Shashikant Narhariprasad Shukla vs The Regional Provident Fund ...
2023 Latest Caselaw 728 Guj

     C/SCA/8564/2020                               ORDER DATED: 30/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 8564 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 9498 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 9562 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 10422 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 1865 of 2022

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                SHASHIKANT NARHARIPRASAD SHUKLA
                              Versus
            THE REGIONAL PROVIDENT FUND COMMISSIONER
================================================================
Appearance:
MR DG SHUKLA(1998) for the Petitioner(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No. 1
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 30/01/2023

                                ORAL ORDER

1. All these petitions arise in same background and raise

similar issues. Hence, at the request of learned Advocates for the

parties, the same are taken up for joint hearing and disposal. The

facts are taken from lead matter, SCA No.8564 of 2020.

2. This petition under Article 226 of the Constitution of

India is filed for following relief:-

"(A) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus

C/SCA/8564/2020 ORDER DATED: 30/01/2023

or any other writ, order or direction directing the Respondent Provident Fund Authorities- Respondent Nos.1 and 2 herein to revise the Monthly Pension under the employees' Pension Scheme w.e.f. 22.12.2018 on the basis of his actual salary alongwith interest @ 12% per annum and be further pleased to adjust the amount from the arrears payable to the Petitioner Employee."

3. It is the case of the petitioners 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.

4. The present issue arose on account of the fact that the

petitioners' 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.

5. Pending the petitions, the issue was considered by the

Apex Court and accordingly, directions are issued by the Apex

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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 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

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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 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 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 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 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 1st

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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-

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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.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."

6. 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.

7. Learned Advocate for the petitioners 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.

8. 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 petitions

with a direction that respondent No.2-Regional Provident Fund

Commissioner, Mumbai shall take into consideration case of each

C/SCA/8564/2020 ORDER DATED: 30/01/2023

of the petitioners in accordance with the directions of the Apex

Court. Since the petitioners are before this Court, obviously, the

petitioners have filed the petitions 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 petitioners and

respondent No.3 shall furnish option in proper format forthwith, in

any case, not later than 28.02.2023, which should be treated as

exercise of option in accordance with the requirements of the

decision of 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 petitioners as

expeditiously as possible.

9. With the aforesaid directions, the petitions stand

disposed of.

Direct service is permitted.

(A.Y. KOGJE, J) SHITOLE