Rajasthan High Court - Jaipur
Sh Vinod Kumar Sharma And Ors vs Chairman Central Board Of Trust And Ors on 11 December, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 17616/2017
Sh Vinod Kumar Sharma And Ors
----Petitioner
Versus
Chairman Central Board Of Trust And Ors
----Respondent
Connected With S.B. Civil Writs No. 17569/2016 M P Gaur
----Petitioner Versus U O I And Ors
----Respondent S.B. Writ Review No. 276/2017 Alok Vermaandors
----Petitioner Versus U O I And Ors
----Respondent S.B. Writ Review No. 280/2017 Jagdish Prasad Meena And Ors
----Petitioner Versus U O I And Ors
----Respondent S.B. Writ Review No. 285/2017 Mohan Lal Koserwal And Ors
----Petitioner Versus U O I And Ors
----Respondent S.B. Writ Review No. 296/2017 Nand Singh Tanwar And Ors
----Petitioner Versus U O I And Ors
----Respondent S.B. Writ Review No. 297/2017 (2 of 20) [CW-17616/2017] Dashrath Singh And Ors
----Petitioner Versus U O I And Ors
----Respondent S.B. Civil Writs No. 5435/2017 Naval Bihari Sharma And Ors
----Petitioner Versus Union Of India And Ors
----Respondent S.B. Civil Writs No. 11110/2017 Hmt Ex-Employees Welfare Society
----Petitioner Versus Chairman Central Board Of Trustees Ors
----Respondent S.B. Civil Writs No. 13599/2017 Prafulla Kumar Choudhary And Ors
----Petitioner Versus Secretary Govt Of India And Ors
----Respondent S.B. Civil Writs No. 14348/2017 Pramod Kumar Sharma And Ors
----Petitioner Versus U O I And Ors
----Respondent S.B. Civil Writs No. 14349/2017 Anil Kumar Sharma And Ors
----Petitioner Versus U O I And Ors
----Respondent S.B. Civil Writs No. 15465/2017 Jale Singh Meena And Ors
----Petitioner Versus Union Of India And Ors
----Respondent (3 of 20) [CW-17616/2017] S.B. Civil Writs No. 17806/2017 Kailash Chand Meena And Ors
----Petitioner Versus Union Of India And Ors
----Respondent S.B. Civil Writs No. 17808/2017 Neeraj Bhargava And Ors
----Petitioner Versus Union Of India And Ors
----Respondent S.B. Civil Writs No. 7271/2018 Rsrtc Retired Employees Association
----Petitioner Versus Union Of India And Ors
----Respondent S.B. Civil Writs No. 25350/2018 Kesri Lal S/o Shri Kanhaji
----Petitioner Versus Union Of India
----Respondent For Petitioner(s) : Mr. Deepak Goyal, Adv.for review petitioners-PF Department Mr. S.K.Bhargava, Adv.
Mr. Laxmi Kant, Adv.
Mr. Suresh Kashyap, Adv.
Mr. H.V.Nandwana, Adv.
Mr. Vinodi Lal Mathur, Adv. for writ petitioners.
For Respondent(s) : Mr.Rajendra Prasad, AAG & Senior Advocate assisted by Mr. Atul Singh Chauhan, Adv. for the State Mr. Virendra Lodha, Sr. Adv. with Mr. Jai Lodha, Adv. for RIICO Mr. N.K.Maloo, Sr. Adv. assisted by Mr. Vishnu Bohra, Adv. for Instrumentation Ltd.
Mr. Anuroop Singhi, Adv. with Mr. Tarun Verma & Mr. Vinayak Joshi, Adv., for RSRTC (4 of 20) [CW-17616/2017] HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order Reserved on 28/11/2018 Pronounced on 11/12/2018 REPORTABLE
1. Since the question involved in the aforesaid review petitions as well as writ petitions is identical, the same are being decided by this common order.
2. This Court vide its order dated 19/05/2017 had decided the bunch of writ petitions as counsel for both the parties agreed that the issue involved in the bunch of writ petitions was no more res-integra in view of the judgment passed by the Supreme Court in the case of R.C. Gupta & ors. Vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization & ors. (Civil Appeal Nos.10013- 10014/2016), decided on 04/10/2016 and thereupon, quoting the paras of the judgment in the case of R.C. Gupta & ors. (supra), the petitioners in the bunch of writ petitions were granted liberty to submit option in terms of Clause 11(3) of the Pension Scheme and the Provident Fund Commissioner was directed to release all the consequential benefits accordingly as directed by the Supreme Court in the case of R.C. Gupta & ors. (supra).
