IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 10900 of 2026 Harisankar Chattopadhyay Vs The Regional Provident Fund Commissioner, Durgapur & Ors. For the Petitioner : Harisankar Chattopadhyay (in person). For the Respondent HCL : Ms. Sanjukta Dutta, Mr. Ronit Roy. For the P.F. Authorities : Mr. Anil Kr. Gupta. Judgment reserved on : 24.08.2026 Judgment delivered on : 28.09.2026 Shampa Dutt (Paul), J.: 1. The present writ petition concerns illegal withholding and non-credit of the Petitioner's apportioned share of "Reserve and Surplus accumulated in the exempted Provident Fund Trust of Hindustan Cables Limited. 2. The petitioner’s case is that, a Board of Trustees run by the elected Trustees/Members from amongst the employees of Hindustan Cables Limited managed the exempted Provident Fund Trust, governed by 2 approved Trust Rules. This was as per Employees Provident Fund Act, 1952 and the Scheme made thereunder. 3. Upon cancellation of the exemption with effect from 17.10.2011, repeated directions were issued by the Regional Provident Fund Commissioner, Durgapur requiring transfer of provident fund accumulations together with all records and Past Accumulation Statements ("PA Statements"). 4. Pursuant to such directions and by using the format prescribed and supplied by the RPFC itself, the Board of Trustees prepared and submitted the final PA Statements on 27.11.2013. 5. Apart from individual Provident Fund balances, the exempted Trust had shown in the PA Statement accumulated "Reserve and Surplus" balances for every individual employee, the total of which was Rs.28,10,39,695/ as per Balance Sheet for approximately two thousand employees as on 17.10.2011. 6. Therefore, the present controversy is not about fresh determination of entitlement. The entitlement for the petitioner-employee already stands:- a) identified, quantified and apportioned, b) reflected in the official PA records prepared under RPFC directions, c) the accumulated amount no longer remains an unallocated reserve or discretionary fund and the claim is not an unascertained or speculative claim. 3 7. Rule 44 of the approved Trust Rules specifically provided that upon winding up of the Fund, such surplus ought to have been distributed amongst eligible members on pro rata basis. This Rule 44 substantially embodies the same principle in Paragraph 28(2) of the EPF Scheme, 1952. 8. According to the rule the Board of Trustees apportioned the said Reserve and Surplus amongst eligible employee-members and reflected the same in the PA Statements duly submitted to the EPFO, Durgapur while transferring the entire fund [Annexure P/4, Page - 49 & 50]. 9. In the Petitioner's case, the finalized PA Statement reflected total net accumulation including Reserve and Surplus as Rs. 9,30,312/- (total of column Nos. 21 and 22 of the Past Accumulation Statement) as on 17.10.2011. 10. However, while opening the Petitioner's PF account after transfer to EPFO, the Respondents credited only Rs. 7,60,650/- (that is the total of column Nos. 17 and 18) and whimsically or deliberately excluded the apportioned Reserve and Surplus component amounting to Rs. 1,70,262/- (that is the total of column Nos. 19 and 20). 11. Thus, the Petitioner's quantified and crystallized beneficial entitlement of Rs. 9, 30, 312/- has not been carried forward into the EPF account. 12. Initially, the Respondents denied existence/receipt of any PA Statement or Calculation Sheet showing any apportionment of Reserve and Surplus amount by the BOT. 4 13. Subsequently, documents obtained under the Right to Information Act, 2005 disclosed that: a) the PA Statements had in fact been submitted on 27.11.2013; b) the Reserve and Surplus had already been apportioned as per rule; and c) the Respondents were in possession of such records. 14. The Respondents are, since the transfer, merely withholding money which does not belong to them. 15. The petitioner’s case thus is that, the retiral and provident fund dues are valuable property rights and cannot be withheld without authority of law. 16. The petitioner relies upon the following judgments:- a) In Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330, the Hon'ble Supreme Court held that retiral benefits are not bounty but valuable rights constituting property. b) In State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, the Hon'ble Supreme Court held that a person cannot be deprived of retiral benefits without authority of law under Article 300- A of the Constitution. c) In Organo Chemical Industries v. Union of India, (1979) 4 SCC 573, the Hon'ble Supreme Court held that Provident Fund law is a beneficial social welfare legislation enacted for protection of employees. 5 d) In Regional Provident Fund Commissioner v. Shiv Kumar Joshi, (2000) 1 SCC 98, the Hon'ble Supreme Court recognized employees as beneficiaries of enforceable provident fund obligations. e) In Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422, the Hon'ble Supreme Court reiterated the well-established principle originating from Nazir Ahmad v. King Emperor, AIR 1936 PC 253, and approved in State of U.P. v. Singhara Singh, AIR 1964 SC 358, and held that where law prescribes a particular manner of doing an act, it must be done in that manner or not at all. 17. In the present case:- i. the RPFC himself prescribed the format and mechanism for PA Statements; ii. the Trust complied with such directions; iii. the entitlement stood crystallized; iv. yet the Respondents failed to carry forward the apportioned Reserve and Surplus into the Petitioner's PF account. 