CWP-18756-2011 (O&M) & connected cases
201 CWP-18756-2011 (O&M)
EMPLOYEES JOINT COMMITTEE & ORS. V/S UNION OF INDIA &
ORS.
WITH CWP-18546-2012 (O&M), CWP-1714-2015 (O&M), CWP-18073- 2015, CWP-20625-2016, CWP-6660-2017, CWP-9316-2017, CWP-15809- 2017, CWP-29491-2018, CWP-9796-2018, CWP-33493-2018 and 226 CWP-37894-2018 (O&M)
Present: Mr. Sanjay Kaushal, Senior Advocate, with
Mr. Aman Dhir, Advocate (in CWP-18546-2012)
Mr. Kulwant Singh Boparai, Advocate
(in CWP Nos. 18756 of 2011, 1714 of 2015 & 37894 of 2018)
Mr. Arvind Kashyap, Advocate (in CWP-15809-2017)
Mr. Shiva Khurmi, Advocate (in CWP-29491-2018)
Mr. Amtiaz Sandhu, Advocate,
for Mr. Shakti Bhardwaj, Advocate (in CWP-20625-2016)
Mr. Vivek Sharma, Advocate (in CWP-6660-2017)
Mr. Kuldip Singh, Advocate (in CWP-33493-2018)
Mr. Chander Pal Tiwana, Advocate,
for Mr. Vineet Kumar, Advocate (in CWP-9796-2018)
for the petitioner(s).
Mr. Kamal Sehgal, Advocate,
Mr. Rajesh Hooda, Advocate,
Mr. Parvesh Jaglan, Advocate, for E.P.F.O. in all cases.
Mr. J.S. Puri, Advocate, for FCI.
Mr. P.S. Sidhu, Advocate, Sr. Panel Counsel for UOI
(in CWP Nos. 6660 & 9316 of 2017)
Mr. Shobit Phutela, Advocate, for Union of India
(in CWP-29491-2018)
Mr. D.K. Wadhaawan, Advocate, for Union of India
(in CWP-33493-2018)
Mr. Sandeep Bhatia, Advocate,
for Mr. O.P. Dabla, Advocate,
for Union of India (in CWP-15809-2017)
Mr. Sumeet Goel, Advocate, and
Ms. Varsha Gupta, Advocate, for respondent No. 1
(in CWP-9796-2018)
Ms. Nitika Jawa, Advocate,
for Mr. Hamendra Goswami, Advocate,
for respondent No. 4 (in CWP-18546-2012)
Mr. H.N. Mehtani, Advocate,
for respondent No. 5 (in CWP-15809-2017)
Mr. Avtar Singh Khaira, Advocate,
for respondent No. 5 (in CWP-29491-2018)
CM-9724 & 9729-CWP-2019 in CWP-37894-2018, CM-9572-CWP-2019 in CWP-18546-2012 , CM-9580-CWP-2019 in CWP-29491-2018 and CM-9747-CWP-2019 in CWP-1714-2015
Allowed as prayed for.
Main Petitions:
All these petitions are based on identical set of facts and raises a common question of law for consideration.
These petitions have been filed by the Employees’ Association alongwith other retired employees, seeking a writ in the nature of certiorari for quashing the order dated 25.05.2011 and to declare proviso to Clause 3(2) of the Employees Pension Scheme, 1995 as ultra vires Section 6(A)(2) (a) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, and to direct the respondents to divert contributions to the Employees Pension Scheme, 1995, w.e.f. 16.11.1995, on the basis of actual basic wages drawn without there being any upper cap.
A coordinate Bench, after considering the matter, passed the following order on 26.11.2018:-
“ Heard learned counsel for the rival parties for quite some time qua order made by this Court on 10.10.2018 for getting the compliance of the Supreme Court judgment done. Pursuant to the said order learned counsel for the Employees Provident Fund Organization has failed affidavit of Shashank Kumar Pandey, Assistant Provident Fund Commissioner, O/o Regional Provident Fund Commissioner, Chandigarh, dated 21.11.2018 in which number of details have been furnished. The learned counsel for the Organization also submits that pursuant to the action taken the retired employees have been issued notices for payment of the amounts as against which only 104 employees have responded and paid the said amount. Not only that in respect of 69 employees, provisional pension payment orders have also been issued. Looking to the submissions prima facie we are satisfied that there is some movement on the part of the organization in implementing Supreme Court’s judgment but then petition will have to be kept pending for monitoring the completion of the process.
At any rate, now since notices have been issued, it would be appropriate for the petitioners to take instructionsfrom their respective clients on the part of the same and also regarding repayment of the amount to the organization so that the further process can be undertaken. Insofar as the other aspects are concerned regarding exempted establishments, we think the matter should be further heard.