3. The Regional Provident Fund Commissioner, Employees Provident Fund Organization and the Central Provident Fund Commissioner (Pension), Employees Provident Fund Organization alongwith Secretary, Ministry of Labour and (5 of 20) [CW-17616/2017] Employment, Department of Employment, Government of India have preferred the aforesaid review petitions seeking review of the order dated 19/05/2017 (supra) passed by this Court in the bunch of writ petitions and it has been stated in the review petitions that the order dated 19/05/2017 was sent to the Office of Central Provident Fund Commissioner, New Delhi and the matter was examined and it was found that case of R.C. Gupta & ors. (supra) is not applicable to the bunch of writ petitions. Accordingly, the respondents-review petitioners submit that they do not agree in the facts of the case in hand before this Court that the judgment of the Supreme Court in the case of R.C. Gupta & ors. (supra) would apply. The respondents-review petitioners further submit as under:-
(A) Under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "1952 Act"), 10% or 12% of the basic wages including dearness allowance etc. is required to be deposited in the Provident Fund Account of an employee as the employer's share. When the 1952 Act was enacted there was no provision for pension. However, by amendment w.e.f. 16.11.1995 Sub-section 6A was inserted, which provided Employees' Pension Scheme to be framed for payment of pension to the retiring employees.
(B) For the purpose of constituting the corpus of the pension fund, out of the contribution u/s. 6 of the 1952 Act, 8.33% of the employer's contribution was required to be remitted to Pension Fund.
(6 of 20) [CW-17616/2017] (C) It is stated that the Pension Scheme, which was framed to give effect to the provisions of Section 6A contains inter alia Clause 11 of the Employees' Pension Scheme, 1995 (hereinafter referred to as "Pension Scheme"), which deals with determination of pensionable salary. The Pension Scheme came into effect from 16.11.1995. Clause 11 (3) of the Pension Scheme provided for maximum pensionable salary limited to Rs. 5000/-, which was later w.e.f. 01.06.2001 enhanced to Rs.
6500/- per month and presently it is Rs. 15000/- per month. A proviso was added to Clause 11 (3) of the Pension Scheme w.e.f. 16.03.1996 permitting an option to the employer and an employee for contribution on salary exceeding Rs. 5000/- pm, which later was enhanced to Rs. 6500/- per month w.e.f. 01.06.2001. It provided that 8.33% share of the employers thereof would be remitted into the Pension Fund and pensionable salary shall be based on such higher salary. (D) It would be relevant to point out that vide notification No. GSR 609(E) dated 22.08.2014, the proviso to Clause 11 (3) of the Pension Scheme was deleted with effect from 01.09.2014. It is therefore, most respectfully stated that the benefit of proviso, cannot be extended to any employee afresh after 01.09.2014 if he had not exercised the option earlier. (E) It is stated that under Section 17 of the 1952 Act, the appropriate Government has the power to exempt an establishment from any of the three schemes viz. (1) The Employees' Provident Funds Scheme, 1952, (2) The Employees' Deposit-Linked Insurance Scheme, 1976 and (3) (7 of 20) [CW-17616/2017] The Employees' Pension Scheme, 1995, subject to conditions set out in para 27AA of the EPF Scheme, 1952. (F) It is stated that in the case in hand, the concerned establishment had applied for exemption from Provident Funds Scheme, which was granted by the appropriate Government in 1974.
(G) It is stated that for such establishment who have been granted exemption u/s. 17 of the 1952 Act, the judgment of Hon'ble Supreme Court in CA Nos. 10013-10014/2016 cannot be made applicable as the contribution under the Provident Fund does not remain with the Central Board of Trustees, EPFO, which the Hon'ble Supreme Court had considered while deciding the said case observing that "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. .........". It is most respectfully stated that in case of exempted establishment, it would not be a case of adjustment of accounts as the contribution is deposited with the PF Trust of the exempted establishment and not with the EPFO. The appellant employees in the case of R.C. Gupta before the Hon'ble Supreme Court were from unexempted establishment i.e. an establishment making PF contribution in the statutory Provident Fund managed by EPFO. The employers contribution of 12% under the Act in respect of the said employees was on actual salary and not on the statutory ceiling limit of either Rupees 5000/- or 6500/-. Exercise of option under Para 26(6) of the EPF Scheme, 1952 is a (8 of 20) [CW-17616/2017] precursor to exercise of option under proviso to clause 11(3) of the Pension Scheme. The appellant employee in the aforesaid case had exercised option under para 26(6) of the EPF Scheme and contribution on full salary was received in the Statutory Provident Fund."
