Kerala High Court Held that pension is deferred salary, akin to property under Article 300A of the Constitution of India. The right to pension is a constitutional right.
Petitioners are retired employees of the Kerala Books and Publications Society. Employees Pension Scheme was made applicable, after it was launched in the year 1995. While so, the labour unions demanded that the provisions of the Kerala Service Rules should be made applicable to the employees of the society, as regard their salary and pension. The Government referred the dispute to the Labour Court and an award was passed on 15.03.2005, directing the management of the Society to consider the demand for making the Kerala Service Rules applicable to the workers of KPBS or to convert KPBS as a Government-run-printing Unit under the Education Department, and to take appropriate decision within four months.
An employee will become entitled for pension from the next day of his retirement. There is no provision, enabling the employer to pay any amount lesser than what is legitimately due to the pensioner.
Held that pension is deferred salary, akin to property under Article 300A. The right to pension, if not a fundamental right, is definitely a constitutional right. A retired employee cannot be deprived of this right, save by authority of law.
In the instant case, I have no doubt that, having formulated the pension regulations and having stopped payment of contribution to the EPF pension fund, the society cannot wriggle out of its responsibility by pleading paucity of funds. It is for the society to stimulate the required funds, either from its profit or revenue. The dispute with the EPF Organisation and the delay in receiving back the EPF contribution, are not acceptable as an excuse for non-payment of eligible pension to the retired employees.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
Petitioners are retired employees of the Kerala Books and Publications Society (KBPS). The KBPS is a Society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955, wholly owned by the Government of Kerala. The main object of the Society is to print and supply textbooks to the Education Department, its allied institutions and other prescribed authorities for the advancement of general and technical education and reading habits among the general public. The society’s employees were brought under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, from 01.04.1981. The Employees Pension Scheme was also made applicable, after it was launched in the year 1995. While so, the labour unions demanded that the provisions of the Kerala Service Rules should be made applicable to the employees of the Society, as regards their salary and pension. The Government referred the dispute to the Labour Court and an award was passed on 15.03.2005, directing the management of the Society to consider the demand for making the Kerala Service Rules applicable to the workers of KPBS or to convert KPBS as a Government-run-printing Unit under the Education Department, and to take appropriate decision within four months. This resulted in the KPBS appointing a two-men expert Committee for studying and reporting the possibility of implementing a pension scheme for the employees of the Society. Accordingly, the Committee submitted a report, suggesting service based pension under KSR Part III with budgetary support from the Government. After discussing the suggestion in detail, the Government issued G.O. (MS) No.66/11/G.Edn dated 18.05.2011, permitting the Society to give effect to a contributory pension scheme and family pension scheme. Alleging delay on the part of the Society in implementing the Order, W.P.(C) No.19009 of 2012 was filed by two retired employees. Later, the Government issued G.O.(MS) No.194/13/H.Edn dated 18.05.2013, according sanction for implementing a self sustainable and financially viable pension scheme with effect from 01.04.2011, without any liability to the Government. In view of this development, W.P.(C) No.19009 of 2012 was disposed of directing the respondents to take appropriate steps for implementing the decision in Ext.P3 expeditiously. Thereafter, the Government issued G.O.(P) No.588/2014/H.Edn dated 23.07.2014, according sanction for publishing the Kerala Books and Publications Society Employees Contributory Pension and General Provident Fund Regulations, 2014 (‘the Pension Regulations, 2014’). Accordingly, the Pension Regulations, 2014 was notified on 14.08.2014, providing for grant of pension to the employees of the Society. In the meanwhile, the Society, as per it’s order dated 07.06.2014, decided to sanction 25% of pension to the pensioners/family pensioners with effect from June, 2014.
