Kerala High Court
S.Surendran vs Union Of India
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY,THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936
WP(C).No. 18556 of 2014 (T)
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PETITIONER(S)/PETITIONERS:
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1. S.SURENDRAN, AGED 62 YEARS
S/O.LATE SANKARAN, ADDL.TRAFIC SUPERINTENDENT(RETD)
P.P.O NO.KR/KCH/00083527
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT KUTTANASSERIL HOUSE
SOUTH PARAVOOR.P.O, ERNAKULAM-682307.
2. E.N.VENU, AGED 62 YEARS
S/O.LATE.E.K.NARAYANAN, BOAT LASCAR(RETD)
P.P.O NO.KR/KCH/00079879
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM
RESIDING AT CHITHRALAYAM(IDIVETTIPARAMBIL)
PALLURUTHY, KOCHI-682006.
3. P.J.FRANCIS, AGED 59 YEARS
S/O.P.A.JOSEPH, BARGE DRIVER(RETD)
P.P.O NO.KR/KCH/00080198
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT HO NO.IX/445, NAZREATH
COCHIN-682001.
4. N.S.PRATHAPAN, AGED 61 YEARS
S/O.LATE.T.K.SUKUMARAN, BARGE DRIVER(RETD)
P.P.O NO.KR/KCH/00082190 KERALA SHIPPING AND INLAND NAVIGATION
CORPORATION LTD ERNAKULAM,
RESIDING AT THUNDIYIL HOUSE, THAREBHAGAM
PALLURUTHY, KOCHI-682006.
5. DARWIN.C.P, AGED 61 YEARS
S/O.LATE C.P.PARAMESWARAN, WORKSHOP HELPER(RETD)
P.P.O NO.KR/KCH/00080289 KERALA SHIPPING AND INLAND NAVIGATION
CORPORATION LTD
ERNAKULAM, RESIDING AT CHETTIPARAMBIL HOUSE
THOZHUTHUNKAL PARAMBU, AMBATTUKAVU, ALUVA-683106.
6. P.L.VIJAYAN, AGED 62 YEARS
S/O.LATE LAXMANAN, STATION MASTER(RETD)
P.F A/C.NO.KR/KCH/0005170/00X/0000015 KERALA SHIPPING AND INLAND
NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT PANAKKAPARAMBIL HOUSE
CHITTOOR.P.O, KOCHI-682027.
...2
WP(C).No. 18556 of 2014 (T)
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7. N.K.KRISHNAN, AGED 59 YEARS
S/O.KUNJAN, BARGE SYRANG(RETD)
P.P.O NO.KR/KCH/00080211
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT NIKATHUTHARA HOUSE, PUTHUVYPEE
ERNAKULAM-682508.
8. K.K.ABDUL GAFFOOR, AGED 60 YEARS
S/O.LATE KUNJU MUHAMMED, COMMERCIAL OFFICER(RETD)
P.P.O NO.KR/KCH/00075394
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT 44/743, KONJITHAICHAL HOUSE
NIVYA ROAD, KALOOR, KOCHI-682017.
9. N.K.SUGATHAN, AGED 60 YEARS
S/O.KUNJAN
BOAT LASCAR(RETD)P.P.O NO.KR/KCH/00080293K
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT NIKATHIL HOUSE, MALIANKARA.P.O
NORTH PARAVUR, ERNAKULAM-683516.
10. BALACHANDRAN.K.K,
S/O.LATE KOCHAN, JUNIOR ASSISTANT(RETD)
P.P.O NO.KR/KCH/00080291
KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD
ERNAKULAM, RESIDING AT KALATHIL HOUSE, PANAMBAKADU
VALLARPADAM.P.O, KOCHI.
BY ADVS.SRI.SHAJI P.CHALY
SMT.C.S.SINDHU KRISHNAH
RESPONDENT(S)/RESPONDENTS:
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY
MINISTRY OF LABOUR AND EMPLOYMENT DEPARTMENT OF EMPLOYMENT
NEW DELHI-110001.
2. THE EMPLOYEE PROVIDENT FUND ORGANISATION,
REPRESENTED BY THE CHIEF PROVIDENT COMMISSIONER
BHAVISHYA NIDHI BHAVAN, 14, BHIKAJI CAMA PALACE
NEW DELHI-110066.
3. REGIONAL PROVIDENT FUND COMMISSIONER,
THE EMPLOYEES PROVIDENT FUND ORGANISATION, KALOOR
ERNAKULAM-682017.
4. THE KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD,
"TAGORE ROAD, THOPPUMPADY, KOCHI
KERALA-682005.
