JUDGMENT : THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH Heard Mr R Sanjith learned Counsel for the petitioners, and Mr Sajeev Kumar K Gopal learned Standing Counsel for the Employees Provident Fund Organization. Facts: 2. The petitioners, 16 in number, are retired employees of Kerala State Homeopathic Co-operative Pharmacy Limited, the 5th respondent. They have approached this Court impugning Ext.P3, whereby the 5th respondent’s request for making a higher contribution retrospectively to the pension fund in excess of the statutory limit has been declined. It has been further prayed that a mandamus be issued to respondents 1 to 4 to compute and communicate the deficiency on the part of the 5th respondent in making provident fund contribution on the respective actual salary of the petitioners including damages and interest, if any, and permit the 5th respondent to remit the deficient amount to the respective provident fund account of the petitioners. 3. The 5th respondent is a Co-operative Society registered under the Co-operative Societies Act 1969. This Society functions under the administrative control of the Ministry of Health and Family Welfare, Government of Kerala. Society’s objective is to manufacture and sell quality Homoeopathic medicines and contribute to the growth of Homoeopathy. 3.1 The employees of the 5th respondent are covered under the Employees’ Provident Funds and Miscellaneous Provisions Act 1952 (for short, ‘EPF Act’), the Employees’ Provident Fund Scheme 1952 (for short ‘EPF Scheme’) and the Employees’ Pension Scheme 1995 (for short ‘Pension Scheme’). The date of joining and the date of retirement of the petitioners are tabulated hereunder: Petitioner(s) Date of Joining Date of Retirement 1st petitioner 22.12.1981 31.05.2020 2nd petitioner 01.01.1986 31.05.2019 3rd petitioner 23.01.1984 31.08.2010 4th petitioner 01.04.1987 31.02.2009 5th petitioner 23.01.1984 28.02.2010 6th petitioner 14.06.1982 30.09.2011 7th petitioner 01.04.1987 30.04.2010 8th petitioner 15.05.2000 31.03.2019 9th petitioner 15.05.2000 31.01.2017 10th petitioner 01.04.1987 30.04.2017 11th petitioner 06.01.1987 28.02.2014 12th petitioner 01.02.1981 31.12.2012 13th petitioner 15.06.1982 30.09.2013 14th petitioner 01.12.1977 31.03.2009 15th petitioner 23.11.1981 30.11.2015 16th petitioner 30.11.1981 31.03.2017 3.2 The 5th respondent had subscribed to the EPF Scheme since 1984. The employees of the 5th respondent were remitting their share of the provident fund contributions at the rate of 12% of their actual salary. However, it is said that the 5th respondent was remitting its share at the rate of 12% of Rs.5,000/6500, i.e. the statutory minimum contribution by the employer. The employees of the 5th respondent were remitting their share of the provident fund contributions at the rate of 12% of their actual salary. However, it is said that the 5th respondent was remitting its share at the rate of 12% of Rs.5,000/6500, i.e. the statutory minimum contribution by the employer. It is stated that in the initial years, the salary of the employees was less than Rs.6,500/-. It is further said that the 5th respondent failed to contribute its share of employees' provident fund contributions in proportion to the actual salary of the petitioners. Furthermore, since December 2014, the 5th respondent has been remitting 12% of the actual salary of its employees as the employer’s share to the provident fund. Thus, the employees who joined the service of the 5th respondent before December 2014 are prejudicially affected by the nonpayment of the employer’s share of contribution to the provident fund at the rate of 12% of their actual salary. 4. The Government of Kerala had issued an intimation [Ext.P1] to the Managing Director of the 5th respondent permitting the 5th respondent to remit provident fund arrears strictly adhering to paragraphs 32A and 30(3) of the EPF Scheme. Pursuant to Ext.P1, the 5th respondent had issued a communication [Ext.P2 dated 08.09.2020] to the 3rd respondent requesting to allow the 5th respondent to remit the arrears of the employer’s contribution to the provident fund account of the employees equal to their contribution for the period prior to 2014. The 4th respondent considered the request of the 5th respondent and vide Ext.P3 order/communication dated 30.09.2020, declined the request for making a higher contribution for the period prior to 2014. 