Madhya Pradesh High Court
Rammani Tiwari vs The Employee S Provident Fund ... on 15 June, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
WRIT PETITION 14425 of 2021
Between:-
SHIV PRASAD SONI S/O LATE SHRI RAM SAJIVAN SONI ,
AGED ABOUT 65 YEARS, OCCUPATION RETIRED
PARICHARAK BHOPAL SAHAKARI DUGDH SANGH
HABIBGANJ BHOPAL (M.P.), R/O NEW BASTI BAG MUGLIYA,
H.NO.162, NER JAIN AATA CHAKKI, BHOPAL M.P. PIN CODE
NO.462043.
....PETITIONER
(BY SHRI AVIRAL VIKAS KHARE, ADVOCATE)
AND
1. THE EMPLOYEES PROVIDENT FUND ORGANISATION
THROUGH CHIEF PROVIDENT FUND COMMISSIONER,
BHAVISHYA NIDHI BHAWAN, 14 BHIKAJI CAMA PLACE NEW
DELHI PIN CODE NO.110029.
2. THE REGIONAL PROVIDENT FUND COMMISSIONER
(PENSION), BHOPAL REGIONAL OFFICE: BHAVISHYA NIDHI
BHAWAN ,59 ARERA HILLS BHOPAL (M.P.) 462011
3. THE BHOPAL SAHKARI DUGDH SANGH MYDT. OFFICE OF
NEAR HABIBGANJ RAILWAY STATION, BHOPAL (M.P.)
.....RESPONDENTS
(BY SHRI DEVENDRA PRAJAPATI, ADVOCATE FOR
RESPONDENTS NO.1 & 2 )
(BY SMT. GULAB KALI PATEL, ADVOCATE FOR RESPONDENT
No.3)
WRIT PETITION No. 11461 of 2021
Between:-
CHANCHAL KUMAR SAHA, S/O SHRI GOPIJIVAN SAHA ,
AGED ABOUT 65 YEARS, OCCUPATION : RETIRED, R/O : 301
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
2
LOTUS TOWER, VARDHAMAN GREEN PARK, GOVINDPURA,
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AVIRAL VIKAS KHARE, ADVOCATE)
AND
EMPLOYEE PROVIDENT FUND ORGANISATION MINISTRY OF
LABOUR GOVERNMENT OF INDIA THR. REGIONAL PROVIDENT
FUND COMMISSIONER REGIONAL OFFICE, 59, JAIL RD ARERA
HILLS BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DEVENDRA PRAJAPATI, ADVOCATE FOR RESPONDENT)
WRIT PETITION 14735 of 2021
Between:-
VIENDRA KUMAR PANDEY S/O SHRI LAXMI KANT PANDEY , AGED
ABOUT 64 YEARS, OCCUPATION: RETIRED PROMOTION
ORGANISER BHOPAL SAHAKARI DUGDH SANGH HABIBGANJ
BHOPAL M.P. R/O H.NO.22, ASHOK VIHAR COLONY, ASHOKA
GARDEN, BHOPAL M.P PIN CODE NO.462023
....PETITIONER
(BY SHRI AVIRAL VIKAS KHARE, ADVOCATE)
AND
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
3
1. THE EMPLOYEES PROVIDENT FUND ORGANISATION,
THROUGH CHIEF PROVIDENT FUND COMMISSIONER, BHAVISHYA
NIDHI BHAWAN. 14 BHIKAJI CAMA PLACE NEW DELHI PIN CODE
NO.110029.
2. THE REGIONAL PROVIDENT FUND COMMISSIONER (PENSION)
BHOPAL REGIONAL OFFICE: BHAVISHYA NIDHI BHAWAN, 59
ARERA HILLS BHOPAL (MADHYA PRADESH) PIN CODE NO.462011
3. THE BHOPAL SAHKARI DUGDH SANGH MYDT. OFFICE OF NEAR
HABIBGANJ RAILWAY STATION, BHOPAL (MADHYA PRADESH) PIN
CODE NO.4620
.....RESPONDENTS
(BY SHRI DEVENDRA PRAJAPATI, ADVOCATE FOR RESPONDENTS
NO.1 & 2 )
(BY SMT. GULAB KALI PATEL, ADVOCATE FOR RESPONDENT No.3)
WRIT PETITION 15029 of 2021
Between:-
AJAY KUMAR TIWARI S/O LATE SHRI B.P. TIWARI , AGED ABOUT
65 YEARS, OCCUPATION: PUBLIC SERVANT FORMERLY POSTED
AS DY. GENERAL MANAGER MP. COOPERATIVE DAIRY
FEDERATION R/O D-11/11, CHAR IMLI HUZUR, BHOPAL (MADHYA
PRADESH)
...PETITIONER
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
4
(BY SHRI AVIRAL VIKAS KHARE, ADVOCATE)
AND
1. THE EMPLOYEES PROVIDENT FUND ORGANISATION THROUGH
JOINT PROVIDENT FUND COMMISSIONER OFFICE AT BHAVISHYA
NIDHI BHAWAN, 59, ARERA HILLS, BHOPAL 462011.
