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Rajasthan High Court · body

2019 DIGILAW 2319 (RAJ)

Union of India v. Jale Singh

2019-08-28

INDERJEET SINGH, S.RAVINDRA BHAT

body2019
JUDGMENT : D.B. Civil Misc. Application No. 720/2019 in SAW No. 436/2019: D.B. Civil Misc. Application No. 733/2019 in SAW No. 407/2019: D.B. Civil Misc. Application No. 683/2019 in SAW No. 477/2019: D.B. Civil Misc. Application No. 634/2019 in SAW No. 551/2019: D.B. Civil Misc. Application No. 679/2019 in SAW No. 573/2019: D.B. Civil Misc. Application No. 681/2019 in SAW No. 582/2019: D.B. Civil Misc. Application No. 633/2019 in SAW No. 632/2019: D.B. Civil Misc. Application No. 443/2019 in SAW No. 659/2019: D.B. Civil Misc. Application No. 444/2019 in SAW No. 661/2019: D.B. Civil Misc. Application No. 445/2019 in SAW No. 662/2019: D.B. Civil Misc. Application No. 454/2019 in SAW No. 678/2019: D.B. Civil Misc. Application No. 457/2019 in SAW No. 681/2019: D.B. Civil Misc. Application No. 466/2019 in SAW No. 690/2019: D.B. Civil Misc. Application No. 671/2019 in SAW No. 691/2019: D.B. Civil Misc. Application No. 618/2019 in SAW No. 996/2019: D.B. Civil Misc. Application No. 615/2019 in SAW No. 981/2019: D.B. Civil Misc. Application No. 623/2019 in SAW No. 1003/2019: D.B. Civil Misc. Application No. 721/2019 in SAW No. 453/2019: For the reasons mentioned in the applications, delay in filing the appeal is condoned. The applications are allowed. D.B. SAW Nos. 436/2019, 407/2019, 477/2019, 551/2019, 573/2019, 582/2019, 632/2019, 659/2019, 661/2019, 662/2019, 678/2019, 681/2019, 690/2019, 691/2019, 996/2019, 981/2019, 1003/2019 and 453/2019: 1. With consent of learned counsel for the parties, the appeals were heard. 2. These appeals urge common questions with regard to applicability of the amended Employees Pension Scheme, 1995 (hereafter called "EPS 1995"). Clause 11(3) of the Pension Scheme provided for maximum pensionable salary limited to Rs. 5,000/- which was later, with effect from 01.06.2001, enhanced to Rs. 6,500/- per month and it was yet later enhanced to Rs. 15,000/- per month. By virtue of further amendment, proviso was inserted to clause 11(3) of the Pension Scheme with effect from 16.03.1996, permitting the employer and the employee to opt for contribution on salary exceeding Rs. 5,000/- (later enhanced to Rs. 6,500/- per month). It is also stated that 8.33% share of the employer's contribution would be remitted to the Pension Fund (PF). By notification on 22.08.2014, clause 11(3) of the Pension Scheme was deleted with effect from 01.09.2014. The result was that the benefit of the proviso could not be extended to the employees after 01.09.2014, if they had not exercised the option earlier. 3. By notification on 22.08.2014, clause 11(3) of the Pension Scheme was deleted with effect from 01.09.2014. The result was that the benefit of the proviso could not be extended to the employees after 01.09.2014, if they had not exercised the option earlier. 3. The private-respondents had approached this Court contending that the employers and the Employees Provident Fund Organization (EPFO) have taken a position that some establishments were exempted. Therefore, the relief claimed was that the employees would be entitled to pension under the EPS, 1995 based upon pensionable salary reckoned in accordance with the actual salary from the date of joining of the Pension Scheme. The writ-petitioners had relied upon a judgment of the Kerala High Court in P. Sasikumar and Others vs. Union of India and Others, 2019 (1) LLJ 494 . Reliance was also placed on the decision of the Supreme Court in R.C. Gupta and Others vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization and Others, (2018) 14 SCC 809 . 4. The Single Judge, based upon appreciation of the decision of the Kerala High Court, as well as the judgment of the Supreme Court, allowed the writ petitions and directed that the orders denying pension be quashed. It was further directed that fixation of cut off date i.e. 01.09.2014 was without jurisdiction and was therefore unlawful. In these circumstances, the Single Judge issued consequential directions that the writ-petitioners were entitled to the benefit of the proviso to clause 11(3) of the EPS, 1995. It was also further directed that the operative portion of the directions issued by the Kerala High Court would apply squarely to all the petitioners, who are entitled to the benefit and were employed in exempted establishments. 