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Judgment
P.K. Jaiswal, J
As common question of law and facts are involved in these three writ appeals, therefore, the writ appeals are heard analogously and are being
disposed of by this common order. For the sake of convenience, facts are taken from Writ Appeal No.766/2018.
This intra court appeal under Section 2 (1) of Mad hya Pradesh Uchcha Nyalayaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 has been
filed by the appellant / Employees’ Provident Fund Organization against order dated 03.01.2018 (Annexure A/2) passed in Writ Peti tion
No.4979/2017 by which the learned Writ Court al lowed the writ petition filed by respondent No.1 (writ pe titioner) and directed the appellant to
accept the amount from respondent No.1, which he withdrew and revise his pension, as per the directions given by Hon’ble the Apex Court on
04.10.2016 in the case of R.C. Gupta & oth ers v. Regional Provident Fund Commissioner, Employees’ Provident Fund Organization & othÂ‐
ers (SLP No.33032/2015). It is also observed by the learned Single Judge that since appellant was also not at fault and Hon’ble the Apex Court in
the year 2016 has di rected them to give benefit of the scheme without apply ing cut off date, hence the appellant is also not liable to pay interest
on the arrears of pension to respondent No.1.
Facts of the case are that respondent No.1 (writ pe titioner) while working in Indore Development Authority as Accounts Officer became a
Member of Employees’ Provident Fund under Employees’ Provident Fund Scheme, 1952 and Employees’ Pension Scheme, 1995 having
PF Account No.MP/IND/0003839/000/0002243. Under the afore said Scheme, the appellant deducted 12% from the monthly salary of respondent
No.1 and contributed the same amount in his Provident Fund Account with the ap pellant. Out of 12% employees’ contribution, 8.33% used to
be remitted under the Pension Fund. Proviso to Sec tion 11 (3) of the Employees’ Pension Scheme, 1995 pro vides for an option to contribute
on full salary exceeding ceiling limit. In the year 2006, Indore Development Au thority (respondent No.2) in consensus with the employ ees
decided to pay contribution on the full salary which is reflected from the voucher dated 18.11.2008. Respon dent No.1 (writ petitioner) made a
representation dated 05.05.2012 to the appellant through its employer for computing the pension on the basis of full salary fol lowed by reminder
dated 28.05.2012. Vide communica tion dated 17.10.2012, the appellant has refused to deter mine the pension on the basis of full salary.
Thereafter, Pension Payment Order (PPO) dated 30th August, 2013 was issued fixing pensionable salary of respondent No.1 up to the limit of
Rs.6,500/-. Consequently, respondent No.1 started getting pension of Rs.2,020/- per month.
Similar issue came up before the Hon’ble Apex Court in the case of R.C. Gupta & others v. Regional Provident Fund Commissioner,
Employees Prov ident Fund Organization (supra), wherein the Apex Court has held that if employer and the employee opt for deposit against the
actual salary and not the ceiling limit, the exercise of option under paragraph 26of the Provi dent Fund Scheme is inevitable. The Provident Fund
Commissioner has been permitted to seek the return of all such amounts that the concerned employee may have taken or withdrawn from Provident
Fund Account before granting benefit of Proviso to Section 11 (3) of the Em ployees Pension Scheme, 1995.
After the aforesaid order of the Hon’ble Apex Court, the Head Office of the Employees Provident Fund Orga nization vide letter dated
23.03.2017 has conveyed its approval to allow all the Members of the Employees Pen sion Scheme, 1995, who had contributed on higher wages
exceeding the statutory wage ceiling of Rs.6,500/- in the Provident Fund to divert 8.33% of the salary to the Pen sion Fund with up to date interest
declared under the Employees’ Provident Fund Scheme to get the benefit of higher salary on receipt of joint option of the employer and employee.
The case of respondent No.1 before the Writ Court was that despite the Apex Court judgment and order dated 23.03.2017, the appellant is not
granting him ben efit of pension on the basis of full salary.
The stand of the appellant before the Writ Court was that after retirement from the services of respondent No.2 (IDA), respondent No.1 had
submitted claim appli cation for withdrawal of amount of Provident Fund standing to the credit of his PF Account. He was paid Rs.16,45,775/- by
way of full and final settlement. He has also been served with PPO No.46887 by paying monthly pension of Rs.2,020/-, treating monthly salary of
Rs.6,500/- per month.
During pendency of the writ petition, letter dated 27.09.2017 was served on respondent No.1, directing him to refund the contribution with interest
under the Employees’ Pension Scheme, 1995 on the basis of statu tory limit in Form No.3-A in order to pay him the pen sion on higher rate.
Contention of the learned counsel for respondent No.1 before the Writ Court was that appellant is wrongly demanding interest on the amount so
deposited by re spondent No.1. If respondent No.1 is liable to deposit in terest, then he is also liable to get interest on the arrears of pension
payable to him in compliance to order of Hon’ble Supreme Court. Therefore, in order to maintain equity and balance, the appellant be restrained to
claim interest from respondent No.1and he shall not claim in terest on the arrears of pension and the appellant is de mand interest, then respondent
No.1 is also entitled for interest on arrears of pension.