2. EMPLOYEES PROVIDENT FUND ORGANIZATION THROUGH
REGIONAL PROVIDENT FUND COMMISSIONER OFFICE AT
BHAVISHYA NIDHI BHAWAN, 59, ARERA HILLS, BHOPAL 462011.
3. UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF
LABOUR AND EMPLOYMENT, SHRAM SHAKTI BHAWAN, RAFI
MARG, NEW DELHI, DELHI 110001.
.....RESPONDENTS
(BY SHRI DEVENDRA PRAJAPATI, ADVOCATE FOR RESPONDENTS
NO.1 & 2 )
(BY SMT. GULAB KALI PATEL, ADVOCATE FOR RESPONDENT No.3)
WRIT PETITION 15297 of 2021
Between:-
M.D. MISHRA S/O LATE SHRI K.D. MISHRA , AGED ABOUT 66
YEARS, OCCUPATION: RETRIRED EMPLOYEE R/O PLOT NO.592
SHANTI NAGAR, DAMOH NAKA, JABALPUR (MADHYA PRADESH)
....PETITIONER
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
5
(BY SHRI SANJAY KUMAR AGRAWAL, ADVOCATE )
AND
1. THE EMPLOYEES' PROVIDENT FUND ORGANISATION
THROUGH ITS CHIEF EXECUTIVE OFFICER, EPFO HEAD OFFICE,
BHAVISHYA NIDHI BHAWAN, 14 BHIKAJI CAMA PLACE NEW
DELHI PIN CODE NO.110066.
2. THE REGIONAL PROVIDENT FUND COMMISSIONER REGIONAL
OFFICE, BHAVISHYA NIDHI BHAWAN, VIJAY NAGAR, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS)
WRIT PETITION No.15302 of 2021
Between:-
V.D. LONKAR S/O LATE SHRI D.V. LONKAR , AGED ABOUT 67
YEARS, OCCUPATION: RETIRED EMPLOYEE, R/O 1028/2 AMANPUR,
MADAN MAHAL, JABALPUR (MADHYA PRADESH)
....PETITIONER
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
6
(BY SHRI SANJAY K AGRAWAL, ADVOCATE )
AND
1. THE EMPLOYEES' PROVIDENT FUND ORGANISATION THR. ITS
CHIEF EXECUTIVE OFFICER EPFO HEAD OFFICE BHAVISHYA
NIDHI BHAWAN 14 BHIKAJI CAMA PLACE NEW DELHI -110066
2. THE REGIONAL PROVIDENT FUND COMMISSIONER, REGIONAL
OFFICE, BHAVISHYA NIDHI BHAWAN, VIJAY NAGAR, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS)
WRIT PETITION No.15305 of 2021
Between:-
TARUN KUMAR ANAND S/O LATE SHRI R.P. ANAND , AGED ABOUT
66 YEARS, OCCUPATION: RETIRED EMPLOYEE, R/O ANAND
BHAWAN, BEDI NAGAR, NAGPUR ROAD JABLAPUR (MADHYA
PRADESH)
....PETITIONER
(BY SHRI SANJAY K AGRAWAL, ADVOCATE )
AND
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
7
1. THE EMPLOYEES PROVIDENT FUND ORGANISATION THR. ITS
CHIEF EXECUTIVE OFFICER EPFO HEAD OFFICE BHAVISHYA
NIDHI BHAWAN 14 BHIKAJI CAMA PLACE NEW DELHI (DELHI)
2. THE REGIONAL PROVIDENT FUND COMMISSIONER JABALPUR
REGIONAL OFFICE BHAVISHYA NIDHI BHAWAN, VIJAY NAGAR,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS)
WRIT PETITION No.15310 of 2021
Between:-
ASHOK MUMAR TIWARI S/O LATE SHRI JAGESHWAR PRASAD
TIWARI , AGED ABOUT 66 YEARS, R/O PLOT NO. 645, GALI NO. 19
SHANTI NAGAR, DAMOH NAKA, JABALPUR (MADHYA PRADESH)
....PETITIONER
(BY SHRI SANJAY K AGRAWAL, ADVOCATE )
AND
1. THE EMPLOYEES PROVIDENT FUND ORGANISATION THR. ITS
CHIEF EXECUTIVE OFFICER EPFO HEAD OFFICE BHAVISHYA
NIDHI BHAWAN 14 BHIKAJI CAMA PLACE NEW DELHI (DELHI)
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
8
2. REGIONAL PROVIDENT FUND COMMISSIONER JABALPUR
REGIONAL OFFICE BHAVISHYA NIDHI BHAWAN VIJAY NAGAR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS )
WRIT PETITION No.15588 of 2021
Between:-
DWARKA PRASAD RAI (D.P. RAI ) S/O LATE SHRI T. L. RAI , AGED
ABOUT 69 YEARS, OCCUPATION: RETIRED EMPLOYEES ,R/O H.
