Allowed

N.Ramakrishnan v. the Regional Provident Fund Commissioner

Kerala HC1 Jun 2016RP/866/2015

Case brief

AI extract

What is this about?

Review petitioners in Writ Appeal challenging an order denying pension benefits under Employees Pension Scheme 1995. Court held petitioner retained Family Pension membership until benefit withdrawal date, qualifying him for the new scheme via option exercise.

What did the court decide?

Petitioner directed to exercise fresh option; respondents to adjust withdrawn amount with interest against pension due.

N.Ramakrishnan Vs the Regional Provident Fund… — Pension and Retirement Benefits | Kerala HC (2016)

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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 P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938

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RP.No. 866 of 2015 () IN WA.1312/2011

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AGAINST THE JUDGMENT IN WA 1312/2011 of HIGH COURT OF KERALA DATED 28-07-2015

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REVIEW PETITIONER/1ST RESPONDENT IN W.A.:

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N.RAMAKRISHNAN METTUMPURATH HOUSE, KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT-686662, DEPUTY MANAGER, M.M.T.C.LTD.(RETD).

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BY ADV. SRI.M.N.MATHEW

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RESPONDENTS/APPELLANTS/RESPONDENTS 2 & 3 IN WA:

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THE REGIONAL PROVIDENT FUND COMMISSIONER-1 EMPLOYEES' PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, WAZIRPUR INDUSTRIAL AREA, NEW DELHI-110001.

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THE REGIONAL PROVIDENT FUND COMMISSIONER (PENSION) EMPLOYEES' PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, KALOOR, KOCHI-682017.

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

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

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R1-2 BY ADV. DR.S.GOPAKUMARAN NAIR (SR.)

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ADV. SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND ORGANISATION R3,R4 BY ADV. SRI.D.PEETHAMBARAN

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 2.3.2016, THE COURT ON 01-06-2016, PASSED THE FOLLOWING:

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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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R.P.No.866 of 2015 in

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W.A.No.1312 of 2011

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-------------------------------------------------DATED THIS THE 1^st DAY OF JUNE, 2016

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ORDER

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ANIL K.NARENDRAN, J .

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This Review Petition is filed by the petitioner herein, who was the 1^st respondent in Writ Appeal No.1312 of 2011 seeking review of our judgment dated 28.7.2015 in Writ Appeal No.1312 of 2011 by which the said Writ Appeal filed by respondents 1 and 2 herein was allowed, thereby allowing R.P.No.375 of 2011 filed by respondents 1 and 2 herein and consequently dismissing W.P.(C) No.34342 of 2004 filed by the petitioner herein, holding that he is not entitled for the reliefs prayed for in that Writ Petition.

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The petitioner, who was an employee of MMTC Ltd., the 3^rd respondent herein, filed W.P.(C).No.34342 of 2004 seeking a declaration that he is entitled to monthly pension as admissible under the Employees Pension Scheme, 1995 (hereinafter referred to as 'the Pension Scheme of 1995') with all consequential benefits,

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with effect from 15.11.1998. He has also sought for a writ of mandamus commanding the Regional Provident Fund Commissioner

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(Pension), Kochi, the 2^nd respondent herein to pay him monthly pension as admissible under the Pension Scheme of 1995, with all consequential benefits and arrears thereof, together with 12% interest per annum from 15.11.1998 till the date of payment. The further relief sought for in that Writ Petition was an order directing the 2^nd respondent herein to adjust the returnable amount of withdrawal benefit of 4,660/- paid to him with₹ interest @ 8.5% per annum from the actual date of payment, till 16.11.1995, against the pension arrears due from 15.11.1998.

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On behalf of respondents 1 and 2 herein, a statement

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has been filed contending that the contribution due from the petitioner was received in their office only till 31.7.1992 and therefore, the claim of the petitioner that he was a member of the Scheme till 27.9.1993 is incorrect. It was also contended that the provisions of the Pension Scheme of 1995 is applicable only to those members whose contributions were received after 1.4.1993.

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On behalf of respondents 3 and 4 herein, a counter affidavit has been filed contending that since the petitioner took

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voluntary retirement from service and was relieved on 31.7.1992, he is not eligible to exercise option to join the Pension Scheme of 1995.

