Madras High Court
Unknown vs Union Of India on 12 February, 2025
W.P.(MD) No.22676 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.02.2025
CORAM
THE HON'BLE MR.JUSTICE MUMMINENI SUDHEER KUMAR
W.P.(MD) No.22676 of 2018
1.S.M.A.Syed Mohamed
2.S.Piramanayagam
3.R.Swaminathan
4.R.Surya Narayanasamy
5.N.Karthikeyan Nair
6.S.Shanmuga Sundaram
7.S.Thirumalai
8.S.Vaithilingam
9.N.Veerapandian Selvakumar
10.O.Ganesan
11.T.Ramasubramanian
12.M.Justin Arputham
13.S.Dhanuskodi
14.N.Sivabalan
15.K.Namasivayam
16.K.Manoharan
17.P.Azhagappan
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W.P.(MD) No.22676 of 2018
18.A.Muthupillai
19.N.Kuttalam
20.A.Ganesan
21.E.Ratnaraj ... Petitioners
Vs.
1.Union of India,
Rep., by the Secretary to the Government of India,
Ministry of Labour and Department of Employment,
New Delhi-110 001.
2.The Central Provident Fund Commissioner,
Employees Provident Fund Organization (EPFO),
14, Bhikaiji Cama Place,
New Delhi-110 066.
3.The Regional Provident Fund Commissioner,
Employees Provident Fund Organisation (EPFO),
37, Royapettah High Road,
Chennai-600 014.
4.The Assistant Provident Fund Commissioner,
Employees Provident Fund Organisation (EPFO).
Lady Doak College Road,
Madurai-625 002.
5.The Assistant Provident Fund Commissioner,
Employees Provident Fund Organisation (EPFO),
NGO B Colony, Perumalpuram, Palayamkottai.
6.The Managing Director,
The Tamil Nadu Handloom Weavers' Co-operative Society Ltd.,
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W.P.(MD) No.22676 of 2018
Co-op tex Head Office,
350, Pantheon Road, Egmore,
Chennai-600 008. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Mandamus, to direct the respondents No.3 to 6 to revise the
pension as per clause 11(3) of Pension Scheme 1995 based on full salary to
the petitioners form their respective scale of pay and to permit the 6th
respondent to collect the refund amount from the petitioners in which they
have withdrawn the retirement benefits by way of proportionate amount of
provident fund based upon the representation made by the petitioners dated
03.02.2018.
For Petitioners : Mr.K.K.Kannan
For R1 : Mr.K.Manikannan
For R4 : Mr.A.John Xavier
For R5 : Mr.K.Muralisankar
For R6 : Mr.R.Sethuraman
For RR2 & 3 : No appearance
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W.P.(MD) No.22676 of 2018
ORDER
This writ petition has been filed seeking to issue Writ of
Mandamus, to direct Respondents No.3 to 6 to revise the pension as per
Clause 11(3) of Pension Scheme, 1995 based on full salary to the petitioners
form their respective scale of pay and to permit Respondent No.6 to collect
the refund amount from the petitioners in which they have withdrawn the
retirement benefits by way of proportionate amount of provident fund based
upon the representation made by the petitioners dated 03.02.2018.
2. When the matter is taken up for consideration,
Mr.K.Manikannan, learned counsel for the first respondent and Mr.A.John
Xavier, learned counsel for the fourth respondent brought to the notice of this
Court that the very same issue has fallen for consideration before the Hon'ble
Apex Court in the case of Employees Provident Fund Organisation & Anr
vs. Sunil Kumar B. & Ors. reported in (2023) 12 SCC 701 and the Hon'ble
Apex Court has laid down certain guidelines and in terms of the said
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guidelines, the pension payable to the petitioners is required to be revised.
They also further submitted that Respondent No.4 having taken note of the
order passed by the Hon'ble Apex Court, also addressed a letter dated
25.04.2023 to the learned counsel for the petitioners requiring the petitioners
to submit the relevant application and other documents to enable
Respondents No.1 to 4 to consider the case of the petitioners for revision of
pension. However, the petitioners have not submitted any application for
revision of their pension as on date.
3. Learned counsel for the petitioners having noted the contention
of the learned counsel for Respondents No.1 and 4 submitted that the
petitioners would submit necessary application and other relevant documents
before Respondents No.1 to 4 within a period of four weeks from today.
4. In view of the same, this Court does not see any impediment for
the disposal of the present writ petition.