2. Even after publication of the Regulations, the eligible pension amount was not disbursed to the retired employees. This resulted in some of the employees filing W.P.(C) No.23055 of 2015, praying for a writ of mandamus, directing respondents 2 to 4 to disburse monthly pension to the retired employees as provided in the Pension Regulations, 2014. In that writ petition, the Society adopted the stand that it does not have the funds for disbursing pension, since the Employees Provident Fund Organisation had refused to refund the contribution remitted to its pension scheme. The Government resolved the stalemate temporarily by issuing G.O.(MS) No.62/16/H.Edn dated 01.03.2016, according sanction to the Society to raise funds for payment of pension from the profit of the KBPS as a one time measure, subject to a maximum of the amount receivable from the EPF account and subject to approval of the governing body. In view of this development, W.P.(C) No.23055 of 2015 was disposed of as per judgment dated 15.03.2016.
3. W.P.(C) Nos.19570 of 2016, 10438 of 2020 and 29160 of 2020 are filed for a declaration that the petitioners are entitled to get full pension with effect from the date of their retirement, based on the Government orders and in accordance with the Pension Regulations, 2014. W.P.(C) Nos.11306 of 2015 and 22445 of 2017 are filed by employees in service, seeking to quash the Government order notifying the Pension Regulations, 2014 and for a declaration that the petitioners therein are entitled to continue as members of Employees Provident Fund Scheme, the Employees Pension Scheme and the Employees Deposit Linked Insurance Scheme under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. Contempt of Court Case No.1719 of 2021 is filed by one of the petitioners in W.P.(C) No.19009 of 2012, alleging non-compliance with the directions contained in the judgment in that writ petition.
4. Heard Advocates Kaleeswaram Raj and T.M.Raman Kartha appearing for the retired employees, Advs.P.Ramakrishan and Sherry J.Thomas for the existing employees, Latha Anand for the KBPS, Government Pleader, V.Venugopal for the State and S.Prasanth for the Employees Provident Fund Organisation.
5. Learned Counsel appearing for the retired employees contended that the Pension Regulations, 2014 was issued after due consideration of the recommendations made by the two-men Committee at various levels. While disposing of W.P.(C) No.19009 of 2012, this Court had noted that the Government had sanctioned a pension scheme as per G.O.(MS) No.194/13/H.Edn dated 18.05.2013 subject to the conditions therein. It is contended that as per the conditions in the Government order and Regulation 8(3) of the Pension Regulations, 2014, the Society is bound to discharge full pension to the petitioners by utilising the fund/profit obtained by the Society. It is submitted that the Society has been running on profit for many years, as would be evident from a reading of the report submitted by the two-men Committee. As such, the non-transfer of the employer’s share from the EPF account to the pension fund constituted as per the Pension Regulations, 2014, cannot stand in the way of disbursement of full pension. Adv.Kaleeswaram Raj contended that disbursement of pension to retired employees is a social security measure and a reward for their blemishless service. Further, the right to receive pension is a fundamental right, and the pension has even been recognised as property under Article 300A of the Constitution of India. In support of the contention, learned Counsel relied on the decision in D.S Nakara and others v. Union of India [(1983) 1 SCC 3005] and Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd [(1984) 3 SCC 369]. It is contended that, pension no longer being a bounty to be disbursed at the whims and fancies of the employer, it is for the Society to find out ways and means for disbursing pension, rather than putting up a lame excuse that the corpus for payment can be created only on the remittances made to the EPF fund being refunded.
6. Adv. P. Ramakrishnan and Sherry J Thomas appearing for the existing employees made the following submissions;
The employees of the KBPS are covered under the EPF and MP Act, 1952. All the employees had been contributing towards the Employees Provident Fund. The corpus for the fund under the Pension Regulations, 2014 is created, to a large extent, by utilising the amount to be refunded by the EPF organisation. However, the EPF organisation has refused to transfer the fund in the absence of any exemption under Section 17 of the EPF and MP Act. This had resulted in delay in settling the pensionary benefits of the employees who had retired from service during the period 2011-2016. Clause 8(1)(a)(2) of the Pension Regulations, 2014 requires the society to contribute 3% of its profit earned each year to the fund. Considering the delay and disbursement of the pensionary benefits, the Government had issued G.O.(MS) No.62/16/H.Edn dated 01.03.2016 according sanction for raising the required amount from the profit of the Society as a one time measure. Based on the Government order, the society appropriated the entire amount available in its pension fund for paying retirement benefits to 106 employees who had already retired between 31.05.2011 and 28.02.2017, leaving very little amount in balance to meet the future commitments. The EPF Act is more beneficial to the employees than the Pension Regulations, 2014. Under the EPF pension scheme, payment of pension is assured while under the Pension Regulations, 2014, it is only a remote possibility. In any event, unless exemption is granted under Section 17 of the EPF Act, the conduct of pension schemes under the Pension Regulations, 2014, is illegal. Hence, the petitioners do not want to be shifted from the EPF Pension Scheme to the Scheme under the Pension Regulations, 2014.
