Soudhamini Khalid and others v. Employees' Provident Fund Organisation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945 WP(C) NO. 22551 OF 2023** ## **PETITIONER:** - 1 SOUDHAMINI KHALID,AGED 63 YEARS, S/O P.M. SHAHUL HAMEED, EWS-231, KADAVANTHRA.P.O., NEAR VISWA BHARATHI NURSARY SCHOOL, GHANDINAGAR, EMAKULAM DISTRICT - 682 020, PPO NO. KRKLM00114570 - 2 S. BABU KUMAR, AGED 66 YEARS,S/O P. SREEDHARAN NAIR, SREEHARI, PUTHUKULANGARA P.0., NEDUMANGAD, THIRUVANATHAPURAM DISTRICT, PIN:695541,PPO NO. KRTVM00075652 - 3 VIJAYAN.P.,AGED 65 YEARS,S/O. PARAMESWARAN PILLAI, ASWATHY, KANNANKARAM, ARUVUKKARA P.O., THIRUVANATHAPURAM DISTRICT - 695 564, PPO NO. KRTVM0008I530 - 4 C.V. THANKMANI,AGED 65 YEARS,H /O. P. SIVADASAN, S.N. BHAVAN, CHEPPILODE, PERAYAM P.O., THIRUVANATHAPURAM DISTRICT, PIN: 695 562, PPO NO. KRTVM00077961 - 5 LALITHAMBIKA P.D.,AGED 63 YEARS, D/O. K.K. DHAMODHARAN, VIKAS BHAVAN, KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT - 686 662,PPO NO. KRKCH00118506 - 6 C SURENDRAN,AGED 63 YEARS,S/O. M T CHELLAPPAN, MULAMOOTTIL THEKKEKARA, KAIPUZHA NORTH P.O, KULANADA , PANDALAM, PATHANAMTHITTA DISTRICT, PIN: 689 503, PPO NO. KRTVM00084001 BY ADVS. S.KRISHNA MOORTHY(ERNAKULAM) MARIAMMA MERCY KANJANAPILLY V.KRISHNAN KUTTY BALAGOPALAN B. ## **RESPONDENTS:** - 1 EMPLOYEES PROVIDENT FUND ORGANIZATION REPRESENTED BY THE REGIONAL PROVIDENT FUND COMMISSIONER -I (PENSION),EMPLOYEES PROVIDENT FUND ORGANIZATION HEAD OFFICE, MINISTRY OF LABOUR & EMPLOYMENT (UNION OR INDIA ), BHAVISHYANIDHIBHAWAN, 1, BHIKAJICAMA PLACE, NEW DELHI, PIN - 110066 **WP(C) NO. 22551 OF 2023** -: 2 :- - 2 ADDITIONAL CENTRAL PROVIDENT FUND COMMISSIONER ZONAL OFFICE,EMPLOYEES PROVIDENT FUND ORGANIZATION, PATTOM ,TRIVANDRUM, PIN - 695004 - 3 ASSISTANT PROVIDENT FUND COMMISSIONER ( PENSION ),BHAVISHYANIDHI BHAVAN , EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE,PONNAMMA CHEMBERS PARAMESWAR NAGAR, KOLLAM DISTRICT, PIN - 691001 - 4 ASSISTANT PROVIDENT FUND COMMISSIONER ( PENSION),EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, NO.36/685A, BHAVISHYANIDHI BHAVAN, KALOOR, ERNAKULAM DISTRICT, PIN - 682017 - 5 ASSISTANT PROVIDENT FUND COMMISSIONER ( PENSION),EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, PATTOM, TRIVANDRUM DISTRICT, PIN - 695004 - 6 THE MANAGING DIRECTOR,KERALA CO OPERATIVE MARKETING FEDERATION (MARKETFED), GANDHI NAGAR, ERNAKULAM DISTRICT, PIN - 682020 ## **OTHER PRESENT:** SRI. SAJEEV KUMAR K. GOPAL,SC, EPFO, SRI. GEORGE POONTHOTTAM, SC, MARKETFED. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J.** ## **============================== W.P(C) No.22551 of 2023 ========================== Dated this the 4[th] day of September, 2023** ## **JUDGMENT** The petitioners have approached this Court aggrieved by the delay in payment of enhanced pension. 2. Seeking payment of enhanced pension based on the contributions made on actual salaries, the petitioners made requests to the Employees Provident Fund Organisation. As per Ext P1 series communications of June – July, 2020 the Employees Provident Fund Organisation considered the requests and required them to remit the excess employer's contribution payable, with accrued interest. As evidenced by Ext P2 series, during the period July – August, 2020, the contributions were remitted and the Employees Provident Fund Organisation required the 3[rd] respondent – Assistant Provident Fund Commissioner to revise the PPO. In spite of Ext P2, since the enhanced pension was not paid, the petitioners submitted Ext P3 representation to the 3[rd] W.P(C)No.22551 of 2023 -: 2 :- respondent seeking action in terms of Ext P2 series orders. It is alleging inaction by the 3[rd] respondent that the petitioners have approached this Court. 