Kerala High Court

Thankarajan M.N vs Union Of India on 12 April, 2023

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
         Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
                           WP(C) NO. 10535 OF 2023
PETITIONERS:

  1. THANKARAJAN M.N., AGED 64 YEARS, THANKARAJAN M.N., AGED 64, S/O.
     NARAYANAN M.K., MANDAVANA HOUSE, WEST KODUNGALLOOR, MYTHREE - 123,
     ALUVA, ERNAKULAM 683110, PIN - 683110
  2. BALAGANGADHARAN K. AGED 63 YEARS BALAGANGADHARAN K., AGED 63, S/O.
     DAMODHARA MENON, USHAS, ATTUPURATH, EROOR WEST POST, THRIPUNITHURA,
     ERNAKULAM 682306, PIN - 682306
  3. ANUB M.H. AGED 63 YEARS ANUB M.H., AGED 63, S/O. HAMSAKUTTY M.V.,
     PEREKATTIL HOUSE, ERAMAM, MUPPATHADAM POST, ALUVA, ERNAKULAM 683110
     , PIN - 683110
  4. A.P. ANTONY AGED 63 YEARS A.P. ANTONY, AGED 63, S/O. PAILY A.M.,
     AMBAT HOUSE, CHENNUR, KOTHAD POST, ERNAKULAM 682027, PIN - 682027
  5. ABDUL KHADER V.K. AGED 61 YEARS ABDUL KHADER V.K., AGED 61, S/O.
     KUNJUMUHAMMED, VADAKKANTHY, PONJASSERY POST, PERUMBAVOOR, ERNAKULAM
     683547, PIN - 683547
  6. MOHANDAS V.K. AGED 60 YEARS MOHANDAS V.K., AGED 60, S/O. KUTTAPPAN,
     VEERANTHARA HOUSE, VALLUVALLY, KOONAMMAVU POST, ERNAKULAM 683518 ,
     PIN - 683518
  7. ASOKAN N. AGED 60 YEARS ASOKAN N., AGED 60, S/O. NARAYANAN,
     EDAPPATTU HOUSE, MALAYIDAMTHURUTH POST, ERNAKULAM 682021, PIN -
     682021
  8. DAVIDSON E.D. AGED 61 YEARS DAVIDSON E.D., AGED 61, S/O. DEVASSIA
     E.J., EENTHANAL HOUSE, MALIYADAM THURUTH POST, POOKKATTUPADY,
     ERNAKULAM 683561, PIN - 683561
  9. THOMAS C.L. AGED 60 YEARS THOMAS C.L., AGED 60, S/O. C.T. LAYONS,
     CHULLIKATT HOUSE, KOTTUVALLI SOUTH, KAITHARAM POST, N. PARAVOOR,
     ERNAKULAM 683519, PIN - 683519
 10. ROY JOSEPH AGED 66 YEARS ROY JOSEPH, AGED 66, S/O. JOSEPH JOSEPH,
     ARACKAL HOUSE, MANJUMMAL, UDYOGAMANDAL POST, ERNAKULAM 683501, PIN -
     683501
 11. K.V.THOMAS AGED 63 YEARS K.V.THOMAS, AGED 63, S/O. VARKEY VARKEY,
     KOODUTHOTTIYIL HOUSE, ERNAKULAM DISTRICT, 686665, PIN - 686665
 12. GOVINDAN NAIR N. AGED 61 YEARS GOVINDAN NAIR N., AGED 61, S/O
     NARAYANAN NAIR, KUPPESSERY HOUSE, KAVUMPURAM P.O., AIMURY,
     PERUMBAVOOR, ERNAKULAM, 683544, PIN - 683544
 13. SIVAN V.K. AGED 60 YEARS SIVAN V.K., AGED 60, S/O KRISHNAN NAIR,
     VALIYAMAKKAL HOUSE, KAYANTIKKARA, MUPPATHADAM POST, ALUVA ERNAKULAM
     683110, PIN - 683110
 14. MURUGAN T.G. AGED 62 YEARS MURUGAN T.G., AGED 62, S/O GOVINDA SWAMY
     T.P., THRIKKARTHIKA, PATTATHU PARAMBU, ELAMAKKARA, ERNAKULAM 682026,
     PIN - 682026
 15. MANOHARAN K.J. AGED 63 YEARS MANOHARAN K.J., AGED 63, S/O
     JANARDHANAN NAIR, KADAKKETHU HOUSE, MULLAKKERI, PANMANA POST,
     CHAVARA, KOLLAM, 691583, PIN - 691583
 16. SREEDEVI R. AGED 58 YEARS SREEDEVI R., AGED 58, D/O MADHAVA
