Ramchandran Pillai vs Union Of India ...
2023 Latest Caselaw 3565 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17855/2018

1. Ramchandran Pillai S/o Shri Vasudev, Aged About 66 Years, Jayshree Bhawan C.f.4 Mahaveer Nagar, Barmer

2. Bhajan Singh Choudhary S/o Shri Hukma Ram,, Aged About 68 Years, Gandhinagar, Barmer

3. Bagtaram Purohit S/o Shri Uttam Singh,, Aged About 73 Years, Village And Post Ramsar, District Barmer

4. Jhaman Das Soni S/o Shri Punamchand Soni,, Aged About 70 Years, Rai Colony Barmer

5. Bhagwan Singh Choudhary S/o Shri Khemaram Choudhary,, Aged About 69 Years, 302 Maansarovar Pal, Jodhpur 342001

6. Abdul Rehman Sama S/o Shri Yaar Mohd. Sama,, Aged About 72 Years, Madhuban Colony, Behind Panchayat Samiti, Barmer

7. Karnaram Choudhary S/o Shri Dama Ram Choudhary,, Aged About 64 Years, Village And Post Hathitala, District Barmer

8. Ramchandra Khatri S/o Shri Nakatmal Khatri,, Aged About 70 Years, Dr. Mahananad Sharma Marg 203 Barmer

9. Raj Singh Rao S/o Shri Mangal Singh Rao,, Aged About 68 Years, Village Hatma, Tehsil Ramsar, District Barmer

10. Lachha Ram Choudhary S/o Shri Budhra Ram Choudhary,, Aged About 65 Years, Shashtri Nagar, Barmer

11. Jetha Ram Choudhary S/o Shri Budhra Ram Choudhary,, Aged About 63 Years, Village And Post Hathitala, District Barmer

12. Ruga Ram Choudhary S/o Shri Kesararam Choudhary,, Aged About 67 Years, M.i. Factory Samdari Road, Ward No. 30 Balotra, Barmer

13. Leelaram Mali S/o Shri Deeparam Mali,, Aged About 64 Years, Village And Post Kavas, District Barmer

14. Punmaram Choudhary S/o Shri Labhu Ram Choudhary,, Aged About 66 Years, Village And Post Batadu Singodiya, Tehsil Bayatu, Barmer

15. Devilal Soni S/o Shri Ladhuram Soni,, Aged About 62

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Years, Boriyo Ka Vaas, Barmer

16. Kanaram S/o Shri Dauram,, Aged About 68 Years, Ambedkar Colony, Barmer

17. Kanaram Nirmal S/o Shri Harlal,, Aged About 66 Years, 114-C Kirti Nagar Magra Punla Road, Jodhpur

18. Mularam Jangid S/o Shri Damaram Jangid,, Aged About 60 Years, C G-7 Mahaveer Nagar, Near City Center, Barmer

19. Harish Kumar Gehlot S/o Shri Motilal Gehlot,, Aged About 61 Years, Bhati Kan Singh Colony, Naya Pura Satellite Hospital, Jodhpur

20. Jadam Khan S/o Shri Kareeem Khan,, Aged About 65 Years, Behind P.w.d. Laxmi Nagar, Barmer

21. Ranamal Chopra S/o Shri Veerchand Chopra,, Aged About 62 Years, 131 Fakeero Ka Kuwa, Sardar Pura Barmer

22. Phoolraj Mahwar S/o Shri Ranchhod Lal,, Aged About 64 Years, 6, Golf Course Air Force Area, Jodhpur

23. Shri Jagdish Kumar Jeengar S/o Shri Jetaram Jeengar,, Aged About 61 Years, Tansingh Circle, Barmer, 344001

24. Nathudan Charan S/o Shri Akhedan Charan,, Aged About 62 Years, Village And Post Bhadresh, District Barmer

25. Jagdish Prasad Meena S/o Shri Hanjarilal Meena,, Aged About 62 Years, Village And Post Jhopda, Sawai Madhopur 322701

26. Parasmal Soni S/o Shri Girdharilal,, Aged About 61 Years, Sardarpura Marg No. 1, Bishala Marg, Barmer

27. Narayan Das Rathi S/o Shri Chunilal Rathi,, Aged About 61 Years, Near T.t. School, Laxmi Nagar, Barmer

28. Leelkaran Charan S/o Shri Shaktidan Charan,, Aged About 63 Years, Rai Colony, Near Vishvakarma Circle, Barmer

29. Nenaram Patel S/o Shri Dhudaram Patel,, Aged About 62 Years, Village Mool Ki Dhani, Post Korna Via Kalyanpur, Barmer

30. Dhudaram Choudhary S/o Shri Laxmanram Choudhary,, Aged About 64 Years, New Bus Stand Road, Muni Aashram Sanchore, District Jalore

31. Jagdish Kumar Goyal S/o Shri Kunnji Goyal,, Aged About

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61 Years, Jeengaro Ka Vaas Samdari, District Barmer 344201

