Kerala High Court
1. Lakshmanan K vs 1. Union Of India Represented By It’S ... on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
WP(C) NO. 7990 OF 2023
PETITIONERS:
1. 1. LAKSHMANAN K., AGED 68 YEARS, NARAYANA, CHANDROTH, CHIRAKKAL,
KANNUR (PPO NO. KR/KNR/45375/2016), PIN - 670011
2. 2. SANKARAN P.K., AGED 67 YEARS, ANASWARA, NEAR KAMANA,
PANTHALAYANI, KOYILANDI, KOZHIKODE, (PPO NO. KR/KKD/60618), PIN -
673305
3. 3. P. KRISHNAN, AGED 69 YEARS SREELAKSHMI, KOTTATHUMCHAL, PARIYARAM
MEDICAL COLLEGE P.O., KANNUR (PPO NO. KR/KNR/43301), PIN - 670503
4. 4. GEORGE P.A AGED 67 YEARS PALLITHAZHATH HOUSE, MANATHANA P.O.,
KELAKAM, KANNUR (PPO NO. KR/KNR/45482), PIN - 670674
5. 5. V.BALAKRISHNAN AGED 73 YEARS THAZHEKANDI HOUSE, CHITTARIPARAMBA
P.O., KANNUR (PPO NO. KR/KNR/28236), PIN - 670650
6. 6. NARAYANAN M AGED 73 YEARS MANGALASSERI ILLAM, PATHIRIYADUKKAM P.O
NILESWWARAM, KASARGODE (PPO NO. KR/KNR/24567), PIN - 671314
7. 7. ASHOKAN K AGED 75 YEARS SHEENI NIVAS, CHIRAKKAL, KANNUR (PPO NO.
KR/KNR/24569), PIN - 670021
8. 8. KRISHNAN P AGED 71 YEARS KRISHNA, KADACHIRA, KANNUR (PPO NO.
KR/KNR/33448), PIN - 670621
9. 9. PRABHAKARAN P AGED 69 YEARS POYIL HOUSE, KOYYODE P.O., KADACHIRA,
KANNUR (PPO NO. KR/KNR/41338), PIN - 670621
10. 10. VALSALAN P.K AGED 68 YEARS KINARA HOUSE, EDAT P.O, PAYYANNUR,
KANNUR (PPO NO. KR/KNR/45628), PIN - 670327
11. 11. SAHADEVAN C.K AGED 71 YEARS USHASS, NEAR CCSM LTD., CHOVVA,
KANNUR (PPO NO. KR/KNR/38267), PIN - 670006
12. 12. AMBUKUNHI AGED 69 YEARS MADAKKAL HOUSE, THADIYANKOVVAL, UDINOOR,
KASARGODE (PPO NO. KR/KNR/37981), PIN - 671310
13. 13. BALAKRISHNAN AGED 67 YEARS KAKKOD HOUSE, PERUMBATTA P.O.,
CHERUVATHUR, KASARGODE (PPO NO. KR/KNR/ 41301), PIN - 671313
14. 14. JAYARAJAN O AGED 70 YEARS ONDEN HOUSE, AZHIKODE SOUTH, KANNUR
(PPO NO. KR/KNR/38037), PIN - 670009
15. 15. KUNHIKANNAN K AGED 69 YEARS UTHRAM, KORARAMBA, EDAYANNUR, KANNUR
(PPO NO. KR/KNR/32402), PIN - 670595
16. 16. RAVINDRAN NAIR M AGED 66 YEARS PADIMARUTH HOUSE, VATTAMTHATTA,
MULIYAR, KASARGODE (PPO NO. KR/KNR/46911), PIN - 671542
17. 17. NARAYANAN K.E AGED 67 YEARS KEYYILLATH HOUSE, THOTTARAMBA,
PULIMPARAMBA, THALIPARAMBA, KANNUR (PPO NO. KR/KNR/44081), PIN -
670141
18. 18. SREEDHARAN V.V AGED 73 YEARS SREENILAYAM, ACHILOTMOOLA, VESALA,
CHATTUKAPPARA, KANNUR (PPO NO. KR/KNR/29210), PIN - 670592
19. 19. SEKHARAN P AGED 75 YEARS KALLYANI HOUSE, MORAZHA, PANTHOTTAM,
KANNUR (PPO NO. KR/KNR/25215), PIN - 670331
20. 20. NARAYANAN M AGED 73 YEARS MELEDATH HOUSE, KADAMBOOR, EDAKKAD,
KANNUR (PPO NO. KR/KNR/27588), PIN - 670663
21. 21. RAJENDRAN N AGED 73 YEARS NAYANAM, POOTHAPPARA, AZHIKODE, KANNUR
(PPO NO. KR/KNR/ 26219), PIN - 670009
22. 22. RAMAN U AGED 68 YEARS VATTAPOYIL, NILESHWAR, KASARGODE (PPO NO.