NO. 552 SHAKTI NAGAR, SHIVAJI CHOWK JABALPUR (MADHYA
PRADESH)
....PETITIONER
(BY SHRI SANJAY K AGRAWAL, ADVOCATE )
AND
1. THE EMPLOYEES' PROVIDENT FUND ORGANISATION THR. ITS
CHIEF EXECUTIVE OFFICER EPFO HEAD OFFICE, BHAVISHYA
NIDHI BHAWAN, 14, BHIKAJI CAMA PLACE, NEW DELHI -110066
2. THE REGIONAL PROVIDENT FUND COMMISSIONER, REGIONAL
OFFICE BHAVISHYA NIDHI BHAWAN, VIJAY NAGAR JABALPUR
(MADHYA PRADESH)
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
9
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS)
WRIT PETITION No. 15682 of 2021
Between:-
ZILA SAHKARI SEVANEWRIT (PENSION) KARMACHARI SANGH
BALAGHAT, THROUGH ITS PRESIDENT GIRDHARILAL JAISWAL
OCCU. RETIRED LIFE, AGED ABOUT 66 YRS S/O LATE SHRI
HEERALAL JAISWAL R/O WARD NO 32 MOTI NAGAR BALAGHAT,
PIN - 481001 (MADHYA PRADESH)
....PETITIONER
(BY SHRI MUKHTAR AHMED, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THRO. DEPARTMENT OF
COOPERATIVE GOVT. OF M.P. VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. REGISTRAR, COOPERATIVE VINDHYACHAL BHAWAN, BHOPAL
(MADHYA PRADESH)
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
10
3. DISTRICT CENTRAL COOPERATIVE BANK MARYADIT
BALAGHAT THROUGH ITS GENERAL MANAGER, DIST. BALAGHAT
(MADHYA PRADESH)
4. REGIONAL COMMISSIONER EMPLOYEES' PROVIDENT FUND
ORGANISATION, REGIONAL OFFICE BHAVISHYA NIDHI BHAWAN,
VIJAY NAGAR, JABALPUR (MADHYA PRADESH) PIN 482002
5. ASSISTANT COMMISSIONER, EMPLOYEES' PROVIDENT FUND
(ACCOUNT) REGIONAL OFFICE BHAVISHYA NIDHI BHAWAN,
VIJAY NAGAR, JABALPUR (MADHYA PRADESH) PIN 482002
6. STATE BANK OF INDIA THROUGH BRANCH MANAGER,
BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(BY SMT GULAB KALI PATEL, ADVOCATE FOR STATE )
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS NO.4 AND 5)
WRIT PETITION No. 16821 of 2021
Between:-
RAJKUMAR SAHU S/O LATE SHRI PRARELAL SAHU , AGED
ABOUT 68 YEARS, R/O 479, VIJAY NAGAR, J.D.A. SCHEME NO. 14,
JABALPUR M.P (MADHYA PRADESH)
....PETITIONER
(BY SHRI SANJAY KUMAR PATEL, ADVOCATE)
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
11
AND
1. THE EMPLOYEES' PROVIDENT FUND ORGANIZATION
THROUGH ITS CHIEF EXECUTIVE OFFICER, EPFO HEAD OFFICE
BHAVISHYA NIDHI BHAWAN 14 BHIKAJI CAMA PLACE NEW
DELHI-110066
2. THE REGIONAL PROVIDENT FUND COMMISSIONER, REGIONAL
OFFICE, BHAVISHYA NIDHI BHAWAN, VIJAY NAGAR, JABLAPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS)
WRIT PETITION No. 17446 of 2021
Between:-
RAMMANI TIWARI S/O SHRI TULSIDAS TIWARI , AGED ABOUT 65
YEARS, OCCUPATION: RETIRED EMPLOYEE. R/O VILLAGE AND
POST BAKIYA TEHSIL- RAMPUR BAGHELAN, SATNA, DISTRICT
