D/L.18 v. The State of West Bengal & Ors.

Mr. Amal Kumar Sen, Mr. Sabyasachi Mondal …for the CSTC. The grievance of the petitioner is directed against non-payment of higher pension. Briefly, the petitioner was appointed as a guard in the Calcutta State Transport Corporation and retired from services on April 30, 2012. Thereafter, in view of the Employees’ Pension (Amendment) Scheme, 2014, the petitioner alleges to be entitled to higher pension. On behalf of the respondent authorities it is contended that in view of an unreported decision rendered in The Employees Provident Fund Organization & Anr. Etc. Vs. Sunil Kumar B. & Ors. Etc. dated November 4, 2022, the petitioner is not entitled to any relief whatsoever. The relevant portion of the above decision is set out herein below: 2 amendments “2. In this judgment, we shall deal with the legality certain the Central modifications made the Employees’ Pension Government Scheme, 1995 Such (“1995 Scheme”). scheme has been made in pursuance of, inter- alia, Section 6A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“the Act”). Such changes, inter-alia, are sought be effected in paragraphs 3, 6, 11,12 and 14 of the 1995 scheme. The Act originally did not provide for any pension scheme and Section 6A was introduced to the said Act by way of an amendment made in 1995. The amendment of 1995 contemplated formulation of a scheme for employees’ pension and the pension fund was to comprise of deposit of 8.33 per cent of the employers’ contribution made towards provident fund corpus as per the prevailing Statute. Paragraph 11 of the scheme pensionable salary. At that point of time, maximum pensionable salary was Rs.5000/- enhanced to Rs.6500/-. subsequently Pensionable to Rs.15000/- by a raised salary was notification dated 22nd August 2014 [numbered G.S.R. 609 (E)], which was to be effective from 1st September 2014. This notification brought certain other modifications in the scheme mainly restricting its coverage and we shall discuss judgment. these modifications determination dealt with

44. We accordingly hold and direct:- (i) The provisions contained notification no. G.S.R. 609(E) dated 22nd August 2014 are legal and valid. So far as present members of the fund are concerned, we have read down certain provisions of the scheme as applicable in their cases and we shall give our findings and directions on these provisions in the subsequent sub-paragraphs. employees (ii) Amendment to the pension scheme brought about by the notification no. G.S.R. 609(E) dated 22nd August 2014 shall apply to exempted establishments in the same manner as the employees of the regular establishments. the exempted Transfer of establishments shall be in the manner as we have already directed. 3 (iii) The employees who had exercised option under the proviso to paragraph 11(3) of the 1995 scheme and continued to be in service as on 1st September 2014, will be guided by the amended provisions of paragraph 11(4) of the pension scheme. (as it was before (iv) The members of the scheme, who did not exercise option, as contemplated in the proviso to paragraph 11(3) of the pension scheme the 2014 Amendment) would be entitled to exercise option under paragraph 11(4) of the post amendment scheme. Their right to exercise option before 1st September 2014 stands crystallized in the judgment of this Court in the case of R.C.Gupta (supra). The scheme as it stood before 1st September 2014 did not provide for any cut-off date and thus those members shall be entitled to exercise option in terms of paragraph 11(4) of the scheme, as it stands at present. Their exercise of option shall be in the nature of joint options covering pre-amended paragraph 11(3) as also the amended paragraph 11(4) of the pension scheme. There was uncertainty as regards validity of the post amendment scheme, which was quashed by the aforesaid judgments of the three High Courts. Thus, all the employees who did not exercise option but were entitled to do so but could not due to the interpretation on cut-off date by the authorities, ought to be given a further chance to exercise their option. Time to exercise option under paragraph 11(4) of the scheme, under these circumstances, shall stand extended by a further period of four months. We are giving this direction in exercise of our jurisdiction under Article 142 of the Constitution of India. Rest of the requirements as per the amended provision shall be complied with. (v) The employees who had retired prior to 1st September 2014 without exercising any option under paragraph 11(3) of the pre- amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment. (vi) The employees who have retired before 1st September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph 11(3) of the pension scheme as it stood prior to the amendment of 2014. 4 (vii) The requirement of the members to contribute at the rate of 1.16 per cent of their salary to the extent such salary exceeds Rs.15000/- per month as an additional contribution under the amended scheme is held to be ultra vires the provisions of the 1952 Act. But for the reasons already explained above, we suspend operation of this part of our order for a period of six months. We do so to enable the authorities to make adjustments in the scheme so that the additional contribution can be generated from some other legitimate source within the scope of the Act, which could include enhancing the rate of contribution of the employers. We are not speculating on what steps the authorities will take as it would be for the legislature or the framers of the scheme to make necessary amendment. For the aforesaid period of six months or till such time any amendment is made, whichever is earlier, the employees’ contribution shall be as stop gap measure. The said sum shall be adjusted on the basis of alteration to the scheme that may be made. (viii) We do not find any flaw in altering for computation of pensionable the basis salary. (ix) We agree with the view taken by the Division Bench in the case of R.C.Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (pre-amendment) pension scheme is concerned. The fund authorities shall implement the directives contained in the said judgment within a period of eight weeks, subject to out directions contained earlier in this paragraph. (x) The Contempt Petition(C) Nos. 1917-1918 of 2018 and Contempt Petition (C) Nos. 6190-620 of 2019 in Civil Appeal Nos. 10013-10014 of 2016 are disposed of in the above terms.” In this background, it is alleged that the petitioner having retired on April 30, 2012 is not eligible to any benefit under the above Notification and squarely falls within the ambit of paragraph 44(iv) of the above decision. 5 Admittedly, the petitioner had retired on April 30, 2012 prior to 1 September, 2014. Hence, the above notification inapplicable and inconsequential insofar as the petitioner concerned. In such circumstances, the prayer of the petitioner for higher pension is misconceived and untenable. WPA No. 12015 of 2023 stands dismissed. However, there shall be no order as to costs. (Ravi Krishan Kapur, J.)