Madhya Pradesh High Court
O. P. Garg vs Union Of India on 14 November, 2022
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 14th OF NOVEMBER, 2022
WRIT PETITION No. 15373 of 2019
BETWEEN:-
1. O. P. GARG S/O SHRI RAMESHWAR PRASAD
GARG, AGED ABOUT 64 YEARS, OCCUPATION:
RETIRED R/O C/O RAVI PRAKASH GARG, H A-26
CITY HOME COLONY JAWAHAR NAGAR ROAD,
PATERI ROAD, SATNA (M.P.) (MADHYA
PRADESH)
2. HARBHAJAN SINGH S/O LATE RAJPAL SINGH,
AGED ABOUT 61 YEARS, OCCUPATION:
RETIRED EMPLOYEE R/O VILLAGE POST
KARCHANA, DITT PRAYGARAJ (UTTAR
PRADESH)
3. JAI BHAN SINGH PARIHAR S/O SHRI UGRASEN
SINGH PARIHAR, AGED ABOUT 66 YEARS,
OCCUPATION: RETIRED EMPLOYEE R/O
M.P.NAGAR, SECTOR 2 (MADHYA PRADESH)
4. OM PRAKASH VERMA S/O SHRI RAMESHWAR
PRASAD VERMA, AGED ABOUT 65 YEARS,
OCCUPATION: RETIRED EMPLOYEE R/O
M.P.NAGAR, SECTOR 2 (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SWAMI - ADVOCATE)
AND
1. UNION OF INDIA THR.SECRETARY MINISTRY
OF LABOUR AND EMPLOYMENT DEPARTMENT
OF EMPLOYMENT NEW DELHI (DELHI)
2. THE EMPLOYEES PROVIDENT FUND
ORGANIZATION THR. CHIEF PROVINDENT
FUND COMMISSIONER BHAVISHYA NIDHI
BHAWAN, 14 BHIKAJI CAMA PLACE, (DELHI)
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3. REGIONAL PROVIDENT FUND COMMISSIONER
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Date: 2022.11.14 18:10:25 IST EMPLOYEES PROVIDENT FUND
OR GAN IS ATION IDA BUILDING 7, RACE
2
COURSE ROAD INDORE (MADHYA PRADESH)
4. REGIONAL PROVIDENT FUND COMMISSIONER
EMPLOYEES PROVIDENT FUND
ORGANISATION REGIONAL /SUB REGIONAL
OFFICE VIJAY NAGAR (MADHYA PRADESH)
5. MADHYA PRADESH ROAD TRANSPORT
CORPORATION HEAD OFFICE, HABIBGANJ
THR. DY. GENERAL MANAGER DISTT-BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI DEVESH BHOJNE - ADVOCATE)
(RESPONDENTS NO.2 TO 4 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
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 :-
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"(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
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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 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
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scheme.
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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 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.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
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adjustments in the scheme so that the additional contribution can be
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generated from some other legitimate source within the scope of the Act,
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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".
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.
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(S. A. DHARMADHIKARI)
JUDGE
HS
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