High Court of KeralaDivision Bench2023-09-25Contempt petition disposed/closed; petitioner r...

Contempt Case (C) No.1085 of 2019

Case / Petition Number:CON.CASE(C) NO. 1085 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K Narendran, J
Sophy Thomas, J
Judgment Date: 2023-09-25
Court Decision / Holding: This Contempt Case is closed, without prejudice to the right of the Employees Provident Fund Organisation to reconsider the petitioners’ entitlement for disbursement of higher pension, in view of the apex court judgment dated 04.11.2022 in Civil Appeals Nos. 8143-8144 of 2022 and connected matters (AIR 2022 SC 5634).
Final Disposition: Contempt petition disposed/closed; petitioner rights to seek relief under the amended scheme preserved and EPFO to reconsider entitlements in light of apex court decision.

Parties to the Case

Appellants / Petitioners

Surendran T.P.
Bhavana Dhar
P.K. Raghunath
T.K. Viswambharan
Francis P.U.
Fasludheen P.K.
Simon Francis
Roy C. Kurian
V.A. Majeed
V.J. Mathaiaged
Radhakrishna Panicker

Respondents

B. Andrew Prabhu (Regional Provident Fund Commissioner, EPFO, Sub Regional Office, Kochi)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. P.N. Mohanan

Counsels for Respondents

• Adv. SMT. Nita N.S.

Case Synopsis & Summary

This is a Civil Contempt petition filed by eleven writ petitioners (W.P.(C) No.8623 of 2015) alleging willful disobedience of directions contained in Annexure A1 judgment dated 12.10.2018 in W.P.(C) No.8623/2015 and connected matters. The matter traces history to SLPs and the Supreme Court’s 2022 judgment in Employees Provident Fund Organisation v. Sunil Kumar B, which upheld the 2014 amendment to the Employees Pension Scheme (via G.S.R.609(E)) and laid down directions for implementation, including read-downs for certain members and extensions to exercise options (paragraphs 11(3)/(4) of the pre/post-amendment scheme). The petitioners contend their entitlement to higher pension should be disbursed and that the Annexure A1 directions must be followed. The respondent EPFO submits that the apex court’s judgment requires reconsideration of entitlements and that the authorities should implement the amended scheme in accordance with law, including a four-month extension to exercise options and adjustments to contributions, with provisional pensionary payments already made not binding ultimate entitlement. On 13.09.2023 affidavits were filed detailing compliance and arrears already disbursed. The court, after hearing, closed the Contempt Case, but held that the EPFO may reconsider petitioners’ entitlements in light of the apex court decision, preserving the rights to readjust as necessary.

Provisions of Law Cited

Section 12 of Contempt of Courts Act, 1971Employees' Provident Fund and Miscellaneous Provisions Act, 1952Pension Scheme 1995 (paragraph 11(3) and 11(4))Notification No. G.S.R. 609(E) dated 22 August 2014Article 142 of the Constitution of India

Legal Doctrines & Maxims

Ultra vires
Article 142 of the Constitution of India (doctrine of extraordinary jurisdiction)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that there has been willful disobedience of Annexure A1 directions (dated 12.10.2018) from W.P.(C) No.8623/2015 and connected matters. Citing the Supreme Court’s 04.11.2022 decision in Sunil Kumar B (and related Civil Appeals), they contend the amended Employees Pension Scheme (via G.S.R.609(E)) is valid and that higher pension entitlements must be reconsidered and disbursed. They point to the read-downs in RC Gupta and others v. RPFC (SCC 2018) to support exercise of options under para 11(3)/(4) and request a concrete direction to implement the enhanced pension and settle arrears.