18. The petitioner states that, there is no statutory provision authorizing such withholding has been disclosed by the Respondents. The Respondents are merely retaining money in fiduciary capacity which admittedly does not belong to them. They hold it in trust for the beneficiaries. The Petitioner is one of the lawful beneficiaries. 19. The impugned action of the Respondents is therefore:- i. arbitrary, 6 ii. violative of Rule 44 of the Trust Rules, iii. contrary to Paragraph 28(2) of the EPF Scheme, and iv. violative of Articles 14 and 300-A of the Constitution of India. 20. The Petitioner therefore prays for directions upon the Respondents to:- i. restore and credit the Petitioner's apportioned Reserve and Surplus amount of Rs. 1,70,262/- into his PF account; ii. pay consequential statutory interest; iii. allow withdrawal/payment of the same; and iv. grant consequential reliefs including exemplary cost for flouting rules. 21. An affidavit has been filed on behalf of the establishment Hindustan Cable Ltd. being the respondent no.4 herein, wherein the establishment has stated as follows:- “That by order dated October 17, 2011, the Regional Provident Fund Commissioner, Sub-Regional Office, Durgarpur, respondent no. 1 herein communicated to the then Unit Head of the respondent no. 4 establishment, the decision of withdrawal of exemption. The respondent no. 4 establishment was directed to comply as an un-exempted establishment and transfer the fund along with past accumulation statement within such time and such manner as per provisions of the Act and Scheme. That as on the date of cancellation of exemption [October 17, 2011 the accumulated fund of the trust of Hindustan Cables Officers Provident Fund Trust after settlement in favour of the officers and members of the Officers Provident Fund accumulated to Rs. 12,83,73,634/- (Rupees 7 Twelve Crores Eighty-Three Lacs, Seventy-Three Thousand, Six Hundred and Thirty-Four) only. As a result, along with the past accumulation statement, the entire trust fund which was shown as 'Reserves and Surplus' in the audited Balance Sheet for the period 2011-2012 was transferred in favour of the Central Board of Trustees. That the Regional Office, Durgapur had further assessed and recovered all the leviable dues, damages, interest etc. in this regard. The Trust was closed and there are no issues pending with the Trust with respect to the petitioners herein.” 22. Admittedly, on the relaxation/exemption being withdrawn by the letter dated 14/17.10.2011, the establishment, the respondent no.4 was directed to comply as an unexempted establishment and transfer the fund along with past accumulation statement, as per the Act and Scheme. 23. From the impugned orders, it is clear that the total past accumulation along with statement, and fund was transferred to the respondent authority, which is admitted in the impugned order. From the copies of balance sheet annexed it appears that the past accumulation statement along with transfer of fund clearly notes that the “fund which stood transferred under the head Reserve and Surplus” and the amount also was specifically quantified, in respect of each employees. 24. The said documents are part of the auditors report being balance sheet. (Scanned copy of the report is reproduced herein after Para 21). In the affidavit in opposition filed by the respondent authority it appears that 8 similar averments have been made in their report in the form of an affidavit. 25. Reply thereto also relates to claim of the petitioner as made in the writ application. 9 26. In course of hearing both parties have submitted their written notes of argument along with judgments relied upon. 27. The writ petitioner has argued that HCL was an exempted establishment under section 17(1)(a) of the EPF and MP Act, 1952 and had its own PF Trust. During the employment many officers made excess/additional contribution towards the PF Trust. On 17.10.2011, the exemption granted 10 to HCL was cancelled by the Central Government. The audited Balance sheet of the PF trust had a surplus figure of Rs. 12,83,73,634/- as on 17.10.201. With the cancellation of the exemption, the respondent RPFC, Durgapur had been the custodian of all bonds, securities and investment in relation to the members of the erstwhile PF Trust, including the undistributed surplus amount of Rs. 12,83,73,634/-. The said surplus amount represents the excess contribution made by the ex-officers of HCL towards the PF Trust. The petitioner no.1 made several representations before the Respondent No.1 for disbursement of the surplus fund to the beneficiaries/members who were existing as on and prior to 17.10.2011. The prayer for disbursement of the surplus has been turned down by letters dated 29.05.2019 and 27.06.2019. Similar prayer for disbursement raised by the Hyderabad Unit employees of HCL has been allowed and amounts have been disbursed. 