EMPLOYEES PENSION (1995) CO-ORDINATION COMMITTEE
(National Organisation)
Regd. No. MH-803/15 (Na), F-33646 (N)
Affiliated to Bharat Pensioners Samaj, Reg. No. -2023 (1962-63) NEW DELHI
Regd. Office: Anil Balaji Kusare, House 21, Narkeshwari Society, Sadbhawna Nagar, Nagpur-440 027
Prakash Yence (National President) 9028232696
Prakash Pathak (National Gen. Secretary) 9822936284 ppathak25349@gmail.com
Temple Bazar, Wamanrao Lane, Sitabuldi, Nagpur-440 012.
NKss/0.302/contempt Notice/23
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NOTICE UNDER THE CONTEMPT OF COURT ACT-1971
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Shri Animesh Mishra,
Addl. Central PF Commissioner (pension), Ministry of Labour & Employment,
EPFO, Head Office,
Govt. of India,
Bhavishya Nidhi Bhavan,
14, Bhikaji Cama Place, New Delhi 110066.
NOTICE FOR THE CONTEMPT OF COURT
Dear Sir,
I, Dada Tukaram Zode, age 69 years, Occ. Retired Employee of Maharashtra State Power Generation Company Ltd. erstwhile Maharashtra State Electricity Board, R/o 57/58, Jaidurga Layout No.2, Manish Nagar, Nagpur 440037, Mob. No.9405929678, email: dadazode 1954@gmail.com and as a National Legal Advisor of Employees Pension (1995) Coordination Committee, registered number, and address as above, hereby serve you the notice as under:-
1. That, you notice issued the instructions vide Circular No.pension/2022/54877/15149 dated 29 December 2022 to your all Addl. CPFCs, Zonal Offices, all RPFCS/OICS, Regional Offices, for compliance of orders contained in Para 44(ix) read with Para 44(v) & (vi) of the Hon’ble Supreme Court judgment dated 04.11.2022 in the matter of Special Leave Petition (C) Nos. 8658-8659 of 2019.
2. That, you notice, by issuing the above-mentioned instructions, are willfully, deliberately, intentionally, purposefully, and knowingly disobeying the directions/orders of the Hon’ble Supreme Court in the said Para 44(ix) read with Para 44( v)&(vi) of the judgment mentioned hereinabove. Para 44(ix) of the judgment dated 04.11.2022 is as under :-
“44(ix) We agree with the view taken by the Division Bench in the case of R.C. Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (pre-amendment) pension scheme is concerned. The fund authorities shall implement the directives contained in the said judgment within a period of eight weeks, subject to our directions contained earlier in this paragraph.”
The Hon’ble Court, three Judges’ Bench, agreed with the views taken by the Division Bench in the case of R.C. Gupta (supra) and directed the fund authorities to implement the directives contained in the said judgment of the R.C. Gupta case within a period of 8 weeks.
3. That, for compliance with directives in the judgment of R.C. Gupta case, a Circular No. 1/12/33/EPS Amendment/96/Vol.II, dt. 23.03.2017 is already issued by the EPFO. The Circular dated 23.03.2017 was issued after the decision of senior officers of the EPFO on 23.11.2016, the decision of PEIC in its meeting held on 08.12.2016, approval of CBT on 19.12.2016 and approval of the Govt. of India, MOL&E on 27.01.2017 and vide letter dated 16.03.2017. However, EPFO issued another Circular dated 31.05.2017 discriminating the members of the scheme as exempted and nonexempted establishment employees and denying the benefits of R.C. Gupta judgment to the exempted establishment employees (exempted from Provident Fund Scheme). Now, the Hon’ble Supreme Court, after setting aside the said Circular dated 31.05.2017 by the Six High Court, set aside the same and therefore, by virtue of this order of the Hon’ble Supreme Court dated 04.11.2022 the employees of exempted establishments are entitled to the benefit of R.C. Gupta as per the
Circular dated 23.03.2017. The EPFO has already implemented the Circular dated 23.03.2017 and revised pension of 24672 pensioners of nonexempted establishments employees. However, you notice vide your instructions, are not allowing the benefits as per Circular dated 23.03.2017 to the employees of exempted establishments and disobeying the order of the Hon’ble Supreme Court dated 04.11.2022 vide Para 38 of the judgment. Earlier, the exempted establishment employees were excluded by Circular dated 31.05.2017 and now they are being excluded by your instructions vide Circular dated 29.12.2022 creating a new artificial cut-off date i.e. the date of retirement which is neither as per any provision of law, any order of the Hon’ble Supreme Court and moreover, which is negated by the Hon’ble Supreme Court.
4. That, as per the directions of the Hon’ble Supreme Court in para 44(vi) of the judgment dated 04.11.2022, the employees retired prior to 01.09.2014 and exercised the option, will be covered by the provisions of proviso to para 11(3) of the Scheme. As per para 44(v) of the judgment, the employees who have not exercised the option will not be entitled to the benefits of the present judgment as they are already covered by the judgment in the R.C. Gupta case and the Fund authorities will have to implement the directives contained in the judgment of R.C. Gupta case in this regard. However, you notice, are not willfully obeying the directives of the Hon’ble Supreme Court in the Order dated 04.11.2022 and committing contempt of Court under Sec. 2(b) of the contempt of Court Act-1971.
