Kerala High Court

P.K. Kunju 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. 7105 OF 2023
PETITIONERS:

  1. P.K. KUNJU AGED 69 YEARS S/O. P.M. KURIAN, P.P.O. NO
     KR/KCH/00116255, PULIVELIL, KADAVANTHRA P.O, KOCHI, PIN - 682020
  2. K.N. VIMALAKUMARA SARMA AGED 70 YEARS S/O. LATE. NARAYANAN UNNI,
     P.P.O. NO KR/KCH/00116702, KARTHIKA, P.C. CROSS ROAD, PONNURUNNI,
     VYTTILA .P.O, KOCHI, PIN - 682019
  3. SOBHANA PAUL K.P AGED 69 YEARS D/O. R. PAUL, P.P.O. NO
     KR/KCH/00116362, CHAMBAKOTTUKUDIYIL HOUSE, THOTTUNGATHARA ROAD,
     KADAVANTHRA, ERNAKULAM, PIN - 682020
  4. RAMACHANDRAN ACHARI R AGED 70 YEARS S/O. RAGHAVAN ACHARY, P.P.O. NO
     KR / KCH/ 00116353, ARUNIMA, KETTEZHUTHU KADAVU ROAD, MARADU P.O,
     ERNAKULAM, PIN - 682304
  5. RAMACHANDRAN NAIR S AGED 69 YEARS S/O. LATE. SIVARAMA PILLAI, P.P.O.
     NO KR/KCH/00116357, 28/2879, THUSHARAM, PONNETH SOUTH ROAD,
     KADAVANTHRA P.O, KOCHI, PIN - 682020
  6. VALSALA N.S AGED 75 YEARS W/O. BALAKRISHNAN NAIR (LATE), P.P.O. NO
     KR/KCH/00117296, SREEVALSAM, CHOTTANIKKARA P.O, KUREEKADU,
     ERNAKULAM, PIN - 682312
  7. MUKUNDAN V.V AGED 68 YEARS S/O. VASU ELAYATH (LATE), P.P.O. NO
     KR/KCH/00116711, VELUTHAMESSARY ILLAM, PANDAVATH ROAD, MARADU .P.O,
     ERNAKULAM, PIN - 682304
  8. RAMACHANDRAN C AGED 68 YEARS S/O. RAMAN NAIR V (LATE), P.P.O. NO
     KR/KCH/00115562, AISWARYA, KATTITHARA ROAD, KPPS-367, MARADU P.O,
     ERNAKULAM, PIN - 682304
  9. T.P. RAVIKUMARAN NAIR AGED 75 YEARS S/O. PARAMESWARAN NAIR (LATE),
     P.P.O. NO KR/KCH/00117349, HOUSE NO: 69/2905, ESRA A059, SREEPADAM,
     KARUKAPPILLY PARAMBU, ELAMAKKARA P.O,, PIN - 682026
 10. SUDARSANAN A.N AGED 68 YEARS S/O. A.I. NARAYANAN (LATE), P.P.O. NO
     KR/KCH/00116373, AMBAT GGK RA G04, GOLD LANE ANCHUMURY, THAMMANAM
     P.O, ERNAKULAM, PIN - 682032
 11. JOSEPH ANTONY O AGED 68 YEARS S/O. JOSEPH ANTONY (LATE), P.P.O. NO
     KR/KCH/00116374, OTTUPURAKKAL HOUSE, MARADU P.O, , PIN - 682304
 12. NADARAJAN ACHARI N AGED 69 YEARS S/O. LAKSHMANAN, P.P.O. NO
     KR/KCH/00116710, ARUNIMA, THOTTUNGALTHARA ROAD, KADAVANTHRA P.O,,
     PIN - 682020
 13. BALU JOHN AGED 67 YEARS S/O. JOHN N.J (LATE), P.P.O. NO
     KR/KCH/00116708, NJARACKAVELIL HOUSE, PERUMANOOR P.O,, PIN - 682015
 14. VALLY C.K AGED 74 YEARS W/O. VELAYUDHAN T.K, P.P.O. NO
