No Acts & Articles mentioned in this case
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE G. GIRISH
THURSDAY, THE 11
TH
DAY OF JANUARY 2024 / 21ST POUSHA, 1945
CON.CASE(C) NO. 1437 OF 2022
ARISING OUT OF THE JUDGMENT DATED 12.10.2018 IN WP(C)NO. 11629 OF 2015
OF HIGH COURT OF KERALA
PETITIONERS/PETITIONERS 124, 129, 48, 106, 21, 160, 52, 95 & 67 :
1 M.P.NARAYANAN NAMBIAR , AGED 62 YEARS S/O.(L) KELU NAMBIAR,
JUNIOR ENGINEER, (RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT "SURYA",
PULIYATHU VALAPPU, P.O.MORAZHA, KANNUR -670331., PIN - 670331
2 RAMESAN V.K, AGED 62 YEARS, S/O.(L)ACHUTHAN K.,
JUNIOR ENGINEER,(RETIRED), KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT "ACHUTHAM",
ACHUKULANGARA, P.O.PARAL, KANNUR -670671.
3 PURUSHOTHAMAN M, AGED 61 YEARS, S/O.(L)K.P.KORAN,
FOREMAN, (RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT MADAPPURAKKAL
(H), NEAR VELAM GANAPATI KSHETHRAM, P.O.MAYYIL, KANNUR -
670602.
4 RADHAKRISHNAN T., AGED 64 YEARS, S/O.(L)RAMUNNI K.
JUNIOR ENGINEER,(RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT THOTTATHIL (H),
MANGAD, KALLIASSERI P.O. KANNUR -670562.
5 C. SAYED AHMED THANGAL , AGED 62 YEARS, S/O.(L)KUNHIKOOYA
THANGAL, JUNIOR ENGINEER, (RETIRED), KELTRON COMPONENT
COMPLEX LIMITED, KALLIASSERRY P.O, KANNUR -670562 RESIDING AT
KUNNATHPALLI (H), P.O.VALAPPATTANAM, KANNUR -670010.
6 K.M.THANKAMANI, AGED 64 YEARS, W/O.(L)KUNHIKANNAN, JUNIOR
ENGINEER,(RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT "VAISHAKH",
P.O.EDATT, PAYYNNUR, KANNUR -670327, PIN - 670327
7 K. RAJASREE, AGED 63 YEARS, W/O.V.VELU,
FOREMAN (RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT "SHARANYA",
MANGAD, P.O.KALLIASSERI, KANNUR -670562., PIN - 670562
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Cont.Case (C)No.1437 of 2022
8 SAVITHA V., AGED 62 YEARS, W/O.NARAYANAN K.V.,
JUNIOR ENGINEER,(RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT U.K(H),
KEECHERI, ANCHAMPEEDIKA P.O., KANNUR -670331., PIN - 670331
9 P.M.PRAKASHAN, AGED 62 YEARS, S/O.(L)P.M.KUMARAN,
FOREMAN, (RETIRED) KELTRON COMPONENT COMPLEX LIMITED,
KALLIASSERRY P.O, KANNUR -670562. RESIDING AT "SHARADHA",
MANGATTUPARAMBA, KANNUR UNIVERSITY CAMPUS P.O. KANNUR -
670562.
BY ADV KALEESWARAM RAJ
RESPONDENT/S:
1 SRI.EBIN VISWANATH V
AGE AND FATHER'S NAME ARE NOT KNOWN TO THE PETITIONERS REGIONAL
PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION,
SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, V.K.COMPLEX, COURT
ROAD, KANNUR -670001., PIN - 670001
*ADDL.R2 SRI. K.G.KRISHNA KUMAR, MANAGING DIRECTOR, KELTRON COMPONENT
COMPLEX LIMITED, KELTRON NAGAR, KALLIASSERI, KANNUR – 670562 IS
IMPLEADED VIDE ORDER DTD 9/8/23 IN IA 3/23 IN COC 1437/22
*ADDL.R3 SRI M.PRAKASHAN, GENERAL MANAGER, KELTRON COMPONENT COMPLEX
LIMITED, KELTRON NAGAR, KALLIASSERI, KANNUR – 670562 IS IMPLEADED
VIDE ORDER DTD 9/8/23 IN IA 3/23 IN COC 1437/22
BY ADVS.NITA N.S
SMT.M.A.ZOHRA, SC, KELTRON
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Cont.Case (C)No.1437 of 2022
C.R.
JUDGMENT
Anil K. Narendran, J.
