Kerala High Court
Central Provident Fund Commissioner vs P.P.Joshi on 27 March, 2014
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
W.A.No.1422 of 2014
AGAINST THE JUDGMENT IN WP(C) NO.7520/2014 OF THE HIGH COURT OF
KERALA DATED 27-03-2014
APPELLANTS/RESPONDENTS 2, 3 & 4:
1. CENTRAL PROVIDENT FUND COMMISSIONER
EMPLOYEES PROVIDENT FUND ORGANISATION, HEAD OFFICE
BHAVISHYA NIDHI BHAVAN, NEW DELHI - 110 066.
2. REGIONAL PROVIDENT FUND COMMISSIONER
EMPLOYEES PROVIDENT FUND ORGANISATION (EPFO)
MINISTRY OF LABOUR, GOVERNMENT OF INDIA, PATTOM
THIRUVANANTHAPURAM - 695 004.
3. ASSISTANT PROVIDENT FUND COMMISSIONER
EMPLOYEES PROVIDENT FUND ORGANISATION (EPFO)
SUB-REGIONAL OFFICE, VEEKAY COMPLEX, FORT ROAD
KANNUR - 670 001.
BY ADVS. SRI.N.N.SUGUNAPALAN (SR.)
SMT.T.N.GIRIJA, SC,EPF ORGANISATION
RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 5::
1. P.P.JOSHI
RETIRED SUPERINTENDENT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION
PARUTHIAZHATH HOUSE, ELANKUNNAPUZHA P.O.
KOCHI - 682 503, ERNAKULAM.
2. ANANDAKRISHNAN C.K
RETIRED MANAGER (SHOW ROOM)
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION
T.C 26/1665, HARI NIVAS, UNNIS LANE
PULIMOODU, THIRUVANANTHAPURAM.
3. M.G.SASIDHARAN
RETIRED SALES SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
MANJANATTU SOPANAM, VELLOOR, KOTTAYAM - 686 003.
4. RAVEENDRAN V
RETIRED ASST.REGIONAL MANAGER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
GREEN PARK, CHALA EAST P.O., KANNUR - 670 621.
W.A.No.1422 of 2014
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5. Y.SOMARAJAN
RETIRED SALES SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
THANGAL VILA VEEDU, NELLIMOODU, NELLIMOODU P.O.
THIRUVANANTHAPURAM - 695 524.
6. K.R.RADHAKRISHNAN NAIR
RETIRED SR.PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
DHANASREE, KALLUMOODE GARDENS 105, ANAYERA P.O.
THIRUVANANTHAPURAM.
7. BHAVANI V
RETIRED STORE KEEPER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
ABHAYA NIVAS, KACHANI, NETTAYAM P.O.
THIRUVANANTHAPURAM - 695 013.
8. K.KAMALAM
RETIRED ASST.MANAGER (PRODUCTION)
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
TC-21/774(2), NEDUMCAUD, KARAMANA P.O.
THIRUVANANTHAPURAM - 695 002.
9. C.KUTTAPPAN
RETIRED SR.PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
SREEBHAVAN, KOTTUKKAL, NELLIMOODU P.O.
THIRUVANANTHAPURAM - 695 524.
10. V.R.RAJAN
RETIRED PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
33/3088 A, AISWARYA, VENNALA P.O., KOCHI - 682 028.
11. A.SREENARAYANAN
RETIRED SR.PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
39/1909, ARUL BHAVAN, SREEPURAM ROAD
POOJAPURA, THIRUVANANTHAPURAM - 12.
12. CHITHARANJAN K
RETIRED SR. PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
CHITHIRA, VELIYAM WEST P.O., KOTTARAKKARA
KOLLAM - 691 540.
13. MARIMUTHU K
RETIRED SR.PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
U.SO.C KANTHASWAMY, MUDALI, ROHINI
KODUMBU, PALAKKAD - 678 551.
14. C.X.PHILOMINA
RETIRED STORE KEEPER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
KALARIKKAL HOUSE, MANGAZHA ROAD, VADUTHALA, KOCHI - 23.
W.A.No.1422 of 2014
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15. M.PRABHAKARAN
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
'CHANDRIKA', THAMARACHIRA, NATTUKAL P.O.
CHITTOOR, PALAKKAD - 678 554.
16. RAJENDRAN C
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON, SABARI
PALATHARA, BODHI NAGAR - 153, THATTAMALA P.O.
