Cont.Case (C) No.1715 of 2019, In the High Court of Kerala at Ernakulam

1 Cont.Case (C)No.1715 of 2019 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945 ``` ``` CON.CASE(C)NO.1715 OF 2019 ``` ``` ARISING OUT OF THE JUDGMENT DATED 12.10.2018 IN WP(C)NO.19899 OF 2015 OF THE HIGH COURT OF KERALA ``` ## **`PETITIONERS/PETITIONERS`** ``` 1,5,6,7,8,9,11,12,15,17,19,25,31,33,37,50,53,54,59,60,61,72,74,76,87,88 ,91,97,99,110: ``` - **`1 VELAYUDHAN PILLAI.P.S AGED 59 YEARS`** - **`EPF ACCOUNT NO. KR/KCH/0002357/000/0004653, PRESENTLY RESIDING AT ANUGRAHA, 14/270, VATTAPPARUTHA, VADACODE, KANGARAPPADY, ERNAKULAM-682 021`** - **`2 AMBUJAKSHAN T.P, EPF ACCOUNT NO. KR/KCH/0002357/0004518, PRESENTLY RESIDING AT THERAMBATH HOUSE, ATHANI P.O, ANGAMALY, ERNAKULAM-683 585`** - **`3 MOHANACHANDRAN P.V, EPF ACCOUNT NO. KR/KCH/0002357/0004155, PRESENTLY RESIDING AT SAYOOJYA, AISWARYA LANE, THOPPIL, THRIKKAKKARA P.O, ERNAKULAM - 682 021`** - **`4 HARIDAS A.S, EPF ACCOUNT NO. KR/KCH/0002357/0004519, PRESENTLY RESIDING AT AYCAKATHU PUSHPAKAM, PEECHANIKAD, PULIYANAM P.O, ANGAMALY-683 572`** - **`5 BABURAJ P, EPF ACCOUNT NO. KR/KCH/0002357/0004468, PRESENTLY RESIDING AT PRASANTHI, MNRA-22, KOLLAMMURI ROAD, EDAPPALLY TOLL, EDAPPALLY P.O, ERNAKULAM-682 024`** - **`6 UDAYAPPAN K.N., EPF ACCOUNT NO. KR/2357/4413, PRESENTLY RESIDING AT NIRMALAM, NORTH ARYAD P.O, ALAPPUZHA-688 538`** - **`7 K. RAMACHANDRAN NAIR,`** ``` EPF ACCOUNT NO. KR/KCH/0002357/000/0004362, PRESENTLY RESIDING AT ANUGRAHA, V/223, MEC/VIKAS ROAD, THRIKKAKARA P.O, PIN-682 021. ``` - **`8 K. GOPI MOHANAN, EPF ACCOUNT NO. KR/2357/4438,PRESENTLY RESIDING AT SRUTHI, THURUTHISSERY, MEKKAD P.O, ATHANI, ERNAKULAM-683 589`** 2 Cont.Case (C)No.1715 of 2019 - **`9 HARIHARAN C.S,`** - **`EPF ACCOUNT NO. KR/KCH/0002357/000/0004580, PRESENTLY RESIDING AT CHERUSSERY HOUSE, HARITHA, THAIKKATTUKARA P.O, ALUVA, ERNAKULAM-683 106`** - **`10 T.O. VAKKAN, EPF ACCOUNT NO. KR/KCH/0002357/000/0004384, PRESENTLY RESIDING AT THUNDIYIL HOUSE, THAIKKATTUKARA P.O, ALUVA, ERNAKULAM-683 106`** - **`11 NAZER M, EPF ACCOUNT NO. KR/KCH/0002357/000/0004829, PRESENTLY RESIDING AT MADASSERY HOUSE, NEDUMBASSERY P.O, ALUVA, ERNAKULAM-683 585`** - **`12 MICHAEL BENEDICT TR, EPF ACCOUNT NO. KR/KCH/0002357/000/0004740, PRESENTLY RESIDING AT THOTTUKATTU HOUSE, PALARIVATTOM, COCHIN, 682 025`** - **`13 RAMDAS PS, EPF ACCOUNT NO. KR/KCH/0002357/000/0004750, PRESENTLY RESIDNG AT PAVITRAM, CHAITHANYA, COMPANIPPADY, ALUVA----`** - **`14 ANILAN C.S, EPF ACCOUNT NO. KR/2357/4587, PRESENTLY RESIDING AT CHAKKANAD HOUSE, KESARI ROAD, NORTH PARAVUR, ERNAKULAM-683 513.`** - **`15 BIDAR C.M, EPF ACCOUNT NO. KR/KCH/0002357/000/0004684, PRESENTLY RESIDING AT CHETTIPPARAMBIL HOUSE, PARINAMAM ROAD, KALOOR P.O, KOCHI-682 017`** - **`16 VELAYUDHAN PILLAI A, EPF ACCOUNT NO. KR/KCH/0002357/000/0004476, PRESENTLY RESIDING AT SREERANJINI, AMBATTUKAVU, THAIKKATTU, ALUVA-683 106`** - **`17 KASSIM K.M., EPF ACCOUNT NO. KR/KCH/0002357/000/0004585, PRESENTLY RESIDING AT KOTTAMOOLA, PALLILAMKARA, HMT COLONY P.O, KALAMASSERY, PIN683 503`** - **`18 S. PARAMESWARA IYER, EPF ACCOUNT NO. KR/KCH/0002357/0004590, PRESENTLY RESIDING AT 279/5, GREEN GARDENS, ANGAMALY, ERNAKULAM-683 572.