-SATNA (MADHYA PRADESH)
....PETITIONER
(BY SHRI BRINDAVAN TIWARI, ADVOCATE)
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
12
AND
1. THE EMPLOYEE S PROVIDENT FUND ORGANISATION THR. ITS
CHIEF EXECUTIVE OFFICER, EPFO HEAD OFFICE, BHAVISHYA
NIDHI BAWAN, 14 BHIKAJI CAMA PLACE , NEW DELHI-110066
2. THE REGIONAL PROVIDENT FUND COMMISSIONER REGIONAL
OFFICE BHAVISHYA NIDHI BHAWAN, VIJAY NAGAR, JABALPUR ,
DISTRICT JABALPUR (MADHYA PRADESH)
3. MADHYA PRADESH VAN VIKAS NIGAM, BARGHAT PROJECT,
THROUGH DIVISIONAL MANAGER DIVISION SEONI, OFFICE
GYARAS NAKA SEONI, DISTRICT - SEONI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENT NO.1 AND 2)
(BY SMT. GULAB KALI PATEL, GOVERNMENT ADVOCATE FOR
RESPONDENT NO.3)
WRIT PETITION No. 26539 of 2021
Between:-
SURENDRA KUMAR CHATURVEDI S/O LATE SHRI GAJADHAR
PRASAD CHATURVEDI, AGED ABOUT 67 YEARS, OCCUPATION:
RETIRED EMPLOYEE OF BHOPAL DAIRY FEDERATION AS
MANAGER (FINANCE) R/O B-46/1 SAI NATH NAGAR, NEAR
MAHABALI NAGAR, BHOPAL (MADHYA PRADESH) -462042
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
13
....PETITIONER
(BY SHRI AVIRAL VIKAS KHARE, ADVOCATE)
AND
1. THE EMPLOYEES PROVIDENT FUND ORGANIZATION THROUGH
CHIEF PROVIDENT FUND COMMISSIONER, BHAVISHYA NIDHI
BHAWAN, 14 BHIKAJI CAMA PLACE NEW DELHI PIN 110029.
2. THE REGIONAL PROVIDENT FUND COMMISSIONER (PENSION),
REGIONAL OFICE BHAVISHYA NIDHI BHAWAN 59 ARERA HILLS,
BHOPAL (MADHYA PRADESH) PIN 462011
3. BHOPAL SAHKARI DUGDH SANGH MYDT. OFFICE OF NEAR
HABIBGANJ RAILWAY STATION, DISTRICT BHOPAL (MADHYA
PRADESH) 462004
.....RESPONDENTS
(BY SHRI J.K. PILLAI, ADVOCATE FOR RESPONDENTS NO.1 AND 2)
(BY SMT. GULAB KALI PATEL, ADVOCATE FOR RESPONDENT No.3)
______________________________________________________
Reserved on : 20.04.2022
Delivered on : .06.2022
_____________________________________________________________
All these writ petitions have come up for hearing on this day, the
Court passed the following:-
ORDER
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.16 17:24:32 IST
14
This Bunch of writ petitions is filed by employees of the Bhopal Sahakari Dugdh Sangh Maryadit in relation to their claims pertaining to arbitrarily deduction of petitioners pension payable to them under the scheme of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
2. For the purpose of avoiding repetition of facts to the writ petitions, facts of W.P. No.14425/2021 (Shiv Prasad Soni Vs. The Employees Provident Fund and others) is taken as lead writ petition. Legal issues decided will apply mutatis mutandis to all other petitions.
