John Mathew; Thomas Joseph v. The Assistant Provident Fund Commissioner, Employees Provident Funds Organization and Kanan Devan Hills Plantations Company Pvt. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 28686 OF 2011`** ## **`PETITIONER:`** ``` JOHN MATHEW HOUSE NO.11, CHOKKANADU DIVISION,, MADUPATTY ESTATE, WARD NO.XII,, MUNNAR GRAMA PANCHAYAT, MUNNAR P.O. BY ADV SRI.LIJI.J.VADAKEDOM ``` ## **`RESPONDENTS:`** - **`1 THE ASSISTANT PROVIDENT FUND COMMISSIONER,, EMPLOYEES PROVIDENT FUNDS ORGANIZATION,, SUB REGIONAL OFFICE, CHALAKUZHY BUILDINGS,, CMS COLLEGE ROAD, KOTTAYAM-686 001.`** - **`2 THE EMPLOYEES PROVIDENT FUNDS ORGANIZATION, REPRESENTED BY CENTRAL PROVIDENT, FUND COMMISSIONER, OFFICE OF THE COMMISSIONER OF, THE EMPLOYEES PROVIDENT FUND ORGINIZATION,, BHAVISHYA NIDHI BHAVAN, 14, BHIKAJI CAMA PLACE,, NEW DELHI-1`** - **`3 KANAN DEVAN HILLS PLANTATIONS COMPANY PVT.LTD., REPRESENTED BY ITS MANAGING DIRECTOR,, KDHP HOUSE, MUNNAR P.O., PIN-685 612. BY ADVS. NITA.N.S. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH SRI.N.N. SUGUNAPALAN, SMT.T.N GIRIJA- SC,E.P.F.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` WP(C) NO. 27310 OF 2011 ``` ## **`PETITIONER:`** ``` THOMAS JOSEPH ARRIYADANPACKEL HOUSE, EDATHAMPARAMBU,, PONKUNNAM P.O.,KOTTAYAM-686 506.( RETIRED, MANAGEMENT ASSISTANT, KANNAN DEVAN HILLS, PLANTATIONS COMPANY PVT. LTD, MUNNAR). ``` ``` BY ADV SRI.LIJI.J.VADAKEDOM ``` ## **`RESPONDENTS:`** - **`1 THE ASST.PROVIDENT FUND COMMISSIONER COMMISSIONER, EMPLOYEES PROVIDENT FUNDS, ORGANIZATION, SUB REGIONAL OFFICER,CHALAKUZHY, BUILDINGS,CMS COLLEGE ROAD, KOTTAYAM-686 001.`** - **`2 THE EMPLOYEES PROVIDENT FUND ORGANIZATION,REPRESENTED BY THE CENTRAL PROVIDENT, FUND COMMISSIONER, OFFICE OF THE COMMISSIONER OF, EMPLOYEES PROVIDENT FUNDS ORGANIZATION,, BHAVISYA NIDHI BHAVAN-14, BHIKAJI CAMA PLACE,, NEW DELHI-110`** - **`3 KANNAN DEVAN HILLS PLANTATIONS COMPANY PVT. LTD, REPRESENTED BY ITS MANAING DIRECTOR,, KDHP HOUSE, MUNNAR P.O., PIN-685 612. BY ADVS. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH SRI.N.N. SUGUNAPALAN, SMT.T.N GIRIJA- SC,E.P.F.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2024, ALONG WITH WP(C).28686/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 4[th] day of June, 2024** The present writ petitions have been filed by the employees of Kannan Devan Hills Plantations Company Pvt.Ltd. The petitioners are paid pension on the basis of their existing salary and not on the basis of the ceiling limit of Rs.6,500/- per month. 2. Learned counsel for the respondent Provident Fund Commissioner has submitted that the Supreme Court in the Case of the **Employees Provident Fund Organisation v. B. Sunil Kumar** [202 (7) KHC 12 (SC)], while considering the entitlement for pension over and above the ceiling limit of Rs.6,500/- has given certain directions in paragraph 44 of the said judgment, and these writ petitions can be disposed of, with direction to the respondent to examine the cases of the petitioners and take decision as per the directions given by the Supreme Court. ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 4 ``` 3. Learned counsel for the petitioners has no objection to the said submission of the learned counsel for the respondent. The Supreme Court in case of **B. Sunil Kumar** (supra) in paragraph 44 as directed as under. 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 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 1st 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 ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 5 ``` 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 (supra). 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 Art. 