Copy of the reply filed by EPFO against the Contempt

Petition no. 1.81,6-L8L7 of 2OL7 filed by HPTDC

Employees Union in Civil Appeal no. 10013-10014 of
2OLG arising out of SCP (C) nos. 33032-3303 (RC Gupta
case) in the Supreme Court of India.

lf anyone has any relevant/solid points/citations of

Apex Court for incorporation in the Rejoinder to be filed
by the Petitioners against the EPFO's reply, please send
the same to me by email at PKKOHLI@GMAIL.COM for
onward forwarding to the concerned.

Thanks

Parveen Kohli
9810306699
 COURT OF INDIA
IN THE HON'BLE SUPREME
.
CIVIL ORIGINAL JURISDICTION
2Qr7
PEIlnoN (CIVIL) NO' 1816-17 OF
CoNTEMPT
IN
2016
CIVIL APPEAL NO,
10013'10014 OF

Nos' 33032-33033
of 2015)
(Arising out of SLP(c)

& Anr'
,,. Petitioners
HPTDC EmPloYees Union

Versus

.., Contemnors/
Dr. V.P. JoY & others
ResPondents

The ResPondents above-named '

Most resPecttu]tV states as under:

At the outset it is'submitted that the Regional

office shimla
1.
has already made and is making all efforts to implement the

judgment and oider passed by this Hon'ble Court on

04,10.2016 in Civil Appeal No. 10013-14 of 2016.

2. It is stated that the action taken towards implementation of

the judgment and order dated 04.10.2016 of this Hon,ble

Court have been as under:

z.r, ThematterWasp|acedforconsiderationandopinionbefore
of Head Office in the rneeting held on
senior officers
with the
23.11.2016 wherein it was decided to comply
Court and place the matter before
orders of the Hon'ble

PensionandEDLI,ImplementationCommittee(PEIC),Copy

oftheminutesofthemeetingdated?3.1t'20L6isfiled

herewith as ANNEXURE R-1'

z'2,On0B.l2.20l6,thematterWaSptacedbeforePensionand

EDLI Implementation committee

(PEIG) in its meeting' It is

stated' that after detailed discussion, Pension and EDLI

Implementation Committee (PEIC) recommended to place it

before Central Board of Trustees (CBT). Copy of the Pension

and EDLI .Implementation Committee (PEIC) meeting

minutes dated 08.12.2016 is filed herewith as ANNEXURE

R-2,

2.3. It is stated.that on 19.12.2016, the matter was placed as a

separate agenda in the 215th Central Board 'l-rustees

of
(CBT) meeting, The CBT approved the proposal contained in

the agenda with recommendation to the Government for

impleqentation. copy of the central Board of Trustees

(cBT) meeting minutes dated 19,12.2016
is filed herewith
' as ANNEXURE R-3.
 ?l
1
2.4. It is 'stated that the proposar for imprementing
the order
dated 04.10.2016 passed by this Hon,ble
Court, by way of
issuing administrative instructions to fierd
offices for
compliance as approved by central Board of Trustees
(cBT), was forwarcjed to Ministry of
Labour & Emproyment
vide UO. Note pension-I /L2/33/E1S Amendement/96lVol.II

. 1839 dated 10.01 ,zoL7. copy of the communication dated

05.01.20t7 is filed herewith as
W.
2'5' It is stated that the Ministry of Labour
and Emproyment,
(MOL&E) vide refter dated
16.03.2017 conveyed its approval
bo ailow,members of the Emproyees, pension scheme,
1gg5
who had contributed on higher
wages exceeding the
statutory wage ceiling of t. 650 0l- in the provident Fund to
divert 9.330/o of the safary exceeding
{ .OSOOI_ to the
pension Fund
with up to date interest as
decrared under EpF
scheme, tg52 from time to time
to get the benefit of
pension on higher salary on
receipt of joint option
of the
Emptoyer and Employee. Copy
of the lefter dated
16.03,2017 is filed herewith
as ANNEXURE R-S.
2'6' It is stated, that the officer in-charge
" of at fired offices were
irected vide letter No. pension-
IltZl33lEpS Amendment/
96/Vor.II /34007 dated
23.03.2017 to take necessary action
in accordance with the
order of this Hon,bre
court, arso as
 per approval of the Government, the provisions of the EPF

