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2024 Supreme(Online)(KER) 55700
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 3RD DAY OF DECEMBER 2024 / 12TH AGRAHAYANA, 1946 WP(C) NO. 40624 OF 2024 PETITIONERS:
1 BENNI M.C AGED 59 YEARS S/O. CHACKO, RESIDING AT MUKALATH HOUSE, ALINCHUVADU, VALAYANCHIRANGARA P.O., PERUMBAVOOR, ERNAKULAM, PIN - 683556
2 MANIKANDAN K AGED 59 YEARS S/O. VASUDEVAN, RESIDING AT ANITHALAYAM HOUSE, NEAR-VG MARKET, CHINTHARMANI ROAD, PERUMBAVOOR P.O., ERNAKULAM, PIN - 683542
3 CHANDRABABU C AGED 59 YEARS S/O. CHAKRAPANI, RESIDING AT GOURISANKARAM HOUSE, BHARATHIPURAM P.O., ANCHAL, KOLLAM, PIN - 691312
4 JAYAKUMAR T.G AGED 62 YEARS S/O.A.K.GANGADHARAN, RESIDING AT THOTTAYAPILLY HOUSE, SIVAKSHETRAM ROAD, NEERICODE P.O.,ALUVA, ERNAKULAM, PIN - 683511
5 RAJESH C.R AGED 58 YEARS S/O. C.D. RAJAGOPALAN, RESIDING AT C-27/2624, SWAGATH, LUIZ LANE, SOUHRADHA NAGAR, KADAVANTHARA P.O., ERNAKULAM, PIN – 682020
6 MOHANAKUMAR V.G AGED 61 YEARS S/O. GOPALA PILLAI, RESIDING AT PARAKKATTU HOUSE, EDATHALA P.O., AMBUNADU, ALUVA, ERNAKULAM, PIN -
683561
7 SOORYAN E.K AGED 63 YEARS S/O. M.K.KUMARAN, RESIDING AT ELEVINKUDY, KAIPOORIKKARA, VAZHAKULAM, MARAMPILLY P.O., ALUVA, ERNAKULAM, PIN - 683105
8 GEORGEKUTTY JOHN AGED 62 YEARS S/O. JOHN A.A., RESIDING AT ANCHIKKARA, CHUNANGAMVELI, ERUMATHALA P.O., ALUVA, ERNAKULAM, PIN - 683112
9 SIVARAMAN A AGED 61 YEARS S/O. ARUCHAMI, RESIDING AT 33/3082, KIZHAKKALAM HOUSE, KOCHUPARAMBIL LANE, VENNALA P.O., ERNAKULAM, PIN - 682028
0 C. KRISHNAKUMAR AGED 62 YEARS S/O. K.P. CHANDRASHEKARA PILLAI, RESIDING AT KUNNATH HOUSE, SOUTH VAZHAKULAM, ALUVA, PIN -
683105
11 BABY R AGED 62 YEARS S/O. RAGHAVAN NAIR, RESIDING AT NANDANAM, ARATTUKULANGARA, VAIKOM P.O., KOTTAYAM, PIN -
686141
12 VASANTHI RADHAKRISHNAN NAIR AGED 59 YEARS W/O.RADHAKRISHNAN NAIR D., RESIDING AT FLAT NO.2C, OXFORD SYMPHONY, KALAVATH CROSS ROAD, PALARIVATTOM, ERNAKULAM, PIN - 682025
13 RAVI CHANDRAN M AGED 61 YEARS S/O. M. MUTHU CHETTIYAR, RESIDING AT SIVAPARVATHY HOUSE, SOS ROAD, EDATHALA NORTH P.O., ALUVA, ERNAKULUM, PIN - 683561 BY ADVS.
