Kerala High CourtThe Regional Provident Fund ... vs N.Ramakrishnan on 22 July, 2011Author:P.R.Ramachandra MenonBench:P.R.Ramachandra MenonIN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                      PRESENT:

                 THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
                                                            &
                       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

                   TUESDAY, THE 28TH DAY OF JULY 2015/6TH SRAVANA, 1937

                                             WA.No. 1312 of 2011 ( )
                                                 ------------------------


  AGAINST THE ORDER IN RP 375/2011 of HIGH COURT OF KERALA DATED 22-07-2011

APPELLANTS/REVIEW PETITIONERS:
----------------------------------------------------

        1. THE REGIONAL PROVIDENT FUND COMMISSIONER-I,
            EMPLOYEES PROVIDENT FUND ORGANISATION
            REGIONAL OFFICE, BHAVISHYA NIDHI, BHAVAN
            WAZIRPUR INDUSTRIAL AREA, DELHI-110052.

        2. THE REGIONAL PROVIDENT FUND COMMISSIONER
            EMPLOYEES PROVIDENT FUND ORGANISATION
            REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, KALOOR
            KOCHI-682017.

            BY ADVS.DR.S.GOPAKUMARAN NAIR (SR.)
                          SRI.A.RAJASIMHAN,SC,EPF ORGANISATION

RESPONDENT(S)/RESPONDENTS IN RP:
---------------------------------------------------------

        1. N.RAMAKRISHNAN, METTUMPURATH HOUSE,
            KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT-686 663
            DY.MANAGER, M.M.T.C.LTD.(RETD).

        2. MMTC LIMITED, REPRESENTED BY
            THE CHAIRMAN & MANAGING DIRECTOR, SCOPE COMPLEX, 7
            INSTITUTIONAL AREA, LODI ROAD, NEW DELHI- 110003.

        3. THE DEPUTY GENERAL MANAGER,
            MMTC LIMITED, SUB REGIONAL OFFICE, JOS TRUST BUILDING
            POST BOX NO.3597, CHITTOOR ROAD, ERNAKULAM
            KOCHI- 682035.

            R1 BY ADV. SRI.M.N.MATHEW
            R2-3 BY ADV. SRI.D.PEETHAMBARAN

            THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.5.2015, THE
COURT ON 28-07-2015, DELIVERED THE FOLLOWING:

WA.No. 1312 of 2011




                                 APPENDIX




APPELLANTS' ANNEXURE:

ANNEXURE-A1:       TRUE COPY OF THE JUDGMENT IN WP(C) No.34342 OF 2004
                   DATED 24.3.2011.


RESPONDENTS' ANNEXURES: NIL


                                     TRUE COPY



                                     P.S.TO JUDGE


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    P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
    ---------------------------------------------------------------
                       W.A.No.1312 of 2011
    ---------------------------------------------------------------
              Dated this the 28th day of July, 2015

                             JUDGMENTAnil K.Narendran, J.The appellants are the review petitioners in R.P.No.375 of

2011 and respondents 1 and 2 in W.P.(C)No.34342 of 2004.2.    W.P.(C)No.34342 of 2004 was filed by the 1st respondent

herein, who is an employee of the 2nd respondent herein, seeking a

declaration that he is entitled to monthly pension as admissible

under the Employees Pension Scheme, 1995 with all consequential

benefits, with effect from 15.11.1998. He has sought for a writ of

mandamus commanding the 2nd appellant herein to pay him

monthly pension as admissible under the Employees Pension

Scheme 1995 with all consequential benefits and arrears thereof,

together with 12% interest per annum from 15.11.1998 till the date

of payment.    He has also sought for an order directing the 2nd

appellant to adjust the returnable amount of withdrawal benefit of

4,660/- paid to him, with interest at the rate of 8.5% per annum

from the actual date of payment till 16.11.1995, against theW.A.No.1312/11               -2-pension arrears due to him from 15.11.1998.3.    The   learned   Single  Judge   by  judgment     dated