& MP Act, 1952 and Schemes framed there under' Copy of

the letter dated 23.03,2017 is filed as ANNEXURE 8-6'

7.7. It is stated that the Regional Office Shimla is making all

efforts to implement the judgment or order Passed by this

Hon'ble,Court on 04.10,2016. It is most respectfully

submitted that the work of revising the Pension of all

concerned emplo ary{ Jinue_-c0ntumlLq,"Tb$

Employees Pension Scheme, 1995 was implemented since

November 1995 and Employer Corporation was contributing

to Pension Fund at statutory limit though Employer

corporation was contributing @ 12% of full salary to EpF.

Regional office shimla has to work out the contribution on

full salar,/ from November 1995 to date of retirement of the

employees and divert the excess amount in provident Fund

account to pension Fund with interest. Most of the

employees of the petitioner corporation have retired
long

back and provident Fund amount stands withdrawn

and
pension on statutory rimit stands rereased. It is most
respectfulry submitted that the Regionar
. office shimra has
to first caicurate the amount to be
.,,",,,-"....-..--**- recovered and
communicate concerned emproyees
to deposit the required
amount through Demand
Draft. rt i;"ro,uO tnai"iiu,.
 .$

ji.

depositing the required amount by retired employee(s),

the
Pension can be revised.

2.8. It is stated that besides HprDC, there are many other

similar estbblishments whose employers are/were

contributing on full salary and eligible for revision of pension

and cases of retired employees of these estabtishments are

./ also being revised; Therefore, the work. has become

unexpectedly huge and Regional office, shimla has, as on

date, revised pension of about 60 retired emptoyees of

Petitioner corporation and 40 cases are being processed for

revision. Further 230 employees have been communicated

of the amount to be deposited out of total 400 (approx)

employees, It is most respectfully subrnitted that the
Regional office shimla is rnaking all efforts to implement the

judgment and order of this Hon,ble Court.

2.9. It is stated that in cases where member is sUll in service the

amount is being diverted on receipt of option and in cases

where'the employee has retired and withdrawn their pF, in

those cases, they are being asked to deposit the differential

amount (the differential between the amount calculated

@8.33.% of the actual salary and the amount already

contributed by the employer @ 8.33% on the ceiling limit
of
T.65001-) on actual salary with interest.
 0

without in any
to the foregoing and
Wit;hout prejudice
or contentions
any of the submissions
maRner admitting ,- ^^A
Petition' save and
contempt
;.;t;*t ot''t'oners in the
admitted herein' the
except which are
specifically
under:
their para'-wise reply as
tendering
RespondenF are
1 of the Petition'
it is
of paragraph
3.1, ln reply to the contents
that the Respondentslcontemnors
most respec*ully stated
any acts or omissions
of willful
have not indulged in