4. Thus, it is submitted that due to miscommunication and misunderstanding the problem in following the judgment of the Supreme Court in case of exempted establishment could not be putforth in an appropriate manner and the order dated 19/05/2017 may be reviewed.
5. It is stated that after the Head Quarter issued an amended circular dated 31-5-2017 to this effect that the R. C. Gupta's case will not be applicable on those member of EPS, 1995 whose contribution on full salary has not been received in the account of the EPFO at the respective periods of contribution and shall not be eligible for benefits contemplated in the judgment as per the aforesaid Hon'ble Supreme Court."
6. Learned counsel for the respondents-review petitioners has further stated that on account of the order passed by the Court, the pension scheme has already taken up plunge of Rs.4,43,45,896/- on account of arrears paid in respect of 1175 pensioners and nearly in every case the pension arrears paid to the pensioners is much more than the amount of contribution and the interest remitted by the pensioners.
7. It has been further stated that there are 24,64,500 existing member pensioners of un-exempted establishments (9 of 20) [CW-17616/2017] who retired prior to 01/09/2014. Out of these, 5,83,352 existing member pensioners were contributing on higher wages to the provident fund and if all of them opt for revision of pension, in light of the judgment of the Supreme Court in the case of R.C. Gupta & ors. (supra), a huge impact would come on the department and the respondents will have to manage from the pool of contribution of the employees.
8. Thus, it is submitted that higher pension, over and above the wage ceiling, if allowed, the sustainability of pension fund will be in question and the surplus available in the pension fund of Rs.5027 crores will be wiped out and therefore, the review petitions have been preferred.
9. Per-contra, learned counsel for the writ petitioners as well as the counsel appearing for the respondents have submitted that the case of the petitioners in the bunch of writ petitions is not distinguishable from the case which was there before the Supreme Court and considered by the Supreme Court in its judgment passed in the case of R.C. Gupta & ors. (supra). Learned counsel for the writ petitioners and other respondents have pointed out that merely because the amount of their share is being deposited with the Provident Fund Trust of the Exempted Establishments and not directly with the EPFO, the situation would not change. In the cases which have been relied upon by the Supreme Court while rendering judgment in the case of R.C. Gupta & ors. (supra), the employees were depositing the amount with the Provident Fund Trust of the Exempted Establishment namely;
(10 of 20) [CW-17616/2017] Instrumentation Limited. The cases, which were decided by the Kerala High Court against which SLP was dismissed and noticed by the Apex Court in the case of R.C. Gupta & ors. (supra) in Para 8 of its judgment, were in relation to Instrumentation Limited and the appeal preferred by the Regional Provident Fund Commissioner was rejected by the Supreme Court on 31/03/2016. A beneficial scheme, as opined by the Apex Court, ought not to be allowed to be defeated on such a technical ground. Since the employer and the petitioners have deposited 12% of their actual salary with the PF Trust, 8.33% of the actual salary deposits has to be diverted to the Pension Fund and not 8.33% of Rs.5,000/- or Rs.6,500/- per month. Merely because the amount is not deposited with the EPFO but with the PF Trust of the Exempted Establishments, the ratio of the judgment in the case of R.C. Gupta & ors. (supra) would not be ignored.
10. While the aforesaid review petitions were pending, the other similarly situated employees have filed the aforesaid connected writ petitions praying for directing the PF Commissioner to instruct the employer to make joint request under clause 11(3) Pension Scheme for altering the option for making deduction of Provident Fund Contribution from the entire salary and the amount lying with the Provident Fund Trust of the Exempted Organization be transferred to the extent of 8.33% to the pension fund of the Provident Fund Organization for the purpose of release of monthly pension under the Pension Scheme, 1952. The petitioners have also (11 of 20) [CW-17616/2017] submitted that they are ready to deposit back the Provident Fund Contribution received upto the extent of 8.33% out of the total PF contribution received so that the same may be transferred to the EPFO for release of the monthly pension under the Pension Scheme, 1952 in terms of the directions issued by the Supreme Court in the case of R.C. Gupta & ors. (supra).
11. Learned Senior Counsel appearing for the Instrumentation Limited, an Exempted Institution as well as the counsel appearing for the RIICO and RSRTC which are also exempted institutes agree in principle to deposit with the EPFO the Provident Fund Amount after the same is returned back by the concerned employees.