    KARANAVAR, KALEEKKALKIZHAKKETHIL, KUTTEMPEROOR POST, MANNAR,
    ALAPPUZHA 689623, PIN - 689623
17. SOMASUNDARAN P.K. AGED 60 YEARS SOMASUNDARAN P.K., AGED 60, S/O
    KRISHNAN NAIR, PALLIYIL HOUSE, KOTTUVALLY, KAITHARAM POST, ERNAKULAM
    683519, PIN - 683519
18. SUDHARSHANAN AGED 61 YEARS SUDHARSHANAN, AGED 61, S/O NANU, DARSANA
    BHAVANAM, ADINAD SOUTH, KOLLAM 690542, PIN - 690542
19. K.P. KALADHARAN AGED 65 YEARS K.P. KALADHARAN, AGED 65, S/O
    PARAMESWARA PILLAI, PARIKKAPPILLY HOUSE, MANJUMMAL, UDYOGMANDAL,
    ERNAKULAM 683501, PIN - 683501
20. CHACKO K.P. AGED 62 YEARS CHACKO K.P., AGED 62, S/O PATHROSE,
    KODINJAMKUNNEL HOUSE, PANAYIKULAM POST, ALANGAD, ERNAKULAM 683511,
    PIN - 683511
21. UMMER P.A. AGED 61 YEARS UMMER P.A., AGED 61, S/O ABDUL RAHIMAN,
    PULAVATH HOUSE, ALLAPRA POST, PERUMBAVOOR, ERNAKULAM 683 556, PIN -
    683556
22. K.G. RAMESAN AGED 65 YEARS K.G. RAMESAN, AGED 65, S/O K.R. GOVINDAN
    KUTTY, KATTANGANEZHUTH HOUSE, AROOR POST, ALAPPUZHA, 688 534, PIN -
    688534
23. SURESH M.P. AGED 62 YEARS SURESH M.P., AGED 62, S/O PADMANABHAN
    NAIR, MALIKAKADAVIL HOUSE, ALANGAD POST, KOTTAPURAM, ERNAKULAM
    683511, PIN - 683511
24. NOORUDEEN K.K. AGED 59 YEARS NOORUDEEN K.K., AGED 59, S/O K.S.KUTTY,
    KALLEPADATH HOUSE, MUPPATHADOM POST, ALUVA, ERNAKULAM 683110, PIN -
    683110
25. K.P. XAVIER AGED 62 YEARS K.P. XAVIER, AGED 62, S/O K.V.PAILY,
    KANAPPILLY HOUSE, KOONAMMAV POST, ERNAKULAM 683518, PIN - 683518
26. P.K. JAGANADHAN AGED 65 YEARS P.K.JAGANADHAN, AGED 65, S/O
    P.V.KRISHNAN, PULLE PARAMBIL, KRISHNA KRIPA, SWAGATHAM ROAD,
    VADUTHALA POST, ERNAKULAM 682023, PIN - 682023
27. MOHANAN K.V. AGED 60 YEARS MOHANAN K.V., AGED 60, S/O CHATHAPPAN
    K.V., NANDAVAN HOUSE, KANIYAMPAL, KUNNAMKULAM POST, THRISSUR 680503,
    PIN - 680503
28. SHOBHANA P.A. AGED 60 YEARS SHOBHANA P.A., AGED 60, D/O KUNJAN
    AYYAPPAN, VELANPARAMBIL HOUSE, JUBILY ROAD, JURA, 46, EDATHALA POST,
    PUKKATTUPADI, ERNAKULAM 683561, PIN - 683561
29. RADHA V.T. AGED 60 YEARS RADHA V.T., AGED 60, D/O THEVAN E.V.,
    KAYIPPURATH HOUSE, MANJUMMAL POST, UDYOGMANDAL, ERNAKULAM 683501,
    PIN - 683501
30. GEORGE K.J. AGED 64 YEARS GEORGE K.J., AGED 64, S/O K.M. JOSEPH,
    KALAPPURAKKAL HOUSE, CHUTTUPADU KARA, EDAPPALLY POST, ERNAKULAM
    682024, PIN - 682024
31. SHAMSUDHEEN M.K. AGED 60 YEARS SHAMSUDHEEN M.K., AGED 60, S/O
    KUNJALI K.A., MANAVACHALA PARAMBU HOUSE, ELOOKKARA, MUPPATHADOM
    POST, ERNAKULAM 683110., PIN - 683110
32. MUHAMMED KUNJU K.A. AGED 61 YEARS MUHAMMED KUNJU K.A., AGED 61, S/O
    ABDUL KHADAR, KANJIRATHINKAL HOUSE, KUTTIKKATTUKARA POST, ELOOR,
    ERNAKULAM 683501, PIN - 683501
33. UDAYAKUMAR A.R. AGED 64 YEARS UDAYAKUMAR A.R., AGED 64, S/O A.P.
      RAMAN, ATTAPARAMBIL HOUSE, WEST CHALAKKUDY POST, THRISSUR, 680307,
     PIN - 680307

