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Judgment
[1] These writ petitions being W.P.(C) No.1172 of 2016 [Sri Benu Bhusan Das vs. Tripura Jute Mills & Ors.], W.P.(C) No.1173 of 2016 [Sri Kishore Dey vs. Tripura Jute Mills & Ors.], W.P.(C) No.1176 of 2016 [Sri Timir Baran Chakraborty vs. Tripura Jute Mills & Ors.], W.P.(C) No.1178 of 2016 [Sri Debasish Guha Roy vs. Tripura Jute Mills & Ors.], W.P.(C) No.1179 of 2016 [Smt. Gouri Chakraborty & Ors. vs. The State of Tripura & Ors.] and W.P.(C) No.1181 of 2016 [ Sri Nipul Kanti Paul vs. Tripura Jute Mills & Ors.] are consolidated for disposal by common judgment inasmuch as those are averred to be set up in the identical facts and even the reliefs are strikingly common. Since a common question wades through all these writ petitions, the facts narrated in the writ petition being W.P.(C) No.1172 of 2016 is perused for reference. The petitioners/the original petitioners as the petitioner in W.P.(C) No.1179 of 2016 has expired during pendency and none represented by his legal heirs, were the workers/labourers working under the Tripura Jute Mills Limited, the respondent No.1 and the petitioners were released from their service on the days as shown against them in the table below:
Name of the petitioner
Writ petition No.
Date of release
Sri Benu Bhusan Das
W.P(C) No.1172 of 2016
14.10.2004
Shankar Ch. Dey, since deceased represented by his legal heir, Sri Kishore Dey
W.P(C) No.1173 of 2016
09.04.2003
Sri Timir Baran Chakraborty
W.P(C) No.1176 of 2016
14.10.2004
Sri Debasish Guha Roy
W.P(C) No.1178 of 2016
12.11.2002
Gouranga Chakraborty, since deceased represented by his legal heir, Smt Gouri Chakraborty, Sri Goutam Chakraborty and Sri Uttam Chakraborty
W.P(C) No.1179 of 2016
08.08.2002
Sri Nipul Kanti Paul
W.P(C) No.1181 of 2016
02.12.2002
The word 'the petitioners' wherever hereinafter appears would mean the original petitioners.
[2] All the petitioners subscribed the provident fund under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, hereinafter referred to as the EPF Act and in terms of Section 6 of the EPF Act, the petitioners are entitled to the superannuation pension on their retirement from service 'on attaining the age of superannuation'. Section 6A of the EPF Act provides that the employees' pension scheme has been framed by the Central Government for providing pension, retiring pension or permanent total disablement pension, widow/widower's pension, children pension and orphan pension payable to those who are entitled to such payment under the EPF Act. For purpose of reference, the EPF number, with the pay scale in which the petitioners claimed to have received their pay, date of joining and date of regularization in the post from which they have retired on superannuation, the name of the petitioner, fathers name, designation and the status of occupying quarters are shown in a tabular form below:
Name of the petitioner
Father's name
Designation
PF A/C No.