KOLLAM - 691 020.
17. SHIEK MOHAMMED ALI
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
48/508 MNRA 19, KALLATTUMUKKU, MANACAUD P.O.
THIRUVANANTHAPURAM - 695 009.
18. PEER MOHAMMED S
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
SHAHINA UPSTAIRS, AZHAGIAMANDAPAM, MULAGUMOODU P.O.
KANYAKUMARI - 629 167.
19. SHEELA REMANI K
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION
KRISHNA VILASAM BUNGALOW, VENGANOOR STREET
PALLICHAL P.O., THIRUVANANTHAPURAM.
20. BABU RAJENDRA PRASAD
RETIRED PRODUCTION SUPERVISOR
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
POURNAMI, KUMARAM PUTTUR, PALLAVOOR P.O.
PALAKKAD - 678 688.
21. V.A.MATHEW
RETIRED TIME KEEPER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
ELAYASSERIL (H), PALLAMKULAMA P.O., THIRUVALLA
PATHANAMTHITTA.
22. P.JOHN
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
KAVINAL, TC 10/1684(1), CKRA-117
CHENCHERY,KURUMKULAM ROAD, NALANCHIRA P.O.
THIRUVANANTHAPURAM - 695 015.
23. THAHAKUTTY A
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
VALIACHENKILATH, NO. 31/20 B2, AMBELIPPADAM ROAD
VYTTILA P.O., ERNAKULAM - 19.
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24. T.M.RAJAN
RETIRED REGIONAL MANAGER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
PAYATTUVILA, TC 30/1666, CHALAKKUDY LANE
PETTAH, THIRUVANANTHAPURAM - 695 024.
25. C.KUTTAN
RETIRED ASSISTANT REGIONAL MANAGER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION
CHITHIRA, PARUTHICHAKONAM, BALARAMAPURAM
TRIVANDRUM - 695 501.
26. J.MURALEEDHARAN
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
PRETHEWSHA, T.C 9/2047-2(K-4), KURUP'S LANE
SASTHAMANGALAM, THIRUVANANTHAPURAM - 10.
27. S.VISHWANATHAAYYER
RETIRED SALES ASSISTANT
KERALA STATE HANDLOOM DEVELOPMENT CORPORATON
TC 23/751(1), VYASA 134, VALIACHALAI STREET
THIRUVANANTHAPURAM - 695 036.
28. UNION OF INDIA (UOI)
REPRESENTED BY THE SECRETARY TO GOVT. OF INDIA
MINISTRY OF LABOUR & DEPARTMENT OF EMPLOYMENT
NEW DELHI - 110 001.
29. KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD
REP. BY ITS MANAGING DIRECTOR, PM 32/249
THILLERI ROAD, KANNUR 670 001.
R28 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R29 BY STANDING COUNSEL SRI.M.GOPIKRISHNAN NAMBIAR
R1 TO R27 BY ADV. SRI.K.SASIKUMAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-10-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN & P.D.RAJAN, JJ.
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W.A.NO.1422 of 2014
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Dated this the 20th day of October, 2014
JUDGMENT
K.T.Sankaran, J.
A connected Writ Appeal, namely, W.A.No.1419 of 2014, was disposed of by the judgment dated 16.10.2014. For the sake of convenience, the judgment in W.A.No.1419 of 2014 is extracted below:
"The Writ Appeal is filed challenging the judgment of the learned single Judge in W.P.(C) No.12855 of 2014. Hereinafter, the parties are referred to as per their rank in the Writ Petition.
2. The petitioner was working as Assistant Manager in the Kerala State Financial Enterprises Limited (respondent No.4). He retired from service on attaining the age of superannuation on 28.2.2009. The employees of the fourth respondent are covered by the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'EPF Act') and the Employees' Pension Scheme, 1995 (hereinafter referred to as 'Pension Scheme of 1995'). W.A.NO.1422 OF 2014 :: 2 ::
3. Para 11(3) of the Pension Scheme of 1995 was amended with effect from 16.3.1996. For the sake of convenience, para 11(3) is extracted below:
"11. Determination of pensionable salary.--
(1)....
(2) .......
(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 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."
It is to be noted that in sub-para (3) of paragraph 11, the maximum pensionable salary was at 5,000/- and it was enhanced to 6,500/- as per the amendment which came into force with effect from 1.6.2001.