28. The petitioner further argues that the amount of surplus and reserve, which the respondent PF authorities have taken over is the accumulation of excess contributions made by the ex-officers and employees towards the PF Trust of HCL, prior to the cancellation of the exemption. The Trust Rules, particularly Rule 44 provides for the provision for distribution of the fund amongst its members. The PF authorities cannot treat the employees of the Hyderabad Unit and Rupnarayan Unit differently. They have allowed distribution of surplus and reserve to the officers and employees of the Hyderabad Unit of HCL. The 11 respondents have therefore erred in rejecting the distribution of reserves. The trust Rules have been wrongly applied. The Rules have been approved by the Provident Fund themselves, therefore, with the winding up of the Trust, the Reserves should be distributed amongst the members and not to the public at large. 29. In view of the rejection of the prayer of the petitioners by the respondent authority relying upon para 28 of the EPF Scheme, 1952 the petitioners argues that the provision of Paragraph 28 of the EPF Scheme, 1952 deals with situations only falling under Section 15(2) and Section 17(5) of the EPF and MP Act, 1952. The case at hand is not covered under either under Section 15(2) or under 17(5) of the EPF and MP Act, 1952. Therefore, the provision of Paragraph 28 of the EPF Scheme, 1952 is not applicable in the present case. 30. The petitioners rely upon the judgment of the Supreme Court in Employees Provident Fund Organisation & Anr. v. Sunil Kumar B & Ors. reported at (2023) 12 SCC 701. A supplementary written notes has been filed by the writ petitioner, wherein it is stated that under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the schemes framed thereunder, the contributions remitted by the employer and the employee are credited to the specific accounts of the employees and not to the larger pool of the EPFO. Para 49, 50 and 51 of the said Scheme provides for the different types of accounts to be maintained by the respondent authorities, namely, 12 Administrative Accounts, Provident Fund Accounts and Interest Account respectively. Para 52 of the said Scheme provides for the Investment of moneys belonging to Employees' Provident Fund. Para 53 of the said Scheme provides for the Disposal of the Fund. It is specifically mentioned that subject to the provisions of the Act and the Scheme, the Fund, not including the therein Administrative Account, shall not, except with the previous sanction of the Central Government, be expended for any purpose other than the payment of sums standing to the credit of individual members of the Fund. Therefore the amount lying as reserve fund is liable to be expended only towards the member employees. Para 72 of the said Scheme provides for Payment of Provident Fund. Para 72(6) provides for when the respondent authority may retain the accumulation. It is specifies under Para 72(6) that any amount becoming due to a member, whose claim has been settled but which could not be remitted for the want of latest address or where no application for withdrawal has been filed or an amount is remitted to a person is received back as undelivered and is not claimed again within 36 months, then such amounts may be transferred to an Inoperative Account. 31. Mr. Anil Kumar Gupta, learned Counsel for the Respondent P.F. Authorities has relied upon the judgment of this court passed in WPA 27817 of 2023 (Dilip Kumar Chowdhury & Ors. v. The Regional Provident Fund Commissioner, Durgapur, EPFO & Ors.) dated 31.01.2025, wherein this Court in a similar case in respect of the same 13 establishment dismissed the claim of the petitioner therein. It is submitted by Mr. Gupta that an appeal is pending against the said dismissal and there is no stay granted by the Hon’ble Division Bench. 32. Considering the fact that the writ application was dismissed and the facts and circumstances of the case and the relief prayed for by the petitioner therein the Division Bench was of the view that the order of stay was not called for. 33. Learned Counsel for the petitioners rely upon paragraph 13 of the said judgment in Dilip Kumar Chowdhury & Ors. (Supra), which is reproduced below:- “13. It is thus seen that when the provident fund dues were paid to the writ petitioners, the said amount also included their share in respect of the fund accumulated under “Reserve and Surplus” and as such there is no outstanding dues in respect of the petitioners.” 34. The petitioner further states that this court passed the said judgment on the observation that the provident fund dues/amount which was paid to the writ petitioner included their share in respect of the fund accumulated under “Reserve and Surplus”. It is thus submitted that the Court was clearly of the view that the employees/petitioner workmen were entitled to the said reserve and surplus. The said fact as to entitlement was clearly decided by the Court in the said judgment of Dilip Kumar Chowdhury (supra). 14 35. It appears from the said judgment Dilip Kumar Chowdhury (supra) relied upon by Mr. Gupta, that this Court considering the materials on record was of the view that the amount transferred to the RPF authorities was a consolidated amount which including the provident fund dues and also the reserve and surplus. It appears that the case before the Court as placed by the provident fund authorities was that there was no separation of funds under different heads as argued by the petitioner as per para 49, 50, 51 of this Scheme. 