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2019 Supreme(Mad) 2152
IN THE HIGH COURT OF MADRAS
V. Parthiban, J.
ONGC Retired Employees' Welfare Association – Appellant
Versus
Union of India and Others – Respondents
W.P. Nos. 26234, 32879, 33605 to 33607, 34331 of 2017, 846, 909, 910, 4804, 5405, 5406, 5407, 5562, 5563, 7126, 10051, 10274, 10413, 10414, 10415, 11609, 11610, 11611, 11612, 13308, 14145, 14189, 14368, 14736, 16229, 17170, 20458 to 20464, 22343, 22403, 23131, 23713, 24661, 24662, 25483, 29512, 30681, 30684, 30688, 31347, 31358 of 2018, 2429, 2433, 4308, 4436, 5315, 6289, 6296, 6902 of 2019 and W.M.P. Nos. 27887, 27888, 27889, 33606, 33607, 36239, 36240, 36241, 37157 to 37163, 37165 to 37167 of 2017, 1009 to 1013, 1095 to 1103, 5953, 6651 to 6653, 6656 to 6658, 6661 to 6663, 6882, 8822 to 8824, 12009, 12369 to 12371, 12374 to 12376, 12379 to 12381, 13584 to 13586, 13590, 13591, 13594 to 13596, 13599 to 13601, 15679, 16714, 17415, 20381 to 20384, 20429, 24028 to 24055, 24143, 26245 to 26247, 27031, 27654 to 27658, 28693 to 28702, 29664, 29666, 34481, 34483, 34486, 34936, 35791, 35796, 35799, 36520, 36543 to 36545 of 2018, 697, 2700, 2704, 2706, 2711, 2715, 2717, 2719, 5274, 5276 of 2019
Decided On : 27-03-2019
Advocate Appeared:
For the Appellants : M.S. Krishnan, V. Karthik, Vedavallikumar, A. Jenasenan, A.E. Ravichandran, S. Namasivayam, B. Ramamoorthy, K. Elangoo, K. Govindarajan, R. Sanjith, Sindhu Krishnah, Yogesh Kannadasan, Balan Haridas, G. Sankaran, M.R. Raghavan, A. Nagarathinam, M. Purushothaman.
For the Respondents: K. Raju, S. Makesh, T.R. Sundaram, J. Sathyanarayanaprasad, R. Veludas, R. Gowri, J. Ramesh, R. Thirunavukarasu, N. Vijaya Baskar, V.J. Latha, Shivakumar, Suresh, K. Ramu, K. Vishnu, T.S.N. Prabhakaran, Anand Goplan, T.S. Gopalan, K. Thirukumaran, B.K. Girish Neelakandan, K. Seetha Ram, G. Baskaran, K. Ramachandramurthy, B. Ramaratnam, K.M. Vijayan, S. Vijayakumar, N. Ramesh, M.R. Raghavan, P. Ayyaswamy, K.S. Jeyaganesan.