The petitioners, who are petitioners 124, 129, 48, 106, 21,
160, 52, 95 and 67 respectively in W.P.(C)No.11629 of 2015,
have filed this contempt case, invoking the provisions under
Section 12 of the Contempt of Courts Act, 1971, alleging wilful
disobedience of the directions contained in Annexure A -I
judgment dated 12.10.2018 of a Division Bench of this Court in
Sasikumar P. and others v. Union of India and others [ILR
2019 (1) Ker. 614] , whereby W.P.(C)No.13120 of 2015 and
connected matters, including W.P.(C)No.11629 of 2015, were
disposed of by setting aside the Employees ’ Pension
(Amendment) Scheme, 2014 brought into force by notification
No.G.S.R.609 (E) dated 22.08.2014 and also all consequential
orders and proceedings issued by the Employees Provident Fund
Organisation on the basis of the aforesaid amendment.
2. On 23.09.2022, when this contempt case came up for
admission, the learned Standing Counsel for the Employees
Provident Fund Organisation took notice for the respondent. The
personal appearance of the respondent was dispensed with, by
the order dated 23.09.2022.
3. On 14.03.2023, the respondent filed an affidavit dated
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Cont.Case (C)No.1437 of 2022
10.03.2023, pointing out Annexure R1(A) judgment of the Apex
Court dated 04.11.2022 in Civil Appeal Nos.8143-44 of 2022 and
connected matters - Employees Provident Fund Organisation
v. Sunil Kumar B. [2022 (7) KHC 12 : AIR 2022 SC 5634] ,
arising out of the judgment of the Division Bench of this Court in
Sasikumar P. and others v. Union of India and others [ILR
2019 (1) Ker. 614] and the connected matters arising out of
the judgment of the High Court of Delhi and the High Court of
Rajasthan. In paragraph 5 of that affidavit, the respondent has
pointed out Annexure R1(B) order of the Apex Court dated
25.02.2021 in SLP(C)Nos.8658 -59 of 2019, whereby the Apex
Court directed that pending further consideration, no contempt
application seeking implementation of any of the orders passed
in the four categories of matters shall be taken up by any court.
The first category mentioned in the order dated 25.02.2021 is
SLP(C)Nos.8658-8659 of 2019, W.P.(C)No.233 of 2018 [Item
Nos.1 & 1.1], arising from the judgment dated 12.10.2018 of the
High Court of Kerala. The relevant paragraphs of the order dated
25.02.2021 in SLP(C)Nos.8658-59 of 2019 read thus;
“It is made clear that under no circumstance the matters
shall be adjourned and the matters shall be taken up for
hearing on day-to-day basis.
For facility, we direct;
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Cont.Case (C)No.1437 of 2022
(i) SLP(C)Nos.8658-8659 of 2019, W.P.(C)No.233 of 2018
[Item Nos.1 & 1.1] [arising from the judgment dated
12.10.2018 passed by the High Court of Kerala];
(ii) SLP(C) Diary No.46219 of 2019 [Item No.2] [arising
from the judgment dated 22.5.2019 passed by the High
Court of Delhi] along with connected matter being SLP(C)
No. 1366 of 2021 [Item No.1.54] [arising from the
judgment dated 16.12.2019 passed by the High Court of
Delhi];
(iii) SLP(C)No.2465 of 2021 [Item No.1.51] [arising from
judgment dated 28.08.2019 passed by the High Court of
Rajasthan, Jaipur]; and
(iv) Cont. Pet.(C)No. 1917-1918 of 2018 in C.A.No. 10013-
10014 of 2016 [Item No.1.20] [seeking implementation of
the order dated 04.10.2016 passed by this Court in
C.A.No.10013 of 2016 : R.C. Gupta and others v. Regional
Provident Fund Commissioner, Employees Provident Fund
Organization and others] shall be taken up as lead matters
representing the respective categories of matters.”
Rest of the matters shall also be listed on the same day.
Pending further consideration, no contempt application
seeking implementation of any of the orders passed in the
aforesaid four categories of matters, shall be taken up by
any Court.
In the contempt petitions pending in this Court, personal
presence of the alleged contemnor stands dispensed with.
(underline supplied)
4. By the order dated 16.03.2023, the respondent was
directed to file an affidavit with regard to the enhanced pension
already given to 76 persons, pursuant to the direction contained
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Cont.Case (C)No.1437 of 2022
in Annexure A-I judgment dated 12.10.2018 in W.P.(C)No.11629
of 2015, from which this contempt case arises. Pursuant to that
direction, the respondent has filed an affidavit dated 31.05.2023,
producing therewith a copy of the aforesaid order dated
25.02.2021 of the Apex Court in SLP(C)Nos.8658-8659 of 2019,
16721-16722 of 2019 as Annexure R1(B). In the said affidavit, it
is pointed out that 76 persons , who were parties to
W.P.(C)No.11629 of 2015, were given their pension on various
dates in the year 2020.
