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High Court of KeralaWP(C)/6621/2015disposed of

P.Jayakumar v. Union Of India

2015-03-03Honourable Mr.Justice K.Vinod Chandran19 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 3RD DAY OF MARCH 2015/12TH PHALGUNA, 1936 PETITIONER(S):

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1. P.JAYAKUMAR, EMPLOYEE CODE NO. 2009, ASSISTANT TECHNICIAN,

2. S. GEETHA, EMPLOYEE CODE NO. 2026, CHARGEMAN-I (ELECTRICAL),

3. V. RAGINI, EMPLOYEES CODE NO. 2027, CHARGEMAN,

4. D. GLAFSTON, EMPLOYEE CODE NO. 2039, CHARGEMAN-I (ELECTRICAL),

5. N.R. MEERA, EMPLOYEE CODE NO. 2044, CHARGEMAN (ELECTRICAL), TERUMOPENPOL PRIVATE LIMITED, BLOOD BAG FACTORY

6. KUMARI PREMALATHA, EMPLOYEE CODE NO. 2048, CHARGEMAN (ELECTRICAL)

7. B.M. THULASI, EMPLOYEE CODE NO. 2052, CHARGEMAN,

8. L. SREEDEVI, EMPLOYEE CODE NO. 2054, CHARGEMAN,

9. B. RADHAKRISHNAN, EMPLOYEE CODE NO. 2058, SENIOR CLERK-II (STORES), -2-

-2-

10. S. BABU KUMAR, EMPLOYEE CODE NO. 2059, CHARGEMAN,

11. E. ARIFA BEEVI, EMPLOYEE CODE NO. 2075, CHARGEMAN-I(ELECTRICAL),

12. C. GEETHA KUMAR, EMPLOYEE CODE NO. 2078, CHARGEMAN-I(ELECTRICAL),

13. M. SREEKUMARAN NAIR, EMPLOYEE CODE NO. 2084, CHARGEMAN,

14. K.P. BEENA, EMPLOYEE CODE N. 2089, CHARGEMAN-I(ELECTRICAL),

15. M. JAMEELA, EMPLOYEE CODE NO. 2126, ASSISTANT TECHNICIAN,

16. S. MOHANA CHANDRAN, EMPLOYEE CODE N. 2145, CHARGEMAN-I(ELECTRICAL) TERUMOPENPOL PRIVATE LIMITED, BLOOD BAG FACTORY, PULIYARAKONAM P.O., THIRUVANANTHAPURAM.

