Disposed

H Jayaprakash Shetty v. Employees Provident Fund Organisation

Karnataka HC11 Aug 2023WP/2343/2021

Case brief

AI extract

What is this about?

Writ petitioners sought quashing of EPFO communications refusing pension based on higher salary. The High Court held the matter is covered by the Supreme Court's Sunil Kumar judgment. The petition was disposed of, directing petitioners to submit representations to recalculiate pension within two weeks, with respondents to consider them within four weeks.

What did the court decide?

Petition disposed; liberty reserved for petitioners to submit representations within two weeks; respondents to consider within four weeks.

H Jayaprakash Shetty Vs Employees… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC:28874 WP No. 2343 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.2343 OF 2021 (L-PF)

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BETWEEN:

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H. JAYAPRAKASH SHETTY, AGED ABOUT 63 YEARS, S/O. LATE RAGHURAMA SHETTY, ‘JANAKA’ HALADY ROAD, KOTESHWARA, KUNDAPURA, UDUPI - 576 222.

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SYED YUNUZ C.Z., AGED ABOUT 66 YEARS, S/O. SYED ZAHIRUDDIN C.H., HOUSE NO. 137, C BLOCK, GOPALA GOWDA EXTN., SHIMOGA - 577 205.

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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G.B. UMAPTHI, AGED ABOUT 70 YEARS, S/O. G. BASAPPA, HODIGERE POST, CHANNAGIRI TALUK, DAVANGERE - 577 215.

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CHANNAVERRAPPA B. KURUVATTI, AGED ABOUT 64 YEARS, C/O. BASAVARAJ KURUVATTI, VINAYAK NAGAR, 2^ND CROSS, RANEBENNUR- 581 115.

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S.R. MANJUNATHA, AGED ABOUT 64 YEARS, S/O. RUDRAPPA,

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3^RD CROSS, BESIDE SHANTHI NILAYA HOUSE,

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OPP. VISL QUARTERS, UPPER HUTTHA, BADRAVATHI POST - 577 301, SHIMOGA.

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SHIVAGOUDA R. PATIL, AGED ABOUT 64 YEARS, S/O. RANGANAGOUDA PATIL, #203/37, ‘SPOORTHI’, HUDCO, II CROSS, MULAGUNG ROAD, GADAG - 582 103.

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JAYAVANT LINGAPPA NAYAK, AGED ABOUT 65 YEARS, S/O. LINGAPPA NAIK, SHREE HONNANILAYA, CHOWDESHWARI NAGAR, NEAR AYYAPPA NAGAR, SIRSI - 581 402.

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PARAMESHWARAPPA YADAGODI (P G YADAGODI), AGED ABOUT 64 YEARS, S/O. GURUSHANTAYYAYADAGODI, PLOT NO.15, 5^TH CROSS, KANTIBEERESHWAR NAGAR, HALAGERI ROAD, NEAR TARALABALU NAGAR, RANEBENNUR - 581 115.

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SHIVABASAPPA D MALI, AGED ABOUT 65 YEARS, S/O. DODDAVEERAPPA MALI, ASHWINI NAGAR, ‘B’ BLOCK, HAVERI- 581 110, KARNATAKA.

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VENKATESH M. RAO, AGED ABOUT 65 YEARS, S/O. MARUTHI RAO, PLOT NO.43, VENKATESHWARA NILAYA, BESIDE KUMARESHWARAPATA SHALA, SIDDALINGA NAGAR, GADAG - 582 103.

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MANJUNATH KARAJGI, AGED ABOUT 64 YEARS, S/O. NAGABHUSHANA B KARAJGI,

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383, ‘A’ BLOCK, BEHIND ‘A’ PARK, J.H. PATEL BADAVANE, DAVANGERE- 577 004.

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BASAVARAJ MELINAMANI, AGED ABOUT 64 YEARS, S/O. MALLAPPA, H. NO. 10178, BASAVKRUPA BUILDING PANDE CHAWL, NEAR TAVARGERI NURSING HOME, DHARWAD - 580 008.

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(ALL THE PETITIONER NOS.1 TO 12 ARE SENIOR CITIZEN BENEFIT NOT CLAIMED)

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... PETITIONERS

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(BY SRI ABHINAV RAMANAND A., ADVOCATE)

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AND:

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EMPLOYEES PROVIDENT FUND ORGANISATION, (MINISTRY OF LABOUR & EMPLOYMENT, GOVERNMENT OF INDIA), BHAVISHYA NIDHI BHAWAN, 14-BHIKAJI CAMA PLACE, NEW DELHI – 110 066. REPRESENTED BY THE CENTRAL PROVIDENT FUND

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COMMISSIONER, (CPFC).

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OFFICE OF THE ADDL. CENTRAL PROVIDENT FUND COMMISSIONER, KARNATAKA (OTHER THAN BENGALURU & GOA), BHAVISHYA NIDHI BHAVAN, NEW BLOCK NO. 10, NAVNAGAR, HUBLI – 580 025.