KR/KNR/42287), PIN - 671314
23. 23. GOVINDAN T AGED 74 YEARS SARITHAS, MERALI ROAD, PAPPINISSERY,
KANNUR (PPO NO. KR/KNR/23667), PIN - 670561
24. 24. SANTHAKUMARI K AGED 74 YEARS GAANAM, DHARMADAM, KANNUR (PPO NO.
KR/KNR/ 21689), PIN - 670106
25. 25. BALAN M AGED 73 YEARS PRASADAM,PATTIAM, POOKODE, KANNUR (PPO
NO.KR/KNR/59722), PIN - 670691
26. 26. P.P. DAMODARAN AGED 71 YEARS PUTHIYAPURAYIL HOUSE, CHOOLIYAD,
THALAKODE, KANNUR (PPO NO. KR/KNR/38087), PIN - 670631
27. 27. RUGMINI V AGED 74 YEARS PRATIBHA, KEEZHATTOOR, THALIPARAMBA,
KANNUR (PPO NO. KR/KNR/21549), PIN - 670141
28. 28. NEENA KAMBIL AGED 67 YEARS SRISHTI, OPP. CSI CHURCH, TALAP,
KANNUR (PPO NO. KR/KNR/44061), PIN - 670002
29. 29. K.V NALINI AGED 68 YEARS NARAYANA, CHANDROTH, CHIRAKKAL, KANNUR
(PPO NO. KR/KNR/45376), PIN - 670011
30. 30. LALITHA M AGED 70 YEARS SANGEETH, CHALA 12 KANDY, THOTTADA,
KANNUR (PPO NO. KR/KNR/38074), PIN - 670007
31. 31. SREEDHARAN T V AGED 75 YEARS VILAKUMADAM HOUSE, KOLACHERY,
KANNUR (PPO NO. KR/KNR/29431), PIN - 670601
32. 32. RATHEESH K.K AGED 71 YEARS THEERTHAM, CHIRAKKARA P.O, KANNUR
(PPO NO. KR/KNR/31934), PIN - 670104
33. 33. PREMARAJAN P.V AGED 67 YEARS DEVIKRIPA, NELLUNNI, MATTANNUR,
KANNUR (PPO NO. KR/KNR/47692), PIN - 670702
34. 34. RAJAN K AGED 67 YEARS MOOLAKARUMBAYIL, KOMMERI, KOZHIKODE (PPO
NO. KR/KKD/50857), PIN - 673007
35. 35. MOHANADASAN C AGED 68 YEARS CHEMBRA HOUSE, BEYPORE NORTH,
KOZHIKODE (PPO NO. KR/KKD/61762), PIN - 670315
36. 36. VASUDEVAN I AGED 67 YEARS ILIPADIKKAL HOUSE, PERUVAYAL,
KOZHIKODE (PPO NO. KR/KKD/ 61160), PIN - 673008
37. 37. VISWANATHAN K AGED 69 YEARS VIPIN VILLA, B.C ROAD WEST, BEYPORE,
KOZHIKODE (PPO NO. KR/KKD/60617), PIN - 673015
38. 38. VELAYUDHAN P.M AGED 70 YEARS VISAGHAM, AMBILOLY, PANTHEERANKAVE,
KOZHIKODE (PPO NO. KR/KKD/61182), PIN - 673019
39. 39. CLARAMMA JOSE AGED 68 YEARS MUKKUTTU HOUSE, VADAPURAM, MAMPAD,
MALAPPURAM (PPO NO. KR/KKD/61619), PIN - 676542
40. 40. K.P GANGADHARAN AGED 69 YEARS MADATHIL HOUSE, CHEVAYUR,
KOZHIKODE (PPO NO. KR/KKD/61177), PIN - 673017
41. 41. RAVEENDRAN C.S AGED 68 YEARS DEEPU NIVAS, MANALODY, NILAMBUR,
MALAPPURAM (PPO NO. KR/KKD/61807), PIN - 679329
42. 42. CHANDRAMATHY A AGED 68 YEARS PURAKKAT HOUSE, BEYPORE NORTH,
KOZHIKODE (PPO NO. KR/KKD/61611), PIN - 673015
43. 43. GOPALAN V.M AGED 68 YEARS ATTHIKKOTTU MEETHAL HOUSE, VENGERI,
KOZHIKODE (PPO NO. KR/KKD/61173) , PIN - 673010
44. 44. M.P SREENIVASAN AGED 71 YEARS DWARAKA, VENGERI KOZHIKODE (PPO
