Himachal Pradesh High Court
S.S. Chaudhry And Others vs Employees Provident Fund ... on 25 July, 2023
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2222 of 2018
alongwith connected matters
Decided on: 25th July, 2023
-------------------------------------------------------------------------------------
.
1. CWP No.2222 of 2018
S.S. Chaudhry and others .....Petitioners
Versus
Employees Provident Fund Organization
and others .....Respondents
-------------------------------------------------------------------------------------
2. CWP No.1510 of 2016
H.P. State Cooperative Marketing
Federation Limited .....Petitioner
Versus
Union of India and another .....Respondents
-------------------------------------------------------------------------------------
3. CWP No.732 of 2018
Daulat Ram Thakur and others .....Petitioners
Versus
Union of India and others .....Respondents
-------------------------------------------------------------------------------------
4. CWP No.2239 of 2018
Raj Kumar Sharma and others .....Petitioners
Versus
H.P. State Co-operative Milk Producers'
Federation Limited and others .....Respondents
-------------------------------------------------------------------------------------
5. CWP No.2315 of 2018
Kewal Kishore and others .....Petitioners
Versus
H.P. State Co-operative Marketing and
Consumers Fed. Ltd. and others .....Respondents
-------------------------------------------------------------------------------------
6. CWP No.2584 of 2018
Ashwani Kumar Dixit and others .....Petitioners
Versus
Employees Provident Fund Organization
.
and others .....Respondents
-------------------------------------------------------------------------------------
7. CWP No.2585 of 2018
Parkash Chand Bhatia and others .....Petitioners
Versus
Employees Provident Fund Organization
and others .....Respondents
-------------------------------------------------------------------------------------
8. CWP No.2622 of 2018
Dhanvanti Gupta .....Petitioner
Versus
Auckland House School and others .....Respondents
-------------------------------------------------------------------------------------
9. CWP No.2686 of 2018
Central Board Employees' Provident Fund
Organization and others .....Petitioners
Versus
Om Prakash and another .....Respondents
-------------------------------------------------------------------------------------
10. CWP No.2814 of 2018
Ashok Sharma and others .....Petitioners
Versus
Employees Provident Fund Organization
and others .....Respondents
-------------------------------------------------------------------------------------
11. CWP No.664 of 2019
Ashwani Kumar Thakur & Anr. .....Petitioners
Versus
H.P. State Co-operative Milk Producers'
Federation Limited and others .....Respondents
-------------------------------------------------------------------------------------
12. CWP No.1045 of 2019
Basant Lal Arora .....Petitioner
Versus
Employees Provident Fund Organization
and another .....Respondents
.
-------------------------------------------------------------------------------------
13. CWP No.1431 of 2020
R.K. Prashar and others .....Petitioners
Versus
H.P. State Co-operative Milk Producers'
Federation Limited and others .....Respondents
-------------------------------------------------------------------------------------
14. CWP No.2435 of 2020
Hira Singh and others .....Petitioners
Versus
H.P. State Co-operative Milk Producers'
Federation Limited and others .....Respondents
-------------------------------------------------------------------------------------
15. CWP No.3658 of 2020
Umesh Gupta and another .....Petitioners
Versus
H.P. State Co-operative Milk Producers'
Federation Limited and others .....Respondents
-------------------------------------------------------------------------------------
16. CWP No.5830 of 2020
Balak Ram Chauhan .....Petitioner
Versus
Union of India and others .....Respondents
-------------------------------------------------------------------------------------
17. CWPOA No.5289 of 2020
Om Prakash .....Petitioner
Versus
H.P. State Co-operative Milk Producers'
Federation Limited and others .....Respondents
-------------------------------------------------------------------------------------
18. CWPOA No.5305 of 2020
Usha Saini .....Petitioner
Versus
H.P. State Veterinary Council & Ors. .....Respondents
-------------------------------------------------------------------------------------
.
19. CWP No.8 of 2021
Dinesh K. Sharma and others .....Petitioners
Versus
H.P. State Co-operative Housing Federation
Limited and others .....Respondents
-------------------------------------------------------------------------------------
Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting? 1
Mr. J.L. Bhardwaj, Senior Advocate with M/s Sanjay
Bhardwaj, Subhash Sharma, Onkar Jairath, Vijay Singh
Thakur, Nimish Gupta, Rakesh Kumar Dogra, Prashant
Sharma and Tanuj Thakur, Advocates, for the petitioners in
the respective petitions.
Mr. Rajinder Thakur, Central Govt. Standing Counsel, for the
respondent-UOI in the respective petitions.
Mr. Navlesh Verma and Mr. Raman Sethi, Advocates, for the
petitioners in CWP No.2686 of 2018 and for the respondent-
Provident Fund Organization in the respective petitions.
Mr. Rakesh Thakur, Advocate, for respondent No.3 in CWP
No.2584 of 2018.