3. Facts of the present case are that respondent No.3, The Bhopal Sahkari Dugdh Sangh Maryadit is entity of State Government working on the principles of Cooperative wherein State Government has 49% of share holding.
Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 15
4. The petitioner had approached this High Court along with others by filing W.P. No.1543/2017 (Amrendra Pratap Singh and Others Vs. Union of India and Others) wherein High Court had allowed the writ petition vide order dated 29.01.2018 and had directed the respondent, Provident Fund Commissioner that he shall decide the claim of the petitioner by passing a separate order.
5. Petitioners' claim therein was seeking direction to the respondents to give the benefit of commutation of pension on full salary by permitting the petitioners to deposit 8.33% of proportionate amount for salary above Rs.6500/- with accrued interest from the date of pension, after adjustment of arrears of increased pension with interest.
6. Petitioners had placed reliance on the judgment of Supreme Court in case of R.C. Gupta & Ors. etc. etc. Vs. Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 16 Regional Provident Fund Commissioner Employees Provident Fund Organisation & Ors. etc., wherein Supreme Court has observed as under :-
"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 paragraph 26 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.
Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 17
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 benefitted 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 due, consequential benefits in terms of this order will be granted to the said employees.
Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 18
12. Consequently and in light of the above, we allow these appeals and set aside the order of the Division Bench of the High Court."
7. Learned counsel for the petitioners submit that respondents had granted higher pension to the petitioners therein under the provisions of Pension Scheme, 1995 of the Employees' Provident Funds. Thereafter, in Supreme Court, Petition(s) for Special Leave to Appeal (C) No.(s). 8658-8659 of 2019 and in connected matters Supreme Court was pleased to direct that pending further consideration, no contempt application seeking implementation of any of the orders passed in the aforesaid four categories of matters, shall be taken up by any Court. Copy of this order is enclosed along with writ petition as Annexure P-2.
Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 19
8. It is submitted that review petition as aforementioned order of which is contained in Annexure P-2 originates from the decision of the Supreme Court arising out of judgment passed by Kerala High Court and the judgment of Supreme Court in the case of R.C. Gupta (supra) is not in review.
9. Petitioners' grievance is that respondent no.2, The Regional Provident Fund Commissioner (Pension), without obtaining any stay order from any Court of law stopped the benefit of Higher Pension to the petitioners through the Administrative Order dated 17.06.2021, Annexure P-4, mentioning therein that in case of R.C. Gupta (supra) request to exercise option under para 11(3) was made while he was in service whereas on re-examination of the case of the petitioners it was found that no such request received in the office while petitioner was still a member of EPS, 1995. As no such request Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 20 was made either to the office of Respondent No.2 or to the employer, therefore, higher pension was stopped and it is mentioned that final decision regarding restoration of higher pension or recovery action regarding provisional over payment shall be undertaken in accordance with the law.
10. Aforesaid order dated 17.06.2021 is the bone of contention. Hence, the writ petition.
11. Petitioners' contention is that respondents are providing higher pension to similarly situated persons and recently High court of Chhattisgarh, Bilaspur in W.P(s). No.2598/2020 (N.K. Dubey Vs. Employees Provident Fund Organization and Others) on 07.07.2020 has allowed writ petition under similar facts and circumstances, therefore, this writ petition too deserves to be allowed on the similar terms and conditions. Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 21
12. Shri J.K Pillai, learned counsel for the respondents, in his turn, opposes the prayer and submits that scheme of the year 1952 and 1995 do not permit the respondents to grant higher pension to the petitioners though they may have deposited the difference of contribution payable on the actually admissible salary above the cap of Rs.6500/- and, therefore, till the issue is pending before the Larger Bench of the Supreme Court, in reference, no indulgence is required in the matter.
13. It is further submitted that answering respondents i.e. Provident Funds Organization had asked the petitioner to share the documents to substantiate the option given under Para 11(3) of the EPF Scheme of 1952 and 1955 respectively, so to verify the entitlement of higher pension as spelt out in case of R.C. Gupta (supra) but instead of making compliance, petitioners Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 22 have stayed away approach this High Court. It is submitted that no case for indulgence is made out.
14. It is further submitted that judgment in case of R.C. Gupta (supra) pronounced by the Hon'ble Apex Court reveals myopic scrutiny would show that petitioners therein had sought permission to opt para 11(3) of the Pension Scheme which was refused by the authority on the ground of cut-off date, however, the Hon'ble Supreme Court dealt with the same and directed to consider the case of the petitioners.
