Kerala High Court

O.R.Sankaranandan vs Employees Provident Fund ... on 11 January, 2023

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                       WP(C) NO. 26425 OF 2022
PETITIONER:

          O.R.SANKARANANDAN,
          AGED 65 YEARS
          S/O.RAMAN, OTTALI HOUSE,
          P.O. PERINGOTTUKARA,
          THRISSUR DISTRICT, PIN - 680 565.

          BY ADV P.R.SHAJI



RESPONDENTS:

    1     EMPLOYEES' PROVIDENT FUND ORGANISATION,
          THIRUVANATHAPURAM REGION,
          REGIONAL OFFICE, BHAVISHYANIDHI BHAWAN,
          KALOOR, KOCHI - 682017, REPRESENTED BY COMMISSIONER.

    2     THE REGIONAL PROVIDENT FUND COMMISSIONER,
          REGIONAL OFFICE, BHAVISHYANIDHI BHAWAN,
          KALOOR, KOCHI - 682017.

    3     TRICOTT MILLS LTD.,
          NATTIKA TRICHUR, THRISSUR
          KERALA - 680566.

          BY ADV SRI.S.PRASANTH
          SRI.SAJEEV KUMAR K.GOPAL




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.26425/2022                           2




                                    JUDGMENT

The judgment dated 11.11.2022 is recalled.

This writ petition is filed by the petitioner, a senior citizen,

being aggrieved by the inaction on the part of the 1st respondent -

Employee's Provident Fund Organization in not granting the

monthly pension stating that a small amount of benefit has already

been accepted by the petitioner before the scheme came into force.

Petitioner was working in Tricott Mills Ltd., Thrissur, the 3 rd

respondent, from 01.07.1979 till 01.06.1993 i.e., before the

Employee's Provident Fund Pension Scheme came into force.

2. Learned counsel for the petitioner submitted that there

was a provision in the scheme enabling the employees who

accepted the one time amount before the commencement of the

pension scheme to opt for reimbursement of the same to be part of

monthly pension scheme. Many of the erstwhile co-workers of the

petitioner had availed the opportunity. Since the petitioner was out

of station, he was unaware of the benefit and couldn't remit the

one time amount received before the pension scheme came into

force. The petitioner made a representation before the 1 st

respondent Employee's Provident Fund Organization on

24.02.2011, for reimbursement of the amount so as to get the

monthly pension benefit, which was replied by the respondent

Organization on 24-02-2011 that the pension account number of

the petitioner in the application is not correct and another letter

dated 16-03-2020 stating reason that the petitioner has to submit

Form 3A from the date of joining to the date of exit, which is

produced herein as Ext.P1. Pursuant to Ext.P1 letter, the petitioner

cured the defect and was again served with another letter dated

14-05-2021 from the respondent organisation directing to submit

copies of aadhar, pension authorised bank a/c and passport size

photographs which were also submitted. However, he was again

served with a letter dated 02-09-2021 Ext.P2 stating that the

application has been rejected as he had already taken the benefit.

Thereafter a written request was submitted before the respondents

showing willingness to remit back the amount already received with

interest for entitling the monthly pension benefit, Ext.P3 dated 25-

11-2021, which remained unattended till date. Aggrieved by the

inaction on the part of the respondents, the petitioner has

approached this Court with the following prayers:-

"i. Declare that the petitioner is entitled for the monthly pension as per Employees Pension Scheme, 1995.

ii. Issue a writ of mandamus or any other appropriate writ,

order or direction, directing the 1st and 2nd respondent to allow the petitioner to remit the one- time pension amount received by the petitioner with or without interest so as to enable the petitioner to avail the benefit of monthly pension scheme."