`** - **`19 GIREESH K, EPF ACCOUNT NO. KR/KCH/0002357/000/0004487, PRESENTLY RESIDING AT KALAPPURAPUTHANVEEDU, PCRA 10, POOPPANI ROAD, PERUMBAVOOR-683 542.`** - **`20 ARAVINDHAKSHAN T.K, EPF ACCOUNT NO. KR/KCH/0002357/000/0004510, PRESENTLY RESIDING AT THUNBIPADATH HOUSE, NEAR MARANA RAILWAY GATE, EROOR P.O, THRIPPUNITHURA, ERNAKULAM -682 306.`** - **`21 JOHN K.V, EPF ACCOUNT NO. KR/KCH/0002357/000/0004524, PRESENTLY RESIDING AT KANAPPILLY HOUSE, MANJUMMEL POST, 683 501.`** - **`22 M. BADARUDEEN, EPF ACCOUNT NO. KR/KCH/0002357/000/0004345, PRESENTLY RESIDING`** 3 Cont.Case (C)No.1715 of 2019 ``` AT HOUSE NO. 33/1122, NEAR AL AMEEN PUBLIC SCHOOL, EDAPPALLY P.O, COCHIN-24. ``` - **`23 JOSE V.O,`** ``` EPF ACCOUNT NO. KR/KCH/2357/4531, PRESENTLY RESIDING AT VAZHAPARAMBAN HOUSE, KARIYAD, MEKKAD P.O, PIN-683 589 ``` - **`24 ASHOK KUMAR C.K, EPF ACCOUNT NO. KR/KCH/0002357/000/0004402, PRESENTLY RESIDING AT ASWATHY, CHANDRATHIL ROAD, EDAPPALLY, KOCHIN-24.`** ``` 25 VARGHESE GEORGE, EPF ACCOUNT NO. KR/KCH/0002357/000/0004604, PRESENTLY RESIDING AT OONNUKALLIL HOUSE, CMC 12/246 A, CHERTHALA-688 524 ``` ``` 26 MOHANAN E.A, EPF ACCOUNT NO. KR/KCH/0002357/000/0004625, PRESENTLY RESIDING AT EDAVAZHIKKAL, AROOR P.O, AROOR, PIN-688 534 ``` - **`27 PURUSHOTHAMAN K, EPF ACCOUNT NO. KR/2357/4665, PRESENTLY RESIDING AT SAROVARAM, AISWARYA LANE, THOPPIL, THRIKKAKKARA P.O, PIN-682021.`** ``` 28 MOHANAN K, EPF ACCOUNT NO. KR/KCH/0002357/000/0004466, PRESENTLY RESIDING AT KODIATH SREEKOVIL, CHETTARIKAL, KORATTY SOUTH, THRISSUR-680 308. ``` - **`29 MADHAVANKUTTY A, EPF ACCOUNT NO. KR/KCH/0002357/000/0004570, PRESENTLY RESIDING AT LAVANYAM, TC 7/756, RAMAVARMAPURAM P.O, THRISSUR-680 631`** - **`30 PADMAKUMAR V,`** ``` EPF ACCOUNT NO. KR/2357/4370, PRESENTLY RESIDING AT PALLAVI, MOLOTHU ROAD, UNICHIRA, THRIKKAKKARA-682 021 ``` ``` BY ADVS. ``` ``` SHRI.P.THOMAS GEEVERGHESE SHRI.TONY THOMAS (INCHIPARAMBIL) SHRI.E.S.FIROS ``` ## **`RESPONDENT/2ND RESPONDENT:`** ## **`ANDREW PRABHU`** ``` REGIONAL PROVIDENT FUND COMMISSIONER, EPFO, ERNAKULAM REGIONAL OFFICE, 36/685A, BHAVISHYA NIDHI BHAVAN, P.B. NO. 1895, KALOOR, ERNAKULAM DISTRICT, KOCHI-682 017 ``` ## **`BY ADV SHRI. NITA N.S`** ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 Cont.Case (C)No.1715 of 2019 ## **JUDGMENT** Anil K. Narendran, J. The petitioners, who are petitioners 1, 5, 6, 7, 8, 9, 11, 12, 15, 17, 19, 25, 31, 33, 37, 50, 53, 54, 59, 60, 61, 72, 74, 76, 87, 88, 91, 97, 99, and 110 in W.P.(C)No.19899 of 2015, have filed this Contempt Case, invoking the provisions under Section 12 of the Contempt of Courts Act, 1971 alleging willful disobedience of the directions contained in Annexure A1 judgment dated 12.10.2018 in that writ petition along with W.P.(C)No.13120 of 2015 and connected matters. 2. The SLP filed by the Employees Provident Fund Organisation against the judgment dated 12.10.2018 in W.P.(C) No.13120 of 2015 and connected cases were dismissed by the Apex Court vide order dated 01.04.2019 in SLP (C) - Diary No.9610 of 2019. That order was recalled and the Apex Court rendered a detailed judgment dated 04.11.2022 in Civil Appeal Nos.8143 of 2022 and 8144 of 2022 and connected matters- ## **Employees Provident Fund Organisation v. Sunil Kumar B.