Allowed

Chavakkad Firka Co.Op.Rural Bank Ltd. v. Asst.P.F.Commissioner

Kerala HC2 Jul 2013WP(C)/6726/2008

Case brief

AI extract

What is this about?

The court quashed the Assistant Provident Fund Commissioner's rejection order regarding voluntary contributions beyond the statutory wage ceiling. Relying on a Division Bench decision, it held that the retrospective proviso allowed employees to avail benefits from the relevant date.

What did the court decide?

Quashed Ext.P3 and directed the respondent to accept contributions made from September 7, 2007, along with administrative charges and pay consequential benefits.

Chavakkad Firka Co.Op.Rural Bank Ltd. Vs… — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE B.P.RAY

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TUESDAY, THE 2ND DAY OF JULY 2013/11TH ASHADHA, 1935

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WP(C).No. 6726 of 2008 (A)

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PETITIONER :

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THE CHAVAKKAD FIRKA CO.OPERATIVE RURAL BANK LIMITED NO.F.1250, CHAVAKKAD PO, THRISSUR REPRESENTED BY ITS SECRETARY.

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BY ADV. SRI.P.RAMAKRISHNAN

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RESPONDENT :

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THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI 682 017.

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R1 BY ADVS. SRI.N.N. SUGUNAPALAN, SC, P.F. SMT.T.N.GIRIJA, SC, EPF ORGANISATION SRI.S.GOWTHAM, SC, P.F.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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WP(C).No. 6726 of 2008 (A)

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APPENDIX

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PETITIONER'S EXHIBITS :

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EXT.P1 : COPY OF UNDERTAKING GIVEN BY THE EMPLOYER ON 12/8/07. EXT.P2 COPY OF LETTER DATED 21/8/07 WRITTEN BY THE PETITIONER TO THE RESPONDENT.

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EXT.P3 COPY OF COMMUNICATION DATED 7/1/08 RECEIVED BY THE PETITIONER FROM THE RESPONDENT.

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RESPONDENT'S EXHIBITS : NIL

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//TRUE COPY// P.S. TO JUDGE Mn

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B.P.RAY, J.

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W.P.(C)No.6726 OF 2008

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Dated this the 2^nd day of July, 2013

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JUDGMENT

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Petitioner is a co-operative society registered under the Kerala Co-operative Societies Act. It is a covered establishment under the Employees Provident Fund and Miscellaneous Provisions Act 1952. The petitioner and its employees jointly requested the respondent to accept contribution with reference to pay of employees exceeding Rs.6500/- as provided under paragraph 26(6) of the Employees Provident Fund Scheme 1952. But the respondent has rejected the request as per Ext.P3 on the ground that contribution under Employees Pension Scheme, 1995 on salary ceiling exceeding of Rs.6,500/- should have been done only with effect from the date on which the wages exceeded Rs.6,500/- and not from a subsequent date. According to learned counsel for the petitioner, Ext.P3 is arbitary and illegal as the reason stated is not supported by any provision in the Act or the Scheme.

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Prayers in this writ petition are as follows:

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A) issue a writ of certiorari or other appropriate writ or order quashing and setting aside Ext.P3.

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B) issue a writ of mandamus or other appropriate writ or order directing the respondent to accept contributions with reference to pay exceeding Rs.6500/- in respect of the petitioner's employees mentioned in Ext.P1.

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W.P.(C)No.6726 OF 2008

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:: 2 ::

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Heard learned counsel for the parties and perused the materials available on record.

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As per Clause 2(f)(ii) of the Employees Provident Fund Scheme 1952 (hereinafter referred to as 'the scheme') an employee whose pay exceeds Rs.6500/- is an excluded employee. As per Part 26(1) of the Scheme, every employee employed in an establishment to which the scheme applies, other than an excluded employee is required to become a member of the fund. Paragraph 26(6) of the Scheme provides that the Assistant Provident Fund Commissioner may on the joint request in writing of the employees and employer, enroll such employee as a member or allow him to contribute more than Rs.6500/- of his pay every month, if he is already a member of the fund and thereupon such employee shall be entitled to the benefit and shall be subject to the conditions of the fund provided the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee. All the 43 employees of the petitioner bank are members of the fund and have been subscribing to the fund irrespective of the fact that 30 are excluded employees. The contributions were being made limiting the same to the pay of Rs.6500/-. But the employees jointly decided that they would contribute over and

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W.P.(C)No.6726 OF 2008

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:: 3 ::

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above Rs.6500/- of their pay with effect from September 2007 onwards.

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In the counter affidavit filed on behalf of the respondent it is stated that option exercised by the petitioner/members to contribute only at statutory wage limit even after the issuance of the Government of India Notification is to be considered as a deemed option by the members and the said option is irrevocable and petitioner/employees cannot exercise a second option after a lapse of so many years. The voluntary contributions made by the petitioner establishment towards pension fund unilaterally in respect of ineligible members from September 2007 onwards is inconsistent with the statutory provisions and hence, will have to be treated as erroneous contribution and such remittance will not have any bearing on the benefits payable under the Employees' Pension Scheme, 1995.

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A Division Bench of this Court in W.A.No.568/12 dated 5^th March 2013 has confirmed the view taken by the learned Single Judge in a similar case. Learned Single Judge has noticed that Proviso to Clause 11(3) was added by G.S.R.No.134, dated 28-2-1996 with effect from 16-3-1996. Therefore, the proviso is certainly retrospective in nature and consequently the petitioner is entitled to avail of the benefit of the proviso retrospectively.

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W.P.(C)No.6726 OF 2008

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:: 4 ::

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In view of the authoritative pronoucement, I have no hesitation to quash Ext.P3 rejection order and direct the respondent to accept the contribution made by the petitioner in respect of the employees from September 7, 2007 onwards along with administration charges, if any, and pay consequential benefits to the petitioner in terms of the Scheme.

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Writ petition is disposed of accordingly.

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B.P.RAY, JUDGE

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jes

Chavakkad Firka Co.Op.Rural Bank Ltd. v. Asst.P.F.Commissioner

Case brief

What is this about?

What did the court decide?

Chavakkad Firka Co.Op.Rural Bank Ltd. v. Asst.P.F.Commissioner

Case brief

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What did the court decide?

What the court decided

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