Thomas Joseph vs The Asst.Provident Fund Commissioner
2024 Latest Caselaw 14776 Ker

Kerala High Court

Thomas Joseph vs The Asst.Provident Fund Commissioner on 4 June, 2024

Author: Dinesh Kumar Singh

Bench: Dinesh Kumar Singh

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
        TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
                       WP(C) NO. 28686 OF 2011
PETITIONER:

            JOHN MATHEW
            HOUSE NO.11, CHOKKANADU DIVISION,, MADUPATTY ESTATE,
            WARD NO.XII,, MUNNAR GRAMA PANCHAYAT, MUNNAR P.O.
            BY ADV SRI.LIJI.J.VADAKEDOM


RESPONDENTS:

    1       THE ASSISTANT PROVIDENT FUND
            COMMISSIONER,, EMPLOYEES PROVIDENT FUNDS ORGANIZATION,,
            SUB REGIONAL OFFICE, CHALAKUZHY BUILDINGS,, CMS COLLEGE
            ROAD, KOTTAYAM-686 001.
    2       THE EMPLOYEES PROVIDENT FUNDS
            ORGANIZATION, REPRESENTED BY CENTRAL PROVIDENT, FUND
            COMMISSIONER, OFFICE OF THE COMMISSIONER OF, THE
            EMPLOYEES PROVIDENT FUND ORGINIZATION,, BHAVISHYA NIDHI
            BHAVAN, 14, BHIKAJI CAMA PLACE,, NEW DELHI-1
    3       KANAN DEVAN HILLS PLANTATIONS COMPANY
            PVT.LTD., REPRESENTED BY ITS MANAGING DIRECTOR,, KDHP
            HOUSE, MUNNAR P.O., PIN-685 612.
            BY ADVS.
            NITA.N.S.
            SRI.P.BENNY THOMAS
            SRI.D.PREM KAMATH
            SRI.N.N. SUGUNAPALAN,
            SMT.T.N GIRIJA- SC,E.P.F.



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.28686 &27310 OF 2011
                                     2




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
      TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
                         WP(C) NO. 27310 OF 2011
PETITIONER:

            THOMAS JOSEPH
            ARRIYADANPACKEL HOUSE, EDATHAMPARAMBU,, PONKUNNAM
            P.O.,KOTTAYAM-686 506.( RETIRED, MANAGEMENT ASSISTANT,
            KANNAN DEVAN HILLS, PLANTATIONS COMPANY PVT. LTD,
            MUNNAR).
            BY ADV SRI.LIJI.J.VADAKEDOM


RESPONDENTS:

     1      THE ASST.PROVIDENT FUND COMMISSIONER
            COMMISSIONER, EMPLOYEES PROVIDENT FUNDS,
            ORGANIZATION, SUB REGIONAL OFFICER,CHALAKUZHY,
            BUILDINGS,CMS COLLEGE ROAD, KOTTAYAM-686 001.
     2      THE EMPLOYEES PROVIDENT FUND
            ORGANIZATION,REPRESENTED BY THE CENTRAL PROVIDENT,
            FUND COMMISSIONER, OFFICE OF THE COMMISSIONER OF,
            EMPLOYEES PROVIDENT FUNDS ORGANIZATION,, BHAVISYA
            NIDHI BHAVAN-14, BHIKAJI CAMA PLACE,, NEW DELHI-110
     3      KANNAN DEVAN HILLS PLANTATIONS COMPANY
            PVT. LTD, REPRESENTED BY ITS MANAING DIRECTOR,, KDHP
            HOUSE, MUNNAR P.O., PIN-685 612.
            BY ADVS.
            SRI.P.BENNY THOMAS
            SRI.D.PREM KAMATH
            SRI.N.N. SUGUNAPALAN,
            SMT.T.N GIRIJA- SC,E.P.F.



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2024, ALONG WITH WP(C).28686/2011, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.28686 &27310 OF 2011
                                  3




                              JUDGMENT

Dated this the 4th day of June, 2024

The present writ petitions have been filed by the

employees of Kannan Devan Hills Plantations

Company Pvt.Ltd. The petitioners are paid pension on

the basis of their existing salary and not on the basis

of the ceiling limit of Rs.6,500/- per month.

2. Learned counsel for the respondent Provident

Fund Commissioner has submitted that the Supreme

Court in the Case of the Employees Provident Fund

Organisation v. B. Sunil Kumar [202 (7) KHC 12

(SC)], while considering the entitlement for pension

over and above the ceiling limit of Rs.6,500/- has

given certain directions in paragraph 44 of the said

judgment, and these writ petitions can be disposed

of, with direction to the respondent to examine the

cases of the petitioners and take decision as per the

directions given by the Supreme Court. W.P.(C) No.28686 &27310 OF 2011

3. Learned counsel for the petitioners has no

objection to the said submission of the learned

counsel for the respondent. The Supreme Court in

case of B. Sunil Kumar (supra) in paragraph 44 as

directed as under.

44. We accordingly hold and direct: (i) The provisions contained in the notification no. G.S.R. 609(E) dated 22nd August 2014 are legal and valid. So far as present members of the fund are concerned, we have read down certain provisions of the scheme as applicable in their cases and we shall give our findings and directions on these provisions in the in the subsequent sub-paragraphs.

(ii) Amendment to the pension scheme brought about by the notification no. G.S.R. 609(E) dated 22 nd August 2014 shall apply to the employees of the exempted establishments in the same manner as the employees of the regular establishments. Transfer of funds from the exempted establishments shall be in the manner as we have already directed.

iii) The employees who had exercised option under the proviso to paragraph 11(3) of the 1995 scheme and continued to be in service as on 1st September 2014, will be guided by the amended provisions of paragraph 11(4) of the pension scheme.