7. Learned Counsel appearing for the Society made the following submissions;
The Government had sanctioned permission for formulating a pension scheme. The Pension Regulations, 2014 was accordingly formulated under the belief that the contribution in the Employees Provident Fund will be returned. Unfortunately, in spite of repeated requests, the Regional Provident Fund Commissioner refused to return the amount. On the other hand, it was informed that the EPFO is initiating proceedings under Section 7A of EPF and MP Act to recover the defaulted payments due towards the EPF account. The stand taken by the EPF is that the State Government has no authority to exclude any establishment from the purview of the EPF Act and such power is exclusively vested with the Central Government under Section 16(2). As the major contribution to the corpus of the pension fund is thus denied, the Society is not in a position to pay a full pension in accordance with the Regulations. In spite of this adverse financial situation, 26% of the basic pension was disbursed to the retired employees from December, 2014 onwards and 32% of the basic pension, from July, 2016. Adding to the woes of the society, the EPF organisation issued notices threatening action under Section 7Q and 14B of the EPF and MP Act and initiated steps for recovery of the amounts from the Society’s Bank accounts. Therefore, the Society filed an appeal before the Central Industrial Tribunal-cum-Labour Court and the Tribunal has issued a conditional stay order subject to the Society remitting 20% of the assessed dues. The governing body of the Society and the Pension Board have opined that the pension scheme needs further clarity and consensus of all stakeholders. While the retired employees are seeking pension in accordance with the Pension Regulations, 2014, majority of the existing employees want to continue under the EPF scheme. In order to resolve the issue, the Government has issued G.O.(MS) No.417/2019/H.Edn. dated 24.12.2019, directing to pay pension to the retired employees as per the Pension Regulations, 2014 and to continue the existing employees under the EPF Pension Scheme. Accordingly, the Society has remitted an amount of Rs.3.80 Crores towards arrears of contribution of the existing employees. To find a permanent solution to the issue, an external pension committee has been entrusted with the work of preparing a detailed report regarding all aspects related to the pension scheme for the existing and retired employees of the society. The submission that the society is running under huge profit is factually incorrect and in any event, under the prevailing circumstances, the revenue generated by the society cannot be utilised for payment of pension to retired employees. Therefore, full pension can be paid only if the contribution already made is refunded by the Employees Provident Fund Organisation or the huge amounts due from the Government, for the works executed by the Society, are paid at the earliest.
8. The Standing Counsel for the EPF Organisation submitted that in the beginning of 2014, the Society had sought exemption from the provisions of the Employees Pension Scheme, 1995 and submitted a letter informing that an alternative provident fund and pension scheme had been implemented after notification in the official gazette. Exemption from the employees pension scheme can be granted only in accordance with Section 17(1C) of the EPF and MP Act, r/w paragraph 39 of the Employees Pension Scheme 1995. The provision for exclusion from the purview of the Act is laid down in Section 16(2), as per which the competent authority is the Central Government. The Government of Kerala is hence not empowered to grant exclusion. The Society having not been exempted or excluded from the provisions of the Act, the implementation of the Pension Regulations, 2014 is of no avail and the Society is bound to remit contribution of the employees. Having failed to do so, proceedings having initiated for recovery of the dues under Sections 7A and 7Q of the Act.