24.3.2011 disposed of the Writ Petition directing that, the writ

petitioner will exercise a fresh option and on receipt thereof the

appellants shall process the same in accordance with the

provisions of the Employees Pension Scheme, 1995. Insofar as

the obligation of the writ petitioner to return the withdrawn

amount is concerned, it was ordered that, the pension amount

due to him will be adjusted towards the amount withdrawn by

him and the interest due thereon and that, if the amount so

adjusted is insufficient, the appellants will be free to call upon

him to remit the said amount, and on such remittance the benefit

due to him will be disbursed. It was also ordered that, the writ

petitioner will exercise the option as above, within four weeks

from the date of judgment and within 8 weeks thereafter the

same will be processed, adjustments will be made and thereafter

the benefit will be disbursed to him.4.    The appellants filed R.P.No.375 of 2011 seeking an

order to review the judgment of the learned Single Judge in W.P.

(C)No.34342 of 2004, contending that there is error apparent onW.A.No.1312/11               -3-the face of record. According to the appellants, while rendering

the judgment, the learned Single Judge has not considered

Para.6 of the Employees Family Pension Scheme, 1971. The writ

petitioner retired from service on 31.7.1992 and going by Para.6

of the said Scheme, it is the date of retirement which decides

retention of membership and not the withdrawal of amount.

Further, Para.26A of the Employees Provident Funds Scheme,

1952 has no application in the matter in dispute. The eligibility

criteria mentioned in Para.6 of the Employees Pension Scheme,

1995 is cessation of membership from Employees Family Pension

Scheme, 1971, between 1st April, 1993 and 15th November, 1995,

and not cessation of membership from the Employees Provident

Funds Scheme, 1952. This aspect of the matter was also not

considered by the learned Single Judge.          Therefore, the

appellants would contend that the writ petitioner is not entitled

for benefits under the Employees Pension Scheme, 1995.5.    By order dated 22.7.2011, the learned Single Judge

dismissed R.P.No.375 of 2011 holding that, Para.6 of the

Employees Family Pension Scheme, 1971 will become applicable

not only retirement, but also on withdrawal of the benefits or onW.A.No.1312/11              -4-the pensioner becoming entitled to withdraw the benefits. In the

case of the writ petitioner, the benefits were withdrawn by him

only on 27.9.1993. If that be so, his case falls within the purview

of Para 6(c) of the Employees Pension Scheme, 1995, as found in

the judgment.6.    It is aggrieved by the order in R.P.No.375 of 2011

dated 22.7.2011, the appellants are before us in this appeal.7.    It was contended on behalf of the appellants that, if

Para.6 of the Employees Family Pension Scheme, 1971 is

considered in its correct perspective, the writ petitioner is not

entitled for any pension under the Employees Pension Scheme,

1995.    The writ petitioner retired from service on 31.7.1992.

Going by Para.6 of the Employees Family Pension Scheme, 1971,

it is the date of retirement and the date on which he became

entitled to withdraw the benefits that decides the retention of

membership and not the date of withdrawal of amount. Further,

Para.26A of the Employees Provident Funds Scheme of 1952 has

no application in the matter and in such circumstances, the

learned Single Judge went wrong in concluding that the writ

petitioner is entitled for the benefits under the EmployeesW.A.No.1312/11               -5-Pension Scheme, 1995.8.     The only question that arises for consideration in this

Writ Appeal is as to the entitlement of the writ petitioner in terms

of Para.6 of the Employees Pension Scheme, 1995.9.     The writ petitioner was an employee of the 2nd

respondent, which is a Government of India Enterprise. It is an

establishment covered under the provisions of theEmployees'