RESPONDENTS:

  1. UNION OF INDIA UNION OF INDIA, REPRESENTED BY THE SECRETARY,
     MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, SHRAM SAKTHI
     BHAVAN, RAFI MARGH, NEW DELHI - 110 001, PIN - 110001
  2. EMPLOYEES' PROVIDENT FUND ORGANIZATION EMPLOYEES' PROVIDENT FUND
     ORGANIZATION REPRESENTED BY THE CENTRAL EMPLOYEES PROVIDENT FUND
     COMMISSIONER, BHAVISHYANIDHI BHAVAN, 14- BHIKHAJI CAMA PLACE, NEW
     DELHI - 110 066, PIN - 110066
  3. REGIONAL PROVIDENT FUND COMMISSIONER REGIONAL PROVIDENT FUND
     COMMISSIONER, EPF ORGANISATION, BHAVISHYANIDHI BHAVAN, KALOOR POST,
     ERNAKULAM 682017, PIN - 682017

     Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the 3rd respondent to facilitate submission of the joint
option as envisaged by Paragraph 11 (4) of the Employees Pension Scheme
without insisting for submission of options under Paragraph 26 (6) of the
Employees Provident Scheme.
     This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S. C.ANIL KUMAR & A.K.PREETHA, Advocates for the petitioners, the court
passed the following:
                  ZIYAD RAHMAN A.A., J.
            ----------------------------
 W.P.(C) Nos.8979/2023, 16018/2020, 11737/2021,
    4958/2023, 5300/2023, 5442/2023, 5460/2023,
    5473/2023, 5503/2023, 5510/2023, 5513/2023,
    5790/2023, 5876/2023, 5987/2023, 6178/2023,
   6206/2023, 6260/2023, 6284/2023, 6292/2023,
    6499/2023, 6502/2023, 6681/2023, 6703/2023,
    6710/2023, 6723/2023, 6725/2023, 6731/2023,
    6740/2023, 6779/2023, 6811/2023, 6905/2023,
     6941/2023, 6990/2023, 7015/2023,7043/2023,
    7073/2023, 7105/2023, 7141/2023, 7261/2023,
    7547/2023, 7578/2023, 7614/2023, 7838/2023,
    7990/2023, 8412/2023, 8727/2023, 8777/2023,
    8990/2023, 9061/2023, 9177/2023, 9241/2023,
    9351/2023, 9358/2023, 9494/2023, 9614/2023,
  9659/2023, 9979/2023, 10175/2023, 10186/2023,
10219/2023, 10535/2023, 10650/2023, 10711/2023,
              11442/2023 & 11554/2023.
              ------------------------
       Dated this the 12th day of April, 2023


                           O R D E R

In all these cases, the issue involved is

pertaining to the legal entitlement of the

petitioners for higher pension, as per the

provisions of the Employees Provident Funds and

Miscellaneous Provisions Act, 1952. These writ

petitions are already admitted.

