Cont.Case (C) No.2238 of 2019, Contempt of Court, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MRS.JUSTICE SOPHY THOMAS ``` ``` WEDNESDAY, THE 11[TH] DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CON.CASE(C) NO. 2238 OF 2019 ``` ``` AGAINST THE JUDGMENT DATED 12.10.2018 IN WP(C)NO.27288/2016 ``` ``` OF HIGH COURT OF KERALA ``` ``` PETITIONERS/PETITIONERS 3 TO 6 AND 8: ``` - **`1 K.V.SUNIL KUMAR, AGED 62 YEARS, S/O. LEELA VISWAMBHARAN, HELPER, KERALA TOURISM AND DEVELOPMENT CORPORATION, P.P.O. NO. KR/KCH/00094166, KAITHAVALAPPIL, NEENDOOR, VADAKKEKKARA P.O, NORTH PARAVUR-683 522`** - **`2 K.J. BERNATH, AGED 63 YEARS, S/O. JOSEPH, COOK, KR/TVM/00093703, KERALA TOURISM AND DEVELOPMENT CORPORATION, KADUNGAPARAMBIL HOUSE, NETTOOR, PIN682 040`** - **`3 MARIETTA KUNJACHAN, AGED 63 YEARS, W/O. A.T. KUNJACHAN, SENIOR OFFICE ASSISTANT, KERALA TOURISM AND DEVELOPMENT CORPORATION, AMBOOKEN (HOUSE), KODAPUZHA, CHALAKKUDY, THRISSUR-680 307`** - **`4 LALITHA V, AGED 62 YEARS, W/O. RAVEENDRAN K.P, SUPERINTENDENT, ADMINISTRATION, KERALA TOURISM AND DEVELOPMENT CORPORATION, P.P.O. NO. KR/KCH/00092800, LALITHA BHAVAN, MUTTAM P.O, HARIPAD, ALAPUZHA-690 511`** - **`5 SIVADASAN A, AGED 62 YEARS, S/O. GOVINDAN A, CHIEF ACCOUNTS OFFICER, KERALA TOURISM AND DEVELOPMENT CORPORATION, KR/TVM/2579/0856, ARAKKAN HOUSE, PUTHIYATHERU MADAPAM, CHIRAKKAL P.O, KANNUR-670 011`** ``` BY ADVS.C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA SRI.M.B.SOORI SRI.JAISON JOSEPH(KOOTHATTUKULAM) ``` 2 Cont.Case (C)No.2238 of 2019 ``` KUM.NEETHU SOMAN SHRI.BABU M. SRI.PAUL C THOMAS SRI.FRANKLIN ARACKAL ``` ## **`RESPONDENTS/RESPONDENTS 2 AND 3:`** - **`1 SHRI. SUNIL BARTHWAL, (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONERS), THE CENTRAL PROVIDENT FUND COMMISSIONER, BHAVISHANIDHIBHAVAN, BHIKAJICAMA, NEW DELHI-110 006`** - **`2 SHRI. ANDREW PRABHU B. (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONERS), REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHYA NIDHI BHAVAN, NO. 36/685 A POST BOX NO. 1895, KALOOR, KOCHI, KERALA-682 017`** ## **`BY ADV SMT.NITA.N.S.`** ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Cont.Case (C)No.2238 of 2019 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are petitioners 3 to 6 and 8 in W.P.(C) No.27288 of 2016, 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 A 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 Apex Court dated 04.11.2022 read as follows: “44. We accordingly hold and direct:- 4 Cont.Case (C)No.2238 of 2019 (i) The provisions contained in the notification No. G.S.R.609(E) dated 22nd 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 scheme as it stood before 1[st] September 2014 did not provide for any cut-off date and thus those members shall 5 Cont.Case (C)No.2238 of 2019 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 salary exceeds Rs.15,000/- per month as an additional contribution under the amended scheme is held to be ultra 6 Cont.Case (C)No.2238 of 2019 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 the learned Standing Counsel for the Employees Provident Fund 7 Cont.Case (C)No.2238 of 2019 ## Organisation, for the respondents. 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 respondents 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/- **SOPHY THOMAS, JUDGE** AV/18/10 8 Cont.Case (C)No.2238 of 2019 ## **`APPENDIX OF CON.CASE(C) 2238/2019`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A CERTIFIED COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN W.P.(C) NO.27288/2016 DATED 12.10.2018. ANNEXURE B TRUE COPY OF THE CASE STATUS OF THE HON'BLE SUPREME COURT IN SLP (C) NO. 8658-8659/2019 AS DOWNLOADED FROM THE WEBSITE OF THE HON'BLE SUPREME COURT. ```