5. That, while implementing the directives of the Hon’ble Court in R.C. Gupta’s case judgment you have modified the judgment/Order of the Hon’ble Supreme Court dated 04.10.2016. As per the judgment in R.C. Gupta, there is no cut-off date to exercise the option under proviso to para 11(3) of the Pension Scheme and an employee can exercise the option after his retirement also. Moreover, you notice know that R.C. Gupta had not exercised the joint option under proviso to para 11(3) of the Scheme during the tenure of his service period and he exercised his joint option after his retirement. However, vide above Circular dated 29.12.2022, your notice created a new artificial cut-off date i.e. “the date of retirement of an employee” in contradiction to the directions of the Hon’ble Supreme Court and your this act tends to scandalize and lower the authorities of the Hon’ble Supreme Court as well as obstruct the administration of justice and therefore, your this action vide the Circular dated 29.12.2022 amounts to the criminal contempt under Section 2(c )(i)&(iii) of the contempt of Court Act-1971.
6. That, you notice knowingly and deliberately are disobeying and lowering the position of the Hon’ble Supreme Court. You notice very well know that the SLP No. 19954 of 2015, wherein all the petitioners were retirees, without exercising any option under proviso to para 11(3) of the pension scheme, had been contributing towards provident fund on their actual salaries during their service, had been dismissed on 12.07.2016 in Austin Joseph C & Ors case. You notice very well know that in the Austin Joseph case your advocate pleaded before the Hon’ble Supreme Court that “an employee can execute joint option under proviso to para 11(3) during his employment only”, and also tried to put forth ” that language used in the said proviso makes is evident that the option can be exercised by a person only during the tenure of his service”, however, these contentions of EPFO was rejected by the Hon’ble Supreme Court and dismissed the SLP No.19954 of 2015 in Austin Joseph case. You notice even after knowing these facts, you have mentioned expressly in the said Circular dated 29.12.2022, issued by you that an employee must exercise option under proviso to para 11(3), prior to his retirement and therefore, you are acting in opposition to the Order/directions of the Hon’ble Supreme Court and committing the severe criminal contempt of the Court under the provisions of Section 2(c)(i)&(iii) of the Contempt of Court Act-1971.
7. That, you notice very well know the facts that the members of the EPS Pension Scheme are not given any opportunity to exercise the option under proviso to para 11(3) of the Scheme since 01.12.2004. The EPFO issued a letter No.4(38)/96/WB/59867 dated 01.12.2004 regarding the fixation of the cut-off date of 01.12.2004 for the option for the first time and when the Hon’ble Kerala High Court held it in various cases that it is without jurisdiction and EPFO can not impose any cut-off date, the EPFO took another stand for the cut-off date i.e. date of commencement of the scheme or the date on which an employee’s salary crosses the statutory limit of Rs. 6500/- or Rs.5000/-, as the case may be. After
dismissing the eight SLPS of EPFO (seven SLPS on 31.03.2016 and one SLP on 12.07.2016) in the matter, the Hon’ble Supreme Court decided on two SLPS including the SLP by R.C. Gupta on 04.10.2016 and finally decided that there is no cut-off date for the option under proviso to para 11(3) of the Scheme and EPFO have no power/authority to fix-up any cut-off date for this purpose. These views of the Division Bench are agreed by the Three Judges Bench of the Hon’ble Supreme Court and directed to implement the same vide para 44(ix) of the judgment dated 04.11.2022. However, you notice even after knowing all these facts, fixed a new artificial cut-off date i.e. “a date of retirement of an employee”, in contradiction to the directions of the Hon’ble High Courts and Supreme Court which amounts to be serious contempt of Court.
8. That, the Hon’ble Supreme Court vide its Order dated 04.11.2022 did not alter any findings/observations/directives of the Division Bench in RC Gupta case judgment or judgment in Austin Joseph case and you notice have no power to alter the directions of the Hon’ble Supreme Court in the above judgments/orders. However, you have issued the instructions in contradiction to the Orders in all judgments of the Hon’ble Supreme Court and committed civil as well as criminal contempt of the Court.
Therefore, you notice are requested to withdraw the said Circular dated 29 12 2022, within the period of 15 days from the receipt of this notice, failing to which, I will be left with no alternative other than to file a contempt of court case against you, in the court of law and then, you will be liable for all the losses and consequences, which may please be noted.
Thanking you.
Date: 3/02/2023
Place: Nagpur
Dada Tukaram Zode) National Legal Advisor
Employees Pension (1995) Coordination Committee
R/o 57/58, Jaidurga Layout No.2,
Manish Nagar, Nagpur 440037, Mob No.9405929678, email:
dadazode1954@gmail.com
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