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5. The Hon'ble Apex Court having considered the matter, laid down
the guidelines at Paragraph 50 of the order dated 04.11.2022, which read as
under:
“50. We accordingly hold and direct:
50.1. The provisions contained in Notification
No. GSR 609(E) dated 22-8-2014 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.
50.2. Amendment to the Pension Scheme
brought about by Notification No. GSR 609(E) dated
22-8-2014 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.
50.3. The employees who had exercised option
under the proviso to Para 11(3) of the 1995 Scheme and
continued to be in service as on 1-9-2014, will be guided
by the amended provisions of Para 11(4) of the Pension
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Scheme.
50.4. The members of the Scheme, who did not
exercise option, as contemplated in the proviso to Para
11(3) of the Pension Scheme (as it was before the 2014
Amendment) would be entitled to exercise option under
Para 11(4) of the post amendment Scheme. Their right to
exercise option before 1-9-2014 stands crystallised in the
judgment of this Court in R.C. Gupta [R.C. Gupta v.
EPFO, (2018) 14 SCC 809 : (2018) 2 SCC (L&S) 745] .
The Scheme as it stood before 1-9-2014 did not provide
for any cut-off date and thus those members shall be
entitled to exercise option in terms of Para 11(4) of the
Scheme, as it stands at present. Their exercise of option
shall be in the nature of joint options covering pre-
amended Para 11(3) as also the amended Para 11(4) of
the Pension Scheme.
50.5. 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
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under Para 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.
50.6. Rest of the requirements as per the
amended provision shall be complied with.
50.7. The employees who had retired prior to
1-9-2014 without exercising any option under Para 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.
50.8. The employees who have retired before
1-9-2014 upon exercising option under Para 11(3) of the
1995 Scheme shall be covered by the provisions of Para
11(3) of the Pension Scheme as it stood prior to the
amendment of 2014.
50.9. The requirement of the members to
contribute @ 1.16% of their salary to the extent such
salary exceeds Rs 15,000 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
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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 stopgap measure. The said sum shall be adjustable on
the basis of alteration to the Scheme that may be made.
50.10. We do not find any flaw in altering the
basis for computation of pensionable salary.
50.11. We agree with the view taken by the
Division Bench in R.C. Gupta [R.C. Gupta v. EPFO,
(2018) 14 SCC 809 : (2018) 2 SCC (L&S) 745] so far as
interpretation of the proviso to Para 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.
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50.12. Contempt Petitions (C) Nos. 1917-18 of
2018 and Contempt Petitions (C) Nos. 619-20 of 2019 in
Civil Appeals Nos. 10013-14 of 2016 are disposed of in
the above terms.”
6. In the light of the guidelines laid down by the Hon'ble Apex
Court and taking note of the letter dated 25.04.2023 of Respondent No.4, this
Writ Petition is disposed of, permitting the petitioners to submit necessary
applications individually in response to the letter dated 25.04.2023 within a
period of four weeks from today and on submission of such individual
application by the petitioners, Respondent No.4 shall consider the same and
pass appropriate orders thereon for revision of pension in terms of the
guidelines laid down by the Hon'ble Apex Court within a further period of six
weeks from the date of submission of application by the individual
petitioners. There shall be no order as to costs.
12.02.2025
NCC : Yes/No
Index : Yes/No
ABR
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To
1.The Secretary to Government,
Union of India,
Ministry of Labour and Department of Employment,
New Delhi-110 001.
2.The Central Provident Fund Commissioner,
Employees Provident Fund Organization (EPFO),
14, Bhikaiji Cama Place,
New Delhi-110 066.
3.The Regional Provident Fund Commissioner,
Employees Provident Fund Organisation (EPFO),
37, Royapettah High Road,
Chennai-600 014.
4.The Assistant Provident Fund Commissioner,
Employees Provident Fund Organisation (EPFO).
Lady Doak College Road,
Madurai-625 002.
5.The Assistant Provident Fund Commissioner,
Employees Provident Fund Organisation (EPFO),
NGO B Colony, Perumalpuram, Palayamkottai.
6.The Managing Director,
The Tamil Nadu Handloom Weavers' Co-operative Society Ltd.,
Co-op tex Head Office,
350, Pantheon Road, Egmore,
Chennai-600 008.
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MUMMINENI SUDHEER KUMAR, J.
ABR
12.02.2025
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