(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 W.P.(C) No.28686 &27310 OF 2011

the 2014 Amendment) would be entitled to exercise option under paragraph 11(4) of the post amendment scheme. Their right to exercise option before 1 st September 2014 stands crystalised 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. There was uncertainty as regards validity of the post amendment scheme. which was quashed by the aforesaid judgments of the three High Courts. Thus, all the employees who did not exercise option but were entitled to do so but could not due to the interpretation on cut off date by the authorities, ought to be given a further chance to exercise their option. Time to exercise option under paragraph 11(4) of the scheme, under these circumstances, shall stand extended by a further period of four months. We are giving this direction in exercise of our jurisdiction under Art. 142 of the Constitution of India. Rest of the requirements as per the amended provision shall be complied with.

(v) The employees who had retired prior to 1st September 2014 without exercising any option under paragraph 11(3) of the pre-amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment.

(vi) The employees who have retired before 1st W.P.(C) No.28686 &27310 OF 2011

September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph par 11(3) of the pension scheme as it stood prior to the amendment of 2014.

(vii) The requirement of the members to contribute at the rate of 1.16 per cent of their salary to the extent such salary exceeds Rs.15000/- per month as an additional contribution under the amended scheme is held to be ultra vires the provisions of the 1952 Act. But for the reasons already explained above, we suspend operation of this part of our order for a period of six months. We do so to enable the authorities to make adjustments in the scheme so that the additional contribution can be generated from some other legitimate source within the scope of the Act, which could include enhancing the rate of contribution of the employers. We are not speculating on what steps the authorities will take as it would be for the Legislature or the framers of the scheme to make necessary amendment. For the aforesaid period of six months or till such time any amendment is made, whichever is earlier, the employees' contribution shall be as stop gap measure. The said sum shall be adjustable on the basis of alteration to the scheme that may be made.

(viii) We do not find any flaw in altering the basis for computation of pensionable salary.

(ix) We agree with the view taken by the Division Bench in the case of R. C. Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (pre - amendment) pension scheme is concerned. The fund authorities shall implement the directives contained in W.P.(C) No.28686 &27310 OF 2011

the said judgment within a period of eight weeks, subject to our directions contained earlier in this paragraph.

(x) The Contempt Petition (C) Nos. 1917-1918 of 2018 and Contempt Petition (C) Nos. 619-620 of 2019 in Civil Appeal Nos. 10013-10014 of 2016 are disposed of in the above terms".

Considering the submissions and the judgment of

the Supreme Court referred to above, the present

writ petitions are disposed of with direction to the 1st

respondent to consider the cases of the petitioners in

the light of the judgment of the Supreme Court in the

case of B. Sunil Kumar (supra), and pass necessary

orders, expeditiously. It is made clear that, till the

decision is taken, the petitioners shall be paid

pension, as they are being paid.

Sd/-

DINESH KUMAR SINGH JUDGE AP W.P.(C) No.28686 &27310 OF 2011

APPENDIX OF WP(C) 28686/2011

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RELIEVING LETTER DATED 12.11.2009 ISSUED TO THE PETITIONER BY THE COMPANY EXHIBIT P2 PHOTOCOPY OF THE RETURN OF REMITTANCE SHOWING THE PAYMENT OF CONTRIBUTION MADE BY THE 3RD RESPONDENT COMPANY IN RESPECT OF THE PETITIONER DURING THE MONTHS OF APRIL 2002 TILL DECEMBER,2009.

EXHIBIT P3 PHOTOCOPY OF THE ORDER NO.PPO.NO.KR/KTM/21562 DATED 23.02.2010.

EXHIBIT P4          COPY    OF   THE    RECEIPT    OF   AN   ORDER
                    NO.KR/KTM/2022/PEN         CELL/2011/PPO-21562
                    DATED    3.08.2011    ISSUED    BY   THE   1ST
                    RESPONDENT.
EXHIBIT P5          COPY OF THE RELEVANT EXTRACT OF THE

EMPLOYEES PENSION SCHEME SHOWING PARAGRAPH 11(3) OF THE SCHEME.

EXHIBIT P6 COPY OF THE LETTER DATED 06.10.2007 SUBMITTED BY THE 3RD RESPONDENT ALONG WITH THE WILLINGNESS LETTER OF THE EMPLOYEES. W.P.(C) No.28686 &27310 OF 2011

APPENDIX OF WP(C) 27310/2011

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RELIEVING LETTER DATED 13.05.2008ISSUED TO THE PETITIONER BY THE COMPANY EXHIBIT P2 PHOTOCOPY OF THE STATEMENT OF REMITTANCE SHOWING THE PAYMENT OF CONTRIBUTION MADE BY THE 3RD RESPONDENT COMPANY IN RESPECT OF THE PETITIONER DURING THE MONTHS OF APRIL 2003 TILL JUNE,2008.

EXHIBIT P3 PHOTOCOPY OF THE ORDER NO.PPO.NO.KR/KTM/19538 DATED 6.3.2009 EXHIBIT P4 COPY OF THE RECEIPT OF AN ORDER NO.KR/KTM/2022/PEN CELL/2011/PPO-19538 DATED 3.08.2011 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 RELEVANT EXTRACT OF THE EMPLOYEES PENSION SCHEME SHOWING PARAGRAPH 11(3) OF THE SCHEME.

EXHIBIT P6 COPY OF THE LETTER DATED 06.10.2007 SUBMITTED BY THE 3RD RESPONDENT ALONG WITH THE WILLINGNESS LETTER OF THE EMPLOYEES.