Dismissed

Radhakrishnan Nair. S v. Union of India

Kerala HC13 Dec 2018WP(C)/18413/2017

Case brief

AI extract

What is this about?

Employees of Kerala State Poultry Development Corporation sought the right to contribute to the Pension Fund based on actual salaries exceeding the statutory ceiling. The Court affirmed their claim but conditioned the Provident Fund Organization's liability on the employer first making its mandated contribution.

What did the court decide?

Petition disposed of on the condition that the PF Organization's liability is contingent upon the employer's contribution.

Radhakrishnan Nair. S Vs Union of India — Pension and Retirement Benefits | Kerala HC (2018)

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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 DAMA SESHADRI NAIDU

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THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940

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WP(C).No. 18413 of 2017

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PETITIONER/S:

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1 RADHAKRISHNAN NAIR. S AGED 58 YEARS, S/O. SREEDHARAN NAIR, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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2 ABDUL VAHEED M

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AGED 50 YEARS, S/O. MEERASAHIB, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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3 SUNIL KUMAR M

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AGED 38 YEARS, S/O. G. MANIYAN, HATCHERY WORKER, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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4 VALSALA B

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AGED 55 YEARS, D/O. KESAVA PANICKER, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, KUDAPPANAKKUNNU P.O, TRIVANDRUM 695 043.

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5 SISUPALAN K

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AGED 48 YEARS, S/O. S.KOCHUKONJU, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, KUDAPPANAKKUNNU P.O, TRIVANDRUM 695 043.

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6 JAYAKUMAR D

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AGED 48 YEARS, S/O. DHARKASHEELAN, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, KUDAPPANAKKUNNU P.O, TRIVANDRUM 695 043.

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7 PEEYUSHA RAJ

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AGED 41 YEARS, D/O. B.RAJENDRAN, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, KUDAPPANAKKUNNU P.O, TRIVANDRUM 695 043.

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8 STEPHEN H AGED 52 YEARS, S/O. HARRIS, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, KUDAPPANAKKUNNU P.O, TRIVANDRUM 695 043.

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WPC No.18413 of 2017 2

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9 ALOSHIYAS G AGED 53 YEARS, S/O.C.GEORGE, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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10 JAYAKUMAR P

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AGED 55 YEARS, S/O.PARAMESHWARAN NAIR, HATCHERY WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, KUDAPPANAKKUNNU P.O, TRIVANDRUM 695 043.

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11 SAJEEV S

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AGED 42 YEARS, S/O.P.SASIDHARAN, HATCHERY WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, NEAR S.N POLYTECHNIC, KOTTIYAM, KOLLAM 691 571.

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12 ARUNADEVI S

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AGED 50 YEARS, D/O.SUKUMARAN K, FARM WORKER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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13 SURESH BABU M

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AGED 49 YEARS, S/O. MADHAVAN, DRIVER, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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14 MOHAMMED AYUBKHAN M

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AGED 52 YEARS, S/O. MOUDUKHAN SAHIB, ELECTRICIAN CUM MECHANIC, KERALA STATE POULTRY DEVELOPMENT CORPORATION, PETTAH, TRIVANDRUM 695 027.

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BY ADVS.

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SRI.C.UNNIKRISHNAN (KOLLAM) SRI.D.JAYAKRISHNAN

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF LABOUR AND DEPARTMENT OF EMPLOYMENT, NEW DELHI 110 001.

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2 REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION [EPFO], BHAVISHANIDHI BHAVAN, PATTOM P.O, TRIVANDRUM 695 004.

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3 EMPLOYEES PROVIDENT FUND TRUSTEE REPRESENTED BY ITS MANAGING TRUSTEE, EMPLOYEES PROVIDENT FUND OFFICE, BHAVISHYA NIDHI BHAVAN, WAZIRPUR, NEW DELHI 11052.

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4 KERALA STATE PULTRY DEVELOPMENT CORPORATION KEPCO

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WPC No.18413 of 2017 3

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REPRESENTED BY ITS MANAGING DIRECTOR, PETTAH P.O, TRIVANDRUM 695 027.

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5 PROVIDENT FUND COMMISSIONER -1 PENSION, BHAVISHYA NIDHI BHAVAN, 14-BHIKAJI CAMA PALACE, NEW DELHI 110 066.

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6 EMPLOYEES PROVIDENT FUND ORGANISATION BHAVISHYA NIDHI BHAVAN, 14-BHIKAJI CAMA PALACE, NEW DELHI 110 066, REPRESENTED BY THE PROVIDENT FUND COMMISSIONER -1 [PENSION].

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7 THE ACCOUNTANT GENERAL STATUE, TRIVANDRUM 695 001.

