High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD940 CONTEMPT PETITION NO.297 OF 2024 IN WP/13434/2023Shambhusingh Amarsingh Dixit,Age 73 yrs., Occ. Retired,Plot No.444, N-3, CIDCO,Aurangabad. … Petitioner… Versus …Ramesh Kumar,Age 45 yrs., Occ. Service,The Regional Provident Fund Commissioner-II,Regional Office of Employees Provident FundOrganization, Plot No.02, Town Centre,CIDCO, Aurangabad. … Respondent...Mr. N.D. Sonavane, Advocate for petitionerMr. N.K. Choudhari, Advocate for sole respondent...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE:17th OCTOBER, 2024ORDER :(PER : SMT. VIBHA KANKANWADI, J.)1Present petition is filed under Section 12 of the Contempt of 2940_CP_297_2024Courts Act, 1971. The petitioner is the original petitioner in Writ PetitionNo.13434 of 2023 decided by this Court on 31.10.2023. It is alleged thatrespondent has committed breach of order passed in the said writ petition. 2The fact under which the said writ petition was filed was thatpetitioner was in service with Aurangabad Zilla Sahakari Krishi GraminBahuuddeshiy Vikas Bank Limited. He stood retired on 31.03.2009 bysuperannuation. Employees Pension Scheme, 1995 was applicable to him.On the date of his retirement his salary was Rs.6,640/- per month anddeduction towards Provident Fund was on actual salary and not on ceilinglimit. After the retirement, monthly pension that was given to the petitionerwas Rs.1,780/-. Petitioner had then applied to respondent to give monthlypension on the actual last drawn salary and the deduction thereon which ismore than the ceiling limit. Respondent considered the case of petitioner inview of decision in R.C. Gupta vs. Regional Provident Fund Commissioner[(2018) 14 SCC 809] and, therefore, the pension was enhanced to Rs.5,502/-per month from Rs.1,780/- from 01.04.2009. However, respondent withoutgiving any opportunity of hearing reduced that pension and started paymentwith the old rate i.e. Rs.1,780/- and also directed petitioner to refund theexcess difference by order dated 01.12.2020. The said order was challengedby filing Writ Petition No.8171 of 2020. This Court had then stayed the 3940_CP_297_2024recovery by interim order dated 07.12.2020 and clarified that till the disposalthe respondent to pay original pension payable to the petitioner. Writpetition was disposed of with the similar order by keeping the recovery inabeyance and remitted the matter back to respondent authorities to pass afresh order after hearing the petitioner. According to the petitioner, in thelight of continuation of the interim protection that order would merge in thefinal order and after final order would be passed the interim order will cometo an end. The respondent, however, refused to pay the enhanced pensionand again passed the order on 15.09.2023 maintaining the old order.Therefore, there is breach of order passed. 3Heard learned Advocate Mr. N.D. Sonavane for petitioner andlearned Advocate Mr. N.K. Choudhari for sole respondent. Perusal all orders.4This Court in Writ Petition (Stamp) No.21949 of 2020 (stated tobe similarly situated person) had passed following order :“1)…………2)…………3)Till then, recovery shall not be claimed by the respondentsfrom the petitioners pursuant to the impugned action. 4)Mr. Choudhari, learned counsel submits that the original 4940_CP_297_2024pension that is prior to the enhancement of pension is being regularlypaid to the petitioners and is credited in their accounts. 5)Mr. Sonavane, learned counsel for the petitioners submits thatthe same is not paid to the petitioners on the ground recovery isclaimed. 6)We have stayed the recovery under the present order. Therewould be no impediment for the respondents to pay original pensionpayable to the petitioners. 7)Till the next date, the same shall be paid without prejudice tothe rights and contentions of either parties.”5In Writ Petition No.8171 of 2020 filed by the present petitionerorder came to be passed on 02.02.2023, whereby this Court disposed of thewrit petitions by continuing the interim protection granted by Court topetitioners. The matter was relegated to the Provident Fund authority topass fresh order by giving an opportunity to the petitioners. Thereupon itappears that the order was passed by the authority on 15.09.2023. It can beseen that the opportunity was given to the petitioner to put-forth his say. Adetailed order has been passed. Now, the question is – Whether there iscontempt ? Affidavit-in-reply has been filed by respondent, wherein he hasstated that the amount of pension @ Rs.1,780/- is regularly paid to thepetitioner. He has taken the factual note as well as relies upon the relevant 5940_CP_297_2024excerpts from R.C. Gupta (supra) and stated that neither the petitioner norhis employer had opted for and/or deposited the amount of the contributioninto the funds established as per the provisions of the Act, 1952. He furtherrelies upon the relevant excerpts from Employees’ Provident FundOrganization and another vs. Sunil Kumar B. and others [AIR 2022 SC 5634]and stated that the scheme as it stood before 01.09.2014 did not provide forany cut-off date and thus those members shall be entitled to exercise optionin terms of paragraph 11(4) of the scheme, as it stands at present. Theirexercise of option shall be in the nature of joint options covering pre-amended paragraph 11(3) as also the amended paragraph No.11(4) of thePension Scheme. There was uncertainty as regards validity of the postamendment scheme. All the employees who have not exercised option butwere entitled to do so, however, could not due to the interpretation of cut-offdate by the authorities ought to have given a further chance to exercise theiroption was the interpretation put forth by him. The petitioner stoodsuperannuated on 31.03.2009. Petitioner had no basis whatsoever to claimthe revision of the pension in the light of the said Judgment. He submits thatthe petitioner has misinterpreted the order passed by this Court implying thatthe stay that the impugned order dated 15.09.2023 purportedly directed torespondent to release the enhanced pension as is being claimed by thepetitioner by way of the final relief. 6940_CP_297_20246Thus, it is to be noted that what was stayed was the recovery ofthe alleged excess amount. Even as per the facts given in the writ petition aswell as this petition, the pension amount which was granted earlier wasrestored on 01.12.2020 by passing the specific order and it was specificallystated that “there would be no impediment for the respondents to payoriginal pension payable to the petitioners”. The original pension wasRs.1,780/- per month. The same was continued while disposing the petitionson 02.02.2023. After the order was passed, in view of the directions given bythis Court by respondent on 15.09.2023, fresh cause of action arose for thepetitioner to challenge the same, if they were aggrieved. There was noquestion of coming to a conclusion that there is intentional breach of theorder passed by this Court. Taking into consideration these facts there is nonecessity to take any action under the Contempt of Courts Act. Petitionstands dismissed. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd