IMPORTANT POINT
Pensionable salary must include all payments made during the last 60 months of service, including arrears and pay revision benefits.

JUDGMENT :

N. NAGARESH, J.

The petitioner retired on superannuation on 31.10.2014 while working under the Kerala Co-operative Milk Marketing Federation Limited. The petitioner is a subscriber to the Employees Provident Fund Scheme and Employees Pension Scheme. In this writ petition, the petitioner seeks to declare that the pensionable salary is to be calculated based on the average monthly pay drawn in any manner during the contributory period of service in the span of 60 months preceding the date of exit from the pension fund, without any exclusion of lumpsum payment.

2. The petitioner states that he along with others filed W.P.(C) No.5740/2015 seeking for a direction to sanction pension under the Employees Pension Scheme on the basis of actual salary. This Court, by judgment dated 24.02.2015, directed to refund the PF amounts already withdrawn with interest accrued thereon, to the Employees Provident Fund Organisation. The petitioner was required to refund Rs.5,18,478/-.

3. The petitioner remitted the said amount. The 2nd respondent thereafter issued Ext.P2 revised Pension Payment Order dated 11.09.2017 sanctioning Rs.12,065/- as monthly pension. Dissatisfied with the amount of monthly pension sanctioned, the petitioner requested the respondents to provide details regarding calculation of the amount of share to be remitted by the employee. The respondents thereupon Ext.P3 letter together with calculation statement. From the calculation statement, the petitioner noted that in certain months between January, 2010 and July, 2014, the salary for such months were reduced for the calculation of pensionable salary. This is evident from Ext.P4 information.

4. In Ext.P4, the salary for 60 months is taken as Rs.23,27,668/- and the pensionable salary is taken as Rs.38,794/-. However, in Ext.P3, the pensionable salary for the 60 months was taken as Rs.30,38,708/-.

5. The 4th respondent, as per Ext.P5 letter, informed the 1st respondent that after retirement of the petitioner, he was paid arrears of salary consequent to the declaration of DA and pay revision with retrospective effect. In the Form-3A submitted by the employer, the arrears of salary was shown as single payment and that it will make difference in actual salary for corresponding several months. The 4th respondent stated that monthly pension is worked out considering the last drawn salary actually drawn by the petitioner during 60 months prior to the retirement.

6. The petitioner states that the total salary drawn by the petitioner during 60 months preceding his date of retirement is Rs.26,86,570/-. The petitioner's pensionable salary therefore would be Rs.44,776/- per month. The petitioner is entitled to monthly pension taking Rs.44,776/- as pensionable salary.

7. The petitioner therefore requested the respondent to rework the pension. The petitioner had to file W.P.(C) No.61/2021 before this Court. The said writ petition was disposed of as per Ext.P6 judgment directing the 1st respondent to take a decision on the representation of the petitioner after affording the petitioner an opportunity of hearing. The 1st respondent thereupon issued Ext.P7 letter holding that the petitioner's eligibility to get pensionary benefits on the basis of higher wages will depend on the ongoing litigation in the Supreme Court.

8. The petitioner states that though the Hon'ble Supreme Court took a decision dated 04.11.2022 in Employees Provident Fund Organisation and others v. V. Sunil Kumar and others [2022 (7) KHC 12 (SC)], the 1st respondent did not take a decision rectifying the mistake committed while calculating the pension payable to the petitioner.

9. The petitioner then filed W.P.(C) No.22783/2023. This Court, by Ext.P10 judgment dated 25.08.2023, directed the 1st respondent to pass orders on Ext.P8 and P9 representations of the petitioner. On enquiry made by the petitioner, the 1st respondent issued Ext.P12 letter stating that the issue of paying pension to the petitioner on higher salary with re