5. The petitioners have filed a reply affidavit dated
12.06.2023, wherein it is stated that they are also entitled to
enhanced pension in terms of Annexure A -I judgment of this
Court dated 12.10.2018 in W.P.(C)No.11629 of 2015 and
Annexure A-II order dated 18.12.2020 in Cont. Case (C)No.2491
of 2019. By Annexure A-II judgment of this Court, Cont. Case
(C)No.2491 of 2019, filed by the petitioners along with others,
was disposed of in the light of the judgment dated 06.11.2020 in
Cont. Case (C)No.1176 of 2019 and connected matters, granting
six months’ time to the respondent to comply with the directions
issued by this Court in Annexure A-1 judgment dated 12.10.2018
in W.P.(C)No.11629 of 2015, subject to the decision of the Apex
Court. In the reply affidavit, it is contended that since the
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Cont.Case (C)No.1437 of 2022
petitioners were not parties in the SLP filed by the Apex Court by
the Employees Provident Fund Organisation, the findings in
Annexure R1(A) judgment of the Apex Court dated 04.11.2022
in Civil Appeal Nos.8143-44 of 2022 and connected matters -
Employees Provident Fund Organisation v. Sunil Kumar B.
[AIR 2022 SC 5634] are not binding on them. Annexure A -I
inter parte judgment of this Court dated 12.10.2018 in
W.P.(C)No.11629 of 2015 has attained finality, as the Employees
Provident Fund Organisation did not challenge the same before
the Apex Court.
6. By the order dated 12.06.2023 of a Division Bench of
this Court, the learned Standing Counsel was directed to state
whether the agreed minimum pension is being paid to the
petitioners. It was ordered that, if the agreed minimum pension
is not being paid, it shall be paid before the next posting date.
The respondent has filed an affidavit dated 13.06.2023,
furnishing therewith the pension payment details of the
petitioners.
7. In the order dated 19.06.2023 of the Division Bench,
it was noticed that any one among the petitioners, who retired
after 01.09.2014, will have to exercise a fresh option in
accordance with the judgment of the Apex Court. Therefore, it
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Cont.Case (C)No.1437 of 2022
was ordered that, if any one among the petitioners has not so far
exercised fresh option in accordance with the judgment of the
Apex Court, they have to do so within two weeks. The options so
exercised shall be considered in accordance with the judgment of
the Apex Court without any delay.
8. By the order dated 09.08.2023 in I.A.No.3 of 2023 the
Managing Director and General Manager of K eltron Component
Complex Limited were impleaded as additional respondents 2
and 3. In the order dated 18.08.2023, the Division Bench made
it clear that the impleadment of the said respondents in the
party array is only as a proforma party for the purpose of
forwarding necessary papers in the light of the judgment of the
Apex Court. The learned Standing Counsel for K eltron
Component Complex Limited was directed to ascertain whether
they have exercised option with regard to the employees
referred to in Annexure V, in the light of the judgment of the
Apex Court.
9. Heard the learned counsel for the petitioners, the
learned Standing Counsel for Employees Provident Fund
Organisation for the 1
st
respondent and also the learned
Standing Counsel for Keltron Component Complex Limited for
additional respondents 2 and 3.
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Cont.Case (C)No.1437 of 2022
10. The learned counsel for the petitioners would contend
that though the judgment of a Division Bench of this Court in
Sasikumar P. and others v. Union of India and others [ILR
2019 (1) Ker. 614] , whereby W.P.(C)No.13120 of 2015 and
connected matters, including W.P.(C)No.11629 of 2015 , were
disposed of, was under challenge before the Apex Court in Civil
Appeal Nos.8143-44 of 2022 and connected matters, the
Employees Provident Fund Organisation has not chosen to file an
SLP against that common judgment, insofar as it relates to the
disposal of W.P.(C)No.11629 of 2015 filed by the petitioners and
others. The petitioners were not made parties in any of the
Special Leave Petitions filed by the Employees Provident Fund
Organisation before the Apex Court. In the absence of a Special
Leave Petition filed before the Apex Court with the petitioners in
the party array, Annexure A-I judgment of this Court dated
12.10.2018, insofar as it relates to the disposal of
W.P.(C)No.11629 of 2015 has attained finality. In view of that
inter parte judgment, Annexure R1( A) judgment of the Apex
Court dated 04.11.2022 in Civil Appeal Nos.8143-44 of 2022 and
connected matters - Employees Provident Fund Organisation
v. Sunil Kumar B. [AIR 2022 SC 5634] , is not binding on the
petitioners and as such they are entitled to the right flowing out
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Cont.Case (C)No.1437 of 2022
of the direction contained in the judgment of this Court dated
12.10.2018 in W.P.(C)No.11629 of 2015. In support of the
aforesaid contention the learned counsel for the petitioners
would rely on the judgment s of the Apex Court in Neelima
Srivastava v. State of Uttar Pradesh and others [order
dated 17.08.2021 in Civil Appeal No.4840 of 2021, arising out of
SLP(C)No.18198 of 2018 ], Union of India v. Major S.P.
Sharma [(2014) 6 SCC 351] , Gorie Gouri Naidu (Minor)
and another v. Thandrothu Bodemma and others [(1997)
2 SCC 552] and S. Ramachandra Rao v. S. Nagabhushana
Rao and others [AIR 2022 SC 5317].