3. Heard the learned counsel for the petitioners and also the learned standing counsel for the respondents. I have also perused the statement filed on behalf of the respondents. 4. The entitlement of the petitioners for enhanced pension based on the salary is not in dispute. The contention of the respondents is that, in the light of the judgment of the Apex Court in _**Employees Provident Fund Organisation and Another v. Sunil Kumar B and Others (2022(7) KHC**_ _**12)**_ , the amended paragraph 11(4) of the Pension Scheme is also to be reckoned to arrive at the quantum. The petitioners would contend that such calculation based on the judgment of the Apex Court cannot be for the period prior to the date of the judgment and that payment has to be effected in terms of Ext P2 series orders till then. W.P(C)No.22551 of 2023 -: 3 :- 5. In _**Employees Provident Fund Organisation and Another v. Sunil Kumar B and Others**_ case(supra) one among the directions given by the Apex Court at paragraph 44(iv) reads thus: _“(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 1st September 2014 stands crystalised in the judgment of this Court in the case of R.C.Gupta (supra). The scheme as it stood before 1st 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_ W.P(C)No.22551 of 2023 -: 4 :- ## _amended paragraph 11(4) of the pension scheme.”_ 6. The Apex Court in unambiguous terms held that the amended paragraph 11(4) of the Pension Scheme is also to be reckoned. Even the petitioners do not dispute that the amended paragraph 11(4) of the Pension Scheme is also liable to be reckoned in their case. Their only contention is that, for the period up to the date of the Apex Court judgment they are entitled for payment in terms of Ext P2 series orders. I am unable to agree with the contention of the petitioners. Apex Court has, in the judgment, declared the law. The mere fact that Ext P2 series orders were passed prior to the said judgment will not come to the aid of the petitioners. The petitioners are entitled for enhanced pension by reckoning the amended paragraph 11(4) of the Pension Scheme also. 7. In the statement filed by the respondents, it has been stated that, all the petitioners have subsequent to the judgment of the Apex Court exercised W.P(C)No.22551 of 2023 -: 5 :- joint option through the online link provided in the EPFO website and that the options will be verified/confirmed and higher pension will be granted at the earliest. Thus, while declining the claim of the petitioners for implementation of Ext P2 series orders, the Writ Petition is disposed of directing the respondents to take appropriate steps for disbursal of the higher pension pursuant to the application submitted by the petitioners based on the judgment of the Apex Court referred to supra, as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment. ## **Sathish Ninan, Judge** vdv ## **APPENDIX OF WP(C) 22551/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|A TRUE COPY OF THE LETTER DATED 10-06-| ||2020 ADDRESSED TO THE 1ST PETITIONER| ||DIRECTING TO REMIT RS.33703/- INTO THE| ||PENSION ACCOUNT| |Exhibit P1(a)|A TRUE COPY OF THE SIMILAR LETTER DATED| ||02.07.2020 ADDRESSED TO THE 2ND| ||PETITIONER DIRECTING TO REMIT A SUM OF| ||RS. 316268/-| |Exhibit P1(b)|A TRUE COPY OF THE SIMILAR LETTER DATED| ||02.07.2020 ADDRESSED TO THE 3RD| ||PETITIONER DIRECTING TO REMIT A SUM OF| ||RS. 363788/-| |Exhibit P1(c)|A TRUE COPY OF THE SIMILAR LETTER DATED| ||10.06.2020 