Kerala High Court

1. Lakshmanan K vs 1. Union Of India Represented By ... 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. 7990 OF 2023
PETITIONERS:

  1. 1. LAKSHMANAN K., AGED 68 YEARS, NARAYANA, CHANDROTH, CHIRAKKAL,
     KANNUR (PPO NO. KR/KNR/45375/2016), PIN - 670011
  2. 2. SANKARAN P.K., AGED 67 YEARS, ANASWARA, NEAR KAMANA,
     PANTHALAYANI, KOYILANDI, KOZHIKODE, (PPO NO. KR/KKD/60618), PIN -
     673305
  3. 3. P. KRISHNAN, AGED 69 YEARS SREELAKSHMI, KOTTATHUMCHAL, PARIYARAM
     MEDICAL COLLEGE P.O., KANNUR (PPO NO. KR/KNR/43301), PIN - 670503
  4. 4. GEORGE P.A AGED 67 YEARS PALLITHAZHATH HOUSE, MANATHANA P.O.,
     KELAKAM, KANNUR (PPO NO. KR/KNR/45482), PIN - 670674
  5. 5. V.BALAKRISHNAN AGED 73 YEARS THAZHEKANDI HOUSE, CHITTARIPARAMBA
     P.O., KANNUR (PPO NO. KR/KNR/28236), PIN - 670650
  6. 6. NARAYANAN M AGED 73 YEARS MANGALASSERI ILLAM, PATHIRIYADUKKAM P.O
     NILESWWARAM, KASARGODE (PPO NO. KR/KNR/24567), PIN - 671314
  7. 7. ASHOKAN K AGED 75 YEARS SHEENI NIVAS, CHIRAKKAL, KANNUR (PPO NO.
     KR/KNR/24569), PIN - 670021
  8. 8. KRISHNAN P AGED 71 YEARS KRISHNA, KADACHIRA, KANNUR (PPO NO.
     KR/KNR/33448), PIN - 670621
  9. 9. PRABHAKARAN P AGED 69 YEARS POYIL HOUSE, KOYYODE P.O., KADACHIRA,
     KANNUR (PPO NO. KR/KNR/41338), PIN - 670621
 10. 10. VALSALAN P.K AGED 68 YEARS KINARA HOUSE, EDAT P.O, PAYYANNUR,
     KANNUR (PPO NO. KR/KNR/45628), PIN - 670327
 11. 11. SAHADEVAN C.K AGED 71 YEARS USHASS, NEAR CCSM LTD., CHOVVA,
     KANNUR (PPO NO. KR/KNR/38267), PIN - 670006
 12. 12. AMBUKUNHI AGED 69 YEARS MADAKKAL HOUSE, THADIYANKOVVAL, UDINOOR,
     KASARGODE (PPO NO. KR/KNR/37981), PIN - 671310
 13. 13. BALAKRISHNAN AGED 67 YEARS KAKKOD HOUSE, PERUMBATTA P.O.,
     CHERUVATHUR, KASARGODE (PPO NO. KR/KNR/ 41301), PIN - 671313
 14. 14. JAYARAJAN O AGED 70 YEARS ONDEN HOUSE, AZHIKODE SOUTH, KANNUR
     (PPO NO. KR/KNR/38037), PIN - 670009
 15. 15. KUNHIKANNAN K AGED 69 YEARS UTHRAM, KORARAMBA, EDAYANNUR, KANNUR
     (PPO NO. KR/KNR/32402), PIN - 670595
 16. 16. RAVINDRAN NAIR M AGED 66 YEARS PADIMARUTH HOUSE, VATTAMTHATTA,
     MULIYAR, KASARGODE (PPO NO. KR/KNR/46911), PIN - 671542
 17. 17. NARAYANAN K.E AGED 67 YEARS KEYYILLATH HOUSE, THOTTARAMBA,
     PULIMPARAMBA, THALIPARAMBA, KANNUR (PPO NO. KR/KNR/44081), PIN -
     670141
 18. 18. SREEDHARAN V.V AGED 73 YEARS SREENILAYAM, ACHILOTMOOLA, VESALA,
     CHATTUKAPPARA, KANNUR (PPO NO. KR/KNR/29210), PIN - 670592
 19. 19. SEKHARAN P AGED 75 YEARS KALLYANI HOUSE, MORAZHA, PANTHOTTAM,
     KANNUR (PPO NO. KR/KNR/25215), PIN - 670331
 20. 20. NARAYANAN M AGED 73 YEARS MELEDATH HOUSE, KADAMBOOR, EDAKKAD,
     KANNUR (PPO NO. KR/KNR/27588), PIN - 670663
 21. 21. RAJENDRAN N AGED 73 YEARS NAYANAM, POOTHAPPARA, AZHIKODE, KANNUR
     (PPO NO. KR/KNR/ 26219), PIN - 670009
22. 22. RAMAN U AGED 68 YEARS VATTAPOYIL, NILESHWAR, KASARGODE (PPO NO.