Quarter Occupying Status
Pay scale for the post held
Date of Joining
Date of regulari -zation
Sri Benu Bhusan Das
Lt. Rohini Kumar Das
Investigator
NEAGT 00013 39000 00014 14
Not applicable
Rs.6900- 14160/-
26.03.1981
26.03. 1982
Shankar Ch. Dey, since deceased represented by his legal heir, Sri Kishore Dey
Lt. Nikhil Ch. Dey
Driver
NEAGT 00013 39000 00002 82
Not applicable
Rs.6900- 14160/-
01.12.1989
01.12.1989
Sri Timir Baran Chakraborty
Lt. Narayan Ch. Chakraborty
Winding Mistry
NEAGT 00013 39000 00015 59
Not applicable
Rs.6900- 14160/-
13.12.1979
13.12.1980
Sri Debasish Guha Roy
Lt. Hari Narayan Guha Roy
LDC
NEAGT 00013 39000 00008 88
Not applicable
Rs.6900- 14160/-
01.12.1980
01.12.1981
Gouranga Chakraborty, since deceased represented by his legal heir, Smt Gouri Chakraborty, Sri Goutam Chakraborty and Sri Uttam Chakraborty
Lt. Ashwini Chakraborty
LDC
NEAGT 00013 39000 00000 93
Not applicable
Rs.6900- 14160/-
26.03.1981
01.02.1982
Sri Nipul Kanti Paul
Lt. Manohari Paul
Sardar [Prese nt work Acting Clerk]
NEAGT 00013 39000 00030 08
Not applicable
Rs.6900- 14160/-
01.04.1981
01.04.1982
[3] It is to be noted here that some of the petitioners were sent for rendering their service in different institutions on deputation or posting by arrangement and those are also retired from the place of deputation or posting. For example, Benu Bhusan Das, the petitioner in W.P.(C) No.1172 of 2016 was released from the Tripura Jute Mills Limited on 14.10.2004 for joining the Rural Development Agency by arrangement. But he was released by the Chief Executive Officer, Rural Development Agency, Gomati, Udaipur on 31.10.2015 as is evident from the release order. Section 6A of the EPF Act, 1952 the petitioners have become entitled to the superannuation pension and accordingly, the Assistant Provident Fund Organizer released the monthly pension to the petitioners [see the Pension Payment Order No.NE/AGT/00005405] in respect of Benu Bhusan Das whereby the said petitioner was authorized to draw monthly pension of Rs.1,982/- w.e.f. 10.10.2013. The age of superannuation is 60 years so far the petitioners are concerned, and the said date which marks the completion of 60 years is obviously relevant for determining the superannuation, for purpose of pension under Section 6A of the EFP Act. It is needless to say that the employer had contributed 10% of the basic wages, dearness allowance and retaining allowances, if any, and the employees/labourers contributed equal amount to the provident fund for purpose of pension under Section 6A of the EPF Act. In the year 2009, it was known to the petitioners that the Assistant Provident Fund Commissioner asked for option from the petitioners whether they are willing to opt for the higher pension in view of crossing of the ceiling limit i.e. Rs.6.500/- for determining the employees' contribution. The petitioners exercised their option within the stipulated period for availing higher pension having regard to crossing of the ceiling limit i.e. Rs.6,500/-. The petitioners' basic wage was increased by way of revision and they had crossed the ceiling limit i.e. Rs.15,000/-. They had also exercised the option for availing the higher pension on the basis of the enhanced basic wages plus dearness allowances etc. The petitioners have also asserted that the Assistant Fund Commissioner, Employees Fund Organization, the respondent No.5 herein, by the communication dated 26.03.2012 apprised the Accounts Officer, Tripura Jute Mills Limited in respect of acceptance of the option for higher pension. It is further found that the PF account of the petitioners had not been mentioned in the list of the PF accounts in respect of which the option had been accepted. The said communication dated 26.03.2012 is available with the writ petition as Annexure-P/6. It came to the knowledge of the petitioners that the PF account of the petitioners have not been included and the petitioners submitted the representation to the Managing Director, Tripura Jute Mills Limited to rectify the error that had happened in respect of their EPF accounts. The Assistant Provident Fund Commissioner circulated the list of account holders who had opted for the higher pension for safeguarding the legitimate right of higher pension. By filing a representation on 26.03.2012, the petitioners had asserted that the option in the prescribed form was dully obtained from them by the Tripura Jute Mills Limited for availing higher pension. The petitioners had also asserted that the deduction of 10% of the basic wages was only for purpose of contribution through the Managing Director, Tripura Jute Mills Limited. The statutory wage limit in the course of time was enhanced to Rs.15,000/-and accordingly, the petitioners, as stated, had submitted their option for the higher pension plan. On attaining the age of superannuation, the petitioners have become entitled to full and final payment of gratuity in terms of the Payment of Gratuity Act, 1972 and also the pension under the said EPF scheme inasmuch as the petitioners were not entitled to any other pensionary benefits. The gratuity of the petitioners was to be calculated as per provision of Section 4(2) of the Payment of Gratuity Act, 1972. As per Section 2(s) of the Payment of Gratuity Act, 1972, 'wages' include all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of the employment and which is paid or payable to him in cash and that includes dearness allowances, but does not include any bonus, commission, house rent allowance, overtime wages and any other allowances. The Payment of Gratuity Act, 1972 was amended w.e.f. 18.05.2010 and the maximum limit of gratuity was enhanced from Rs.3,50,000/- to Rs.10,00,000/-. Such gratuity in terms of Section 7(3) of the Payment of Gratuity Act, 1972 falls due, if not paid, within 30 days from the date of superannuation or retirement, else interest is chargeable. The petitioners' right to get the payment of gratuity in terms of the last basic pay has been denied. The Jute Mills-respondents had caused the partial payment of gratuity to the petitioners and the said amount of gratuity had been determined by taking the pay scale of the investigator pertaining to Tripura Jute Mills Limited. On deputation, the petitioners were on higher pay scale i.e. Rs.5700-24000/- but that pay in their pay scale was not considered so far the petitioner in writ petition being W.P.