Disposed

Vipan Kumar Kapoor v. Union of India and Others

Himachal Pradesh HC5 Sept 2023CWP/20/2018

Case brief

AI extract

What is this about?

The High Court disposed of the petition after counsel for both parties submitted they are in agreement that the subject matter was adjudicated by the Hon'ble Apex Court in SLP (C) Nos.8658-8659 of 2019. The court noted the petitioner exercised his option within the extended timeline and left the consequential action to the respondent EPFO.

What did the court decide?

Disposed of the petition; respondent EPFO directed to scrutinize the case and pass a fresh order in accordance with the Apex Court judgment.

Vipan Kumar Kapoor Vs Union of… — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.20 of 2018 Decided on: 5^th September, 2023

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------------------------------------------------------------------------------------- Vipan Kumar Kapoor .....Petitioner Versus Union of India and others .....Respondents ------------------------------------------------------------------------------------Coram

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Ms. Justice Jyotsna Rewal Dua

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1 Whether approved for reporting?

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_________________________________________________________________ For the petitioner: Mr. Manish Sharma, Advocate. For the respondents: Mr. Nand Lal Sharma, Senior Panel Counsel, for respondent No. 1. Mr. Navlesh Verma, Advocate, for respondents No.2 and 3-RPFC. Mr. Yudhvir Singh Thakur, Advocate, for respondent No.4.

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Jyotsna Rewal Dua, Judge

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Learned counsel for the parties on both sides

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are ad idem that the subject matter involved in this petition and the reliefs claimed therein have been adjudicated upon by the Hon’ble Apex Court in Special Leave Petition (C)

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Nos.8658-8659 of 2019 , titled as The Employees

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Provident Fund Organisation & Anr. Etc. Versus Sunil

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Kumar B. & Ors. Etc. alongwith other connected

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matters . Relevant portion from the judgment is extracted

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hereinafter:-

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“44 (i and ii)

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(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.

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(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 1^st September 2014 stands crystalised in the judgment of this Court in the case of R.C. Gupta (supra). The scheme as it stood before 1^st September 2014 did not provide for any cut off date and thus those members shall be entitled to exercise option in terms of paragraph11(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.

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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 cutoff 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.

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Rest of the requirements as per the amended provision shall be complied with.

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(v) and (vi) …………………………………..

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(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 Rs.15000/- 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

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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 additional contribution can be generated from some other legitimate source within the scope of the Act, which could include enhancing the rate of contribution of the employers. We are not speculating on what steps the authorities will take as it would be for the legislature or the framers of the scheme to make necessary amendment. For the aforesaid period of six months or till such time any amendment is made, whichever is earlier, the employees’ contribution shall be as stop gap measure.The said sum shall be adjustable on the basis of alteration to the scheme that may be made.

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(ix) We agree with the view taken by the Division Bench in the case of R.C. Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (pre-amendment) pension scheme is concerned. The fund authorities shall implement the directives contained in the said judgment within a period of eight weeks, subject to our directions contained earlier in this paragraph.”

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2. The petitioner in this petition had exercised his option after 01.09.2014. Learned counsel for the respondent-Employees Provident Fund Organization (EPFO) submitted that the date of exercising option in terms of the judgment of Hon’ble Apex Court by the concerned employee/petitioner was initially extended to 03.05.2023 and thereafter to 26.06.2023. Lastly, the date was extended to 11.07.2023. It is not in dispute that the petitioner herein has exercised his option accordingly.

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3. Learned counsel for the respondent-EPFO submit that based upon the option so exercised by the petitioner, consequential action in accordance with law and

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in light of judgment passed by the Hon’ble Apex Court shall be taken. Learned counsel further submits that case of the petitioner shall be scrutinized in accordance with law and fresh order shall be passed. His statement is taken note of.

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It is hoped and expected that while carrying out the above exercise, the respondent-EPFO shall keep in mind the time-limit framed by the Hon’ble Apex Court. In case the petitioner still has any grievances, he is at liberty to seek appropriate remedy in accordance with law.

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With the above observations, this petition is disposed of alongwith pending miscellaneous application(s), if any.

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Jyotsna Rewal Dua September 5, 2023 Judge (mamta)

Vipan Kumar Kapoor v. Union of India and Others

Case brief

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Vipan Kumar Kapoor v. Union of India and Others

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