disobedienceofthejudgmentandorderdated0l'10'2015

passedbythisHon,b|eCourtinCivilAppea|N0s.10013.14

of2016.ItisstatedthattheRespondentsaretakinga|l

steps forward in implementing

the said order of this Hon'ble

Court. It is niost respectfglly stated that lot of work needs

to be' done before finally passing the benefits to the

judgment and order of

concerned persons in terms of the

this Hon'ble'Gourt. It is most respectfully submitted that the

' Respondents have set out the steps taken towards

implementation of the judgment and order of this Hon'ble

Court in the preliminary submissions made herein above. It

is most respectfully submitted that the Respondents have

high regards for the law. The Respondents however, tender

th_eir ,unco.ttf.,9l*d unquatified apolog is

 l{onble Court deerns the steps taken by them as

contemptuous, It is stated that the Respondents assures

this Hon'ble Court that they are taking all necessary steps to

comply with the direetions in the judgment and order dated

04.10.2016 passed by this Hon'ble Court. It is stated tha[ it

is only bbcause of extensive work to be carried out before

giving.final shape of implementation of the directions of this

Hon'ble Court, that it is taking time. It is reiterated that in

no manner, the Respondents have proceeded in a manner

! be in derogation to the directions of this Hon'ble Court. It

is therefore, most respectfully submitted that the present

petition merits to be rejected and dismissed.

3,2, In re.ply to the contents of paragraph z of the petition, it is

most r.espectfully stated that the ground reality is not as

easy ds has been portrayed by the petitioners. It is stated

that in cases where members are stiil in seruice, the amount

is being'diverted on receipt of option and in cases where

the employees have retired and withdrawn their provident

Fund, they are being asked to deposit the differential

amount on actual salary, being the difference in the amount

calculated @8.33% of the actual salary and the

amount
contributed by the employer @8.33% on
the ceiling limit of
{.6,500/-,,and the interest. It is most respectfuily
submitted
 t
that it is.Lo be,appreciated that in case Lhe contribution was

paid in the year 199s, it would have earned interest,

which

interest, the EPF organisation, is entiUed to recover from

the beneficiaries. It has to be appreciated that the EpF

Organisation 'is not a profit making organisation but the

funds of the employees are kept in trust and returned
to the
employees. onry. It is further to be appreciated that any

deficit in the funds due to a wrong calculation

would cause
c.ncern for the emproyees in future.
It is stated that the
entire corpus kept with the
organisation, is for the
benefit
of the. emproyees and by advancing
extra benefits to a
group
'of emproyees may cause burden in futuie
.o rhe
employees. It is most respectfully submitted
that the
.rganisation wourd not
in"durge into benefiting
a group of
" emproyees at the cost
of others. It is further
stated that the
petitioners are getting
benefits retrospectivery
for which the
calculation has to
be made in similar
manner.
3'3' That the cor\tents
of paragraphs 3 and 4 of the peution
are
 q

dated
number HP/SML/Coordination/Ro/HP/21008-21008A

06,12,2016, 09,12.2016, 06.02,2017

continually in
stated that the Regional Office shimla was
shimla with
touch with Head Office to guide Regional office,

by Hon'ble
regard to implementation of judgment delivered

supreme court Dated 04.10.2016. Copies of the letters

dated 06,12,2016, 09,12.2016, 06.02.2av and 09.03.2017

are filed herewith as ANNEXURE R-7, ANNEXURE R-8,

ANNEXURE R.9 ANd ANNEXURE R.10.

3.5. The contenls of paragraph 7 of the petition are matter of

record and need no comment. However, anything contrary

to the,record is denied.

3,6. The contents of paragraph B of the petition are incorrect,

false, baseless and are. denied, It is denied that the

respondent treated the matter in a casual manner. It is
stated that the promptness of the respondents is evident

from the events following the receipt of the aforesaid order

dated 04.10,2016 which have been detailed in the

, preliminary submission hereinabove,

3.7. The contents of paragraphs 9 to 12 are matters of record

and need no comment. However, anything contrary
to the
,u.orO is denied.
 to

3,8. The contents of paragraph t3 of the petition are incorrect,

misleading a1d are denied. It is stated that the Regional

Office Shimla wrote a letter dated 19.04.2017 to employer

eorporation HPTDC to submit joint option of Employee and

Employer under deleted Proviso to Para-11(3) of the

Employees Pension Scheme -1995 from the date, wage

increased above the wage ceiling and also to submit revised

return in shape of 34/6A from Nov, 1995 to date or up to

the date of retirement so that excess credited amount in

Provident Fund account number 1 could be diverted to

Pension Fund along with interest.

