Jharkhand High Court
Regional Provident Fund ... vs The Steel Executive Federation Of ... on 16 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 261 of 2020
1.Regional Provident Fund Commissioner, Employees Provident Fund
Organisation, Regional Office, Ranchi having its office at Bhagirathi
Complex, near Circuit House, Karamtoli, PO Karamtoli, PS Sadar, District
Ranchi
2.The Additional Provident Fund Commissioner, Employees Provident Fund
Organisation, Regional Office Ranchi having its office at Bhagirathi Complex,
near Circuit House, Karamtoli, PO Karamtoli, PS Sadar, District Ranchi
3.The Assistant Provident Fund Commissioner, Employees Provident Fund
Organization, Jamshedpur, having its office at Purulia Highway, PO
Azadnagar, PS Mango, District Jamshedpur ......Appellants
Versus
1.The Steel Executive Federation of India (SEFI) being represented by its
affiliated body (ASE) Association of Steel Executives represented through its
President Bakshi K.B. Prasad (Present ASB & Chairman, SEFI) having its
office at Shyamali Colony Ranchi, PO and PS Doranda, District Ranchi
2.The Steel Authority of India Limited, through its Director, Finance, Ispat
Bhawan, Lodhi Road, PO+PS Lodhi Road, New Delhi, Union Territory, New
Delhi
3.The Board of Trustees, SAIL (Steel Authority of India Limited) through its
Chairman having its office at SAIL, RDCIS, PO &PS Doranda, Ranchi,
District Ranchi, Jharkhand
4. The Board of Trustees, SAIL (Steel Authority of India Limited) through its
Director having its office at Industry House Camac Street, PO &PS Park
Street, Kolkata, District Kolkata, State West Bengal
5.The Union of India through the Secretary, Ministry of Labour and
Employment having its office at Shastri Bhawan, New Delhi, PO &PS New
Delhi, District New Delhi
6.The Central Provident Fund Commissioner, Employees Provident Fund
Organization, Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place, New Delhi,
PO &PS New Delhi, District New Delhi ... Respondents
---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellants : Mr. Rupesh Singh, Advocate
Mr. Jagdeesh, Advocate
For the Respondents : None
---------------
ORDER
16th August 2023
The Regional Provident Fund Commissioner and others have
filed this Letters Patent Appeal challenging the order dated 10th February
2020 passed in WP(C) No. 1856 of 2018.
2. Before the writ Court, a challenge was laid to the letter dated
13th May 2017 issued by the Regional Provident Fund Commissioner-I
(Pension) debarring the members of the Steel Executives Federation of India
(SEFI) from making adjustment of contributions from the Provident Fund
account to the Pension account. As the reason disclosed in the letter dated 31 st
May 2017 reads, it was on account of the writ petitioner-Federation falling
under the exempted category.
3. Basing its decision on the judgment in "R.C. Gupta & Others v.
Regional Provident Fund Commissioner and Others" (2018) 14 SCC 809, the
writ Court has held as under:
"7. Keeping in view the aforesaid proposition laid down by the Hon'ble
Apex Court and that the impugned letter dated 31.05.2017 has already
been quashed by the High Court of Delhi vide judgment dated
22.05.2019, there is no requirement of any fresh adjudication regarding
the validity of letter dated 31.05.2017 issued by the Regional Provident
Fund Commissioner-I (Pension) as impugned by the petitioner in the
present writ petition."
4. Having heard Mr. Rupesh Singh, the learned counsel for the
appellant, we do not find any reason to interfere in this matter.
5. In "The Employees Provident Fund Organisation and Another v.
Sunil Kumar B. and Others" [SLP(C) Nos. 8658-8659 of 2019, dated 4th
November 2022] the Hon'ble Supreme Court has held 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 sub-paragraphs.
(ii) Amendment to the pension scheme brought about by the notification
no. G.S.R. 609(E) dated 22nd 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 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 cutoff 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 cut-off 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 1st September 2014 without
exercising any option under paragraph 11(3) of the pre-amendment 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 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-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.1917-1918 of 2018 and Contempt
Petition (C) Nos. 619¬620 of 2019 in Civil Appeal Nos. 10013-10014 of
2016 are disposed of in the above terms.
6. In that case, the Hon'ble Supreme Court has held that the
amendment made in the pension scheme vide notification dated 22nd August
2014 shall apply to the employees of the exempted establishments in the
same manner as the employees of the regular establishments. Mr. Rupesh
Singh, the learned counsel for the appellants has drawn our attention to the
order passed in LPA No. 115 of 2021 with LPA No. 118 of 2021 wherein a
Division Bench of this Court has issued a direction to the Regional
Provident Fund Commissioner, Employees Provident Fund Organisation at
Jamshedpur to take appropriate action in the light of the observations made
in "Sunil Kumar B".
7. We think we are fortified in our opinion by the judgment in
"Sunil Kumar B."
8. LPA No. 261 of 2020 is disposed of in terms of the order passed
in LPA No. 115 of 2021 with LPA No. 118 of 2021.
9. I.A No. 2101 of 2021 filed for accepting 2nd supplementary
affidavit stands disposed of.
(Shree Chandrashekhar, J.)
(Anubha Rawat Choudhary, J.)
Jharkhand High Court, Ranchi
Dated 16th August 2023
Tanuj/N.A.F.R
