JUDGMENT

The petitioners are retired employees of the 6 th respondent, Ernakulam Regional Co-operative Milk Produces Union. The said establishment is covered under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (‘EPF Act’ for the sake of brevity). Being aggrieved by the refusal of the respondents to extend the provisions of the Employees’ Pension Scheme, 1995 in its full vigor and mandate, they have approached this Court with this petition. To canvass the relief sought for, they mainly rely on a judgment of a Division Bench of this Court in Sasikumar P. and Ors v. Union of India and Ors. 1

2. For deciding the issues involved, it is necessary to recapitulate the skeletal facts. The issues raised by the petitioners are covered by precedents of this Court as well as the Hon’ble Supreme Court.

3. The petitioners herein are retired employees of the 6 th respondent covered under the provisions of the EPF Act. The Act provides for formulation of a Scheme for the creation of a Provident

[ILR 2019 (1) Ker. 614]

Fund account in the name of each employee of a covered establishment. The Fund was to be constituted by depositing an employee’s share at the rate of 10% or 12% of the basic wages including Dearness Allowance. The employer has also to constitute an identical amount and the entire corpus would constitute the Provident Fund. Originally, the Act did not provide for the creation of a Pension Fund. It is contended that Section 6A of the Act was introduced for creating a pension scheme to the employees and the Employees’ Pension Scheme, 1995 was framed. The maximum pensionable salary was initially fixed at Rs.5,000/- which was later enhanced to Rs.6,500/- and such sums from the employer’s contribution under Section 6 not exceeding 8.33% of the basic wages, Dearness Allowance and retaining allowance were to be the corpus of the Pension Fund. Subsequently, a proviso was added to Clause 11(3) of the Employees' Pension Scheme, 1995 with effect from 16.03.1996 granting an option to the employer and the employee to contribute amounts towards the Pension Fund at the rate of 8.33% of the actual salary, where the salary exceeded

Rs.6,500/- per mensem. Thereupon, most of the employees, who were drawing salaries in excess of the prescribed limit, opted to pay contributions on the basis of the actual salary paid by them. However, the requests made by some of the employees were rejected on the ground that the option to pay higher contribution was not exercised on or before 01.12.2004, which date was fixed as the cut off date. This was challenged before this Court by certain employees by filing W.P.(C)

Nos.6643 and 9929 of 2007. A learned Single Judge of this Court, by judgment dated 04.11.2011, in W.P.(C) No.6643 of 2007 and connected cases, held that the proviso which was added with effect from

16.03.1996 was retrospective and is operative from the date of commencement of the Scheme which was on 16.11.1995. It was further held that the cut off date fixed by the organization as

01.12.2004 is clearly without jurisdiction. It was also held that, if a joint application is filed by the employee as well as the employer at any time, the benefits of the proviso to Clause 11(3) of the Employees’ Pension Scheme cannot be denied to the employees. The operative part of the order is extracted below for easy reference.

“In the above circumstances, I allow these writ petitions quashing the orders impugned in these two writ petitions. It is declared that the fixation of cut off date of 1.12.2004 is without jurisdiction and despite the fact that the petitioners have filed the applications for benefit under the proviso to clause 11(3), after the cut off date so fixed, the petitioners are entitled to avail of the benefit under the proviso to cla