Sushil Vishwakant Tewary vs State Of Gujarat
2023 Latest Caselaw 1440 Guj

    C/SCA/17681/2019                               ORDER DATED: 13/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 17681 of 2019
                                 With
            CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2021
           In R/SPECIAL CIVIL APPLICATION NO. 17681 of 2019
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                       SUSHIL VISHWAKANT TEWARY
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Petitioner(s) No. 1
MR. JAY MEHTA, AGP, for the Respondent(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2,4
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 13/02/2023
                                ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed for following relief:-

"(A) To issue, appropriate writ, order or direction quashing and setting aside the impugned order/communication dated 13-12-2018 (Annexure-A) issued by the respondent No.3 herein and further be pleased to direct that the petitioner is tiled to the pension on the actual deductions (higher wages) under the Employees Pension Scheme, 1995."

2. It is the case of the petitioner that under the provisions of the Employees' Provident Funds and Misc. Provisions Act, 1952, at the relevant time, 10% or 12% of the basic wages including Dearness Allowances is required to be deposited in the Provident Fund Account of the respective employee towards the share of the employee with contribution to the same extent from the wages of the employee and similar contribution from the employer.

C/SCA/17681/2019 ORDER DATED: 13/02/2023

3. The present issue arose on account of the fact that the petitioner's case being that there should not be any percentage of contribution towards the scheme, but depending upon the last salary drawn should be the consideration for the purpose of granting benefit under the Act.

4. Pending the petition, the issue was considered by the Apex Court and accordingly, directions are issued by the Apex Court in case of Employees' Provident Fund Organization Vs. Sunil Kumar B., reported in AIR 2022 SC, 5634, where, in para 44, the Apex Court has directed as under:- "44. 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 subparagraphs.

(ii) Amendment to the pension scheme brought about by the notification no. G.S.R. 609(E) dated 22 nd 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

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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 underparagraph 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 cut off 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 preamended 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 cutoff 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 1 st September

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2014 without exercising any option under paragraph 11(3) of the preamendment 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 1stSeptember 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.

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(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) (preamendment) 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.19171918 of 2018 and Contempt Petition (C) Nos. 619620 of 2019 in Civil Appeal Nos. 10013-10014 of 2016 are disposed of in the above terms."

5. Today, learned Advocate for the respondent-EPFO has placed on record communication dated 29.12.2022 addressed by the Head Office of EPFO, New Delhi to the Additional CPFCs, Zonal Offices and RPFCs /OICs, Regional Offices, for the purpose of complying with the directions of the Apex Court.

6. Learned Advocate for the petitioner also drew attention of this Court notices issued to the respective employees to act in accordance with the directions contained in the decision of the Apex Court.

7. In view of the aforesaid, as now the issue is considered and settled by the directions contained in the decision of the Apex Court in case of Employees' Provident Fund Organization Vs. Sunil Kumar B. (supra), the Court proposes to dispose of these petition

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with a direction that respondent No.2-Regional Provident Fund Commissioner, Mumbai shall take into consideration case of eachof the petitioner in accordance with the directions of the Apex Court. Since the petitioner is before this Court, obviously, the petitioner has filed the petition in exercise of such option which is provided in para-44(iv) where time limit has been extended for a period of 4 months. In that view of the matter, the petitioner and respondent No.3 shall furnish option in proper format forthwith, in any case, not later than 10.03.2023, which should be treated as exercise of option in accordance with the requirements of the decision of the Apex Court considering the date of the decision of the Apex Court the date on which the option will be given will be within the time specify by the Apex Court. Upon receipt of such option, the same should be processed by the respondent-EPFO in accordance with law and outcome be communicated to the petitioner as expeditiously as possible.

8. With the aforesaid directions, the petition stands disposed of. Direct service is permitted.

9. In view of the order passed in the main petition, no order is

required to be passed in Civil Application. Accordingly, stand disposed of.

(A.Y. KOGJE, J) SIDDHARTH