The Employees Provident Fund Organsation & Ors. Vs. A. Chandrakumaran Nair & Ors. - It is trite that the employer cannot contribute retrospectively to the pension fund more than statutory limits just to derive benefits which were not available to the members when the contribution was limited to statutory wages.

 HC Kerala (2025.07.21) in The Employees Provident Fund Organsation & Ors.  Vs. A. Chandrakumaran Nair & Ors.  [2025:KER:53846, WA NO.852/2022,] held that; 

• An employer cannot retrospectively contribute to the pension fund more than the statutory limits after the employees have retired from service and thus seek higher payments to the retired employees from the pension fund.

• It is exactly for the said reason that the EPF Act does not provide or contemplate any retrospective contribution to the provident fund or the pension fund. The provision for contributing to the provident fund above the statutory limit under Para 26.6 of the EPF scheme 1952 is available to the employees only, and that too with prospective effect when the wages of the employee exceed the stipulated sum.

• It is trite that the employer cannot contribute retrospectively to the pension fund more than statutory limits just to derive benefits which were not available to the members when the contribution was limited to statutory wages.

Excerpts of the Order;

This appeal is filed by the Employees Provident Fund Organisation (EPFO) challenging the judgment dated 28.03.2022 in W.P.(C) No.7801 of 2020 of the learned Single Judge. Appellants were respondents 1 to 3 in the W.P.(C). Respondents were petitioners 1 to 67 and the 4 th respondent, respectively in the W.P.(C).

# 2. Respondents 1 to 67 were employees of the 68 th respondent, Cochin International Airport Authority (CIAL), which is a Public Limited Company. Employees of CIAL are covered by the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act) and the Employees Pension Scheme, 1995. The employer's contribution to the provident fund for the period from 1995 to 2003 was paid by CIAL on statutory limits and not on the actual salary of the respondents. Later, CIAL had submitted a series of representations (Ext.P1 series) dated 15.11.2018 to 07.01.2020, inter alia, pointing out its willingness to remit retrospective contribution to the provident fund based on actual salary. CIAL had also vide the said representations requested the Regional Provident Fund Commissioner (appellant No.2) to process the higher pension claims of their retired employees and to grant them a higher pension. Alleging that the appellants are not acting on the specific requests made by their employer, viz., the CIAL, respondents 1 to 67 had filed the Writ Petition inter alia seeking the following reliefs:

• "i) To issue a writ of mandamus and command respondents 1 to 3 to direct the respondents 1 to 3 to compute and communicate the deficiency on the part of 4th respondent in making provident fund contribution for the period from February, 1995 to June 2003, or such other period, including damages and interest, if any, with respect to petitioners and permit the 4th respondent to remit the deficient amount to the respective provident fund account of the petitioners, within a time frame to be fixed by this Honourable Court.

• (ii) To issue a writ of mandamus and command respondents 2 and 3 or such other appropriate authorities under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Employees' Pension Scheme, 1995 to consider and pass orders on Exhibit P1, P1(a), P1(b), P1(c), P1(d), P1(e), P1(f), P1(g) requests preferred by the 4th respondent, within a time frame to be stipulated by this Honourable Court ;

• (iii) To issue a writ of mandamus and command respondents 2 and 3 to process the joint option forms forwarded by the 4 th respondent as contemplated under Exhibit P2 judgment within a time frame to be fixed by this Honourable Court ;

• (iv) To pass any other and such other orders as this Honourable Court deem fit to pass in the nature and circumstances of the case.

• (v) To award the cost of this proceedings to the petitioners."

# 3. The EPFO filed a detailed counter affidavit in the W.P.(C) inter alia, pointing out that there is no provision for accepting retrospective contribution to the Provident Fund and that the attempt of respondents 1 to 67 to get pension on their actual salary at a very belated point in time is not legally sustainable. Respondents 1 to 67 filed a reply affidavit to the counter affidavit of the EPFO. In the W.P.(C), the learned Single Judge had vide an interim order directed CIAL to produce a demand draft (DD) for the requisite sum, which was duly complied with. Thereafter, the learned Single Judge had vide impugned judgment, disposed of the W.P.(C) inter alia directing the appellants to encash the DD deposited by CIAL towards alleged deficiency and arrears and thereafter to issue a letter for details of the alleged arrears by providing record of the employees and other registers maintained in the office, including the EPF numbers assigned to the employees. It was also directed that after scrutiny of the said documents, if any further deficiency is found, the EPFO shall send the demand after undertaking the exercise of computation and shall also take action as provided under Sections 7Q and 14B of the EPF Act.