    KR/KNR/42287), PIN - 671314
23. 23. GOVINDAN T AGED 74 YEARS SARITHAS, MERALI ROAD, PAPPINISSERY,
    KANNUR (PPO NO. KR/KNR/23667), PIN - 670561
24. 24. SANTHAKUMARI K AGED 74 YEARS GAANAM, DHARMADAM, KANNUR (PPO NO.
    KR/KNR/ 21689), PIN - 670106
25. 25. BALAN M AGED 73 YEARS PRASADAM,PATTIAM, POOKODE, KANNUR (PPO
    NO.KR/KNR/59722), PIN - 670691
26. 26. P.P. DAMODARAN AGED 71 YEARS PUTHIYAPURAYIL HOUSE, CHOOLIYAD,
    THALAKODE, KANNUR (PPO NO. KR/KNR/38087), PIN - 670631
27. 27. RUGMINI V AGED 74 YEARS PRATIBHA, KEEZHATTOOR, THALIPARAMBA,
    KANNUR (PPO NO. KR/KNR/21549), PIN - 670141
28. 28. NEENA KAMBIL AGED 67 YEARS SRISHTI, OPP. CSI CHURCH, TALAP,
    KANNUR (PPO NO. KR/KNR/44061), PIN - 670002
29. 29. K.V NALINI AGED 68 YEARS NARAYANA, CHANDROTH, CHIRAKKAL, KANNUR
    (PPO NO. KR/KNR/45376), PIN - 670011
30. 30. LALITHA M AGED 70 YEARS SANGEETH, CHALA 12 KANDY, THOTTADA,
    KANNUR (PPO NO. KR/KNR/38074), PIN - 670007
31. 31. SREEDHARAN T V AGED 75 YEARS VILAKUMADAM HOUSE, KOLACHERY,
    KANNUR (PPO NO. KR/KNR/29431), PIN - 670601
32. 32. RATHEESH K.K AGED 71 YEARS THEERTHAM, CHIRAKKARA P.O, KANNUR
    (PPO NO. KR/KNR/31934), PIN - 670104
33. 33. PREMARAJAN P.V AGED 67 YEARS DEVIKRIPA, NELLUNNI, MATTANNUR,
    KANNUR (PPO NO. KR/KNR/47692), PIN - 670702
34. 34. RAJAN K AGED 67 YEARS MOOLAKARUMBAYIL, KOMMERI, KOZHIKODE (PPO
    NO. KR/KKD/50857), PIN - 673007
35. 35. MOHANADASAN C AGED 68 YEARS CHEMBRA HOUSE, BEYPORE NORTH,
    KOZHIKODE (PPO NO. KR/KKD/61762), PIN - 670315
36. 36. VASUDEVAN I AGED 67 YEARS ILIPADIKKAL HOUSE, PERUVAYAL,
    KOZHIKODE (PPO NO. KR/KKD/ 61160), PIN - 673008
37. 37. VISWANATHAN K AGED 69 YEARS VIPIN VILLA, B.C ROAD WEST, BEYPORE,
    KOZHIKODE (PPO NO. KR/KKD/60617), PIN - 673015
38. 38. VELAYUDHAN P.M AGED 70 YEARS VISAGHAM, AMBILOLY, PANTHEERANKAVE,
    KOZHIKODE (PPO NO. KR/KKD/61182), PIN - 673019
39. 39. CLARAMMA JOSE AGED 68 YEARS MUKKUTTU HOUSE, VADAPURAM, MAMPAD,
    MALAPPURAM (PPO NO. KR/KKD/61619), PIN - 676542
40. 40. K.P GANGADHARAN AGED 69 YEARS MADATHIL HOUSE, CHEVAYUR,
    KOZHIKODE (PPO NO. KR/KKD/61177), PIN - 673017
41. 41. RAVEENDRAN C.S AGED 68 YEARS DEEPU NIVAS, MANALODY, NILAMBUR,
