N.V.Vaidyanathan and others v. Employees Provident Fund Organisation and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 WP(C) NO. 28485 OF 2020 ``` ## **`PETITIONERS:`** - **`1 N.V.VAIDYANATHAN`** ``` AGED 57 YEARS, FACT,EMPLOYEE CODE NO.9145, S/O. N.V.VENKITACHALAM, 'VINAYAKAM', MKK NAGAR, MUPPATHADAM P.O., ALUVA, PIN - 683 110. ``` - **`2 A.CELINE PYLEE`** - **`AGED 57 YEARS, FACT,EMPLOYEE CODE NO.11465, W/O. PETER, PUTHENPURACKAL, VASANTH NAGAR, KUREEKAD P.O., KOCHI, PIN - 682 305.`** - **`3 N.RADHAKRISHNAN,`** - **`AGED 56 YEARS, FACT,EMPLOYEE CODE NO.10636, S/O.GOPALAKRISHNAN, SANTHI NIVAS, NELLIYAMPADAM, KUNISSERY P.O., PALAKKAD, PIN - 678 681.`** ``` 4RANI.M.O., AGED 56 YEARS, FACT,EMPLOYEE CODE NO.12182, W/O. SABY JOSEPH, KOLLAMPARAMBIL HOUSE, INDIRA GANDHI ROAD, EDAKOCHI (NORTH), KOCHI, PIN - 682 010. ``` - **`5 V.K.JAYAKUMARI,`** ``` AGED 55 YEARS, FACT,EMPLOYEE CODE NO.10318, W/O. K.SANTHOSH KUMAR, KARUNA, H.NO.120, MATHERNAGAR, CHANGAMPUZHA NAGAR P.O., KALAMASSERY, ERNAKULAM DIST. ``` - **`6 THOMAS FRANKLIN AGED 55 YEARS, FACT,EMPLOYEE CODE NO.13563, S/O. MANUAL, MARAKKASSERY HOUSE, OCHANTHURUTH P.O.,KOCHI.`** W.P.(C) No.28485 of 2020 : 2 : ## **`7 K.G.GEETHA`** ``` AGED 54 YEARS, FACT,EMPLOYEE CODE NO.12148, W/O. K.U.BABU, KRISHNAKRIPA, KALAPPURACKAL, NEAR PETTUPALAM, OALAND, VARAPPUZHA.P.O., KOCHI, PIN - 683 517. ``` ``` 8GIGI N.ABRAHAM, AGED 54 YEARS, FACT,EMPLOYEE CODE NO.12185, S/O. N.G.ABRAHAM, NADUVILEDATHU HOUSE, ROSE GARDENS , AKG ROAD, EDAPPALLY P.O., KOCHI,PIN - 682 024. ``` ``` 9XAVIER ALEXANDER RAJAN, AGED 54 YEARS, FACT,EMPLOYEE CODE NO.12256, ASSISTANT GENERAL MANAGER (COMPUTER SERVICES), S/O. V.S.MUTHIAH, CHARISMA, NO.737-T, SUNDAR NAGAR, EDAPPALLY, KOCHI-682 024. ``` ``` 10N.C RAJENDRAN AGED 54 YEARS, FACT,EMPLOYEE CODE NO.12225, S/O. B.KRISHNA PILLAI, NEDUMBANAL HOUSE, VADAYAMPADY P.O., PUTHENCRUZ VIA., ERNAKULAM DISTRICT, PIN - 682 308. ``` ``` 11E.G.ASOKKUMAR, AGED 54 YEARS,FACT,EMPLOYEE CODE NO.13564, S/O. E.R.GOVINDAN, PEEDIKAPARAMBIL CHITHIRA, KAITHARAM P.O., NORTH PARUR, ERNAKULAM DISTRICT. ``` ``` 12K.G.SHAJI, AGED 52 YEARS, FACT,EMPLOYEE CODE NO.12007, S/O. K.K.GOVINDAN, KALARICKAL HOUSE OLD SEMINARI, CHUNKAM, KOTTAYAM, PIN - 686 001. ``` - **`13 THOMAS M.P.,`** ``` AGED 52 YEARS, FACT,EMPLOYEE CODE NO.13141, S/O.POULOSE.M.A., MANJALY, VELLANGALLORE P.O., IRINGALAKUDA , THRISSUR DISTRICT. ``` ## **`14 K.MURALEEDHARAN`** ``` AGED 52 YEARS, FACT,EMPLOYEE CODE NO.13175, S/O. G.KRISHNA PANICKER, MURALIKA, MARUTHORVATTOM P.O., CHERTHALA. ``` W.P.(C) No.28485 of 2020 : 3 : - **`15 Y.M.SIVASANKARA, AGED 52 YEARS, FACT,EMPLOYEE CODE NO.11613, S/O. MARIYAPPA, P FLAT -3, FACT TOWNSHIP, UDYOGAMANDAL P.O.KOCHI, PIN - 683 501.`** ``` 16REGHU.R., AGED 52 YEARS, FACT,EMPLOYEE CODE NO.13334, S/O. C.A.RAMAN, SANTHAMANDIRAM, ELEPPUPARA, VALLIKKODU KOTTAYAM P.O., PATHANAMTHITTA PIN - 689 656. ``` - **`17 SUNIL.C.`** ``` AGED 52 YEARS, FACT,EMPLOYEE CODE NO. 13310, S/O. PEETHAMBARAN P., SREEVIHAR, CHITRA LANE, PALACE ROAD, ALUVA, PIN - 683 101. ``` ## **`BY ADVS.`** ``` R.SANJITH SMT.C.S.SINDHU KRISHNAH ``` ## **`RESPONDENTS:`** - **`1 THE EMPLOYEES PROVIDENT FUND ORGANIZATION REPRESENTED BY THE CHIEF PROVIDENT COMMISSIONER, BHAVISHYANIDHI BHAVAN,14, BHIKAJI CAMA PALACE, NEW DELHI-110 066.