NO. KR/KKD/60913) , PIN - 673010
45. 45. VILASINI T AGED 71 YEARS THAMBALANGODE HOUSE, VADAPURAM. MAMPAD,
MALAPPURAM, (PPO NO. KR/KKD/60644) , PIN - 676542
46. 46. P. VIMALA AGED 66 YEARS PAYYATH HOUSE, PURATHIYIL, THAMPURAN
ROAD, BEYPORE NORTH, KOZHIKODE (PPO NO. KR/KKD/61594) , PIN - 673015
47. 47. M RADHAKRISHNAN NAIR AGED 68 YEARS MULIYIL HOUSE, PERUVAYAL,
KOZHIKODE (PPO NO. KR/KKD/61599) , PIN - 673024
48. 48. CHANDRAN M AGED 73 YEARS NIRMALA STHUTHI, KIZHAKKUMMURI,
KAKKODI, KOZHIKODE (PPO NO. KR/KKD/60607) , PIN - 673611
49. 49. C CHANDRASEKHARAN AGED 70 YEARS CHEMBRA HOUSE, ARAKKINAR,
KOZHIKODE (PPO NO. KR/KKD/61586) , PIN - 673028
50. 50. SATHYAN. P AGED 66 YEARS SOUPARNIKA, KUTTAMANGALAM, MEDICAL
COLLEGE P.O., KOZHIKODE (PPO NO. KR/KKD/61593) , PIN - 673008
51. 51. UNNI NAIR K AGED 70 YEARS KARIYARAMBATH, CHEEKKILODE, ATHOLI,
KOZHIKODE (PPO NO. KR/KKD/61291) , PIN - 673315
52. 52. P.C.MATHEW AGED 66 YEARS PUTHANPARAMBIL, PUTHUPPADI, KOZHIKODE
(PPO NO. KR/KKD/61580) , PIN - 673586
53. 53. RAJAN A AGED 66 YEARS THANAL HOUSE, KARAYAD, MEPPAYUR, KOZHIKODE
(PPO NO. KR/KKD/57881, PIN - 673524
54. 54. K UNNIKRISHNAN AGED 70 YEARS VAISHNAVAM, ODUMBRA, OLAVANNA,
KOZHIKODE (PPO NO. KR/KKD/60603) , PIN - 673019
55. 55. E M G RAJAMOHAN AGED 69 YEARS EDAMOOLIYIL HOUSE, PERUVAYAL,
KOZHIKODE (PPO NO. KR/KKD/61838) , PIN - 673008
56. 56. RAMANKUTTY, P.K AGED 72 YEARS SANTHIVIHAR, MUNNURKODE,
THRIKKATERI, PALAKKAD (PPO NO. KR/KKD/61024) , PIN - 679502
57. 57. NARAYANAN NAIR C AGED 69 YEARS CHANGANARI HOUSE, PERUVAYAL,
KOZHIKODE (PPO NO. KR/KKD/61288) , PIN - 673008
58. 58. JOSEPH A.X AGED 66 YEARS ARAKKAPARAMBIL HOUSE, AMBALAVAYAL,
WAYANAD (PPO NO. KR/KKD/61331) , PIN - 673593
59. 59. BALAKRISHNAN C AGED 73 YEARS CHEMBRA HOUSE, BEYPORE NORTH,
KOZHIKODE (PPO NO. KR/KKD/61184) , PIN - 673015
60. 60. K DAMODARAN NAIR, AGED 67 YEARS 33/548-B, SOUPARNIKA, A.R CAMP
ROAD, MARIKUNNU, KOZHIKODE (PPO NO. KR/KKD/60620) , PIN - 673012
61. 61. BALAKRISHNAN C.P AGED 67 YEARS CHARAPPARAMBATH, PAYAMBRA,
KOZHIKODE (PPO NO. KR/KKD/61158) , PIN - 673571
62. 62. SREEDEVI V AGED 67 YEARS SANKALP, 5C SEIKEN MIDTOWN APARTMENTS,
THIRUTHIYAD, KOZHIKODE . (PPO NO. KR/KKD/61165) , PIN - 673004
63. 63. PRABHAVATHY A AGED 72 YEARS ANUGREH, CHARAKKUZHI PARAMBA,
CHETTIKULAM BAZAR, ELATHUR, KOZHIKODE (PPO NO. KR/KKD/60602) , PIN -
673303
64. 64. RAMAN P AGED 72 YEARS PARAMBATH HOUSE, KUNNATHARA, KOYILANDI,