# 4. Aggrieved by the said order of the learned Single Judge, the Employees Provident Fund Organisation has preferred this Writ Appeal.

# 5. Heard Sri.Sajeev Kumar K.Gopal, Advocate, for the appellants, Sri.R.Sanjith, Advocate, for respondents 1 to 67 and Sri.Benny P.Thomas, Senior Advocate, instructed by Abel Tom Benny, Advocate for the 68th respondent CIAL.

# 6. The learned counsel for the appellants submitted that as regards his clients are concerned, no amount whatsoever is due from CIAL towards the EPF account of respondents 1 to 67 as had been purportedly put forth. Hence, there was no cause or reason to direct the production of a DD, its encashment or further steps under Sections 7Q and 14B of the EPF Act. The question of making payment towards deficiency would arise only if the EPFO makes a demand for the same after due determination as envisaged under Section 7 A of the EPF Act. There is no enabling provision under the EPF Act to remit retrospective contribution and the learned Single Judge erred in law in directing the appellants to encash the DD which was submitted by CIAL towards the alleged deficiency of contribution for the period, namely 1995 to 2003 of its retired employees. Since no arrears had been ascertained or demanded to be paid by the EPFO, there was no cause or reason to pay any amount through the DD. The fact that the retrospective contribution on actual wages was insisted on by respondents 1 to 67 only for claiming a higher pension was not taken proper note of by the learned Single Judge. As regards a claim by retired employees for a higher pension based on actual salary by accepting retrospective contribution to the provident fund belatedly offered by the employer, the EPFO cannot be compelled to accept contributions on actual salary from the employees simply because there is no provision in law to follow such a course and also because it is not desirable in the best interests of the fund. The employer had contributed to the provident fund on the statutory wage limit, which the employer is entitled/bound to do, and there is no legal compulsion on the employer to remit the contribution on actual salary. Thus, according to the EPFO, there is no deficiency or shortfall in the remittance of the contribution towards the provident fund by the employer. The learned Single Judge erred in approaching the issue as if there was an actual deficiency on the part of the employer in remitting contributions to the provident fund. The learned counsel further submitted that if the retrospective contribution for the period 1995 to 2003 as offered by the CIAL is accepted by the EPFO in the year 2025, a corresponding claim may arise to pay the pension following the actual salary drawn by respondents 1 to 67. This would lead to the creation of a huge financial liability and burden on the EPFO. Reliance is placed on the dictum laid down by the Hon'ble Supreme Court in Pawan Hans Limited and others v. Aviation Karmachari Sanghatana and others [2020 (13) SCC 506] and it is submitted that the funds of the EPFO are managed on an actuarial basis, and the contributions received from the employer and the employee are duly invested, and the income by way of interest forms a substantial fund through which any payout is made. An employer cannot retrospectively contribute to the pension fund more than the statutory limits after the employees have retired from service and thus seek higher payments to the retired employees from the pension fund. Over and above the same for topping up any deficiency, if any, firstly, there has to be a determination of deficiency under Section 7A of the EPF Act. The learned Single Judge could have at most directed the EPFO to consider the request of CIAL and the employees, and ought not to have directed the production of DD for the purported deficiency and directed encashment of the same. The direction in the judgment to the EPFO to take steps as per Sections 7Q and 14B of the Act is also unsustainable since any such steps could only be sequel to the determination of moneys, if any, due from the employer as envisaged under Section 7A of the EPF Act.

