IN THE HIGH COURT JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. No.26586 of 2011 Between: P.Veeresham and 13 others … Petitioner And Employees’ Provident Fund Organisation, Rep.by its Regional provident Fund Commissioner-I, Bhavishya Nidhi Bhavan, Hyderabad and others. … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. No.26586 of 2011 ORDER: This writ petition has been ﬁled seeking for issuance of Writ of Mandamus declaring the orders passed by the 3rd respondent in proceedings dated 10.01.2011, in refusing to pay pension on higher wages having received the contributions by opting pension on higher wages, as illegal, unjust, contrary to law, arbitrary, victimization, unfair labour practice and in violation of Articles 14, 16 and 21 of the Constitution of India and to grant consequential benefits. Brief facts of the case are that the petitioners are 14 in number retired from the service after putting 30 to 34 years of service in the 4th respondent’s organization i.e. A.P. Foods. It is their case that they gave option on 12.02.1996 and made contributions on a salary exceeding Rs.5,000/-. The respondents 1 to 3 having accepted the amount from 1996 onwards and thereafter, when the petitioners retired from service, during the year 2009-10, refused to grant pension on higher salary exceeding Rs.5,000/-. All the petitioners are being paid family pension of Rs.1,600/- to 1,800/- though they are entitled to get pension ranging from Rs.5,000/- to Rs.6,500/-, based on their contributions. It is also submitted that apart from the petitioners, who retired from service during the year 2009-10, several employees who were working in the 4th respondent’s factory retired from service prior to 2005, are getting higher pensions as per the option submitted by them and contributions were remitted by the 4th respondent to the respondents 1 and 3. As the petitioners also opted for contributions on a salary exceeding Rs.5,000/- but the respondents 1 to 3 having received the said contributions on a salary of exceeding Rs.5,000/-, now refusing to grant of pension on higher salary on the ground that no permission was obtained by the 4th respondent. Hence, the petitioners ﬁled the present writ petition. On behalf of the respondents 1 to 3, counter aﬃdavit has been ﬁled, inter alia, stating that no options were given and no commitment was made by the provident fund authorities but the contributions on higher salary were deposited by the establishment/employee on their own and such excess contributions will be considered as erroneous contributions and the pensionable salary will be restricted to the statutory ceiling and the excess amounts so contributed will be returned with interest. It is also submitted that para 26(6) of the Employees’ Provident Fund Scheme, 1952 (for short ‘the Scheme’) contemplates that prior permission is required for exercising option for making contributions and no permission is granted by the respondents 1 to 3. Therefore, the petitioners are not entitled to payment of pensionary beneﬁts on higher contributions because those contributions are made erroneously. Hence, the petitioners are not entitled to any relief as sought for by them. On behalf of the 4th respondent, A.P. Foods, detailed counter aﬃdavit has been ﬁled, inter alia, stating that the petitioners’ applications for settlement of EPF accumulations and pension account of the members were forwarded to the Regional Provident Fund Commissioner, Barkatpura, Hyderabad. All the petitioners gave their option forms to become a member of the Scheme as their basic pay + DA exceeded Rs.5,000/- and later Rs.6,500/- per month. Accordingly, remittances from Employer’s contribution @ 8.33% was remitted to Pension Account (A/c.No.10) and balanced contribution to EPF Account (A/c.No.1). These contributions have been accepted by the Provident Fund Commissioner without objection from the date of option exercised by the petitioners. Remittances in respect of members were made accordingly till their retirement. All the petitioners joined the service of A.P. Foods and put in continuous service of 26 to 34 years. It is reiterated that the P.F. authorities having accepted the contributions on a salary exceeding Rs.5,000/- since November, 1995 and after a lapse of 16 years, denying the pension on a salary exceeding Rs.5,000/- on the ground that there was no speciﬁc permission was granted. It is also submitted that the P.F. authorities are not correct in saying that there is no speciﬁc permission is granted and the same is contrary to the proceedings issued by the Assistant Provident Fund Commissioner (Pension). The learned counsel for the petitioner would submit that ample record is available with the respondents 1 to 4 in the form of correspondence between the respondents 1 to 3 and the 4th respondent with regard to the contributions made from the wages of the petitioners, who were the employees of the 4th respondent. While the petitioners were in service, the P.F. authorities have accepted the contributions on exceeding higher salary of Rs.5,000/- since November, 1995. Therefore, denying the claim of the petitioners for payment of higher pension under the impugned proceedings dated 10.01.2011 is illegal and unsustainable. On the other hand, the learned counsel appearing for the respondents 1 to 3 submitted, based on the counter, that there should be a permission from the P.F. authorities for payment of contributions by the employer. In the instant case, no such permission is given by the respondents 1 to 3. Therefore, the petitioners are not entitled to any relief as sought for by them. The learned counsel appearing on behalf of the 4th respondent would submit that the contributions made on behalf of the workmen through the 4th respondent were accepted by the respondents 1 to 3 and now they cannot deny the claim of the petitioners. It is also submitted that the 4th respondent did not receive any communication from the respondents 1 to 3 stating that the said Scheme has no application to the employees of the 4th respondent. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents 1 to 3 and also for the respondent No.4. The point that arises for consideration is as to whether the impugned proceeding is sustainable under law? Admittedly, the petitioners are the retired employees having rendered service in the 4th respondent’s organization and their speciﬁc claim is that the respondents 1 to 3 having accepted the contributions on a salary exceeding Rs.5,000/- since November, 1995, denying for payment of pension on a salary exceeding Rs.5,000/- on the ground that there was no speciﬁc permission was granted is illegal and not sustainable. From a perusal of the record, it is evident that there was correspondence between the respondents 1 to 3 and the 4th respondent. The letter dated 12.02.1996 addressed by the oﬃce of the Regional Provident Fund Commissioner, Barkatpur, Hyderabad to the Deputy Manager, A.P. Foods, reads as under: “Please refer to the reference cited. Employees drawing salary beyong Rs.5,000/- may opt and contribute on salary exceeding Rs.5,000/- at 8.33%. Pension on such higher contribution will be paid at the time of pensions payment as per scheme provisions. All employees who are existing members and subscribing on a salary of Rs.5,000/- p.m., should exercise option in case if they desire to contribute on a salary exceeding Rs.5,000/-.” In response to the said letter, the 4 th respondent addressed a letter dated 02.03.1996 to the Regional provident Fund Commissioner, Barkathpura, Hyderabad, which reads as under: “With reference to your letters cited above, we have implemented new Pension Scheme 1995 to all our employees with eﬀect from 16.11.1995 including for those whose salary is more than Rs.5,000/- (pay + DA) per month. The contributions (employees and employers) are calculated at the rates furnished in new pension scheme 1995 rules and remitted to A/c. No.1 & 10 with eﬀect from 1-1-1996. The contributions were already remitted from 16-11-95 to 31-12-1995 the transfer of amounts from A/c.No.1 to 10 will be done at the time of annual accounts reconciliation. As desired in the letter 2nd cited above, we have obtained option form from the 24 employees for those whose salary is more than Rs.5,000/- per month and it is forwarded to your oﬃce for continuation of P.F. membership in new pension scheme 1995. Kindly acknowledge receipt of the same.” Thereafter, the 4 th respondent, in the recent past, addressed a letter dated 22.06.2010, which reads as under: “We have received the reference 1st cited from the Regional PF Commissioner, Barkathpura, Hyderabad on the subject matter, wherein instructions were issued for implementation of “Employees Pension Scheme, 1995” with eﬀect from 16.11.1995 replacing the existing Employees “Family Pension Scheme 1971. Accordingly, the rate of Pension Contribution is 8.33% of pay. As such diverted from the Employers Share of PF Contributions being Paid to Account No:10 towards Pension Fund. We have implemented New Pension Scheme (NPS) 1995 to all of our employees with eﬀect from 16-11-1995 including for those whose salary was more than Rs.5,000/- (PAY +DA) per month. We have furnished the Pension Reference copies at PF Office many times. However, a copy of the said references is herewith enclosed. Subsequently as per the Notiﬁcation, the Pay limit increased from Rs.5000/- to Rs.6,500/- per month. Right from the inception, the Regional Provident Oﬃce has been admitting the claims under this pension scheme to the eligible employees after superannuation of the employees in A.P. Foods. Now, recently retired employees claim forms were sent to you for consideration. Those retired employees of this factory have informed that their cases are kept pending due to the clariﬁcation from A.P. Foods, from the past few months. Further, we have received the reference 3rd cited letter (copy enclosed) from the Asst Provident Fund Commissioner, wherein mentioned that Employees drawing salary beyond Rs.5000/- may opt and contribute on salary exceeding Rs.5000/- at 8.33% pension on such higher contribution will be paid at the time of pension payment as per the Scheme Provisions. All the employees who are existing members and subscribing on a salary of Rs.5000/- per month should exercise option in case if they desire to contribute on a salary exceeding Rs.5000/- per month. In the reference 2nd cited (copy enclosed) we have sent a letter to the Regional Provident Fund Commissioner, Barkathpura, Hyderabad, informed that we have implemented New Pension Scheme from 1995 to all our employees with eﬀect from 16.11.1995 including for those whose salary is more than Rs.5000/- (Pay + DA) per month and remitting the Contribution to Account No:1 & 10. Accordingly, option forms were obtained and forwarded to your oﬃce under the New Pension Scheme. Initially we have sent option Forms of 24 employees. As and when the revised Pay limits of Rs.6500/- per month crosses to the Employees, option forms are being obtained from the date of commencement and forwarding the same to the Regional Provident Fund Oﬃce for information. We are also submitting the list of opted employees along with the annual returns while submitting at EPF Office. In the light of the above clariﬁcation, the beneﬁts due to retired employees of A.P. Foods under EPF Accumulations and Pension amounts may be settled at the earliest as per Rules and Eligibility. If any further clariﬁcation is required the same may kindly be informed. Kindly acknowledge receipt of the same.” Reiterating the said averments, the 4th respondent addressed another letter dated 09.12.2010 to the Regional Provident Fund Commissioner, Barkathpura, Hyderabad. These two letters i.e. the letter dated 22.06.2010 and the letter dated 09.12.2010 are in addition and in continuation of the letter dated 02.03.1996 of the 4th respondent, which makes clear that the petitioners are entitled to the beneﬁts under the Scheme on the contributions on higher salary since their contributions are paid. From a perusal of the impugned letter dated 10.01.2011, it does not refer to any of the aforesaid letters, which means the respondents 1 to 3 have not considered the categorical letters addressed by the 4th respondent, which are in favour of the petitioners. In that view of the matter, the impugned letter dated 10.01.2011 is nothing but non application of mind and without considering the material available on record. Therefore, the impugned letter dated 10.01.2011 is liable to be set aside and accordingly, the same is set aside and consequently, the matter is remitted to the respondents 1 to 3 to consider afresh based on the communications and correspondence took place in between the respondents 1 to 3 and the respondent No.4, including the letters referred to hereinabove and to pass appropriate orders, in accordance with law, within a period of two months, from the date of receipt of a copy of this order. With the above direction, this writ petition is disposed of. There shall be no order as to costs. ________________________ JUSTICE G.CHANDRAIAH Date: 01.12.2011 LSK