2. As per the decision rendered by the

Honourable Supreme Court in EPF Organisation v.

Sunil Kumar [2022(7) KHC 12 (SC)], certain

directions were issued in this regard with respect

to the options to be submitted by the employees

concerned, to be eligible for the benefits of

higher pension under the Employees Pension Scheme,

1995. In para 44 (iv) of the said decision, the

following observations were issued by the

Honourable Supreme Court.

" 44 (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 crystallized 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."

3. The Honorable Supreme Court permitted the

employees who could not submit the options in the

light of para 11(3) of the pre-amendment scheme,

to submit fresh options within a period of four

months. Though the said period expired on

3.03.2023, the same was further extended for two

months i.e. up to 3.05.2023. The petitioners in

these cases are employees intending to submit

their options in the light of directions of the

Honourable Supreme Court.

4. The EPF organization made available to the

employees the facility to submit the options

through online mode by providing necessary links

for the same on their website. Ext P9 in

WP(C)8979/2023 is the option form the employee has

to fill up while submitting the option.

      5.    The          grievance              highlighted             by        the

petitioners           is    that         one        of    the   details      to   be

furnished in the said option form is the copy of

the permission under para 26(6) of the Employees

Provident Fund Scheme, 1952. According to the

petitioners, even though they were permitted to

pay the contribution based on the salary,

exceeding the ceiling limit prescribed (Rs 5,000/-

and Rs 6,500/-), as contemplated under para 26(6)

of the Scheme 1952, no formal option has been

submitted. According to them, submission of such

an option was never necessitated or insisted upon,

and instead, higher contributions were being

accepted all along by the EPFO. Therefore, they

are unable to fill up the said column in the

online option form, and the said form is

formulated in such a fashion that, unless the

details of the option under para 26 (6) of the

Scheme, 1952 are incorporated, they cannot

successfully submit the online options. If they

are not submitting their options on or before the

cut-off date, i.e. 3.05.2023, they will be

deprived of the benefits of the Scheme to which

they are legally entitled. In such circumstances,

the petitioners seek an interim order permitting

them to submit options without insisting on the

details/copies of the options submitted by them

under para 26(6) of the Scheme 1952.

6. The prayer for interim relief is stoutly

opposed by the respective Standing Counsels for

the EPFO. According to them, the option under para

26(6) is one of the crucial requirements for

availing the benefits, and therefore, it is

absolutely necessary for processing the options

submitted by the employees.

7. The learned counsels for the petitioners

would point out that higher contributions were

being accepted by the EPFO all along, even without

formal options from the employees and without any

insistence for submission of options as referred

to above. The petitioners relied on various

circulars issued by the EPFO to substantiate the

said contentions.

8. In circular bearing No:

Pension/Misc.2005/65836 dated 22.011.2006, it was

mentioned in para 4 (4) that, if the option was

not exercised at the time of salary crossing the

statutory limit or on 16.3.1996 as the case may be

and the contributions were deposited on salary

exceeding the limit after receiving instructions

from the Office before the date of issue of

circular dated 22.06.2004, the department has the

vicarious liability(restricted to specific cases

only)of honouring such a commitment and hence the

pensionable salary shall be on the actual salary,

i.e. on the salary (exceeding the statutory limit)

on which contribution paid. However, it is true

that, in para 4 (5) of the said Circular, it was

clarified that, in cases where no options were

given, or no commitment was made by the concerned

office, but the contribution on higher pay was

deposited by the establishment/employee on their

own, excess contributions will be considered as

erroneous contributions, and the pensionary salary

will be restricted to statutory ceiling existing

from time to time. But the fact remains that the

said Circular clearly indicates that certain

offices of the EPFO used to give instructions for

accepting the higher contributions, even without

options being actually submitted, and permitting

payment of higher contribution.