KOZHIKODE (PPO NO. KR/KKD/61180) , PIN - 673620
65. 65. KOZHISSERY VELAYUDHAN AGED 72 YEARS KADIYAPURATH, NAIRUKUZHI,
KOZHIKODE (PPO NO. KR/KKD/61548) , PIN - 673601
66. 66. M.VELAYUDHAN AGED 73 YEARS MOOCHIKOTTIL HOUSE, KARUVAMBRAM WEST,
MANJERI, MALAPPURAM (PPO NO. KR/KKD/61023) , PIN - 676123
67. 67. K.V. CHANDRAN AGED 68 YEARS KAYYEDA VAZHIYIL HOUSE,
PERANGALIPARAMBA, BEYPORE NORTH, KOZHIKODE (PPO NO. KR/KKD/61614) ,
PIN - 673015
68. 68. KALATHIL BALAKRISHNAN AGED 69 YEARS KALATHIL HOUSE, KALLAI,
KOZHIKODE (PPO NO. KR/KKD/61608) , PIN - 673003
69. 69. P BALAKRISHNAN AGED 67 YEARS VARSHA, CHERUKUNNUMAL,
GURUVAYOORAPPAN COLLEGE P.O, KOZHIKODE (PPO NO. KR/KKD/61168) , PIN
- 673014
70. 70. SIAVADASAN M AGED 69 YEARS KARUTHEDATH KUZHI, ADUVAD, MAVOOR,
KOZHIKODE, (PPO NO. KR/KKD/61613) , PIN - 673661
71. 71. T GOPALAKRISHNAN, AGED 70 YEARS CHORANGADANVEEDU, PERINGOLAM
P.O., KUNNAMANGALAM, KOZHIKODE (PPO NO. KR/KKD/61365) , PIN - 673571
72. 72. DAMODARAN T AGED 68 YEARS THIRUTHIYIL HOUSE, KOMMERI P.O.,
VALAYANAD, KOZHIKODE (PPO NO. KR/KKD/61364) , PIN - 673007
73. 73. RAVEENDRAN V, AGED 68 YEARS KARUNA, KALAMKOLLIPARAMBA, PALAZHI,
GURUVAYOORAPPAN COLLEGE P.O, KOZHIKODE (PPO NO. KR/KKD/61162) , PIN
- 673014
74. 74. T. KELUKUTTY AGED 69 YEARS THAYYIL HOUSE, SIVAPURI ROAD, BEYPORE
NORTH, KOZHIKODE (PPO NO. KR/KKD/61609) , PIN - 673015
75. 75. K. SURENDRAN AGED 70 YEARS KANAKKASSERI HOUSE, AREEKKAL VAYAL,
ARAKKINAR, KOZHIKODE . (PPO NO. KR/KKD/61610) , PIN - 673028
76. 76. BHASKARAN P AGED 72 YEARS NANDANAM, VATTAKKANDIPARAMBU,
AMBALAMUKKU, KUNNAMANGALAM, KOZHIKODE (PPO NO. KR/KKD/61183) , PIN -
673571
77. 77. BALAGOPAL P.O AGED 67 YEARS VAISHANAVAM, CAPT P.V VIKRAM ROAD,
KALLAI, KOZHIKODE . (PPO NO. KR KKD/61170) , PIN - 673003
78. 78. SAMIKUTTY C AGED 69 YEARS CHERUKKADAN PARAMBATH, VALAYANNUR,
CHERUPPA, MAVOOR, KOZHIKODE (PPO NO. KR/KKD/61164) , PIN - 673661
79. 79. RADHAKRISHNAN C.P AGED 59 YEARS KRISHNA, 33/4319A, HOUSING
COLONY, MALAPARAMBA, KOZHIKODE (PPO NO. KR/KKD/60616) , PIN - 673009
80. 80. KARTHYAYINI K AGED 69 YEARS JYOTHSNA, CHATTANCHAL, THEKKIL,
KASARGODE (PPO NO. KR/KNR/37828) , PIN - 671541
RESPONDENTS:
1. 1. UNION OF INDIA, REPRESENTED BY IT'S SECRETARY, MINISTRY OF LABOUR
AND EMPLOYMENT, DEPARTMENT OF EMPLOYMENT, NEW DELHI , PIN - 110001
2. 2. BOARD OF TRUSTEES OF EMPLOYEES PROVIDENT FUND ORGANISATION,
REPRESENTED BY THE CENTRAL PROVIDENT COMMISSIONER BHAVISHYA NIDHI
BHAVAN, 14, BHIKAJI CAMA PALACE, NEW DELHI , PIN - 110066
