BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/02/2008
CORAM
THE HONOURABLE Mr.JUSTICE S.NAGAMUTHU
Writ Petition No.5485 of 2005
1. Vellaisamy Durairaj
2. R.J.Rabindran
3. M. Venkataraman
4. P. Athimoolam
5. T. Veerapandi
6. S. Raghupathy
7. Chinnadurai
8. R. Thirumalai
9. C. Muthusamy
10. S. Esakkiappan
11. R. Pandy ... Petitioners
Vs
1. Union of India
rep. by its Secretary
Ministry of Labour
Shram Mantralaya
New Delhi.
2. Provident Fund Commissioner (Pension)
Employee's Provident Fund Organisation
Head Office
Bhavishya Nidhi Bhavan
New Delhi 110 066.
3. Regional Provident Fund Commissioner
(Pension)
20 Royapettah High Road
Chennai 600 014.
4. Assistant Provident Fund Commissioner
(Pension)
No.10-A/3 St. Thomas Road
High Ground
Tirunelveli 627 011. ... Respondents.
Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorarified mandamus to call for the
records of the first respondent in letter No.R-15025/01/99/SS II dated 10/5/1999
of the first respondent and quash the same and consequently, direct the
respondents to pay the petitioners the pensionary benefits to which they are
entitled to under the Employees' Pension Scheme, 1995 and direct the respondents
to pay the arrears of pension from the date of commencement of pension with
interest and damages within a stipulated time.
!For petitioner ... Mr.CR.Shanmuganathan
^For respondents ... Mr.M.K.Ramakrishnan
for R.1
Mr.A.Saravanan
for E.P.F
:ORDER
The petitioners were employed in different Organisations and they
were members of Family Pension Scheme under the Employees Provident Fund and
Miscellaneous Provisions Act, 1952. They have been put to more than 20 years of
past service. During their service, the petitioners were regularly contributing
to the Employees Family Pension Scheme, 1971 until the Employees Pension Scheme,
1995 came into force on 16/11/1995. After the advent of the Employees Pension
Scheme of 1995, the petitioners were regularly contributing to the Scheme till
their date of retirement. On retirement, the petitioners are eligible for
pension as well as Past Service Pension Benefit under Clause 12 of the Employees
Pension Scheme of 1995. The relevant sub-clause 1 (5) of 12 of the said Act is
as follows:-
“1. A member shall be entitled to:-
(a). superannuation pension if he has rendered eligible service of
20 years of more and retires on attaining the age of 58 years;
(b). retirement pension, if he has rendered eligible service of 20
years or more and retires or otherwise ceases to be in the employment before
attaining the age of 58 years;
(c). short service pension, if he has rendered eligible service of
10 years or more but less than 20 years.
(2). In the case of a new entrant the amount of monthly
superannuation pension or retiring pension, as the case may be, shall be
computed in accordance with the following factors namely:-
Monthly member’s pension
= pensionable salary x Pensionable service
70
(3). In the case of an employee (who was a amember of the ceased
Family Pension Scheme, 1971 and who hasn ot attained the age of 48 years on the
16th November, 1995:
Superannuation/retirement/short service pension shall be equal to
the aggregate of
(a) Pension as determined under sub-paragraph (2) for the period of
pensionable service rendered from the 16th November, 1995 or Rs.635/- per month
whichever is more;
(b). Past service pension benefit shall be as given below:-
The past service benefit payable on completion of 58 years of age on
16/11/1995.
Years of past service
Salary upto
Rs.2,500/- p.m.
Salary more than
Rs.2,500/- p.m.
(1)
(2)
(3)
(i)
Upto 11 years
80
85
(ii)
More than 11 years
but upto 15 years
95
105
(iii)
M than More than 15 years but
less than 20 years
120
135
(iv)
Beyond 20 years
150
170
subject to a minimum of Rs.800/- per month provided the past service is 24
years. If the aggregate service of the member is less than 24 years, the
pension and the benefits computed as above shall be reduced proportionately
subject to a minim of Rs.450/- per month.
(c). On completion of the age of 58 years after 16/11/1995, the
benefit under column (2) or column (3) above, as the case may be shall be
multiplied by the factor given in Table ‘B’ corresponding to the period between
16/11/1995 and date of attainment of age 58 to arrive at past service pension
payable.
(4). In the case of an employee [who was a member of the ceased
Family Pension Scheme, 1971] and has attained the age of 48 years but less than
53 years on the 16th November, 1995, the superannuation/retirement pension shall
be equal to the aggregate of:-
(a). pension as determined under sub-paragraph (2) for the period
of service rendered from the 16th November, 1995 or Rs.438/- per month whichever
is more;
(b). past service benefit as provided in sub-paragraph (3) subject
to a minimum of Rs.600/- per month provided the past service is 24 years.
