Kerala High Court
K.P.Suresh Kumar vs State Of Kerala on 1 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
WP(C) NO. 32643 OF 2015
PETITIONERS:
1 K.P.SURESH KUMAR,
AGED 52 YEARS,
SECRETARY (RETIRED), THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862,
PALODE, KARIMANCODE P.O., THIRUVANANTHAPURAM
2 T.R. PRADEEP KUMAR,
SECRETARY, THE PALODE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE P.O.,
THIRUVANANTHAPURAM
3 P.T. AJITHKUMAR,
ASSISTANT SECRETARY, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
4 M. PREMAKUMAR,
RECOVERY OFFICER,THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
5 R. VAIJU KUMAR,
BRANCH MANAGER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
6 K.C. SANDHYA,
BRANCH MANAGER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
7 V.R. SATHEESHKUMAR,
BRANCH MANAGER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE, KARIMANCODE
P.O., THIRUVANANTHAPURAM
WP(C) NO. 32643 OF 2015 -2-
8 S. KALAMINI,
SENIOR SUPERVISOR, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO. T
862, PALODE, KARIMANCODE PO, THIRUVANANTHAPURAM
9 M. GIREESH KUMAR,
SENIOR SUPERVISOR, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
10 B.K. AJITH,
JUNIOR SUPERVISOR, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
11 S. JAYAMOLD,
SENIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
12 N. BEENA,
SENIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
13 S. SREEKALA,
JUNIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
14 A. SHANAVAS,
JUNIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE P.O., THIRUVANANTHAPURAM
15 S. BINDHU KUMARY,
SENIOR CLERK, THE PALODE CO-OPERATIVE AGRICULTURAL
WP(C) NO. 32643 OF 2015 -3-
AND RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
16 B. UNNIKRISHNAN,
DRIVER,THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
17 M. JAYACHANDRAN NAIR,
ATTENDER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
18 P. GEETHA,
ATTENDER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
19 B.S. VINEESH,
ATTENDER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
20 S. RAJU,
DRIVER, THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
21 T. SURESHKUMAR,
DRIVERM THE PALODE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD NO. T 862, PALODE,
KARIMANCODE PO, THIRUVANANTHAPURAM
22 SOUMYA,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
WP(C) NO. 32643 OF 2015 -4-
23 K.G. ANI,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
24 RAGHI,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
25 REENA,
PART TIME SWEEPER, THE PALODE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD
NO. T 862, PALODE, KARIMANCODE PO,
THIRUVANANTHAPURAM
BY ADVS.
SRI.P.C.SASIDHARAN
SRI.ARAVINDA KUMAR BABU T.K.
RESPONDENTS:
1 STATE OF KERALA,
RERPESENTED BY ITS SECRETARY TO GOVERNMENT,
LABOR AND REHABILITATION DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM-695 001
2 THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION
BOARD,
REPRESENTED BY IT SECRETARY,
KERALA STATE CO-OPERATIVE EMPLOYEE'S PENSION
BOARD, PB NO. 85, KALA NIVAS, T.C. NO. 27/156,
157, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA
COLLEGE, THIRUVANANTHPAURAM-695 001
3 THE REGIONAL PROVIDENT FUND COMMISSIONER,
WP(C) NO. 32643 OF 2015 -5-
EMPLOYEES PROVEIDENT FUND ORGANISATION,
REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN,
PATTOM,THIRUVANANTHAPURAM-695 04
4 THE ASSISTATN PROVIDENT FUND COMMISSIONER,
(PENSION), EMPLOYEES PROVIDENT FUND
ORGANISATION,REGIONAL OFFICE, BHAVISHYA NIDHI
BHAVAN, PATTOM,THIRUVANANTHPAURAM-695 004
5 REGIONAL PROVIDENT FUND COMMISSIONER
(PENSION), BHAVISHYA NIDHI BHAVAN,
14-BHIKAJI CAMA PALACE, NEW DELHI-110 066
6 THE PALODE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD.,
NO. T 862,KARIMANCODE P.O., THIRUVANANTHPURAM.