Provident    Fund   and   Miscellaneous   Provisions    Act,   1952(hereinafter referred to as theEPF Act). The writ petitioner was a

member of the Employees' Family Pension Scheme of 1971

(hereinafter referred to as the Pension Scheme of 1971) framed

underSection 6Aof the EPF Act, which came into force with

effect from 1.3.1971. On an application made by the petitioner

for voluntary retirement, he retired from service with effect from

31.7.1992.    The contributions due from him were paid upto

31.7.1992. However, the benefits due to him under the Pension

Scheme of 1971 were paid only on 27.9.1993. As per Para.6 of

the Pension Scheme of 1971, which deals with retention of

membership, a member of a Family Pension Fund shall continue

to be a member of the Family Pension Fund till he attains the ageW.A.No.1312/11                -6-of 60 years or till he retires or quits the service and withdraws or

becomes entitled to withdraw, the benefits to which he is entitled

under the Scheme or dies during the period of reckonable

service, whichever is earlier.10. With effect from 16.11.1996, the Employees Pension

Scheme 1995 (hereinafter referred to as the Pension Scheme of

1995) framed underSection 6Aof the EPF Act, as substituted by

Act 25 of 1996 came into force. The writ petitioner claimed the

benefit of the Pension Scheme of 1995. However, in Ext.P2, he

was informed that, since his claims, following voluntary

retirement, have already been settled under the Pension Scheme

of 1971, he is ineligible and on that basis, the claim was

returned.     The writ petitioner submitted Exts.P3 and P4

representations.    Though the 2nd appellant by Ext.P5 informed

him that the representations have already been forwarded to the

1st appellant,    thereafter, there was no response from the

appellants and in such circumstances, he has approached this

Court in W.P.(C)No.34342 of 2004 seeking various reliefs.11. The appellants filed a statement in the writ petition,

contending that, the contributions due from the writ petitionerW.A.No.1312/11                 -7-were received in their office only till 31.7.1992 and therefore, the

claim made by the writ petitioner that he was a member of the

Pension Scheme of 1971 till 27.9.1993 is incorrect. Further, the

provisions of the Pension Scheme of 1995 is applicable only to

those    members     whose contributions        were received      after

1.4.1993.     Since the writ petitioner retired from service on

voluntary retirement and was relieved on 31.7.1992, he is not

eligible to exercise option to join Pension Scheme of 1995.12.The writ petitioner has filed a reply statement,

reiterating the contentions raised in the writ petition.13. Para.6 of the Pension Scheme of 1995, which deals

with membership of the Employees Pension Scheme, reads thus;"6. Membership of the Employees Pension Scheme:- Subject to

      sub-paragraph (3) of paragraph 1, this Scheme shall apply to

      every employee,-(a) Who on or after the 16th November, 1995, becomes a

      member of the Employees' Provident Funds Scheme, 1952 or of

      the provident funds of the factories and other establishments

      exempted by the appropriate Government underSection 17of

      the Act, or in whose case exemption has been granted under

      paragraph 27 or 27A of the Employees' Provident Funds

      Scheme, 1952, from the date of such membership;(b) Who has been a member of the ceased Employees' Family

      Pension Scheme, 1971, before the commencement of thisW.A.No.1312/11                  -8-Scheme from 16th November, 1995;(c) Who ceased to be a member of the Employees' Family

     Pension Scheme, 1971, between 1st April, 1993, and 15th

     November, 1995 and opts to exercise his option under

     paragraph 7;(d) Who has been a member of the Employees' Provident Fund

     or of Provident Funds of Factories and other establishments

     exempted by the appropriate Government underSection 17of

     the Act or in whose case exemption has been granted under

     paragraph 27 or 27A of the Employees' Provident Funds

     Scheme, 1952, on 15th November, 1995, but not being a

     member of the ceased Employees' Family Pension Scheme,

     1971, opts to exercise his option under paragraph 7."14. Going by Para.6(b) & (c), the Pension Scheme of 1995

shall apply to every employee who has been a member of the

ceased Employees' Family Pension Scheme, 1971, before the

commencement of this Scheme from 16th November, 1995; and

who ceased to be a member of the Employees' Family Pension

Scheme, 1971, between 1st April, 1993, and 15th November, 1995

and opts to exercise his option under Para.7. Going by Para.6A of

the Pension Scheme of 1995, inserted with effect from 6.3.1999,

which deals with retention of membership, a member of the

Employees' Pension Fund shall continue to be such member till he

attains the age of 58 years or he avails the withdrawal benefit toW.A.No.1312/11              -9-which he is entitled under Para.14 of the scheme, or dies, or the