Contentions of Respondents

The EPFO contends that the apex court’s 2022 judgment requires reconsideration of entitlements under the amended scheme and that the authorities should implement the amended provisions in light of law. The affidavits show pensionary benefits computed under pre-amendment provisions and arrears already paid; they seek to suspend further disbursement until appropriate adjustments are made and emphasize that the 4-month extension for exercising options is to be interpreted within the new scheme. They request closure of the contempt, albeit with liberty to proceed in accordance with the apex court’s directions.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
R.C. Gupta and others v. Regional Provident Fund Commissioner, Employees Provident Fund Organisation and others	[(2018) 14 SCC 809]	Positive	Cited to affirm the rights of employees to exercise options under para 11(3) and related provisions, as crystallized pre-amendment, and to align the interpretation with the pre/post-amendment scheme as discussed in the judgment.
Employees Provident Fund Organisation v. Sunil Kumar B	[2022 (7) KHC 12 : AIR 2022 SC 5634]	Positive	Apex Court judgment upholding the amendment to the Employees Pension Scheme and directing implementation; used by High Court to justify reconsideration of entitlements under the amended scheme.
Civil Appeal Nos. 8143-8144 of 2022	(2022)	Positive	Part of the apex court judgment relied upon; supports the directive to follow the amended scheme and read-downs necessary for implementation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 ``` ``` CON.CASE(C) NO. 1085 OF 2019 ``` ``` AGAINST THE JUDGMENT DATED 12.10.2018 IN WP(C) 8623/2015 OF HIGH COURT OF KERALA ``` ``` PETITIONERS/PETITIONERS 1,5,7,9,10,14,19,27,29,30,34: ``` - **`1 SURENDRAN.T.P.,AGED 59 YEARS, S/O. PARAMESWARAN.T.I. THACHUKUZHIYIL, MANGATTOOR,KOLENCHERY, ERNAKULAM 682 311. (PF ACCOUNT NO. KR/KCH/2729/519)`** - **`2 BHAVANA DHAR, AGED 61 YEARS, W/O. P. VIJAYAKUMAR, NIKHIL NIVAS, KESARI ROAD, NORTH PARAVUR, ERNAKULAM 683 513. (PF ACCOUNT NO. KR/KCH/2729/1051)`** - **`3 P.K. RAGHUNATH, AGED 59 YEARS, S/O. P.R. KRISHNAN NAIR, PULIVEEDU, PIRAVOOR, KALADY ERNAKULAM 683 574, (PF ACCOUNT NO. KR/KCH/2729/763)`** - **`4 T.K. VISWAMBHARAN, AGED 60 YEARS, S/O. T.M. KARAPPAN THAREPARAMBIL HOUSE, KUZHUR, THRISUR 680 734 (PF ACCOUNT NO. KR/KCH/2729/1061)`** - **`5 FRANCIS.P.U., AGED 60 YEARS, S/O. P.V. UREMESE, PALUTTY HOUSE, VAPALASSERI, ANGAMALY, ERNAKULAM 683 572, (PF ACCOUNT NO. KR/KCH/2729/153)`** - **`6 FASLUDHEEN.P.K., AGED 60 YEARS, S/O. KADER PILLAI, POURNAMI PULLARDESOM ROAD, PALLURUTHI KOCHI 682 006. (PF ACCOUNT NO. KR/KCH/2729/216)`** Cont. Case (C) No.1085 of 2019 2 - **`7 SIMON FRANCIS, AGED 60 YEARS, S/O. P.S. FRANCIS PULIKKAL PERUMPADAPPU, PARK ROAD, PALLURUTHI P.O. KOCHI 682 006. (PF ACCOUNT NO. KR/KCH/2729/445)`** - **`8 ROY.C. KURIAN, AGED 60 YEARS, S/O. KURIAN.K.C, AMBALATHARA HOUSE, ARIATEAL TEMPLE ROAD, EROOR SOUTH, TRIPUNITHURA ERNAKULAM 682 301. (PF ACCOUNT NO. KR/KCH/2729/190)`** - **`9 V.A. MAJEED, AGED 62 YEARS, S/O. ABDUL KHADER, THALKOTTIL HOUSE, NEAR MARKASS COLLEGE, NAJATH NAGAR, SOUTH KALAMASSERY, ERNAKULAM 682 033. (PF ACCOUNT NO. KR/KCH/2729/171)`** - **`10 V.J. MATHAIAGED, 60 YEARS, S/O. V.M. JOSEPH, VEMPENIL HOUSE, KUMARAKOMCODE, RUBBER BOARD P.O., PUTHUPALLY KOTTAYAM (PF ACCOUNT NO. KR/KTM//1828/218)`** - **`11 RADHAKRISHNA PANICKER, AGED 60 YEARS, S/O. RAMAN NAIR, T.R. KIZHAKKEKKARA HOUSE CHENGAROOR MALLAPPALLY, PATHANAMTHITTA 689 594, (PF ACCOUNT NO. KR/KTM/1828/1029)`** ``` BY ADV. P.N.MOHANAN ``` ## **`RESPONDENT/THIRD RESPONDENT:`** ``` B.ANDREW PRABHU, AGED 50 YEARS, S/O. S. BHAKTHAVALSALAM (LATE), REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION (EPFO), SUB REGIONAL OFFICE, 'BHAVISHYANITHI BHAVAN', KALOOR, KOCHI 682 017, RESIDING AT KADAVANTHARA, KOCHI ``` ``` BY ADV SMT.NITA.N.S. ``` ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Cont. Case (C) No.1085 of 2019 3 ## **JUDGMENT** ## Anil K Narendran, J **.** The petitioners, who are writ petitioners 1, 5, 7, 9, 10, 14, 19, 27, 29, 30, 34 in W.P.