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BY ADVS. SRI.RAJAGOPALAN NAIR.K.R., CGC SRI.A.ABDUL KHARIM SRI.S.SUJIN, SC, EPFO SRI.M.SREEKUMAR SRI.RAJAGOPALAN NAIR.K.R. CGC SRI.S.SUJIN SC EPFO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioners are the employees of the fourth respondent: Kerala State Poultry Development Corporation, a public sector undertaking. All

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the petitioners claimed to have exercised their option under paragraph 26(6) of the Provident Fund Scheme for higher contribution. In fact, the amended clause 11(3) permits contribution based on actual salary, with a rider that that the option had to be exercised before 1.12.2004. Then, through the Ext.P1 judgment, this Court held that there should be no restriction for the option to be exercised. In other words, it was made

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WPC No.18413 of 2017 4

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operative from 16.11.1995, when the pension scheme commenced. On challenge, this issue stood affirmed by the Supreme Court, through the Ext.P12 judgment. Claiming to contribute on actual salaries, the petitioners have filed this writ petition.

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In response to the submissions made by the petitioner's counsel, the Standing Counsel for the Provident Fund Organization submits that it will not suffice. Even the employer should contribute. Then, the petitioner's counsel has drawn my attention to paragraphs 8 and 9 of the employer's counter affidavit and it reads as follows:

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“8. The EPFO, New Delhi, vide its Letter No.Pension1/12/33/EPS Amendment/96/Vol.II dated 23.3.2017 confirmed the right of the Employee/Member contributing to the PF based on the wages exceeding the statutory ceiling or who had already paid their contribution accordingly and that they could not be debarred from exercising the option to contribute on such higher wages to the pension fund.

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It is submitted that the 4^th respondent-Corporation by its Letter No.KSPDC/Gen.Corres/2011/822, dated 18.8.2011, requested the Employees Provident Fund commissioner, (Enforcement), Trivandrum to clarify the situation and to allow the Corporation to make remittance towards Employer's Contribution of 12% of the Salary, which is not responded to till date.”

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In the light of the unmistakable assertion by the employer, I reckon,

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the petitioner's claim is sustainable. But any obligation on the Provident Fund Organization's part will arise only if the employer contributes its part,

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WPC No.18413 of 2017 5

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besides remitting the employee's contribution, as it has mentioned in the

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extracted paragraphs.

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With these observations, I dispose of the writ petition.

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Sd/-

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DAMA SESHADRI NAIDU

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JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1.	COPY OF JUDGMENT DATED 4.11.11 IN WPC 6643/07 OF THE SINGLE JUDGE.
EXHIBIT P2.	COPY OF THE JUDGMENT DATED 5.3.13 IN WA 1137/12 OF THE DIVISION BENCH.
EXHIBIT P3.	COPY OF JUDGMENT DATED 31.3.16 IN SLP NO.7074/14 OF THE SUPREME COURT.
EXHIBIT P4.	COPY OF CIRCULRA NO.PENSION/MISC/2005.
EXHIBIT P5.	COPY OF NO.KR/TVM/PEN.CELL[4] KMMLKR/10315/07 DATED 20.2.07 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6.	COPY OF JUDGMENT DATED 16.12.14 IN WPC 33185/14.
EXHIBIT P7.	COPY OF JUDGMENT DATED 8.12.15 IN WA 2505/15.
EXHIBIT P8.	COPY OF ORDER DATED 8.11.13 OF THE 5TH RESPONDENT.
EXHIBIT P9.	COPY OF COMMUNICATION ISSUED TO AN EMPLOYEE OF FACT BY THE PF OFFICE, KALOOR.
EXHIBIT P10.	COPY OF GSR 609 [E] DATED 22.8.14 W.E.F 01.09.14.

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WPC No.18413 of 2017 6

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EXHIBIT P11. COPY OF G.O[P]NO.20/2013/FIN DATED 7.1.13. EXHIBIT P12. COPY OF ORDER DATED 4.10.16 IN SLP NO.3303233033/2015 OF THE SUPREME COURT.

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EXHIBIT P13. COPY OF LETTER NO.KSPDC/GEN.CORRES/2011/822 DATED 18.8.11 FROM THE 4TH RESPONDENT TO THE 7TH RESPONDENT. EXHIBIT P14. COPY OF ORDER NO.PENSION-1/12/33/EPS AMENDMENT/96/VOL.II DATED 23.3.17.

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Css/

Radhakrishnan Nair. S v. Union of India

Case brief

What is this about?

What did the court decide?

Radhakrishnan Nair. S v. Union of India

Case brief

What is this about?

What did the court decide?

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