     KR/KCH/00116321, 27/2751, MAYURAM, VIDYA NAGAR, KADAVANTHRA P.O, ,
     PIN - 682020
 15. SIVASANKARAN E.G AGED 70 YEARS S/O. P.N. GOPALA PILLAI (LATE),
     P.P.O. NO KR/KCH/00117357, PULINCHOTTIL HOUSE, ALUVA, ERNAKULAM, PIN
     - 683578
 16. PAUL M.A AGED 68 YEARS S/O. M.P. AUGUSTINE (LATE), P.P.O. NO
     KR/KCH/00117162, MULAVARIKKAL HOUSE, VADEL ROAD, NAYARAMBALAM P.O,
    ERNAKULAM, PIN - 682509
17. N. MOHANAN AGED 75 YEARS S/O. NARAYANAN (LATE), P.P.O. NO
    KR/KCH/00117717, HOUSE NO. 20/1083A, PATHIYA PARAMBU, PALLURUTHY,
    PIN - 682006
18. VARGHESE V.J AGED 68 YEARS S/O. JOSEPH V.T (LATE), P.P.O. NO
    KR/KCH/00117067, VALLANATT HOUSE, HOUSE NO. 15/306, KALLANCHERY
    ROAD, KUMBALANGI, ERNAKULAM, PIN - 682007
19. N.M. OUSEPH AGED 75 YEARS S/O. N.A. MATHAI (LATE), P.P.O. NO
    KR/KCH/00116258, NEDIYANIKKUZHIYIL, HOUSE NO. 34/1363, MTRA-116,
    EDAPPALLY, ERNAKULAM, PIN - 682024
20. SANTHA DEVI K.S AGED 74 YEARS W/O. MURALEEDHARAN P.K, P.P.O. NO
    KR/KCH/00117333, NO. 12/396B, PARVATHY, PANAYAPPILLY, KOCHI, PIN -
    682002
21. FRANCIS XAVIER K.J AGED 69 YEARS S/O. K.S. JOSEPH (LATE), P.P.O. NO
    KR/KCH/00117263, KURUPPAMBHAGATH HOUSE, SOUTH CHITTOOR P.O,
    ERNAKULAM, PIN - 682027
22. K.N. SARALA AGED 75 YEARS C/O. P. RAMACHANDRAN PILLAI, P.P.O. NO
    KR/KCH/00116316, NO. 28/97, VYSHAKHAM, PANAMPILLY NAGAR AVENUE,
    ERNAKULAM, PIN - 682036
23. T.P. JOHN AGED 73 YEARS S/O. T.V PAPPU (LATE), P.P.O. NO
    KR/KCH/00116716, THAIPARAMBIL HOUSE, HOUSE NO. 27/1917B,
    KOCHUKADAVANTHRA, ERNAKULAM, PIN - 682020
24. VELAYUDHAN P AGED 69 YEARS S/O. PAPPU C.S, P.P.O. NO
    KR/KCH/00117348, KUZHUVELIL HOUSE, THRICHATTUKULAM P.O, PANAVALLY,
    CHERTHALA, PIN - 688581
25. SEBASTIAN K.J AGED 74 YEARS S/O. JOHN K.J, P.P.O. NO
    KR/KCH/00116320, KOIKKARA PARAMBIL, HOUSE NO. 54/83, KUMARANASAN
    ROAD, ERNAKULAM, PIN - 682017
26. DENEESH M.R AGED 68 YEARS S/O. C.P. RAGHAVAN (LATE), P.P.O. NO
    KR/KCH/00116190, NO. 3/80, PUTHENVEETTIL, AYYARU KADAVU ROAD,
    CHERANALLOOR, ERNAKULAM, PIN - 682034
27. GOPALAKRISHNAN NAIR G AGED 72 YEARS S/O. P.V. GOVINDAN NAIR (LATE),
    P.P.O. NO KR/KCH/00116709, GOKULAM HOUSE, PANDARACHIRA ROAD,
    KADAVANTHRA P.O, ERNAKULAM, PIN - 682020
28. SATHIAN P AGED 67 YEARS S/O. NARAYANAN P, P.P.O. NO KR/KCH/00116712,
