Kerala High Court
The Union Of India vs A.K.Jayappan on 5 March, 2013
Author: Babu Mathew P.Joseph
Bench: Pius C.Kuriakose, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934
WA.No. 569 of 2012
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[AGAINST THE JUDGMENT IN W.P.(C).NO.9929/2007 OF THIS HON'BLE COURT]
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APPELLANTS/RESPONDENTS 1 AND 2 IN W.P.(C):
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1. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF LABOUR, NEW DELHI.
2. THE REGIONAL PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANISATION,
SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR,
KOCHI-17.
BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE,
ADV. SMT.T.N.GIRIJA, S.C.
RESPONDENTS/PETITIONER AND RESPONDENS 3 AND 4:
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1. A.K.JAYAPPAN, BADGE NO.43-9687,
SENIOR HEAVY EQUIPMENT OPERATOR,
HEAVY EQUIPMENT DEPARTMENT, FACT LIMITED, UDYOGAMANDAL,
COCHIN-683 501.
2. THE FERTILIZER'S AND CHEMICALS LIMITED,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
UDYOGAMANDAL, COCHIN-683 501.
3. THE SECRETARY, EMPLOYEES PROVIDENT FUND TRUST,
FACT, UDYOGAMANDAL, COHCIN-683 501.
R1 BY ADV. SRI.M.P.PRAKASH,
R2 & R3 BY SRI.E.K.NANDAKUMAR, SENIOR ADVOCATE,
ADV. SRI.T.D.SALIM.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD
ON 10/12/2012, ALONG WITH W.A. NO.568/2012 AND
CONNECTED CASES, THE COURT ON 05/03/2013
DELIVERED THE FOLLOWING:
Prv.
PIUS C.KURIAKOSE &
BABU MATHEW P.JOSEPH JJ.
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W.A Nos.568,569,1137,1138
1135 1174 OF 2012
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Dated this the 5th day of March, 2013
JUDGMENT
Pius C.Kuriakose,J The Union of India and the Regional Provident Fund Commissioner respondents 1 and 2 in the writ petition, filed by the private party respondents in these appeals, are the appellants except W.A. No.1174/2012 which is filed by the Central Provident Fund Commissioner and the Assistant Provident Fund Commissioner (Pension). The writ petitioners, in W.P.(C) Nos. 6643/2007 pertaining to W.A. No. 568/2012 and on W.P. (C) No. 9929/2007 pertaining to W.A. No. 569/2012 were employees of FACT Limited 3rd respondent in those writ petitions. The writ petitioners in W.P.(C) No. 13220/2007 pertaining to W.A. No.1174/2012 were employees of Hindustan W.A.No.568/2012 & others 2 News print Ltd., the 2nd respondent in the writ appeal. Writ Petitioners in W.P.(C) No. 15313/2011 corresponding to W.A. No.1138/2012, Writ Petitioners No. 7878/2011 corresponding to W.A. No.1135/2012 were employees of the Kerala State Handloom Development Corporation Ltd., the 4th respondent in those writ petitions. The learned Single Judge allowed W.P.(C) Nos.6643 & 9929/2007 by a common judgment and in terms of that common judgment allowed the other writ petitions also.
2. The issue raised in all the writ petitions were similar though the facts varied slightly. Subject to such variations, the facts are as given below. The writ petitioners came under the Employees Provident Fund and Miscellaneous Act, 1952. At the time of promulgation of the Scheme, for the purpose of payment of pension, the maximum pensionable salary was limited to Rs.6,500/- per month and contributions in respect of the Pension Scheme was payable only on that amount. The petitioners were also enrolled as members of the Employees' Pension Scheme. Contributions in respect of the petitioners were paid on Rs.6,500/- which was the maximum pensionable salary per the Scheme. While so, the Employees Pension Scheme was W.A.No.568/2012 & others 3 amended to permit employees, who had paid contributions only on Rs.6500/- to pay contributions on the actual salary received by them without limitation, by adding a proviso to clause 11 (3) of the Employees' Pension Scheme 1995 with effect from 16/3/1996. The petitioners sought for permission to pay contributions based on the actual salary and requested that the arrears of contributions be transferred to the Pension Fund From their Provident Fund accounts. This was accepted by the Provident Fund Organisation by Ext.P2 in both writ petitions. Consequently, the arrears of contributions based on the actual salary was transferred from their Provident Fund account to the Pension Fund account in December 2004. But, subsequently, they were informed that this cannot be permitted because for availing of the benefit an employee has to apply on or before 1/12/2004 and the petitioners had applied subsequent to the cut off date so fixed. The arrears transferred from the petitioners' Provident Fund Account to the Pension Account was directed to be re-credited to the Provident Fund Account. It is under the above circumstances, the petitioners filed these writ petitions seeking reliefs homologous to the reliefs sought for in the writ W.A.No.568/2012 & others 4 petition No.6643/2007 which were the following :
i. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P4, P6 and P8 and quash the same as far as petitioner is concerned declaring it as arbitrary and against the norms and provisions of the employees pension scheme envisaged under the Employees Provident Act.
ii). Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to retain the petitioner's contribution so far made on actual salary basis and permit the petitioner to continue to contribute on actual salary basis so as to entitle him to draw monthly pension based on actual salary.
iii. issue a writ of mandamus or any other appropriate writ, order or direction restraining the 3rd and 4th respondents from remitting back the contribution made on actual salary basis to the petitioner's PF account.
