High Court of KeralaWP(C)/10682/2015disposed of

T.P.Dinesh Kumar v. Union Of India

2015-04-01Honourable Mr.Justice K.Vinod Chandran10 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 1ST DAY OF APRIL 2015/11TH CHAITHRA, 1937 WP(C).No. 10682 of 2015 (I) ---------------------------- PETITIONERS :

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1. T.P.DINESH KUMAR, AGED 59 YEARS, JR. OFFICER (A/S'S), 7800, PPO NO.KR/KKD/00053324 D4, SUDARSANAM, HILL VIEW NAGAR, PUDUPPARIYARAM, PALAKKAD 678 731.

2. RAGESH A.V., JR.OFFICER, REF.NO.7731, PPO NO.KR/KKD/00051926, NIKUNJ, SAIBABA COLONY, KALLEKULANGARA P.O., PALAKKAD 678 009.

3. M.GOPINATHAN NAIR, OFFICER, REF.NO. 3626, PPO NO.KR/KKD/00053011 AISHWARYA-PANDARATHIL, KADAVALAVU, THATHAMANGALAM, PALAKKAD 678 102.

4. P.THANGARAJU ENGINEER (S), REF.NO.7712, KR/KKD/00050152, TPPN NIVAS, PRECOT NEW COLONY, KANJIKODE WEST 678 623.

5. A.S.NARAYANANKUTTY JR.ENGINEER, KR/KKD/00051925, HARE KRISHNA, ANJALY GARDENS, PALLIPURAM P.O, PALAKKAD 678 006.

6. O.M.ALIAS MANAGER, REF.NO.2552, KR/KKD/00053013 OLANGATTIL HOUSE, VILANGU P.O., ERNAKULAM DISTRICT. 683 561.

7. P.K.RAMAKRISHNAN OFFICER (S), C4, INSTRUMENTATION TOWNSHIP, KANJIKODE WEST, PALAKKAD 678 623.

8. V.SASIDHARAN AGM, REF.NO.3460, KR/KKD/00053010 VAISHNAVI, 24/702 (13), MYTHRI NAGAR HSG COLONY NO.76 NOORANI, PALAKKAD 678 004.

9. P.S.SURESHKUMAR, SR.OFFICER, REF.NO.3632, KR/TVM/00074156, NAMPALLIL PUTHEN PURAYIL, KAVUMBHAGOM P.O, THIRUVALLA, PATHANAMTHITTA, KERALA 689 102.

WP(C).No. 10682 of 2015 (I)

10. S.SRIDHARAN JSO, REF.NO.3950, TB/TAM/00322865 OLD NO.22/NEW 26 STATE BANK COLONY EXTN. NANGANALLUR, CHENNAI 600061.

11. M.VELAYUDHAN NAIR JSO, REF.NO.7802, KR/KKD/OOO52855 SREELAKSHMI, PUTHUR PADAM, KURUDIKKADU PUDUSSERY, PALAKKAD 678 623.

12. SWPAN KUMAR MITRA JSO, REF.NO.4139, KR/KKD/00055164 C/O.K.L.MITRA, BTR NO.A 79, II TOWNSHIP KANJIKODE WEST, PALAKKAD 678 623.

13. K.A.RAMACHANDRAN JSO, REF.NO.7747, KR/KKD/00054127 NO.65, KRISHNA PRIYA, PVR NAGAR PALLIPURAM P.O, PALAKKAD 678 006.

14. MATEHW K.JOHN ENGINEER (S), REF.NO.3679, KR/KCH/00083670 C6, II TOWNSHIP KANJIKODE WEST PALAKKAD KERALA 678 623.

15. VISWANATHAN K.P JSO, REF.NO.3614, KR/KKD/00053012 DEVIKRIPA, 2/321 (16), SRIRAM COLONY MANALMANTHA, AMBIKAPURAM P.O, PALAKKAD 678 011.