9. Besides the same, in Circular No Pen-

1/12/33/96/Amendment/Vol.IV/16762 dated 22.01.2019

(Ext P3 in WP(C) 8979/2023), it is mentioned as

follows: "However, if an employer and employee have contributed under the EPF Scheme, 1952 on wages higher than the statutory wage

limit, without joint option of employee & employer, and the EPF

Account of the concerned employee has been updated by the EPFO on

the basis of such contribution received, then by action of

employee, employer and EPFO, it can be inferred that joint option

of the employee and employee has been exercised and accepted by

EPFO........."

10. Of course, the said Circular has been

withdrawn as per Circular dated 7.02.2019, in the

light of the observations made by a Division Bench

judgment of this Court in WP(C)13120 of 2015.

However, the said Circular dated 22.01.2019

clearly conveys the manner in which the EPFO

treated the issue as regards the necessity of

submitting options under para 26(6) of the Scheme

1952, and it indicates that the submission of

options was never made mandatory.

11. In addition to the above, the petitioners

have also raised a contention that, in the

judgment passed by the Division Bench of this

Court, in Sasikumar P. and others v. Union of

India and others [ILR 2019 (1) Kerala 614], it was

clarified that, the employees shall be entitled to

exercise the option stipulated by paragraph 26 of

the EPF Scheme without being restricted in doing

so by the insistence on a date. Therefore, even if

the submission of an option is mandatory, it is

still open for the employees to submit the same

without any cut-off date. It was further contended

that, even though the said judgment was set aside

by the Honourable Supreme Court in Sunil Kumar's

case (supra), it would not affect the direction of

the Division Bench judgment of this court in

Sasikumar's case (supra), as there is no contrary

finding in the decision of the Honourable Supreme

Court, with regard to the option under para 26(6)

of the Scheme 1952. In my view, this is also a

matter to be considered at the time of the final

hearing.

12. Thus, when all the above aspects are

considered, it can be seen that, right from the

inception, higher contributions were being

accepted by the EPFO, even without submitting

options under para 26(6) of the Scheme 1952. It is

also evident that in some cases, instructions were

issued from some of the offices of EPFO to accept

the same, and in some cases, accounts of

respective employees were also updated in tune

with such higher contributions.

13. Further, the petitioners also have a

contention that, going by the language used in

para 26(6) of the Scheme, 1952, it could be

interpreted as an enabling provision, which

provides the power to the EPFO to accept higher

contributions in certain circumstances and the

same cannot be treated as a provision which makes

the submission of option mandatory. The exercise

of such options and their acceptance by the EPFO

can be inferred from the conduct of the employees,

employers and the EPFO, as mentioned in Circular

dated 22.01.2019. After considering the provisions

in this regard, I am of the view that this is also

a relevant aspect to be considered in detail.

14. Thus, when considering all the above

aspects, the only view that can possibly be taken

is that the petitioners have succeeded in

establishing a prima facie case, warranting an

interim order in the matter. It is to be noted

that the balance of convenience also favours the

petitioners. Evidently, the Honourable Supreme

Court fixed the cut-off date as 3.05.2023 for

submitting the options. Now on account of the

insistence from the EPFO to furnish the details of

the option under para 26(6)of the Scheme, 1952,

and also in view of the peculiar nature of the

online facility provided for such submissions,

they are now prevented from submitting the said

options. There cannot be any dispute that if they

were not permitted to submit their options before

the cut-off date, they would be deprived of their

opportunity to claim the benefits of the judgment

of the Honourable Supreme Court forever.

 WP(C) No. 8979/2023 & Con.cases         12

Therefore,          the      petitioners       deserve      an   interim

order       for       that        reason,i.e.       the     balance    of

convenience, as well.

15. The learned Standing Counsel for the EPFO

also raised a contention that some of the writ

petitions are submitted by the employees of the

exempted establishments, and they cannot be

granted the benefits. However, in para 38 of the

judgment in Sunil Kumar's case (supra), this

aspect was considered, and it was found that

employees of the exempted establishments should

not be deprived of the benefit of remaining in the

pension scheme while drawing salary beyond the

ceiling limit. Therefore the said contention of

the EPFO is also not prima facie sustainable.