REPRESENTED BY ITS SECRETARY-695 001
7 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHPAURAM-695 001
BY ADVS.
SRI.S.SUJIN, SC, EMPLOYEES PROVEIDENT FUND
ORGANISATION
SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
EMPLOYEES PENSION BOARD
SHRI.AJIT G ANJARLEKAR
SRI.GOVIND PADMANAABHAN
SRI.MANU V.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 32643 OF 2015 -6-
JUDGMENT
Petitioners 25 in number have approached this Court
under Article 226 of the Constitution of India with the
following prayers:
"i. issue a writ of certiorari or other appropriate writ,
order or direction to quash Exhibits P4, P5 and P6;
ii. issue a writ of mandamus or any other writ,
order or direction commanding and compelling the
respondents to permit the petitioners to continue
under E.P.F. Scheme itself and grant their benefits
under the E.P.F. Act and the scheme framed
thereunder;
iii. Declare that the action of the respondents 2 and
7 directing the society to bring it under the purview of
the Self Financing Pension Scheme is highly unjust
and illegal; and
v. to issue such other writ, order or direction as
this Honourable Court may deem fit and proper in the
circumstances of the case."
2. The facts leading to filing of the writ petition are
that the 1st respondent retired from the service of the 6 th
respondent, the Palod Co-operative Agricultural and Rural
Development Bank Limited and the other petitioners are
employees therein. The society established a Contributory
Provident Fund in accordance with the provisions contained
in the Kerala Co-operative Societies Act. But society and its
employees were contributing amounts to the said provident
fund. From 1.1.1982, the employees of the society were
enrolled as members of Employees Provident Fund Scheme,
1952 and the balance available to the credit of the
employees in the Contributory Provident Fund established
by the society was transferred to the Provident Fund
established under the Act. Vide Ext.P1 Order dated
19.6.2006, Government by invoking the powers under
Section 17 (1C) of the EPF & MP Act, 1952 granted
exemption to the primary co-operative societies from the
applicability of the provisions of the E.P.F. Pension scheme
so as to enable the employees of the societies to enrol as
members of the Self Financing Pension Scheme.
Petitioners challenged this order before this Court in
W.P(C).187 of 2010. The writ petition was dismissed
against which W.A.No.741/12 was filed. Writ appeal was
disposed of vide Ext.P2, in terms of judgment in
W.A.1216/12 declaring that transfer of fund from
Employees Provident Fund Scheme, 1952 and Employees
Pension Scheme, 1995 of any retired or continuing member
should be made only with his/her consent.
3. Vide Ext.P4 communication, the Regional office of
the Employees Provident Fund Organisation informed the
society that the request made by the 1st petitioner seeking
pension cannot be considered. It was also directed therein
to furnish the Pension Fund Account Number of all the
employees for transferring the accumulations in the
Employees' Pension Scheme to the Co-operative Pension
Fund Corpus. Thereafter the Kerala State Co-operative
Employees Pension Board vide Ext.P5 addressed the society
to take steps to submit application to enroll all the
employees under their scheme and to allot code number.
4. Learned counsel for the petitioners submitted
that the stand of the respondents 2, 3 and 7 in compelling
the society to enroll the employees under the Co-operative
Pension Board is highly illegal when there is a binding
judgment in favour of the petitioners.
5. On the contrary, learned counsel for the
respondents 3 to 5 opposed the prayer relying upon the
Division Bench judgment of this Court in the review
petitions filed on the writ appeal judgment relied on by the
petitioners, reported as the Employees Provident Fund
Organisation, Thiruvananthapuram Vs. Kerala State
Co-operative Employees Pension Board,
Thiruvananthapuram (2016 (5) KHC 414).
6. I have heard counsel for the parties and
appraised the paper books.