11. Per contra, the learned Standing Counsel for
Employees Provident Fund Organisation would rely on the
judgment of the Apex Court Shenoy and Co., v. Commercial
Tax Officer, Circle II, Bangalore [(1985) 2 SCC 512] . The
learned Standing Counsel would contend that the petitioners are
bound by Annexure R1(A) judgment of the Apex Court dated
04.11.2022 in Civil Appeal Nos.8143-44 of 2022 and connected
matters - Employees Provident Fund Organisation v. Sunil
Kumar B. [AIR 2022 SC 5634 ]. The learned Standing Counsel
would point out the specific direction contained in Annexure
R1(D) order of the Apex Court dated 25.02.2021 in
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Cont.Case (C)No.1437 of 2022
SLP(C)Nos.8658-59 of 2019, whereby the Apex Court directed
that pending further consideration, no contempt application
seeking implementation of any of the orders passed in the four
categories of matters shall be taken up by any court. The first
category mentioned in the order dated 25.02.2021 is SLP(C)Nos.
8658-8659 of 2019, W.P.(C)No.233 of 2018 [Item Nos.1 & 1.1],
arising from the judgment dated 12.10.2018 of the High Court of
Kerala.
12. In Major S.P. Sharma [(2014) 6 SCC 351] , a
decision relied on by the learned counsel for the petitioner, the
Apex Court held that, a decision rendered by a competent court
cannot be challenged in collateral proceedings for the reason
that if it is permitted to do so there would be confusion and
chaos and the finality of proceedings would cease to have any
meaning.
13. In Gorie Gouri Naidu (Minor) [(1997) 2 SCC
552], another decision relied on by the learned counsel for the
petitioners, the Apex Court held that even if erroneous, an inter-
parte judgment binds the party if the court of competent
jurisdiction has decided the lis.
14. In S. Ramachandra Rao [ AIR 2022 SC 5317],
another decision relied on by the learned counsel for the
2024/KER/20406
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Cont.Case (C)No.1437 of 2022
petitioners, the Apex Court reiterated that a binding decision
cannot lightly be ignored and even an erroneous decision
remains binding on the parties to the same litigation and
concerning the same issue, if rendered by a court of competent
jurisdiction.
15. In Neelima Srivastava [order dated 17.08.2021 in
Civil Appeal No.4840 of 2021], another decision relied on by the
learned counsel for the petitioners, the Apex Court held that
mere overruling of the principles by a subsequent judgment will
not dilute the binding effect of the decision on inter-parties.
16. In Shenoy and Co. [(1985) 2 SCC 512] , a decision
relied on by the learned Standing Counsel for the Employees
Provident Fund Organisation, a Three-Judge Bench of the Apex
Court was dealing with civil appeals and writ petitions
challenging the common judgment dated 24.08.1979 of the
Karnataka High Court in a batch of writ petitions challenging the
constitutional validity of the Karnataka Tax on Entry of Goods
Act, 1979. A Division Bench of the Karnataka High Court, by that
common judgment allowed the writ petitions forbearing the State
Government from taking any proceedings under the Act. The
State took the matter in appeal before the Apex Court. However,
only one appeal was filed, which was one filed against Writ
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Cont.Case (C)No.1437 of 2022
Petition No.7039 of 1979 filed by Hansa Cooperation, impleading
the Corporation alone as a respondent. By the judgment dated
25.09.1980 - State of Karnataka v. Hansa Corporation
[(1984) 4 SCC 697] – the Apex Court allowed Civil Appeal
No.3049 of 1979, by setting aside the judgment dated
24.08.1979 of the Karnataka High Court and upholding the
validity of the Act. While Civil Appeal No.3049 of 1979 was
pending before the Apex Court, the Governor of Karnataka
promulgated the Karnataka Tax on Entry of Goods in to a Local
Area for Consumption, Use or Sale Therein Ordinance of 1980,
providing for levy of entry of tax on registered dealers, removing
the infirmities in the 1979 Act, that were pointed out by the
Karnataka High Court in its judgment dated 24.08.1979 while
striking down the Act. The Ordinance of 1980 was replaced by
Act 21 of 1980, giving it retrospective effect from 08.06.1980.