Headnote:
Employees Provident Funds and Miscellaneous Provisions Act, 1952 - Section 17 - Constitution of India - Article 21 - Children pension or orphan pension - Notwithstanding anything contained in section 6, there shall be established, as soon as may be after framing of Pension Scheme, a Pension Fund into which there shall be paid from time to time in respect of every employee who is a member of Pension Scheme. (a) Such sums from employers contribution under section 6m not exceeding eight and one- third per cent of the basic wages, dearness allowance and retaining allowance, if any, of the concerned employees, as may be specified in Pension Scheme; (b) Such sums as are payable by the employers of exempted establishments under sub-section of section 17 net assets of Employees Family Pension as on the date of the establishment of the Pension Fund – Held, In view of the above conclusion this Court has to ultimately resolve as to what kind of the relief to be granted to all the writ petitioners - Supreme Court in fact, in final paragraph of the judgment has held that the employees may be directed to return their PF amount received by them before granting benefit under the Proviso to Clause 11(3) of Pension Scheme - In case of employees from un-exempted establishments, it is only a matter of book adjustment as per dictum of Supreme Court in R.C. Gupta case - Even in cases where the employees have retired and received PF contribution employees can be directed to return appropriate amount - As regards employees of exempted establishments are concerned same yardstick may be adopted - After all effect of return of contribution today is one and same for both set of employees from un-exempted as well as exempted establishments - Pension is neither a charity nor a largesse to be claimed as a matter of concession - It is a right which is accrued to all employees of pensionable service, as they toiled to grind of employment for number of years of service minimum expectation of such employees in evening of their life is to be compensated modestly. As one French Philosopher, Albert Camus in 20th Century, said - It is a kind of spiritual snobbery that makes people think they can be happy without money - profound statement of Philosopher is more true and apt today as world around us is rotating on a materialistic axis and every humble citizen becomes vulnerable and exposed to harsh realities of life. Life always revolves around hope and for pensioners adequate pension is the only hope left in their remaining part of life - Without that hope final phase of existence become too mundane and impoverished. Therefore, the right to receive adequate pension is implicit within the framework of the Constitution, particularly in terms of Article 21 of Constitution of India - Both employees of the exempted and un-exempted establishments are entitled to the benefit of enhanced pension on basis of their contribution with reference to actual salary received by them to their Provident Fund accounts - Employees, namely, the writ petitioners shall be permitted to exercise their option in terms of Proviso to Clause 11(3) of Pension Scheme and while permitting so, EPFO is at liberty to seek return of higher Provident Fund contribution received by respective employees with simple interest at rate from the date of receipt of Provident Fund amount and till date of payment - Petitions are allowed
ORDER :
1. Since all the present Writ Petitions raise common issues and grounds, they are taken up together for final disposal as under.
2. There are two categories of the Writ Petitions pertaining to the employees from "Exempted Establishments" under Section 17 of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter, referred to as the Act) and Un-exempted Establishments, which are governed by the provisions of the Act.
3. The employees of both the above mentioned establishments are aggrieved by the denial of pension on the basis of their actual salaries received by them since the payment of pension was restricted to ceiling of salary as provided under the provisions of the Act and the Scheme framed therein. The dispute has its genesis, wherein, the Employees' Pension Scheme was introduced in 1995 in furtherance of Section 6A of the Act, which reads as under:
"6-A. Employees' Pension Scheme - (1) The Central Government may, by notification in the Official Gazette, frame a scheme to be called the Employees' Pension Scheme for the purpose of providing for:-
(a) Superannuation pension, retiring pension or permanent total disablement pension to the employees of any establishment or class of establishments to which this applies.
(b) Widow or widower's pension, children pension or orphan pension payable to the beneficiaries of such employees.
(2) Notwithstanding anything contained in section 6, there shall be established, as soon as may be after framing of the Pension Scheme, a Pension Fund into which there shall be paid, from time to time, in respect of every employee who is a member of the Pension Scheme. (a) Such sums from the employer's contribution under section 6m not exceeding eight and one- third per cent of the basic wages, dearness allowance and retaining allowance, if any, of the concerned employees, as may be specified in the Pension Scheme; (b) Such sums as are payable by the employers of exempted establishments under sub-section (6) of section 17; (c) The net assets of the Employees' Family Pension as on the date of the establishment of the Pension Fund; (d) Such sums as the Central Government may, after due appropriation by Parliament by law in this behalf, specify.
(3) On the establishment of the Pension Fund, the Family Pension Scheme (hereinafter referred to as the ceased scheme) shall ceased to operate and all assets of the ceased scheme shall vest in and shall stand transferred to, and all liabilities under the ceased scheme shall be enforceable against, the Pension Fund and the beneficiaries under the ceased scheme shall be entitled to draw the benefits, not less than the benefits, they were entitled to under the ceased scheme, from the Pension Fund.
(4) The Pension Fund shall vest in and be administered by the Central Board in such manner as may be specified in the Pension Scheme.
(5) Subject to the provisions of this Act, the Pension Scheme may provide for all or any of the matters specified in Schedule III.
(6) The Pension Scheme may provide that all or any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in that behalf in that scheme.
(7) A Pension Scheme, framed under sub-section (1) shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period or thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both House agree in making any modification in the scheme or both House agree that the scheme should not be made, the scheme shall thereafter have effect only in such modified from or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of