ADDRESSED TO THE 4TH| ||PETITIONER DIRECTING TO REMIT A SUM OF| ||RS. 223064/-| |Exhibit P1(d)|A TRUE COPY OF THE SIMILAR LETTER DATED| ||10.06.2020 ADDRESSED TO THE 5TH| ||PETITIONER DIRECTING TO REMIT A SUM OF| ||RS. 67070/| |Exhibit P1(e)|A TRUE COPY OF THE SIMILAR LETTER DATED| ||16.07.2020 ADDRESSED TO THE 6TH| ||PETITIONER DIRECTING TO REMIT A SUM OF| ||RS. 521797/| |Exhibit P2|A TRUE COPY OF THE ORDER OF EMPLOYEES'| ||PROVIDENT FUND COMMISSIONER DATED 12-08-| ||2020 ADDRESSED TO THE ASSISTANT| ||PROVIDENT FUND COMMISSIONER (PENSION),| ||KOLLAM WITH COPY MARKED TO THE 1ST| ||PETITIONER| |Exhibit P2(a)|A TRUE COPY OF A SIMILAR ORDER OF THE| ||EMPLOYEES PROVIDENT FUND ORGANIZATION| ||DATED 29.07.2020 ADDRESSED TO THE| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION), THIRUVANANTHAPURAM WITH COPY| ||MARKED TO THE 2ND PETITIONER| |Exhibit P2(b)|A TRUE COPY OF THE ORDER OF EMPLOYEES'| ||PROVIDENT FUND COMMISSIONER DATED 29J)7-| ||2020 ADDRESSED TO THE ASSISTANT| ||PROVIDENT FUND COMMISSIONER (PENSION),| ||THIRUVANANTHAPURAM WITH COPY MARKED TO| ||THE 3RD PETITIONER| |Exhibit P2(c)|A TRUE COPY OF A SIMILAR ORDER OF THE| ||EMPLOYEES PROVIDENT FUND ORGANIZATION| ||DATED 29.07.2020 ADDRESSED TO THE| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION), TRIVANDRUM WITH COPY MARKED| ||TO THE 4TH PETITIONER| **APPENDIX OF WP(C) 22551/2023** -2- |Exhibit P2(d)|A TRUE COPY OF THE BANK PAY IN SLIP OF STATE| |---|---| ||BANK OF INDIA, KOOTHATTUKULAM FOR THEE| ||PAYMENT OF RS. 68500/-| |Exhibit P2(e)|A TRUE COPY OF A SIMILAR ORDER OF THE| ||EMPLOYEES PROVIDENT FUND ORGANISATION DATED| ||24.08.2020 ADDRESSED TO THE ASSISTANT| ||PROVIDENT FUND COMMISSIONER (PENSION),| ||THIRUVANATHAPURAM WITH COPY MARKED TO THE 6TH| ||PETITIONER| |Exhibit P3|A TRUE COPY OF THE REGISTERED LETTER DATED| ||17-05-2023 SENT BY THE 1 S' PETITIONER TO THE| ||ASSISTANT PROVIDEHT FUND COMMISSIONER| ||(PENSION) ERNAKULAM WITH COPY MARKED TO| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION), KOLLAM| |Exhibit P3(a)|THE TRUE COPY OF A SIMILAR REGISTERED LETTER| ||DATED 17.05.2023 SENT BY THE 2ND PETITIONER| ||TO THE ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION), ERNAKULAM WITH COPY MARKED TO| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION),THIRUVANANTHAPURAM| |Exhibit P3(b)|A TRUE COPY OF THE REGISTERED LETTER DATED| ||17RO5-2023 SENT BY THE 3RD PETITIONER TO THE| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION) ERNAKULAM WITH COPY MARKED TO| ||A6SISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION), THIRUVANANTHAPURAM| |Exhibit P3(c)|HE TRUE COPY OF A SIMILAR REGISTERED LETTER| ||DATED 17.05.2023 SENT BY THE 4TH PETITIONER| ||TO THE A8SISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION).ERNAKULAM WITH COPY MARKED TO| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION),THIRUVANANTHAPURAM| |Exhibit P3(d)|A TRUE COPY OF THE REGISTERED LETTER DATED| ||17-05-2023 SENT BY THE 5TH PETITIONER TO THE| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION)| |Exhibit P3(e)|THE TRUE COPY OF A SIMILAR REGISTERED LETTER| ||DATED 17.05.2023 SENT BY THE 6TH PETITIONER| ||TO THE ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION),ERNAKULAM WITH COPY MARKED TO| ||ASSISTANT PROVIDENT FUND COMMISSIONER| ||(PENSION),THIRUVANANTHAPURAM| |Exhibit P4|A TRUE COPY OF THE EXTRACT OF THE APPROVED| ||REQUEST TAKEN ON 05.02.2023 FROM THE WEB SITE| ||OF THE EMPLOYEES PROVIDENT FUND ORGANIZATION| **APPENDIX OF WP(C) 22551/2023** -3- RESPONDENT ANNEXURES Annexure-R1(a) True copy of the communication vide KR/KCH/2257/AB11(1)/2023 dated 27-07-2023