17. L. ANITHA, EMPLOYEE CODE NO. 2184, CHARGEMAN-I(ELECTRICAL),

18. K.S. GEETHA DEVI, EMPLOYEE CODE NO. 2149, CHARGEMAN-I (ELECTRICAL),

19. G. BEENA KUMARI, EMPLOYEE CODE NO. 2155, CHARGEMAN-I (ELECTRICAL), -3-

-3-

20. C. SATHEESH KUMAR, EMPLOYEE CODE NO. 2174, CHARGEMAN-I (ELECTRICAL),

21. S.A. RAJASEKHARAN NAIR, EMPLOYEE CODE NO. 2178, SR. BOILER OPERATOR (CHARGEMAN),

22. A. MAJUPHA, EMPLOYEE CODE NO. 2198, CHARGEMAN-I (ELECTRICAL),

23. S.S. REEJA, EMPLOYEE CODE NO. 2201, CHARGEMAN-I (ELECTRICAL),

24. P.P. PURUSHOTHAMAN NAIR, EMPLOYEE CODE NO. 2237, SENIOR FILTER CHARGEMAN,

25. SREEMAYA DEVI I.S., EMPLOYEE CODE NO. 2250, CHARGEMAN-I (ELECTRICAL),

26. S. ASWATHY, EMPLOYEE CODE NO. 2252, CHARGEMAN-I (ELECTRICAL),

27. V.G. PUSHPALATHA, EMPLOYEE CODE NO. 2254, CHARGEMAN-I (ELECTRICAL),

28. S. GOPAKUMAR, EMPLOYEE CODE NO. 2260, ASSISTANT TECHNICIAN,

29. MOLLY G.

EMPLOYEE CODE NO. 2273, CHARGEMAN-I (ELECTRICAL), -4-

-4-

30. G. SATHI KUMARI, EMPLOYEE CODE NO. 2278, CHARGEMAN-I (ELECTRICAL),

31. T. THANKAMANI, EMPLOYEE CODE NO. 2295, CHARGEMAN,

32. V. LATHAKUMARI, EMPLOYEE CODE NO. 2306, ASSISTANT TECHNICIAN,

33. P.S. PRASHOBHANAN, EMPLOYEE CODE NO. 2352, SENIOR TECHNICIAN-II(ELECTRICAL),

34. R. RAJ MOHANAN, EMPLOYEE CODE NO. 2356, SENIOR TECHNICIAN II,

35. K. MURALEEDHARAN, EMPLOYEE CODE NO. 2356, SENIOR CLERK-I,

36. A. SHAHUL HAMEED, EMPLOYEE CODE NO. 2359, SENIOR TECHNICIAN-II,

37. Y. JOHN PRASAD, EMPLOYEE CODE NO. 2398, SENIOR TECHNICIAN-II(ELECTRICAL),

38. S. ARUN, EMPLOYEE CODE NO. 2416, SENIOR TECHNICIAN-II(ELECTRICAL),

39. G. JAYAKUMARAN NAIR, EMPLOYEE CODE NO. 2420, SENIOR TECHNICIAN-II(ELECTRICAL), -5-

-5-

40. P.S. RAJAN, EMPLOYEE CODE NO. 2424, SENIOR DRIVER II,

41. N. RAMESH, EMPLOYEE CODE NO. 2440, SENIOR CLERK-I(STORES),

42. A. MANMADAN NAIR, EMPLOYEE CODE NO. 2442, SENIOR TECHNICIAN II,

43. J. MAHESH KUMAR, EMPLOYEE CODE NO. 2448, SENOR TECHNICIAN-II (ELECTRICAL),

44. B. SUDHAKARAN, EMPLOYEE CODE NO. 2450, SENIOR TECHNICIAN-II(ELECTRICAL),

45. M.S. ANILKUMAR, EMPLOYEE CODE NO. 2480, SENIOR CLERK,

46. G. SREE KUMAR, EMPLOYEE CODE NO. 2494, SENIOR TECHNICIAN-II (ELECTRICAL),

47. A. SASIDASAN, EMPLOYEE CODE NO. 2552, SENIOR TECHNICIAN-I(ELECTRICAL),

48. K. KRISHNANKUTTY, EMPLOYEE CODE NO. 2662, SENIOR DRIVER-I,

49. SASEENDRAN NAIR, EMPLOYEE CODE NO. 2663, SENIOR OFFICE CLERK-I, -6-

-6-

50. C.K. RAJESH KUMAR, EMPLOYEE CODE NO. 2675, SENIOR TECHNICIAN-I (ELECTRICAL),

51. K. BALARAM, EMPLOYEE CODE NO. 2678, SENIOR TECHNICIAN I(ELECTRICAL),

52. S. VARIJAKSHAN, EMPLOYEE CODE NO. 2686, SENIOR TECHNICIAN-I(ELECTRICAL),

53. T. KUMAR, EMPLOYEE CODE NO. 2687, SENIOR TECHNICIAN-I(ELECTRICAL),

54. T. KUMAR, EMPLOYEE CODE NO. 2694, DATA ENTRY OPERATOR,

55. V.S. JAYAKUMAR, EMPLOYEE CODE NO. 2698, SENIOR TECHNICIAN,

56. T.S. SREENIVASAN, EMPLOYEE CODE NO. 2703, SENIOR DRIVER,

57. K.S. SREEJITH, EMPLOYEE CODE NO. 2704, SENIOR OFFICE ASSISTANT,

58. S. AJITH KUMAR, EMPLOYEE CODE NO. 2709, OFFICE CLERK,

59. N. GIREESH,EMPLOYEE CODE NO. 2715, SENIOR TECHNICIAN(ELECTRICAL) TERUMOPENPOL PRIVATE LIMITED, BLOOD BAG FACTORY, PULIYARAKONAM P.O., THIRUVANANTHAPURAM.