5. It is stated that after Section 6A was inserted into the EPF Act, the Pension Scheme was framed. Under the scheme, the maximum pensionable salary was fixed at Rs.5,000/-. The corpus of the pension fund was to be constituted by transferring 8.33% out of the employer’s contribution under Section 6 of the EPF Act to the Scheme Fund. Subsequently, by an amendment, the ceiling limit was enhanced from Rs.5,000/- to Rs.6,500/- with effect from 01.06.2001. Under the scheme, the maximum pensionable salary was fixed at Rs.5,000/-. The corpus of the pension fund was to be constituted by transferring 8.33% out of the employer’s contribution under Section 6 of the EPF Act to the Scheme Fund. Subsequently, by an amendment, the ceiling limit was enhanced from Rs.5,000/- to Rs.6,500/- with effect from 01.06.2001. In the meantime, a proviso was added to paragraph 11(3) of the Pension Scheme with effect from 16.03.1996 granting an option to the employer and the employee, on a joint request, to contribute amounts to the provident fund over and above the ceiling limits and on the actual salary. 6. It has been submitted that the Supreme Court, in the case of R.C. Gupta v. Regional Provident Fund Commissioner, 2018 (14) SCC 809 , interpreting the proviso in paragraph 11(3) of the Pension Scheme, repelled the contention of the provident fund authorities that the said proviso contemplated the exercise of option within a specified time. This would mean that under the said proviso, the option could have been exercised for higher contribution by the members of the pension scheme whose pensionable salary exceeded Rs.6,500/- at any time. However, the said proviso was omitted by the amendment of 2014. Rs.6,500/- was the maximum pensionable salary prior to 01.09.2014. 6.1 It has been further stated that no contribution had been made to either the pension fund or the provident fund on actual salaries from 16.11.1995 by the employer of its contribution of provident fund above the statutory wage limit in the case of the petitioners. Even under the proviso to paragraph 11(3) of the Pension Scheme wherein it was provided that in case of contribution above the statutory wage limit to the pension fund, the pensionable salaries shall be based on “such higher salary” on which contribution has been received to the pension fund from the date the salary exceeded Rs.6,500/- or from the date of commencement of the Scheme. It would mean that “such higher salary” is the salary on which the contribution has been made and not the higher salary earned by the member. Therefore, the pensionable salary would be only such a higher salary on which contributions are remitted to the pension fund by the employer. It would mean that “such higher salary” is the salary on which the contribution has been made and not the higher salary earned by the member. Therefore, the pensionable salary would be only such a higher salary on which contributions are remitted to the pension fund by the employer. 6.2 It has been also held by the Supreme Court in the case of Employees Provident Fund Organisation v. Sunil Kumar B, 2022 SCC OnLine SC 1521 that retrospective contributions in the provident fund and the pension fund cannot be permitted. In view thereof, it has been said that the employer cannot contribute retrospectively to the pension fund in excess of statutory limits just to derive benefits which were not available to the members when the contribution was limited to statutory wages. Petitioners’ submission: 7. Mr R Sanjith, learned Counsel for the petitioners, argued that the modification to the pension scheme became effective from 1st September 2014, which was challenged in different writ petitions in several High Courts. The High Courts of Kerala, Rajasthan and Delhi decided in favour of the employees and invalidated the notification dated 22.08.2014 modifying the Pension Scheme with effect from 01.09.2014. The Supreme Court in Sunil Kumar B (supra), after examining the provisions of the EPF Act and the Scheme framed thereunder held that the judgment in R C Gupta (supra) was delivered examining the provisions of paragraph 11 of the Scheme as it stood prior to the notification dated 22.08.2014. The changes brought by the amended provision altered the methodology of computing pensionable salary, which has an impact on the quantum of monthly pension. Instead of taking twelve months of average pay in the year preceding the date of a member’s exit from the pension fund, the computation was contemplated based on average monthly pay drawn during the contributory period of service in the span of 60 months preceding the date of exit. 7.1 In the post-amendment context, the maximum pensionable salary was to be kept at Rs.15,000/- per month, raising the earlier ceiling of Rs.6,500/- per month. 7.1 In the post-amendment context, the maximum pensionable salary was to be kept at Rs.15,000/- per month, raising the earlier ceiling of Rs.6,500/- per month. It was provided that an existing member, who, at the option of the employer and the employee, as on 01.09.2014 had been contributing on a salary exceeding Rs.6,500/- per month could exercise a fresh option jointly with the employer to continue to remain in the fund even if the salary went beyond Rs.15,000/- per month and the pensionable salary for the existing member exercising such an option was to be based on the higher salary. 