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2025 DIGILAW 2595 (KER)

P. J. George, S/o. Joseph v. Regional Provident Fund Commissioner

2025-10-06

P.M.MANOJ

body2025
JUDGMENT : P.M.MANOJ, J. The petitioners in WP(C) No.29215 of 2019 are the retired employees of Idukki District Co-operative Bank, whereas the petitioner in WP(C) No.974 of 2020 is a retired employee of Kottayam District Co-operative Bank. 2. The common question involved in these cases is whether the 2 nd respondent, the Regional Provident Fund Commissioner, can discontinue the pension on the ground that the respective District Co-operative Banks are excluded from the EPF Pension Scheme, 1995, in view of the introduction of the Self Financing Pension Scheme for employees of District Co-operative Banks. 3. The petitioners in both the writ petitions retired from the service of their respective District Co-operative Banks. They had made contributions to the Contributory Provident Fund, which was applicable to all employees of District Co-operative Banks. Thus, they were contributing to the EPF Scheme, 1952. While continuing so, a new pension scheme was introduced for the employees of District Co- operative Banks by SRO No.421/2005 dated 02.03.2005, granting exclusion under Section 16(1) (b) & (c) of Employees Provident Fund & Miscellaneous Provisions Act, 1952, from the provisions of EPF Pension Scheme, 1995 by GO(MS) No.81/2009/LBR dated 30.06.2009. Upon the petitioners’ exclusion from the EPF Pension Scheme, 1995, their pension contributions under that scheme were discontinued. The petitioners were then enrolled in the District Co-operative Bank Employees Self-Financing Pension Scheme, 2005. 4. The said exclusion was challenged before this Court in various writ petitions. That culminated in Diwakaran v. State of Kerala [ 2012 (1) KLT 633 ], wherein this Court quashed the orders granting exclusion from the provisions of the Act. However, it was made clear that the judgment would not stand in the way of any establishment or class of establishments moving afresh for exemption under Section 17(1-C) of the Act. No provision of law has been shown to the Court to establish that the EPF Scheme, 1995 and the State Self Financing Pension Scheme cannot co-exist, in the absence of any exclusion or exemption. It was made clear that employees who had already enrolled under the Self Financing Pension Scheme would remain unaffected. The question as to whether the EPF scheme is more beneficial than the State Self-Financing Scheme or vice versa was left open. It was made clear that employees who had already enrolled under the Self Financing Pension Scheme would remain unaffected. The question as to whether the EPF scheme is more beneficial than the State Self-Financing Scheme or vice versa was left open. The afore judgment was taken in appeal by the State Co-operative Employees Pension Board, which ended up in judgment, Kerala State Co-operative Employees Pension Board v. Udayakumar [ 2012 (3) KLT 820 ], wherein it was held that transfer of contributions under the EPF Scheme, 1952 or the Employees’ Pension Scheme, 1995 to the Pension Board in respect of any retired or continuing member could be made only with his/her consent. Thereby, it is contended by the petitioners that the employees are free to leave the pension scheme. This judgment was challenged before the Apex Court. 5. During the pendency of the appeal before the Apex Court, certain employees of the District Co-operative Bank filed WP(C) No.21542 of 2012 seeking permission to continue under the EPF Pension Scheme, 1995, which was dismissed by the learned Single Judge, against which WA No.13/2016 was preferred. However, that was allowed by judgment dated 13.10.2017, holding that all contributions of the employees of the District Co-operative Bank were liable to be returned to the PF Commissioner, as a consequence of the exclusion notification, which was set aside by the learned Single Judge by Diwakaran supra. That was upheld by the Division Bench and not interfered by the Apex Court. The Division Bench concludes thus: “This is what has disturbed us. If parties so desired, the proper remedy for them was to approach the Apex Court, where the matter was pending, for stay. As we are told at the Bar, the State Pension Fund Board, which is the appellant before the Apex Court, did move stay application, but no stay was granted. The effect of the order under appeal, passed by the learned Single Judge is, even though the Apex Court did not grant stay of the judgment of the Division Bench, the learned Single Judge by passing an order staying all coercive steps, effectively stayed the judgment of the Division Bench. On this ground itself, we would allow the appeal and set aside the judgment under appeal. On this ground itself, we would allow the appeal and set aside the judgment under appeal. The effect would be that all the money of the employees of the establishment i.e., the Co-operative Bank would be required to be returned to the PF Commissioner as a consequence of the exemption notification having been set aside by the learned Single Judge and Division Bench and not yet interfered with by the Apex Court. Let the same be done forthwith.” Thereby, it is contended that this Court has declared that the employees of the District Co-operative Banks are entitled to continue making contributions to the EPF Pension Scheme, 1995 as the exclusion order issued by the Government was interfered with. The respective District Co-operative Banks had been making contributions to the EPF Pension Scheme, 1995, which was discontinued on the introduction of the District Co-operative Bank Employees Pension Scheme with effect from 30.06.2009. The petitioners, having retired from service prior to that, were getting EPF Pension based on the contribution made by them, limited to Rs.6,500/-, resulting in a monthly pension of around Rs.2,000/- or less. Thereafter, with effect from 01.09.2014, the said limitation was enhanced to Rs.15,000/-, and the pension was calculated on the average of 60 months instead of 12 months and they were directed to exercise a fresh option, which was challenged before this Court and culminated in judgment - Sasikumar P and others v. Union of India and others [ILR 2019 (1) Ker. 614] which held; i. The employees pension (Amendment) Scheme, 2014 brought into force by Notification No.GSR.609(E) dated 22.08.2014 is set aside. ii. All consequential orders and proceedings issued by the Provident Fund authorities/respondents on the basis of the impugned amendments also stand set aside. iii. The various proceedings