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THE REGIONAL PF COMMISSIONER, EPFO, REGIONAL OFFICE, YELAHANKA, #2, MARUTHI COMPLEX 1^ST A MAIN, HIG ‘A’ SECTOR, YELAHANKA NEW TOWN, BANGALORE – 560 064.

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THE REGIONAL PF COMMISSIONER, EPFO, REGIONAL OFFICE, MANGALURU, BHAVISHYA NIDHI BHAVAN, P.B. NO.572, HIGHLANDS, SILVA ROAD, MANGALURU – 575 002.

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THE REGIONAL/ASST. PF COMMISSIONER, EPFO, BHAVISHYA NIDHI BHAVAN, TULUNADU TOWERS, 2^ND - 3^RD FLOOR, COURT ROAD, UDUPI, KARNATAKA – 576 101.

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6. THE REGIONAL/ASST. PF COMMISSIONER, EPFO, REGIONAL OFFICE, BHAVISHYA NIDHI BHAWAN, SREE KARTHIK PLAZA, 2^ND FLOOR, DURGIGUDI MAIN ROAD, SHIMOGA, KARNATAKA – 577 201.

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KARNATAKA STATE SEEDS CORPORATION LIMITED, ‘BEEJ BHAVAN’ BALLARY ROAD, HEBBAL, BANGALORE – 560 024. REPRESENTED BY ITS MANAGING DIRECTOR.

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... RESPONDENTS

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(BY SMT. NALINI VENKATESH, ADVOCATE FOR R-3 TO R-6; SRI R.S. HEGDE, ADVOCATE FOR R-7; NOTICE TO R-1 & R-2 – SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ANNEXURE-D - COMMUNICATION BEARING NO. KN/RO/UDP/PEN/79/2020-21 DATED 14.07.2020 SENT BY RESPONDENT NO.5 TO PETITIONER NO.1 AND ETC.

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THIS PETITION PERTAINING TO BENGALURU BENCH HAVING BEEN COMING ON FOR FURTHER HEARING THIS DAY THE COURT SITTING AT KALABURAGI BENCH THROUGH VIDEO CONFERENCING MADE THE FOLLOWING:

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ORDER

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The petitioners in this writ petition are seeking for the following reliefs:

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“(a) Issue a writ of certiorari quashing the following -

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i. Annexure-D - Communication bearing No. KN/RO/UDP/Pen/79/2020-21 dated 14.07.2020 sent by Respondent No.5 to Petitioner No.1.

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ii. Annexure-D1 - Communication bearing No. KN/SHG/ PENSION/872/2019-20 dated 28.02.2020 sent by Respondent No.6 to Petitioner No.2.

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iii. Annexure-D2 - Communication bearing No. KN/SHG/ PENSION/875/2019-20 dated 28.02.2020 sent by Respondent No.6 to Petitioner No.3.

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iv. Annexure-D3 - Communication bearing No. KN/HBL/Pension Sec/RTI-2831/2019-20/71 dated 03.04.2020/14.04.2020 sent by Respondent No.2 to Petitioner No.4.

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v. Annexure-D4 - Communication bearing No. KN/GLB/HBL/Pension/2020-21/269 dated 16.04.2020/17.04.2020 sent by Respondent No.2 to Petitioner No.5.

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vi.	Annexure-D5 - Comm KN/GLB/HBL/Pension/20	unication 20-21/266	bearing d	No. ated
	23.04.2020/05.05.2020 No.2 to Petitioner No.6.	sent by	Respon	dent
vii.	Annexure-D6 - Comm KN/GLB/HBL/Pension/20	unication 20-21/263	bearing d	No. ated
	23.04.2020/05.05.2020	sent by	Respon	dent
	No.2 to Petitioner No.7.
viii.	Annexure-D7 - Comm KN/GLB/HBL/Pension/20	unication 20-21/267	bearing d	No. ated
	23.04.2020 sent by	Responde	nt No.2	to
	Petitioner No.8.
ix.	Annexure-D8 - Comm KN/GLB/HBL/Pension/20	unication 20-21/264	bearing d	No. ated
	23.04.2020/05.05.2020 No.2 to Petitioner No.9.	sent by	Respon	dent
x.	Annexure-D9 –Docum	ent be	aring	No.
	GB/HBL/PENSION/2020/	621 pr	epared	on
	23.03.2020 issued by	Respond	ent No.2	to
	Petitioner No.10.
xi.	Annexure-D10 - Comm KN/HBL/Pension Se	unication c/RTI-2831	bearing /2019-20	No. /72
	dated 03.04.2020/14	.04.2020	sent	by
	Respondent No.2 to Petit	ioner No.1	1.

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xii. Annexure-D11 - Communication bearing No. KN/GLB/HBL/Pension/2020-21/268 dated 23.04.2020/05.05.2020 sent by Respondent No.2 to Petitioner No.12.