After the judgment of the Apex Court in Hansa Corporation
[(1984) 4 SCC 697] , the Governor of Karnataka promulgated
another Ordinance of 1980 on 25.10.1980 replacing the Entry
Tax Act of 1980, from its inception with certain other directions
regarding adjustment of tax, if any, paid. This was followed by
the Karnataka Tax on Entry of Goods into a Local Area for
Consumption, Use or Sale Therein (Repeal) Act, 1981 and Act 10
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Cont.Case (C)No.1437 of 2022
of 1981 replacing the 1980 Act, which however did not repeal
Ordinance level of 1980. In the meantime, the Ordinance 3 of
1981 came into force, which was followed by Act 12 of 1981,
which repealed Ordinance 11 of 1980. As a result of the
combined operation of Ordinance 3 of 1981 and Act 12 of 1981,
the 1979 Act was made to be operative only from 01.10.1980
and not from 01.06.1979, as originally enacted. After the
judgment of the Apex Court in Hansa Corporation [(1984) 4
SCC 697], upholding the validity of the 1979 Act, the authorities
appointed under the Act issued notices under the Act to all the
dealers including those who had filed writ petitions earlier,
calling upon them to register themselves under the Act, to file
returns and to pay the amount of tax due from them under the
original Act of 1979. Aggrieved by the said notices, writ petitions
were filed before Karnataka High Court, contending that the
notices issued to them were bad inasmuch as the writ of
mandamus issued in their favour by the High Court in the earlier
judgment survived and was effective since the State had not
filed appeals against them and that the judgment of the Apex
Court in Hansa Corporation [(1984) 4 SCC 697] could rescue
the State from taking proceedings only against Hansa
Corporation and not against them. The State contended that the
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Cont.Case (C)No.1437 of 2022
judgment of the Apex Court was binding on all and no one could
escape from it. The learned Single Judge dismissed the writ
petitions holding, among other things, that Section 3 of Act 10 of
1981 revived the 1979 Act and that action taken against the
petitioners in the writ petitions was, therefore, valid. The Writ
Appeals filed before the Division Bench were also ended in
dismissal.
17. A judgment is a formal expression of conclusive
adjudication of the rights and liabilities of the parties. The
judgment may operate in two ways, in rem or in personam.
Section 41 of the Evidence Act, 1872 which deals with relevancy
of judgments in the context of conclusiveness of a judgment,
order or decree reads thus;
“41. Relevancy of certain judgments in probate, etc.
jurisdiction.- A final judgment, order or decree of a
competent court, in the exercise of probate, matrimonial,
admiralty or insolvency jurisdiction, which confers upon or
takes away from any person any legal character, or which
declares any person to be entitled to any such character,
or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the
existence of any such legal character, or the title of any
such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof –
that any legal character, which it confers accrued at
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Cont.Case (C)No.1437 of 2022
the time when such judgment, order or decree came into
operation;
that any legal character, to which it declares any
such person to be entitled, accrued to that person at the
time when such judgment, order or decree declares it to
have accrued to that person;
that any legal character which it takes away from
any such person ceased at the time from which such
judgment, order or decree declared that it had ceased or
should cease;
and that anything to which it declares any person to
be so entitled was the property of that person at the time
from which such judgment, order or decree declares that it
had been or should be his property.”
18. In Booz Allen and Hamilton Inc. v. SBI Home
Finance Ltd. [(2011) 5 SCC 532] the Apex Court held that a
right in rem is a right exercisable against the world at large, as
contrasted from a right in personam which is an interest
protected solely against specific individuals. Actions in personam
refer to actions determining the rights and interests of the
parties themselves in the subject-matter of the case, whereas
actions in rem refer to actions determining the title to property
and the rights of the parties, not merely among themselves but
also against all persons at any time claiming an interest in that
property. Correspondingly, a judgment in personam refers to a
judgment against a person as distinguished from a judgment
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Cont.Case (C)No.1437 of 2022
against a thing, right or status and a judgment in rem refers to a
judgment that determines the status or condition of property
which operates directly on the property itself. [Vide Black's Law
Dictionary]
19. In Vidya Drolia v. Durga Trading Corp oration
[(2021) 2 SCC 1 ] a Three-Judge Bench of the Apex Court
reiterated that a judgment in rem determines the status of a
person or thing as distinct from the particular interest in it of a
party to the litigation; and such a judgment is conclusive
evidence for and against all persons whether parties, privies or
strangers of the matter actually decided. Such a judgment
settles the destiny of the res itself and binds all persons claiming
an interest in the property inconsistent with the judgment even
though pronounced in their absence. By contrast, a judgment in
personam, ‘although it may concern a res, merely determines
the rights of the litigants inter se to the res’. Distinction between
judgments in rem and judgments in personam turns on their
power as res judicata, i.e., judgment in rem would operate as
res judicata against the world, and judgment in personam would
operate as res judicata only against the parties in dispute.
20. The decision of a Three-Judge Bench of the Apex
Court in Employees’ Provident Fund Organisation and
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Cont.Case (C)No.1437 of 2022
another v. Sunil Kumar B. and others [AIR 2022 SC 5634]
was in the Civil Appeals arising out of the judgment of the
Division Bench of this Court in Sasikumar P. and others v.
Union of India and others [ILR 2019 (1) Ker. 614]
[Annexure A-I judgment dated 12.10.2018 in W.P.(C)No.13120
of 2015 and connected matters, including W.P.(C)No.11629 of
2015] setting aside the Employees’ Pension Amendment
(Scheme), 2014 conceived in G.S.R.609 (E) dated 22.08.2014;
the judgment of the High Court of Delhi in Bhartiya Khadya
Nigam Karamchari Sangh v. Union of India - Writ Petition
(C) No. 5678 of 2018 – following the view expressed by this
Court; and judgment of the High Court of Rajasthan in Union of
India v. Jale Singh - D.B. Special Appeal Writ No.436 of 2019 –
expressing the same opinion.
