SANJEEV PRAKASH SHARMA,J. - (1.) Since the question involved in the aforesaid review petitions as well as writ petitions is identical, the same are being decided by this common order.
(2.) This Court vide its order dated 19/05/2017 had decided the bunch of writ petitions as counsel for both the parties agreed that the issue involved in the bunch of writ petitions was no more res-integra in view of the judgment passed by the Supreme Court in the case of R.C. Gupta and ors. Vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization and ors. (Civil Appeal Nos.10013- 10014/2016), decided on 04/10/2016 and thereupon, quoting the paras of the judgment in the case of R.C. Gupta and ors. (supra), the petitioners in the bunch of writ petitions were granted liberty to submit option in terms of Clause 11(3) of the Pension Scheme and the Provident Fund Commissioner was directed to release all the consequential benefits accordingly as directed by the Supreme Court in the case of R.C. Gupta and ors. (supra).
(3.) The Regional Provident Fund Commissioner, Employees Provident Fund Organization and the Central Provident Fund Commissioner (Pension), Employees Provident Fund Organization alongwith Secretary, Ministry of Labour and Employment, Department of Employment, Government of India have preferred the aforesaid review petitions seeking review of the order dated 19/05/2017 (supra) passed by this Court in the bunch of writ petitions and it has been stated in the review petitions that the order dated 19/05/2017 was sent to the Office of Central Provident Fund Commissioner, New Delhi and the matter was examined and it was found that case of R.C. Gupta and ors. (supra) is not applicable to the bunch of writ petitions. Accordingly, the respondents-review petitioners submit that they do not agree in the facts of the case in hand before this Court that the judgment of the Supreme Court in the case of R.C. Gupta and ors. (supra) would apply. The respondents-review petitioners further submit as under:- (A) Under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "1952 Act"), 10% or 12% of the basic wages including dearness allowance etc. is required to be deposited in the Provident Fund Account of an employee as the employer's share. When the 1952 Act was enacted there was no provision for pension. However, by amendment w.e.f. 16.11.1995 Sub-section 6A was inserted, which provided Employees' Pension Scheme to be framed for payment of pension to the retiring employees. (B) For the purpose of constituting the corpus of the pension fund, out of the contribution u/s. 6 of the 1952 Act, 8.33% of the employer's contribution was required to be remitted to Pension Fund. (C) It is stated that the Pension Scheme, which was framed to give effect to the provisions of Section 6A contains inter alia Clause 11 of the Employees' Pension Scheme, 1995 (hereinafter referred to as "Pension Scheme"), which deals with determination of pensionable salary. The Pension Scheme came into effect from 16.11.1995. Clause 11 (3) of the Pension Scheme provided for maximum pensionable salary limited to Rs. 5000/-, which was later w.e.f. 01.06.2001 enhanced to Rs. 6500/- per month and presently it is Rs. 15000/- per month. A proviso was added to Clause 11 (3) of the Pension Scheme w.e.f. 16.03.1996 permitting an option to the employer and an employee for contribution on salary exceeding Rs. 5000/- pm, which later was enhanced to Rs. 6500/- per month w.e.f. 01.06.2001. It provided that 8.33% share of the employers thereof would be remitted into the Pension Fund and pensionable salary shall be based on such higher salary. (D) It would be relevant to point out that vide notification No. GSR 609(E) dated 22.08.2014, the proviso to Clause 11 (3) of the Pension Scheme was deleted with effect from 01.09.2014. It is therefore, most respectfully stated that the benefit of proviso, cannot be extended to any employee afresh after 01.09.2014 if he had not exercised the option earlier. (E) It is stated that under Section 17 of the 1952 Act, the appropriate Government has the power to exempt an establishment from any of the three schemes viz. (1) The Employees' Provident Funds Scheme, 1952, (2) The Employees' Deposit-Linked Insurance Scheme, 1976 and (3) The Employees' Pension Scheme, 1995, subject to conditions set out in para 27AA of the EPF Scheme, 1952. (F) It is stated that in the case in hand, the concerned establishment had applied for exemption from Provident Funds Scheme, which was granted by the appropriate Government in 1974. (G) It is stated that for such establishment who have been granted exemption u/s. 17 of the 1952 Act, the judgment of Hon'ble Supreme Court in CA Nos. 10013-10014/2016 cannot be made applicable as the contribution under the Provident Fund does not remain with the Central Board of Trustees, EPFO, which the Hon'ble Supreme Court had considered while deciding the said case observing that "All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefitted some of the employees. .........". It is most respectfully stated that in case of exempted establishment, it would not be a case of adjustment of accounts as the contribution is deposited with the PF Trust of the exempted establishment and not with the EPFO. The appellant employees in the case of R.C. Gupta before the Hon'ble Supreme Court were from unexempted establishment i.e. an establishment making PF contribution in the statutory Provident Fund managed by EPFO. The employers contribution of 12% under the Act in respect of the said employees was on actual salary and not on the statutory ceiling limit of either Rupees 5000/- or 6500/-. Exercise of option under Para 26(6) of the EPF Scheme, 1952 is a precursor to exercise of option under proviso to clause 11(3) of the Pension Scheme. The appellant employee in the aforesaid case had exercised option under para 26(6) of the EPF Scheme and contribution on full salary was received in the Statutory Provident Fund." ;