# 7. Per contra, the learned counsel for respondents 1 to 67 vehemently objected to the contentions in the appeal. He submitted that the judgment rendered by the learned Single Judge does not suffer from any illegality and calls for no interference. Elaborate submissions are made by the learned counsel in line with the counter affidavit filed and he adds that since the employer, viz., CIAL, had committed to pay as the employer's contribution an amount equal to the employee's contribution with interest, and had paid such equal contribution in the initial period of employment, there is no cause or reason to decline the same. It is contended that it is due to CIAL's commitment to employee welfare and also acknowledging that there was a mistake in properly understanding the EPF Act, CIAL had undertaken to pay the shortfall in contribution. It is based on the said undertaking and as directed by the Single Judge, that an amount of Rs.78.14 lakhs was deposited by CIAL. Out of the said Rs.78.14 lakhs, the employer's contribution payable is only Rs.13.24 lakhs and the balance of Rs.65 lakhs is the interest on the EPF shortfall for the period from 1995 to 2022. It is thus contended that the claim of the EPFO that they stand to lose since they have to pay interest to the employees is incorrect, since the interest portion payable to the employees has also been factored in and remitted by CIAL. CIAL has acknowledged that there was a shortfall in EPF contribution made initially and has come forward and remitted the shortfall of Rs.13,00,000/- together with interest at the rate of Rs.65,00,000/-. In such a scenario, the EPFO cannot be heard to contend that they would not accept and account the same as they would stand to suffer a loss if the same is accepted. That they may have to pay higher pensions in furtherance of the claims put forth and hence cannot accept the funds, is also per se unsustainable. Reliance is also placed on the Division Bench judgment of this Court in Jose V. Thomas and others v. The Employees Provident Fund Organisation (2024 SCC OnLine Ker 7648) to substantiate the contentions put forth.

# 8. The learned Senior Counsel for the CIAL submitted that CIAL had been pursuing the matter with the EPFO, as is evident from Ext.P1 series of representations and that it had revealed its bona fides by producing the DD for the requisite amount towards the deficiency and arrears. Further submissions were also made by the learned Senior Counsel more or less in line with the submissions on behalf of respondents 1 to 67.

# 9. We have heard the counsel for both sides in detail and have considered the contentions put forth. The primary question to be considered is whether, sans the determination of money due from the employer as envisaged under Section 7A of the Act, the learned Single Judge could have directed CIAL to produce a DD towards the purported deficiency and arrears and then proceed to direct the EFPO to encash the same and undertake a computation as envisaged under Sections 7Q and 14B of the Act. It is not in dispute that CIAL had limited the contribution to both the provident fund and the pension fund to the statutory limit till 06.06.2003. Even as per the EPFO, there was no deficiency or shortfall in the remittance of the contribution towards the provident fund by CIAL.Further, respondents 1 to 67 have already superannuated and have received the emoluments that follow without demur. It is the specific contention of the EPFO that the EPF scheme stipulates that, if so desired, the employer and the employee could jointly opt for making contributions on the actual salary, which is higher than the ceiling limit of the salary in terms of para 26.6 of the EPF Scheme, 1952. It would be relevant to reproduce paragraph 26.6 of the EPF Scheme, 1952, as it stands now. It reads as follows:

• "Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request and writing of any employee of a factory or other establishment to which the scheme applies and his employer, enroll such employee as a member or allow him to contribute on more than Rs.15,000/- of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employees."

Thus, the provision envisages a joint request for contributing more than the stipulated amount, as well as an undertaking in writing from the employer for opting to make contributions on the actual salary, which is higher than the ceiling limit of the salary. As regards respondents 1 to 67, there had been no joint request with CIAL for payment of contributions on higher wages by complying with the procedure as stipulated under para 26.6 of the EPF Scheme, 1952. The respondents never exercised the option to pay, nor actually paid the higher contribution on their actual salary exceeding the wage ceiling. They, who are no longer members of the pension fund, and have already superannuated and as of now are termed by EPFO as not to be 'employees' as envisaged in the Pension Scheme, had all along been aware of the fact that the employer's share of contribution, is restricted to the statutory ceiling and had accepted the EPF and the pension fund benefits as per their entitlement without protest. Neither respondents 1 to 67 nor the CIAL has produced any evidence to prove the contrary.