21. By Annexure A-I judgment dated 12.10.2018 in
Sasikumar P. and others v. Union of India and others [ILR
2019 (1) Ker. 614], the Division Bench of this Court disposed
of W.P.(C)No.13120 of 2015 and connected matters, including
W.P.(C)No.11629 of 2015, by setting aside the Employees’
Pension (Amendment) Scheme, 2014 brought into force by
notification No.G.S.R.609 (E) dated 22.08.2014 and also all
consequential orders and proceedings issued by the Employees
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Cont.Case (C)No.1437 of 2022
Provident Fund Organisation on the basis of the aforesaid
amendment. The Division Bench set aside various proceedings
issued by the Employees Provident Fund Organisation declining
to grant opportunities to the writ petitioners to exercise a joint
option along with other employees to remit contributions to the
Employees’ Pension Scheme on the basis of the actual salary
drawn by them. The Division Bench held that the employees
shall be entitled to exercise the option stipulated by paragraph
26 of the Employees’ Provident Fund Scheme without being
restricted in doing so by the insistence on a date.
22. The decision of a Three-Judge Bench of the Apex
Court in Employees’ Provident Fund Organisation and
another v. Sunil Kumar B. and others [AIR 2022 SC 5634]
was in the Civil Appeals arising out of the judgment of the
Division Bench of this Court in Sasikumar P. and others v.
Union of India and others [ILR 2019 (1) Ker. 614]
[Annexure A-I judgment dated 12.10.2018 in W.P.(C)No.13120
of 2015 and connected matters, including W.P.(C)No.11629 of
2015] setting aside the Employees’ Pension Amendment
(Scheme), 2014 conceived in G.S.R.609 (E) dated 22.08.2014;
the judgment of the High Court of Delhi in Bhartiya Khadya
Nigam Karamchari Sangh v. Union of India - Writ Petition
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(C) No. 5678 of 2018 – following the view expressed by this
Court; and judgment of the High Court of Rajasthan in Union of
India v. Jale Singh - D.B. Special Appeal Writ No.436 of 2019 –
expressing the same opinion.
23. In Employees Provident Fund Organisation v.
Sunil Kumar [AIR 2022 SC 5634] the Three-Judge Bench of
the Apex Court, at paragraph 44 of the judgment, held and
directed as follows;
“44. We accordingly hold and direct:-
(i) The provisions contained in the notification No.
G.S.R.609(E) dated 22
nd
August 2014 are legal and
valid. So far as present members of the fund are
concerned, we have read down certain provisions of the
scheme as applicable in their cases and we shall give
our findings and directions on these provisions in the
subsequent sub-paragraphs.
(ii) Amendment to the pension scheme brought about
by the notification No. G.S.R.609(E) dated 22
nd
August
2014 shall apply to the employees of the exempted
establishments in the same manner as the employees of
the regular establishments. Transfer of funds from the
exempted establishments shall be in the manner as we
have already directed.
(iii) The employees who had exercised option under the
proviso to paragraph 11(3) of the 1995 scheme and
continued to be in service as on 1
st
September 2014,
will be guided by the amended provisions of paragraph
11(4) of the pension scheme.
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(iv) The members of the scheme, who did not exercise
option, as contemplated in the proviso to paragraph
11(3) of the pension scheme (as it was before the 2014
Amendment) would be entitled to exercise option under
paragraph 11(4) of the post amendment scheme. Their
right to exercise option before 1
st
September 2014
stands crystalised in the judgment of this Court in the
case of R.C. Gupta and others v. Regional Provident
Fund Commissioner, Employees Provident Fund
Organisation and others [(2018) 14 SCC 809] . The
scheme as it stood before 1
st
September 2014 did not
provide for any cut-off date and thus those members
shall be entitled to exercise option in terms of
paragraph 11(4) of the scheme, as it stands at present.
Their exercise of option shall be in the nature of joint
options covering pre-amended paragraph 11(3) as also
the amended paragraph 11(4) of the pension scheme.
There was uncertainty as regards validity of the post-
amendment scheme, which was quashed by the
aforesaid judgments of the three High Courts. Thus, all
the employees who did not exercise option but were
entitled to do so but could not due to the interpretation
on cut-off date by the authorities, ought to be given a
further chance to exercise their option. Time to exercise
option under paragraph 11(4) of the scheme, under
these circumstances, shall stand extended by a further
period of four months. We are giving this direction in
exercise of our jurisdiction under Article 142 of the
Constitution of India. Rest of the requirements as per
the amended provision shall be complied with.