Mr. Naresh K. Sood, Senior Advocate with Mr. Aman Sood,
Advocate, for respondent No.1-Auckland House School in CWP
No.2622 of 2018.
Mr. Vijay Singh Thakur, Advocate, for the respondent-HIMFED
in CWP No.2315 of 2018.
Dr. Lalit K. Sharma, Advocate, for respondent No.3-H.P. SC &
ST Development Corporation in CWP No.2585 of 2018.
1 Whether reporters of print and electronic media may be allowed to see the order?
Mr. Imran Khan, Advocate, for the respondent-H.P. State
Co-operative Milk Producers' Federation Limited in the
respective petitions.
Mr. Naresh Kaul, Advocate, for respondent No.5-H.P. Tourism
Development Corporation Ltd. in CWP No.5830 of 2020.
.
Mr. D.P. Chauhan, Advocate, for respondent No.1 in CWP No.8
of 2021.
------------------------------------------------------------------------------------
Jyotsna Rewal Dua, Judge
CWP No.732 of 2018
Sh. Nimish Gupta, learned counsel for the
petitioners submits that this petition be treated to have
been filed only on behalf of petitioners No.1, 5 and 9 to 13.
His statement is noted. Learned counsel further submitted
that insofar as the remaining petitioners are concerned,
they may be permitted to file separate fresh petition(s).
Prayer is accepted. This petition shall be deemed to have
been filed only on behalf of petitioners No.1, 5 and 9 to 13.
The remaining petitioners are at liberty to avail the remedy
available to them in law.
CWP No.2584 of 2018
2. Sh. Subhash Sharma, learned counsel for the
petitioners submits that this petition may not be treated to
have been filed on behalf of petitioners No.51 and 58,
namely Smt. Tripta Lath and Sh. Dharam Singh,
respectively. His statement is noted. Learned counsel
further submitted that so far as petitioners No.51 and 58
are concerned, they may be permitted to file separate fresh
petition(s). Prayer is accepted. This petition shall be deemed
.
to have been filed on behalf of the petitioners except
petitioners No.51 and 58. Petitioners No.51 and 58 are at
liberty to avail the remedy available to them in law.
CWP No.2585 of 2018
3. Sh. Subhash Sharma, learned counsel for the
petitioners submits that this petition may not be treated to
have been filed on behalf of petitioner No.5, namely
Sh. Amar Singh. His statement is noted. Learned counsel
further submitted that so far as petitioner No.5 is
concerned, he may be permitted to file separate fresh
petition. Prayer is accepted. This petition shall be deemed
to have been filed on behalf of the petitioners except
petitioner No.5. Petitioner No.5 is at liberty to avail the
remedy available to him in law.
CWP No.2222 of 2018, CWP No.1510 of
2016, CWP Nos.732, 2239, 2315, 2584,
2585, 2622, 2686 & 2814 of 2018, CWP
Nos.664 & 1045 of 2019, CWP Nos.1431,
2435, 3658 & 5830 of 2020, CWPOA
Nos.5289 & 5305 of 2020 and CWP No.8 of
4. Learned counsel for the parties on both sides
are ad idem that the subject matter involved in all these
petitions and the reliefs claimed therein have been
adjudicated upon by the Hon'ble Apex Court in Special
Leave Petition (C) Nos.8658-8659 of 2019, titled as The
.
Employees Provident Fund Organisation & Anr. Etc.
Versus Sunil Kumar B. & Ors. Etc. alongwith other
connected matters. Relevant portion from the judgment is
extracted hereinafter:-
"44 (i and ii) .................................
(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 cut
off date and thus those members shall be entitled to
exercise option in terms of paragraph 11(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) and (vi) .........................................
(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.
(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."
5. All the petitioners in these petitions have
exercised their option after 01.09.2014. Learned counsel for
the respondent-Employees Provident Fund Organization
(EPFO) submitted that the date of exercising options in
terms of the judgment of Hon'ble Apex Court by the
concerned employees/petitioners was initially extended to
03.05.2023 and thereafter to 26.06.2023. Lastly, the date
was extended to 11.07.2023. It is not in dispute that all the
petitioners herein have exercised their options accordingly.
6. Learned counsel for the respondent-EPFO
.
submit that based upon the options so exercised by the
petitioners, consequential action in accordance with law
and in light of judgment passed by the Hon'ble Apex Court
shall be taken. Learned counsel further submit that
individual cases of the petitioners shall be scrutinized in
accordance with law and fresh orders in all such cases shall
be passed. Their statements are taken note of.
It is hoped and expected that while carrying out
the above exercise, the respondent-EPFO shall keep in
mind the time-limit framed by the Hon'ble Apex Court. In
case the petitioners still have any grievances, they are at
liberty to seek appropriate remedy in accordance with law.
With the above observations, these petitions are
disposed of alongwith pending miscellaneous application(s),
if any.
Jyotsna Rewal Dua
July 25, 2023 Judge
Mukesh