# 10. It is in the above context that the contention put forth by the EFPO that the quantum of benefits and the rate of contributions under the pension fund scheme are regulated based on the actuarial valuation becomes relevant. As regards the retrospective contributions that are now being offered, we find merit in the contention of EPFO that it never had any advantage of receiving this contribution, which, if at all chosen to pay, could have been paid years back, complying with the due procedure as explained above. EPFO, would now, under the impugned judgment, be required to bear the burden, in case any payouts are to be made, without having had the benefit of the relevant amounts for actuarial investments earlier. It is exactly for the said reason that the EPF Act does not provide or contemplate any retrospective contribution to the provident fund or the pension fund. The provision for contributing to the provident fund above the statutory limit under Para 26.6 of the EPF scheme 1952 is available to the employees only, and that too with prospective effect when the wages of the employee exceed the stipulated sum. We note that this aspect had not engaged the attention of the learned Single Judge. Ext.P1 series would indeed reveal that the CIAL had been writing to the 2 nd respondent Regional Provident Fund Commissioner, from 2018 onwards and had been persistent up till 2020 with their request to accept retrospective contribution concerning their retired employees. However, the same by itself is not a substitute for the procedure envisaged in para 26.6 of the EPF Scheme, 1952 or its present equivalent. It would also be relevant to note that Ext.P1 series issued by the CIAL refers to W.P. (C) No.1320 of 2015 and the connected cases, regarding which the EPFO had profusely mentioned in its counter affidavit that the matters touching the issue at hand are under active consideration of the Hon'ble Supreme Court. The contentions put forth based on Ext.P5 series produced as part of Annexure R1 (b), which is the "Specimen consent of Majority of employees for voluntary coverage under the EPF Act, 1952", also does not constitute a compliance with the mandates of para 26.6 of the EPF Scheme, 1952 or its current equivalent. The learned counsel for the respondents had placed reliance on a footnote in Ext.P5 series produced as part of Annexure R1 (b), which mentions that the relevant detail needs to be incorporated in the document only if 'retrospective coverage is desired' and attempts to contradict the contention of the EPFO that retrospective coverage is never envisaged in the EPF Act. The said contention, however, is bound to fail as the footnote in the form cannot be a substitute, nor can it override the Act or the Scheme. The dictum laid down by the Hon'ble Supreme Court in Pavan Hans Limited (supra), in a comparable though not similar context, is relevant. It reads as follows:

• "Provident Fund is normally managed on actuarial basis; the contributions received from employer and the employee are invested and the income by way of interest forms the substantial fund through which any pay out is made. For all these years the Fund in question was subsisting on contributions made by the other employees and, if at this stage, the benefit in terms of the judgment of the High Court is extended with retrospective effect, it may create imbalance. Those who had never contributed at any stage would now be members of the fund. The fund never had any advantage of their contributions and yet the fund would be required to bear the burden in case any payout is to be made. Even if concerned employees are directed to make good contributions with respect to previous years with equivalent matching contribution from the employer, the fund would still be deprived of the interest income for past several years in respect of such contributions. ( Emphasis supplied) 

It is trite that the employer cannot contribute retrospectively to the pension fund more than statutory limits just to derive benefits which were not available to the members when the contribution was limited to statutory wages. As regards the reliance placed on the dictum in Jose v. Thomas (supra), we note that in the said case, the prayer was to quash the order of rejection issued by the EPFO, which had been produced as Ext.P3 therein. Thus, in Jose v. Thomas (supra), the employer had moved the EPFO requesting to permit them to deposit the arrears towards the employer's contribution to the EPF account with retrospective effect on the actual salary and the said prayer had been rejected by the EPFO. In the case at hand, however, there is no rejection or even consideration of the request preferred by CIAL. Hence, the dictum in Jose v. Thomas (supra) does not assist the case of respondents 1 to 67.

# 11. We see merit in the submission of the learned counsel for the appellants that the learned Single Judge could at the most have directed consideration of the representation of CIAL rather than directing production and encashment of the DD. A direction to process the matter further as per Sections 7Q and 14B of the Act without a determination first under Section 7A could not have been made. Unless a determination of the money due from the employer as envisaged in Section 7A of the EPF Act is carried out by the EPFO, the question of accepting the amounts unilaterally arrived at by the employer and produced vide a DD before the court does not arise.

# 12. We note that the Employees Provident Fund was envisioned with the avowed object of making some provision for the future of the employee after he retires or in case of his early death to provide for his dependents. It is necessary to ensure that the EPF scheme remains financially sustainable. Providing the guaranteed benefits is crucial for both employee security and the long-term viability of the fund. Vested social security rights of the employee vis-à-vis the provident fund has to be harmonised with the health of the fund. Affecting retrospective contributions and seeking payment of pension on the said basis has the propensity to burden the funds and to unsettle its actuarial basis. Determination of the moneys due from the employer under Section 7A and issuance of an order calling upon the employer after quantification is a sine qua non for receiving deficiency or arrears from the employer. In the total absence of any legal norms that permit retrospective coverage, the learned Single Judge had erred in directing the CIAL to produce a DD for the alleged deficiency of contribution for the period 1995 to 2003 and in directing the appellants EPFO to encash the said DD and undertake the computation as envisaged under Section 7Q and 14B of the Act.