7. It is a matter of record that the Society is a
Primary Society and in this regard the judgment of this
Court in W.P.(C) No.13504 of 2011 titled as Soleman N.M.,
Mudakkuzha Service Co-operative Bank Vs. State of Kerala
and Others has been overruled in the Review Petition
reported in 2016 (5) KHC 414 (supra), wherein it has
been held that the Government had introduced a Self
Financing Pension Scheme for establishment of pension
fund for payment of pension to the employees of the Co-
operative Societies. On advent of the scheme the
establishment of the bills remain registered under the
provisions of the Employees Provident Fund and
Miscellaneous Provisions Act 1954 (hereinafter referred to
as 'EPF Act' for short). For the purposes of the
implementation of the pension scheme introduced by the
State Government it was necessary to get exemption and
exclusion from the provisions of the EPF Act and Section 17
of the aforementioned Act prescribed the provisions. The
contention that EPF Act is more beneficial to the employees
and compelled to join the self financial scheme had been
negated in paragraph Nos.7 & 8 of the judgment in
Employee Provident Fund Organisation (supra). The
same are extracted hereinbelow:
"7. The Pension Board constituted under the
'Self Financing Pension Scheme' formulated by the
State Government went up in appeal against the
above said judgment of the Single Judge. Those writ
appeals were disposed of through the judgments
which are sought to be reviewed herein. While
disposing the writ appeals the Division Bench
observed that, it is not necessary to decide the issue
as to which among the schemes is more favourable to
the employees. It was observed that, it would be safe
to leave such question to the decision of the
employees, as to which among the Employees
Pension Scheme, 1995 or the Self Financing Pension
Scheme of the State Government is more beneficial
to them. Crux of the issue considered by the Division
Bench is that, whether there is any mandatory legal
requirement under the KCS Act or under the EPF Act
to terminate the existing membership of the
employees in the Employees Pension Scheme, 1995
and to transfer the funds to the Self Financing
Pension Scheme, with respect to the retired and
working employees who are members of the 1952
scheme. Referring to the proviso introduced to
S.61(1) of the KCS Act and also to the provisions of
the R.58 of the Kerala Co-operative Societies Rules,
this Court noticed that, after establishment of the
Self Financing Pension Scheme the provisions of EPF
Act do not apply to the establishments, which are
required to establish a Provident Fund by itself, so as
to enable the operation of the Self Financing Pension
Scheme But at the same time, this Court noticed that
the proviso to R.58(1) as well as sub-rule (4) of R.58
and found that, neither the State Government nor the
Board administering the Self Financing Scheme
cannot compel transfer of the funds of individual
employees, who are members of the Employees
Provident Fund Scheme, 1952 and Employees
Pension Scheme, 1995, without their consent. But
after arriving at such a finding, the Division Bench in
the judgment impugned herein observed as follows:
"Since both the appellant as well as Employees
Provident Fund Organisation and the Pension Fund
operate for the benefit of the employees, we feel
those who wish to opt to transfer the membership
from the Employees Provident Fund Scheme, 1952
and the Employees Pension Scheme, 1995 can apply
for the same and in such cases the EPF
Commissioner should transfer the funds. In other
words, transfer of fund from EPF Scheme, 1952 and
Employees Pension Scheme, 1995 of any retired or
continuing member should be made only with his/her
consent. It is for the appellant to fix a time limit for
exercising the option for retired employees and for
serving employees and in all such cases fund will be
transferred to the appellant Board from the
Employees Provident Fund and Pension Schemes."
8. The Employees Provident Fund Organisation is
seeking review of the above quoted observations, by
raising contention that exemption / exclusion cannot
be granted to individual employees of a registered
establishment. Rather, the contention is that, the
exemption or exclusion contemplated under S.17(1C)
or under S.16(1)(b) can be granted only to an
establishment. On behalf of the employee's
organisations and the individual employees, who
were petitioners in the writ petitions, it is vehemently
contended that, their membership in the Employees
Pension Scheme, 1995 are not liable to be terminated
or that they cannot be compelled to join the Self
Financing Pension Scheme. Referring to various
provisions in the EPF Act and in the schemes
formulated thereunder it is contended that, such
transfer can be made only on the basis of consent of
the individual employee concerned. In this regard
much emphasis was placed on provisions contained
in S.17C of the EPF Act, 1952 as well as in Paragraph
13 of the Employees Pension Scheme, 1995. It is also
pointed out that, with respect to retired employees
benefits available to them or any of their service
conditions could not be altered unilaterally, after
their retirement, in any manner prejudicial to them.