-7-

-7-

60. AJAYAKJUMAR, EMPLOEE CODE NO. 2727, SENIOR DRIVER,

61. N. SURESH KUMAR, EMPLOYEE CODE NO. 2737, LAUNDRY ASSISTANT,

62. USHAKUMARI P., EMPLOYEE CODE NO. 2740, ASSISTANT,

63. S. SURESH KUMAR, EMPLOYEE CODE NO. 2741, DRIVER,

64. HAREESH BABU, EMPLOYEE CODE NO. 2742, DRIVER,

65. MANOJ KUMAR P.T., EMPLOYEE COFDE NO. 2745, TECHNICIAN,

66. SANJU MOHAN M.S., EMPLOYEE CODE NO. 2750, TECHNICIAN,

67. S. SREEJITH, EMPLOYEE CODE NO. 2753, ASSISTANT,

68. C.S. JIJITH KUMAR, EMPLOYEE CODE NO. 2756, ASSISTANT,

69. P.K. HARIPRASAD, EMPLOYEE CODE NO. 2758, ELECTRICIAN, -8-

-8-

70. B. SUDHA DEVI, EMPLOYEE CODE NO. 2759, CANTEEN SUPERVISOR,

71. HARI KUMAR S., EMPLOYEE CODE NO. 2760, TECHNICIAN,

72. MINIMOL M.R., EMPLOYEE CODE NO. 2761, TECHNICIAN,

73. R.S. KUMAR, EMPLOYEE CODE NO. 2762, DRIVER,

74. REJISH R., EMPLOYEE CODE NO. 2763, TECHNICIAN,

75. RUPESH S., EMPLOYEE CODE NO. 2764, TECHNICIAN,

76. DHANESH G.NATH, EMPLOYEE CODE NO. 2767, TECHNICIAN,

77. RAKESH R.U., EMPLOYEE CODE NO. 2768, TECHNICIAN,

78. PRABATH KUMAR, EMPLOYEE CODE NO. 2769, TECHNICIAN,

79. SAJIR A., EMPLOYEE CODE NO. 2771, TECHNICIAN, -9-

-9-

80. SHAMJI SAMUEL, EMPLOYEE CODE NO. 2774, TECHNICIAN,

81. VINOD B.N., EMPLOYEE CODE NO. 2777, TECHNICIAN,

82. R. PRASAD, EMPLOYEE CODE NO. 2778, TECHNICIAN,

83. V. PRASAD, EMPLOYEE CODE NO. 2780, TECHNICIAN,

84. B.R. RADHAKRISHNAN, EMPLOYEE CODE NO. 2781, TECHNICIAN,

85. KRISHNA KUMAR B., EMPLOYEE CODE NO. 2783, TECHNICIAN,

86. SUJITH BABU S., EMPLOYEE CODE NO. 2785, TECHNICIAN,

87. RAJESH S., EMPLOYEE CODE NO. 2787, TECHNICIAN,

88. ANUPAMA KRISHNAN G.V., EMPLOYEE CODE NO. 2788, TECHNICIAN,

89. RAJESH KUMAR M., EMPLOYEE CODE NO. 2792, TECHNICIAN, -10-

-10- --------------------------------------

90. ARUN S. KUMAR, EMPLOYEE CODE NO. 2793, TECHNICIAN,

91. DHANA RAJ V.V., EMPLOYEE CODE NO. 2794, TECHNICIAN,

92. VINOD R.V., EMPLOYEE CODE NO. 2800, TECHNICIAN,

93. K. KRISHNA KUMAR, EMPLOYEE CODE NO. 2801, TECHNICIAN,

94. GOPAKUMAR S., EMPLOYEE CODE NO. 2807, TECHNICIAN,

95. ANEESH G.R., EMPLOYEE CODE NO. 2809, TECHNICIAN,

96. MAHESH M.R., EMPLOYEE CODE NO. 2812, TECHNICIAN,

97. SANTHOSH KUMAR V., EMPLOYEE CODE NO. 2815, TECHNICIAN,

98. DAYA KUMAR P.C., EMPLOYEE CODE NO. 2816, TECHNICIAN,

99. MANEESH KUMAR G., EMPLOYEE CODE NO. 2818, TECHNICIAN, -11-

-11-

100. SURAJ M.C., EMPLOYEE CODE NO. 2819, TECHNICIAN,

101. AJITH KUMAR K.V., EMPLOYEE CODE NO. 2823, TECHNICIAN,

102. JOSE J., EMPLOYEE CODE NO. 2826, TECHNICIAN,

103. MAHESWARI AMMA P.V., EMPLOYEE CODE NO. 2831, ASSISTANT,

104. M. BIJEESH KUMAR, EMPLOYEE CODE NO. 2837, TECHNICIAN,

105. SUNIL KUMAR T.V., EMPLOYEE CODE NO. 2839, TECHNICIAN, TERUMOPENPOL PRIVATE LIMITED, BLOOD BAG FACTORY

106. S. VALSALA, EMPLOYEE CODE NO. 2849, ASSISTANT,

107. JACOB L., EMPLOYEE CODE NO. 2852, TECHNICIAN (ON PROBATION) TERUMOPENPOL PRIVATE LIMITED, BLOOD BAG FACTORY, PULIYARAKONAM P.O., THIRUVANANTHAPURAM.

108. SURESH M.A., EMPLOYEE CODE NO. 2865, TECHNICIAN (ON PROBATION,

109. NIKKU PAUL P., EMPLOYEE CODE NO. 2867, TECHNICIAN (ON PROBATION, -12-

-12-

110. VINOD B., EMPLOYEE CODE NO. 2869, TECHNICIAN (ON PROBATION,

111. ULLASKUMAR G., EMPLOYEE CODE NO. 2870, TECHNICIAN (ON PROBATION,

112. DILEEP V., EMPLOYEE CODE NO. 2875, TECHNICIAN (ON PROBATION,

113. REJEESH R., EMPLOYEE CODE NO. 2883, TECHNICIAN (ON PROBATION,

114. SREENATH M.S., EMPLOYEE CODE NO. 2884, TECHNICIAN (ON PROBATION,

115. SAJAN KUMAR S.S., EMPLOYEE CODE NO. 2905, TECHNICIAN (ON PROBATION,

116. MANU ASOK, EMPLOYEE CODE NO. 2906, TECHNICIAN (ON PROBATION,

117. MURUKESH R.G., EMPLOYEE CODE NO. 2908, TECHNICIAN (ON PROBATION,

118. PRASANTH KUMAR P.S., EMPLOYEE CODE NO. 2910, TECHNICIAN (ON PROBATION,

119. C.R.RATHEESH KUMAR, EMPLOYEE CODE NO. 2912, TECHNICIAN (ON PROBATION, -13-

-13-

120. SANIL KUMAR, EMPLOYEE CODE NO. 2913, TECHNICIAN (ON PROBATION,

121. MAHESH S.L., EMPLOYEE CODE NO. 2916, TECHNICIAN (ON PROBATION, BY ADVS.SRI.P.N.MOHANAN SRI.C.P.SABARI RESPONDENT(S):

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

2. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION (EPFO), BHAVISHYANIDHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM - 695 004.