pension is vested in him in terms of Para.12 of the scheme,

whichever is earlier.15. Para.7 of the Pension Scheme of 1995, deals with

option for the scheme. Going by Para.7(1), members referred to

under Para.6(c) who have died between 1st April, 1993 and 15th

November, 1995 shall be deemed to have exercised the option of

joining the Scheme on the date of his death. Para.7(2) provides

that, members referred to in Para.6(c) who are alive shall have

the option to join the Scheme as per the provisions of Para.17

from the date of exit from the employment. Para.17 deals with

payments on exercise of option. Going by Para.17(2), members

referred to in Para.7(2) shall have the option to join the Scheme

by returning the amount of withdrawal benefits received, if any,

together with interest at the rate of 8.5% per annum from the

date of payment of such withdrawal benefit and the date of

exercise of the option, to receive monthly pension as per the

provisions of the Scheme.16. The     Employees    Provident  Funds    Scheme,    1952

(hereinafter referred to as the EPF Scheme), was framed underW.A.No.1312/11                -10-Section 5of the EPF Act. Para.26A of the EPF Scheme, which

deals with retention of membership, reads thus;"26A. Retention of membership:- (1) A member of the

     Fund shall continue to be member until he withdraws

     under paragraph 69 the amount standing to his credit in

     the Fund or is covered by a notification of exemption underSection 17of the Act or an order of exemption under

     paragraph 27 or paragraph 27A.Explanation:- In the case of claim for refund by a

     member under sub-paragraph (2) of paragraph 69, the

     membership of the Fund shall be deemed to have been

     terminated from the date the payment is authorised to him

     by the authority specified in this behalf by Commissioner

     irrespective of the date of claim.(2) Every member employed as an employee other

     than an excluded employee in a factory or other

     establishment    to  which    this Scheme     applies  shall

     contribute to the Fund, and the contribution shall be

     payable to the Fund in respect of him by the employer.Such contribution shall be in accordance with the rate

     specified in paragraph 29:Provided that subject to the provisions contained in

     sub-paragraph (6) of paragraph 26 and in sub-paragraph

     (1) of paragraph 27, or sub-paragraph (1) of paragraph

     27A, where the monthly pay of such a member exceeds six

     thousand and five hundred rupees the contribution payable

     by him, and in respect of him by the employer, shall be

     limited to the amounts payable on a monthly pay of sixW.A.No.1312/11                -11-thousand and five hundred rupees including dearness

      allowance, retaining allowance (if any) and cash value of

      food concession."17.   Going by Para.26A(1), a member of the Fund shall

continue to be member until he withdraws under Para.69 the

amount standing to his credit in the Fund or is covered by a

notification of exemption underSection 17of the Act or an order

of exemption under Para.27 or Para.27A. Para.69 deals with the

circumstances in which accumulations in the Fund are payable to

a member. Going by Para.69(1)(dd) a member may withdraw

the full amount outstanding in his credit in the fund, on

termination of service under a voluntary scheme of retirement

framed by the employer and the employee under a mutual

agreement specifying, inter alia, that notwithstanding the

provisions contained inSection 2(oo)(a)of the Industrial

Disputes Act, 1947 excluding voluntary retirement from the scope

of definition of 'retrenchment' such voluntary retirement shall for

the purpose be treated as retrenchment by mutual consent of the

parties.18. In the case on hand, the writ petitioner retired from

service on voluntary retirement, with effect from 31.7.1992, andW.A.No.1312/11              -12-his contributions were paid upto 31.7.1992.         However, the