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After considering the rival contentions, with reference to Clause 6(c) of the Pension Scheme of 1995, which provides that the employee of establishments to which the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'EPF Act') applies, and who ceased to be a member of the Employees Family Pension Scheme, 1971, (hereinafter referred to as the 'Family Pension Scheme of 1971'), between 1.4.1993 and 15.11.1995 and exercise option under Para.7 of the Scheme, are eligible to be members of the Pension Scheme of 1995. The learned Single Judge has also referred to Para.26A of the Employees Provident Funds Scheme, 1952 (hereinafter referred to as the EPF Scheme of 1952), which provides for retention of membership. The learned Single Judge noticed that Para.26A(1) still provides that a member of the Fund shall continue to be a member until he withdraws the amount standing to his credit in the Fund, as provided under Para.69,

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which in turn provides the circumstances in which accumulations in the fund are payable to a member. Although the petitioner retired from service with effect from 31.7.1992, on voluntary retirement, he withdrew the benefit under Para.69 only on 27.9.1993. Consequently, in view of the provisions contained in Para.26A of the EPF Scheme of 1952, he retained his membership of the Scheme till 27.9.1993. If that be so, he is an employee, who ceased to be a member of the Pension Scheme of 1971 between 1.4.1993 and 15.11.1995, as provided in Para.6(c) of the said Scheme. Para.7 of the Pension Scheme of 1995 provides for option for joining the Scheme. Clause (2) provides that those employees who are covered by Para.6(c) referred to above shall have the option to join the said Scheme from the date of exit from employment. Similarly, Para.17 provides for the payments, an employee has to make on exercise of option. In terms of Para.17(2), an employee covered by Para.7(2) referred to above should return the amount of withdrawal benefit received together with interest @8.5% from the date of payment of such withdrawal and the date of exercise of the option to

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receive monthly pension as provided under the Scheme. From the facts of the case, the learned Single Judge noticed that, in the year 1999, the petitioner had exercised his option, which was returned along with Ext.P2 dated 14.10.1999. Having regard to the aforesaid provision of the Scheme and other facts of the case,

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the learned Single Judge came to the conclusion that the petitioner was entitled to have exercised his option and that his option was illegally returned by the respondents. Therefore, the learned Single Judge by judgment dated 24.3.2011 disposed of the Writ Petition directing that, the petitioner will exercise a fresh option and on receipt thereof respondents 1 and 2 shall process the same in accordance with the provisions of the Pension Scheme of 1995. Insofar as the obligation of the 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, respondents 1 and 2 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

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ordered that, the 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.

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Seeking review of the judgment of the learned Single Judge dated 24.3.2011 in W.P.(C).No.34342 of 2004, respondents 1 and 2 filed R.P.No.375 of 2011, contending that there is error apparent on the face of record. According to respondents 1 and 2, while rendering the judgment, the learned Single Judge has not considered Para.6 of the Family Pension Scheme of 1971. The 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 EPF Scheme of 1952 has no application in the matter in dispute. The eligibility criteria mentioned in Para.6 of the Pension Scheme of 1995 is cessation of membership from Employees Family Pension Scheme, 1971, between 1^st April, 1993 and 15^th November, 1995, and not cessation of membership from the EPF Scheme of 1952.

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This aspect of the matter was also not considered by the learned Single Judge. Therefore, respondents 1 and 2 contended that the petitioner herein is not entitled for the benefits under the Pension Scheme of 1995.

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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 on retirement, but also on withdrawal of the benefits or on the pensioner becoming entitled to withdraw the benefits. In the case of the 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 Pension Scheme of 1995, as found in the judgment.

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Aggrieved by the order of the learned Single Judge 22.7.2011 in R.P.No.375 of 2011, respondents 1 and 2 approached this Court in W.A.No.1312 of 2011, contending that, if Para.6 of the Family Pension Scheme of 1971 is considered in its correct perspective, the petitioner herein is not entitled for any pension under the Pension Scheme of 1995, since he retired

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from service on 31.7.1992. Going by Para.6 of the Family Pension Scheme of 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 EPF Scheme of 1952 has no application in the matter and in such circumstances, the learned Single Judge went wrong in concluding that the petitioner is entitled for the benefits under the Pension Scheme of 1995.

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After considering the pleadings and materials on record, the said Writ Appeal was allowed by judgment dated 28.7.2015 holding that, when retention of membership of an employee under the Family Pension Scheme of 1971 is governed by Para.6 of the said Scheme and the membership of an employee under the Pension Scheme of 1995 is governed by Para.6 of that Scheme, an employee like the petitioner, who ceased to be a member of the Family Pension Scheme of 1971, before 1^st April, 1993, cannot be brought under the Pension Scheme of 1995, taking recourse to Para.26A of the EPF Scheme

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of 1952, framed under Section 5 of 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 Family Pension Scheme of 1971, between 1^st April, 1993 and 15^th November, 1995, and not cessation of membership from the EPF Scheme of 1952, Para.26A of the said Scheme has no application at all in the matter in dispute. Therefore, it was held that 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 Family Pension Scheme of 1971 or in the Pension Scheme of 1995, the petitioner is not legally entitled for a declaration that he is entitled to monthly pension as admissible under the Pension Scheme of 1995 with consequential benefits as sought for in the writ petition. It was also noticed that, 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 MMTC Ltd., who was governed by the the Provident Fund scheme of MMTC from the year 1964 and continued to be so governed when the

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Family Pension Scheme of 1971 came into force. On the other hand, the petitioner was admittedly a member of the Family Pension Scheme of 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. Accordingly, the Writ Appeal was 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.