16. R.HARIDASAN JSO, REF.NO.7755, KR/KKD/O0051567 USHUS, 20/470, THEKKETHARA VENOLI ROAD, PUDUSSERY P.O, PALAKKAD 678 623.

17. P.MOHANDAS FOREMAN, REF.NO.7906, KR/KKD/00054440 SARADALAYAM, KUNNATHURMEDU P.O, PALAKKAD 678 013.

18. M.MURALEEDHARAN JR. ENGINEER, REF.NO.7902, GOPALA MANDIRAM NEAR VILLAGE OFFICE, PIRAYIRI, PALAKKAD 678 004 KR/KKD/00051738.

19. D.LATHAKUMARI JR.OFFICER, REF.NO.7742, KR/KKD/0054984 GANGOTRI, KUNNANUR, CHANDRANAGAR P.O PALAKKAD 678 007.

20. S.THILAGAR, MANAGER, REF.NO.7860, KR/KKD/00054985 S.MADHAV NAGAR, VADAVALLI, COIMBATORE 46.

WP(C).No. 10682 of 2015 (I)

21. P.CHANDRABABU OCMA BRAND, REF.NO.7745, KR/KKD/00050295 BHAVANA, SURABHI NAGAR, KURUDIKKAD PUDUSSERY P.O, PALAKKAD 678 623.

22. K.DAMODARAN UNNI JR.ENGINEER, REF.NO.7786, KR/KKD/00050297 QTR.B.18, II TOWNSHIP, INSTRUMENTATION LTD KANJIKODE WEST, PALAKKAD 678 623.

23. A.KESAVADAS JR.OFFICER, REWF.NO.7799, KR/KKD/00051737 RAGASUDHA, THANNISSERY, PALAKKAD 678 501.

24. V.T.VIJAYA KUMAR ENGINEER (S), REF.NO.7610, KR/KKD/00051563 BLOSOM, KAILAS NAGAR, PUDUSSERY KANJIKODE WEST, PALAKKAD 678 623.

25. GNANAGURUPARAN K JR.ENGINEER, REF.NO.7787, KR/KKD/00055161 PRATHYUSHA, SRI.SATHYA SAI NAGAR, KALLEKULANGARA P.O PALAKKAD 678 009.

26. K.N.VIJAYAKUMAR FOREMAN, REF.NO.7974, KR/KKD/00053706 SAPTHASWARAM, PUDANUR P.O, MUNDUR PALAKKAD.

BY ADV. SRI.P.N.MOHANAN RESPONDENTS :

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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.

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

3. SUB REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHYANIDHI BHAVAN, P.B NO.1806, ERANJIPALAM KOZHIKODE 673 006.

4. INSTRUMENTATION LTD., REPRESENTED BY MANAGING DIRECTOR, KANJIKODE WEST, PALAKKAD 678 623.

WP(C).No. 10682 of 2015 (I)

5. THE CHAIRMAN P.F TRUST OF EMPLOYEES OF INSTRUMENTATION LTD, KOTA ,RAJASTHAN 324005.

R1 BY ADV. SRI.S.VAIDYANATHAN, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SMT.T.N.GIRIJA, SC,EPF ORGANISATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-04-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 10682 of 2015 (I) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1:

COPY OF THE JUDDMENT DATED 4.11.11 IN WPC 6643/2007. EXHIBIT P2:

COPY OF THE JUDGMENT DATED 5.3.13 IN WA 1137/12. EXHIBIT P3:

COPY OF THE JUDGMENT IN WPC 2059/14.

EXHIBIT P4:

COPY OF THE JUDGMENT DATED 20.2.15 IN WPC 5446/15. RESPONDENT(S)' EXHIBITS :

NIL.

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K.VINOD CHANDRAN, J - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 10682 of 2015 - - - - - - - - - - - - - - - - Dated 1st April, 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 respondents 2 and 3, and the counsel for the 4th respondent.

2. The petitioners are serving employees of the 4th 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

WP(C).10682/15 employee; and 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).10682/15 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).10682/15

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).10682/15 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//