3.9. The contents of paragraph 14 of

. the petition are matter of

record'and need no comment. However,

anything contrary

to the record is denied.

3'10' The contents of paragraph 15

cif the petition are incorrect,

misreadirlg and are denied. The contents

of the paragraph
under rgpry are admitted to the extent
that emproyer
corporation submitted 3A up It is

stated that as soon as the EpFo, shimra

received first rist of

option and' Form 3A up to the year 2011 -20L2,

it started
.uKng necessary actiol.by carcurating
the amount required
to O. O.po't.U O, *u retired .;il;;, ,;,.0
revising pension. It is stated that the return in Form
3A was
 lil

required by Regional Offlrce shimla ts calculate the due

amount and also verify whether the calculation is correct. It
is stated that the Form 3A is a monthly return under

Employees. Provident Fund Scheme 1952 showing the

details of contribution in respect of each subscriber, to be

submitbd by the Employer, to RpFC along with Form 6A,

the Annual contribution return, in manual or electronic form,

The 'retention period of Form 3A is 5 years as per the

' manuar of accounting procedure, For revision of pension

case Form 3A from 16.11.1995 0r

the date from which the
sarary increased above the statutory
limit is required to
determine the exact amount
to be payabre under Eps 1gg5
for revision of the pension case,
It is stated that it is for the
aforesaid reason, the Regionar
office shimra requested
the
emproyer to submit Form
3A. it would not be out of prace
to
mention that in paragraph
1 of the petition, the petitioners

have a*eged willfur disobedience

of the order dated
o+,tO.zotb by the Respondents,
whereas in the paragraph
un.er repry, they are admitting
that seeking of returns
was
delaying the release of pension
in terms of the order
of this
Hon,ble Court.
 IL
that although since 2012 the electronic submission of 3A

became compulsory, but the employer has to keep one hard

copy in record for inspection by the competent authority. It

is most respectfully stated that as the calculations were to

,..o..' be worked out for almost 20 years the co - operation of the

establishment'was required to cross verify the amount to be

diverted.

3.12. In reply to the contents of paragraph 17 of the petition, it is

most respectfully stated that the Regional office, shimla

wrote
.letters
to the retired employees for depositing

difference amount between the amount calculated

@ g,33vo

of the actual salary and the amount already contributed

by

the employer towards pension Fund @ g.33%

of the ceiling
rimit of {. 6500/- . The differentiar amount and interest
is

required from those emproyees who have

retired rong back

and ail dues paid and pension as computed

on ceirinq

amount released,

3.13, In repry to the contents of paragraph 1g

of the peution, it is

most respectfully.stated that the MOL&E vide

letter dated
16.03.2017 conveyed its approval to allow
members of the

Emproyees' pension scheme, 1gg5 who

had contributed on
, higher exceeding the statutory wage
,wages ceiling of (.
6500/- in'the provident Fund to
divert 8.330/o of the sarary
 lr)
t)
I

exceeding (,6500/- 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. The

Resp.ondents draws attention to Para 11 of the judgment

and order dated 04,10.2016, where this Hon'ble Court

observed as under :-

"At best what the Provident Fund Commissioner

could do and which we permit him to do under
thd present order is to seek a return of all such
qmounts that the concerned employee may have
taken or withdrawn from their providenf Fund
Account before granting them the benefit 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 qf this order will be granted to
the said
employees."

It is qost respectfuily submitted that the return of

ail such
amount wiil incrude the differentiar provident Fund

contribution between the amount calculated

@ of 8.33% of
the actual salary & the amount calculated
. @ of g.330/o on the

ceiring of {.6500/- with up to date interest

as decrared under
the EIO Scheme, 1g5Z from time to Ume.
It is most
respectfuily stated that had the provident
Fund contribution
not been withdrawn by the retired
emproyee, it wourd have
earned the interest as .equivarent
to the interest decrared
under'the EpF scheme, 1g52
from time to time. In
a simirar
 isi:s*