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We heard the arguments of the learned counsel for the petitioner, the learned Standing Counsel for the Employees Provident Fund Organisation, representing respondents 1 and 2, and also the learned counsel for respondents 3 and 4.

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The learned counsel for the petitioner would contend

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that, the impugned judgment has resulted in an error of law because of the non-consideration of certain relevant materials, which the learned counsel could not place before this Court on the day when the Writ Appeal was finally heard, due to the

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personal reason sated in the memorandum of Review Petition. Per contra, the learned Standing Counsel for respondents 1 and 2, reiterating the contentions raised in the Writ Appeal, would argue that the impugned judgment warrants no interference in this Review Petition.

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MMTC Ltd. is a Government of India Enterprise, which is an exempted establishment covered under Section 17(1)(a) of the EPF Act, having a Contributory Provident Fund Trust. While in the service of MMTC Ltd., the petitioner was a member of the Family Pension Scheme of 1971, which fact is admitted in Para.1 of the Review Petition at Page No.2. It is also not in dispute that, he took voluntary retirement from service on 31.7.1992. The contribution payable by the petitioner under the said Scheme upto 31.7.1992 has also been paid. However, the benefits due to him under the Family Pension Scheme of 1971 were paid only on 27.9.1993.

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The Family Pension Scheme of 1971, framed under Section 6A of the EPF Act, came into force with effect from 1.3.1971, providing for payment of family pension only in the

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event of death of the member while in service and refund of contribution with nominal interest in lump sum to the member on retirement or leaving the job. Para.6 of the Family Pension Scheme of 1971, which deals with retention of membership reads thus;

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“6. Retention of membership.- A member of Family Pension Fund shall continue to be a member of the Family Pension 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 this Scheme or dies during the period of reckonable service, whichever is the earliest:

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Provided that where there has been a break in the membership of the Family Pension Fund on account of closure of an establishment, strike, lock-out, leave without pay, retrenchment, resignation, termination, discharge or for any other reason either under the same establishment or under different establishments covered under the Act, such member, if he has not withdrawn the benefit to which he is entitled under this Scheme and his provident fund accumulations under the Employees' Provident Fund Scheme, 1952, or the Provident Fund Scheme of an exempted establishment, as the case may be, shall continue to be a member of the Family Pension Fund:

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Provided further that such breaks during which no

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contributions to the Family Pension Fund are payable shall be excluded from the total reckonable service.

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Explanation.- Under this paragraph the age of 60 shall be determined with reference to the date of birth where, however, the exact date of birth is not given by the member, the age shall be determined in the following manner:

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(1) xxx xxx xxx; (2) xxx xxx xxx; (3) xxx xxx xxx”

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

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withdraw the benefits to which he is entitled under that Scheme

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or dies during the period of reckonable service, whichever is the

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earliest. However, going by the first proviso to Para.6, which was added by GSR No.186(E) dated 31.3.1973, where there has been a break in the membership of the Family Pension Fund on account of closure of an establishment, strike, lock-out, leave without pay, retrenchment, resignation, termination, discharge or for any other such reason either under the same establishment or

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under different establishments covered under the EPF Act, such member, if he has not withdrawn the benefit to which he is entitled under the Scheme and his Provident Fund accumulations under the Employees Provident Fund Scheme, 1952 or the Provident Fund Scheme of an exempted establishment, as the case may be, shall continue to be a member of the Family Pension Fund. The second proviso to Para.6 provides further that, such breaks during which no contributions to the Family Pension Fund are payable shall be excluded from the total reckonable service.

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In Maharashtra State Co-operative Bank Ltd. v. Assistant Provident Fund Commissioner and others (2009

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(10) SCC 123) , the Apex Court after noticing the observation made in its earlier judgment in Organo Chemical Industries v. Union of India (1979 (4) SCC 573) held that since the Employees Provident Fund Act is a social welfare legislation intended to protect the interest of the weaker section of the society, i.e., the workers employed in factories and other establishments, it is imperative for the courts to give a purposive interpretation to the

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provisions contained therein, keeping in view the directive principles of State Policy embodied in Articles 38 and 43 of the Constitution of India.

