Research › Search › Judgment

Kerala High Court · body

2009 DIGILAW 894 (KER)

Thampuran R. R. v. VS Union Of India

2009-09-17

V.GIRI

body2009
JUDGMENT : V. Giri, J. Petitioner retired from the 5th respondent on May 15, 2007 after rendering 39 years of service. Fifth respondent is covered by the Employees Pension Scheme. Petitioner contends that he had joined the Employees Pension Scheme 1995 soon after the introduction of the said scheme and contribution was being made in terms of the Employees Pension Scheme, 1995 till the date of the petitioner's retirement in 2007 itself. After retirement, petitioner submitted Exhibit P-2 application for withdrawal of pension under Form 10-D. That was rejected under Exhibit P-3 finding that petitioner was not a member of the Family Pension Scheme 1971 or the Employees Pension Scheme 1995 and that he is not eligible for pension withdrawal. This has been challenged in the writ petition. 2. A counter affidavit has been filed by respondents 2 to 4, wherein, it is contended that petitioner was not a member of the Employees' Family Pension Scheme 1971 and in such circumstances, if the petitioner wants to become a member of the Employees' Pension Scheme, 1995 then he has to remit the entire contribution for the period from 1971 to 1995 along with interest. This, it is contended is, what is provided under Paragraph 6 of the Employees Pension Scheme. 3. Heard learned Counsel for the petitioner and learned standing counsel for the Provident Fund Organisation. Reference will have to be made to the Employees Pension, Scheme, 1995. Clauses 6(d), 7 and 17 of the Scheme read as follows: 6(d). Who has been a member of the Employees' Provident Fund or of Provident Funds of factories and other establishments exempted by the appropriate Government u/s 17 of the Act or in whose case exemption has been granted under paragraph 27 or 27-A of the Employees' Provident Fund Scheme 1952, on November 15, 1995 but not being a member of the ceased Employees' Family Pension Scheme, 1971 opts to exercise his option under paragraph 7. 7(1) Members referred to under sub-paragraph (c) of paragraph 6 who have died between April 1, 1993 and November 15, 1995 shall be deemed to have exercised the option of joining the Scheme on the date of his death. (2) Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment. (2) Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment. (3) Members referred to in sub-paragraph (d) of paragraph 6 shall have the option to join the Scheme as per the provisions of paragraph 17 from November 16, 1995; 17(1) Beneficiaries of the deceased members of Employees' Family Pension Scheme, referred to in sub-paragraph (i) of paragraph 7, shall receive higher of the benefits available under the Employees' Family Pension Scheme 1971 and under this Scheme. (2) Members referred to in sub-paragraph (2) of paragraph 7, shall have the option to join this Scheme by returning the amount of withdrawal benefit received, if any, together with interest at the rate of 8.5 per annum from the date of payment of such withdrawal benefit and date of exercise of the option, to receive monthly pension as per the provisions of this Scheme. (3) Members referred to in sub-paragraph (3) of paragraph 7 shall be deemed to have joined the ceased Employees' Family Pension Scheme, 1971 with effect from March 1, 1971 on remittance of past period contribution with interest thereon. 4. Insofar as the petitioner is concerned, he could become a member of the Employees' Family Pension Scheme only under Clause 6(d) and clause 6 refers to exercise of option under clause 7. Petitioner opted to join the Scheme as per clause 17(3) which is relevant, insofar as the petitioner is concerned. It provides that members referred to in paragraph 7(3) shall be deemed to have joined the ceased Employees' Family Pension Scheme, 1971 with effect from March 1, 1971 on remittance of past period contribution with interest thereon. 5. Going by the abovementioned clauses, the stand taken by the respondents in their counter affidavit seems to be correct. If that be so, petitioner did not become a member of the Employees Pension Scheme, 1995 since the earlier contribution with or without interest was not remitted. 6. Learned Counsel for the petitioner submits that contribution from him was accepted by the EPF, when the same was paid by the employer after deducting from the petitioner's wages. Such acceptance continued for a period of 12 years from 1995 till 2007 when the petitioner retired. I find force in the submission. 6. Learned Counsel for the petitioner submits that contribution from him was accepted by the EPF, when the same was paid by the employer after deducting from the petitioner's wages. Such acceptance continued for a period of 12 years from 1995 till 2007 when the petitioner retired. I find force in the submission. But since the enrollment of a person into a scheme governed by statutory provisions can be had only in accordance with the provisions, I do not find my way to issue a direction to respondents to necessarily treat the petitioner as a member of the Employees' Pension Scheme. But since amounts which were neither due from the petitioner nor receivable by the EPF were actually received from the petitioner, such amounts are liable to be returned. In the result, while upholding the stand of the respondents that petitioner did not become a member of the Employees Pension Scheme 1995, there will be a direction to the 2nd respondent to refund the petitioner the entire amounts remitted by him or under his account towards contribution to the Employees Pension Scheme, 1995 for the period from November 16, 1995 to May 15, 2007 within two months from the date on which the petitioner produces Form-19 along with copy of this judgment. Since the EPF should have become wise that they were not entitled to receive contribution from the petitioner but actually had received it without the petitioner becoming a member of the Employees Pension Scheme, at least from the date of Exhibit P-2 application which had been submitted by the petitioner for withdrawal, respondents 2 to 4 shall pay interest at 8.5% from the date of Exhibit P-2 application till the date of payment of the aforementioned amount. Writ petition is disposed of as above.