benefits due to him under the Pension Scheme of 1971 were paid

only on 27.9.1993. It is not in dispute that, as on the date of

voluntary retirement, the writ petitioner was governed by the

provisions under the Pension Scheme of 1971. As per Para.6 of

the Pension Scheme of 1971, which deals with retention of

membership, a member of a Family Pension Fund shall continue

to be a member of that fund till he attains the age of 60 years or

till he retires or quits the service and withdraws or becomes

entitled to withdraw, the benefits to which he is entitled under

the Scheme or dies during the period of reckonable service,

whichever is earlier.19. Therefore, going by Para.6, the writ petitioner shall

continue to be a member of the Family Pension Fund till

31.7.1992, the date on which he took voluntary retirement and

became entitled to withdraw the benefits to which he is entitled

under that Scheme. In such circumstances, the writ petitioner

cannot be termed as an employee who ceased to be a member of

the Employees' Family Pension Scheme, 1971, between 1st April,

1993, and 15th November, 1995, falling under Para.6(c) of theW.A.No.1312/11             -13-Pension Scheme of 1995, who can exercise option under Para.7

for joining the said Scheme, as provided under Para.17(2).

Further, going by Para.17(2) of the Pension Scheme of 1995,

only the members referred to in Para.7(2), i.e., members

referred to in Para.6(c) who ceased to be a member of the

Employees' Family Pension Scheme, 1971, between 1st April,

1993, and 15th November, 1995, shall have the option to join the

Pension Scheme of 1995, by returning the amount of withdrawal

benefits received, if any, together with interest at the rate of

8.5% per annum from the date of payment of such withdrawal

benefit and the date of exercise of the option, to receive monthly

pension as per the provisions of the Scheme.20. When retention of membership of an employee under

the Pension Scheme of 1971 is governed by Para.6 of the said

Scheme of 1971 and the membership of an employee under the

Pension Scheme of 1995 is governed by Para.6 of the said

Scheme of 1995, an employee like the writ petitioner, who

ceased to be a member of the Employees' Family Pension

Scheme, 1971, before 1st April, 1993, cannot be brought under

the Pension Scheme of 1995, taking recourse to Para.26A of theW.A.No.1312/11               -14-Employees Provident Funds Scheme, 1952, framed underSection

5of the EPF Act, which deals with retention of membership of the

Provident Fund. When the eligibility criteria mentioned in Para.6

of the Pension Scheme of 1995 is cessation of membership from

Pension Scheme of 1971, between 1st April, 1993 and 15th

November, 1995, and not cessation of membership from the EPF

Scheme of 1952, Para.26A of the said Scheme of 1952 has no

application at all in the matter in dispute.21. Therefore, the judgment of the learned Single Judge

cannot be sustained. In the absence of a provision similar to EPF

Scheme of 1952, either in the Pension Scheme of 1971 or that of

1995, the writ petitioner is not legally entitled for a declaration

that he is entitled to monthly pension as admissible under the

Employees Pension Scheme, 1995 with all consequential benefits,

and also for other consequential reliefs sought for in the writ

petition.22. The order passed by the National Consumer Disputes

Redressal Commission, New Delhi, in R.P.No.47 of 2008 is in

respect of an employee of the 2nd respondent, who was governed

by the the Provident Fund scheme of MMTC from the year 1964W.A.No.1312/11               -15-and continued to be so governed when the Employees' Family

Pension Scheme, 1971 came into force. On the other hand, the

writ petitioner was admittedly a member of the Employees'

Family Pension Scheme, 1971.        Further, the Apex Court while

dismissing on facts, S.L.P.(Civil)No.35346 of 2009 arising out of

R.P.No.47 of 2008 has observed that, the impugned order shall

not be treated as precedent in any other case.In the result, this Writ Appeal is allowed, thereby allowing

R.P.No.375 of 2011 and consequently dismissing W.P.(C)

No.34342 of 2004, holding that, the petitioner is not entitled for

any of the reliefs prayed for in the writ petition.No order as to costs.Sd/-P.R.RAMACHANDRA MENON, JUDGE




                                   Sd/-ANIL K.NARENDRAN, JUDGE


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