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In the instant case, the petitioner took voluntary retirement from service on 31.7.1992 and as such he became entitled to withdraw the benefits to which he is entitled under the Family Pension Scheme of 1971, by 31.7.1992. However, since the petitioner has not withdrawn the benefit to which he is entitled under the said Scheme and also the Provident Fund accumulations under the Provident Fund Scheme of MMTC Ltd. as on 31.7.1992, the date on which he took voluntary retirement, he shall retain his membership in the Family Pension Fund even after 31.7.1992, under the first proviso to Para.6 of the said Scheme, which provides for retention of membership in the Family Pension Fund till withdrawal of such benefits. In the case of the petitioner, the benefits due to him under the Family Pension Scheme of 1971 were paid only on 27.9.1993, which fact is not in dispute. In that view of the matter, we find absolutely no merit in the contention raised by respondents 1 and 2 that, the

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petitioner ceased to be a member of the Family Pension Scheme of 1971, with effect from 31.7.1992, the date on which he took voluntary retirement.

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When the benefit of the first proviso is applicable where there has been a break in the membership of the Family Pension Fund Scheme on account of retrenchment, resignation, termination, discharge, etc. or for any other such reason, either under the same establishment or under different establishments covered under the EPF Act, we find absolutely no valid reason to hold that, the benefit of the first proviso to Para.6 of the Family Pension Scheme of 1971 will have no application in the case of an employee who took voluntary retirement before attaining the age of retirement. In that view of the matter, we hold that the petitioner continued to be a member of the Family Pension Scheme of 1971 till 27.9.1993, the date on which he has withdrawn the benefits due to him under the said Scheme.

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We also notice that, in the year 1995, the Family Pension Scheme of 1971 was replaced by introducing a comprehensive pension scheme, namely, the Employees Pension

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Scheme, 1995. The Pension Scheme of 1995 was funded by diversion of 8.33% employer's share in the provident fund and contribution of the Central Government was at the rate of 1.6%. The assets and liabilities of ceased Family Pension Fund were taken over by the new Scheme and the Family Pension Fund as on 15.11.1995 forms the initial corpus of the pension fund and all accumulations to the provident fund upto 15.11.1995 remained intact and likewise the employees' contribution to the provident fund remained untouched. Similarly, the balance of 1.67% employer's share of contribution to the provident fund continued to be part of the fund.

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The Pension Scheme of 1995 provides for pension payment for life to a member on superannuation or retirement and in the event of becoming totally and permanently invalid during employment period; family pension payment upon death of the member irrespective of the death occurring while in service, away from employment or after retirement as a pensioner; and the facility for commutation of pension upto 1/3^rd by a member and also return of capital on option-formula basis.

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In Otis Elevator Employees' Union v. Union of

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India (2003 (12) SCC 68) the Apex Court noticed that, upon introduction of the Employees Pension Scheme of 1995 the corpus and membership of the ceased Employees' Family Pension Scheme, 1971 have been carried over to the new Pension Scheme of 1995 with benefit of pensionary entitlement to the said members against their membership in the ceased Employees' Family Pension Scheme, 1971 period in lieu of retirement cum withdrawal benefit, vide provisions contained in Para.12(3)(b) of the new Pension Scheme of 1995. Thus corpus along with its liability has been merged with the pension fund. The Apex Court has also noticed that, the amount of actual surplus that was noticed by the actuaries as indicated in the analysis contained in the said report has already been allowed as additional pension relief to the respective Family Pension Scheme pensioners.

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Para.6 of the Employees Pension Scheme, 1995, which deals with the membership of the Scheme, reads thus;

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“ 6. Membership of the Employees Pension Scheme:- Subject to

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

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(a) Who on or after the 16^th 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 under Section 17 of 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;

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(b) Who has been a member of the ceased Employees’ Family Pension Scheme, 1971, before the commencement of this Scheme from 16^th November, 1995;

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(c) Who ceased to be a member of the Employees’ Family Pension Scheme, 1971, between 1^st April, 1993, and 15^th November, 1995 and opts to exercise his option under paragraph 7;

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(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 under Section 17 of 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.”