    SOPANAM, AISWARYA NAGAR, ASSOCIATION ROAD, KADAVANTHRA, ERNAKULAM,
    PIN - 682020
29. VIJAYA MOHANA DAS G AGED 69 YEARS S/O. K.P. GOPALAN (LATE), P.P.O.
    NO. KR/KCH/00115554, SARADAS, THOPPICHANTHA, KALLOORKONAM,
    PERUMKULAM P.O, TRIVANDRUM, PIN - 695102
30. JOSE C.D AGED 68 YEARS S/O. DEVASY (LATE), P.P.O. NO
    KR/KCH/0000117047, CHUNDANAY HOUSE, THURAVOOR P.O, ANGAMALY,
    ERNAKULAM, PIN - 683572
31. MATHEW K AGED 70 YEARS S/O. KURIAN M.C (LATE), P.P.O. NO
    KR/KCH/00117718, MANGAT, HARMONY ENCLAVE, CHILAVANNUR ROAD,
    KADAVANTHRA P.O, ERNAKULAM, PIN - 682020
32. RAJAN V.N AGED 68 YEARS S/O. NARAYANAN (LATE), P.P.O. NO
    KR/KCH/00117046,VADAKKUNNATHUMALIL HOUSE, PUNNAYAM, KURUPPAMPADY,
    ASAMANNOOR P.O, ERNAKULAM, PIN - 683549
 33. SREEDHARAN THAMPI K AGED 73 YEARS S/O. KRISHNA PILLAI N. (LATE),
    P.P.O. NO KR/KCH/00117370, HOUSE NO. 27/3115, SHIPYARD COLONY,
    GIRINAGAR SOUTH, KADAVANTHRA, PIN - 682020
34. VARGHESE K.L AGED 67 YEARS S/O. LONAPPAN K.T (LATE), P.P.O. NO
    KR/KCH/00117225, KALAPARAMBATH HOUSE, KULAYIDOM NORTH ROAD,
    CHERAVALOOR P.O, KORATTY, THRISSUR , PIN - 680308
35. RAJENDRAN N AGED 68 YEARS S/O. NEELAKANDAN ACHARI, P.P.O. NO
    KR/KCH/00116715, THIRUVATHIRA, FRIENDS NAGAR, KONTHURTHY, THEVARA
    P.O, ERNAKULAM, PIN - 682013
36. BALACHANDRAN NAIR M.R AGED 69 YEARS S/O. RAGHAVAN PILLAI N, P.P.O.
    NO KR/KCH/00116317, NO. 28/1268, KEZHUPILLIL MADOM, KADAVANTHRA P.O,
    COCHIN, PIN - 682020
37. VENUGOPALAN K.K AGED 69 YEARS S/O. KUMARAN K.K (LATE), P.P.O. NO
    KR/KCH/00117058, KANNASSERY HOUSE, MALIPURAM P.O, ERNAKULAM, PIN -
    682511
38. THOMAS D AGED 69 YEARS S/O. OUSEPH DEVASSIA (LATE), P.P.O. NO
    KR/KCH/00116358, KIZHAKKETTAM HOUSE, THOTTUNGATHARA ROAD,
    KADAVANTHRA, ERNAKULAM, PIN - 682020
39. SREEDHARAN P.K AGED 68 YEARS S/O. P.K. KORAN (LATE), P.P.O. NO
    KR/KCH/0000116354, USHUS, 26/1360A, ST. JOSEPH ROAD, THEVARA P.O,
    ERNAKULAM, PIN - 682013
40. VENUGOPALAN M.A AGED 75 YEARS S/O. AYYAPPAN (LATE), P.P.O. NO
    KR/KCH/00117279, AT MUKKAPPUZHA, KANDASSANKADAVU, THRISSUR, PIN -
    680613
41. JOS C.M AGED 69 YEARS S/O. MIYYALU C.A, P.P.O. NO
    KR/KCH/00117356,CHITTILAPPILLY HOUSE, PERAMANGALAM P.O, THRISSUR,
    PIN - 680545
42. VARGHESE M.V AGED 69 YEARS S/O. VARGHESE M.J (LATE), P.P.O. NO