3. 3. ASSISTANT PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, EPF
ORGANISATION, BHAVISHYANIDHI BHAVAN, ERANJIPALAM, KOZHIKODE , PIN -
673006
4. 4. ASSISTANT PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, EPF
ORGANISATION, BHAVISHYANIDHI BHAVAN, KANNUR , PIN - 670001
5. 5. MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR PERINGALAM, KUNNAMANGALAM,
KOZHIKODE, PIN - 673571
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to issue an interim order, directing the respondents not to
reduce the pension revised, based on Exts. P3 to P5, during the pendency
of the above writ petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
08.03.2023 and upon hearing the arguments of SHRI. PRAKASH M.P., Advocate
for the petitioners, SHRI. MANU S. DSG OF INDIA, for R1, SHRI. NITA N.S,
Advocate for R3 & R4, the court passed the following:
ZIYAD RAHMAN A.A., J.
----------------------------
W.P.(C) Nos.8979/2023, 16018/2020, 11737/2021,
4958/2023, 5300/2023, 5442/2023, 5460/2023,
5473/2023, 5503/2023, 5510/2023, 5513/2023,
5790/2023, 5876/2023, 5987/2023, 6178/2023,
6206/2023, 6260/2023, 6284/2023, 6292/2023,
6499/2023, 6502/2023, 6681/2023, 6703/2023,
6710/2023, 6723/2023, 6725/2023, 6731/2023,
6740/2023, 6779/2023, 6811/2023, 6905/2023,
6941/2023, 6990/2023, 7015/2023,7043/2023,
7073/2023, 7105/2023, 7141/2023, 7261/2023,
7547/2023, 7578/2023, 7614/2023, 7838/2023,
7990/2023, 8412/2023, 8727/2023, 8777/2023,
8990/2023, 9061/2023, 9177/2023, 9241/2023,
9351/2023, 9358/2023, 9494/2023, 9614/2023,
9659/2023, 9979/2023, 10175/2023, 10186/2023,
10219/2023, 10535/2023, 10650/2023, 10711/2023,
11442/2023 & 11554/2023.
------------------------
Dated this the 12th day of April, 2023
O R D E R
In all these cases, the issue involved is pertaining to the legal entitlement of the petitioners for higher pension, as per the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. These writ petitions are already admitted.
WP(C) No. 8979/2023 & Con.cases 2
2. As per the decision rendered by the Honourable Supreme Court in EPF Organisation v. Sunil Kumar [2022(7) KHC 12 (SC)], certain directions were issued in this regard with respect to the options to be submitted by the employees concerned, to be eligible for the benefits of higher pension under the Employees Pension Scheme, 1995. In para 44 (iv) of the said decision, the following observations were issued by the Honourable Supreme Court.