# 13. In the light of the above, the judgment dated 28.03.2022 in W.P.(C) No.7801 of 2020 of the learned Single Judge is set aside. The appellants are hereby directed to treat Ext.P1 series or any other representation, if any, that the CIAL may submit and consider the same in accordance with law and as per the mandates of the EPF Act.

This appeal is allowed as above. No costs.

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Gopinathan Pillai M. & Ors. Vs. Union of India (UOI) & Ors. - The petitioners and the 4th respondent having complied with the requirements under the said paragraph, and the Employees Provident Fund Organisation accepted the contributions, the 2nd respondent cannot deny the petitioners the benefit of higher pension.

  HC Kerala (2025.02.24) in Gopinathan Pillai M. & Ors. Vs. Union of India (UOI) & Ors. [2025:KER:15578, WP(C) Nos.1932/2025 & 40261/2024] held that;

• The petitioners and the 4th respondent having complied with the requirements under the said paragraph, and the Employees Provident Fund Organisation accepted the contributions, the 2nd respondent cannot deny the petitioners the benefit of higher pension.

Excerpts of the Orders

Since the parties are the same and common issues arise for consideration in these writ petitions, they are disposed of by this common judgment. For the sake of convenience, unless otherwise expressly indicated, the exhibits and the status of the parties referred to in this judgment will be as obtaining in W.P.(C) No.40261 of 2024.

2. The petitioners retired from the service of the 4th respondent, a Central Society registered under the Kerala Co-operative Societies Act, 1969, on various dates after 01.09.2014. W.P.(C) No.40261 of 2024 is filed for the following reliefs:

• “i] Call for the records leading to issue Ext. P15 and similar orders issued to other petitioners and quash the same by issuing a writ of certioriari or any other appropriate writ order or direction.

• ii] declare that all the petitioners are entitled to get higher pension in the light of para 44(ix) of Ext.P9 Judgment with the time frame fixed by this Hon'ble Court in the light of the Judgment in Sunil Kumar case. 

• iii] declare that since collecting the contribution for the period April, 2004 to October 2006 amounting to Rs.40,03,150/- with interest of Rs.1,64,137/- on 16.11.2006 and October 2007 to February 2008 amounting to Rs.13,00,684/- with interest of Rs.11,879/- on 26.03.2008, the EPFO cannot turn round and deny pension under para 44(iv) & (v) of the Sunil Kumar Judgment stating that petitioners not exercised option while in service, which has no application on the facts of the case.

• iv] Declare that petitioners are entitled to get 12% interest in terms of para 17A of the Pension Scheme, 1995.”

