. To counter the said submission, learned counsel for petitioner submits

that the same principle applies to the petitioner also. Since the

department has already implemented the revised pension and the

petitioner has been receiving the enhanced pension from May, 2018 and

the revised pension being paid by way of implementation of a judgment

of the Hon'ble Supreme Court itself, as long as the said judgment of the

Hon'ble Supreme Court in the case of R. C. Gupta (supra) is not recalled

or held bad, the order holds the field and the respondents are duty

bound to comply the same till the said order stands recalled. If at all if

the review petition is allowed, the Supreme Court itself would be the

Court which could decide the course of action to be taken by the EPF

department as a consequence of the review petition being allowed.

Therefore, there was no occasion for the EPF department to have issued

the impugned order reducing the revised pension which has a

substantial financial implication. Moreover, the contention of petitioner is

that the impugned order is also bad for the reason that the same has

been in utter violation of the principles of nature justice. Inasmuch as

the petitioner was never given an opportunity of hearing before his

pension was reduced from Rs.8,270/- to Rs.2190/- per month more

particularly when the judgment of the Hon'ble Supreme Court in the case

of R. C. Gupta (supra) still holds the filed.

9. Given the said submissions by the learned counsel for the parties, this

Court fully endorses the view taken by the Madhya Pradesh High Court

in the case of Hemant Dhere (supra) and is also inclined to apply the

same in the instant case also for the reason firstly the judgment of the

Hon'ble Supreme Court in the case of R. C. Gupta (supra) is still holding

the field and secondly, the impugned order has been passed without

giving any opportunity of hearing.

10. For the aforesaid reasons the impugned order as of now deserves

to be and is accordingly set aside/quashed reserving the right of

respondent no.1 to take appropriate steps after the decision of the

Review Petition by the Hon'ble supreme Court in the case of R. C. Gupta

(supra) or after granting a fair and reasonable opportunity of hearing to

the petitioner as the case may be.

11. With the aforesaid observation the writ petition stands allowed.

Sd/-

(P. Sam Koshy) Judge Khatai