Sanjay Karol, ACJ. (Oral) - (1.)Learned counsel for Employees Provident Fund Organization/Regional Provident Fund Commissioner, H.P., invite attention of this Court to the decision rendered by the Honourable Supreme Court of India in Civil Appeal No(s). 10013-10014 of 2016, titled as R.C. Gupta & Ors etc. etc. Vs. Regional Provident Fund Commissioner Employees Provident Fund Organization & Ors. etc., on 4.10.2016, as also directions issued by the Employees' Provident Fund Organization, complying with the directions of the apex Court. Communication dated 23.3.2017 is taken on record, which is reproduced in toto:-
"To

All Regional P.F. Commissioner, Regional Office/ Sub Regional Office.

Subject:

Allowing members of the Employees' Pension Scheme, 1995 the benefit of the actual salary in the Pension Fund exceeding wage limit of either Rs. 5000.00 or Rs. 6500 per month from the effective date respectively as per the Honourable Supreme Court's order in SLP No.33032- 33033 of 2015-Regarding.

Sir,

The matter of determination of pensionable salary exceeding statutory wages ceiling and exercise of option under deleted proviso to para 11(3) of the EPS, 95 was examined in the light of the Honourable Supreme Court's Order in SLP No.33032- 33033 of 2015.

(2.)The Honourable Apex court in SLP No.33032- 33033 of 2015 observed that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut -off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme. It has further been observed that a beneficial Scheme, ought not to be allowed to be defeated by reference to a cut-off date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs. 5000.00 or Rs. 6500.00 per month , as the case may be.
In a situation where the deposit of the employer's share at 12% has been on the actual salary and no the ceiling amount, the Provident Fund Commissioner could seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them the benefits of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees.

Thus a member contributing to the Provident Fund on the wages exceeding the statutory ceiling or who had contributed to the Provident Fund on the wages exceeding the Statutory ceiling cannot be debarred from exercising the option to contribute on such higher wages to the pension fund. (Copy of the order of the Honourable Supreme Court enclosed).

(3.)Accordingly, a proposal was sent to MOL & E to allow members of the Employees' Pension Scheme, 1995 who had contributed on higher wages exceeding the statutory wage ceiling of Rs. 6500.00 in the Provident Fund to divert 8.33% of the salary exceeding Rs. 6500.00 to the Pension Fund with up to date interest as declared under EPF Scheme, 1952 from time to time to get the benefit of pension on higher salary on receipt of joint option of the Employer and Employee.