3. According to the petitioners, while in service, they made contributions to the provident fund on the basis of the actual salary drawn by them. The 4th respondent employer also contributed on the basis of actual salary. When the Employees' Provident Fund Pension Scheme, 1995 was introduced with effect from 16.11.1995, all of them enrolled in the Pension Scheme. However, they were permitted to contribute to the Pension Scheme limiting their salary as Rs.5,000/- or Rs.6,500/- on the ground that an artificial cut off date was made by the Employees' Provident Fund Organisation with effect from 01.12.2004. The petitioners challenged the cut off date by filing W.P.(C) Nos.30882 of 2014 and 2341 of 2017 along with others and this Court, by Ext. P1 judgment dated 20.11.2014 in W.P.(C) No.30882 of 2014, permitted the petitioners to contribute to the pension fund on the basis of actual salary. The contribution to the EPF scheme was 12% of their actual wages as employees contribution and equal amount of 12% by the 4th respondent. Based on audit report objecting to the payment of EPF contribution without considering the statutory limit, the Government issued directions to the 4th respondent to limit the employer share  of EPF contribution to the statutory wage ceiling. The same was challenged by the employees and their association in O.P. No.19664 of 1998 wherein this Court, by an interim order permitted the employer to pay contribution on actual wages to the EPFO without considering the statutory limit. However, the said original petition was dismissed by judgment dated 02.09.2003 and the 4th respondent decided to limit the employer share of EPF contribution to the statutory wage ceiling. Against the said judgment, a writ appeal was filed as W.A. No.1591 of 2003 wherein the Division Bench of this Court passed Ext.P10 interim order on 09.03.2004 permitting the employer to deposit the amount in excess of the statutory limit in a separate account in a Nationalised Bank and in case the employees succeed in the appeal, the amount shall be deposited in their provident fund accounts along with 9% interest thereon. In the light of the said order, the Board of Directors of the 4th respondent resolved to deposit the amount in excess of the statutory limit in separate bank account till a decision is taken in the writ appeal and accordingly, separate bank accounts were opened by the 4th respondent wherein the employer contributions in excess of the statutory limit were deposited for the period from April 2004 to October 2006. The writ appeal was dismissed by this Court by judgment dated 23.05.2006. However, the Division Bench observed that where an employer on his volition  pay more than what is statutorily required, he shall have the choice to do so. Based on this observation, and with the permission of the Government, the 4th respondent decided to resume remittance of employer contribution based on the actual wages and to transfer the amount deposited in the bank along with interest for the period from April 2004 to September 2006. The remittance, as above, continued till the month of August 2007 and was stopped awaiting orders from the Government. On obtaining sanction from the Government, it was decided to continue the system of remittance of EPF contribution without ceiling from September 2007 to January 2008. Thus the amounts which were deposited in separate bank accounts were transferred to the EPFO.

4. Pursuant to the judgment in Employees Provident Fund Organisation and Another v. Sunil Kumar B. and Others [2022 (7) KHC 12], the petitioners who were continuing in service since 01.09.2014 were permitted to exercise option for higher pension and they exercised their options under paragraph 11(3) and 11(4) of the Scheme.

5. The petitioners retired from service during 2020-2022. However, they were denied higher pension stating the reason that from April 2004 to October 2006, and October 2007 to February 2008, the employer paid contribution on statutory limit. The petitioners state that Exts. P12 and P13 communications issued by the 4th respondent to the 2nd respondent would show that the 4th respondent had paid the contribution above the ceiling limit for the period from April 2004 to October 2006. By Ext. P15, the joint option of the 1st petitioner was rejected on the ground that the employee and the employer had not contributed on actual wages under paragraph 26(6) of EPF Scheme, 1952 for various months for the period 2004-2008 on salary exceeding the prevalent wage ceiling of Rs.5,000/- or Rs.6,500/- or Rs.15,000/-. Similar orders were issued to the other petitioners also. Challenging Ext. P15 and other similar orders, W.P.(C) No.40261 of 2024 is filed.

6. In the counter affidavit filed by respondents 2 and 3 in W.P.(C) No.40261 of 2024, it is stated that the employer paid contributions in bulk only for the months 11/2006 and 03/2008 instead of making monthly payments and hence the payments do not properly match to each due month. Because of this, the petitioners’ claims under the EPS Rules were rejected, and the split up returns submitted later cannot be accepted.

7. In the counter affidavit filed by the 4th respondent in W.P.(C) No.40261 of 2024, it is stated that pursuant to the sanction obtained from the Government, and in obedience to the Board decision, and on the basis of the observation in W.A. No.1591 of 2003, the 4th respondent had remitted the employer contribution based on the actual wages for the period April 2004 to September 2006 and from September 2007 to January 2008. It is stated that as directed by this Court in Ext. P10 order, the contribution was deposited in separate Bank account and later, transferred to the EPFO in two spells and the amounts were accepted by the EPFO. It is further stated that the 4th respondent has furnished proof of remittance of employer and employee contribution under Paragraph 26(6) of the EPF Scheme, 1952 for the period from 2004-2005 to 2007-2008 in respect of the petitioners and other employees. It is asserted that the defect pointed out by the EPFO in Ext. P15 and similar letters is not correct and the 4th respondent as well as the employees had contributed on actual wages for the aforesaid period. Though there was a late payment due to want of Government sanction, the 4th respondent had remitted the contribution above the statutory limit and on actual wages. The 4th respondent has also produced Ext. R4(c), a statement showing the monthwise break up of lump sum remittance for the period from April 2004 to October 2006 and from September 2007 to January 2008 in respect of the petitioners. 