(C) No.1172 of 2016 is concerned. It is relevant to note that the writ petitioner in W.P.(C) No.1172 of 2016 was deputed to work as the RD Organizer, District Rural Development Agency having been released by the Managing Director, Tripura Jute Mills Limited by the order dated 11.10.2004. The last pay certificate as was issued by the DRDA was not considered for the payment of gratuity. Even the pension of the petitioners was not determined in terms of Section 6A of the EPF Act. The petitioners made several representations to the Provident Fund Commissioner/the Managing Director, Tripura Jute Mills Limited, the respondent No.5 herein, for redress. In such representation, the petitioners had asserted that those, who had been drawing less salary in comparison, have been getting higher pension. Some specific instances were cited in such representation. But the respondent No.5 did not dispose those representations by reasoned order and thus, the petitioners had been denied of their legitimate higher pension. Even the leave encashment benefit that has been released in favour the petitioners were not in terms of the last pay certificate but that was determined on the basis of the pay and salary which the petitioners have been drawing before he was released by the Tripura Jute Mills Limited for joining the post in which he was deputed. Thus, he was deprived of the actual leave encashment benefit. In this perspective of facts, the petitioners have urged this court to direct the respondents No.4 to 6 to modify the Pension Payment Order of the petitioners sanctioning higher pension to the petitioners on the basis of the contribution made by the petitioners i.e. 10% of the actual salary/wages. It has been further urged that the respondents No.4 to 6 shall be directed to pay the arrear amount of pension with interest @12% per annum. It has been further urged that the respondents No.1,2 & 3 shall be directed to pay the full and final payment of the gratuity with interest by calculating the wage on the basis of the last pay/wage which the petitioners had been drawing from the loaning agency, the DRDA etc.
[4] The respondents No.1,2 & 3 filed their reply on 27.09.2017 stating inter alia that the petitioners did not claim the gratuity and the leave encashment from the borrowing department where they are posted out. They have claimed so from the Tripura Jute Mills Limited but from Tripura Jute Mills Limited they did never get the higher pay scale. As the Tripura Jute Mills Limited would pay the gratuity and leave encashment, the gratuity and the leave encashment would naturally be determined on the basis of the last pay that is received from the Tripura Jute Mills Limited or its revised pay scale. Tripura Jute Mills Limited paid the gratuity and the leave encashment as per the existing rules as applicable to the worker.
[5] The respondents No.4,5 & 6 have filed the separate reply by denying the general allegations made against them. They have raised serious objection in respect of the contribution that has been remitted to them by the Tripura Jute Mills Limited stating that the contribution was beyond the actual wages. According to them, Para-26(6) of the EPF Scheme, 1952 provides the statutory limit of Rs.6,500/- on submitting joint request in writing of the employee and the employer. Para-11 of the Employees Pension Scheme [EPS], 1995 provides that contribution to the pension fund more than the statutory limit i.e. Rs.6,500/- can be made at the option of the employer and employee on salary exceeding Rs.6,500/-per month from the very date when the salary exceeds Rs.6,500/- or when such request is made or whichever is later. Those respondents have referred to their letter bearing No.SRO/TR/AS/13339/5951 dated 06.03.2009 by which the Tripura Jute Mills Limited was apprised that the option filed by the employees to contribute on higher wages under EPS, 1995 stood rejected as such option was filed after long time from crossing the statutory wage limit of Rs.5,000/- or Rs.6,500/-. For the delayed submission of the option under the EPS, 1995 employees/labourers would not get the higher pension. For purpose of reference, Para-11 of the Employees Pension Scheme, 1995 which come into force on 16.11.1995 is extracted hereunder:
"Determination of Pensionable Salary-(1) Pensionable salary shall be the average monthly pay drawn 1 [in any manner including on piece-rate basis] during the contributory period of service in the span of 12 months preceding the date of exit from the membership of the Employees' Pension Fund:
2[Provided that if a member was not in receipt of full pay during the period of twelve months preceding the day he ceased to be the member of Pension Fund, the average of previous 12 months full pay drawn by him during the period for which contribution to the pension fund was recovered, shall be taken into account as pensionable salary for calculating pension.]