3. TERUMOPENPOL PRIVATE LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, PULIYARAKONAM P.O., THIRUVANANTHAPURAM - 695 004. R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADVS. SRI.N.N.SUGUNAPALAN, SC SMT. T.N.GIRIJA, SC,EPF ORGANISATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/

-------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1-TRUE COPY OF THE JUDGMENT DATED 04/11/2011 IN W.P(C) 6643/2007. EXHIBIT-P2-TRUE COPY OF THE JUDGMENT DATED 05/03/2013 IN W.A 1137/2012. EXHIBIT-P3-TRUE COPY OF THE JUDGMENT IN W.P(C) 2059/2014. EXHIBIT-P4-TRUE COPY OF THE JUDGMENT IN W.P(C) 8298/2014. RESPONDENT(S)' EXHIBITS:

----------------------------------------- NIL //TRUE COPY// P.S.TO JUDGE

K.VINOD CHANDRAN, J - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 6621 of 2015 - - - - - - - - - - - - - - - - Dated 3rd March, 2015 - - - - - - - - - - - - - - - - - - - - - - - -

JUDGMENT

I have heard the learned counsel appearing for the petitioners, the learned Assistant Solicitor General appearing for the 1st respondent, the learned Standing Counsel appearing for the 2nd respondent and the counsel for the 3rd respondent.

2. The petitioners are the employees of the 3rd respondent. Admittedly, the petitioners are covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees Pension Scheme, 1995. The petitioners had salary above Rs.6500/-, and are stated to have exercised an option under Section 26(6) of the Act. However, the Provident Fund Organization disputes the exercise of joint option by the employer and the employee; and

WP(C).6621/15 asserts that it has not been done.

3. Be that as it may, it is admitted that the contribution to the Provident Fund being 12% of the total salary deducted as employees contribution and the 12% paid by the employer, were remitted to the Organization. As per the provisions of the Pension Scheme 8.33% of the contribution from the employer, is to be deducted and credited to the Pension Fund. However, in making such deduction, the Provident Fund Organization limited it to 8.33% of the maximum salary provided, ie., Rs.6500/-. The balance contribution made by the employer for the salary in excess of Rs.6,500/-, was fully retained in the Provident Fund Account itself. 4.

The petitioners contend that such a retention was made by the Organization without reference to the statute. The cut-off date

WP(C).6621/15 prescribed being 01.12.2004 is also against the statutory provisions and does not have any nexus with the object sought to be achieved, is the argument. This Court has by judgment in W.P.(C) Nos. 6643 & 9929 of 2007, dated 04.11.2011, held that the cut-off date prescribed is without jurisdiction and that the Organization could not have retained the 8.33% of the employer's contribution, proportionate to the salary in excess of Rs.6,500/- in the Provident Fund Account and that it ought to have been credited to the Pension Scheme. The aforesaid judgment, of a learned Single Judge was also confirmed in appeal. The amounts, being 8.33% contribution in excess of the earlier prescribed limit of Rs. 6,500/- in any event, have been retained with the Provident Fund Organization and what would be required to comply, with the judgments of this Court, is only book adjustments.

WP(C).6621/15

5. Following the binding precedents, it is directed that the 8.33% of the employer's contribution, proportionate to the salary of the employee, in excess of Rs.6,500/-, shall now be credited to the Pension Scheme and orders passed in accordance with law. Needless to say the interest accrued in the Provident Fund Account to that extent also will stand transferred to the Pension Account.

6. The extant employees shall also submit joint applications, along with their employer wherever the same has not been done. The directions above noted shall be complied within three months from the date of receipt of a certified copy of this judgment.

7. It is also stated that the judgment passed in the same lines in other writ petitions were confirmed by a Division Bench in W.A No.

WP(C).6621/15 1442 of 2014. But, however, leaving the question open to be considered depending upon the result of the petitions filed before the Hon'ble Supreme Court. That reservation shall be there in the present writ petition also.

Writ petition allowed.

Sd/- K.VINOD CHANDRAN Judge Mrcs //True Copy//