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 1st 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 1st ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 6 ``` September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph par 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.15000/- 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 ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 7 ``` 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”. Considering the submissions and the judgment of the Supreme Court referred to above, the present writ petitions are disposed of with direction to the 1[st] respondent to consider the cases of the petitioners in the light of the judgment of the Supreme Court in the case of **B. Sunil Kumar** (supra), and pass necessary orders, expeditiously. It is made clear that, till the decision is taken, the petitioners shall be paid pension, as they are being paid. ## **Sd/-** ## **DINESH KUMAR SINGH JUDGE** AP ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 28686/2011`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE RELIEVING LETTER DATED 12.11.2009 ISSUED TO THE PETITIONER BY THE COMPANY ``` |**`PETITIONER EXHIBITS`**<br>**`EXHIBIT P1`**|**`TRUE COPY`**<br>**`12.11.2009`**<br>**`COMPANY`**|**`OF THE RELIEVING LETTER DATED`**<br>**`ISSUED TO THE PETITIONER BY THE`**|**`OF THE RELIEVING LETTER DATED`**<br>**`ISSUED TO THE PETITIONER BY THE`**| |---|---|---|---| |**`EXHIBIT P2`**|**`PHOTOCOPY `**|**`OF THE RETURN OF REMITTANCE`**|| ||**`SHOWING THE PAYMENT OF CONTRIBUTION MADE BY`**||| ||**`THE 3RD RESPONDENT COMPANY IN RESPECT OF`**||| ||**`THE PETITIONER DURING THE MONTHS OF APRIL`**||| ||**`2002 TILL DECEMBER,2009.`**||| |**`EXHIBIT P3`**|**`PHOTOCOPY`**|**`OF`**<br>**`THE`**<br>**`ORDER`**|| ||**`NO.PPO.NO.KR/KTM/21562 DATED 23.02.2010.`**||| |**`EXHIBIT P4`**|**`COPY OF `**|**`THE RECEIPT OF AN ORDER`**|| ||**`NO.KR/KTM/2022/PEN`**<br>**`CELL/2011/PPO-21562`**||| ||**`DATED 3.08.2011 ISSUED BY THE `**||**`1ST`**| ||**`RESPONDENT.`**||| |**`EXHIBIT P5`**|**`COPY OF THE RELEVANT EXTRACT OF `**||**`THE`**| ||**`EMPLOYEES PENSION SCHEME SHOWING PARAGRAPH`**||| ||**`11(3) OF THE SCHEME.`**||| |**`EXHIBIT P6`**|**`COPY OF `**|**`THE LETTER DATED 06.10.2007`**|| ||**`SUBMITTED BY THE 3RD RESPONDENT ALONG WITH`**||| ||**`THE WILLINGNESS LETTER OF THE EMPLOYEES.`**||| ``` W.P.(C) No.28686 &27310 OF 2011 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 27310/2011`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE RELIEVING LETTER DATED 13.05.2008ISSUED TO THE PETITIONER BY THE COMPANY ``` |**`PETITIONER EXHIBITS`**<br>**`EXHIBIT P1`**|**`TRUE COPY OF THE RELIEVING LETTER DATED`**<br>**`13.05.2008ISSUED TO THE PETITIONER BY THE`**<br>**`COMPANY`**|**`TRUE COPY OF THE RELIEVING LETTER DATED`**<br>**`13.05.2008ISSUED TO THE PETITIONER BY THE`**<br>**`COMPANY`**| |---|---|---| |**`EXHIBIT P2`**|**`PHOTOCOPY OF THE STATEMENT OF REMITTANCE`**|| ||**`SHOWING THE PAYMENT OF CONTRIBUTION MADE BY`**|| ||**`THE 3RD RESPONDENT COMPANY IN RESPECT OF`**|| ||**`THE PETITIONER DURING THE MONTHS OF APRIL`**|| ||**`2003 TILL JUNE,2008.`**|| |**`EXHIBIT P3`**|**`PHOTOCOPY`**<br>**`OF`**<br>**`THE`**<br>**`ORDER`**|| ||**`NO.PPO.NO.KR/KTM/19538 DATED 6.3.2009`**|| |**`EXHIBIT P4`**|**`COPY `**|**`OF THE RECEIPT OF AN ORDER`**| ||**`NO.KR/KTM/2022/PEN`**<br>**`CELL/2011/PPO-19538`**|| ||**`DATED `**|**`3.08.2011 ISSUED BY THE 1ST`**| ||**`RESPONDENT.`**|| |**`EXHIBIT P5`**|**`RELEVANT EXTRACT OF THE EMPLOYEES PENSION`**|| ||**`SCHEME `**|**`SHOWING PARAGRAPH 11(3) OF THE`**| ||**`SCHEME.`**|| |**`EXHIBIT P6`**|**`COPY OF THE LETTER DATED 06.10.2007`**|| ||**`SUBMITTED BY THE 3RD RESPONDENT ALONG WITH`**|| ||**`THE WILLINGNESS LETTER OF THE EMPLOYEES.`**||