(2) If during the said span of 12 months there are non-contributory periods of service including cases where the member has drawn salary for a part of the month, the total wages during the 12 months span shall be divided by the actual number of days for which salary has been drawn and the amount so derived shall be multiplied by 30 to work out the average monthly pay.
(3) The maximum pensionable salary shall be limited to 3[Rupees six thousand and five hundred /Rs.6500/-] per month.
4[Provided that if at the option of the employer and employee, contribution paid on salary exceeding 3[Rupees six thousand and five hundred /Rs.6500/-] per month from the date of commencement of this Scheme or from the date salary exceeds 3[Rupees six thousand and five hundred /Rs.6500/-] whichever is later, and 8.33 per cent. Share of the employers thereof is remitted into the Pension Fund, pensionable salary shall be based on such higher salary."
[6] It is apparent that the share of the employees is remitted to the pension fund. Pensionable salary is changeable on such higher salary. Para-26(6) of the Employees Provident Fund & MP Act, 1952 has engrafted the following provisions in the event where the monthly pay of such of a member exceeds Rs.2,500/-:
" Provided that subject to the provisions contained in the sub-paragraph (6) of paragraph 26 and 1(in paragraph 27), or sub-paragraph (1) of paragraph 27-A where the monthly pay of such a member exceeds 2(six thousand and five hundred rupees), the contribution payable by him, and in respect of him by the employer, shall be limited to the amounts payable on a monthly pay of 2(six thousand and five hundred rupees), including 3[dearness allowance, retaining allowance (if any) and cash value of food concession]"
[7] From the communication dated 17.12.2002 by the Managing Director, Tripura Jute Mills Limited addressed to the Regional Provident Fund Commissioner, it appears that both the employer and the employees opted for deduction of the provident fund contributions on their actual salary. The Provident Fund Commissioner in the affidavit, filed as the combined reply of the respondents No.4,5 & 6, has placed one data sheet in respect of the actual wage and pension wage. By the communication dated 06.03.2009 [Annexure-G to the reply filed by the respondents No.4,5 & 6] the Managing Director, Tripura Jute Mills Limited was communicated in reference to their letter dated 09.02.2009 that their proposal to give effect of the option retrospectively has been declined. For purpose of reference, the relevant part of the said communication dated 06.03.2009 is extracted hereunder:
"1. The contribution on higher wages beyond Rs.6500/5000 under the Employees Provident Fund Scheme 1952 in respect of the optee employees as per list enclosed is accepted under para 26(6) of the EPF Scheme 1952. The employer shall deposit administrative charges on such higher wages and shall also comply with all statutory provisions in respect of such employees.
Regarding the option to contribute on higher wages under the employees pension Scheme 1995, as per office record, your estt had never filed any option seeking permission to contribute on higher salary under EPS' 95 since 16-11-95 i.e. the date of implementation of the EPS' 95 scheme until your present letter dated 9-2-09. The two letters dated 30-12-2002 and 20-01-2003 issued by this office has been issued to you in reply to your letter informing you of the provisions contained in EPS' 95 Scheme regarding contribution on higher wages under EPS' 95. These letters were in no way an order allowing you to contribute on higher wages.
The provision of EPS' 95 under para 11(3) is very clear, the option should be submitted by the employer and employee from the date of commencement of the scheme or from the date salary exceeds Rs.5000/6500/- which ever is later. From the provisions, it is very clear that option has to be given on real time basis and cannot be regularized retrospectively.