8. When W.P.(C) No.40261 of 2024 came up for consideration on 12.12.2024, this Court observed that Ext. P15 order has been passed by the 2nd respondent without adverting to or without referring to Ext. P12 communication issued by the employer or their own records and the 2nd respondent was directed to revisit Ext. P15 order in the light of Ext. P12 within a period of three weeks. It was also ordered that, if any clarification is required from the employer, the same shall be obtained within the aforesaid time. 

9. Pursuant to the order dated 12.12.2024, the 2nd respondent passed Ext. P18 order in W.P(C) No.1932 of 2025 rejecting the claim of the petitioners for higher pension on the basis of actual salary. In Ext. P18, it is stated that the remittance for the wage months from 2004 to 2008 was made by the employer in bulk against the wage months 11/2006 and 03/2008, not in respective months and such bulk amounts were credited to the employees account only for the months 11/2006 and 03/2008 as arrears. Accordingly, it is stated that, since the apportionment of the payment against the  respective due months was not done, the contribution on actual salary as per paragraph 26(6) was not remitted in respective months and the petitioners are not eligible for higher pension. Challenging Ext. P18, W.P.(C) No.1932 of 2025 is filed.

10. According to the petitioners, contributions under the EPF Scheme, 1952, at the rate of 12%, were regularly made by the petitioners, with an equal contribution by the employer, based on the actual salary drawn, until retirement, except for a brief period from April 2004 to October 2006, and from October 2007 to February 2008. Later, contributions for these periods were made along with interest. It is therefore contended that, having accepted these contributions, the 2nd respondent cannot deny the petitioners the benefit of higher pension as per paragraph 24 of the judgment in Sunil Kumar B (supra). The petitioners also relied on the decision of this Court in Mohanan K.S. v. Regional Provident Fund Commissioner [2024 KHC 7281: 2025 (1) KLT 28] and contended that higher pension cannot be denied on ground that remittance of contribution was made by the employer in lump sum.

11. Heard Sri. P.N. Mohanan, the learned counsel for the petitioners, Smt. Nita N.S., the learned standing counsel for the Employees Provident Fund Organisation and Smt. Latha Anand, the learned counsel for the 4th respondent.

12. The joint options of the petitioners were rejected by the 2nd respondent on the ground that the employee and employer did not contribute on actual wages during various months for the period from 2004–2006 to 2007–2008. However, the 2nd respondent does not dispute that the payment for this period was received in two bulk payments. The only contention raised is that the amount received was not appropriated to the respective months, and therefore, the petitioners are not eligible for higher pension. In paragraph 19 of the counter affidavit filed by the 4th respondent, it is stated that, as instructed by the Assistant Provident Fund Commissioner, Regional Office, Thiruvananthapuram, the 4th respondent furnished proof of remittance of both employee and employer contributions under Para 26(6) of the EPF Scheme, 1952, for the period 2004–2005 to 2007–2008 in respect of the petitioners, vide letters No. TD/PER/ 47/2024/ 1588 dated 04.08.2024 and TD/PER/ 47/2024/ 1695 dated 19.08.2024. The statement showing the month-wise break-up of the lump-sum remittance for the said period is produced as Ext. R4(c). It is stated that administrative charges were also paid as provided under Para 26(6). Admittedly, the Employees Provident Fund Organisation has received contributions from both employees and employer under Para 26(6) of the EPF Scheme, 1952, for the period 2004–2005 to 2007–2008. Paragraph 26 (6) deals with instances where employees and employers opt to  contribute to the Employees' Provident Fund on wages exceeding the statutory limit. The petitioners and the 4th respondent having complied with the requirements under the said paragraph, and the Employees Provident Fund Organisation accepted the contributions, the 2nd respondent cannot deny the petitioners the benefit of higher pension. Accordingly, Ext.P15 in both writ petitions and Ext.P18 order in W.P © No. 1932 of 2025 and similar orders issued to other petitioners are set aside. It is declared that the petitioners are entitled to get higher pension on actual wages. The respondents 2 and 3 are directed to take consequential steps to  disburse higher pension to the petitioners based on the split-up data submitted by the 4th respondent within a period of three months from the date of receipt of a copy of this judgment. It is made clear that this judgment will not stand in the way of respondents 2 and 3 initiating any proceedings against the employer in terms of the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 or the Scheme.

The writ petitions are disposed of accordingly.

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