R.SANJITH C.S.SINDHU KRISHNAH RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, DEPARTMENT OF EMPLOYMENT, NEW DELHI, PIN - 110001
2 THE EMPLOYEES PROVIDENT FUND ORGANISATION REPRESENTED BY THE CHIEF PROVIDENT COMMISSIONER, BHAVISHYA NIDHI BHAVAN, 14, BHIKAJI CAMA PALACE, NEW DELHI, PIN - 110066
3 REGIONAL PROVIDENT FUND COMMISSIONER THE EMPLOYEES PROVIDENT FUND ORGANISATION, KALOOR, ERNAKULAM, PIN - 682017
4 AVT NATURAL PRODUCTS LIMITED S.VAZHAKULAM, MARAMPILY P.O, ALUVA . REPRESENTED BY ITS AUTHORIZED SIGNATORY, PIN – 683107 BY SC SRI. SAJEEV KUMAR K. GOPAL.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.12.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioners were employees of the 4th respondent who retired from service subsequent to 01.09.2014. They have filed this writ petition for a direction to respondents 2 and 3 to process the Joint Option Form preferred by them in accordance with the Apex Court Judgment in Employees Provident Fund Organisation v. Sunil Kumar B and others [2022 (7) KHC 12].
2. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Employees Provident Fund Organisation.
3. The Apex Court has held in the judgment in the Employees Provident Fund Organisation and another (Supra) as follows:
“We accordingly hold and direct:-
i) The provisions contained in the notification no. G.S.R. 609(E) dated 22nd August 2014 are legal and valid. So far as present members of the fund are concerned, we have read down certain provisions of the Scheme as applicable in their cases and we shall give our findings and directions on these provisions in the subsequent sub-paragraphs.
(ii) Amendment to the pension Scheme brought about by the notification No.G.S.R. 609(E) dated 22nd August 2014 shall apply to the employees of the exempted establishments in the same manner as the employees of the regular establishments. Transfer of funds from the exempted establishments shall be in the manner as we have already directed.
iii) The employees who had exercised option under the proviso to paragraph 11(3) of the 1995 Scheme and continued to be in service as on 1st September 2014, will be guided by the amended provisions of paragraph 11(4) of the pension scheme.
(iv) The members of the scheme, who did not exercise option, as contemplated in the proviso to paragraph 11(3) of the pension scheme (as it was before the 2014 Amendment) would be entitled to exercise option under paragraph 11(4) of the post amendment Scheme. Their right to exercise option before 1st September 2014 stands crystalised in the judgment of this Court in the case of R.C. Gupta (supra). The scheme as it stood before 1st September 2014 did not provide for any cutoff date and thus those members shall be entitled to exercise option in terms of paragraph 11(4) of the Scheme, as it stands at present. Their exercise of option shall be in the nature of joint options covering pre-amended paragraph 11(3) as also the amended paragraph
11(4) of the pension Scheme.
There was uncertainty as regards validity of the post amendment Scheme, which was quashed by the aforesaid judgments of the three High Courts. Thus, all the employees who did not exercise option but were entitled to do so but could not due to the interpretation on cut-off date by the authorities, ought to be given a further chance to exercise their option. Time to exercise option under paragraph 11(4) of the Scheme, under these circumstances, shall stand extended by a further period of four months. We are giving this direction in exercise of our jurisdiction under Article 142 of the Constitution of India.
Rest of the requirements as per the amended provision shall be complied with.
(v) The employees who had retired prior to 1st September 2014 without exercising any option under paragraph 11(3) of the preamendment Scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment.
(vi) The employees who have retired before 1st September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph 11(3) of the pension Scheme as it stood prior to the amendment of 2014.
(vii) The requirement of the members to contribute at the rate of 1.16 per cent of their salary to the extent such salary exceeds ₹15,000/- per month as an additional contribution under the amended Scheme is held to be ultra vires the provisions of the 1952 Act. But for the reasons already explained above, we suspend operation of this part of our order for a period of six months. We do so to enable the authorities to make adjustments in the Scheme so that the addit