32. Chiranji Lal Dave S/o Shri Jagannath Dave,, Aged About 61 Years, Krishna Nagar, Barmer

33. Mohanlal Swami S/o Shri Narayan Lal Swami,, Aged About 61 Years, B.g. 4 Mahaveer Nagar, Barmer

34. Jagdish Chandra Soni S/o Mahasingh Ram Soni,, Aged About 61 Years, Rai Colony, Opposite School, Barmer

35. Smt. Bhuri Devi W/o Shri Motaram, Aged About 61 Years, Laxmi Nagar, Barmer

36. Mangilal Purohit S/o Shri Modaram Purohit,, Aged About 61 Years, Rai Colony Krishna Nagar, Near Gaur Brahmin Chhatravas Barmer

37. Neemb Singh S/o Shri Shivdan Singh,, Aged About 69 Years, Ramdevariya Tala Akoda Tehsil Chohtan, District Barmer

38. Isha Khan S/o Shri Salu Khan,, Aged About 69 Years, Village And Post Junejo Ki Basti, Tehsil Shiv, District Barmer

39. Bhakhara Ram Vishnoi S/o Shri Bhartha Ram Vishnoi,, Aged About 68 Years, Village And Post Bherudi Tehsil Dhorimanna, District Barmer

40. Daularam Choudhary S/o Shri Ghamandaram,, Aged About 61 Years, Baldev Nagar, Barmer

41. Navalram Choudhary S/o Shri Simartharam Choudhary,, Aged About 64 Years, Village And Post Bhimarlai Station Via Bayatu, District Barmer

42. Gopal Singh Rajpurohit S/o Shri Jawahar Singh,, Aged About 63 Years, B-50, Pratap Nagar, Uit Colony, Jodhpur

43. Dhan Singh Rathore S/o Shri Bhagwan Singh,, Aged About 73 Years, Village And Post Gudamalani, Tehsil Gudamalani Barmer

44. Bhanwar Lal Garg S/o Shri Malaram Garg,, Aged About 64 Years, Padru Ka Vaas Sivana, Barmer

45. Hardev Ram Vishnoi S/o Shri Ramchandra Vishnoi,, Aged About 68 Years, Village And Post Shobhaladarshan Sedva, District Barmer

46. Chetan Kumar Choudhary S/o Shri Narsingaram,, Aged

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About 68 Years, Village And Post Beri Vala Via Rawatsar, District Barmer

47. Pathan Khan S/o Shri Subhan Khan,, Aged About 68 Years, Jatiyo Ka Naya Vaas Ward No. 13, Behind Ren Basera, Barmer

48. Jagdish Chandra Malu S/o Shri Rikhabdas Malu, Aged About 61 Years, Juna Keradu Marg Mahaveer Circle, Opposite Vankal Veeratara Mandir, Barmer

49. Narsingh Dan Charan S/o Shri Shaktidan Charan,, Aged About 64 Years, 594 Hanumat A Marg No. 7, Bjs Colony, Paota C-Road, Jodhpur

----Petitioners Versus

1. Union Of India, Through The Commissioner, Employees Provident Fund Organization (Ministry Of Labour And Employment, Government Of India) Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place, New Delhi, India.

2. The Regional Provident Fund Commissiooner, Regional Office 130, Paschim Pal Vistar Yojna, Shankar Nagar, Jodhpur

3. The Managing Director, Barmer Central Co-Operative Bank, Head Office Mahaveer Nagar, Barmer

----Respondents

For Petitioner(s) : Mr. Naresh Singh for Mr. Rakesh Arora For Respondent(s) : Mr. M.R. Pareek

JUSTICE DINESH MEHTA

Order

25/04/2023

1. This writ petition has been filed by the petitioners seeking

direction to the respondents to accord them benefits of

pension/family pension, pursuant to the Employee's Pension

Scheme, 1995.

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2. Learned counsel for the petitioners submitted that the

respondents be directed to accord benefits to the petitioners in

light of order in R.C. Gupta & Ors. Vs. Regional Provident

Fund Commissioner, Employees Provident Fund

Organisation & Ors.:2018 (4) SCC 809 and other judgments,

which have followed the said judgment including a judgment of

this Court.

3. The issues, which have been raised by the petitioners all

stand concluded by Larger Bench Judgment of Hon'ble Supreme

Court in Employee Provident Fund Organization & Ors. Vs.

Sunil Kumar B. & Ors.: 2022 SCC Online SC 1521.

4. In the said judgment, the Hon'ble Supreme Court has

directed as under:-

"46. 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 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 2014Amendment) 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 crystalised in the judgment of this Court in the case of R.C.Gupta

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(supra). The scheme as it stood before 1 st September 2014 did not provide for any cutoff 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 142of 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 1st September2014 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 September2014 upon exercising option under paragraph 11(3) of the1995 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 ultravires 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.

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(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.1917-1918 of 2018 and Contempt Petition (C) Nos. 619-620 of 2019 in Civil Appeal Nos. 10013-0014 of 2016 are disposed of in the above terms.

47. All the appeals which we have heard simultaneously are allowed in the above terms and the judgments impugned are modified accordingly. The writ petitions brought by employees or their representatives shall also stand disposed of in the same terms."

5. The present writ petition filed by the petitioners is disposed

of in light of the directions given by Hon'ble Supreme Court. Both

the parties shall abide by the directions of Hon'ble Supreme Court,

as noticed hereinabove.

(DINESH MEHTA),J 55-Arvind/-

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