IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 OP.No. 30474 of 1999(C) ---------------------------------- PETITIONER: ------------------- MADHAVAN.P, AGED 64, S/O. RAMUTTY.P, EDAKKAZHIKADAVU, NALLUR, FEROKE, KOZHIKODE -673 631. BY ADV. SRI.SIVAN MADATHIL. RESPONDENTS: ----------------------- 1. UNION OF INDIA, REPRESENTED BY MINISTRY OF LABOUR, GOVERNMENT OF INDIA, NEW DELHI. 2. CENTRAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BHAVAN, 14- BHIKAJI CAMA PLACE, NEW DELHI - 110 066. 3. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, P.B. NO. 1806, CALICUT -673 006. 4. STANDARD TILE & CLAY WORKS PVT. LTD., FEROKE, KOZHIKODE - 673 631. R2 & R3 BY ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 30474/1999-C: ORDER ON C.M.P. NO. 51944/1999 IN O.P. NO. 30474/1999-C CLOSED 06/11/2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT EXTRACT OF THE E.P. SCHEME 1995. EXT.P.2: COPY OF THE LETTER ISSUED BY R3 TO THE PETITIONER DTD. 06/06/96. EXT.P.3: COPY OF THE LETTER ISSUED BY R4 TO THE PETITIONER DTD. 07/01/98. EXT.P.4: COPY OF THE CHALAN DT. 19/01/98 FOR THE REMITTANCE OF AMOUNT BY THE PETITIONERS. EXT.P.5: COPY OF THE 10-D APPLICATION DT. 17/02/98 SUBMITTED BY THE PETITIONER. EXT.P.6: COPY OF THE LETTER DTD. 29/04/99 NO-KR/KK/228/477/18(6)/99 ISSUED BY R3 TO THE PETITIONER. EXT.P.7: COPY OF THE REGD. LAWYER NOTICE ISSUED TO R3 DT. 10/07/99. EXT.P.8: COPY OF THE REPLY NOTICE DT. 23/08/99 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 30474 OF 1999 ---------------------------------------- Dated this the 6th day of November, 2008 JUDGMENT The petitioner was an employee of the 4th respondent Orgnisation. He joined service in 1957 and was enrolled as a member of the Employees Provident Fund under the Employees Provident Funds and Miscellaneous Provisions Act. He retired from service on attaining the age of 60 years, on 1.2.1996. In the meanwhile, the Employees Pension Scheme came into force in 1995. As per Clauses 6, 7 and 17 of the Scheme, certain persons were given option to join the Employees Family Pension Scheme retrospectively, which was a condition precedent for pension under the Employees Pension Scheme, on payment of the required amount of contributions. The petitioner also submitted his option for joining the Employees Family Pension Scheme in order to become eligible for pension under the Employees Pension Scheme 1995. By Ext.P2, the petitioner was directed to pay an amount of Rs.33,686/- as the arrears of contributions required to be paid for joining the Family Pension O.P.No.30474/99 2 Scheme. The petitioner paid the same. Thereafter by Ext.P3, he was directed to pay an additional amount of Rs.16,632/- which also the petitioner paid. The petitioner thereafter, submitted Ext.P5 application in Form – 10D for payment of pension under the Employees Pension Scheme. This was rejected by Ext.P6 on the ground that the petitioner did not opt for Employees Pension Scheme 1995 before leaving service he is not eligible for pension. The petitioner is challenging Ext.P6 and seeking the following reliefs: “i) Issue a Writ of Certiorari or any other writ or order, to quash the Exhibit-P8 and to declare it as null and void, ii) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 3 rd respondent to declare that the petitioner is eligible for availing the pensionary benefits as per the provisions of the Employees Pension Scheme, 1995. iii) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 3 rd respondent to grant the pensionary benefits to the petitioner as per the Employees Pension Scheme, 1995, and approve the same by the 2 nd respondent” The question involved in this original petition was the issue considered by a Division Bench of this Court in W.A. No.782/2004. By judgment dated 19.5.2004, the Division O.P.No.30474/99 3 Bench of this Court decided the issue in favour of similarly placed petitioners. In fact another Division Bench in W.A.No.936/04 after considering the judgment in W.A.No.782/2004 without dissenting therefrom took a slightly deviant view. Still in so far as the judgment in W.A. No.782/2004 covers the issue, I am of opinion that the petitioner is entitled to the reliefs prayed for. 2. The learned counsel appearing for the Provident Fund Organisation submits that against the judgment in W.A.No.782/04 an appeal has been preferred which is pending before the Supreme Court. I am bound to follow the judgment of the Division Bench of this Court unless the same is reversed by the Supreme Court of India. In the above circumstances, following that judgment, the Original Petition is allowed and it is declared that the petitioner is eligible for pension under the Employees Pension Scheme 1994. Exts.P6 and P8 are quashed and the 3rd respondent is directed to pass orders on Ext.P5 applications submitted by the petitioner and grant him the pensionary benefits due under the Employees Pension Scheme. Orders in this regard shall be O.P.No.30474/99 4 passed and the arrears of pension disbursed to the petitioner as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE Acd O.P.No.30474/99 5