** **[2022 (7) KHC 12 : AIR 2022 SC 5634]** . In that judgment, the Apex Court held that the provisions contained in Notification No.GSR 609(E) dated 22.08.2014 is legal and valid. The directions contained in paragraph 44 of the said judgment of the 5 Cont.Case (C)No.1715 of 2019 ## Apex Court dated 04.11.2022 read as follows: ## “44. We accordingly hold and direct:- (i) The provisions contained in the notification No. G.S.R.609(E) dated 22[nd] August 2014 are legal and valid. So far as present members of the fund are concerned, we have read down certain provisions of the scheme as applicable in their cases and we shall give our findings and directions on these provisions in the subsequent subparagraphs. (ii) Amendment to the pension scheme brought about by the notification No. G.S.R. 609(E) dated 22[nd] August 2014 shall apply to the employees of the exempted establishments in the same manner as the employees of the regular establishments. Transfer of funds from the exempted establishments shall be in the manner as we have already directed. (iii) The employees who had exercised option under the proviso to paragraph 11(3) of the 1995 scheme and continued to be in service as on 1[st] September 2014, will be guided by the amended provisions of paragraph 11(4) of the pension scheme. (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 1[st] September 2014 stands crystalised in the judgment of this Court in the case of **R.C. Gupta and others v. Regional Provident Fund Commissioner, Employees Provident Fund Organisation and others [(2018) 14 SCC 809]** . The 6 Cont.Case (C)No.1715 of 2019 scheme as it stood before 1[st] 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 preamended paragraph 11(3) as also the amended paragraph 11(4) of the pension scheme. There was uncertainty as regards validity of the post-amendment scheme, which was quashed by the aforesaid judgments of the three High Courts. Thus, all the employees who did not exercise option but were entitled to do so but could not due to the interpretation on cut-off date by the authorities, ought to be given a further chance to exercise their option. Time to exercise option under paragraph 11(4) of the scheme, under these circumstances, shall stand extended by a further period of four months. We are giving this direction in exercise of our jurisdiction under Article 142 of the Constitution of India. Rest of the requirements as per the amended provision shall be complied with. (v) The employees who had retired prior to 1[st] September 2014 without exercising any option under paragraph 11(3) of the pre-amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment. (vi) The employees who have retired before 1[st] September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph 11(3) of the pension scheme as it stood prior to the amendment of 2014. (vii) The requirement of the members to contribute at the rate of 1.16 per cent of their salary to the extent such 7 Cont.Case (C)No.1715 of 2019 salary exceeds Rs.15,000/- per month as an additional contribution under the amended scheme is held to be ultra vires the provisions of the 1952 Act. But for the reasons already explained