Shiv Kumar Singh vs Employees Provident Fund ...
2022 Latest Caselaw 2486 Chatt

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                                                                             NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                        Writ Petition (S) No. 2660 of 2022

     Shiv Kumar Singh S/o Jhandu Singh Aged About 68 Years R/o Sattipara,
     Bechen Colony, Ambikapur, District Sarguja, (C.G.)
                                                                     ---- Petitioner
                                     Versus
  1. Employees Provident Fund Organisation Through - Commissioner,
     Regional Office- Raipur, Raipur Chhattisgarh - Block - D, Scheme 32, Indira
     Gandhi Commercial Complex, Pandri Raipur (C.G.).
  2. Zila Sahakri Kendriya Bank Maryadit, Ambikapur, Chhattisgarh, Through
     Chief Executive Officer, Ambikapur, (C.G.).
                                                                ---- Respondents

For Petitioner : Shri Abhishek Banjare, Advocate For Respondent no.1 : Shri Ajay Dwivedi, Advocate For Respondent no.2 : Shri Jitendra Shrivastava, Advocate

Hon'ble Shri Justice P. Sam Koshy Order On Board 18.04.2022

1. The challenge in the present writ petition is to the order dated 30.03.2022

Annexure P-7 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. 10.01.2019

and by virtue of the revised pension the petitioner was getting monthly

pension of Rs.7944/-. 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-7 cancelling the revised PPO which was issued in favour of

petitioner and has reduced the monthly pension to Rs.2104/- from February,

2022 onwards whereas till January, 2022 the petitioner had been receiving

Rs.7944/- as the monthly pension. Thus, there is a substantial reduction in

the monthly pension vide the impugned order Annexure P-7.

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 July, 2019 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. 7944/- to Rs.2104/- 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 inder