Therefore, the options filed by the employees to contribute on higher wages under EPS' 95 after such a long period after crossing statutory wage limit of Rs.5000/6500/- is rejected." [Emphasis added]
But by the communication dated 26.03.2012, the Employees' Provident Fund Organization informed the accounts numbers where the joint declaration by the employee and the employer on actual pay of the provident fund as well as pension, PF and EDLI administrative charges, pension fund on higher wages have been accepted with effect from January, 2010. But higher wages for the provident fund and pension in respect of the accounts number mentioned in the said communication was not accepted. It has been categorically communicated that as on January, 2009, the wages/salary was the below of maximum ceiling of Rs.6,500/-, meaning the salary as claimed by the petitioners was not accepted by the Provident Fund Commissioner.
No rejoinder was filed against the said reply.
[8] Mr. S. Bhattacharjee, learned counsel appearing for the petitioners has submitted that the last pay of the petitioners who were posted outside the Tripura Jute Mills Limited by special arrangement should be counted on the basis of the pay they received in the District Rural Development Agency or in other organizations. He has further submitted that the said last pay should be the basis of all benefits, such as leave encashment, gratuity and the pension. Mr. Bhattacharjee, learned counsel has also contended that so far the objection raised by the respondents No.4 to 6 based on the communication dated 06.03.2009 that Para-11(3) of the EPS, 1995 which provides that the option should be submitted by the employer and the employee from the date of commencement of the scheme or from the date of salary exceeds Rs.5000-6500/- whichever is later, cannot be sustained inasmuch as a right that accrues under the scheme in favour of the employees cannot be truncated by any cut-off date. Therefore, the contention that the option has to be given on real time basis and it cannot be regularized retrospectively is grossly unreasonable, particularly in the perspective fact that the petitioners and their employer had paid the higher rate of contribution to gain the said benefit, as would be evident from the letter dated 17.12.2002. In this respect, Mr. Bhattacharjee, learned counsel has referred a decision of the Kerala High Court in P. Sasi Kumar & Ors. vs. Union of India & Ors. [the judgment and order dated 12.10.2018 delivered in W.P.(C) No.13120 of 2015] where it has been observed that the Pension Scheme is made under Section 6A of the EPF Act. Therefore, it is necessary for us to consider the scope of the provisions of the EPF Act first. The Provident Fund so created is made up of the contributions of both the employers and the employees and with no contribution from the State Exchequer. Having referred to Section 6 of the EPF Act it has been further observed that Section 5 of the said Act empowers the Central Government to frame a Scheme to be called the Employees' Provident Fund Scheme for the establishment of Provident Funds under the Employees' Provident Fund Act, for employees or for any class of employees and to specify the establishments or class of establishments to which the said Scheme shall apply. Accordingly, the EPF Act had been amended in the year 1971 by incorporating Section 6A of the EPF Act. The Central Government has been empowered to frame a scheme call Employees Family Pension Scheme to provide the benefits to the employees from the establishments to which the EPF Act applies. For purpose of reference, Section 6A of the EPF Act in operation of which are made, the provisions for Employees' Pension Scheme is extracted hereunder:
"6-A. Employees' Pension Scheme.- (1) The Central Government may, by notification in the Official Gazette, frame a Scheme to be called the Employees' Pension Scheme for the purpose of providing for -
(a) superannuation pension, retiring pension or permanent total disablement pension to the employees of any establishment or class of establishments to which this Act applies; and
(b) widow or widower's pension, children pension or orphan pension payable to the beneficiaries of such employees.
(2) Notwithstanding anything contained in section 6, there shall be established, as soon as may be after framing of the Pension Scheme, a Pension Fund into which there shall be paid, from time to time, in respect of every employee who is a member of the Pension Scheme, -
(a) such sums from the employer's contribution under section 6, not exceeding eight and one-third per cent, of the basic wages, dearness allowance and retaining allowance, if any, of the concerned employees, as may be specified in the Pension Scheme;
(b) such sums as are payable by the employers of exempted establishments under sub-section (6) of section 17;
(c) the net assets of the Employees' Family Pension Fund as on the date of the establishment of the Pension Fund;
(d) such sums as the Central Government may, after due appropriation by Parliament by law in this behalf, specify.