7.2 Under the post-2014 regime, the fourth proviso to sub-clause (4) of paragraph 11 provides that if no option is exercised by a member within the aforesaid period, it would be deemed that the concerned member has not opted for contribution over the wage ceiling. In such a case, the contributions to the pension fund made beyond the wage limit in respect of such a member are to be diverted to the provident fund account of the member along with interest, as declared under the EPF Scheme from time to time. Respondent's submission: 8. Mr Sajeev Kumar K Gopal, learned Standing Counsel for the Employees Provident Fund Organisation, submits that under the Scheme, contribution on wages higher than the statutory wage limit is dealt with under Paragraph 26(6) of the Scheme. As per paragraph 26(6) of the Scheme, for remittance of provident fund contribution on wages above the statutory ceiling, the joint option of the employee and the employer is to be submitted and the same is required to be accepted by the Employees Provident Fund Organization. Paragraph 26(6) of the EPF Scheme gives an option for a higher contribution of more than the ceiling limit of Rs.15,000/- on a joint option with effect from 01.09.2014. 8.1 It is further submitted that the higher contribution with retrospective effect cannot be allowed as it would create an imbalance, as the funds could not have earned the income by way of interest from the higher subscription to be allowed retrospectively. 8.1 It is further submitted that the higher contribution with retrospective effect cannot be allowed as it would create an imbalance, as the funds could not have earned the income by way of interest from the higher subscription to be allowed retrospectively. The learned Counsel for the respondents has placed reliance on the Supreme Court judgment in M/s Pawan Hans Limited v. Aviation Karmachari Sanghatana, (2020) 13 SCC 506 thus: “"Provident Fund is normally managed on actuarial basis" the contributions received from employer and the employee are invested and the income by way of interest forms the substantial fund through which any payout is made. For all these years the Fund in question was subsisting on contributions made by the other employees and, if at this stage, the benefit in terms of the judgment of the High Court is extended with retrospective effect, it may create imbalance. Those who had never contributed at any stage would now be members of the fund. The fund never had any advantage of their contributions and yet the fund would be required to bear the burden in case any payout is to be made. Even if concerned employees are directed to make good contributions with respect to previous years with equivalent matching contribution from the employer, the fund would still be deprived of the interest income for past several years in respect of such contributions". 8.2 Furthermore, it is submitted that if both the employer and the employee opt for a deposit against the actual salary and not the ceiling amount, the exercise of the option under paragraph 26 of the EPF Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of the option under clause 11(3). Exercise of such option would not foreclose the exercise of a further option under clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated. Under the Pension Scheme there is no contribution payable separately. Under paragraph 3 of the Pension Scheme, from the contributions payable by the employer in each month under Section 6 of the EPF Act, the employer shall remit a part of the contribution representing 8.33% of the employee pay to the Pension Scheme. Therefore, it is only the employer’s share of contribution payable under the EPF Scheme that is being diverted to the Pension Scheme to the extent as aforesaid. Therefore, it is only the employer’s share of contribution payable under the EPF Scheme that is being diverted to the Pension Scheme to the extent as aforesaid. The option to contribute on a pay exceeding the statutory limit is available to a member only under paragraph 26(6) of the EPF Scheme and not under paragraph 11(3) of the Pension Scheme. 8.3 Paragraph 11(3) clarifies the methodology of pensionable salary only on exercising the option to contribute on higher pay to the Pension Scheme would obviously mean a contribution on higher salary to the Provident Fund as well. Paragraph 11(3) provision will apply only to those employees who have been contributing on a higher pay under paragraph 26(6) of the EPF Scheme. Learned Counsel for the respondent has supported the decision in Ext.P3 and submits that there is no merit in the writ petition and may be dismissed. Discussion and Analysis: 9. I have considered the submissions advanced on behalf of both parties and perused the records. I have also considered the judgment of the Supreme Court in the case of Sunil Kumar B (supra). 