9. The following facts are not in dispute. The Society, after due discussion with the Government, had decided to constitute a two-member committee for conducting enquiry and submitting report regarding the possibility of forming a separate pension fund for its employees. The decision in that regard was taken in the wake of demand from the labour unions, pointing out the huge disparity in salary and pension between Government employees and employees of the Society, despite KBPS being fully owned by the Government. The committee had suggested payment of pension in the manner provided under Part III of KSR. This aspect was also discussed and deliberated upon before the Government granted permission to enforce the Pension Regulations, 2014. The Government order in this regard was duly considered and accepted by this Court as evidenced by the judgment in W.P.(C) No.19009 of 2012.
10. In this context, it is essential to consider some of the salient features of the Pension Regulations, 2014 extracted hereunder;
The pension fund is to be constituted as per Clause 6 consisting of;
“6. Constitution of the pension fund.
(1) There shall be constituted a fund called “The Kerala Books and Publications Society Employees Contributory Pension Fund.” The said Fund shall consist of. (i) all amounts received from the Employees’ Provident Fund Commissioner representing the contributions made by the society to the Employees’ Provident Fund together with interest thereon in respect of employees who elect to come over to the pension scheme;
(ii) the contributions payable by the employees and the society;
(iii) the income of the fund from deposits, investments and the like; (iv) other sums that may be transferred to the fund with the approval of the Board;
(2) The pension fund shall vest in the society and be administered by the Board.”
The contribution to the Pension Fund are dealt with Clause 8 and the contextually relevant portion reads as under;
“8. Contribution to the Pension Fund.
(1) Employer’s share of the contributions made already to the E.P.F Fund and Pension Fund under the Employees Provident Fund/ Pension Fund, together with interest thereon as on the date of transfer to the Society’s Fund.
(i) An amount equal to 12% of emoluments (Basic Pay +DA) of all employees who are in service will be paid by the employer towards employer’s contribution to the pension scheme to be credited to the Pension Fund created for the purpose.
(ii) Employer’s annual contribution @3% of the profit earned by the society each year under the provisions of Rule 10 (13) (b) of KBPS Rules and Regulations. This amount has to be met by the society from Its own fund.
(iii) [email protected]% of Basic pay and DA by the employees entering into service on or after 1st April, 2011.
(b) Pension including Family Pension payable will be under the general provisions of the guidelines formulated by the society as per annexure A’ forming part of the regulations as amended or modified by the society or the Government from time to time.
(c) For those who enter into service on or after 1st April, 2013, the ‘National Pension Scheme as admissible to Government Employees shall be made applicable and contribution will be made to the KBPS Pension Fund.
(2) The contributions to be credited to the accounts of the pension scheme as well as to the provident fund scheme should initially be credited to two separate savings bank accounts to be opened in scheduled banks/treasury as is followed in the case of other transactions of the society now. The funds credited in the Savings Bank accounts of the Bank Treasury over and above the normal annual requirements reasonably expected for payment of pension and provident fund disbursements should be invested in Fixed Deposits / Bonds/ Debentures/Securities or Mutual Funds which ensure reasonable returns, after due consideration by the board taking into account the risk attached to the Investments.
(3) Funds some other way (Includes employer’s share, employer’s annual contribution @3% of the profit earned by the Society, employees share) shall be formed, if necessary, to meet the pension liabilities of those who retired or are retiring from service on or after 1st April, 2011 until transfer credit of the accounts from the Employees Provident Fund/Pension Funds.”
In the handbook of pensionary benefits/guidelines appended to the Regulations, it is stated as follows;
“2. Claim to a pension is a right to which an officer is entitled in recognition of the satisfactory discharge of the duties and responsibilities entrusted to him while in service. It is an obligatory monthly payment made from the day he retires and it is not a reward. Continued payment of Pension and Family Pension depends on future good conduct of the pensioner. No Pension Family pension will be paid if management staff/work men resigns or is dismissed or removed from service. If a pensioner is convicted of a serious crime, pension will be withheld.”