r&
tf
matter, the Hon,ble
High Court of Kerala
in Wp(C) 31525 of
2013 where the petitioners
were contributing to
their
Provident Fund Account
on actuar sarary but the
contribution
;:,
in pens.ion fund was
rimited to ceiting arnount
of (.6500, herd
that the emproyers contribution
proportionate to sarary
in
excess to {.q500 in their provident
Fund Account ought to
have been credited to pension
scheme. It was further herd
rnat wifh respect to the retired
emproyees who had drawn
their retriar benefits by way
of provident Fund, proportionate

ount as also
t
unts have to

!-?- -:lt Provident Jynd -prc?in;; ;;

important to note that pension fund
is a poor Fund
and
receipt of contribution on Higher
wages for back period
without receipt of up to
date interest as declared
under Ure
EpF scheme, 1952 from
time to time wi, mean
the ross on
this account to the fund
wit have to be borne by
the
presentfy contribrjting
members to the fund. It is most
respectFulry stated that
a corotary can be drawn
from reading
the crause '6(c) with para 7(2) & para
r7(2) of the Ep'
scheme 1gg5 which provides
that an.emproyee who
ceased
to be a member of the Emproyees, pension
scheme 1971
between 01.04.1gg3
& 15.11.1gg5 sha, have
the option to
 \s
join the schenre by returning the amount
of withdrawal
benefit received together wiLh interest @ 8.5% per
annum

from the date of payment of such withdrawal benefit & date

,' ol' exercise

,of
the option to receive monthly pension as per

the provisions of Employees, pension scheme, 1995, It is

,
most consistently stated that the establishment was informed

that there is no such provision oF paying interest on pension

arrears.

3.14. The contents of paragraph 19 oi the petition are baseless,

incorrect and'are denied. It is stated that the Head

office
repried to the RpFC retter dated 27,a7,20t7
vide letter no,
pension-rr(A&c)77ls
Lp No. 33 03 3/2 0 5/s
1 h i m ra I z0t7I Lt67 7
dated 05'09.2017. A copy of the lefter
dated 05.09.2017 is
f'ed herewith as ANNEXURE R-11,
It is stated that the
Emproyees pension scheme, 1gg5
does not have any
provision for payment of any interest on the pension

arrears.. This has arso been crarified

by Head office vide
letter dated 05,09.2017.

.3,15. The contents of paragraph

20 of the petition are incorrect,

farse, baseress and are denied.

It is most respectfury
submitted that there is no disobedience
by the Respondents
to the order of this Hon'bre court.
It is stated that the
revision of pension is
comprex, huge and
time consuming
 1t
IS
task- The fecerds afe to be eheckedlverrfied som
ilre year
a$ haek as Novennber rgss. the date tl.le Fension
schernE
was impler*ented tu date of refirernsfis Hnd old pension
files
have to be retrfevd frorn reeord fo*'eancellatien of o{d ppo

Bffis rgvislng the pension and alluttinE new ppo numhnr,

Any ffiisrfike in cafeulpt$sn rnay leed [s remvering of exces$

payment. I-{ence it has to be scrutinlxed rninute}y_ It is

stat€d that fhe RpFc shirnla has revlsed the pension in

respeet of r0{ emp}oyees up to 2fi.12,2s17 as per dera*ls

befowi- "

i t
J.
J
I
I
a

I
l
I
J
I
I
I

r{)ir4 /u"lt{J

66518.0s

ln Hllli'n high*r sirts & rfin* *rirh

;l*ff'ilffil} Il,r',:*-n uFFr)" Amouur indicnrcd ix

r --t-
I

c$rltrilru{io
n nnd
intcr*ft
rrmifird by
{hr
Prntion

1Aft
 Page L7 to 2L irrelevant as
these contain only names of
the pensioners whose pension
has already been revised on
actual salary
 k
I
t
t
I

zz

t
l' 1

"-i '