Various legal precedents settled on this point were
also pointed out during the argument."
It is prerogative of the Government to grant exemption
from the applicability of the EPF Act. Employees cannot
compel the authorities from laying challenge to exemption.
No ground for interference is made out. Writ petition is
dismissed.
Sd/-
AMIT RAWAL
vv JUDGE
APPENDIX OF WP(C) 32643/2015
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GO(MS) NO 44/06/LBR
DT. 19/5/06
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WA 741/12
DT. 20/7/12
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION SENT BY
THE SOCIETY DT. 11/5/15
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DT.
23/7/15 ISSUED BY THE REGIONAL OFFICE
OF THE EMPLOYEES PROVIDENT FUND
ORGANISATION
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 2ND RESPONDENT DT.15/9/15 ALONG
WITH ITS TRANSATION
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 8TH RESPONDENT DT.16/9/15 ALONG
WITH ITS TRANSATION
EXHIBIT P7 TRUE COPY OF THE LIST OF SOCIETIES,
RECEIVED UNDER THE R.T.ACT
EXHIBIT P8 TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM AUGUST 2019
WITH REGARD TO THE EPF CONTRIBUTION
REMITTED BY THE 6TH RESPONDENT.
EXHIBIT P8(a): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM SEPTEMBERT
2019 WITH REGARD TO THE EPF
CONTRIBUTION REMITTED BY THE 6TH
RESPONDENT.
EXHIBIT P8(b): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM OCTOBER 2019
WITH REGARD TO THE EPF CONTRIBUTION
REMITTED BY THE 6TH RESPONDENT.
EXHIBIT P8(c): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM NOVEMBER
2019 WITH REGARD TO THE EPF
CONTRIBUTION REMITTED BY THE 6TH
RESPONDENT.
EXHIBIT P8(d): TRUE COPY OF EPF ELECTRONIC CHALLAN CUM
RETURN FOR THE PERIOD FROM DECEMBER
2019 WITH REGARD TO THE EPF
CONTRIBUTION REMITTED BY THE 6TH
RESPONDENT.
EXHIBIT P9: TRUE COPY OF THE PAYMENT CONFIRMATION
RECEIPT FROM AUGUST 2019 ISSUED BY THE
EPF ORGANISATION.
EXHIBITP9(a): TRUE COPY OF THE PAYMENT CONFIRMATION
RECEIPT FROM SEPTEMBER 2019 ISSUED BY
THE EPF ORGANISATION.
EXHIBIT P9(b): TRUE COPY OF THE PAYMENT CONFIRMATION
RECEIPT FROM OCTOBER 2019 ISSUED BY THE
EPF ORGANISATION.
EXHIBIT P9(c): TRUE COPY OF THE PAYMENT CONFIRMATION
RECEIPT FROM NOVEMBER 2019 ISSUED BY
THE EPF ORGANISATION.
EXHIBIT P9(d): TRUE COPY OF THE PAYMENT CONFIRMATION
RECEIPT FROM DECEMBER 2019 ISSUED BY
THE EPF ORGANISATION.
RESPONDENT EXHIBITS
EXHIBIT R2(A) TRUE COPY OF THE JUDGMENT DATED
07.02.2012 IN W.P.(C) NO.13504/2011
ALONG WITH W.P.(C) NO.187/2010.
EXHIBIT R2(B) TRUE COPY OF THE JUDGMENT IN
R.P.NO.992/2016 AND CONNECTED CASES
DATED 27.07.2016.