Going by the Regulations, an employee will become entitled for pension from the next day of his retirement. There is no provision, enabling the employer to pay any amount lesser than what is legitimately due to the pensioner. It may be true that a significant portion of the corpus of the pension fund consists of the amount to be refunded by the EPF Organisation. The fact that no amount has so far been repaid is also not disputed. Even then, the question is whether the retired employees can be denied pension on that ground. In this regard, the decisions cited by Adv.Kaleeswaram Raj assumes relevance.
11. In D.S.Nakara (supra), after detailed consideration of this aspect, the Apex Court held as under;
“31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.
12. In Sudhir Chandra Sarkar(supra), it was reiterated that pension is a right, the payment of which does not depend upon the discretion of the employer. The contextually relevant portion of the judgment is extracted hereunder;
“18. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for loyal service rendered depending upon the sweet will or grace of the employer not claimable as a right and therefore, no right to pension can be enforced through court. This view held the field and a suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well-settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer. Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : AIR 1971 SC 1409 : 1971 Supp SCR 634 : (1971) 1 LLJ 557] , State of Punjab v. Iqbal Singh [(1976) 2 SCC 1 : 1976 SCC (L&S) 172 : AIR 1976 SC 667 : (1976) 3 SCR 360] and D.S. Nakara v. Union of India [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165 : (1983) UPSC 263 : (1983) 1 LLJ 104] . If pension which is the retiral benefit as a measure of social security can be recovered through civil suit, we see no justification in treating gratuity on a different footing.
Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par.”
13. It is pertinent to note that in State of Jharkhand v. Jitendra Kumar Srivastava [(2013) 12 SCC 210], the Apex Court declared the right to receive pension as akin to a right in property. The contextually relevant portion of that judgment reads as under;
“The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:
300-A.Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that the attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”
The legal position emanating from the above precedents is that, pension is no longer a bounty to be paid at the whims and fancies of the employer. On the other hand, pension is deferred salary, akin to property under Article 300A. The right to pension, if not a fundamental right, is definitely a constitutional right. A retired employee cannot be deprived of this right, save by authority of law. Applying the above principles to the instant case, I have no doubt that, having formulated the pension regulations and having stopped payment of contribution to the EPF pension fund, the society cannot wriggle out of its responsibility by pleading paucity of funds. It is for the society to stimulate the required funds, either from its profit or revenue. The dispute with the EPF Organisation and the delay in receiving back the EPF contribution, are not acceptable as an excuse for non-payment of eligible pension to the retired employees. Based on the above discussion, I find the petitioners in W.P.(C) Nos.19570 of 2016, 10438 of 2020 and 29160 of 2020 to be entitled for the relief sought. As far as the petitioners in W.P.(C) Nos.11306 of 2015 and 22445 of 2017 are concerned, their grievance stands substantially redressed by the issuance of G.O.No.417/2019/H.Edn dated 24.12.2019, which stipulates that the existing regular employees are exempted from the Pension Regulations, 2014 and reinstated to the EPF pension scheme.
The writ petitions are therefore disposed of as under;
(i) The employees superannuated/retired before 24.12.2019 are declared to be entitled for pension in accordance with the Pension Regulations of 2014. They shall be paid full pension with effect from 01.10.2022.
(ii) The arrears of pension due to the above group of employees shall be paid in four stages, viz; 25% of the arrears on or before 01.01.2023, and 25% each on or before 01.04.2023, 01.07.2023 and 01.10.2023.
(iii) The employees in service as on 24.12.2019, like the petitioners in W.P.(C) Nos.11306 of 2015 and 22445 of 2017, shall be governed by the EPF Pension Scheme, as provided in G.O.(MS) No.417/2019 dated 24.12.2019 or the National Pension Scheme, as the case may be.
(iv) The funds necessary for payment of pension and arrears shall be drawn/raised from the society’s profit and revenue.
(v) The Government shall take earnest and sincere efforts to pay the amounts due to the Society for the works executed.
(vi) In view of the directions above, COC No.1719 of 2021 is closed.