Provided further that if it is less than 24 years the pension payable and the
past service benefits taken together shall be proportionately less subject to
the minimum of Rs.325/- per month.
(5). In the case of an employee [who was a member of the ceased
Family Pension Scheme, 1971] and who has attained the age of 53 years or more on
the 16th November, 1995, the superannuation/retirement pension shall be equal to
the aggregate of:-
(a). pension as determined under sub-paragraph (2) for the period
of service rendered from the 16th November, 1995 per month or Rs.335/- per
month whichever is more.
(b). past service benefits provided in sub-paragraph (3) subject to the
minimum of Rs.500/- per month, provided the past service is 24 years. Provided
further that if it is less than 24 years the pension payable and the past
service benefits shall be proportionately lesser but subject to the minimum of
Rs.265/- per month.”
2. The petitioners 1 to 9 had attained 48 years of age as on 16th
November, 1995 which is the date of coming into force of the Scheme. The
petitioners 10 and 11 had attained the age of 53 years as on the said date. So,
as per the above Scheme, the petitioners 1 to 9 are eligible for pension as
per clause 12 (4) of the Employees’ Pension Scheme, 1995 and the petitioners 10
and 11 are eligible for pension under clause 12 (5) of the Employees’ Pension
Scheme, 1995. Accordingly, they have been paid pension. But while applying the
formula for the past service benefits as contemplated under clause 12 (4) (b)
and 12 (5) (b), they have not been provided with the minimum amount as
prescribed therein. According to them, the respondents have applied the
formula contained in para 12 (3) (b) of the Scheme and they are paying less
amount of pension than the amount to which they are entitled for. When the
petitioners made representations, they were told that the first respondent in a
letter of clarification in letter No.R.15025/01/99/SS-II dated 10/5/1999 has
stated that the pensioners would be entitled for a minimum of Rs.500/- and
Rs.600/- as the case may be. Based on the said clarification only, the
petitiners are not paid the amount which they claimed. The petitioners
therefore, challenge the said letter of clarification of the first respondent.
3. Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the respondents.
4. In the case of all the petitioners, there is no dispute that
they have completed more than 24 years of past service and under clause 12 (4)
(b) of the Pension Scheme of 1995, the Past Service Pension shall be subject to
the minimum of Rs.600/- p.m., and the past service benefit payable for the other
petitioners under 12 (5) (b) is subject to the minimum of Rs.500/- p.m.
5. A close reading of the provisions extracted above would go to
show that the pension to be payable shall be the aggregate of pension as
determined under paragraph 2 for the period of pensionable service rendered from
16th November 1995 or Rs.635/- which ever is more and past service pension
benefit shall be subject to a minimum of Rs.800/- p.m. Clause a and b of sub-
clause 3, sub-clause 4 and sub-clause 5 are separate. The minimum of Rs.800/-
as found in sub-clause (b) 2 to clause 3, Rs.600/- as found in clause (2) (b)
to sub-clause 4 and minimum of Rs.500/- as found in sub-clause (b) to clause 5
are all independent to the minimum of amount provided in sub-clause (a) to
clause 3 sub-clause (a) to clause 4 and sub-clause 1 to clause 5. In the
impugned clarification, the first respondent has applied the ceiling of Rs.800/-
, Rs.600/- and Rs.500/- which are under sub-clause (b) to the respective clause
wrongly to sub-clause (a) to clause 3, 4 and 5. Thus, the impugned
clarification is not at all correct and the same deserves to be set aside.
6. To make it clear I would say that under sub-clause a to clause
3, there has to be a minimum amount of Rs.630/- to be paid and under sub-clause
(b), the minimum amount to be paid is Rs.800/-. Thus, the aggregate minimum
amount is Rs.1,435/-. Similarly, under clause 4, the minimum amount to be paid
is Rs.438/- and Rs.600/- totally Rs.1,038/- and similarly, under clause 5, the
minimum amount to be paid is Rs.335 and Rs.500 totalling to Rs.835/-
7. In view of the above, the impugned clarification letter of the
first respondent is set aside and the writ petition is allowed and the
respondents are directed to pay pension under the Employees’ Pension Scheme,
1995 and also to pay the arrears in the manner indicated above. No costs.
Consequently, the connected Miscellaneous Petition No.5973 of 2005 is closed.
mvs.
To
1. Union of India
rep. by its Secretary
Ministry of Labour
Shram Mantralaya
New Delhi.
2. Provident Fund Commissioner (Pension)
Employee’s Provident Fund Organisation
Head Office
Bhavishya Nidhi Bhavan
New Delhi 110 066.
3. Regional Provident Fund Commissioner
(Pension)
20 Royapettah High Road
Chennai 600 014.
4. Assistant Provident Fund Commissioner
(Pension)
No.10-A/3 St. Thomas Road
High Ground
Tirunelveli 627 011.