    KR/KCH/00117164, MADATHUMPADY HOUSE, MANKUZHY ROAD, EDAPPALLY TOLL,
    ERNAKULAM, PIN - 682024
43. SASEENDRABABU R AGED 68 YEARS S/O. RAGAVAN ASARI P (LATE), P.P.O. NO
    KR/KCH/00117719, AMRITHAM, NETTOOR, P.O, MARADU, ERNAKULAM, PIN -
    682040
44. JAYASHAJ N AGED 69 YEARS S/O. NANOO (LATE), P.P.O. NO
    KR/KCH/00116355, NAVAGEETHAM, PANDARACHIRA ROAD, KADAVANTHRA,
    ERNAKULAM, PIN - 682020
45. RAJENDRAN G AGED 69 YEARS S/O. S. GOPALAN (LATE), P.P.O. NO
    KR/KCH/00117325, KRISHNA, VALAMANGALAM, THURAVOOR P.O, CHERTHALA,
    ALAPPUZHA, PIN - 688532
46. SUGATHAN P.A AGED 66 YEARS S/O. P.K. ASOKAN (LATE), P.P.O. NO
    KR/KCH/00116363, PANAIKULATH HOUSE, SRA-75, THRIKKAKARA P.O, , PIN -
    682021
47. M. GOVINDAN AGED 76 YEARS S/O. RAMAN NAIR, P.P.O. NO
    KR/KCH/00116356, NO. 1425 A/28, SURABHI, JOSEPH CHURCH ROAD,
    KADAVANTHRA, PIN - 682020
48. BHADRAN M AGED 71 YEARS S/O. MADHAVAN (LATE), P.P.O. NO
    KR/KCH/00116828, MANGALATH HOUSE, HOUSE NO: 28/1148, VIVEK NAGAR,
    KADAVANTHRA, ERNAKULAM, PIN - 682020
49. SIVADASAN M.P AGED 66 YEARS S/O. PAZHNIMALA, P.P.O. NO
    KR/KCH/00116375, PRASADAM, THOTTUNGATHARA ROAD, KADAVANTHRA P.O,
      ERNAKULAM, PIN - 682020
 50. JAYAPRAKASH A.K AGED 72 YEARS S/O. AYYAPPAN S, P.P.O. NO
     KR/KCH/00116713, IDIYODIL, INDIRANAGAR, KADAVANTHRA P.O, KOCHI, PIN
     - 682020
 51. RAVINDRAN .K AGED 69 YEARS S/O. KANNAN,, P.P.O. NO KR/KCH/00117261,
     KAUSTHUBHAM, SWAMIKUNNU, DHARMADAM P.O, TELLICHERRY, KANNUR, PIN -
     670106
 52. JAYAPRAKASH T AGED 69 YEARS S/O. ARUMUGHAN (LATE), P.P.O. NO
     KR/KCH/00117720, ATHIRA, HOUSE NO. 33/736-A, A R CAMP ROAD,
     MARIKUNNU P.O, KOZHIKODE, PIN - 673012
 53. STANESLAVOSE I.V AGED 66 YEARS S/O. VARGHESE I.A (LATE), P.P.O. NO
     KR/KCH/00116706, ITTYPATTA HOUSE, AISWARYA NAGAR ROAD, PUTHIYA ROAD,
     PALARIVATTOM, ERNAKULAM, PIN - 682025
 54. RAJAGOPALAN C AGED 74 YEARS S/O. CHUDALAMUTHU, P.P.O. NO
     KR/KCH/00117068, SUDARSHANA, 70/1843-B-LANE 2, ACS SCHOOL ROAD,
     KALOOR, ERNAKULAM, PIN - 682017
 55. VASU K.K AGED 67 YEARS S/O. KRISHNAN K.K. (LATE), P.P.O. NO
     KR/KCH/00117274, HOUSE NO. 26/1794C, KALLADATHIL HOUSE, CHALANCHERRY
     ROAD, THEVARA P.O, ERNAKULAM, PIN - 682013
 56. JOY VARGHESE M AGED 68 YEARS S/O. VARGHESE, P.P.O. NO
     KR/KCH/00116714, MANAMEL HOUSE, NO. 48/2044, GRAMEENA VAYANASALA
     ROAD, PONNURUNNI EAST, VYTTILA, PIN - 682019
 57. SHINE T.B AGED 68 YEARS S/O. BALAKRISHNAN, P.P.O. NO
     KR/KCH/00116707, CHEERAKKUZHY HOUSE, P.C. CROSS ROAD, PONNURUNNI
     EAST, VYTTILA, PIN - 682019
 58. PAVITHRAN PATTERI AGED 69 YEARS S/O. ACHUTHAN PATTERI, P.P.O. NO
     KR/KCH/00116318, PATTERI HOUSE, VIVEK NAGAR, KADAVANTHRA, KOCHI, PIN
     - 682020
 59. VIJAYAN K.V AGED 67 YEARS S/O. KUNHAMBU P.K, P.P.O. NO
     KR/KCH/00117161, DIVYA NIVAS, MNRA-195, MULLACKAL NAGAR, EROOR WEST
     P.O, THRIPUNITHURA, ERNAKULAM, PIN - 682306
 60. RAJAN K.S AGED 75 YEARS S/O. LATE. K.E. SAMUEL, P.P.O. NO
     KR/KCH/00117262, KANJIRAVILAYIL HOUSE, PALACE GARDENS, KARINGACHIRA,
     IRUMPANAM P.O, ERNAKULAM, PIN - 682309
 61. MARY GRACE AGED 75 YEARS W/O. LATE. K.J THOMAS, P.P.O. NO
     KR/KCH/00116319, GRACE GARDEN, NAD ROAD, NRA-38, ASHOKAPURAM P.O,
     ALUVA, ENAKULAM, PIN - 683101
 62. SHAMSUDDIN A.A AGED 76 YEARS S/O. LATE HYDROSE, P.P.O. NO
     KR/KCH/00117382, MALIAYEKKAL HOUSE, PADAMUGAL, KAKKANAD P.O,
     ERNAKULAM, PIN - 682030
 63. K.N. SARALA AGED 75 YEARS W/O. P. RAMACHANDRAN PILLAI, P.P.O. NO
     KR/KCH/00116316, NO. 28/97, VYSHAKHAM, PANAMPILLY NAGAR AVENUE,
     KOCHI, PIN - 682036

RESPONDENTS:

  1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF LABOUR AND
     EMPLOYMENT, DEPARTMENT OF EMPLOYMENT, NEWDELHI, PIN - 110001
  2. THE EMPLOYEES PROVIDENT FUND ORGANISATION REPRESENTED BY THE CHIEF
     PROVIDENT COMMISSIONER, BHAVISHYA NIDHI BHAVAN, 14,BHIKAJI CAMA
      PALACE, NEW DELHI, PIN - 110066
  3. REGIONAL PROVIDENT FUND COMMISSIONER THE EMPLOYEES PROVIDENT FUND
     ORGANISATION KALOOR, ERNAKULAM, PIN - 682017
  4. COCHIN SHIPYARD LTD (CSL) PERUMANOOR PO, COCHIN KERALA- REPRESENTED
     BY ITS MANAGING DIRECTOR, PIN - 682015

     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 stay the operation of exhibits p7 and p8 and restore/ continue
the monthly pension paid to the petitioners under their respective pension
payment orders, pending disposal 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
23.03.2023 and upon hearing the arguments of M/S. R.SANJITH & C.S.SINDHU
KRISHNAH, Advocates for the petitioners, SHRI. THOMAS MATHEW NELLIMOOTTIL,
Advocate for R2 & R3, 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.