Himachal Pradesh High Court
Vipan Kumar Kapoor vs Union Of India And Others on 5 September, 2023
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.20 of 2018
Decided on: 5th September, 2023
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Vipan Kumar Kapoor .....Petitioner
.
Versus
Union of India and others .....Respondents
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Coram
Ms. Justice Jyotsna Rewal Dua
1 Whether approved for reporting?
_________________________________________________________________
For the petitioner: r Mr. Manish Sharma, Advocate.
For the respondents: Mr. Nand Lal Sharma, Senior Panel
Counsel, for respondent No. 1.
Mr. Navlesh Verma, Advocate, for
respondents No.2 and 3-RPFC.
Mr. Yudhvir Singh Thakur,
Advocate, for respondent No.4.
Jyotsna Rewal Dua, Judge
Learned counsel for the parties on both sides
are ad idem that the subject matter involved in this petition
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
1 Whether reporters of Local Papers may be allowed to see the judgment?
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 1stSeptember 2014 stands
crystalised in the judgment of this Court in the case of
R.C. Gupta (supra). The scheme as it stood before
1stSeptember 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) 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."
2. The petitioner in this petition had exercised his
option after 01.09.2014. Learned counsel for the
respondent-Employees Provident Fund Organization (EPFO)
submitted that the date of exercising option in terms of the
judgment of Hon'ble Apex Court by the concerned
employee/petitioner 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 the petitioner herein
has exercised his option accordingly.
3. Learned counsel for the respondent-EPFO
submit that based upon the option so exercised by the
petitioner, consequential action in accordance with law and
in light of judgment passed by the Hon'ble Apex Court shall
be taken. Learned counsel further submits that case of the
petitioner shall be scrutinized in accordance with law and
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fresh order shall be passed. His statement is 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 petitioner still has any grievances, he is at liberty
to seek appropriate remedy in accordance with law.
With the above observations, this petition is
disposed of alongwith pending miscellaneous application(s),
if any.
Jyotsna Rewal Dua
September 5, 2023 Judge
(mamta)
