Kerala High Court
G.R.Radhakrishnan Nair vs Union Of India on 12 April, 2023
WP(C) No.5442/2023 1 / 16
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. 5442 OF 2023
PETITIONERS:
1. G.R.RADHAKRISHNAN NAIR, AGED 68 YEARS, SARASWATHI VILAS, 41/1678-1,
ATRWA-42, MANACAUD P.O., TRIVANDRUM, P.P.O. NO. KR/TVM|86926, PIN -
695009
2. K.MANOHARAN THAMPI, AGED 69 YEARS S/O. T.KALI PILLAI, P.P.O.
NO"MD/NKL/ 111356, RAGAM, NALAMTHENGU, VAYAKALLOOR, KANJAPURAM P.O.,
KANYAKUMARI, PIN - 629154
3. S.SASIDHARAN NAIR, AGED 70 YEARS VISHAKAM, VILAVOORKAL, MALAYINKIL,
TRIVANDRUM, P.P.O. NO. KR/TVM/86913 , PIN - 695571
4. K.P.MANY, AGED 68 YEARS S/O. K.P.GOPINATHAN, P.P.O. NO. KR/KCH/
109373, KAVUNGAL HOUSE, MANATTUKUNNU, KALLETUMKARA P.O, THRISSUR,
PIN - 680683
5. M.SANTHAKUMARI AMMA, AGED 70 YEARS W/O. T.S.GOPINATHAN, P.P.O.NO.
KR/KCH/ 112763, PAVITHRAM OORILATHU MANGALAM, VAZHAR MANGALAM,
CHENGANNUR, ALAPPUZHA, PIN - 689125
6. C.N.CHANDRA, AGED 70 YEARS C/O. K.K.PEETHAMBARAM, P.P.O. NO. KR/KCH/
13O79,KUTTATHUPARAMBIL, JANMABHOOMI LANE, ELAMAKKARA, ERNAKULAM, ,
PIN - 682026
7. E.MANOHARAN, AGED 68 YEARS EDOTHAKKIL HOUSE, P.P.O.NO.KR/KKD/68924,
PAYAMBRA, KUNNAMANGALAM, KOZHIKODE, PIN - 673571
8. P.N.PREMACHANDRAN, AGED 67 YEARS S/O. C.P.RAMAKRISHNA PANICKER,
P.P.O.NO.KR/KCH/ 109468, MAREKATTU HOUSE, EZHUPUNNA SOUTH P.O.,
CHERTHALA, PIN - 688537
9. P.PADMANABHAN, AGED 71 YEARS C/O. K.S.BHASKARAN PILLAI,
P.P.O.NO.KR/KCHILLO293, SARIKA, SOUTH VAZHAKULAM P.O., ALUVA,
ERNAKULAM, PIN - 683105
10. K.INDIRA DEVI, AGED 69 YEARS W/O.LATE.P.N.RAVINDRAN,
P.P.O.NO.KR/KCH/ 114188, RESIDING AT THRUPPADIKKAL HOUSE, PERANDOOR,
ELAMAKKARA, ERNAKULAM, PIN - 682026
11. T.D.JOSEPH, AGED 72 YEARS CLO. T.A.DEVASSY, P.P.O. NO.KR/KCH/109883,
RESIDING AT THANNIKKAPALLY HOUSE, THAMMANAMP.O., ERNAKULAM, PIN -
682032
12. P.LALITHAMMA, AGED 69 YEARS C/O. P.K.SREEDHARAN, P.P.O.KR/KCH/
1L2765, RESIDING AT X COTTAGE, KANNANKARA P.O., THANNEERMUKKOM,
CHERTHALA, ALAPPUZHA, PIN - 688527
13. T.NARAYANAN AGED 71 YEARS S/O. LATE KUNJIKANNAN NAIR, THIYYAROTH
HOUSE, MEPPAYYUR POST, KOZHIKODE, PIN - 673524
14. JOHN MATHEW, AGED 70 YEARS S/O. MATHEW, P.P.O.NO. KR/KCH/113511,
RESIDING AT VARAMBINAKAM HOUSE, TEMPLE ROAD, THIRUVANKULAM P.O.,
ERNAKULAM, PIN - 682305
15. K.P.BHARATHAN, AGED 72 YEARS S/O. K.V.PARAMESWARARL,
P.P.O.NO.KR/KCH/ 1 13107, RESIDING AT PAVANATHAZHATH,
KOTTAYATHUPARA, ' CHATHAPARAMBU, KUREEKADU, ERNAKULAM, PIN - 682312
16. P.K.MOHANAN NAIR, AGED 71 YEARS P.P.O.NO. KR/KTM/ 44367, RESIDING AT
WP(C) No.5442/2023 2 / 16
PUTHENVEETTIL, NEDUMKUNNAM P.O., KOTTAYAM, PIN - 686542
17. SARAMMA CHARLES, AGED 72 YEARS C/O. A.M.GEORGE, P.P.O.NO.KR/KCH/
112630, RESIDING AT AREECKAL HOUSE, CHEMBUMUKKU, KAKKANAD (W) P.O.,
ERNAKULAM, PIN - 682030
18. P.I.MAMU, AGED 67 YEARS S/O. KUNJUMOITHEEN, P.P.O.NO. KR/KCH/