Learned Writ Court relying on paragraph No.11 of the judgment of the Supreme Court in the case of R.C. Gupta & others v. Regional Provident
Fund Com missioner, Employees Provident Fund Organiza tion (supra) has held that the Hon’ble Supreme Court has permitted the Provident
Fund Commissioner to seek return of such amount which the employees have with drawn from the Provident Fund Account; and has di rected the
Provident Fund Commissioner not to claim in terest along with such amount of PF. It was also ob served by the Writ Court that by order dated
17.10.2012, the appellant has rejected the claim of respondent No.1 for re-fixation of pension on the basis of actual salary ex ceeding wage limit, but
now the appellant permitted to revise pension of respondent No.1 after the judgment of the Supreme Court; and as he was not at fault to with draw
the amount of PF, therefore, he is not liable to pay interest on such amount which he withdrew from his PF Account and deposit it for the revision of
pension.
Relevant part of order dated 03.01.2018 passed in Writ Petition No.4979/2017 reads, as under: -
“As per Section 13(3) of the Pension Scheme, 1995 maximum pensionable salary shall be limited to only @ Rs.5,000/-p.m./Rs.6,500/- per month.
Later on, a proviso was inserted by which option was given to the employer and employees to deposit the contribution on the actual salary i.e.
exceeding Rs.6,500/- per month from the date of commencement of this Scheme or from the date the salary exceeds whichever is later and 8.33%
share of the employer thereof is remitted into the pension fund and the pensionable salary established pension on the higher salary. The petitioner
submitted representation in the year 2012 to take benefit of the said proviso i.e. before retirement. Vide order dated 17.10.2012 the respondent no.1
has rejected his claim as he has failed to exercise option w.e.f. the commencement of the scheme in the month of November, 1995 as well as from
the date of salary exceed to Rs.6,500/-. After the rejection of the claim vide order dated 17.10.2012, the petitioner has withdrawn the amount of
Rs.16,45,775/- from his provident fund Account and the respondent has fixed the pension of Rs.2020/-
The Hon’ble Supreme Court in the case of R.C.Gupta (Supra) has held that the date mentioned in the proviso to Section 11(3) of the Pension
Scheme are not the cut of date to determine the eligibility of the employer and the employee to indicate their option. A beneficial scheme ought not to
be allowed to defeat by reference to cut-off date particularly in a situation where the employer had deposited the 12% of actual salary and not the
12% of ceiling limit of Rs.5000-6000/- per month as the case may be, therefore, directed all the Provident Fund Commissioner to permit the employees
to return such amount which they have withdrawn and their pension be fixed accordingly. Para 11 of the aforesaid judgment is reproduced below:-
“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 employees.â€
In the aforesaid paragraph, the Hon’ble Apex Court has permitted the Provident Fund Commissioner to seek return of all such amount which the
employees have withdrawn from the Provident Fund Account. The Hon’ble Apex Court has not directed the Provident Fund Commissioner to
claim interest along with such amount of Provident Fund.
The petitioner claimed re-fixation of the pension on the basis of actual salary exceeding wage limit, but he respondent no.1 has rejected his claim by
order dated 17.10.2012. The respondent no.1 has now permitted him to revise the pension after the Hon’ble Supreme Court judgment; therefore,
the petitioner was not at fault to withdraw the amount of provident fund. Hence he is not liable to pay the interest on such amount which he withdrew
from his account and now depositing for the revision of pension.
Accordingly, the petition is allowed. Respondent no.1 is directed to accept the amount from the petitioner which he withdrew and revise his pension as
per the directions given by Hon’ble the Apex Court in the case of R.C.Gupta and others (Supra) and Employees Provident Fund Organisation vide
its order dated 23.03.2017. Since the respondent no.1 was also not at fault and Hon’ble the Apex Court in the year 2016 has directed them to give
the benefit of the scheme without applying the cut-off date. Hence, respondent no.1 is also not liable to pay interest on the arrears of pension to the
petitioner.â€
Learned counsel for the appellant has submitted that the learned Writ Court has misinterpreted the order passed by the Apex Court in the case of
R.C. Gupta & others v. Regional Provident Fund Commis sioner, Employees Provident Fund Organization (supra). It was ignored that the issue of
interest was not before the Apex Court, and therefore, the impugned or der, so far as it relates to non payment of interest part is concerned, it is
liable to be set aside.
On the other hand, learned counsel for respondent No.1 has submitted that benefit was not granted to the writ petitioner, and therefore, the learned
Writ Court has rightly held that respondent No.1 is not liable to pay any interest; and prayed for dismissal of the writ appeal.
On due consideration of the arguments of the learned counsel for the parties, so also the reasoning as signed by the learned Writ Court in the
impugned order, we are of the view that there is no legal flaw in the order passed by the learned Writ Court. Judgment dated 22. 09.2014 passed in
Writ Petition (C) No.12999/2014 T.V. Joseph & others v. Union of India & others of the High Court of Kerala at Ernaku lam cited by the learned
counsel for the appellant will not be applicable in the present facts and circumstances of the case.
For the above mentioned reasons, Writ Appeal No.766/2018, Writ Appeal No.887/2018 and Writ Ap peal No.973/2018 filed by the appellant /
Employees’ Provident Fund Organization have no merit and is ac cordingly dismissed.
Original order be retained in Writ Appeal No.766/2018 and a copy thereof be retained in connected Writ Appeal No.887/2018 and Writ Appeal
No.973/2018.