In that view of the matter, we adjourn the proceedings for further compliance on 10.01.2018.
A photocopy of this order be placed on files of connected matters.”
Subsequently, on 10.01.2019, another order was passed, which is reproduced hereunder:-
“CM-81-CWP-2019 in CWP-18756-2011
CM-18642-CWP-2018 in CWP-25445-2016
CM-18628-CWP-2018 in CWP-10049-2017
CM-98 & 101-CWP-2019 in CWP-29491-2018
Allowed as prayed for, subject to all just exceptions.
Reply by way of affidavit of Shri Lokesh Gupta, Assistant Provident Fund Commissioner, office of Regional Provident Fund Commissioner, on behalf of respondent Nos.2 to 5, has been filed in Court today in CWP-15809-2017, which is taken on record.
The learned counsel for the respondentorganization has invited our attention to the additional affidavit-cum-status report of respondent No.3. We reproduce relevant portion of paragraph Nos.4 & 5, which reads as thus:-
“4. ......It is also relevant to mention here that the respondents have issued Demand Letters in allthe 1934 eligible cases received till 15/11/2018 to deposit the contributions of PF received by them at the time of retirement so that the same can be diverted to the pension fund and they can be given enhanced pension in terms of the Hon'ble Supreme Court's judgment. It is further submitted here that the department has also received 832 claims received after 16.11.2018 till 03.01.2019 from the above mentioned three establishments. The further claims filed by 832 ex-employees of these establishments are being processed and the department has already issued demand letters to 461 more ex-employees out of 832 claims received after 16.11.2018, and the rest are in the process of issuance of demand letters. This would mean that the department has issued demand letters to 2395 employees for deposit of their P.F. Contributions already received by them at the time of the retirement
5. That after the last date of hearing and till date, 1857 ex-employees out of 2395 exemployees have already deposited the amount of provident fund already received by them with the answering respondents and 751 cases have been processed for issuance of provisional pension orders, whereas the rest of the pension payment orders are in the process of being issued. It is also relevant to mention here that rest of the exemployees out of 2395 i.e. 538 to whom demand letters were issued have been deposited the P.F. Contribution already received by them at the time of retirement. As and when the remaining pensioners would deposit the amount, their cases would also be processed on priority basis and they would be issued the provisional payment order.”
It is seen from the above averments that the exercise in question is being undertaken but 538 exemployees to whom demand letters were issued have not deposited the PF contribution received by them at the time of their retirement.
It is also pointed out that new claims have also been filed vide paragraph 4 above.
In this view of the matter, the petitioner should be granted more time to deposit the amount aforesaid. Let amount be deposited with respondent No.3 within a period of six weeks from today.
Insofar as the new claims stated by the organization are concerned, we reiterate that the time of six weeks shall also be available to them from the date of receipt of the demand notices.
The organization shall after the receipt of the deposits proceed further and complete the exercise till finality within a period of two months thereafter from the date of receipt of deposit.
Adjourned to 09.07.2019.
Photocopy of this order be placed on the file of connected cases.”
Mr. Kamal Sehgal, learned counsel appearing for respondent Nos. 2 and 3 (E.P.F.O. & R.P.F.C.), states that in compliance of the aforesaid orders steps have been taken in respect of most of the employees, and except for 123 employees, provisional PPOs have been issued to all such employees who have refunded the payment actually made to them on account of Provident Fund. He also refers to an additional affidavit, dated 06.07.2019, filed on behalf of respondent Nos. 2 and 3, wherein it is stated that the averments in the earlier affidavits were made due to an inadvertent mistake and the Employees Provident Fund Organization intends to take remedial steps. On being confronted with the factual position that not only an undertaking was given before this Court but a conscious decision was taken at the level of the Organization, which was forwarded to the Central Government and was duly approved, how this is permissible, particularly when on the basis of the decision taken by the E.P.F.O. the employees have refunded the amount of the Provident Fund paid to them and even provisional PPOs have also been issued to majority of the employees, there is no answer. In such view of the matter, we cannot permit respondent Nos. 2 and 3 to retract from their stand and upset the decision already taken. They also cannot be allowed to take any such remedial steps.
At this juncture, Mr. Kamal Sehgal seeks time to revisit the issue by respondent Nos. 2 and 3. As prayed, two weeks time is allowed to seek further instructions in this regard.
In so far as CWP No. 37894 of 2018 is concerned, all the steps for payment of revised pension shall be taken by the respondents, as in the case of other employees, within a reasonable time.
All these petitions be listed on 25.07.2019.
A photocopy of this order be placed on the files of connected cases.
(KRISHNA MURARI)
CHIEF JUSTICE
(ARUN PALLI)
JUDGE
July 09, 2019
P kapoor
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