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2020 Supreme(Ker) 912
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. Shaffique, Gopinath P., JJ.
Regional Provident Fund Commissioner – Petitioner
Versus
Thomas – Respondent
W.A Nos.811, 937, 940, 944, 952, 963, 993, 1058, 1095, 1098, 1120, 1129, 1170, 1244, 1250, 1256, 1288, 1289, 1299, 1303, 1304, 1310, 1313, 1319, 1325, 1326, 1327, 1328, 1331, 1332, 1333, 1344, 1349, 1356, 1358, 1588 & 1590 of 2020
Decided On : 21-12-2020
Advocate Appeared:
For the Appellant :N.N. Sugunapalan (Sr. Advocate), N.S. Nita, S. Prasanth, Sajeev Kumar K. Gopal, Thomas Mathew Nellimoottil, A. Ahzar & Abraham P. Meachinkara (Dr.)
For the Respondent: Asst. Solicitor General of India (P. Vijayakumar), Addl. C.G.S.C. (L. Girija), C.G.C.s (Chandini G. Nair, P. Vandana, Rojo Joseph Thuruthipara, O.M. Shalina, Joseph Rony Jose, R. Prasanth Kumar, Sreedevi Kylasanath, C.G. Preetha, Haridas P. Nair, M.N. Manmadan, M.A. Vinod, T.V. Vinu, K. Thyagarajeswaran, A.K. Haridas, Thoufeek Ahamed, Krishnadas P. Nair & K.K. Sethukumar), P.N. Mohanan, J. Surya, P. Vijayamma, V. Krishna Menon, G. Maheswary, K.Sudhinkumar, Paulose C. Abraham, Kuryan Thomas, Joson Manavalan, K.John Mathai, M. Gopikrishnan Nambiar, N. Raghuraj, Latha Anand, T.C. Sowmiavathy, H. Narayanan, P. Ramachandran (Palakkad), S.M. Prem, Induchudan, Raja Kannan, Deago John K., R. Mahesh Menon, Achuth Kylas, Denizen Komath, K.S. Mizver, M.J. Kirankumar, K.S. Madhusoodanan, M.M. Vinod Kumar, P.K. Rakesh Kumar, Nisha George, R. Mahesh Menon, Joselal George, K.L. Sreekala, Mariam Mathai, Saji Varghese, M.K. Chandra Mohandas, B.V. Joy Sanker, Thampan Thomas, V.N. Sankarjee, M. Suseela, R. Udaya Yothi, V.N. Madhusudanan, Vincent Joseph & Suseel M.Menon
IMPORTANT POINT
The case of employees who have actually contributed on higher salary but in whose case the remittance to the pension fund was only with reference to the maximum pensionable salary fixed under the scheme would be covered by the Judgment of the Supreme Court
Headnote:
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952- Section 6A -The Employees’ Pension Scheme, 1995-No cut-off date can be fixed for exercise of option under the proviso to sub-clause (3) of Clause 11-An employee who makes an option to contribute a higher salary either at the fag end of his career or after retirement will be immediately entitled to pension calculated with reference to such higher salary.
Statement of facts:
No service on the Secretary of the local authorities, which is a mandatory requirement under law. When there is a denial and when there is no proof as to the service on the Secretary, it has to be assumed that there was no valid service of whip
Finding of the court:
This is a matter requiring attention at the hands of the Central Government (after appropriate actuarial valuation) and it is not for the Courts to direct that the Provident Fund Organization must now accept contributions with reference to actual salary without having had the benefit of regular contributions and growth on account of investments
ORDER :
Gopinath P., J.
These appeals filed by the Employees Provident Fund Organization/its Officers arise from a common Judgment of a learned single Judge of this Court in W.P.(C) No.3846/2019 and connected cases. The petitioners in the various Writ Petitions claimed, that they are entitled, in terms of the provisions contained in The Employees’ Pension Scheme, 1995 (hereinafter referred to as ‘the Pension Scheme’ or as ‘the scheme’) to a pension calculated without reference to any ceiling limit upon further contributions being remitted to their pension fund. The Learned Single Judge has allowed the claim relying on the Judgment of a learned single Judge of this Court in W.P. (C) Nos.6643 of 2007, (This Judgment was affirmed by a Division Bench in W.A No. 569 of 2012 and a Special Leave Petition filed by the Provident Fund Organization before the Supreme Court was rejected on 31.3.2016), the Judgment of a Division Bench of this Court in Sasikumar P. & Ors. v. Union of India & Ors. (2018 KHC 906) & the Judgment of the Supreme Court in R.C.Gupta & Ors. v. Regional Provident Fund Commissioner, Employees Provident Fund Organization & Ors., (2018) 14 SCC 809). The Learned Single Judge directed the Employees Provident Fund Organization to allow the employees concerned to remit the additional contributions either by adjustment of amounts available in the Provident Fund Account (maintained under the Employees Provident Fund Scheme which, is distinct from the pension fund) or by permitting the employees to now remit the shortfall. Therefore, these appeals by the Employees Provident Fund Organization/its officers.
2. We have heard the submissions of Sri. N.N.Sugunapalan, Learned Senior Counsel instructed by Smt. Nita N.S, Sri.Sajeevkumar K.Gopal and Sri. S.Prashant for the Employees Provident Fund Organization and that of Sri.P.N.Mohanan as well as other learned counsel representing the contesting respondents (writ petitioners).
3. The Counsel for the Provident Fund Organization would contend, inter alia, that the pension scheme is a contributory scheme and that the entire corpus of the scheme will be affected if the Judgment of the learned single Judge is implemented. They would submit that where the contributions under the pension scheme have been paid only with reference to the maximum pensionable salary, a member has no option to remit the contribution on actual salary at any point of time and claim that he/she should then be provided with the pension calculated with reference to actual salary and not with reference to the maximum pensionable salary provided for in the scheme. They submit that periodic contribution over a period of time is a sine qua non for providing a pension and by offering to now remit, in one go, the contributions payable with reference to actual salary, the employees cannot get a pension with reference to such actual salary. Periodic contributions are invested in the manner prescribed by the Central Government and the growth in the corpus on account of such investment alone is the basis for grant of pension is their submission. They place reliance on (i) Union of India v. Deoki Nandan Aggarwal; (1992 Supp (1) SCC 323); for the proposition that the Court should not enlarge the scope of the legislation when the language of the provisions are plain and unambiguous; (ii) Jeewanlal Ltd. v. Appellate Authority (1984) 4 SCC 356); for the proposition that while construing a social welfare legislation, the Court should no doubt adopt a beneficent rule of construction and if the section is capable of two constructions, the construction which fulfills the policy of the Act should be adopted however that when the language is plain and unambiguous, the Court must give effect to it whatever be the consequence; (iii) Regional Director, E.S.I. Corporation v. Ramanuja Match Industries, (1985) 1 SCC 218); where it was held: -