3. In the counter, the respondents did not deny the factum

of the retirement of the petitioner from respondent No.3, but

alleged that option to be exercised in view of the promulgation of

the Employees Provident Fund Pension Scheme was never

exercised till 2011. In the year 2011, the petitioner approached

the office, but the said plea was rejected on the ground that the

account number was not correct. The eligibility of the pension of

the petitioner under the EPF scheme though was not denied, but

the pith and substance of the reply was that the EPF scheme came

into force on 16.11.1995, the employees had to exercise the

option with effect from 01.04.1993. The petitioner had already

been given certain amount which he had to return, but the same

has not been returned.

4. I have heard the counsel for the parties and appraised

the paper book.

5. Paragraph 5 of the counter reads as under :

"5. If amount has been availed by the employee the details of same should be furnished so that the amount to be refunded can be calculated. As per scheme provisions the member is eligible for pension only after remitting the withdrawal benefit availed with up to date interest.

EPF scheme came into force on the 16 th day of November, 1995.

Subject to the provisions of this scheme the employees have an option to become the members of the scheme with effect from 1st April, 1993.

Membership of the Employees Pension Scheme Subject to sub-paragraph (3) of paragraph 1, the scheme shall apply to every employee -

(a) Who on or after the 16 th November, 1995 becomes a member of the Employees' Provident Fund Scheme, 1952 or of the Provident Funds of the factories and other establishments exempted by the appropriate Government under Section 17 of the Act, or in whose case exemption has been granted under para 27 or 27A of the Employees Provident Fund Scheme, 1952 from the date of such membership.

(b) Who has been a member of the ceased Employees Family Pension Scheme, 1971 before the commencement of this scheme from 16th November, 1995.

(c) Who ceased to be a member of the Employees Family Pension Scheme, 1971 between 1 st April, 1993 and 15th November, 1995 and opts to exercise his option under paragraph 7;

An employee shall cease to be the member of pension fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the scheme whichever is earlier.

Retention of membership A member of the Employee's Pension Fund shall continue to be such member till he attains the age of 58 years or he avails the withdrawal benefit to which he is entitled under para 14 of the scheme, or dies, or the pension is vested in him in terms of para 12 of the scheme whichever is earlier.

Option for joining the scheme

1) Members referred to under sub-para (c) of paragraph 6 who have died between 1 st April, 1993 and 15th November, 1995 shall be deemed to have exercised the option of joining the scheme on the date of his death.

2) Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the scheme as per the provisions of paragraph 17 from the date of exit from the employment.

3) Members referred to in sub para (d) of para 6 shall have the option to join the scheme as per the provisions of paragraph 17 from 16.11.1995. Para 17 Payments on exercise of option

a) Beneficiaries of the deceased members of Employees' Family Pension Scheme, referred to in sub- para (1) of paragraph 7, shall receive higher of the benefits available under the Employees Family Pension Scheme, 1971 and under this scheme.

b) Members referred to in sub-paragraph (2) of para 7 shall have the option to join the scheme by returning the amount of withdrawal benefit received, if any, together with interest at the rate of 8.5% per annum from the date of payment of such withdrawal benefits and date of exercise of the option, to receive monthly pension as per the provisions of this scheme.

c) Members referred to in sub-para (3) of paragraph 7 shall be deemed to have joined the ceased Employees Family Pension Scheme, 1971 with effect from 1.3.1971 on remittance of past period contribution with interest thereon.

On the basis of the above facts the benefits for the petitioner of EPS scheme can be derived only after verifying the 3A for the entire period and Break Certificate. Hence we may advise the petitioner to submit the same for considering his eligibility."

The pith and substance of the counter of the respondents reveals

that the petitioner is though entitled to the benefit of the scheme,

but is supposed to return the amount of withdrawal benefit already

received. The petitioner in this Writ Petition did not ever refuse to

return the amount which has been received at the time of

retirement. Once the respondents have categorically admitted the

eligibility for pension under the EPF scheme, the only hitch remains

is furnishing of Form 3A from the date of joining to the date of exit

or F 23 slips.

6. The petitioner undertakes to comply with all the

aforementioned requirements. Once the petitioner has undertaken

to comply with the requirements and return of the withdrawal