112774, RESIDING AT PARIYARAPALLY, PANANGAD, ERNAKULAM, PIN - 682506
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, L4,BHIKAJI CAMA
PALACE, NEW DELHI, PIN - 110066
3. REGIONAL PROVIDENT FUND COMMISSIONER, THE EMPLOYEES PROVIDENT FUND
ORGANISATION, KALOOR, ERNAKULAM, PIN - 682017
4. KERALA STATE COOPERATIVE HOUSING FEDERATION LIMITED, HEAD OFFICE
BUILDING, KALOOR,KOCHI-682017, REPRESENTED BY ITS MANAGING DIRECTOR.
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 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 R.SANJITH & C.S.SINDHU KRISHNAH, Advocates for the petitioners,
M/S. S.PRASANTH & V.JOHN MANI, Advocates for R2 & R3, the court passed the
following:
WP(C) No.5442/2023 3 / 16
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.
WP(C) No.5442/2023 4 / 16
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
WP(C) No.5442/2023 5 / 16
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
WP(C) No.5442/2023 6 / 16
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,
WP(C) No.5442/2023 7 / 16
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.
WP(C) No.5442/2023 8 / 16
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
WP(C) No.5442/2023 9 / 16
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........."
WP(C) No.5442/2023 10 / 16
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
WP(C) No.5442/2023 11 / 16
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
WP(C) No.5442/2023 12 / 16
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.
WP(C) No.5442/2023 13 / 16
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.5442/2023 14 / 16
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.
In the light above of the observations, I am
inclined to pass an interim order; Accordingly,
the Employees Provident Fund Organization and the
authorities under the same are directed to make
WP(C) No.5442/2023 15 / 16
adequate provisions in their online facility to
enable the employees/pensioners to furnish the
options in tune with the directions of the
Honourable Supreme Court, without the production
of the copies of option under paragraph 26(6) of
the Scheme, 1952 and the details thereof, for the
time being. If appropriate modifications cannot be
made in the online facility, feasible alternate
arrangements, including the permission to submit
hard copies of the options, shall be made/granted.
The facilities mentioned above shall be made
available to all the employees/pensioners within
a period of ten days from today.
Sd/-
ZIYAD RAHMAN A.A.,
JUDGE
pkk
WP(C) No.5442/2023 16 / 16
APPENDIX OF WP(C) 5442/2023
Exhibit P7 TRUE COPY OF THE CIRCULAR BEARING NO.
PENSION/2022/54877/15149 DATED 29/12/2022
Exhibit P8 TRUE COPY OF THE CIRCULAR DATED BEARING NO.
PENSION/2022/55893/15785 DATED 25/01/2023
