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2018 Supreme(Raj) 1494
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SANJEEV PRAKASH SHARMA, J.
Sh Vinod Kumar Sharma and Ors - Appellants
Versus
Chairman Central Board of Trust and Ors - Respondents
S.B. Writ Review No. 276, 280,285, 296, 297 of 2017, S.B. Civil Writs No. 17569 OF 2016, 17616, 5435, 11110, 13599, 14348, 14349, 15465, 17806, 17808 OF 2017, 7271, 25350 OF 2018
Decided on : 11-12-2018
Advocate Appeared:
For the Appellants : Mr. Deepak Goyal, Mr. S.K.Bhargava, Adv, Mr. Laxmi Kant, Adv, Mr. Suresh Kashyap, Adv, Mr. H.V.Nandwana, Adv, Mr. Vinodi Lal Mathur, Adv.
For the Respondents:Mr.Rajendra Prasad, Advocate assisted by Mr. Atul Singh Chauhan, Mr. Virendra Lodha, Mr. Jai Lodha, Mr. N.K.Maloo, Sr. Adv. assisted by Mr. Vishnu Bohra, Mr. Anuroop Singhi, Adv. with Mr. Tarun Verma & Mr. Vinayak Joshi, Adv.
Headnote:
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 – Writ petitions as counsel for both parties agreed that issue involved in bunch of writ petitions was no more res-Integra in view of judgment passed by Supreme Court in case decided and thereupon, quoting paras of judgment in case of R.C. Gupt. petitioners in bunch of writ petitions granted liberty to submit option in terms of Clause 11(3) of Pension Scheme and Provident Fund Commissioner directed to release all consequential benefits accordingly as directed by Supreme Court in case of R.C. Gupta –Held, Opinion of Court, such notification will not apply in view of judgment passed by Supreme Court in case of R.C. Gupta & ors, It is also noted that Division Bench of High Court of Kerala vide its judgment has also set aside Employees Pension Amendment Scheme issued vide notification dated 22/08/2014 whereby the aforesaid proviso was deleted. Even otherwise, same could not have applied to existing employees who are already members of Scheme and could only apply if at all to employees who become members of Scheme after notification, view thereof, benefit of this judgment would also be applicable to existing employees who are yet to retire – Writ petitions allowed. (Para 25, 26)
Facts of the case: Writ petitions as counsel for both parties agreed that issue involved in bunch of writ petitions was no more res-Integra in view of judgment passed by Supreme Court in case decided and thereupon, quoting paras of judgment in case of R.C. Gupt. Petitioners in bunch of writ petitions granted liberty to submit option in terms of Clause 11(3) of Pension Scheme and Provident Fund Commissioner directed to release all consequential benefits accordingly as directed by Supreme Court in case of R.C. Gupta.
Findings of the court: Opinion of Court, such notification will not apply in view of judgment passed by Supreme Court in case of R.C. Gupta & ors, It is also noted that Division Bench of High Court of Kerala vide its judgment has also set aside Employees Pension Amendment Scheme issued vide notification dated 22/08/2014 whereby the aforesaid proviso was deleted. Even otherwise, same could not have applied to existing employees who are already members of Scheme and could only apply if at all to employees who become members of Scheme after notification, view thereof, benefit of this judgment would also be applicable to existing employees who are yet to retire.
Result: Writ petitions allowed.
1. Since the question involved in the aforesaid review petitions as well as writ petitions is identical, the same are being decided by this common order.
2. This Court vide its order dated 19/05/2017 had decided the bunch of writ petitions as counsel for both the parties agreed that the issue involved in the bunch of writ petitions was no more res-integra in view of the judgment passed by the Supreme Court in the case of R.C. Gupta & ors. Vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization & ors. (Civil Appeal Nos.10013-10014/2016), decided on 04/10/2016 and thereupon, quoting the paras of the judgment in the case of R.C. Gupta & ors. (supra), the petitioners in the bunch of writ petitions were granted liberty to submit option in terms of Clause 11(3) of the Pension Scheme and the Provident Fund Commissioner was directed to release all the consequential benefits accordingly as directed by the Supreme Court in the case of R.C. Gupta & ors. (supra).
3. The Regional Provident Fund Commissioner, Employees Provident Fund Organization and the Central Provident Fund Commissioner (Pension), Employees Provident Fund Organization alongwith Secretary, Ministry of Labour and Employment, Department of Employment, Government of India have preferred the aforesaid review petitions seeking review of the order dated 19/05/2017 (supra) passed by this Court in the bunch of writ petitions and it has been stated in the review petitions that the order dated 19/05/2017 was sent to the Office of Central Provident Fund Commissioner, New Delhi and the matter was examined and it was found that case of R.C. Gupta & ors. (supra) is not applicable to the bunch of writ petitions. Accordingly, the respondents-review petitioners submit that they do not agree in the facts of the case in hand before this Court that the judgment of the Supreme Court in the case of R.C. Gupta & ors. (supra) would apply. The respondents-review petitioners further submit as under:-
(A) Under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “1952 Act”), 10% or 12% of the basic wages including dearness allowance etc. is required to be deposited in the Provident Fund Account of an employee as the employer’s share. When the 1952 Act was enacted there was no provision for pension. However, by amendment w.e.f. 16.11.1995 Sub-section 6A was inserted, which provided Employees’ Pension Scheme to be framed for payment of pension to the retiring employees.
(B) For the purpose of constituting the corpus of the pension fund, out of the contribution u/s. 6 of the 1952 Act, 8.33% of the employer’s contribution was required to be remitted to Pension Fund.
(C) It is stated that the Pension Scheme, which was framed to give effect to the provisions of Section 6A contains inter alia Clause 11 of the Employees’ Pension Scheme, 1995 (hereinafter referred to as “Pension Scheme”), which deals with determination of pensionable salary. The Pension Scheme came into effect from 16.11.1995. Clause 11 (3) of the Pension Scheme provided for maximum pensionable salary limited to Rs. 5000/-, which was later w.e.f. 01.06.2001 enhanced to Rs. 6500/- per month and presently it is Rs. 15000/- per month. A proviso was added to Clause 11 (3) of the Pension Scheme w.e.f. 16.03.1996 permitting an option to the employer and an employee for contribution on salary exceeding Rs. 5000/- pm, which later was enhanced to Rs. 6500/- per month w.e.f. 01.06.2001. It provided that 8.33% share of the employers thereof would be remitted into the Pension Fund and pensionable salary shall be based on such higher salary.
(D) It would be relevant to point out that vide notification No. GSR 609(E) dated 22.08.2014, the proviso to Clause 11 (3) of the Pension Scheme was deleted with effect from 01.09.2014. It is therefore, most respectfully stated that the benefit of proviso, cannot be extended to any employee afresh after 01.09.2014 if he had not exercised the o