" 44 (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."
3. The Honorable Supreme Court permitted the employees who could not submit the options in the WP(C) No. 8979/2023 & Con.cases 3 light of para 11(3) of the pre-amendment scheme, to submit fresh options within a period of four months. Though the said period expired on 3.03.2023, the same was further extended for two months i.e. up to 3.05.2023. The petitioners in these cases are employees intending to submit their options in the light of directions of the Honourable Supreme Court.
4. The EPF organization made available to the employees the facility to submit the options through online mode by providing necessary links for the same on their website. Ext P9 in WP(C)8979/2023 is the option form the employee has to fill up while submitting the option.
5. The grievance highlighted by the petitioners is that one of the details to be furnished in the said option form is the copy of the permission under para 26(6) of the Employees Provident Fund Scheme, 1952. According to the WP(C) No. 8979/2023 & Con.cases 4 petitioners, even though they were permitted to pay the contribution based on the salary, exceeding the ceiling limit prescribed (Rs 5,000/- and Rs 6,500/-), as contemplated under para 26(6) of the Scheme 1952, no formal option has been submitted. According to them, submission of such an option was never necessitated or insisted upon, and instead, higher contributions were being accepted all along by the EPFO. Therefore, they are unable to fill up the said column in the online option form, and the said form is formulated in such a fashion that, unless the details of the option under para 26 (6) of the Scheme, 1952 are incorporated, they cannot successfully submit the online options. If they are not submitting their options on or before the cut-off date, i.e. 3.05.2023, they will be deprived of the benefits of the Scheme to which they are legally entitled. In such circumstances, WP(C) No. 8979/2023 & Con.cases 5 the petitioners seek an interim order permitting them to submit options without insisting on the details/copies of the options submitted by them under para 26(6) of the Scheme 1952.
6. The prayer for interim relief is stoutly opposed by the respective Standing Counsels for the EPFO. According to them, the option under para 26(6) is one of the crucial requirements for availing the benefits, and therefore, it is absolutely necessary for processing the options submitted by the employees.
7. The learned counsels for the petitioners would point out that higher contributions were being accepted by the EPFO all along, even without formal options from the employees and without any insistence for submission of options as referred to above. The petitioners relied on various circulars issued by the EPFO to substantiate the said contentions.
WP(C) No. 8979/2023 & Con.cases 6
8. In circular bearing No:
Pension/Misc.2005/65836 dated 22.011.2006, it was mentioned in para 4 (4) that, if the option was not exercised at the time of salary crossing the statutory limit or on 16.3.1996 as the case may be and the contributions were deposited on salary exceeding the limit after receiving instructions from the Office before the date of issue of circular dated 22.06.2004, the department has the vicarious liability(restricted to specific cases only)of honouring such a commitment and hence the pensionable salary shall be on the actual salary, i.e. on the salary (exceeding the statutory limit) on which contribution paid. However, it is true that, in para 4 (5) of the said Circular, it was clarified that, in cases where no options were given, or no commitment was made by the concerned office, but the contribution on higher pay was deposited by the establishment/employee on their WP(C) No. 8979/2023 & Con.cases 7 own, excess contributions will be considered as erroneous contributions, and the pensionary salary will be restricted to statutory ceiling existing from time to time. But the fact remains that the said Circular clearly indicates that certain offices of the EPFO used to give instructions for accepting the higher contributions, even without options being actually submitted, and permitting payment of higher contribution.
9. Besides the same, in Circular No Pen- 1/12/33/96/Amendment/Vol.IV/16762 dated 22.01.2019 (Ext P3 in WP(C) 8979/2023), it is mentioned as follows: "However, if an employer and employee have contributed under the EPF Scheme, 1952 on wages higher than the statutory wage limit, without joint option of employee & employer, and the EPF Account of the concerned employee has been updated by the EPFO on the basis of such contribution received, then by action of employee, employer and EPFO, it can be inferred that joint option of the employee and employee has been exercised and accepted by EPFO........."