5. The appellant-Employees Provident Fund Organization submits that the impugned judgment is erroneous inasmuch as it would result in considerable and serious financial impact on the calculation of pension payouts. It was contended firstly that the circumstance that the organizations in question were exempted was given a complete go-by, and secondly that contributions were not received by the EPFO but rather by the trusts set up by an organization/employer. In these circumstances, the direction to remit the amounts from the trusts to the EPFO would fall short of the payouts and have a financial impact. 6. In these circumstances, the direction to remit the amounts from the trusts to the EPFO would fall short of the payouts and have a financial impact. 6. Learned counsel for the respondents/petitioners on the other hand urged that the entire issue was again considered by the Delhi High Court Division Bench ruling in Bhartiya Khadya Nigam Karamchari Sangh and Another vs. Union of India and Others. It was submitted that the consequential directions issued by the Division Bench are exhaustive and should be made applicable to the facts and circumstances of the present case as well. 7. It is transpired during the course of hearing that the present appellants i.e. the Union of India and Employees Provident Fund Organization have raised the issue in a Special Leave Petition (Civil) Diary No. 11023/2019, Union of India vs. Sunil Kumar, pending before the Supreme Court. It is submitted that in these circumstances the Court should await the final judgment of the Supreme Court. 8. It is quite evident that the Kerala and Delhi High Courts have taken a consistent position with regard to the applicability of the proviso to clause 11(3), which stood deleted, by the amendment of 2014. The Delhi High Court has made elaborate consequential directions, with regard to payouts by individual provident fund trusts set up by each organization. The Delhi High Court's judgment in Bhartiya Khadya Nigam Karamchari Sangh (supra), pertinently directs as follows:- "40. We, thus, allow the present petitions and quash the circular dated 31.05.2017. We hold that the petitioners would be entitled to higher monthly pension on the basis of their contributions on the actual salary, without any cutoff date and de hors the ceiling limit. We deem it fit to pass the following directions to resolve the issues as expeditiously as possible: (i) The petitioners being employees of the exempted establishment would be entitled to the benefit of enhanced pension on the basis of their contribution to the provident fund on the actual salaries received by them. (ii) The EPFO is at liberty to seek return of the higher provident fund contribution received by the petitioners with simple interest at the rate of 6% p.a. from the date of receipt of provident fund amount till the date of payment. (iii) The respondent Nos. (ii) The EPFO is at liberty to seek return of the higher provident fund contribution received by the petitioners with simple interest at the rate of 6% p.a. from the date of receipt of provident fund amount till the date of payment. (iii) The respondent Nos. 4 and 5 are directed to cooperate with the EPFO and render all assistance in quantifying the amount to be refunded by each of the petitioners, with interest @ 6% p.a. on such return. The Trust has already remitted 8.33% of the contribution of the petitioners on the ceiling amount. The balance corpus comprising of the remaining contributions on the actual salary @ 8.33% would be transferred by the Trust to the Pension Fund of the EPFO with all gains and the interest accrued so far. (iv) On refund of the above-mentioned amounts, the EPFO shall calculate and disburse enhanced pension to the petitioners on the basis of the actual salaries. The arrears of pension falling due to the petitioners from the date of their respective retirement will be cleared by the EPFO and the EPFO shall continue to pay the monthly pension henceforth at the enhanced rates. (v) The entire exercise shall be completed by respondent Nos. 4 and 5 and the EPFO within a period of six months from the date of receipt of a copy of this order." 9. This Court is of the opinion that the same directions of Bhartiya Khadya Nigam Karamchari Sangh (supra) ought to be applied to the facts of these cases as well. It is accordingly directed. At the same time, being cognizant of the fact that the issue is pending before the Supreme Court, the Court further clarifies that the final decision in this regard shall be subject to, and in accordance with the final judgment of the Supreme Court. 10. The appeals are disposed of in the above terms.