Karuppiah vs The Assistant Provident
2025 Latest Caselaw 3921 Mad

Madras High Court

Karuppiah vs The Assistant Provident on 13 March, 2025

                                                                                 W.P.(MD) No.16702 of 2019


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 13.03.2025

                                                             CORAM:

                         THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR


                                              W.P.(MD) No.16702 of 2019
                                                         and
                                             W.M.P.(MD) No.14726 of 2020


                 Karuppiah                                                                      ... Petitioner

                                                                 -vs-


                 The Assistant Provident
                   Fund Commissioner
                 Employees Provident
                   Fund Organisation
                 Regional Office
                 Lady Doak College Road
                 Chokkikulam
                 Madurai-2                                                                      ... Respondent


                 PRAYER: Petition filed under Article 226 of the Constitution of India, to issue

                 a writ of certiorarified mandamus calling for the entire records relating to the

                 impugned order passed by the respondent herein dated 26.03.2019 made in

                 No.TN/MDU/RO/Pension Cell/higher wages/2019 and to quash the same in

                 sofar as the portion rejecting the request of the petitioner for payment of



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                                                                                      W.P.(MD) No.16702 of 2019


                 higher pension and consequently direct the respondent herein to pay higher

                 pension by taking into consideration of the petitioner's last drawn pay of

                 Rs.19,325, with all arrears thereon.


                                  For Petitioner        : Mr.S.Veeranasamy

                                  For Respondent        : Mr.A.John Xavier



                                                                ORDER

This writ petition has been filed by the petitioner seeking a writ of

certiorarified mandamus to call for the records pertaining to the impugned

order issued by the respondent, in No.TN/MDU/RO/Pension Cell/higher

wages/2019, dated 26.03.2019, to quash the same and consequently to direct

the respondent to pay higher pension to the petitioner by taking into

consideration his last drawn pay of Rs.19,325/- with all arrears thereon.

2. When the matter is taken up for consideration, Mr.A.John

Xavier, learned counsel appearing for the respondent, brought to the notice of

this Court that the very same issue has fallen for consideration before the

Honourable Apex Court in the case of Employees Provident Fund

Organisation & Anr vs. Sunil Kumar B. & Ors. reported in (2023) 12 SCC

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701 and the Honourable Apex Court has laid down certain guidelines and in

terms of the said guidelines, the pension payable to the petitioner is required

to be revised.

3. Learned counsel appearing for the respondent submits that in

case the petitioner submits a joint application along with the President,

Panaikulam Primary Agriculture Cooperative Society, North Chandanoor

Village, S.Karaikudi Post, Manamadurai Taluk, Sivagangai District, online

before the respondent, the same would be considered and appropriate revision

of pension would be made. He would further submit that it is only for want of

appropriate joint application from the petitioner along with the Cooperative

Society concerned, the revised pension payable to the petitioner could not be

made in terms of the guidelines framed by the Honourable Apex Court,

referred to above.

4. Learned counsel for the petitioner having noted the contention

of the learned counsel appearing for the respondent submitted that the

petitioner would submit necessary joint application along with the concerned

Cooperative Society and other relevant documents before the respondent

within a period of four weeks from today.

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5. In view of the same, this Court does not see any impediment for

the disposal of the present writ petition.

6. The Honourable Apex Court, having considered the matter, laid

down the guidelines at Paragraph No.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 subparagraphs.

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

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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 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 preamended 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 under Para 11(4) of the

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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 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

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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) (preamendment) 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.

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.”

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7. In the light of the guidelines laid down by the Honourable Apex

Court, this writ petition is disposed of permitting the petitioner to submit

necessary joint application along with the President, Panaikulam Primary

Agriculture Cooperative Society, North Chandanoor Village, S.Karaikudi Post,

Manamadurai Taluk, Sivagangai District, before the respondent within a

period of four weeks from today and on submission of such application by the

petitioner, the respondent shall consider the same and pass appropriate

orders thereon for revision of pension in terms of the guidelines laid down by

the Honourable Apex Court, within a further period of six weeks from the date

of submission of application by the petitioner. There shall be no order as to

costs. Consequently, connected miscellaneous petition is closed.

                                                                                   13.03.2025
                 NCC      : Yes / No
                 Index : Yes / No
                 Internet : Yes / No

                 Note to Office:
                 Mark a copy of this order to the
                 President,    Panaikulam      Primary

Agriculture Cooperative Society, North Chandanoor Village, S.Karaikudi Post, Manamadurai Taluk, Sivagangai District.

krk

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MUMMINENI SUDHEER KUMAR, J.

krk

and

13.03.2025

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