The contention of the petitioners was that there is no provision anywhere in the Act or the Employees' Pension Scheme fixing a cut off date for availing of the benefit under the proviso to clause 11(3) of the Employees' Pension Scheme. The Act and the Scheme do not authorise anybody to fix such a cut off date also. In any event the 2nd respondent in W.P.(C) No.9929/2007 has no W.A.No.568/2012 & others 5 power to fix such a cut off date, is the contention raised. Before the learned Single Judge in support of their contentions, the petitioners relied on the judgment of the Supreme Court in D.S.Nakara v. Union of India (1983 (1) SCC 305), where the Supreme Court declined that no cut off can be fixed for implementing revision of pension.
3. The Provident Fund Organisation filed a counter affidavit taking the stand that the cut off date is applicable to the petitioners. They would also contend that the proviso to clause 11(3) is not retrospective in nature and therefore, after having opted for paying contributions on the maximum pensionable salary, the petitioners cannot re-opt to pay contributions on the actual salary retrospectively. It was further submitted that under clause 26(6) of the Employees' Provident Funds Scheme, which is applicable to the Employees' Pension Scheme as well by virtue of clause 38 of the Employees' Pension Scheme, both the employer and the employee should together file a joint application in respect of availing of proviso to clause 11(3). The prayers in the writ petitions were strongly opposed by the Provident Fund Organisation. The learned Single Judge would W.A.No.568/2012 & others 6 appreciate the contentions and conclude that the fixation of cut off date of 1/12/2004 is without jurisdiction and despite the fact that the petitioners have filed the applications for benefit under the proviso to clause 11 (3), after the cut off date so fixed, the petitioners are entitled to avail of the benefit under the proviso to clause 11 (3) of the employees' Pension Scheme. Thus, the writ petition were allowed.
4. In these appeals, wherein similar or identical grounds have been urged, the request is that the judgment of the learned Single Judge is set aside and the writ petitions be dismissed.
5. We have heard the submissions of Sri.S.Sujin the learned counsel, who represented Sri. N.N. Sugunapalan learned senior counsel, for the appellants, Sri. Alexander Thomas Sri.Pauly Mathew Muricken and Sri.D. Anil Kumar learned counsel appearing for the writ petitioners and Sri.Benny P.Thomas. for employer companies except Hindustan Newsprint Ltd the 4th respondent in W.P.(C) No.13220/2007 corresponding to W.A. No.1174/2012 and Sri.V.Krishna Menon appearing for Hindustan Newsprint Ltd.
6. The submissions of Sri.Sujin on behalf of the appellants W.A.No.568/2012 & others 7 were founded on the grounds raised in the appeal memoranda. Mr.Sujin would submit that para 11 of the Employees Pension Scheme deals with determination of pensionable salary. Under Sub Clause (iii) of para 11 maximum pensionable salary is limited to Rs.6500/- per month. The proviso has been added to clause 11(3) and it is evident from the proviso that the contributions on the actual salary, which exceeds statutory ceiling limit, has to be remitted either from the date of commencement of the scheme or the date on which the salary exceeds Rs. 6500/- per month whichever is later. According to the learned counsel, a member is not entitled to choose a date convenient to him much after the dates proposed in the above statutory provisions to make the contributions to the pension fund. According to him, contributions cannot be permitted retrospectively. Mr.Sujin argued that there is no provision under para 11 (3) of 1995 Scheme for exercising option to contribute on salary exceeding statutory limit either prospectively or retrospectively. The proviso under sub para 11(3) of 1995 deals with determination of pensionable salary of those who had contributed over and above statutory limit for W.A.No.568/2012 & others 8 calculation of pensionery benefits. The provision for contribution on salary exceeding Rs.6500/- is given in para 26 (6) of the Employees Provident Fund Scheme 1952, according to which there has to be a joint request in writing of the employee and the employer before an officer not below the rank of an Asst. Provident Commissioner. According to the learned counsel, this paragraph has to be considered for accepting voluntary contribution on optional basis in accordance with para 38 of the 1995 Scheme providing for application of the corresponding provisions of the 1952 scheme in regard to matters to which either there is no provision or there is inadequate provision in the 1995 scheme. According to counsel, in these cases there was no joint application by the employer and the employee in terms of clause 11(3). This being a statutory mandate, the member as well as the employer is bound to comply with the same. The learned Single Jude has failed to consider the rigour of the provision which do not permit benefit to be granted just because the employer has no objection, so submitted the learned counsel. According to the learned counsel , the Act and the Schemes framed there under are in the nature of a social security W.A.No.568/2012 & others 9 Legislation. The contributions under the various schemes are to be remitted strictly in accordance with the provisions therein. Any delay or enlargement of time for remitting the contributions or remittance of contributions retrospectively i.e. from an anterior date will seriously affect the working of the fund. It would give rise to an inequitable situation wherein members who were prompt in remittance would stand to suffer on account of the delay in remittances made by members like the petitioners as the benefit available to the beneficiaries depends on the working of the corpus which is determined by an actuarial valuation. Mr.Sujin would refer to Section 6 A of the EPF Act and para 11 of the scheme. He would place reliance on the Judgment of the Supreme Court in Union of India v. Surendran Nair (2001 KLH
370) and submit that though the Government cannot create or constitute statutory Rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the Rules by issuing instructions not inconsistent with the Rules. According to the learned counsel, the Government can also confer certain benefits on its employees by administration.