(3) On the establishment of the Pension fund, the Family Pension Scheme (hereinafter referred to as the ceased Scheme) shall cease to operate and all assets of the ceased Scheme shall vest in and shall stand transferred to, and all liabilities under the ceased Scheme shall be enforceable against, the Pension Fund and the beneficiaries under the ceased Scheme shall be entitled to draw the benefits, not less than the benefits they were entitled to under the ceased Scheme, from the Pension Fund.
(4) The Pension Fund shall vest in and be administered by the Central Board in such manner as may be specified in the Pension Scheme.
(5) Subject to the provisions of this Act, the Pension Scheme may provide for all or any of the matters specified in Schedule III.
(6) The Pension Scheme may provide that all or any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in that behalf in that Scheme.
(7) A Pension Scheme, framed under sub-section (1), shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the Scheme or both Houses agree that the Scheme should not be made, the Scheme shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Scheme."
[9] Thus, it is apparent that the Central Government is empowered to frame the pension scheme and accordingly, they have done so. There is no ambiguity regarding the contribution of the employers as well as of the employees to the pension fund as created under Section 6A of the EPF Act. Para-26 of the EPF scheme specifies the class of the employees are entitled and required to join the fund since there is no dispute in this regard and no controversy has been projected in respect of eligibility of the petitioners to join the said pension scheme or in the retention of their membership in the said scheme. True it is that Para-11(4) of the said Pension Scheme has been amended to ask for option on the existing members as on 01.09.2014 to submit a fresh option jointly with their employer in order to continue to contribute on salary exceeding Rs.15,000/- per month. This option is required to get the willingness of the employer to make the further contribution @1.16% on the salary exceeding Rs.15,000/- additionally. Such option is supposed to be exercised within a period of 6[six] months from 01.09.2012. Even a further period of 6[six] months can be conferred by the Regional Provident Fund Commissioner. It is apparent on the face of those provisions made by Section 6A of the EPF Act that no additional payment by the employees is contemplated. It has been observed in the said judgment of the Kerala High Court, having referred to a decision of the apex court that Para-11 (3) of the Pension Scheme does not contain a cut-off date to determine the eligibility of the employer/employee to indicate their option under the said proviso. The apex court has also in the said order approved the view taken by the Kerala High Court on the point. Therefore, the stipulation of a cut-off date for conferring the benefits under the Pension Scheme cannot be sustained. In the said judgment, the Kerala High Court has further held as follows:
"10. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph 26 of the Provident Fund Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated."
[10] It has been further observed by the Kerala High Court as under:
"11. The above apart in a situation where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, we do not see how the Provident Fund Commissioner could have been aggrieved to file the L.P.A. before the Division Bench of the High Court. All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefited some of the employees. At best what the Provident Commissioner could do and which we permit him to do under the present order is to seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employee."
Thus, according to the decision of the Kerala High Court insistence for exercise of the joint option is without any justification. In other words, the proviso to paragraph 11 of the Pension Scheme does not stipulate any rigid cut-off date at all. It has been observed in the [Kerala High Court] decision that the maximum pensionable salary has been fixed at Rs.15,000/- and thus, the persons who have contributed on the basis of their actual salaries for any benefits will not get benefit for the excess contributions made by them. The said provision is arbitrary and cannot be sustained. The employees, who have been making contributions on the basis of their actual salaries after submitting a joint option with their employers as required by the Pension Scheme, have been denied the benefits of their contributions by the said amendment without any justification. Moreover, to use the salary at Rs.15,000/- for maximum, for purpose of quantifying pension is absolutely unrealistic. A monthly salary of Rs.15,000/- works out only to about Rs.500/- per day. It is common knowledge that even a manual labourer is paid more than the said amount as the daily wages. Therefore, to limit the maximum salary at Rs.15,000/- for pension would deprive most of the employees of a decent pension in their old age. In that decision, the Kerala High Court has reiterated that the bar of the maximum salaries exceeding Rs.15,000/- is unsustainable. Finally, the Employees Pension (Amendment) Scheme, 2014 brought into force by the notification No.GSR 609(E) dated 22.08.2014, which has been set aside by the Kerala High Court.
