Madhya Pradesh High Court
Umesh Chanda Rawal vs The Employees Provident Fund ... on 8 December, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 8 th OF DECEMBER, 2023
WRIT PETITION No. 14430 of 2021
BETWEEN:-
1. UMESH CHANDA RAWAL S/O LATE SHRI
GANESHI LAL JI RAWAL, AGED ABOUT 64 YEARS,
OCCUPATION: RETIRED VILLAGE EXTENSION
ORGANIZER R/O SANJAY MEHTA, KAMLA NEHRU
NAGAR BHOPAL MP PIN CODE NO.462003
(MADHYA PRADESH)
2. BHERU LAL JATAV S/O SHRI BHAGIRATH JI
JATAV, AGED ABOUT 65 YEARS, OCCUPATION:
RET. VILLAGE EXTENSION ORGANIZER C/O
SANJAY MEHTA KAMLA NEHRU NAGAR
(MADHYA PRADESH)
3. ASHOK KUMAR SAXENA S/O SHRI GANPAT
SAHAYA, AGED ABOUT 64 YEARS, OCCUPATION:
RET. VILLAGE EXTENSION ORGANIZER SHRI
VINAYAK RAO VELANKAR DAYA NAGAR YADAV
COLONY IN FRONT OF GUPTA SWEETS (MADHYA
PRADESH)
4. SHANTI LAL DUBEY S/O SHRI KISHAN DUBEY,
AGED ABOUT 66 YEARS, OCCUPATION: RET.
SOCEITY EXTENSION ASSISTANT SHRI VINAYAK
RAO VELANKAR DAYA NAGAR YADAV COLONY
IN FRONT OF GUPTA SWEETS (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI A.K. SINGH - ADVOCATE)
AND
1. THE EMPLOYEES PROVIDENT FUND
ORGANIZATION THROUGH CHIEF PROVIDENT
FUND COMMISSIONER BHAVISHYA NIDHGI
BHAWAN 14 BHIKAJI CAMA PLACE, NEW DELHI
PIN 110029 (DELHI)
2. REGIONAL PROVIDENT FUND COMMISSIONER
Signature Not Verified
Signed by: PRADYUMNA
BARVE
Signing time: 12/9/2023
5:20:47 PM
2
SUB REGIONAL OFFICER 7 BHARATPURI
ADMINISTRATIVE ZONE DEVAS ROAD (MADHYA
PRADESH)
3. STATE COOPERATIVE DAIRY FEDERATION
LI M I TED THR. CHIEF EXECUTIVE OFFICER
UJJAIN SAHAKARI DUGDHA SANGH MYDT.
MAKSI ROAD (MADHYA PRADESH)
.....RESPONDENTS
(SHRI J.K. PILLAI - ADVOCATE FOR RESPONDENT NOS. 1 AND 2)
(SHRI SHUVENDRA PANDEY - ADVOCATE ON BEHALF OF SHRI BHAVIL
PANDEY - ADVOCATE FOR RESPONDENT NO.3)
This petition coming on for admission this day, the Court passed the
following:
ORDER
With the consent of learned counsel for the parties, this writ petition is
heard finally.
2. In this writ petition under Article 226 of the Constitution of India, the
petitioner has not challenged any specific order but are aggrieved by non-grant
of higher pension on the basis of contribution made towards actual salary under
the Employees Pension Scheme,1995.
3. Learned counsel for the parties submit that the issue involved in this
petition is already settled by the Apex Court in Employees Provident Fund
Organisation & Another Sunil Kumar B & Others passed in S.L.P.
(C).Nos.8658-8659/2019, by which the Apex Court had disposed of the
S.L.Ps. by upholding the 2014 amendment carried out in the Pension Rules of
1995 and certain directions have been issued in Paragraph No.44 of the
judgment with regard to entitlement of higher pension. The directions as
contained in the order of the Apex Court are 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 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 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 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
a n y 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".
4. In view of the aforesaid guidelines, this writ petition can also be
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 in
Employees Provident Fund Organisation & Another Sunil Kumar B &
Others (supra).
5. Let the entire exercise be completed as expeditiously as possible
within a period of two months from the date of receipt of certified copy of the
order being passed today.
6. In above terms, this writ petition is disposed of.
(MANINDER S. BHATTI)
JUDGE
PB