    MALAPPURAM (PPO NO. KR/KKD/61807), PIN - 679329
42. 42. CHANDRAMATHY A AGED 68 YEARS PURAKKAT HOUSE, BEYPORE NORTH,
    KOZHIKODE (PPO NO. KR/KKD/61611), PIN - 673015
43. 43. GOPALAN V.M AGED 68 YEARS ATTHIKKOTTU MEETHAL HOUSE, VENGERI,
    KOZHIKODE (PPO NO. KR/KKD/61173) , PIN - 673010
44. 44. M.P SREENIVASAN AGED 71 YEARS DWARAKA, VENGERI KOZHIKODE (PPO
    NO. KR/KKD/60913) , PIN - 673010
45. 45. VILASINI T AGED 71 YEARS THAMBALANGODE HOUSE, VADAPURAM. MAMPAD,
    MALAPPURAM, (PPO NO. KR/KKD/60644) , PIN - 676542
46. 46. P. VIMALA AGED 66 YEARS PAYYATH HOUSE, PURATHIYIL, THAMPURAN
     ROAD, BEYPORE NORTH, KOZHIKODE (PPO NO. KR/KKD/61594) , PIN - 673015
47. 47. M RADHAKRISHNAN NAIR AGED 68 YEARS MULIYIL HOUSE, PERUVAYAL,
    KOZHIKODE (PPO NO. KR/KKD/61599) , PIN - 673024
48. 48. CHANDRAN M AGED 73 YEARS NIRMALA STHUTHI, KIZHAKKUMMURI,
    KAKKODI, KOZHIKODE (PPO NO. KR/KKD/60607) , PIN - 673611
49. 49. C CHANDRASEKHARAN AGED 70 YEARS CHEMBRA HOUSE, ARAKKINAR,
    KOZHIKODE (PPO NO. KR/KKD/61586) , PIN - 673028
50. 50. SATHYAN. P AGED 66 YEARS SOUPARNIKA, KUTTAMANGALAM, MEDICAL
    COLLEGE P.O., KOZHIKODE (PPO NO. KR/KKD/61593) , PIN - 673008
51. 51. UNNI NAIR K AGED 70 YEARS KARIYARAMBATH, CHEEKKILODE, ATHOLI,
    KOZHIKODE (PPO NO. KR/KKD/61291) , PIN - 673315
52. 52. P.C.MATHEW AGED 66 YEARS PUTHANPARAMBIL, PUTHUPPADI, KOZHIKODE
    (PPO NO. KR/KKD/61580) , PIN - 673586
53. 53. RAJAN A AGED 66 YEARS THANAL HOUSE, KARAYAD, MEPPAYUR, KOZHIKODE
    (PPO NO. KR/KKD/57881, PIN - 673524
54. 54. K UNNIKRISHNAN AGED 70 YEARS VAISHNAVAM, ODUMBRA, OLAVANNA,
    KOZHIKODE (PPO NO. KR/KKD/60603) , PIN - 673019
55. 55. E M G RAJAMOHAN AGED 69 YEARS EDAMOOLIYIL HOUSE, PERUVAYAL,
    KOZHIKODE (PPO NO. KR/KKD/61838) , PIN - 673008
56. 56. RAMANKUTTY, P.K AGED 72 YEARS SANTHIVIHAR, MUNNURKODE,
    THRIKKATERI, PALAKKAD (PPO NO. KR/KKD/61024) , PIN - 679502
57. 57. NARAYANAN NAIR C AGED 69 YEARS CHANGANARI HOUSE, PERUVAYAL,
    KOZHIKODE (PPO NO. KR/KKD/61288) , PIN - 673008
58. 58. JOSEPH A.X AGED 66 YEARS ARAKKAPARAMBIL HOUSE, AMBALAVAYAL,
    WAYANAD (PPO NO. KR/KKD/61331) , PIN - 673593