issued by the Employees Provident Fund Organisation declining to grant opportunities to the petitioners to exercise a joint option along with other employees to remit contributions to the Employees Pension Scheme on the basis of the actual salaries drawn by them are set aside. iv. The employee shall be entitled to exercise the option stipulated by paragraph 26 of the EPF Scheme without being restricted in doing so by the insistence on a date. 6. iv. The employee shall be entitled to exercise the option stipulated by paragraph 26 of the EPF Scheme without being restricted in doing so by the insistence on a date. 6. It is further contended that, once the petitioners retired from service prior to the introduction of the new scheme, they are governed by the scheme that was in operation at the time of their retirement. On the strength of the reported decision, Neelima Srivastava v. State of Uttar Pradesh and others [2021 KHC OnLine 6408], it is contended, it is well settled that it is impermissible for the parties to reopen the concluded judgments of the court, as the same would not only be tantamount to an abuse of the process of the court but would also have a far reaching adverse impact on the administration of justice. As per the settled position in Diwakaran and the Kerala State Co-operative Employees Pension Board supra, this issue cannot be reopened, since it provides an option to the retired employees. In such cases, funds are to be transferred to the Employees Pension Fund Board for the continuation of pensionary benefits as per the then-existing scheme. 7. On the other hand, the learned Standing Counsel for the 2 nd respondent contended that the issue is a closed chapter since the Apex Court in Civil Appeal No.6575 of 2014 in State of Kerala v. Udayakumar and others, restricted the benefit only to 333 persons and extended to another set of respondents who were earlier denied. It was held that if they are eligible, they can approach the State, and in such cases, the appellant State would have to work out a remedy for that number of people. The Apex court also decided that the scheme, which has now been accepted in terms of the present order, will naturally be in supersession of the impugned orders. Thus, the Standing Counsel submitted that the petitioners are not entitled to reopen the scheme for their benefit. 8. Moreover, this Court by judgment dated 29.01.2024 in WP(C) No.37845 of 2017 declined to issue a direction to the Kottayam Dist. Co-op. Bank to transfer the Provident Fund amounts and pension contribution to the Employees Provident Fund Organisation. Thus, the Standing Counsel submitted that the petitioners are not entitled to reopen the scheme for their benefit. 8. Moreover, this Court by judgment dated 29.01.2024 in WP(C) No.37845 of 2017 declined to issue a direction to the Kottayam Dist. Co-op. Bank to transfer the Provident Fund amounts and pension contribution to the Employees Provident Fund Organisation. This Court held that the petitioners therein were no longer entitled to the benefit under the Employees Provident Fund Scheme, once the court had limited the entitlement of pension under the Employees Provident Fund Scheme to the 333 persons and the additional group referred to in the order dated 24.08.2022 in Civil Appeal No.6575 of 2014. All other persons were held to be entitled only to pension under the Kerala State Co-operative Employees Pension Board. In this regard, though it was argued by the counsel for the respondent that the entire contribution made to the EPF Fund had already been transferred to the respective District Co-operative Banks, the Standing Counsel submitted that in such circumstances, the prayer sought in the writ petition cannot be granted. 9. I have heard Sri.P.N. Mohanan for the petitioners in both the writ petition and Sri. Joy Thattil Ittoop, learned Standing Counsel for the 2 nd respondent. 10. Going by the contentions afore, it is an admitted fact that the employees of the Kerala State Co-operative Banks and the 14 District Co-operative Banks were excluded from the purview of the EPF Act by GO(MS) No.81/2009/LBR dated 30.06.2009. They were thereafter enrolled in the newly framed self financing scheme for the establishment of a pension fund for the payment of pension to the employees of the Kerala State Co-operative Bank and the 14 District Co-operative Banks, with effect from 01.04.2005. By GO(P) No.103/05/Co-op. dated 24.09.2005, the Regional Provident Fund Commissioner-I, Kerala excluded the employees of the Kerala State Co-op. Bank and the 14 District Co-operative Banks from the purview of EPF and MP Act, 1952 under Section 16(1) (b), w.e.f. 01.04.2005, the date on which the self financing scheme was made applicable to the State and District Co-operative Bank employees. They are no longer part of the EPF Pension Scheme 1995 and the Commissioner had already transferred the entire respective contribution to the District Co-op. Banks much before. They are no longer part of the EPF Pension Scheme 1995 and the Commissioner had already transferred the entire respective contribution to the District Co-op. Banks much before. In such circumstances, it may not be advisable to direct the EPF to continue payment of pensionary benefits from the date on which it was stopped or cancelled. 11. It is true that the judgments of this Court in Diwakaran and Kerala State Employees Co-op. pension Fund Board supra confined that the transfer of the respective funds from the EPF Scheme 1952 or EP Scheme 1995, to the Pension Board could be effected only with the consent of the concerned pensioners. However, this issue culminated in the order dated 24.08.2022 in Civil Appeal No.6575 of 2014, wherein the Apex Court restricted the benefit of the earlier schemes to 333 employees and such other employees identified therein. If the petitioners herein are covered by the said order of the Apex Court, they shall be entitled to the benefit of opting for the earlier scheme. In that case, those employees can approach the competent authority, who shall take necessary steps to ensure that their respective contributions, which had already been remitted by the EPF to the District Co-op. Banks, are duly transferred for such purpose. In all other cases, since the then existing schemes were superseded by the Self Financing Pension Scheme, and the contributions have already been transferred to the respective Co-op. Banks, it would not be appropriate to direct those Dist. Co-op. Banks to retransfer the amount to the EPF. In such circumstances, these writ petitions are closed with the above observations.