(C)No.8623 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 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 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 Cont. Case (C) No.1085 of 2019 4 ## 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 sub-paragraphs. (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 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 pre-amended paragraph 11(3) as also the amended Cont. Case (C) No.1085 of 2019 5 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 cutoff 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 preamendment scheme have already exited from the membership (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) (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 Cont. Case (C) No.1085 of 2019 6 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, (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. On 13.09.2023, when this Contempt Case came up for consideration, the learned Standing Counsel for the Employees Provident Fund Organisation submitted that an affidavit of the respondent dated 13.12.2020 is not seen incorporated on account of some defects and since the respondent has already been transferred from the post of Regional Provident Fund Commissioner, Kochi, an affidavit of the present incumbent shall be filed within ten days. Today when this matter is taken up for consideration, learned Standing Counsel has placed on record an affidavit sworn to by the present incumbent. Paragraphs 3 to 6 of that affidavit reads as follows:- “3. It is submitted that in compliance with the judgment in ## Cont. Case (C) No.1085 of 2019 7 W.P.(C) No.8623 of 2015 the pensionary benefits in respect of the petitioners was computed as per the provisions prior to the amendment to the Employees Pension Scheme with effect from 01.09.2014 vide notification No.G.S.R.609 (E) dated 22.08.2014. The following amounts in respect of the petitioners toward pension arrears have already been sanctioned and disbursed through their respective bank accounts. |Sl. No.|Pet itio ner No.|Name of petitioner & PPO No.| Amount of arrears| Monthly pension|Bank|Bank A/c. No.| |---|---|---|---|---|---|---| |1|1|Surendran T. P. KKRCH111054|7,76,407/ -|28,759/-|State Bank of India| 2002647650 5| |2|2|Bavana Dhar KRKCH111929|9,44,120/-|25,508/-|State Bank of India| 6738588984 3| |3|3|P.K. Raghunath KRKCH110954|4,54,078/-|32,441/-|State Bank of India| 6721656585 6| |4|4|T.K.Viswambaran KRKCH111055|5,25,159/-|19,331/-|State Bank of India| 5706350837 2| |5|6|Fasaludheen P.K. KRKCH11084|5,97,491/-|22,805/-|State Bank of India| 1496010000 01163| |6|7|Simon Francis KRKCH111218|5,99,658/-|15,280/-|State Bank of India| 3045096113 8| |7|8|Roy Kurien KRKCH111085|5,74,828/-|21,940/-|State Bank of India| 3044399231 6| |8|9|V.A. Majeed KRKCH111256|7,10,751/-|17,273/-|Indian Overse as Bank|1496010000 04719| Cont. Case (C) No.1085 of 2019 8 |9|10|V.J. Mathai KRKTM111256|5,54,179/-|19,393/-|State Bank of India| 5700547541 2| |---|---|---|---|---|---|---| |10|11|Radhakrishna Panicker KRKTM 44014|6,55,586/-|24,364/-|Axis Bank|0510101000 75174| It is submitted that on verification of Form 3A submitted with the application in respect of the 5[th] petitioner Sri. Francis P.U employer contribution for the period 2004-05, 2005-06, and 2006-07 was not remitted on wages exceeding the then statutory limit of Rs.6500 by the employer therefore enhance pension in respect of the 5[th] petitioner was not sanctioned. The same was also intimated to the employer of the 5[th] petitioner vide letter No.KR/KCH/2729/153/AB 10(2)/2019/5886 dated 11/10/2019. 5. It is submitted that sanction of pensionary benefits was made purely on provisional basis subject to the final outcome of SLP No. 8658-8659/2019. As matters now obtain the Hon'ble Supreme Court by judgment dated 04/11/2022 reported in 2022 (7) KHC 12 has upheld the amendment to the employees pension scheme 1995 and various directions have been issued in Para 44 of the Judgment. The entitlement of the petitioners for higher pension will have to be therefore re-considered by the Employees Provident Fund Organization in the light of the judgment of the Hon'ble Apex Court dated 04/11/2022 in civil appeal No. 8142-43 of 2022. 6. It is therefore humbly submitted that Annexure A2 judgment has now been set aside by the Hon'ble Supreme Court. It is humbly prayed that this Hon'ble Court may be pleased to accept this affidavit and the above Contempt of Court proceedings may be dropped. There has been no willful disobedience or non-compliance of the directions issued by this Hon'ble Court.” 4. Heard the learned counsel for the petitioners and also Cont. Case (C) No.1085 of 2019 9 the learned Standing Counsel for the Employees Provident Fund Organisation, for the respondent. 5. 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. 6. 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/SOPHY P. THOMAS, JUDGE** DCS/25.09.2023 Cont. Case (C) No.1085 of 2019 10 ## **`APPENDIX`** ## **`PETITIONER ANNEXURES`** |**`ANNEXURE A1`**|**`A TRUE COPY OF THE JUDGMENT DATED`**| |---|---| ||**`12.10.2018 IN WPC NO. 8623/2015`**| |**`ANNEXURE A2`**|**`A TRUE COPY OF THE DETAILS OF THE`**| ||**`PENSION SANCTIONED BY OTHER OFFICES`**|