59. 59. BALAKRISHNAN C AGED 73 YEARS CHEMBRA HOUSE, BEYPORE NORTH,
    KOZHIKODE (PPO NO. KR/KKD/61184) , PIN - 673015
60. 60. K DAMODARAN NAIR, AGED 67 YEARS 33/548-B, SOUPARNIKA, A.R CAMP
    ROAD, MARIKUNNU, KOZHIKODE (PPO NO. KR/KKD/60620) , PIN - 673012
61. 61. BALAKRISHNAN C.P AGED 67 YEARS CHARAPPARAMBATH, PAYAMBRA,
    KOZHIKODE (PPO NO. KR/KKD/61158) , PIN - 673571
62. 62. SREEDEVI V AGED 67 YEARS SANKALP, 5C SEIKEN MIDTOWN APARTMENTS,
    THIRUTHIYAD, KOZHIKODE . (PPO NO. KR/KKD/61165) , PIN - 673004
63. 63. PRABHAVATHY A AGED 72 YEARS ANUGREH, CHARAKKUZHI PARAMBA,
    CHETTIKULAM BAZAR, ELATHUR, KOZHIKODE (PPO NO. KR/KKD/60602) , PIN -
    673303
64. 64. RAMAN P AGED 72 YEARS PARAMBATH HOUSE, KUNNATHARA, KOYILANDI,
    KOZHIKODE (PPO NO. KR/KKD/61180) , PIN - 673620
65. 65. KOZHISSERY VELAYUDHAN AGED 72 YEARS KADIYAPURATH, NAIRUKUZHI,
    KOZHIKODE (PPO NO. KR/KKD/61548) , PIN - 673601
66. 66. M.VELAYUDHAN AGED 73 YEARS MOOCHIKOTTIL HOUSE, KARUVAMBRAM WEST,
    MANJERI, MALAPPURAM (PPO NO. KR/KKD/61023) , PIN - 676123
67. 67. K.V. CHANDRAN AGED 68 YEARS KAYYEDA VAZHIYIL HOUSE,
    PERANGALIPARAMBA, BEYPORE NORTH, KOZHIKODE (PPO NO. KR/KKD/61614) ,
    PIN - 673015
68. 68. KALATHIL BALAKRISHNAN AGED 69 YEARS KALATHIL HOUSE, KALLAI,
    KOZHIKODE (PPO NO. KR/KKD/61608) , PIN - 673003
69. 69. P BALAKRISHNAN AGED 67 YEARS VARSHA, CHERUKUNNUMAL,
    GURUVAYOORAPPAN COLLEGE P.O, KOZHIKODE (PPO NO. KR/KKD/61168) , PIN
    - 673014
  70. 70. SIAVADASAN M AGED 69 YEARS KARUTHEDATH KUZHI, ADUVAD, MAVOOR,
     KOZHIKODE, (PPO NO. KR/KKD/61613) , PIN - 673661
 71. 71. T GOPALAKRISHNAN, AGED 70 YEARS CHORANGADANVEEDU, PERINGOLAM
     P.O., KUNNAMANGALAM, KOZHIKODE (PPO NO. KR/KKD/61365) , PIN - 673571
 72. 72. DAMODARAN T AGED 68 YEARS THIRUTHIYIL HOUSE, KOMMERI P.O.,
     VALAYANAD, KOZHIKODE (PPO NO. KR/KKD/61364) , PIN - 673007
 73. 73. RAVEENDRAN V, AGED 68 YEARS KARUNA, KALAMKOLLIPARAMBA, PALAZHI,
     GURUVAYOORAPPAN COLLEGE P.O, KOZHIKODE (PPO NO. KR/KKD/61162) , PIN
     - 673014
 74. 74. T. KELUKUTTY AGED 69 YEARS THAYYIL HOUSE, SIVAPURI ROAD, BEYPORE
     NORTH, KOZHIKODE (PPO NO. KR/KKD/61609) , PIN - 673015