12. Heard learned counsel for the parties.
13. In the case of State of Rajasthan and anr. Vs. Surendra Mohnot and ors: 2014(2) WLC (SC) Civil 358, the Apex Court was examining a similar issue where the order was passed on agreement of the counsel for the parties and the question arose was whether a review would be maintainable by one of the parties having conceded the decision before the Court. Examining the said aspect, the Apex Court held that it is well settled in law that there is no estoppel in law. The consent given in a Court that a controversy is covered by judgment which has no applicability whatsoever and pertains to a different field, cannot stop a (12 of 20) [CW-17616/2017] party from raising the point that the same was erroneously cited.
14. In the case of Union of India Vs. Heera Lal:
1996(10) SCC 574, it has been held that the concession made by the Government Advocate on question of law could not be said to be binding upon the Government.
15. The power of review under Article 226 of the Constitution is an inherent power of the High Court as held by the Apex Court in the case of Shivdeo Singh and others Vs. State of Punjab and others: AIR 1963 (SC) 1909. The power can be exercised as plenary jurisdiction to prevent miscarriage of justice or to correct grave palpable errors committed by it. However, as a word of caution, it is to be noted that the power of review is not to be confused with the appellate power and a review by no means is an appeal in disguise. Finality of a judgment delivered by the Court would not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
16. Keeping in view the aforesaid guidelines, this Court finds that the order passed by the Court dated 19/05/2017, while noticing the judgment passed by the Supreme Court in the case of R.C. Gupta & ors. (supra) and holding that the ratio of the said judgment is applicable, allowed the bunch of writ petitions. The facts of the cases were not noticed in view of the consent of counsel for both the parties. The respondents- review petitioners by way of these review petitions have (13 of 20) [CW-17616/2017] sought to distinguish the case of the petitioners herein from the facts of the case in R.C. Gupta & ors. (supra) as a ground for review of the order. Thus, it would be appropriate to notice certain facts of the writ petitions. The petitioners in the writ petitions were employees of Instrumentation Limited, Kota and though the salary of the petitioners exceeded the limits as prescribed under Paragraph 2(f) of the Employees Provident Fund Scheme, 1952, as well as Clause 11(3) of the Employees Pension Scheme, yet the employer made provident fund contributions calculating the employees' share and employers' share by reckoning the actual total salary without considering the ceiling limit. However, the amount remitted to the petitioners' pension account was the amount reckoning the pay limit to the ceiling prescribed i.e. Rs.6,500/-. The remaining amount remained with the PF Trust of the Instrumentation Limited which is one of the exempted institution in terms of Section 17 of the Act of 1952. Thus, 8.33% of the ceiling limit was deposited with the pension fund being regulated by the EPFO.
17. Similar situation was arising with the employees working in the Instrumentation Limited at Kota and the Kerala High Court in the matters of various employees passed a judgment in the case of M. Sreenivasan & ors. Vs. Union of India & ors. [W.P. (C) No.11183/2015], decided on 07/04/2015 directing as under:-
5. Following the binding precedents, this writ petition is also disposed of directing that the (14 of 20) [CW-17616/2017] 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 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. With respect to retired employees, who have drawn their retirement benefits by way of Provident Fund proportionate amounts along with interest accrued in the account as also that accrued after the withdrawal of the Provident Fund amounts, have to be refunded to the Provident Fund Organization. The retired employees shall 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.
7. It is also stated that the judgment passed in the same lines in other writ petitions were confirmed by a Division Bench in W.A No. 1442 of 2014. But, however, leaving the question open to be considered depending upon the result of the petitions filed before the Hon'ble Supreme Court.
That reservation shall be there in the present writ petition also.
18. The SLP No.7074/2014 preferred was rejected by the Supreme Court vide its order dated 31/03/2016 and the aforesaid directions were upheld and the said aspect was noticed while delivering the judgment in the case of R.C. Gupta & ors. (supra). Thus, merely because the amount of PF is deposited in the PF Trust of the Exempted Organization and not with the EPFO, the ratio of the judgment passed in the case of R.C. Gupta & ors. (supra) would not alter and has to be applied equally to all the employees who may be either (15 of 20) [CW-17616/2017] depositing their share in the PF Trust of an exempted organization or with the EPFO directly. Accordingly, the claim of the review petitioners in the aforesaid review petitions that the order should be reviewed on the ground of the aforesaid distinction is not made out. It is not a case where a different judgment would be applicable to the facts of the case and this Court finds that the judgment passed in the case of R.C. Gupta & ors. (supra) would be squarely applicable to the facts of the present cases also.