W.A.No.568/2012 & others 10
7. We must note that the learned counsel appearing for the employer companies did not venture to assail the impugned judgments of the learned Single Judge.
8. It was Sri.Alexander Thomas who advanced arguments on behalf of the party respondents. According to him and Sri. Pauly Mathew Muricken there is no infirmity whatsoever with the leading common judgment W.P.(C) No.6643 & 9927/2007. They argued that the appellants cannot have any legitimate grievance also regarding the impugned judgment.
9. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully read through the common judgment in W.P.(C) Nos. 6643 & 9929/2007. We have also gone through the rival pleadings in the writ petitions. Sub clause (3) of Clause 11 of the Employees' Pension Scheme, which has been underlined by the learned Single Judge in the above common judgment is as follows:
"(3). The maximum pensionable salary shall be limited to rupees six thousand and five hundred /Rs.6,500/- per month.
Provided that if at the option of the employer and employee, contribution paid on salary W.A.No.568/2012 & others 11 exceeding rupees six thousand and five hundred /Rs.6,500/- per month from the date of commencement of this Scheme or from the date salary exceeds rupees six thousand and five hundred/Rs.6,500/- whichever is later, and 8.33 per cent share of the employers thereof is remitted into the Pension Fund, pensionable salary shall be based on such higher salary'.
The learned Singe judge noticed that Proviso to clause 11 (3) was added by G.S.R. No.134, dated 28/2/1006 with effect from 16/3/1996. The learned Single Judge has given good reasons to turn down the contention that the proviso is only prospective in nature . As noticed by the learned Single Judge the proviso which was added with effect from 16/3/1996 by G.S.R. dated 28/2/1996, speaks of contributions on salary from the date of commencement of the Scheme, which is prior to 28/2/1996. We also feel that the very language of the proviso makes it explicitly clear that the proviso is intended to be operative retrospectively from the date of the commencement of the Scheme, in so far as the scheme came into force with effect from 16/11/1995. When it is seen that the proviso is retrospective, consequently the writ petitioners will be entitled to avail of the W.A.No.568/2012 & others 12 benefit of the proviso retrospectively provided they are able to make good the arrears of contributions in respect thereof which they have agreed to be transferred from their Provident Fund Account which the Provident Fund Organisation actually did. Originally the Provident Fund Organisation was also of the opinion that the proviso is retrospective in nature and that is why they permitted the petitioners to avail of the benefit of that proviso by paying off the arrears of contributions payable by transfer from their Provident Fund Account. The contention of the Provident Fund Organistion is that for availing of the benefit retrospectively the cut off date has been fixed.
10. According to us, the learned Single Judge has correctly understood and decided the issue regarding the cut off date fixed. According to the Provident Fund Organisation, cut off date of 1/12/2004 has been fixed for applying for benefit of the proviso by changing over to payment of contributions on actual salary basis. It was noticed by the learned Single Judge that no document by which such a cut off date has been fixed by anybody is produced by the Provident Fund Organisation. The Employees' Provident Fund Scheme and the Employees' Pension W.A.No.568/2012 & others 13 Scheme also do not contain any provision enabling the Regional Provident Fund Commissioner or anybody else to fix a cut off date for the purpose of availing of the benefit of proviso to clause 11(3). According to us, the decision of the learned Single Judge that - even assuming that anybody has power to fix that cut off date, certainly such power is not with the 2nd respondent-Regional Provident Fund Commissioner, is quite correct.
11. We find that the learned Single Judge has considered the contention of the Provident Fund Organisation that the employers and the employee require to file a joint application which has not been done in this case. But as noticed by the learned Single Judge, the regional Provident Fund Commissioner did not insist on the same, while permitting the petitioners to avail of the benefit of the proviso to clause 11 (3). Hence, the non-filing of the joint application was rightly held to be not a ground for denying the benefit to the writ petitioners.
12. In short, in our opinion there is no infirmity in the leading common judgment and also in the separate judgments which are passed in terms of the leading common judgment. W.A.No.568/2012 & others 14 These appeals fail and will stand dismissed. The parties will suffer their respective costs.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
BABU MATHEW P.JOSEPH JUDGE.
dpk /True copy/ P.A to Judge.
W.A.No.568/2012 & others 15 W.A Nos.568,569,1137,11381135 1174 OF 2012