[11] Mr. Bhattacharjee, learned counsel appearing for the petitioners has submitted that said judgment of the Kerala High Court has been affirmed by the apex court by dismissing the special leave petition. Reference has also been made to a decision of the Karnataka High Court in S. Arul Prakash and others vs. Union of India and others [judgment dated 27.03.2019 delivered in writ petitions No.56819-57586 and 39145-39905 of 2017]. In that decision, the Single Judge of the Karnataka High court had observed that where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, the Provident Fund Commissioner could not be treated aggrieved. Finally, reliance has been placed on a decision of the apex court in R.C. Gupta and others vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization and others, reported in (2018) 14 SCC 809 where the apex court having referred to Clause-11(3) of the Pension Scheme has observed that from reading the proviso below Para-11(3) of the Pension Scheme, it transpires that the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit and the date from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the said Pension Scheme. Somewhat the similar view has been taken by the apex court in a matter coming from Kerala High Court, titled as Union of India vs. A. Majeed Kunju [judgment dated 05.03.2013 delivered in writ appeal No.1135 of 2012] in the Special Leave Petition(C) Nos.7074-76 of 2014 filed by the Regional Provident Fund Commissioner. [See the order dated 31.03.2016 in Regional Provident Fund Commissioner vs. A. Majeed Kunju, reported in 2016 SCC onLine SC 1744].
[12] A beneficial scheme according to the apex court ought not to be allowed to be defeated by reference to the cut-off date, particularly, in a situation where the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs.5,000/- or Rs.6,500/- per month, as the case may be. Thereafter, the apex court has observed as follows:
"8. A further argument has been made on behalf of the Provident Fund Commissioner that the appellant-employees had already exercised their option under paragraph 26(6) of the Employees' Provident Funds Scheme. Paragraph 26(6) is in the following terms:
Classes of employees entitled and required to join the fund.-(1)-(5) * * *
(6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than [six thousand five hundred rupees] of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund, provided that 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.
We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11 (3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme is inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11 (3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.
The above apart in a situation where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, we do not see how the Provident Fund Commissioner could have been aggrieved to file the LPA before the Division Bench of the High Court. All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefited some of the employees. At best, what the Provident Commissioner could do and which we permit him to do under the present order is to seek a return of all such amounts that the employees concerned may have taken or withdrawn from their provident fund account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees."
[13] Mr. B. Majumder, learned CGC appearing for the respondents No.4,5 & 6 has submitted that the option was not accepted by the Regional Fund Commissioner and that communication was never challenged by the petitioners or the employer. By means of these writ petitions now they have claimed the pension on waiving the cut-off date as laid down in the said pension scheme, on the basis of their contribution made on the actual salary. This submission cannot be accepted by this court.
Mr. Majumder, learned CGC has further submitted that the option as required was filed after such long period from when the petitioners crossed the statutory wage limit of Rs.5000-6000/-. Mr. Majumder, learned CGC has reiterated the content of the communication dated 06.03.2009 [Annexure-G to their reply filed by the respondents No.4,5 & 6], the substantive part of which has been reproduced above.
[14] Mr. D. Bhattacharjee, learned G.A. appearing for the respondents No.1,2 & 3 has submitted that the scale offered by the borrowing department or the agencies outside the Tripura Jute Mills Limited cannot be applicable for payment of leave encashment or the payment of gratuity. All such payments have to be made on the basis of the salary/wages to which the petitioners were entitled to in the Tripura Jute Mills Limited on their day of superannuation, even if they had retired or released by the borrowing departments or agencies. In this regard, it should be mentioned that by the said expression Mr. Bhattacharjee, learned G.A. has clearly indicated that the last pay has to be notionally calculated in terms of the revision as introduced in Tripura Jute Mills Limited, but the petitioners cannot claim the gratuity and the leave encashment from Tripura Jute Mills Limited on the basis of their salary or wages that they had received from the borrowing departments or the borrowing agencies.
