A. MUTHUSWAMY Vs. UNION OF INDIA

JUDGEMENT

(1.) I have heard the learned counsel appearing for the petitioners, Sri. N. Nagaresh, the learned Assistant Solicitor General appearing for Union of India and the learned Standing Counsel Smt. T.N. Girija appearing for the Provident Fund Organisation and Sri. Gopi Krishnan Nambiar appearing for the respondents 4 and 5. 2. All the petitioners are retired from the service of the 3rd respondent.

(2.) Admittedly, the petitioners are covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees Pension Scheme, 1995. The petitioners had salary above Rs.6500/ -, and are stated to have exercised an option under Section 26(6) of the Act. However, the Provident Fund Organization disputes the exercise of joint option by the employer and the employee; and asserts that it has not been done. 3. Be that as it may, it is admitted that the contribution to the Provident Fund being 12% of the total salary deducted as employees contribution and the 12% paid by the employer, were remitted to the Organization. As per the provisions of the Pension Scheme 8.33% of the contribution from the employer, is to be deducted and credited to the Pension Fund. However, in making such deduction, the Provident Fund Organization limited it to 8.33% of the maximum salary provided, ie., Rs.6500/ -. The balance contribution made by the employer for the salary in excess of Rs.6,500/ -, was fully retained in the Provident Fund Account itself. 4. The petitioners contend that such a retention was made by the Organization without reference to the statute.

(3.) The cut -off date prescribed being 01.12.2004 is also against the statutory provisions and does not have any nexus with the object sought to be achieved, is the argument. This Court has by judgment in W.P.(C) Nos. 6643 and 9929 of 2007, dated 04.11.2011, held that the cut -off date prescribed is without jurisdiction and that the Organization could not have retained the 8.33% of the employer's contribution, proportionate to the salary in excess of Rs.6,500/ - in the Provident Fund Account and that it ought to have been credited to the Pension Scheme. The aforesaid judgment, of a learned Single Judge was also confirmed in appeal.