Ajay Batra S/O Shri Madan Lal Batra vs State Of Rajasthan ...
2023 Latest Caselaw 1018 Raj/2

[2023/RJJP/001074]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Review Petition (Writ) No. 206/2018

Ajay Batra S/o Shri Madan Lal Batra, aged about 54 years, R/o
3-Dha-2, Jawahar Nagar, Jaipur
                                                                     ----Petitioner
                                       Versus
1.       State Of Rajasthan, Through Its Secretary, Finance
         Department, Government Secretariat, Jaipur
2.       Regional Commissioner, Employees Pension Fund, Nidhi
         Bhawan, Jyoti Nagar, Jaipur
3.       Manager (Admn.), Rajasthan State Ganganagar Sugar
         Mills Ltd., 4th Floor, Nehru Sahakar Marg, Bhawani Singh
         Road, Jaipur
                                                                  ----Respondents

For Petitioner(s) : Mr. Tej Prakash Sharma Mr. Vinod Singhal For Respondent(s) : Mr. Rohit Choudhary

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

31/01/2023

(1) A bunch of writ petitions involving similar issue was

decided by this court vide order dated 19.5.2017 in view of the

judgment passed by Hon'ble Supreme Court in the case of R.C.

Gupta & Ors v. Regional Provident Fund Commissioner Employees

Provident Fund Organization & Ors [Civil Appeal No. 10013-

10014/2016, decided on 4.10.2016].

(2) Subsequently the writ petition filed by the petitioner

was also decided by this court vide order dated 5.1.2018 with the

counsel of both parties in the light of judgment of Hon'ble Apex

Court in the case of R.C. Gupta (supra). Now the

[2023/RJJP/001074] (2 of 7) [WRW-206/2018]

respondents/applicants have submitted this review petition for

recalling of the order dated 5.1.2018.

(3) At the outset it has been brought into notice of this

court that several review petitions were submitted for recalling the

order dated 19.5.2017. It is worthy to note here that some more

petitions were also submitted with the similar prayer, and all the

matters were clubbed and decided together by a common

judgment dated 11.12.2018 in the lead case S.B. Civil Writ

Petition No. 17616/2017, Sh Vinod Kumar Sharma And Ors v.

Chairman Central Board of Trust And Ors, with the following

observations in paras 20 to 26 as under :-

"20. In the other writ petitions, which have been heard alongwith these review petitions, this Court finds that the only difference of facts is in relation to the respondents therein namely; RIICO and RSRTC which are also exempted organizations in terms of Section 17 of the Act of 1952. Further, once a judgment has been passed by the Supreme Court, it would have its applicability to all the organizations uniformly. Thus, it would be useful to quote the relevant paras of the judgment of the Supreme Court in the case of R.C.Gupta & ors (supra) which are reproduced as under:-

"8. Reading the proviso, we find that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the provisoto Clause 11(3) of the Pension Scheme. A somewhat similar view that has been taken by this Court in a matter coming from the Kerala High Court, wherein the Special Leave Petition (C) No.7074 of 2014 filed by the Regional Provident Fund Commissioner was rejected by this Court by order dated 31.3.2016. A beneficial Scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of 5,000/- or 6,500/- per month, as the case may be.

9. A further argument has been made on behalf of the Provident Fund Commissioner that the Appellant-employees had already exercised their option under paragraph 26(6) of the Employees'

[2023/RJJP/001074] (3 of 7) [WRW-206/2018]

Provident Funds Scheme. Paragraph 26(6) is in the following terms:

26.Classes of employees entitled and required to join the fund xxx xxx xxx (6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than Subs. By Notification No.S350/2/2/96-SS II (sic S-35012/2/96-SS II), dated 4th May, 2001, for "rupees five thousand". Earlier the words "rupees five thousand" were substituted by G.S.R. 718(E) dated 23rd September, 1994, for the words "rupees three thousand and five hundred" (w.e.f. 1.10.1994) [six thousand five hundred rupees] of his pay per month if he is already a member of the fund and there upon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee].

10. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph26 of the Provident Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.

11. The above apart in a situation where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, we do not see how the Provident Fund Commissioner could have been aggrieved to file the L.P.A. before the Division Bench of the High Court. All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefited some of the employees.

At best what the Provident Commissioner could do and which we permit him to do under the present order is to seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is

[2023/RJJP/001074] (4 of 7) [WRW-206/2018]

due, consequential benefits in terms of this order will be granted to the said employees."

21. The said judgment is binding on all the parties.

22. It is also noticed that the Provident Fund Department, in these review petitions, itself has admitted of having released the amount in favour of 1175 pensioners upto 30/06/2017, hence no distinction can be drawn between the contributors to the Pension Scheme.

23. Thus viewed, the action of the respondents in denying the benefit to the pensioners who are members of the Pension Scheme, is held to be unjustified. While reiterating the order passed by this Court earlier, the petitioners are granted liberty to submit option before the Provident Fund Commissioner under Clause 11(3) of the Pension Scheme and the Provident Fund Commissioner shall thereafter obtain the amount from the respective PF Trust as per the said ratio of 8.55% and thereafter release all consequential benefits accordingly in terms of and as directed by the Apex Court hereinabove.

24. All the petitioners would have to submit an application for seeking of an option for receiving pension on the full salary and only after their depositing the PF amount which they have received from their concerned trust to the extent of 8.33% and the benefit of this judgment would be subject to their depositing the amount already received by them from PF Account of the PF Trust. Upon their depositing the said amount of 8.33% as calculated by the PF Trust, the PF Trust shall accordingly transfer the same to the EPFO Pension Fund and the pension shall accordingly be calculated and released. The exercise in this regard shall be completed by the respondents within a period of four months.

25. One other argument has been raised by learned counsel in relation to the existing employees i.e. those who are still in service and have not retired. It is submitted that proviso to Clause 11(3) of the Pension Scheme was deleted vide notification dated 22/08/2014 w.e.f. 01/09/2014 and therefore, the benefit of proviso cannot be extended to any employee after 01/09/2014 if he had not exercised the option earlier. In the opinion of this Court, such a notification will not apply in view of the judgment passed by the Supreme Court in the case of R.C. Gupta & ors (supra). It is also noted that the Division Bench of High Court of Kerala vide its judgment dated 12/10/2018 has also set aside the Employees Pension Amendment Scheme, 2014 issued vide notification dated 22/08/2014 whereby the aforesaid proviso was deleted. Even otherwise, the same could not have been applied to the existing employees who are already members of the Scheme and could only apply if at all to employees who become members of the Scheme after 2014 notification. In view thereof, the benefit of this judgment would also be applicable to the existing employees who are yet to retire.

26. With the aforesaid observations/directions, all these writ petitions stands allowed and the review petitions are dismissed. No order as to costs."

[2023/RJJP/001074] (5 of 7) [WRW-206/2018]

(4) The similar matter again came up before Hon'ble apex

Court in Special Leave Petition (C) Nos. 8658-8659 titled as The

Employees Provident Fund Organisation & Anr v. Sunil Kumar B. &

Ors , and the same was decided on 4.11.2022 with the following

directions in paras 44 and 45, which reads as under :-

"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 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 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 stands crystallized 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.

[2023/RJJP/001074] (6 of 7) [WRW-206/2018]

Rest of the requirements as per the amended provision shall be complied with.

(v) The employees who had retired prior to 1st 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 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.

(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. 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.

45. 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) Counsel for both parties accept the above factual

situation. Hence in view of the judgment of Hon'ble Apex Court in

the case of The Employees Provident Fund Organisation (supra),

[2023/RJJP/001074] (7 of 7) [WRW-206/2018]

and the judgment of this court in the case of Sh Vinod Kumar

Sharma (supra), nothing survives now to be decided in this review

petition.

Hence, this review petition stands dismissed.

(ANOOP KUMAR DHAND), J.

.db/17

Powered by TCPDF (www.tcpdf.org)