above, we suspend operation of this part of our order for a period of six months. We do so to enable the authorities to make adjustments in the scheme so that the additional contribution can be generated from some other legitimate source within the scope of the Act, which could include enhancing the rate of contribution of the employers. We are not speculating on what steps the authorities will take as it would be for the legislature or the framers of the scheme to make necessary amendment. For the aforesaid period of six months or till such time any amendment is made, whichever is earlier, the employees’ contribution shall be as stop gap measure. The said sum shall be adjustable on the basis of alteration to the scheme that may be made. (viii) We do not find any flaw in altering the basis for computation of pensionable salary. (ix) We agree with the view taken by the Division Bench in the case of **R.C. Gupta** (supra) so far as interpretation of the proviso to paragraph 11(3) (pre-amendment) pension scheme is concerned. The fund authorities shall implement the directives contained in the said judgment within a period of eight weeks, subject to our directions contained earlier in this paragraph. (x) The Contempt Petition (C) Nos.1917 - 1918 of 2018 and Contempt Petition (C) Nos. 619-620 of 2019 in Civil Appeal Nos. 10013-10014 of 2016 are disposed of in the above terms.” 3. Heard the learned counsel for the petitioners and also 8 Cont.Case (C)No.1715 of 2019 the learned Standing Counsel for the Employees Provident Fund Organisation, for the respondent. 4. In view of the judgment of the Apex Court dated 04.11.2022 in Civil Appeal Nos.8143-44 of 2022 and connected matters **[2022 (7) KHC 12 : AIR 2022 SC 5634]** , the entitlement of the petitioners for disbursement of higher pension requires reconsideration at the hands of the Employees Provident Fund Organisation. 5. The learned Standing Counsel for the respondent would submit that the aforesaid exercise shall be undertaken by the Employees Provident Fund Organisation in accordance with law. In the said circumstances, this Contempt Case is closed, without prejudice to the right of the Employees Provident Fund Organisation to reconsider the entitlement of the petitioners for disbursement of higher pension, in view of the judgment of the Apex Court dated 04.11.2022 in Civil Appeal Nos.8143-44 of 2022 and connected matters **[2022 (7) KHC 12 : AIR 2022 SC 5634]** . **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/G. GIRISH, JUDGE** MIN 9 Cont.Case (C)No.1715 of 2019 ## **`APPENDIX OF CON.CASE(C) 1715/2019`** |**`PETITIONER`**|**`ANNEXURES`**| |---|---| |**`ANNEXURE A1`**|<br>**`CERTTIFIED COPY OF JUDGMENT IN WP(C) NO. 19899 OF 2015 DATED`**| ||**`12.10.2018.`**| |**`ANNEXURE A2`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER`**| ||**`DATED 18.02.2019.`**| |**`ANNEXURE A3`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER`**| ||**`DATED 13/02/2019`**| |**`ANNEXURE A4`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 3RD PETITIONER`**| ||**`DATED 15.02.2019`**| |**`ANNEXURE A5`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 4TH PETITIONER`**| ||**`DATED 14.02.2019`**| |**`ANNEXURE A6`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 5TH PETITIONER`**| ||**`DATED 14.02.2019.