Madhya Pradesh High Court
Santosh Saini vs The Employees Provident Fund ... on 2 May, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2 nd OF MAY, 2023
WRIT PETITION No. 16561 of 2021
BETWEEN:-
SANTOSH SAINI S/O SHRI BABULAL SAINI, AGED
ABOUT 67 YEARS, OCCUPATION: RETIRED EMPLOYEE
OF BHOPAL DAIRY FEDERATION MIG 3/14 SUKHSAGAR
PHASE II NARELA SHANKARI BHEL BHOPAL (MADHYA
PRADESH)
.....PETITIONER
AND
1. THE EMPLOYEES PROVIDENT FUND
ORGANIZATION THR. CHIEF PROVIDENT FUND
COMMISSIONER BHAVISHYA NIDHI BHAWAN 14
BHIKAJI CAMA PLACE NEW DELHI (DELHI)
2. THE REGIONAL PROVIDENT FUND
COMMISSIONER (PENSION BHOPAL REGIONAL
OFFICE, BHAVISHYA NIDHI BHAWAN, 59, ARERA
HILLS, BHOPAL (MADHYA PRADESH)
3. THE BHOPAL SAHKARI DUGDH SANGH MYDT.
BHOPAL OFFICE OF NEAR HABIBGANJ RAILWAY
STATION, DISTT. BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI - ADVOCATE)
(BY SHRI SHEVENDRA PANDEY - ADVOCATE FOR RESPONDENT NO.3)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
In this writ petition under Article 226 of the Constitution of India, the
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2023.05.03 18:25:38 IST
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.
Learned counsel for the parties submit that the issue involved in this
petition is already settled by the decision of 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.
Signature Not Verified
SAN (iii) The employees who had exercised option under the
Digitally signed by MOHD TABISH KHAN
Date: 2023.05.03 18:25:38 IST
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
Signature Not Verified
SAN
requirements as per the amended provision shall be complied with.
Digitally signed by MOHD TABISH KHAN
Date: 2023.05.03 18:25:38 IST
(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.
Signature Not Verified
SAN
(viii) We do not find any flaw in altering the basis for
Digitally signed by MOHD TABISH KHAN
computation of pensionable salary.
Date: 2023.05.03 18:25:38 IST
(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 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).
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.
In above terms, this writ petition is disposed of.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2023.05.03 18:25:38 IST
