Additional Central Provident vs Berhampur Co-Operative
2023 Latest Caselaw 1263 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                   W.A. No. 196 of 2021
Additional Central Provident    ....              Appellants
Fund Commissioner and
others
                              Mr. S.S.Mohanty, Advocate
                         -versus-
Berhampur Co-operative          ....           Respondents
Central Bank Employees
Union & others
                                   Mr. Niranjan Biswal, Advocate
                  CORAM:
                 JUSTICE JASWANT SINGH
                 JUSTICE M.S.SAHOO

                           ORDER

07.02.2023 Hybrid Mode Order No.06

1. The intra Court appeal has been filed by the appellants- Employees' Provident Fund organization represented through its functionary challenging the order dated 29.1.2021 passed by the learned Single Judge disposing of the W.P.(C) No. 3049 of 2021.

2. The said writ petition was filed by the respondent no.1- Berhampur Cooperative Central Bank Employees Union, inter alia seeking a direction for grant of higher pension to the retired employees of the Co-operative Bank as per Employees' (Pension) Scheme, 1995.

Learned Single Judge by order dated 29.01.2021 disposed of the writ petition with the following observation :

"This matter is taken up through Video Conferencing.

Heard learned counsel for the parties. The first round of litigation got disposed of by this Court by order dated 5.08.2013 in W.P.(C) No.17577 of 2013.

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It is submitted that pursuant to this direction and consequent upon a request made by the petitioner, petitioner was directed, vide Annexure-9 to deposit a sum of Rs.1,50,85,169/- to avail the benefits of pension on higher wages. A statement is made during course of submission by the learned counsel for the petitioner that in spite of the petitioner already deposited the amount as directed under Annexure-9, being established through Annexure-10 the petitioner has not been provided with higher pension. It is in this respect, petitioner filed subsequent representation, vide Annexure-11 also remained un-disposed of. Considering the statement and the submissions of the learned counsel for the petitioner being establishment through Annexure-10 in compliance of the direction contained in Annexure-9, the petitioner be entitled to appropriate pension on higher wages. This Court directs opposite party no.1 to take steps for payment of higher pension on higher wages in favour of the petitioner and release of the same within a period of six weeks from the date of communication of this order by the petitioner.

For the petitioner suffering for no latches of him, on the other hand, for the lackadaisical attitude of the Establishment of opposite party no.1 even after deposit of the required amount since 18.10.2017, petitioner will be entitled to interest on the differential higher pension at the rate of 9% all through.

The Writ Petition stands disposed of. As restrictions are continuing due to COVID-19, petitioner(s) may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020."

3. For convenience of reference the order dated 05.08.2013 disposing of the earlier writ petition which has been referred to in the order dated 29.01.2021 passed in W.P.(C) No. 17577 of 2013 : Berhampur Co-operative Central Bank Employees Union v. RPF Commissioner, is also reproduced herein :

"Heard learned counsel for the petitioner. This writ petition has been filed by Berhampur Co- operative Central Bank Ltd. Employees Union, Ganjam,

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with a prayer to direct the opposite parties to grant permission to the employees of the petitioner-Union to contribute to the pension fund as per Employees Pension Scheme, 1995 on the higher salary above the statutory ceiling fixed by Employee Provident Fund Organization.

On perusal of the records, it appears that the Secretary, Berhampur Co-operative Central Bank Ltd, Ganjam-opposite party no.3 vide letter dtd.14.11.2012 under Annexure-2 has recommended the options of the existing employees having P.F Code No.OR/434 and OR/434-A along with employer confirmation to contribute @ 8.33% towards the employees pension scheme to the Sub-Regional Provident Fund Commissioner -opposite party no.2, which is pending consideration. In view of the above, without expressing any opinion with regard to merits of the case, this Court disposes of this Writ Petition directing opposite party nos.1 and 2 to consider the recommendation submitted by opposite party no.3 on 14.11.2012 and pass necessary orders, as expeditiously as possible, preferably within a period of three months from the date of production of certified copy of this order.

Writ petition is accordingly disposed of."

4. Reliance is placed by the learned counsel for respondents on order of the Hon'ble Supreme Court, dated 4th November, 2022 passed in SLP(Civil) Nos.8658-8659 of 2019 : The Employees Provident Fund Organisation and another v. Sunil Kumar B. and others, that has been filed before this Court (annexed to the I.A. No. 358 of 2023 as Annexure-R/1), to contend that the Writ Appeal would fail.

In response, it is agreed by the learned counsel appearing for the appellants that the present appeal can be disposed of, directing the Employees' Provident Fund Commissioner to take a decision regarding payment of enhanced pension under the Employees' (Pension) Scheme, 1995 in terms of observations of the Hon'ble

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Supreme Court particularly at paragraph-44 of the judgment dated 4th November, 2022.

The paragraph-44 of the judgment rendered in The Employees Provident Fund Organisation and another v. Sunil Kumar B. and others (supra) is quoted herein :

"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 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 22 nd 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

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stands crystalised 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 paragraph-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 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 preamendment 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.

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(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 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

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2019 in Civil Appeal Nos. 1001310014 of 2016 are disposed of in the above terms."

5. Accordingly, writ appeal is disposed of directing the Regional Provident Fund Commissioner to take a decision not later than 31st March, 2023, regarding claim of the retired employees of the Berhampur Cooperative Central Bank, for payment of enhanced pension to them, in accordance with the observations of the Hon'ble Supreme Court as quoted in paragraph-4 above, i.e. order dated 4th November, 2022 disposing of the SLP(Civil) Nos.8658-8659 of 2019 (Employees Provident Fund Organisation and another v. Sunil Kumar B. and others). The RPF Commissioner shall have the liberty to seek any further clarification from the employees/employees Union/ employer co-operative Bank as he shall deem fit in the interest of justice. In any event the endeavour shall be to take decision expeditiously.

It is also clarified that the RPF Commissioner shall proceed in the matter without being influenced by any observations of the learned Single Judge in earlier writ petitions, i.e., order dated 29.01.2021 disposing of W.P.(C) No.3049 of 2021 and order dated 05.08.2013 disposing of W.P.(C) No.17577 of 2013.

Ordered accordingly.

        (Jaswant Singh)                                  (M.S.Sahoo)
             Judge                                          Judge

        7th February, 2023
dutta        Cuttack