Employees of District Co-operative Banks must be allowed to retain pension rights under the EPF Pension Scheme, as exclusion based on subsequent policies may not override prior entitlements based on contributions.

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. 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