15. It is submitted that in fact Supreme Court vide order dated 24.08.2021 has referred judgment in case of R.C. Gupta (supra) to a Larger Bench and pending consideration by the Larger Bench, no indulgence be shown.
16. Learned counsel for the petitioner, in his turn, submits that once in terms of the directions issued by a Coordinate Bench of Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 23 this Court in W.P. No.1543/2017 and other connected matters issue was scrutinized by the respondent No.2 and benefit of higher pension was allowed then it could not have been stopped in an arbitrary and illegal manner.
17. After hearing learned counsel for the parties and going through the record, it is evident that proviso to para 11 of the Employees' Pension Scheme, 1995 before it being omitted by G.S.R. 609(E), dated 22nd August, 2012 (w.e.f. 1.9.2014), stood as under :-
"Provided that if at the option of the employer and employee, contribution paid on salary 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/- wherever is later, and 8.33 per cent share of the employers thereof is remitted into the Pension Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 24 Fund, pensionable salary shall be based on such higher salary."
18. Petitioners' case is admittedly covered by the proviso which existed below para 11 prior to it being omitted. Petitioner stood superannuated before the amendment.
19. In case of R.C. Gupta (supra) Hon'ble Supreme Court has held that exercise of option under Paragraph 26 of the Provident Fund Scheme cannot be construed to stop the employees from exercising a similar option in para 11(3). It further observed that if both the employer and employee opt to deposit against the actual salary and not the ceiling amount, exercise of option under para 26 of the Provident Scheme is inevitable.
20. In fact limited issue which has been raised by the Provident Fund Commissioner is in regard to pendency of the Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 25 review and consequential decision to refer the judgment of Supreme Court in case of R.C. Gupta (supra) to a Larger Bench.
21. No material has been brought on record to show that merely reference of a case to a Larger Bench will entitle the respondents No.2 to reduce the pension already sanctioned by it without there being any stay by the Supreme Court on the operation of the ratio of judgment in case of R.C. Gupta (supra).
22. In fact this issue already stands concluded in as much as it is now settled that unless and until judgment referred to Larger Bench is either stayed or over ruled will continue to hold the field for reference.
23. Even otherwise, a close reading of paragraph 26(6) of the Employees Provident Fund Scheme, 1952 needs to be reproduced for better appreciation.
Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 26
"(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 [fifteen thousand rupees] of his pay per month if he is already a member of the Fund and thereupon 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."
24. Thus a meticulate reading of sub para (6) of para 26 of the Scheme of 1952, when read with the option of respondent No.2 Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 27 in providing enhanced pension to the petitioner then it is evident that necessary scrutiny of documents in regard to option etc., and entitlement of the petitioner already stood concluded. There was no reason for respondent No.2 to revisit and review the same vide order dated 17.06.2021, annexure P-4.
25. In The Oriental Ins.Co.Ltd. vs Sanjubai and Others, 2016 ACJ, 1000, it is held that if Coordinate Bench of the Apex Court expresses doubt on the correctness of the view expressed in the earlier decision of Coordinate Bench and refers the matter to the Larger Bench, then also earlier decision will hold the field and is a binding precedent for all subordinate courts until over turned by a Larger Bench. It is held that so long as the decision of Supreme Court on the point is in force, the same will be binding on all the subordinate courts. The fact that the issue has been referred to Larger Bench of the Supreme Court, that cannot Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 28 be the basis to ignore the decision of the Supreme Court cited on the subject, which is still holding the field and will be, therefore binding precedent until over turned by a Larger Bench of the Supreme Court.
26. In view of this fact of matter, unless the reference negativates the ratio of the law laid down in case of R.C. Gupta (supra), the judgment will hold field and its affect cannot be withdrawn by respondent No.1 and 2 through an executive order merely, because ratio of that decision has been referred to a Larger Bench.
27. Thus when tested on above touch stone, impugned order dated 17.06.2021cannot be given seal of approval and it being passed without any authority and on misreading of the correct legal position in this behalf as has been mentioned above and law laid down by a Full Bench of this High Court in case of The Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST 29 Oriental Ins.Co.Ltd. (supra), the impugned order deserves to be quashed and is quashed. Petitions are allowed.
(VIVEK AGARWAL) JUDGE Tabish Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.16 17:24:32 IST