19. The judgment passed by the Apex Court takes into its ambit and considering the fact that employees may have already received their provident fund amount and therefore, the directions have been issued accordingly taking into consideration all the aspects.
20. In the other writ petitions, which have been heard alongwith these review petitions, this Court finds that the only difference of facts is in relation to the respondents therein namely; RIICO and RSRTC which are also exempted organizations in terms of Section 17 of the Act of 1952. Further, once a judgment has been passed by the Supreme Court, it would have its applicability to all the organizations uniformly. Thus, it would be useful to quote the relevant paras of the judgment of the Supreme Court in the case of R.C. Gupta & ors (supra) which are reproduced as under:-
"8. Reading the proviso, we find that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option (16 of 20) [CW-17616/2017] exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer- employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme. A somewhat similar view that has been taken by this Court in a matter coming from the Kerala High Court, wherein the Special Leave Petition (C) No. 7074 of 2014 filed by the Regional Provident Fund Commissioner was rejected by this Court by order dated 31.3.2016. A beneficial Scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of ' 5,000/- or ' 6,500/- per month, as the case may be.
9. A further argument has been made on behalf of the Provident Fund Commissioner that the Appellant-employees had already exercised their option under paragraph 26(6) of the Employees' Provident Funds Scheme. Paragraph 26(6) is in the following terms:
26. Classes of employees entitled and required to join the fund xxx xxx xxx (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 Subs. By Notification No. S350/2/2/96-SS II (sic S-35012/2/96-
SS II ), dated 4th May, 2001, for "rupees five thousand". Earlier the words "rupees five thousand were substituted by G.S.R. 718(E) dated 23rd September, 1994, for the words "rupees three thousand and five (17 of 20) [CW-17616/2017] hundred" (w.e.f. 1.10.1994) [six thousand five hundred 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].
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.
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 benefited 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 (18 of 20) [CW-17616/2017] terms of this order will be granted to the said employees."
21. The said judgment is binding on all the parties.
22. It is also noticed that the Provident Fund Department, in these review petitions, itself has admitted of having released the amount in favour of 1175 pensioners upto 30/06/2017, hence no distinction can be drawn between the contributors to the Pension Scheme.
23. Thus viewed, the action of the respondents in denying the benefit to the pensioners who are members of the Pension Scheme, is held to be unjustified. While reiterating the order passed by this Court earlier, the petitioners are granted liberty to submit option before the Provident Fund Commissioner under Clause 11(3) of the Pension Scheme and the Provident Fund Commissioner shall thereafter obtain the amount from the respective PF Trust as per the said ratio of 8.55% and thereafter release all consequential benefits accordingly in terms of and as directed by the Apex Court hereinabove.
24. All the petitioners would have to submit an application for seeking of an option for receiving pension on the full salary and only after their depositing the PF amount which they have received from their concerned trust to the extent of 8.33% and the benefit of this judgment would be subject to their depositing the amount already received by them from PF Account of the PF Trust. Upon their depositing the said amount (19 of 20) [CW-17616/2017] of 8.33% as calculated by the PF Trust, the PF Trust shall accordingly transfer the same to the EPFO Pension Fund and the pension shall accordingly be calculated and released. The exercise in this regard shall be completed by the respondents within a period of four months.
25. One other argument has been raised by learned counsel in relation to the existing employees i.e. those who are still in service and have not retired. It is submitted that proviso to Clause 11(3) of the Pension Scheme was deleted vide notification dated 22/08/2014 w.e.f. 01/09/2014 and therefore, the benefit of proviso cannot be extended to any employee after 01/09/2014 if he had not exercised the option earlier. In the opinion of this Court, such a notification will not apply in view of the judgment passed by the Supreme Court in the case of R.C. Gupta & ors (supra). It is also noted that the Division Bench of High Court of Kerala vide its judgment dated 12/10/2018 has also set aside the Employees Pension Amendment Scheme, 2014 issued vide notification dated 22/08/2014 whereby the aforesaid proviso was deleted. Even otherwise, the same could not have been applied to the existing employees who are already members of the Scheme and could only apply if at all to employees who become members of the Scheme after 2014 notification. In view thereof, the benefit of this judgment would also be applicable to the existing employees who are yet to retire.
(20 of 20) [CW-17616/2017]
26. With the aforesaid observations/directions, all these writ petitions stands allowed and the review petitions are dismissed. No order as to costs.
(SANJEEV PRAKASH SHARMA),J Raghu Powered by TCPDF (www.tcpdf.org)