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2025 DIGILAW 971 (KER)

K. P. Suresh Kumar v. State Of Kerala

2025-04-11

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. This writ appeal is filed under Section 5(i) of the Kerala High Court Act, 1958, by the petitioners in W.P.(C)No.32643 of 2015. By the impugned judgment dated 01.07.2021 the learned Single Judge dismissed the writ petition filed by the appellants- petitioners seeking a writ of certiorari to quash Exts.P4, P5 and P6 communications; a writ of mandamus commanding the respondents to permit the appellants-petitioners to continue under E.P.F Scheme itself and grant their benefits under the E.P.F Act and Scheme framed thereunder; and declare that the action of the respondents directing the Society to bring it under the purview of the Self-Financing Pension Scheme is highly unjust and illegal. 2. The case of the appellants in brief is as under: While holding the post of Secretary, the 1 st appellant retired from the service of the 6 th respondent Palode Co-operative Agricultural and Rural Development Bank Ltd. The remaining appellants are the employees of that society. The 6 th respondent established a Contributory Provident Fund in accordance with the provisions contained in the Kerala Co-operative Societies Act (‘the Act’ in short). The Society and its employees were contributing amounts to the said Provident Fund. From 01.01.1982, the employees of the Society were enrolled as members of the Employees Provident Fund Scheme, 1952 (‘the Scheme’ in short) framed under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (‘EPF & MP Act’ in short). On becoming members of the Scheme, the balance available to the credit of the employees in the Contributory Provident Fund has been transferred to the Scheme framed under the EPF & MP Act. By Ext.P1 order dated 19.06.2006, by invoking the power under Section 17(1-C) of the EPF & MP Act, the Government has granted exemption to the primary Co-operative Societies from the provisions of the Scheme, so as to enable the employees of the Society to enrol as members of Self-Financing Pension Scheme framed under Section 80A of the Act. The appellants challenged this order by filing W.P(C)No.187 of 2010 before this Court, which was dismissed as belated. The appellants challenged this order by filing W.P(C)No.187 of 2010 before this Court, which was dismissed as belated. Against the dismissal of that writ petition, they filed W.A. No. 741 of 2012 which was disposed of by Ext.P2 judgment dated 20.07.2012 declaring that the transfer of funds from the Employees Provident Fund Scheme, 1952 and Employees’ Pension Scheme, 1995 of any retired or continuing member should be made only with his/her consent. The 1 st appellant after his retirement submitted an application seeking pension. The Society also sent Ext.P3 letter dated 11.05.2015 to the Assistant Provident Fund Commissioner intimating the entire aspects including Ext.P2 judgment. However, vide; Ext.P4 communication dated 23.07.2015, the Regional Office of the Employees Provident Fund Organisation informed the Society that the request made by the 1 st appellant seeking pension cannot be considered. It was also directed to intimate the pension fund account number of all the employees so as to transfer the accumulations in the Employees’ Pension Scheme to the Co- operative Pension Fund Corpus. Thereafter, the Kerala State Co- operative Employees’ Pension Board issued Ext.P5 communication dated 15.09.2015 to the Society directing it to take steps to submit applications to enroll all the employees under their Scheme and to allot code numbers. The 7 th respondent also issued Ext.P6 communication dated 16.09.2015 directing the Society to comply with the direction in Ext.P5. Thereafter the appellants filed the writ petition. 2.1. The 2 nd respondent filed a counter affidavit dated 17.11.2019 in the writ petition opposing the averments in the writ petition and producing therewith Exts.R2(a) and R2(b) documents. Respondents 3 to 5 also filed a counter affidavit dated 27.06.2018 producing therewith Exts.R3(a) to R3(c) documents. The appellants filed a reply affidavit dated 05.01.2020 producing therewith Exts.P8 to P9(d) documents. 2.2. After considering the rival pleadings and materials on record and the submissions made at the Bar, the learned Single Judge dismissed the writ petition mainly relying on the judgment of this Court in the Employees Provident Fund Organisation, Thiruvananthapuram v. Kerala State Co-operative Pension Board, Thiruvananthapuram [ 2016 (5) KHC 414 ] 3. Heard the learned counsel for the appellants, the learned counsel for respondents 2 to 5 and the learned Senior Government Pleader. 4. Heard the learned counsel for the appellants, the learned counsel for respondents 2 to 5 and the learned Senior Government Pleader. 4. The learned counsel for the appellant would argue that the judgment in W.A.No.741 of 2012 pertains to the case of the appellants themselves and the stand of the respondents that since a review was filed in certain cases it will bind on the appellants, dehors the binding Division Bench judgment, on the face of it, is not sustainable. This factual aspect was not considered by the learned Single Judge. 5. The learned Senior Government Pleader submitted that once the Government has granted exemption under Section 17(1-C) of the EPF & MP Act, the employees cannot claim that they should be permitted to remain in the Employees Provident Fund Scheme. 6. Section 17(1-C) of the EPF & MP Act reads thus: “The appropriate Government may, by notification in the Official Gazette, and subject to the condition on the pattern of investment of pension fund and such other conditions as may be specified therein, exempt any establishment or class of establishments from the operation of the Pension Scheme if the employees of such establishment or class of establishments are either members of any other pension scheme or propose to be members of such pension scheme, where the pensionary benefits are at par or more favourable than the Pension Scheme under this Act.” 7. In the instant case, by Ext.P1 order dated 19.06.2006, the Government has exempted the primary Co-operative Societies from the provisions of the Scheme. The point arises for consideration in such circumstance is as to whether the appellants can now contend that the said order of the Government is not binding on them, in the absence of their individual consent. 8. As against a batch of decisions of the Division Bench relating to primary Co-operative Societies, in a batch of review petitions filed by the Employees’ Provident Fund Organisation, this Court passed Ext.R3(c) order dated 07.11.2016, whereby the judgments were modified and this Court held that the direction contained in the Division Bench judgment to the extent it permitted the individual employees to opt for transfer of membership from the Employees Provident Fund Scheme, 1952 and from the Employees’ Pension Scheme, 1995, will run contrary to the statutory provisions. The Division Bench further held that since the primary Co-operative Societies are exempted from the provisions of the Employees’ Pension Scheme of EPF, the question of individual option does not arise and the Employees Provident Fund Organization is bound to transfer the amounts standing to the credit of individual employees to the self-financing scheme formulated by the State Government. 9. The contention of the appellants is that since Ext.R3(c) order is not binding on them, as they are not parties to that review petitions. 10. In Vidya Drolia v. Durga Trading Corporation , [ (2021) 2 SCC 1 ] a Three - Judge Bench of the Apex Court reiterated that: “A judgment in rem determines the status of a person or thing as distinct from the particular interest in it of a party to the litigation; and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided. Such a judgment settles the destiny of the res itself and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence. By contrast, a judgment in personam, 'although it may concern a res, merely determines the rights of the litigants inter se to the res'. Distinction between judgments in rem and judgments in personam turns on their power as res judicata, i.e., judgment in rem would operate as res judicata against the world, and judgment in personam would operate as res judicata only against the parties in dispute.” (emphasis Supplied) 11. Viewed in the light of the judgment in Vidya Drolia [ (2021) 2 SCC 1 ] , Ext R3(c) order in the review petitions is applicable to the appellants also and the argument to the contra has no merits. 12. In such circumstances, the appellants’ contention that Ext.P1 order of the Government, exempting primary Co-operative Societies from the provisions of the Scheme under the EPF and MP Act, by invoking the power under Section 17(1-C) of the said Act has not merits. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no ground to interfere with the impugned judgment of the learned Single Judge. In the result, the writ appeal stands dismissed.