9:
f' Tstnl eases enttled Hs t$ ts"1u"Es17= r't!4
.l

i
3-16. The conterltn uf p*raglupl'r 21 of the retitistl Bre incnrrecf,
::

fa$sn and'are #enied, lt ip dmied fhat the Rerpun#cntrs are

liab{E for the cont€mpt of court !n asking the ernployees 0o

nefund'tfie di * am*unt tswa,rds Pensisn Ftlnd witfr

' interest even thougir there is n0 d:lreetfnn in the judgnnent

" sf tl"ris Ho*1ffia kurf [o charEe interest on [he recoverahle

amount as a{leged er at a{[. It is rnosi rmpectfully stattsd

that the calculatiorrs nf pension by dlverting &,s3vo of the

salary exeeedirrg {.csnu/- to bhe Fension fur.rd with up to
date $nterest B$ deelares under the f;FF scheme, IgF? frCInl

fifns tff t$rne is as p€.the appr*val uf the M0l-eE vide letter

doted i$"fi1.?011" $t is rncst respectfully submitted that

the
bensflt to th€ Fetitlunsrs ar sirnlfarly s*tuatsd persuns
cannsE he exterded at the cnsf cf presently eentributing

rnernbers try [lre fulrd,

3.17, The con,tents oi paragraph 22 of the periHon are incorrect,

Farse, misreading and are d6nied. It is must respe$ful|y

svbmiRed thst the ernployees had withdrawn
the Frswident
Fund contribution fong back and are
seeking pnnrion on
Page 23 missing
 h+
high*r \-dnq*$ retrqspeetively, Accordlngly the contribution

payable CIft higher wase$ Ln tho pension fvnd from

llmrt of
l-S.1t.1S95 ir ttre date wFlen lfre salary crsgsed the

{.S500 has [o he rernifted wlth inler€'t, It !s atso reievant tn

on [he
note that there is ns provision to giv€ tnt€re$

arrears of pension.

petl*la'1 nre incCIrrect.

},1*. The coiltents nf paraqraph 23 of Lhe

fa}se,rnisteadlnpandaredente.d"It}sr$ostrespectfu||y
pension
stated thnt tt2e Fetiti*ness 8rB sllgible for trtgher

*niyon'werclsinqoptionlndertheqrsbAfhlleprovisOt0

Faralx(3}oft|reFFSSrhemE,lgsz.Slncetheyitave
already wilhdrown t$e omnunt lhey h*ve !o deposit the

differential arnourr[ with uptc date intere$t aF declared

under the IFF Se]rerne l$52 frum time ts tifTle. It is msst

resp*$fully submlrted thst in [errns of direct$sns af tnh

Hon'ble Ccurt in peragraph ltr of the judgrilsnt, set ouf

herein ab*ve, tt'mre is no aet nr omission on the part of tfre

Respondents t0 (st1$titu{e'crvi} cunteflnpt' a$ defined under

sectio* ? (b) sf the Contsnrpt sf Courts Act, 1g7X il10 afrer

referred tQ s$'Act'J and therefore, the ResBondents Ere not

l|*bie e$ bs purlished urtder. s*$ion n? rf ttrie Act" Thus tt ts

clear that only sn returnlng the aruor.r*ts that th€ concerreed

"
J *mpluyees rlave wr rawn ftom thelr Froviderrt Fund
il'
 Anecunt, esnSequqntia{ bcn€fit rnn he given 6s, Ber th€

orders of this l-*nR'ble e*urt.

tn the fa*Ls and rili{nlffism*ecS ruforecaid *nd !n lhc intere$t' sf

ir.*stiee* it i$ $1sst rssp*rrfutrly prsy*d tlrat tfris H*gt'blg C*urt rnay

he pteased to ditmiss tlre p*tlEinn with exernplary cost's'

File* hV;
uEui'*$Elrrs
Uated:

( Fr$sur46 fiHn*u ]
Advsnate fur the RespondentE,