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(v) The employees who had retired prior to 1
st
September 2014 without exercising any option under
paragraph 11(3) of the pre-amendment scheme have
already exited from the membership thereof. They
would not be entitled to the benefit of this judgment.
(vi) The employees who have retired before 1
st
September 2014 upon exercising option under
paragraph 11(3) of the 1995 scheme shall be covered
by the provisions of the paragraph 11(3) of the pension
scheme as it stood prior to the amendment of 2014.
(vii) The requirement of the members to contribute at
the rate of 1.16 per cent of their salary to the extent
such salary exceeds Rs.15,000/ - per month as an
additional contribution under the amended scheme is
held to be ultra vires the provisions of the 1952 Act. But
for the reasons already explained above, we suspend
operation of this part of our order for a period of six
months. We do so to enable the authorities to make
adjustments in the scheme so that the additional
contribution can be generated from some other
legitimate source within the scope of the Act, which
could include enhancing the rate of contribution of the
employers. We are not speculating on what steps the
authorities will take as it would be for the legislature or
the framers of the scheme to make necessary
amendment. For the aforesaid period of six months or
till such time any amendment is made, whichever is
earlier, the employees’ contribution shall be as stop gap
measure. The said sum shall be adjustable on the basis
of alteration to the scheme that may be made.
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Cont.Case (C)No.1437 of 2022
(viii) We do not find any flaw in altering the basis for
computation of pensionable salary.
(ix) We agree with the view taken by the Division Bench
in the case of R.C. Gupta [(2018) 14 SCC 809] 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.
(x) The Contempt Petition (C) Nos.1917 -1918 of 2018
and Contempt Petition (C) Nos.619-620 of 2019 in Civil
Appeal Nos.10013-10014 of 2016 are disposed of in the
above terms.”
24. In Employees Provident Fund Organisation v.
Sunil Kumar [AIR 2022 SC 5634] the Three-Judge Bench of
the Apex Court set aside the impugned judgments , including the
judgment of a Division Bench of this Court in Sasikumar P and
others v. Union of India and others [ILR 2019 (1) Ker.
614], declaring that the provisions contained in the notification
No.G.S.R.609(E) dated 22
nd
August 2014 are legal and valid. In
sub-paragraphs (i) to (x) of paragraph 44 of the judgment, the
Apex Court issued consequential declarations and directions.
25. In Shenoy and Co. [(1985) 2 SCC 512] , before the
Apex Court, the main thrust of the submission made by the
learned counsel for the appellants was that the writ of
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Cont.Case (C)No.1437 of 2022
mandamus issued by the High Court in their favour in the
common judgment dated 24.08.1979 was effective since the
judgment in their favour was not challenged by the State by
filing appeals before the Apex Court. Therefore, the law laid
down by the Apex Court in Hansa Corporation [(1984) 4 SCC
697] would apply only against Hansa Corporation, against whom
alone the State had filed an appeal.
26. In Shenoy and Co. [(1985) 2 SCC 512] , the Apex
Court noticed that though a large number of writ petitions were
filed before the Karnataka High Court challenging the 1979 Act,
all those writ petitions were grouped together, heard together
and were disposed of by the High Court by a common judgment.
No petitioner advanced any contention peculiar or individual to
his petition, not common to others. To be precise, the dispute in
the cause or controversy between the State and each petitioner
had no personal or individual element in it or anything personal
or peculiar to each petitioner. The challenge to the constitutional
validity of 1979 Act proceeded on identical grounds common to
all petitioners. This challenge was accepted by the High Court, by
a common judgment , and it was that common judgment that
was the subject-matter of appeal before the Apex Court
in Hansa Corporation case [(1980) 4 SCC 697] . When the
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Cont.Case (C)No.1437 of 2022
Apex Court repelled the challenge and held the Act
constitutionally valid, it in terms disposed of not the appeal
in Hansa Corporation [(1980) 4 SCC 697] alone , but the writ
petitions in which the Karnataka High Court issued mandamus on
the non-existent ground that the 1979 Act was constitutionally
invalid. It is, therefore, idle to contend that the law laid down by
the Apex Court in Hansa Corporation case [(1980) 4 SCC 697]
would bind only Hansa Corporation and not the other petitioners
against whom the State of Karnataka had not filed any appeal.
To do so is to ignore the binding nature of a judgment of the
Apex Court under Article 141 of the Constitution. In cases where
numerous writ petitions are disposed of by a common judgment
and only one appeal is filed, the parties to the common
judgment could very well have and should have intervened and
could have requested the Court to hear them also. They cannot
be heard to say that the decision was taken by the Court behind
their back or profess ignorance of the fact that an appeal had
been filed by the State against the common judgment. The Apex
Court observed that, in the fitness of things, it would be
desirable that the State Government also took out publication in
such cases to alert the parties bound by the judgment, of the
fact that an appeal had been preferred by them. The Apex Court
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Cont.Case (C)No.1437 of 2022
noticed that the normal procedure to enforce a writ of
mandamus is to move the Court in contempt when the parties
against whom mandamus is issued disrespect it. In the contempt
petition the State cannot be punished for disrespecting the
mandamus, when the law of the land has been laid down by the
Apex Court against the mandamus issued , since the mandamus
issued by the High Court becomes ineffective and unenforceable
when the basis on which it was issued falls, by the declaration by
the Apex Court, of the validity of 1979 Act.
