V.D. Lonkar vs The Employees Provident Fund ...
2021 Latest Caselaw 5316 MP

                                    1                              WP-15297-2021
          The High Court Of Madhya Pradesh
                     WP-15297-2021
        (M.D. MISHRA Vs THE EMPLOYEES PROVIDENT FUND ORGANISATION AND OTHERS)

    WP/15302/2021, WP/15305/2021, WP/15310/2021, WP/15588/2021, WP/16821/2021
3
Jabalpur, Dated : 13-09-2021
        Shri Sanjay Kumar Agrawal, learned counsel for the petitioners.
        Shri J.K. Pillai, learned counsel for respondents.

Petitioners have filed these writ petitions making a prayer to direct respondents to pay pension on basis of actual salary in terms of provisions

contained in proviso to paragraph-11(3) of Employees pension Scheme, 1995. Prayer for arrears of pension along with 12% interest is also made by petitioners.

Learned counsel appearing for petitioners also prayed for grant of interim relief i.e. petitioners be paid enhanced pension as per judgment of Apex Court in case of R.C. Gupta Vs. EPFO, reported in (2018) 14 SCC

809. It is submitted by him that there is no stay over order passed in R.C. Gupta (Supra) and, therefore, respondents are obliged to pay petitioners enhanced pension as per the order of Apex Court.

Learned counsel appearing for respondents opposed the prayer for grant of interim relief and made a prayer for deferring the hearing of matter. It is submitted by him that Apex Court is considering the case of R.C. Gupta Vs. EPFO in review petition and Larger Bench is to be formed for considering the said judgment. Since, matter is seized with Apex Court, therefore, matter may be deferred for hearing. Counsel for respondents further submitted that granting of interim relief to petitioners would amount to grant of final relief, therefore, interim relief may not be granted to the petitioners at this stage. It is also submitted that respondents will grant all the arrears along with interest to the petitioners if they finally succeed in review petition before the Apex Court. Petitioners will not suffer any irreparable injury and respondents had a prima facie case and balance of convenience is also in their favour as Supreme Court has decided to refer the matter to 2 WP-15297-2021 Larger Bench for reconsideration in review petition.

Learned counsel for the petitioners submitted that petitioners are facing crisis of their survival due to reduction in their pension, therefore, interim relief though it amounts to final relief may be granted to them. He relied on judgment passed by Apex Court in case of Deoraj Vs. State of Maharashtra

and Others reported in (2004) 4 SCC 697. Relying on said case, it is submitted that if petitioner has a strong prima facie case and balance of convenience and irreparable injury will be caused to petitioner then interim relief can be granted to petitioner even if same will amount to granting final relief.

Paragraph-12 of said judgment is quoted below:-

"Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts t o granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would b e rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent".

3 WP-15297-2021 Heard the counsel for petitioners as well as respondents. Granting of interim relief will amount to final relief can be granted to petitioner in cases where withholding of interim relief would tantamount to dismissal of main petition itself or by the time main matter comes up for hearing there would be nothing left to be allowed as relief to petitioner though findings may be in his favour. Along with aforesaid circumstance, there has to be prima facie case, balance of convenience and irreparable injury in favour of petitioner.

In the present case, if interim relief is not granted to the petitioners then same will not tantamount to dismissal of main petition. Respondents had submitted that they will grant all the arrears along with interest to petitioners if

they finally succeed in review petition which means there will be no irreparable injury caused to petitioners if at this stage interim relief denied to them. Further Apex Court is seized with the matter and case has been referred to Larger Bench for consideration in review petition. It has also been argued by learned counsel for the respondents that more amount has been paid to petitioners than what has been deposited by them with respondents. Petitioners never raised any grievance when they were paid less pension. Respondents on their own granted more pension to petitioners in view of judgment passed by Apex court in R.C. Gupta (supra). There was no question of survival of petitioners when they were getting less pension and they did not raise any grievance. Therefore, it cannot be said that there will be question of survival of petitioners on reducing the pension.

Considering the totality of facts and circumstances of the case, it is clear that no irreparable injury will be caused to petitioners if interim relief is denied to them. If finally petitioners succeed in review petition then they will get all the benefits for which they are entitled. Question of survival or violation of Article 21 of Constitution of India is only hypothetical in these cases. Petitioners were managing themselves when they were getting less pension. Reduction of pension may cause some inconvenience but that inconvenience 4 WP-15297-2021 is not life threatening.

In view of aforesaid facts and circumstances of the case, prayer for grant of interim relief is rejected.

Hearing of matters is deferred for eight weeks.

List these matters in week commencing 08.11.2021.

(VISHAL DHAGAT) JUDGE

shabana Digitally signed by SHABANA ANSARI Date: 2021.09.15 14:48:56 +05'30'