10. Out of the 16 petitioners, 9 petitioners retired prior to 01.09.2014, and the remaining 7 petitioners after 01.09.2014. The details of the remittances on higher wages made by the petitioners are given in paragraph 3 of the counter affidavit, which is extracted hereunder: Sl. No. Name of the Petitioner Date of Joining Date of Exit Date from which remittance on higher wages made 01 Jose V Thomas 22.12.1981 31.05.2020 01/2015 02 Sabu P Thomas 01.01.1986 31.05.2019 01/2015 03 Mariyamma K M 3.01.1984 27.08.2010 Not made till DLS 04 Radhamony N 01.04.1987 31.02.2009 --do-- 05 K Ambi 23.01.1984 28.02.2010 --do-- 06 Stella N S 14.06.1982 30.09.2011 --do-- 07 Uma 01.04.1987 30.04.2010 --do-- 08 Rethi N 15.05.2000 31.03.2019 01/2015 09 Kusuma Kumary 15.05.2000 31.01.2017 01/2015 10 Umayamma 01.04.1987 30.04.2017 01/2015 11 Suprabha 06.01.1987 28.02.2014 Not made till DLS 12 Mary Joseph 01.02.1981 31.12.2012 --do-- 13 Chandrasekharan Nair 15.06.1982 30.09.2013 Only for the month 09/2013 (W/M) 14 Robert N S 01.12.1977 31.03.2009 Data not available 16 Kanakamma 30.11.1981 31.03.2017 01/2015 to DLS 11. Under the EPF Scheme, contribution on wages higher than the statutory wage limit is dealt with in paragraph 26(6). Paragraph 26(6) of the EPF Scheme reads as under: 26. Under the EPF Scheme, contribution on wages higher than the statutory wage limit is dealt with in paragraph 26(6). Paragraph 26(6) of the EPF Scheme reads as under: 26. Classes of employees entitled and required to join the fund: (6) Notwithstanding anything contained in this paragraph [an officer not below the rank of an Assistant Provident Fund Commissioner] may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enrol such employee as a member or allow him to contribute more than rupees [fifteen thousand rupees] of his pay per month if he is already a member of the Fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the Fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee.” 11.1 As per the EPF Scheme, an employer is mandated to pay contributions up to the statutory limit as clarified in the second proviso to paragraph 26A(2). The contributions above the statutory limit are voluntary on behalf of the employer, and therefore, the Employees Provident Fund Organisation has no power to force the employer to pay contributions above the statutory limit. 12. Section 6 of the EPF Act reads as under: Section 6. The contribution which shall be paid by the employer to the Fund shall be 12% of the basic wages, [DA and retaining allowance (if any) for the time being payable to each of the employees (whether employed by him directly or by or through a contractor), and the employee's contribution shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires, be an amount exceeding 12%. of his basic wages, dearness allowance and retaining allowance (if any), subject to the condition that the employer shall not be under any obligation to pay any contribution over and above his contribution payable under this section], i.e. statutory limit.” 12.1 The option to contribute on pay exceeding the statutory limit is available only to a member under paragraph 26(6) of the EPF Scheme. If a member opts to contribute on higher pay, which is a contribution on higher pay to provident fund under paragraph 26(6) and the Pension Scheme, same would be subject to exercise options under paragraph 11(3)/11(4) under the Pension Scheme as well. Thus, a joint option under paragraph 26(6) by both the employer and the employee has to be submitted for a higher contribution towards the provident fund from the date the employee crosses the statutory limit. 13. The Supreme Court in Marathwada Gramin Bank Karamchari Sanghatana v. Management of Marathwada Gramin Bank, (2011) 9 SCC 620 has held thus: The respondent bank is under an obligation to pay provident fund to its employees in accordance with the provisions of statutory Scheme. The respondent bank cannot be compelled to pay the amount in excess of its statutory liability for all times to come just because the respondent bank formed its own trust and started paying provident fund in excess of its statutory liability for some time. The appellants are certainly entitled to provident fund according to the statutory liability of the respondent bank.” 14. The Supreme Court in its judgment in the case of M/s.Pawan Hans Limited v. Aviagtion Karmachar Sanghatana (supra) in respect of retrospective contribution in provident fund and pension fund has held thus: Provident Fund is normally managed on actuarial basis" the contributions received from employer and the employee are invested and the income by way of interest forms the substantial fund through which any payout is made. For all these years the Fund in question was subsisting on contributions made by the other employees and, if at this stage, the benefit in terms of the judgment of the High Court is extended with retrospective effect, it may create