IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 3937 of 2009(R) ------------------------- PETITIONER(S): --------------- R.R.V.THAMPURAN, AGED 57 YRS, S/O.P.K.V.THAMPURAN,CHOORAKATTU KOILCKAL, PALIAKKARA NORTH, THIRUVALLA, PATHANAMTHITTA DIST. BY ADV. SRI.R.SANTHOSH BABU RESPONDENTS: --------------- 1. UNION OF INDIA, REP.BY THE SECRETARY, DEPARTMENT OF LABOUR,GOVT OF INDIA, NEW DELHI. 2. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, MINISTRY OF LABOUR GOVT OF INDIA, REGIONAL OFFICE, KARNATAKA.BHAVISHYANIDHI BHAVAN, RAM MOHAN ROY ROAD, PO BOX NO.251 46,NO.13,BANGALORE. 3. REGIONAL PROVIDENT FUND COMMISSIONER(R) EMPLOYEES PROVIDENT FUND ORGANISATION,MINISTRY OF LABOUR GOVERNMENT OF INDIA.P.O.,KERALA, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. ASSISTANT PROVIDENT FUND COMMISSIONER, E.P.F.ORGANISATION SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, CHINNAKKADA, KOLLAM. 5. SOUTH EASTERN ROADWAYS SER HOUSE, 31/61, 2ND MAIN ROAD, ABOVE STATE BANK OF MYSORE VYALKAVAL, BANGALORE-560003. 6. THE MANAGER,SOUTH EASTERN ROADWAYS, M.G.ROAD, ERNAKULAM, KOCHI-35. BY ASG SRI. T.P.M. IBRAHIM KHAN FOR R1 ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R2 TO 4 SMT.T.N.GIRIJA, SC,EPF ORGANISATION FOR R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.3937 of 2009 -------------------------- Dated this the 17th September,2009 J U D G M E N T Petitioner retired from the 5th respondent on 15.5.2007 after rendering 39 years of service. Fifth respondent is covered by the Employees Pension Scheme. Petitioner contends that he had joined the Employees Pension Scheme 1995 soon after the introduction of the said scheme and contribution was being made in terms of the Employees Pension Scheme, 1995 till the date of the petitioner's retirement in 2007 itself. After retirement, petitioner submitted Ext.P2 application for withdrawal of pension under Form 10-D. That was rejected under Ext.P3 finding that petitioner was not a member of the Family Pension Scheme 1971 or the Employees Pension Scheme 1995 and that he is not eligible for pension withdrawal. This has been challenged in the writ petition. 2. A counter affidavit has been filed by respondents 2 to 4, wherein, it is contended that petitioner was not a member of the Employees' Family Pension W.P ( C) No.3937 of 2009 2 Scheme 1971 and in such circumstances, if the petitioner wants to become a member of the Employees Pension Scheme, 1995 then he has to remit the entire contribution for the period from 1971 to 1995 along with interest. This, it is contended is, what is provided under Paragraph 6 of the Employees Pension Scheme. 3. Heard learned counsel for the petitioner and learned standing counsel for the Provident Fund Organisation. Reference will have to be made to the Employees Pension Scheme, 1995. Clauses 6(d), 7 and 17 of the Scheme read as follows: "6(d) . Who bas been a member of the Employees' Provident Fund or of Provident Funds of factories and other establishments exempted by the appropriate Government under Section 17 of the Act or in whose case exemption has been granted under paragraph 27 or 27A of the Employees' Provident Fund Scheme 1952, on 15th November 1995 but not being a member of the ceased Employees' Family Pension Scheme, 1971 opts to exercise his option under paragraph 7." 7 (1). Members referred to under sub- paragraph (c) of paragraph 6 who have died between 1st April 1993 and 15th November 1995 shall be deemed to have exercised the option of joining the Scheme on the date of his death. W.P ( C) No.3937 of 2009 3 (2) Members referred to in sub- paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment. (3) Members referred to in sub- paragraph (d) of paragraph 6 shall have the option to join the Scheme as per the provisions of paragraph 17 from 16th November 1995; 17 (1) Beneficiaries of the deceased members of Employees' Family Pension Scheme, referred to in sub-paragraph (i) of paragraph 7, shall receive higher of the benefits available under the Employees' Family Pension Scheme 1971 and under this Scheme. (2) Members referred to in sub- paragraph (2) of paragraph 7, shall have the option to join this Scheme by returning the amount of withdrawal benefit received , if any, together with interest at the rate of 8.5 per annum from the date of payment of such withdrawal benefit and date of exercise of the option, to receive monthly pension as per the provisions of this Scheme. (3) Members referred to in sub- paragraph (3) of paragraph 7 shall be deemed to have joined the ceased Employees' Family Pension Scheme, 1971 with effect from 1.3.1971 on remittance of past period contribution with interest thereon." 4. Insofar as the petitioner is concerned, he could become a member of the Employees' Family Pension W.P ( C) No.3937 of 2009 4 Scheme only under Clause 6 (d) and clause 6 refers to exercise of option under clause 7. Petitioner opted to join the Scheme as per clause 17 (3) which is relevant,in so far as the petitioner is concerned. It provides that members referred to in paragraph 7 (3) shall be deemed to have joined the ceased Employees' Family Pension Scheme, 1971 with effect from 1.3.1971 on remittance of past period contribution with interest thereon. 5. Going by the abovementioned clauses, the stand taken by the respondents in their counter affidavit seems to be correct. If that be so, petitioner did not become a member of the Employees Pension Scheme 1995 since the earlier contribution with or without interest was not remitted. 6. Learned counsel for the petitioner submits that contribution from him was accepted by the EPF, when the same was paid by the employer after deducting from the petitioner's wages. Such acceptance continued for a period of 12 years from 1995 till 2007 when the petitioner retired. I find force in the submission. But since the enrollment of W.P ( C) No.3937 of 2009 5 a person into a scheme governed by statutory provisions can be had only in accordance with the provisions, I do not find my way to issue a direction to respondents to necessarily treat the petitioner as a member of the Employees' Pension Scheme. But since amounts which were neither due from the petitioner nor receivable by the EPF were actually received from the petitioner, such amounts are liable to be returned. In the result, while upholding the stand of the respondents that petitioner did not become a member of the Employees Pension Scheme 1995, there will be a direction to the 2nd respondent to refund the petitioner the entire amounts remitted by him or under his account towards contribution to the Employees Pension Scheme, 1995 for the period from 16.11.1995 to 15.5.2007 within two months from the date on which the petitioner produces Form -19 along with copy of this judgment. Since the EPF should have become wise that they were not entitled to receive contribution from the petitioner but actually had received it without the petitioner becoming a member of W.P ( C) No.3937 of 2009 6 the Employees Pension Scheme, at least from the date of Ext.P2 application which had been submitted by the petitioner for withdrawal, respondents 2 to 4 shall pay interest at 8.5% from the date of Ext.P2 application till the date of payment of the aforementioned amount. Writ petition is disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) No.3937 of 2009 7 W.P ( C) No.3937 of 2009 8