Cont.Case (C) No.270 of 2019

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MRS.JUSTICE SOPHY THOMAS MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 ``` ``` CON.CASE(C) NO. 270 OF 2019 ``` ``` ARISING OUT OF THE JUDGMENT DATED 16.12.2014 IN ``` ``` WP(C)NO.33185/2014 OF HIGH COURT OF KERALA ``` ## **`PETITIONERS/PETITIONERS 1, 15 & 18:`** - **`1 DR.R.RAJEEV, AGED 51 YEARS, S/O.RAGHAVAN PILLAI, DEPUTY GENERAL MANAGER (AH) KERALA LIVESTOCK DEVELOPMENT BOARD, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT THIRUVATHIRA, KONDUNGALLUR, THRISSUR-680664.`** - **`2 DR.C.J.XAVIER, AGED 57 YEARS, S/O.C.J.JOSEPH, DEPUTY GENERAL MANAGER (BT) KERALA LIVESTOCK DEVELOPMENT BOARD, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT CHERIYATHARA, MARIANAGAR, EDAPPILLY, KOCHI.`** - **`3 DR.T.SAJEEVKUMAR, AGED 44 YEARS, S/O.K.K.THANKAPPAN, MANAGER (PT), KERALA LIVESTOCK DEVELOPMENT BOARD, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT KULANJIYIL, ARUNODAYAM, PATTATHANAM, P.O. KOLLAM.`** ## **`BY ADV P.N.MOHANAN`** ## **`RESPONDENTS/RESPONDENTS:`** ``` SRI.ANDREW PRABHU, FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONERS, ASSISTANT PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFFICE, EMPLOYEES PROVIDENT FUND ORGANISATION (EPFO), RESIDING AT KADAVANTHARA, KOCHI-682 020. ``` ``` BY ADV SRI.S.SUJIN, SC, EPFO ``` 2 Cont.Case (C)No.270 of 2019 ``` SMT NITA N.S - RESPONDENT ``` ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Cont.Case (C)No.270 of 2019 ## **JUDGMENT** Anil K. Narendran, J. The petitioners, who are petitioners 1, 15 & 18 in W.P.(C)No.33185 of 2014, 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 16.12.2014 in that writ petition, whereby this Court directed that 8.33% of the employer’s contribution, proportionate to the salary of the employee, in excess of Rs.6,500/-, shall be credited to the Pension Scheme and orders passed in accordance with law. In the said judgment, I t was made clear that the interest accrued in the Provident Fund Account to that extent also will stand transferred to the Pension Account. The extant employees were directed to submit joint applications, along with their employer wherever the same has not been done. Since it was stated that the judgments passed in the same lines in other writ petitions were confirmed by a Division Bench in W.A.No.1442 of 204, the writ petition was allowed leaving the question open to be considered depending upon the result of the petitions filed before the Apex Court. 2. On 06.02.2019, when this Contempt Case came up for 4 Cont.Case (C)No.270 of 2019 admission, the learned Standing Counsel for EPF Organisation took notice for the respondent. 3. On 02.08.2019 when this matter came up for consideration, the learned Standing Counsel for the respondent submitted that there is a review filed from the judgment of this Court in another writ petition with respect to an amendment in Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 with effect from 01.09.2014. It was also submitted that as far as the petitioners herein are concerned, they are not affected by the amendment and their case is already settled by the judgment of this Court, which has been approved by the Apex Court as per Annexure A2 order dated 31.03.2016 in SLP No.7074 of 2014. In such circumstances, on a prima facie finding of contempt, a learned Single Judge referred the matter to be posted before the appropriate Division Bench. 4. 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- 5 Cont.Case (C)No.270 of 2019 ## **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:- (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) 6 Cont.Case (C)No.270 of 2019 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 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 7 Cont.Case (C)No.270 of 2019 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 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 8 Cont.Case (C)No.270 of 2019 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.” 5. Heard the learned counsel for the petitioners and also the learned Standing Counsel for the Employees Provident Fund Organisation, for the respondent. 6. 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. 7. 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 9 Cont.Case (C)No.270 of 2019 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/25/10 10 Cont.Case (C)No.270 of 2019 ## **`APPENDIX OF CON.CASE(C) 270/2019`** ## **`PETITIONER ANNEXURES`** |**`ANNEXURE A1`**|**`A TRUE COPY OF THE JUDGMENT DATED 16.12.2014`**| |---|---| ||**`IN W.P.(C) NO.33185/2014.`**| |**`ANNEXURE A2`**|**`A TRUE COPY OF THE JUDGMENT IN SLP`**| ||**`NO.7074/2014 DATED 31.03.2016.`**| |**`ANNEXURE A3`**|**`A TRUE COPY OF THE JOINT APPLICATION DATED`**| ||**`16.01.2015 OF THE KLD BOARD.`**| |**`ANNEXURE A4`**|**`A TRUE COPY OF THE LETTER DATED 16.11.2016 OF`**| ||**`THE KLD BOARD.`**| |**`ANNEXURE A5`**|**`A TRUE COPY OF THE LETTER DATED 17.05.2017 OF`**| ||**`THE RESPONDENT.`**| |**`ANNEXURE A6`**|**`A TRUE COPY OF THE ORDER DATED 29.03.2017`**| ||**`EPFO TO SRI BASANTH.`**| |**`ANNEXURE A7`**|**`A TRUE COPY OF THE ORDER DATED 29.03.2017 OF`**| ||**`THE EPFO TO SRI.D.JAYAKUMAR.`**| |**`ANNEXURE A8`**|**`A TRUE COPY OF THE ORDER DATED 09.01.2019 OF`**| ||**`THE RESPONDENT.`**| |**`ANNEXURE A9`**|**`A TRUE COPY OF THE JUDGMENT DATED 26.10.2016`**| ||**`IN WPC NO.29021 OF 2016`**| |**`RESPONDENTS’`**|**`ANNEXURES`**| |**`ANNEXURE R1`**|**`TRUE COPY OF THE ORDER DATED 10.10.2017 IN RP`**| ||**`NO.34 OF 2017`**| |**`ANNEXURE R2`**|**`TRUE COPY OF THE ORDER DATED 25.07.2017 IN RP`**| ||**`NO.12 OF 2017`**| |**`ANNEXURE R3`**|**`TRUE COPY OF LETTER DATED 18.03.2019 ISSUED`**| ||**`BY THE RESPONDENT TO THE PETITIONER`**|