Pensionable salary must include retrospective wage revisions and arrears, as established by judicial precedent.

JUDGMENT :

Mohammed Nias C.P., J.

The petitioners herein were the employees of the 2^nd respondent, who retired from service on 31.07.2018 and 30.04.2017, respectively. The petitioners were subscribers to the Employees Provident Fund Scheme (for short, 'EPF') and Employees Pension Scheme (for short, 'EPS'). The petitioners submit that after their retirement, their wages were revised retrospectively. They argue that the contribution payable to the EPF is based on the basic wages, which is defined under Section 2(b) of Employees' Provident Funds and Miscellaneous Provisions Act 1952 (for short, 'the Act') to include all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which are paid or payable in cash to him. Therefore, it is the contention that on retrospective revision of wages, the employer is bound to collect the difference of contribution to the EPF from the arrears of wages and remit the same in the respective EPF account of the employees, which has been done in the instant case.

2. It is also urged that, based on such wage revision and contribution, the pension payable is also to be revised. The petitioner says that in identical circumstances, through Ext.P7 judgment, the issue has been held in favour of the petitioners therein, who are similarly situated based on the judgment of the Supreme Court reported in Prantiya Vidhyut Mandal Mazdoor Federation and Others vs. Rajasthan State Electricity Board and Others (1992 (2) SCC 723), which was followed by this Court in WPC 10162 of 2012 and connected cases dated 15.02.2013. Accordingly, direction was given in those cases to recompute the quantum of pension based on the revision of pay effected retrospectively and to take a decision following the dictum laid down in the aforesaid case.

3. The learned counsel also brings to my notice the judgment of this Court in Mohan K.S vs. Regional Provident Fund Commissioner (2024 KHC online 7281) which also repelled the contention of the respondent that since the pension contributions on the arrears of DA and pay revision benefits are paid in bulk, the same cannot be considered for the purpose of computation of pensionable salary. It was found that the pension contributions of the employer and employee are arising out of the pay revision, have been revised by respondents 1 to 3. Such pay revision benefits, being due, are to be added to the monthly wages retrospectively, and such enhanced monthly wages should be the basis for the calculation of the pensionable salary. I find substantial force in the contention of the learned counsel for the petitioner that the issue is covered in his favour by Ext.P7 judgment and the judgment in Mohan K.S (supra). The petitioner also relies on Exts.P9 dated 16.05.2011 and P10 dated 18.01.2025, which deal with the contributions towards PF on the amount of arrears and levying damages/interest under Section 14B (7Q) of the Act.

4. The prayer in the writ petition is to command the respondents to revise the pension payable to the petitioner under the Employees Provident Pension Scheme based on the average revised monthly pay drawn in any manner during the contributory period of service in the span of twelve months preceding the date of exit from the membership of the pension fund, within a time frame.

5. At the time when the writ petition was filed, the period of twelve months, which was brought in through the amendment in the year 2014 was struck down. According to the petitioners, the pension payable to them are calculated on the basis of average salary for 60 months prior to their retirement.

6. The above stipulation brought out by the Government in a notification dated 22.08.2014 with effect from 01.09.2014 was declared as bad by this Court in the judgment in P.Sasi Kumar and Others Vs. Union of India and Ors. reported in [ILR 2019 (1) Kerala 614]. The appeal filed against the same was allowed