Anil Mehra vs The Employees Provident Fund ...
2023 Latest Caselaw 13081 MP

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT GWALIOR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                             ON THE 11 th OF AUGUST, 2023
                                            WRIT PETITION No. 14862 of 2021

                          BETWEEN:-
                          ANIL MEHRA S/O SHRI SUKHDEV LAL MEHRA, AGED
                          ABOUT 67 YEARS, OCCUPATION: PENSIONER, R/O CB
                          BLOCK, JANTA FLAT 73/B HARI NAGAR, NEW DELHI

                                                                                     .....PETITIONER
                          (BY SHRI A.S. RATHORE - ADVOCATE)

                          AND
                          1.    THE    EMPLOYEES   PROVIDENT      FUND
                                ORGANIZATION, THROUGH THE REGIONAL
                                PROVIDENT FUND COMMISSIONER-II, SANJAY
                                COMPLEX JAYENDRAGANJ GWALIOR (MADHYA
                                PRADESH)

                          2.    ASSISTANT PROVIDENT FUND COMMISSIONER
                                (PEN S I ON ), REGIONAL OFFICE, EMPLOYEES
                                PROVIDENT        FUND  ORGANIZATION, SANJAY
                                COMPLEX JAYENDRAGANJ, GWALIOR (MADHYA
                                PRADESH)

                          3.    CHIEF EXECUTIVE OFFICER, GWALIOR DUGDHA
                                SANGH    SAHAKARI     MARYADIT GOLE KA
                                MANDIR, GWALIOR (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                          (BY SHRI R. K. GOYAL - ADVOCATE FOR RES. NO.1 & 2 ;
                          SHRI VIVEK JAIN - ADVOCATE FOR RES. NO.3)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

By way of present petition under Article 226 of the Constitution of India, the petitioner has not challenged any specific order; but, are Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 11-Aug-23 5:16:09 PM

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 matter of the Employees Provident Fund Organization and Anr. Vs. Sunil Kumar B. & Ors., passed in Special Leave Petition (C) Nos.8658-8659 of 2019 by which the Apex Court has disposed of the aforesaid 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 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) Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 11-Aug-23 5:16:09 PM

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 crystallized 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 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 Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 11-Aug-23 5:16:09 PM

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."

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 the light of the decision of the Apex Court in the matter of Employees Provident fund Organization (supra). Let the entire exercise be done within a period of two months from the date of receipt of certified copy of this order.

(MILIND RAMESH PHADKE) JUDGE Rohit

Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 11-Aug-23 5:16:09 PM