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And consequently, direct the Respondent Nos. 1 to 6 to pay pension on higher salary that was fixed by them, as can be seen from Annexure C, C1, C2 to C11.

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(b) Grant costs; and

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(c) Grant such other order or relief/s as this Hon’ble Court deems fit to grant in the facts and circumstances of the case and in the interest of justice and equity.”

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Heard Sri. Abhinav Ramanand .A, learned

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counsel for the petitioners, Smt. Nalina Venkatesh, learned counsel for respondent Nos.3 to 6 and Sri. R.S. Hegde, learned counsel for respondent No.7.

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Learned counsel for the petitioners would submit that even pursuant to the judgment of the Apex Court in R.C. Gupta and others Vs. Regional Provident Fund Commissioner, Employees Provident Fund

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8 - NC: 2023:KHC:28874 WP No. 2343 of 2021

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Organization and others reported in (2018) 14 SCC 809 [R.C. Gupta] vide order dated 04.10.2016, the respondents are not granting the legitimate entitlements of pension to the petitioners on higher salary.

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Per contra , learned counsel for the respondents would submit that during the pendency of this writ petition, the Apex Court in the case of the Employees Provident Fund Organization and Anr. Etc. Vs. Sunil Kumar .B and Ors. Etc., reported in (2022) SCC Online SC 1521 [Sunil Kumar] has issued certain directions on the basis of which, the pension amount has to be recalculated and the present petition is squarely covered by the judgment of the Apex Court.

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The Apex Court in the case of Sunil Kumar

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stated supra has held at paragraph No.36 as under:

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“36. The other aspect of the controversy involves changing the method of computation of the pensionable salary. We have given the points and counter points articulated by the contesting parties pertaining to this feature of the controversy earlier

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in this judgment. In our opinion, this change of methodology comes within the power of the Central Government to modify a scheme under Section 7 of the 1952 Act read with item 10 of the Schedule III to the Act as also paragraph 32 of the scheme. This alteration of computation is ancillary to determination of scale of pension alongwith pensionary benefits and paragraph 32 of the pension scheme specifically authorises the Central Government to alter the rate of contribution payable under the Scheme or the scale of any benefit admissible under the scheme. There is a reasonable basis for effecting change in the computation methodology for determining pensionable salary and we do not find any illegality or unconstitutionality in effecting this amendment.”

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The Apex Court has held in the said para, that a change of methodology comes within the power of the Central Government to modify a Scheme under Section 7 of 1952 Act read with item No.10 of Schedule III of the Act as also para No.32 of the Pension Scheme.

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The Apex Court in Sunil Kumar’s case stated

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supra has issued certain directions, which reads as under:

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“44. We accordingly hold and direct:

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(i) The provisions contained in the notification no. G.S.R. 609(E) dated 22^nd 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 subparagraphs.

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(ii) Amendment to the pension scheme brought about by the notification no. G.S.R. 609(E) dated 22^nd 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.

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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 1^st 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

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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 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.

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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

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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) The employees who had retired prior to 1^st September 2014 without exercising any option under paragraph 11(3) of the pre-amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment.

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(vi) The employees who have retired before 1^st 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.

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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 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

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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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(viii) We do not find any flaw in altering the basis for computation of pensionable salary.

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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) (preamendment) 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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(x) The Contempt Petition (C) Nos.1917-1918 of 2018 and Contempt Petition (C) Nos.619-620 of 2019 in Civil Appeal Nos.10013-10014 of 2016 are disposed of in the above terms.”

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The present petition is squarely covered by the

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judgment of the Apex Court in the case of Sunil Kumar stated supra. In light of the same, it would be appropriate, if this Court directs the petitioner/s to give representation/s to the pension authorities to recalculate the pension in terms of the directions of the Apex Court in Sunil Kumar’s case stated supra.

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Learned counsel for the petitioner at this stage,

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submits that the interim order granted by this Court on 04.09.2020 to be continued till consideration of the representation by the respondent-authority.

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There is substantial force in the contention of the learned counsel for the petitioners, in the peculiar facts and circumstances of this case, the interim order granted by this Court on 04.09.2020 in W.P.

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No.8767/2020 to be continued till the consideration of the representation by the respondent, in accordance with law.

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For the foregoing reasons, the writ petition is disposed of reserving liberty to the petitioner/s to submit representation/s to the respondent-authorities within a period of two weeks from the date of receipt of this order and if such representation is/are made, respondentauthorities to consider the same within a period of four weeks, in light of the directions given by the Apex Court in the case of Sunil Kumar stated supra, in accordance with

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law.

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Sd/JUDGE

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MBM

H Jayaprakash Shetty v. Employees Provident Fund Organisation

Case brief

What is this about?

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H Jayaprakash Shetty v. Employees Provident Fund Organisation

Case brief

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