Rajasthan High Court - Jodhpur
Rsmm Limited Employees Welfare Society vs Union Of India on 22 April, 2019
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15688/2018
RSMM Limited Employees Welfare Society, Through its
President - Dr. P.C. Purohit S/o Shri Amar Nath Purohit, Aged
About 64 Years, Resident Of 10/607, Chopasni Housing Board,
Jodhpur (Raj.).
----Petitioner
Versus
1. Union Of India, Through Its Secretary, Ministry Of Labour
And Employment, Government Of India, Bhavishya Nidhi
Bhawan, 14-Bhikaji Kama Place, New Delhi- 110066.
2. Regional Provident Fund Commissioner-I (Pension),
Government Of India, Bhavishya Nidhi Bhawan, 14-
Bhikaji Kama Place, New Delhi- 110066.
3. Regional Provident Fund Commissioiner, Chitrakoot Nagar,
Bhuwana, Udaipur (Raj.).
4. Assistant Provident Fund Commissioner (Law), Regional
Office, 130 Pashchim Pal Vistar Yojna, Jodhpur.
5. Rajasthan State Mines And Minerals Ltd., Through Its
Managing Director, 4, Meera Marg, Udaipur.
6. Rajasthan State Mines And Minerals Ltd. Cpf Trust,
Through Trustee Secretary, 4, Meera Marg, Udaipur.
----Respondents
For Petitioner(s) : Mr. M.R. Singhvi, Sr. Advocate assisted by
Mr. Bhavit Sharma.
For Respondent(s) : Mr. U.S. Gehlot for respondent Nos.2 to 4.
Mr. Pradhuman Singh for respondent
Nos. 5 & 6.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
22/04/2019
This writ petition has been filed by the petitioner aggrieved
against the circular dated 31.05.2017 (part of Annex.-8), order
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dated 20.08.2018 (Annex.-9) and notification dated 22.04.2014
(Annex.-11).
The relief qua the notification dated 22.08.2014 (Annex.-11),
is 'not pressed' by the petitioner.
It is submitted by learned counsel for the petitioner that the
issue raised in the present writ petition is squarely covered by
judgment of this court in Dashrath Singh Hada & Ors. v. Union of
India & Ors.: S.B. Civil Writ No. 17639/2016, decided on
19.05.2017 at Jaipur Bench and Alok Verma & Ors. v. Union of
India & Ors.: S.B. Writ Review No. 276/2017, decided on
11.12.2018 at Jaipur Bench.
Further submissions have been made that identical matter
was decided by Kerala High Court in P. Sasikumar & Ors. v. Union
of India & Ors.: Writ Petition (C) No. 13120/2015 on 12.10.2018,
against which, Special Leave Petition No. 9610/2019 has been
rejected by Hon'ble Supreme Court on 01.04.2019 and, therefore,
the present writ petition may be allowed in light of the judgment
in the case of Dashrath Singh Hada (supra) and Alok Verma
(supra) and similar directions be issued.
Learned counsel appearing for the respondents No. 2, 3 and
4 is not in a position to distinguish the judgments in the case of
Dashrath Singh Hada (supra) and Alok Verma (supra).
Learned counsel appearing for the respondents No. 5 and 6
does not oppose the prayer made by the petitioner.
This Court in the case of Dashrath Singh Hada (supra), inter
alia observed and directed as under:-
"1. Heard learned counsel for the parties.
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2. Counsel for both the parties agree that the issue is
no more res-integra in view of the judgment passed
by the Apex Court in the case of R.C. Gupta & Ors.
Etc. Vs. Regional Provident Fund Commissioner
Employees Provident Fund Organization & Ors. Etc.
(Civil Appeal Nos. 10013-10014/2016), decided on
04.10.2016 wherein it was held 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
employee 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 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 employee. 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."
3. For the reasons noted above the writ petitions are
allowed.
4. 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 release
all consequential benefits accordingly in terms of and
as directed by the Apex Court hereinabove. The
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exercise may be undertaken within period of two
months from the date of submission of certified
copy."
In the review petition filed raising the issue pertaining to
exempted establishments, which has been made the basis by the
respondents for denying the benefit to the petitioner as well, in
the case of Alok Verma (supra), it has been inter alia observed
and directed as under:-
"18. The SLP No.7074/2014 preferred was
rejected by the Supreme Court vide its order dated
31/03/2016 and the aforesaid direction 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 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.
........................................
........................................
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 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, (Downloaded on 28/06/2019 at 12:06:00 AM) (5 of 5) [CW-15688/2018] 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."
In view of the above factual and legal position, the writ petition filed by the petitioner is allowed in terms of the judgments in the case of Dashrath Singh Hada (supra) and Alok Verma (supra) with similar directions.
The needful be done by the respondents within a period of two months from the date of this order.
(ARUN BHANSALI),J 244-PKS/-
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