Madras High Court
A.Murugesan vs The Regional Provident Fund ... on 27 June, 2023
W.P.No.935 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
W.P.No.935 of 2020
A.Murugesan ...Petitioner
-Vs-
The State represented by its:
1.The Regional Provident Fund Commissioner,
O/o. Employees Provident Fund Organization,
Swarnapuri,
Salem - 636 004.
2.The Assistant Commissioner, (Pension),
O/o. Employees Provident Fund Organization,
S.J.Plaza,
Swarnapuri,
Salem - 636 004.
3.The Managing Director,
S-672, Attur Agricultural Producers Co-op,
Marketing Society Ltd.,
No.563, Kamarajanar Road,
Pudupet (PO),
Attur Taluk,
Salem District - 639 141. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Mandamus directing the respondents to consider
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W.P.No.935 of 2020
the representation dated 17.07.2018 and consequently direct the respondents
to grant enhanced pension on the basis of actual salary received by the
petitioner with arrears of pension from the date of petitioner's retirement and
continue to pay monthly enhanced pension throughout the petitioner's
lifetime paying retrospectively monthly pensionable salary from as per the
verdict of the Supreme Court dated 04.10.2016 made in SLP.Nos.33032-
33033 of 2015.
For Petitioner : Mr.S.Lakshmi
For Respondents 1 & 2 : Mr.B.Vishnu,
Standing Counsel
For Respondent 3 : Mr.L.P.Shanmugasundaram
COMMON ORDER
Heard, learned counsel for the petitioner, learned Standing counsel
appearing for the respondents 1 ad 2 and the learned counsel appearing for
the third respondent.
2. This writ petition is filed seeking to issue a writ of mandamus
directing the respondents to consider the representation of the petitioner
dated 17.07.2018 seeking to grant enhanced pension on the basis of actual
salary received by him with arrears of pension from the date of petitioner's
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W.P.No.935 of 2020
retirement and continue to pay monthly enhanced pension throughout his
lifetime paying retrospectively monthly pensionable salary as per the
judgment of the Hon'ble Apex Court dated 04.10.2016 in S.L.P.Nos.33032 -
33033 of 2015.
3. Learned Standing Counsel appearing for the respondents 1 and 2
submits that to consider the request of the petitioner to grant enhanced
pension, he has to submit an option in terms of the directions issued by the
Apex Court in the case of the Employees Provident Fund Organisation &
Another Etc., vs. Sunil Kumar B. & Others reported in 2022 LiveLaw (SC)
4. This Court carefully gone through the copy of the Judgment of the
Hon'ble Apex Court placed by the learned Standing Counsel. The relevant
portion of the judgment is extracted herein under for proper adjudication of
this case:
"44. We accordingly hold and direct:-
(i) The provisions contained in the notification no. G.S.R.
609(E) dated 22nd August 2014 are legal and valid. So far
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W.P.No.935 of 2020
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 1 st 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 1 st September 2014 stands crystalised in the
judgment of this Court in the case of R.C. Gupta (supra).
The scheme as it stood before 1 st September 2014 did not
provide for any cutoff date and thus those members shall be
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W.P.No.935 of 2020
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 cut-off 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 1 st 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 1 st September
2014 upon exercising option under paragraph 11(3) of the
1995 scheme shall be covered by the provisions of the
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W.P.No.935 of 2020
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 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
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W.P.No.935 of 2020
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.1917-1918 of 2018 and
Contempt Petition (C) Nos. 619-620 of 2019 in Civil Appeal
Nos. 10013-10014 of 2016 are disposed of in the above
terms."
5. In the light of the directions issued by the Hon'ble Apex Court, the
petitioner has to exercise option under paragraph 11.4 of the Scheme.
6. Learned Standing Counsel appearing for the respondents 1 and 2
submits that the last date to exercise option of the petitioner is extended till
26.06.2023. If the petitioner exercises his option on or before 26.06.2023, the
petitioner will get the benefit, he sought in this writ petition.
7. Learned counsel for the petitioner submits that the petitioner has
already exercised his option and uploaded the relevant documents and
informations required for this purpose.
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W.P.No.935 of 2020
8. In view of the submissions of the learned counsel for the petitioner
that the petitioner has already exercised his option, now it is for the
respondents 1 and 2 to take further steps in compliance of the directions of
the Hon'ble Apex Court in the Judgment stated supra.
9. In view of the above factual position, this writ petition is disposed of
with a direction to the respondents 1 and 2 to grant enhanced pension to the
petitioner within a period of three months from the date of uploading the
informations by the petitioner, if he is entitled to in accordance with law.
10. There shall be no order as to costs.
11. Consequently, connected miscellaneous petition is closed, if any.
27.06.2023
nl
Note: Issue order copy on 28.06.2023.
Index: Yes/No
Neutral Citation: Yes/No
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W.P.No.935 of 2020
To
1.The Regional Provident Fund Commissioner,
O/o. Employees Provident Fund Organization,
Swarnapuri,
Salem - 636 004.
2.The Assistant Commissioner, (Pension),
O/o. Employees Provident Fund Organization,
S.J.Plaza,
Swarnapuri,
Salem - 636 004.
3.The Managing Director,
S-672, Attur Agricultural Producers Co-Op,
Marketing Society Ltd.,
No.563, Kamarajanar Road,
Pudupet (PO),
Attur Taluk,
Salem District - 639 141.
https://www.mhc.tn.gov.in/judis
W.P.No.935 of 2020
BATTU DEVANAND, J.
nl
W.P.No.935 of 2020
27.06.2023
https://www.mhc.tn.gov.in/judis