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Clauses (b) and (c) of Para.6 of the Pension Scheme of

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1995 deal with members of the ceased Family Pension Scheme of

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As per Para.6(b), subject to Para.1(3), the Scheme shall

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apply to every employee who has been a member of the ceased Employees Family Pension Scheme, 1971, before the commencement of this Scheme from 16^th November, 1995. Similarly, as per Para.6(c), subject to Para.1(3), the Scheme shall apply to every employee who ceased to be a member of the Employees’ Family Pension Scheme, 1971, between 1^st April, 1993, and 15^th November, 1995 and opts to exercise his option under paragraph 7.

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Para.6A of the Pension Scheme of 1995, inserted with effect from 6.3.1999, deals with retention of membership. As per Para.6A, a member of the Employees' Pension Fund shall continue to be such member till he attains the age of 58 years or avails the withdrawal benefit to 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.

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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 1^st April, 1993 and 15^th November, 1995 shall be deemed to have exercised the option of

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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 employment.

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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.

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The EPF Scheme of 1952 was framed under Section 5 of the EPF Act. Para.26A of the EPF Scheme, which deals with retention of membership. 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 under Section 17 of 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

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are payable to a member.

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Going by Para.69(1)(dd) of the EPF Scheme, 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 in Section 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.

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As we have already held, the petitioner continued to be a member of the Family Pension Scheme of 1971 till 27.9.1993, the date on which he has withdrawn the benefits due to him under the Family Pension Scheme of 1971. If that be so, the petitioner will fall under Para.6(c) of the Pension Scheme of 1995, which provides that the said Scheme shall apply to every employee who ceased to be a member of the Employees Family Pension Scheme, 1971, between 1^st April, 1993, and 15^th

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November, 1995 and opted to exercise his option under paragraph 7. Going by Para.7(2) of the Pension Scheme of 1995, 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 employment. As per Para.17(2), such member 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 .

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The 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 Family Pension Scheme of 1971, he is ineligible and on that basis, the claim was returned. The petitioner submitted Exts.P3 and P4 representations. Though the 2^nd respondent by Ext.P5 informed him that the representations have already been forwarded to the 1^st respondent, thereafter, there was no response from respondents 1 and 2.

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As we have already noticed, the petitioner retained his membership in the Family Pension Fund till 27.9.1993, the date on which he has withdrawn the benefit to which he was entitled under the said Scheme in terms of the 1^st proviso to Para.6 of the Family Pension Scheme of 1971. We also notice that on introduction of the Employees Pension Scheme of 1995, the corpus and membership of the ceased Family Pension Scheme of 1971 have been carried over to the new Pension Scheme of 1995 with benefit of pensionary entitlement to the said members against their membership in the ceased Family Pension Scheme of 1971 period, in lieu of retirement cum withdrawal benefit, vide the provisions contained in Para.12(3)(b) of the New Pension Scheme of 1995, as held by the Apex Court in Otis Elevator Employees Union's case (supra).

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In the above circumstances, the petitioner can be termed as an employee who ceased to be a member of the Family Pension Scheme of 1971, between 1^st April, 1993, and 15^th November, 1995, falling under Para.6(c) of the Pension Scheme of 1995, who can exercise option under Para.7 for joining the

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said Scheme, as provided under Para.17(2). Going by Para.17(2) of the Pension Scheme of 1995, 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 1^st April, 1993, and 15^th 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.

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In that view of the matter, we find that the petitioner has made out a case warranting review of our judgment dated 28.7.2015 in W.A.No.1312 of 2011. In the result, we allow this Review Petition, by recalling our judgment dated 28.7.2015 in W.A.No.1312 of 2011, thereby dismissing that Writ Appeal. Consequently the judgment of the learned Single Judge in W.P. (C)No.34343 of 2004 is sustained, for the reasons stated hereinbefore and it is ordered as follows:

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Within one month from the date of receipt of a certified

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R.P.No.866/15

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copy of this judgment, the petitioner shall exercise fresh option and on receipt thereof, respondents 1 and 2 shall process the same in accordance with the provisions of the Employees Pension Scheme of 1995. In so far as the obligation of the petitioner to return the withdrawn amount is concerned, taking into consideration the fact that the petitioner attained the age of 58 years on 15.11.1998 and became entitled to the benefit of pension under the Pension Scheme of 1995 with effect from that date, respondents 1 and 2 shall adjust the amount withdrawn by the petitioner and the interest due thereof, against the amount of pension due to him. In case, the amount so adjusted is insufficient, respondents 1 and 2 will be free to call upon the petitioner, who shall remit the deficit amount and on such remittance, the benefit due to the petitioner under the Pension Scheme of 1995 shall be disbursed to him.

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Sd/-

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P.R.RAMACHANDRA MENON ,

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JUDGE

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Sd/-

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ANIL K.NARENDRAN,

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JUDGE