27. In the instant case, the judgment of a Division Bench
of this Court in Sasikumar P. and others [ILR 2019 (1)
Ker.614] setting aside the Employees’ Pension (Amendment)
Scheme, 2014 brought into force by notification No.G.S.R.609(E)
dated 22.08.2014 and also all consequential orders and
proceedings issued by the Employees’ Provident Fund
Organisation on the basis of the aforesaid amendment, was set
aside by the Apex Court in Employees Provident Fund
Organisation v. Sunil Kumar [AIR 2022 SC 5634] . The law
laid down by the Apex Court in the said decision, upholding the
Employees’ Pension (Amendment) Scheme, 2014 brought into
force by notification No.G.S.R.609(E) dated 22.08.2014, is
binding on all persons claiming pension under the Employees’
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Cont.Case (C)No.1437 of 2022
Pension Scheme, which is also binding on the petitioners.
Ignoring the binding nature of that judgment under Article 141
of the Constitution of India, the petitioners cannot seek
implementation of Annexure A -I judgment of this Court dated
12.10.2018, by contending that since the Employees’ Provident
Fund Organisation has not chosen to file appeal in W.P.(C)No.
11629 of 2015 before the Apex Court, the mandamus issued by
this Court in that judgment has to be enforced in exercise of the
contempt jurisdiction under Section 12 of the Contempt of
Courts Act, 1971. The mandamus issued by this Court in that
judgment has become ineffective and unenforceable when the
basis on which it was issued falls by the declaration of law by the
Apex Court in Employees Provident Fund Organisation v.
Sunil Kumar [AIR 2022 SC 5634] , upholding the validity of
Employees’ Pension (Amendment) Scheme, 2014 brought into
force by notification No.G.S.R.609(E) dated 22.08.2014.
In the above circumstances, we find no reason to proceed
with this Contempt of Court Case further and the same is
accordingly closed, after recording the submission made by the
learned Standing Counsel for Employees’ Provident Fund
Organisation that, in view of the judgment of the Apex Court in
Employees Provident Fund Organisation v. Sunil Kumar
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Cont.Case (C)No.1437 of 2022
[AIR 2022 SC 5634] the entitlement of the petitioners for
disbursement of higher pension will be reconsidered by the
Employees Provident Fund Organisation , in terms of the
directions contained in that judgment.
Sd/-
ANIL K. NARENDRAN , JUDGE
Sd/-
G. GIRISH, JUDGE
AV/18/1
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APPENDIX OF CON.CASE(C) 1437/2022
PETITIONER ANNEXURES
Annexure1 CERTIFIED COPY OF THE JUDGMENT DATED
12.10.2018 IN W.P(C)NO.11629/2015
Annexure II TRUE COPY OF THE ORDER DATED 18.12.2020 IN
COC NO.2491/2019 IN WPC 11629/2015
Annexure III TRUE COPY OF LETTER NO. KR/KNR/4401/316/
PEN.REV/2020 DATED 08.09.2020
Annexure IV TRUE COPY OF THE LETTER NO. KR/KNR/PENSION
CELL/60654 DATED 06.04.2022 ISSUED BY THE
RESPONDENT TO 3RD PETITIONER.
RESPONDENT ANNEXURES
ANNEXURE R1A TRUE COPY OF THE JUDGMENT IN SLP(C) No.8658 -
8659 OF 2019 DATED 04/11/2022
ANNEXURE R1(B) TRUE COPY OF THE ORDER DATED 25/02/2021 IN
SLP 8658-8659 OF 2019
PETITIONER ANNEXURES
Annexure V TRUE COPY OF THE CERTIFICATE ISSUED BY HOD (P
AND A, KELTRON COMPONENT COMPLEX LTD. DATED
30.12.2022
Annexure VI TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 2ND PETITIONER DATED 07.06.2023.
Annexure VII TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 3RD PETITIONER DATED 25.04.2023
Annexure VIII TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 4TH PETITIONER DATED 19.04.2023.
Annexure IX TRUE COPY OF THE OPTION SUBMITTED BY THE 5TH
PETITIONER DATED 21.04.2023.
Annexure X TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 6TH PETITIONER DATED 20.04.2023.
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Cont.Case (C)No.1437 of 2022
Annexure XI TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 7TH PETITIONER DATED 25.05.2023.
Annexure XII TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 8TH PETITIONER DATED 24.04.2023.
Annexure XIII TRUE COPY OF THE JOINT OPTION SUBMITTED BY
THE 9TH PETITIONER DATED 28.04.2023.
2024/KER/20406
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