WP(C) No. 8979/2023 & Con.cases 8
10. Of course, the said Circular has been withdrawn as per Circular dated 7.02.2019, in the light of the observations made by a Division Bench judgment of this Court in WP(C)13120 of 2015. However, the said Circular dated 22.01.2019 clearly conveys the manner in which the EPFO treated the issue as regards the necessity of submitting options under para 26(6) of the Scheme 1952, and it indicates that the submission of options was never made mandatory.
11. In addition to the above, the petitioners have also raised a contention that, in the judgment passed by the Division Bench of this Court, in Sasikumar P. and others v. Union of India and others [ILR 2019 (1) Kerala 614], it was clarified that, the employees shall be entitled to exercise the option stipulated by paragraph 26 of the EPF Scheme without being restricted in doing so by the insistence on a date. Therefore, even if WP(C) No. 8979/2023 & Con.cases 9 the submission of an option is mandatory, it is still open for the employees to submit the same without any cut-off date. It was further contended that, even though the said judgment was set aside by the Honourable Supreme Court in Sunil Kumar's case (supra), it would not affect the direction of the Division Bench judgment of this court in Sasikumar's case (supra), as there is no contrary finding in the decision of the Honourable Supreme Court, with regard to the option under para 26(6) of the Scheme 1952. In my view, this is also a matter to be considered at the time of the final hearing.
12. Thus, when all the above aspects are considered, it can be seen that, right from the inception, higher contributions were being accepted by the EPFO, even without submitting options under para 26(6) of the Scheme 1952. It is also evident that in some cases, instructions were WP(C) No. 8979/2023 & Con.cases 10 issued from some of the offices of EPFO to accept the same, and in some cases, accounts of respective employees were also updated in tune with such higher contributions.
13. Further, the petitioners also have a contention that, going by the language used in para 26(6) of the Scheme, 1952, it could be interpreted as an enabling provision, which provides the power to the EPFO to accept higher contributions in certain circumstances and the same cannot be treated as a provision which makes the submission of option mandatory. The exercise of such options and their acceptance by the EPFO can be inferred from the conduct of the employees, employers and the EPFO, as mentioned in Circular dated 22.01.2019. After considering the provisions in this regard, I am of the view that this is also a relevant aspect to be considered in detail. WP(C) No. 8979/2023 & Con.cases 11
14. Thus, when considering all the above aspects, the only view that can possibly be taken is that the petitioners have succeeded in establishing a prima facie case, warranting an interim order in the matter. It is to be noted that the balance of convenience also favours the petitioners. Evidently, the Honourable Supreme Court fixed the cut-off date as 3.05.2023 for submitting the options. Now on account of the insistence from the EPFO to furnish the details of the option under para 26(6)of the Scheme, 1952, and also in view of the peculiar nature of the online facility provided for such submissions, they are now prevented from submitting the said options. There cannot be any dispute that if they were not permitted to submit their options before the cut-off date, they would be deprived of their opportunity to claim the benefits of the judgment of the Honourable Supreme Court forever. WP(C) No. 8979/2023 & Con.cases 12 Therefore, the petitioners deserve an interim order for that reason,i.e. the balance of convenience, as well.
15. The learned Standing Counsel for the EPFO also raised a contention that some of the writ petitions are submitted by the employees of the exempted establishments, and they cannot be granted the benefits. However, in para 38 of the judgment in Sunil Kumar's case (supra), this aspect was considered, and it was found that employees of the exempted establishments should not be deprived of the benefit of remaining in the pension scheme while drawing salary beyond the ceiling limit. Therefore the said contention of the EPFO is also not prima facie sustainable.
In the light above of the observations, I am inclined to pass an interim order; Accordingly, the Employees Provident Fund Organization and the authorities under the same are directed to make WP(C) No. 8979/2023 & Con.cases 13 adequate provisions in their online facility to enable the employees/pensioners to furnish the options in tune with the directions of the Honourable Supreme Court, without the production of the copies of option under paragraph 26(6) of the Scheme, 1952 and the details thereof, for the time being. If appropriate modifications cannot be made in the online facility, feasible alternate arrangements, including the permission to submit hard copies of the options, shall be made/granted. The facilities mentioned above shall be made available to all the employees/pensioners within a period of ten days from today.
Sd/-
ZIYAD RAHMAN A.A., JUDGE pkk