`**| |**`ANNEXURE A7`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 6TH PETITIONER`**| ||**`DATED 16.02.2019`**| |**`ANNEXURE A8`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 7TH PETITIONER`**| ||**`DATED 21.02.2019.`**| |**`ANNEXURE A9`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 8TH PETITIONER`**| ||**`DATED 15.02.2019`**| |**`ANNEXURE A10`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 9TH PETITIONER`**| ||**`DATED 12.02.2019`**| |**`ANNEXURE A11`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 10TH PETITIONER`**| ||**`DATED 20.02.2019.`**| |**`ANNEXURE A12`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 11TH PETITIONER`**| ||**`DATED 27.05.2019`**| |**`ANNEXURE A13`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 12TH PETITIONER`**| ||**`DATED 14.02.2019.`**| |**`ANNEXURE A14`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 13TH PETITIONER`**| ||**`DATED 15.02.2019.`**| |**`ANNEXURE A15`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 14TH PETITIONER`**| ||**`DATED 12.02.2019.`**| |**`ANNEXURE A16`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 15TH PETITIONER`**| ||**`DATED 15.02.2019.`**| |**`ANNEXURE A17`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 16TH PETITIONER`**| ||**`DATED 19.02.2019.`**| |**`ANNEXURE A18`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 17TH PETITIONER`**| ||**`DATED 18.02.2019.`**| |**`ANNEXURE A19`**|<br>**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 18TH PETITIONER`**| ||**`DATED 13.02.2019.`**| 10 Cont.Case (C)No.1715 of 2019 |**`ANNEXURE A20`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 19TH PETITIONER`**| |---|---| ||**`DATED 05.03.2019.`**| |**`ANNEXURE A21`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 20TH PETITIONER`**| ||**`DATED 14.02.2019.`**| |**`ANNEXURE A22`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 21ST PETITIONER`**| ||**`DATED 18.02.2019.`**| |**`ANNEXURE A22`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 21ST PETITIONER`**| ||**`DATED 18.02.2019`**| |**`ANNEXURE A23`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 22ND PETITIONER`**| ||**`DATED 20.05.2019.`**| |**`ANNEXURE A24`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 23RD`**| ||**`PETITIONER DATED 12.02.2019.`**| |**`ANNEXURE A25`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 24TH PETITIONER`**| ||**`DATED 19.02.2019.`**| |**`ANNEXURE A26`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 25TH`**| ||**`PETITIONER DATED 18.02.2019.`**| |**`ANNEXURE A27`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 26TH PETITIONER`**| ||**`DATED 14.02.2019.`**| |**`ANNEXURE A28`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 27TH PETITIONER`**| ||**`DATED 11.02.2015.`**| |**`ANNEXURE A29`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 28TH PETITIONER`**| ||**`DATED 13.02.2019.`**| |**`ANNEXURE A30`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 29TH PETITIONER`**| ||**`DATED 18.02.2019.`**| |**`ANNEXURE A31`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BY THE 30TH PETITIONER`**| ||**`DATED 13.02.2019.`**|