Madhya Pradesh High Court
Ganesh Prasad Choubey vs Employees Provident Fund ... on 20 December, 2022
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 20 th OF DECEMBER, 2022
WRIT PETITION No. 3150 of 2020
BETWEEN:-
GANESH PRASAD CHOUBEY S/O LATE SHRI RAMSEVAK
CHOUBEY, AGED ABOUT 68 YEARS, OCCUPATION:
RETIRED BANK EMPLOYEE R/O PLOT NO. 1317, NEAR
NACHIKETA SCHOOL, VIJAY NAGAR, JABALPUR (M.P.)
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI H.S. RAJPUT, ADVOCATE)
AND
1. EMPLOYEES PROVIDENT FUND ORGANIZATION
THR. REGIONAL OFFICE (MINISTRY OF LABOUR
AND EMPLOYMENT GOVT. OF INDIA) BHAVISHYA
NIDHI BHAVAN, 59, ARERA HILLS, BHOPAL (M.P.)
(MADHYA PRADESH)
2. EMPLOYEES PROVIDENT FUND ORGANIZATION
THR. REGIONAL PROVIDENT FUND
COMMISSIONER, SUB REGIONAL OFFICE
(MINISTRY OF LABOUR AND EMPLOYMENT
GOVT.OF INDIA) BHAVISHYA NIDHI KARYALAYA
VIJAYU NAGAR JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard finally with the consent of both the parties.
In this petition under Article 226 of the Constitution of India, the
petitioner has not challenged any specific order; but, is aggrieved by non-grant
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 12/22/2022
3:37:53 PM
of higher pension on the basis of contribution made towards actual salary under
the Employees Pension Scheme,1995.
Learned counsel for the parties submit that the issue involved in this
petition is already settled by the decision of the Apex court in the case of The
Employees Provident fund Organisation and Anr. Vs. Sunil Kumar B &
Ors., passed in S.L.P.(C).Nos.8658-8659/2019 by which the Apex Court has
disposed of the S.L.P. by upholding the 2014 amendment carried out in the
Pension Rules of 1995 and certain directions have been issued in para 44 of the
judgment with regard to entitlement of higher pension. The directions as
contained in the order of the Apex Court is reproduced below :-
"(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 subparagraphs.
(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
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Signed by: SHUBHAM
THAKKER
Signing time: 12/22/2022
3:37:53 PM
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 (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 paragraph11(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 cutoff 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
o ur 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
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THAKKER
Signing time: 12/22/2022
3:37:53 PM
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 the said judgment within a period of eight
weeks, subject to our directions contained earlier in this paragraph.
(x) The Contempt Petition (C) Nos.19171918 of 2018 and Contempt
Petition (C) Nos. 619620 of 2019 in Civil Appeal Nos. 1001310014 of 2016 are
disposed of in the above terms".
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Signed by: SHUBHAM
THAKKER
Signing time: 12/22/2022
3:37:53 PM
In view of the aforesaid guidelines, this petition is also disposed of with
the direction to the competent Authority to decide the claim of the petitioner in
accordance with the decision of the Apex court (supra).
The entire exercise be completed as expeditiously as possible within a
period of two months from the date of receipt of certified copy of this order.
(MANINDER S. BHATTI)
JUDGE
Shub
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 12/22/2022
3:37:53 PM