This court finds sufficient force in the submission of Mr. D. Bhattacharjee, learned GA and accordingly, it is directed that the leave encashment or the payment of gratuity shall be made, if not made already, in terms of the extant law, based on the last pay the petitioners were entitled in the Tripura Jute Mills Limited on the day of their superannuation or retirement from the post they had held as reflected above. If any amount is still due, such amount shall be paid by the Tripura Jute Mills Limited in terms of the above direction within a period of 3[three] months from the day when the petitioners shall produce a copy of this judgment and order.
[15] The main controversy as projected in these writ petitions is in respect of determination of their pension under the EPF Act. Whether for belated option the petitioners can be deprived of from the higher pension or not? The question has been replied by the apex court quite substantively in RC Gupta (supra) by laying down the law that if both the employer and the employee opt for deposit against the salary and not to ceiling amount, exercise of option under Para-26 of the Provident Fund Scheme is inevitable. Exercise of option under Para-26(6) is a necessary precursor under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warrants such foreclosure in terms of the clearly laid down law. It has been further observed by the apex court that in a situation where the deposit of the employer's share at 12% has been made on the actual salary and not on the ceiling amount, there cannot be any reason for the Provident Fund Commissioner to be aggrieved. What all the Provident Fund Commissioners are required to do, in such cases, is to do adjustment of accounts, which, in turn, would benefit some of the employees. At best what the Provident Fund Commissioner can do is that he may direct return of all such amounts that the employees concerned may have taken or withdrawn from their provident accounts before granting them the benefit emanating from the proviso to Clause 11(3) of the Pension Scheme. Once such return is made, in whichever cases such return is due, consequential benefits in terms of that order was directed to be granted to the said employees.
[16] In this case, the writ petitioners are evasive whether the deposit was made or not. Even from the reply filed by the respondents No.1,2 & 3 it has not come clear. It is a matter of accounts and the accounts of the Provident Fund Commissioner will prevail, unless the controversy is proved. It is made absolutely clear that if the deposits have been made for the higher pension, the Regional Provident Fund Commissioner shall not insist for the option. In this respect, the view of the Kerala High Court that the cut-off date cannot be insisted in such cases is highly persuasive. Hence, the contention of the Regional Provident Fund Commissioner that the option that had been filed by the employees contributing on higher wages under EPS, 1995 after such a long time when they had crossed the statutory wage limit, as the bar is liable to be rejected as such contention cannot survive. Thus, the decision as reflected in the communication dated 06.03.2009 [Annexure-G to the reply filed by the respondents No.4,5 & 6] stands interfered with and set aside.
[17] In view of the above, the Regional Provident Fund Commissioner is directed to determine whether the deposits have been made by the petitioners for higher pension for their crossing the ceiling limit of Rs.15,000/- per month as per the scheme or not. So far the question of option and cut-off date are concerned, it appears from the communication dated 17.12.2002 [Annexure-E to the reply filed by the respondents No.1,2 & 3] that the employer, Tripura Jute Mills Limited, has clearly indicated that as per Clause 11(3) of the pension scheme, the employer and the employee have exercised their option. As the import of the cut-off date has been declared by the Kerala High Court as unsustainable and the said decision of the Kerala High Court has not been interfered by the apex court, the said decision has become binding on all the Fund Managers, the Provident Fund Commissioner /Regional Fund Commissioner. As such, it is now a matter of account, if the deposits were made. On adjustment, if it is found that the contribution for the higher pension had been made by the employer in terms of Clause 11(3) of the said pension schemes, the petitioners shall be paid the higher pension without delay and the entire exercise shall be completed within a period of 3[three] months from the day when a copy of this order will be available to the Regional Fund Commissioner by the petitioners. In the events, if it is found that such contribution has been made conforming to the provisions of Para-11(3) of the Pension Scheme, the Regional Provident Fund Commissioner shall release the higher pension in favour of the petitioners from the date when it fell due. The arrears of benefits in that event shall be paid within the period as stipulated above. However, in the circumstances, this court is inclined to grant any interest as claimed by the petitioners.
[18] Having observed thus, these writ petitions are allowed to the extent as indicated above.
There shall be no order as to costs.