imbalance. Those who had never contributed at any stage would now be members of the fund. The fund never had any advantage of their contributions and yet the fund would be required to bear the burden in case any payout is to be made. Even if concerned employees are directed to make good contributions with respect to previous years with an equivalent matching contribution from the employer, the fund would still be deprived of the interest income for past several years in respect of such contributions". Even if concerned employees are directed to make good contributions with respect to previous years with an equivalent matching contribution from the employer, the fund would still be deprived of the interest income for past several years in respect of such contributions". Thus, retrospective contributions cannot be allowed, and the employer cannot contribute retrospectively to the pension fund in excess of statutory limits to derive benefits that were not available to the members when contributions were limited to statutory wages. 15. The Supreme Court in paragraph 46 of the judgment in Sunil Kumar B (supra) has held as under: 46. We accordingly hold and direct:- (i) The provisions contained in the notification no. G.S.R. 609(E) dated 22nd 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 22nd 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 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 cutoff date and thus those members shall be entitled to exercise option in terms of paragraph11(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 amended paragraph 11(4) of the pension scheme. Their exercise of option shall be in the nature of joint options 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 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 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 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. 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 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.” 16. Section 2(f) of the EPF Act defines ‘employee’ as under: (f) “employee” means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his wages directly or indirectly from the employer, and includes any person— (i) employed by or through a contractor in or in connection with the work of the establishment; (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment;” 16.1 After leaving service, a person cannot be treated as an ‘employee’ and he cannot exercise the option under paragraph 26(6). Though no time limit is prescribed under the Scheme for exercising the option under paragraph 26(6) of the EPF Scheme, it does not mean that the option can be exercised even after retirement/superannuation. Learned Counsel for the petitioners has not been able to produce any judgment where the Supreme Court or any other High Court has allowed higher contribution to the employee's provident fund in respect of an employee by the employer after the employee demits office. Conclusion: 17. Learned Counsel for the petitioners has not been able to produce any judgment where the Supreme Court or any other High Court has allowed higher contribution to the employee's provident fund in respect of an employee by the employer after the employee demits office. Conclusion: 17. In the present case, it may be noted that no contribution has been made in respect of the petitioners to either the pension fund or the provident fund on actual salaries from 16.11.1995 till December 2014 by the employer. The employer did not contribute to the provident fund above the statutory wage limit. The petitioners never, along with their employer, exercised the option to pay higher contributions on actual salary, if any, exceeding the base ceiling under the Pension Scheme. Therefore, they cannot be allowed to exercise the option at this stage under paragraph 11(3)/11(4) of the Pension Scheme to make pension contributions on actual wages by the employer. 18. As held by the Supreme Court in M/s. Pawan Hans Limited (supra), the provident fund is managed on an actuarial basis from the contributions received from the employer and the employee. The contributions received from the employer and the employees are invested and the income by way of interest forms the substantial fund through which any payout is made. If the contributions are allowed to be made retrospectively, it would create an imbalance as such contributions could not have earned any interest, which forms the substratum of the fund for making the payout. Result: Therefore, I am of the considered view that the employer cannot retrospectively contribute to the pension fund in excess of the statutory limits after the employees have retired from service. I do not see any illegality in the impugned decision in Ext.P3, and the stand taken by the 1st to 4th respondents is in accordance with the law. Thus, the writ petition fails, which is hereby dismissed.