4. The Provident Fund Organisation took the view W.A.NO.1422 OF 2014 :: 3 ::
that the benefit of the proviso to para 11(3) of the Pension Scheme of 1995 would be applicable only till 1.12.2004. The Provident Fund Organisation in some cases took a contrary view and invited the employees to contribute to the employees' provident fund even after the cut off date so as to enable them to claim the benefit of the proviso to para 11(3) of the Pension Scheme of 1995. The view taken by the Provident Fund Organisation that the cut off date of 1.12.2004 will apply was negatived in the judgment of this Court in W.P.(C) Nos.6643 and 9929 of 2007 (Ext.P3). Ext.P3 judgment was confirmed by the Division Bench in W.A.No.1137 of 2012 (Ext.P4). The judgment of the Division Bench was relied on in several other cases. In W.P.(C) No.19881 of 2013, in the case of a retired employee and who was drawing above 6,500/-, another learned Single Judge of this Court held that the employee was entitled to exercise option even beyond the cut off date prescribed by the Provident Fund Organisation. It was also held in all the judgments referred to above that the cut off date prescribed (1.12.2004) was without jurisdiction. It was also held that the proviso to para 11(3) of the Pension Scheme of 1995 is intended to be operative retrospectively from the date of commencement of the Scheme and, therefore, employees are entitled to the benefit of the proviso if they are able to make good the arrears of contribution. It was also noticed in the W.A.NO.1422 OF 2014 :: 4 ::
judgment of the learned Single Judge in W.P.(C) Nos.6643 and 9929 of 2007 that the Provident Fund Organisation was not able to produce any document justifying fixing of a cut off date and that the EPF Act, Employees' Provident Fund Scheme and the Pension Scheme do not contain any provision enabling the Provident Fund Organisation to fix a cut off date for the purpose of availing the benefit of the proviso to para 11 (3) of the Pension Scheme of 1995.
5. It is stated in the Writ Appeal that challenging the judgment in W.A.No.1137 of 2012, the Provident Fund Organisation has filed S.L.P.No.16867 of 2013 before the Honourable Supreme Court.
6. In the present case, the learned Single Judge relied on the judgment of the Division Bench in W.A.No.1137 of 2012 and granted the reliefs in favour of the petitioner. (However, it is seen that in the operative portion of the judgment instead of the third respondent, it is mentioned as fourth respondent.)
7. The employees are liable to contribute 12% of their salary to the Employees' Provident Fund Account. The employer is also liable to contribute such 12%. Out of such contribution, 8.33% of the salary shall be transferred to the Employees' Pension Fund Scheme W.A.NO.1422 OF 2014 :: 5 ::
Account. If an employee had exercised the option within the cut off date as prescribed by the Provident Fund Organisation, such an employee cannot be denied pension taking into account the benefit resulting from the contribution in respect of the salary above 6,500/-. Persons like the petitioner were denied the benefit of the welfare legislation on technical grounds. The learned Single Judge as well as the Division Bench held that the view taken by the Provident Fund Organisation was not justifiable. In other Writ Petitions also, similar view was taken. However, it is submitted that the judgment of the Division Bench is under challenge before the Supreme Court. That by itself need not deter this Court from disposing of the several other similar matters pending before this Court. It would be sufficient if the interest of the Provident Fund Organisation is protected. It is agreed by the learned counsel appearing for the writ petitioner that in case the Supreme Court takes a contrary view, the writ petitioner is prepared to disgorge all the benefits which he enjoyed as per the direction issued by the learned Single Judge in the Writ Petition which is under challenge in this Writ Appeal. Based on the decision of the Supreme Court, the Employees' Provident Fund Organisation would be entitled to get the accounts reworked and the pension recomputed and, for that purpose, we hold that it would be sufficient for the Employees' Provident Fund W.A.NO.1422 OF 2014 :: 6 ::
Organisation to file a memo in this Writ Appeal. In such an eventuality, the Writ Appeal will be posted for further orders. By adopting such a course, the interests of the writ petitioner and that of the Employees' Provident Fund Organisation would be protected. In the peculiar facts and circumstances of the case, we grant four months' time to the appellant to comply with the directions issued by the learned Single Judge.
The Writ Appeal is disposed of as above." In view of the judgment in W.A.No.1419 of 2014, this Writ Appeal is also disposed of in the same lines. The observations and directions contained in the judgment in W.A.No.1419 of 2014 will apply to the parties in this appeal as well.
(K.T.SANKARAN) Judge (P.D.RAJAN) Judge ahz/