`** - **`2 REGIONAL PROVIDENT FUND COMMISSIONER, THE EMPLOYEES PROVIDENT FUND ORGANISATION, KALOOR, ERNAKULAM, PIN -682 017.`** - **`3 THE FERTILISERS AND CHEMICAL TRANVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM-683 501, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR`** ``` BY ADVS. SHRI.S.PRASANTH, FOR R1 AND R2 SRI.M.GOPIKRISHNAN NAMBIAR, FOR R3 SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.28485 of 2020 : 4 : ## **JUDGMENT** Dated this the 1[st] day of August, 2024 The petitioners state that they are employees of the 3[rd] respondent who have retired from service and entitled to the benefit of Supreme Court judgment in _**Employees Provident Fund Organisation and another v. Sunil Kumar B. and others** [2022 (7) KHC 12]_ . Employees of the 3[rd] respondent are covered by the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the Employees' Provident Fund Scheme, 1952 and the Employees' Pension Scheme, 1995. This writ petition is filed seeking direction to respondents 1 and 2 to process the Joint Option Forms preferred by the petitioners within a time frame to be fixed by this Court and to complete all steps / actions that are necessary in order to confer the petitioners with all the pensionary benefits under the Employees’ Pension Scheme, 1995, calculated on the basis of average 12 month’s salary immediately preceding their date of retirement / exit from membership of the pension fund, as per the provisions of the Scheme, 1995. W.P.(C) No.28485 of 2020 : 5 : 2. The petitioners state that the culpable delay in processing the claim of the petitioners for higher pension benefit is violative of the dictum laid down by the Hon'ble Supreme Court in the judgment dated 04.11.2022 in _**Employees Provident Fund Organisation and another** (Supra)_ , whereby it is directed that the directives contained in _**R.C.Gupta and others v. Regional Provident Fund Commissioner, Employees Provident Fund Organisation and others** [(2018) 14 SCC 809]_ shall be implemented within a period of 8 weeks. The petitioners are persons similarly situated as the petitioners in Ext.P1 judgment and therefore entitled to similar relief as granted in the said judgment. Hence, the petitioners have filed this writ petition. 3. Standing Counsel entered appearance on behalf of respondents 1 and 2 and resisted the writ petition. On behalf of respondents 1 and 2, it is submitted that the Joint Option Forms can be considered in the light of the judgment of Hon'ble Apex Court in . _**Employees Provident Fund Organisation and another** (Supra)_ The Standing Counsel further submitted that certain details are required from the employer of the petitioners and the Employees Provident Fund Organisation has sought information/material from W.P.(C) No.28485 of 2020 : 6 : ## the 3[rd] respondent. 4. I have heard the learned counsel for the petitioners, the learned Standing Counsel representing respondents 1 and 2 and the learned Counsel representing the 3[rd] respondent. 5. The Hon'ble Apex Court has held in the judgment in the _**Employees Provident Fund Organisation and another** (Supra)_ as follows: “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** (supra)_ . The scheme as it stood before 1[st] September 2014 did not provide for any cutoff 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 W.P.