 75. 75. K. SURENDRAN AGED 70 YEARS KANAKKASSERI HOUSE, AREEKKAL VAYAL,
     ARAKKINAR, KOZHIKODE . (PPO NO. KR/KKD/61610) , PIN - 673028
 76. 76. BHASKARAN P AGED 72 YEARS NANDANAM, VATTAKKANDIPARAMBU,
     AMBALAMUKKU, KUNNAMANGALAM, KOZHIKODE (PPO NO. KR/KKD/61183) , PIN -
     673571
 77. 77. BALAGOPAL P.O AGED 67 YEARS VAISHANAVAM, CAPT P.V VIKRAM ROAD,
     KALLAI, KOZHIKODE . (PPO NO. KR KKD/61170) , PIN - 673003
 78. 78. SAMIKUTTY C AGED 69 YEARS CHERUKKADAN PARAMBATH, VALAYANNUR,
     CHERUPPA, MAVOOR, KOZHIKODE (PPO NO. KR/KKD/61164) , PIN - 673661
 79. 79. RADHAKRISHNAN C.P AGED 59 YEARS KRISHNA, 33/4319A, HOUSING
     COLONY, MALAPARAMBA, KOZHIKODE (PPO NO. KR/KKD/60616) , PIN - 673009
 80. 80. KARTHYAYINI K AGED 69 YEARS JYOTHSNA, CHATTANCHAL, THEKKIL,
     KASARGODE (PPO NO. KR/KNR/37828) , PIN - 671541

RESPONDENTS:

  1. 1. UNION OF INDIA, REPRESENTED BY IT'S SECRETARY, MINISTRY OF LABOUR
     AND EMPLOYMENT, DEPARTMENT OF EMPLOYMENT, NEW DELHI , PIN - 110001
  2. 2. BOARD OF TRUSTEES OF EMPLOYEES PROVIDENT FUND ORGANISATION,
     REPRESENTED BY THE CENTRAL PROVIDENT COMMISSIONER BHAVISHYA NIDHI
     BHAVAN, 14, BHIKAJI CAMA PALACE, NEW DELHI , PIN - 110066
  3. 3. ASSISTANT PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, EPF
     ORGANISATION, BHAVISHYANIDHI BHAVAN, ERANJIPALAM, KOZHIKODE , PIN -
     673006
  4. 4. ASSISTANT PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, EPF
     ORGANISATION, BHAVISHYANIDHI BHAVAN, KANNUR , PIN - 670001
  5. 5. MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD.,
     REPRESENTED BY ITS MANAGING DIRECTOR PERINGALAM, KUNNAMANGALAM,
     KOZHIKODE, PIN - 673571

     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   issue an interim order, directing the respondents not to
reduce the pension revised, based on Exts. P3 to P5, during the pendency
of the above writ petition.
     This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
08.03.2023 and upon hearing the arguments of SHRI. PRAKASH M.P., Advocate
for the petitioners, SHRI. MANU S. DSG OF INDIA, for R1, SHRI. NITA N.S,
Advocate for R3 & R4, 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.