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WP(C).No. 18556 of 2014 (T)
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R1 BY ADV. SHRI.GEORGE ZACHARIA, CGC
R2-R3 BY ADVS. SRI.N.N. SUGUNAPALAN, SC, P.F.
SMT.T.N.GIRIJA, SC,EPF ORGANISATION
R1 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R4 BY SRI.SANTHOSH MATHEW,SC,KINCO
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2014,
ALONG WITH WPC 19927/2014THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(C).No. 18556 of 2014 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 COPY OF THE COMMUNICATION DATED 31/10/13 ISSUED BY THE
ASSISTANT PROVIDENT FUND COMMISSIONER TO THE REGIONAL
PROVIDENT FUND COMMISSIONER,KOCHI
EXT.P2 COPY OF THE ABOVE PROCEEDINGS OF THE EMPLOYEES
PROVIDENT FUND ORGANIZATION
EXT.P3 COPY OF JUDGMENT OF THIS HONOURABLE COURT DATED 4/11/2011
IN WP(C) 6643 OF 2007
EXT.P4 COPY OF THE JUDGMENT DATED 05/03/2013 IN W.A.1137/12 OF THIS
HONOURABLE COURT.
EXT.P5 COPY OF THE JUDGMENT IN WP.C 19881/2013 DATED 25/11/2013
EXT.P6 COPY OF THE JUDGMENT IN W.P.C 7830/2014 DATED 27/03/2014
EXT.P7 COPY OF THE JUDGMENT IN W.P.C12855.2014 DATED 04/06/2014.
RESPONDENT(S)' EXHIBITS
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EXT.R2(A) COPY OF THE FORM 7(EPS) FURNISHED BY THE EMPLOYER UNDER
THE EMPLOYEES' PENSION SCHEME, 1995
//TRUE COPY//
P.A. TO JUDGE
JJJ
K. VINOD CHANDRAN, J.
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W.P.(C) Nos. 18556 & 19927 of 2014
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Dated this the 31st day of October, 2014
J U D G M E N T
I have heard the learned counsel appearing for the petitioners, the learned Standing Counsel appearing for respondents 2 and 3, the learned Assistant Solicitor General appearing for the 1st respondent and the learned Standing Counsel appearing for the 4th respondent.
2. The petitioners in these Writ Petitions are the retired employees of the 4th respondent. Admittedly, the petitioners were covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees Pension Scheme, 1995. The petitioners had salary above Rs.6500/-, and are stated to have exercised an option under Section 26(6) of the Act. However, the Provident Fund Organization disputes the exercise of joint option by the employer and the employee; and asserts that it has not been done.
W.P.(C) No. 18556 & 19927/2014 -2-
3. Be that as it may, it is admitted that the contribution to the Provident Fund being 12% of the total salary deducted as employees contribution and the 12% paid by the employer, were remitted to the Organization. As per the provisions of the Pension Scheme 8.33% of the contribution from the employer, is to be deducted and credited to the Pension Fund. However, in making such deduction, the Provident Fund Organization limited it to 8.33% of the maximum salary provided, ie., Rs.6500/-. The balance contribution made by the employer for the salary in excess of Rs.6,500/-, was fully retained in the Provident Fund Account itself.
4. The petitioners contend that such a retention was made by the Organization without reference to the statute. The cut-off date prescribed being 01.12.2004 is also against the statutory provisions and does not have any nexus with the object sought to be achieved, is the argument. This W.P.(C) No. 18556 & 19927/2014 -3- Court has by judgment in W.P.(C) Nos. 6643 & 9929 of 2007, dated 04.11.2011, held that the cut-off date prescribed is without jurisdiction and that the Organization could not have retained the 8.33% of the employer's contribution, proportionate to the salary in excess of Rs.6,500/- in the Provident Fund Account and that it ought to have been credited to the Pension Scheme. The aforesaid judgment, of a learned Single Judge was also confirmed in appeal. The amounts, being 8.33% contribution in excess of the earlier prescribed limit of Rs. 6,500/- in any event, have been retained with the Provident Fund Organization and what would be required to comply, with the judgments of this Court, is only book adjustments.
5. Following the binding precedents, this writ petition is also disposed of directing that the 8.33% of the employer's contribution, proportionate to the salary of the employee, in excess of Rs.6,500/-, shall now be credited to W.P.(C) No. 18556 & 19927/2014 -4- the Pension Scheme and orders passed in accordance with law. Needless to say the interest accrued in the Provident Fund Account to that extent also will stand transferred to the Pension Account.
6. The extant employees shall also submit joint applications, along with their employer wherever the same has not been done. The directions above noted shall be complied within three months from the date of receipt of a certified copy of this judgment.
The writ petition is allowed. No costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj