P.S.Haridas vs Sandeep Biswas
2024 Latest Caselaw 17390 Ker

Kerala High Court

P.S.Haridas vs Sandeep Biswas on 21 June, 2024

Author: Anil K. Narendran

Bench: Anil K. Narendran

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
                                &
          THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
   FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
                 CON.CASE(C) NO. 965 OF 2020
  AGAINST THE JUDGMENT DATED 12.10.2018 IN WP(C)NO.31322 OF
                 2016 OF HIGH COURT OF KERALA
PETITIONERS:

     1     P.S.HARIDAS, AGED 64 YEARS
           S/O.SANKARA PILLAI, PALANICKAL HOUSE,
           VANDAMATTAM, THODUPUZHA, PF A/C.
           NO.KR/KKD/0005314/000/0000068 PPO
           NO.KR/KTM/000319, (DATE OF RETIREMENT
           25.04.2008).

     2     V.VIJAYALAKSHMI, AGED 64 YEARS
           D/O.K.P.VELAYUDHAN, KAIPPILLY, CHALIL HOUSE,
           MUDAVOOR P.O., PIN-686 669, VAZHAPPILLY,
           MUVATTUPUZHA-686 669, PF A/C.
           NO.KR/KCH/0004785/000/0000175 PPO
           NO.KR/KCH/00071739. (DATE OF RETIREMENT
           30.06.2010).

     3     A.K.RAVEENDRAN, AGED 64 YEARS
           S/O.K.R.NEELAKANDAN, CHARUPARAMBIL HOUSE,
           KARIMANNOR P.O., VALLIKKAMURI, THOUDUPUZHA,
           IDUKKI DISTRICT-685 581, PF A/C.
           NO.KR/KCH/0004785/000/0000197 PPO
           NO.KR/KTM/0026080 (DATE OF RETIREMENT
           31.05.2010).

           BY ADV P.V.MOHANAN



RESPONDENTS:
                                   2
CON.CASE(C) NO. 965 OF 2020


      1        SANDEEP BISWAS
               REGIONAL PROVIDENT FUND COMMISSIONER,
               EMPLOYEES PROVIDENT FUND ORGANIZATION
               BHAVISHYA NIDHI BHAVAN, PATTOM PALACE,
               THIRUVANANTHAPURAM.

      2        SUNIL BARTHWAL I.A.S.
               CENTRAL PROVIDENT FUND COMMISSIONER, BHAVISHYA
               NIDHI BHAVAN, 14, BHIKAJI CAMA PALACE, NEW
               DELHI-110 066.

               BY ADVS.
               SRI.JOY THATTIL ITOOP, SC, EPF ORGANISATION
               SRI.SAJEEV KUMAR K. GOPAL, SC, EPFO


       THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.06.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                       3
CON.CASE(C) NO. 965 OF 2020



                                JUDGMENT

Anil K. Narendran, J.

The petitioners, who are petitioners 1, 3 and 8 in W.P.(C) No.31322

of 2016, have filed this Contempt Case, invoking the provisions under

Section 12 of the Contempt of Courts Act, 1971 alleging willful

disobedience of the directions contained in Annexure 1 judgment dated

12.10.2018 in that writ petition along with W.P.(C)No.13120 of 2015 and

connected matters.

2. The SLP filed by the Employees Provident Fund Organisation

against the judgment dated 12.10.2018 in W.P.(C) No.13120 of 2015 and

connected cases were dismissed by the Apex Court vide order dated

01.04.2019 in SLP (C) - Diary No.9610 of 2019. That order was recalled

and the Apex Court rendered a detailed judgment dated 04.11.2022 in

Civil Appeal Nos.8143 of 2022 and 8144 of 2022 and connected matters-

Employees Provident Fund Organisation v. Sunil Kumar B. [2022

(7) KHC 12 : AIR 2022 SC 5634]. In that judgment, the Apex Court

held that the provisions contained in Notification No.GSR 609(E) dated

22.08.2014 is legal and valid. The directions contained in paragraph 44

of the said judgment of the Apex Court dated 04.11.2022 read as

follows:

"44. We accordingly hold and direct:-

CON.CASE(C) NO. 965 OF 2020

(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 subsequent sub-paragraphs.

(ii) Amendment to the pension scheme brought about by the notification No. G.S.R. 609(E) dated 22nd 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 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 crystalised in the judgment of this Court in the case of R.C. Gupta and others v. Regional Provident Fund Commissioner, Employees Provident Fund Organisation and others [(2018) 14 SCC 809]. 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

CON.CASE(C) NO. 965 OF 2020

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 Article 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 September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph 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.15,000/- 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

CON.CASE(C) NO. 965 OF 2020

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 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."

3. Heard the learned counsel for the petitioners and also the

learned Standing Counsel for the Employees Provident Fund

Organisation, for the respondents.

4. In view of the judgment of the Apex Court dated 04.11.2022

in Civil Appeal Nos.8143-44 of 2022 and connected matters [2022 (7)

KHC 12 : AIR 2022 SC 5634], the entitlement of the petitioners for

disbursement of higher pension requires reconsideration at the hands of

the Employees Provident Fund Organisation.

5. The learned Standing Counsel for the respondents would

submit that the aforesaid exercise shall be undertaken by the Employees

Provident Fund Organisation in accordance with law.

CON.CASE(C) NO. 965 OF 2020

In the said circumstances, this Contempt Case is closed, without

prejudice to the right of the Employees Provident Fund Organisation to

reconsider the entitlement of the petitioners for disbursement of higher

pension, in view of the judgment of the Apex Court dated 04.11.2022 in

Civil Appeal Nos.8143-44 of 2022 and connected matters [2022 (7)

KHC 12 : AIR 2022 SC 5634].

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

SOPHY THOMAS JUDGE

bkn/-

CON.CASE(C) NO. 965 OF 2020

APPENDIX OF CON.CASE(C) 965/2020

PETITIONER ANNEXURES

ANNEXURE 1 TRUE COPY OF THE COMMON JUDGMENT IN WPC NO.31322/2016 DATED OF THIS HON'BLE COURT.

ANNEXURE 2                    TRUE COPY OF      THE   JUDGMENT   DATED
                              01.04.2019   IN   SLP    (CIVIL)   DAIRY
                              NO.9610/2019.