(C) No.28485 of 2020 : 7 : covering pre-amended 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 preamendment 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 ₹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 whichever is amendment is made, 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. W.P.(C) No.28485 of 2020 : 8 : (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.” In view of the judgment of the Hon'ble Apex Court, the petitioners' Joint Option Forms need to be processed by the respondents. The writ petition is therefore disposed of directing respondents 1 and 2 to process the Joint Option Forms preferred by the petitioners in accordance with the judgment of the Hon'ble Apex Court in _**Employees Provident Fund Organisation and another** (Supra),_ within a period of five months. Sd/- **N. NAGARESH** **JUDGE** AMR W.P.(C) No.28485 of 2020 : 9 : ## **`APPENDIX OF WP(C) 28485/2020`** ## **`PETITIONERS’ EXHIBITS`** ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE JUDGMENT DATED 12.10.2018 IN WPC 28719/2015. ``` - **`EXHIBIT P2`** ``` TRUE COPY OF THE COVERING LETTER ENCLOSING JOINT OPTION FORMS OF PETITIONERS, 1,9,15017 DATED 11.02.2019. ``` - **`EXHIBIT P3 TRUE COPY OF THE COVERING LETTER DATED 28.02.2019 ENCLOSING THE FORM 3A OF PETITIONERS 2,3,5,6,8,11-13.`** - **`EXHIBIT P4 TRUE COPY OF THE COVERING LETTER DATED 04.02.2019 ENCLOSING THE FORM 3A OF PETITIONERS 4,7,10,14.`** - **`EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 25.02.2020 IN WPC NO.2166/2020.`** - **`EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 30.07. 2020 IN WPC NO.14475/2019.`** ## **`RESPONDENTS’ EXHIBITS`** ``` EXHIBIT R2(a):A TRUE COPY OF THE ORDER DATED 29/01/2021 IN SLP (CIVIL) NOS.8658-8659 OF 2019 OF THE HON'BLE SUPREM COURT. ``` - **`EXHIBIT R2(b): A TRUE COPY OF THE ACTUARIAL REPORT DATED 27/12/2018.`** - **`EXHIBIT R2(c): A TRUE COPY OF THE EXPLANATORY STATEMENT DATED 20/06/2019 TO THE ACTUARIAL REPORT.`** - **`EXHIBIT R2(d): A TRUE COPY OF THE ORDER DATED 12/07/2019 IN SLP (CIVIL) DIARY NO.11023/2019 OF THE HON'BLE SUPREME COURT.`** ``` EXHIBIT R2(e):A TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 06/02/2020 IN CONMT.PET.(C).NO.1917-1918/2018. ``` W.P.(C) No.28485 of 2020 : 10 : ``` EXHIBIT R2(f): ``` ``` A TRUE COPY OF THE JUDGMENT DATED 14/01/2020 IN CWP-19985-2018(O&M) OF THE PANJAB AND HARIYANA HIGH COURT. ``` ``` EXHIBIT R2(g): ``` ``` A TRUE COPY OF THE ORDER DATED 12/02/2021 IN CWP-18756-2011(O&M) AND CONNECTED CASES OF THE PANJAN AND HARIYANA HIGH COURT. ``` ``` EXHIBIT R2(h): ``` ``` A TRUE COPY OF THE DAILY CASE STATUS DATED 03/11/2020 IN WPSS/929/19 OF THE HIGH COURT OF UTTARAKHAND. ``` ``` EXHIBIT R2(i): ``` - **`A TRUE COPY OF THE DAILY CASE STATUS DATED 03/11/2020 IN WPSS/972/19 OF THE HIGH COURT OF UTTARAKHAND.`** ``` EXHIBIT R2(j): ``` ``` A TRUE COPY OF THE DAILY CASE STATUS DATED 03/11/2020 IN WPSS/1006/19 OF THE HIGH COURT OF UTTARAKHAND. ``` ``` EXHIBIT R2(k):TRUE COPY OF THE CALCULATION STATEMENT SHOWING DIFFERENCE OF PENSION STATEMENT OF SIMILAR PETITIONERS. ```