36. Thus this court in Dilip Kumar Chowdhury (supra) was under the impression that the total fund was a consolidated fund and there being no separate fund maintained for reserve and surplus, came to the conclusion that when the provident fund dues were paid to the employees, it included the reserve and surplus. As to the entitlement of their share in the reserve and surplus there was no doubt in the mind of the Court that the employees/writ petitioners were entitled to their share of the reserve and surplus. 37. In the present case, the petitioner herein has succeeded in placing several documents to substantiate his claim that the reserve and surplus account is separate head of account and the petitioners are clearly entitled to their share in respect of the said amount, as the past accumulation statement has been also supplied to the provident fund authorities showing the entitlement of each of the employees which includes their share of reserve and surplus. As such this court is of the 15 view that on the new documents being placed, this court is now in a position now to reconsider its view taken by this Court in Dilip Kumar Chowdhury (supra). 38. In support, the judgment, in Vineesh vs State of Kerala, Bail Application No. 14647 of 2025, decided on 9th March, 2026, of the Kerala High Court is relied upon:- “10. The learned counsel for the applicants placed much reliance on the decision rendered by me in Mohammed Noufal (supra), and the subsequent two orders of two other Single Benches of this Court, as referred to above. As rightly argued by the learned BA No.14647/2025 & conn.cases 2026:KER:20618 Public Prosecutors, the decision rendered by me in Mohammed Noufal (supra) was without noticing the relevant statutory provisions i.e., Section 22 of the Sand Act and Section 26 of the General Clauses Act, as well as the binding precedents mentioned above. The subsequent two orders in Mohammed Salih (supra) and Sirajudheen (supra) were rendered simply following my order in Mohammed Noufal (supra). The above mentioned statutory provisions or binding precedents were not brought to the notice of the Court in Mohammed Salih (supra) and Sirajudheen (supra) also. 11. This Court is convinced that a mistake was made in the aforementioned order in Mohammed Noufal (supra). However, realising a mistake afterwards does not allow this Court to deviate from the binding precedents mentioned above, and usually a reference to the Division Bench would have been necessary. But in this case, the said prohibition does not apply since relevant provisions (Section 22 of the Sand Act and Section 26 of the General Clauses Act) and the binding precedent of the Supreme Court and of this Court on the point (Sanjay, Sayyed Hassan, Kanwar Pal Singh, Jayant, Sujith and Shihad) were neither noticed nor considered by this Court, which permits this Court to differ from its earlier view [See Joby v. District Collector, 2017 (1) KLT 183]. A decision is considered per incuriam if it is made in ignorance of a BA 16 No.14647/2025 & conn.cases 2026:KER:20618 binding precedent or a relevant statutory provision that significantly affects the outcome. A decision made per incuriam has no binding precedent force. 12. To persist with an error is not virtuous; correcting it is a duty of judicial integrity. The strength of a Judge lies not in the claim of infallibility, but in the courage to admit error and the humility to correct it when conscience and law reveal a truer course. Therefore, when a Single Judge renders a judgment without recognising a binding precedent and relevant statutory provisions, the same Judge is justified in subsequently differing from that earlier view. For these reasons, I am persuaded by my judicial conscience to differ from my earlier view in Mohammed Noufal (supra).” 39. A very relevant document filed in the present writ application is a letter dated 27.11.2013 issued by DGM (FNC) to the Regional Provident Fund Commissioner, Durgapur and the same relates to submission of past accumulation statement as on 17.10.2011 consequent upon withdrawal of relaxation in respect of respondent no.4. 40. From the said past accumulation statement it appears that the respondent no.4 while transferring the fund has categorically, stated the amount on due calculation, under different heads in respect of whom the fund was transferred. 41. The writ petitioner herein Harisankar Chattopadhyay, on filing a RTI application, also being an employee of respondent no.4 and similarly placed as the writ petitioners in Dilip Kumar Chowdhury (supra) made a RTI application and the calculation shown in respect of the writ petitioner includes the share of the said employee, also under reserve and 17 surplus among other heads. It appears the share of the said writ petitioner as to the reserve and surplus has been duly quantified in the said past accumulation statement which has been done in the case of all employees. 42. If that is the case wherein it appears that the fund transferred to the provident fund authorities, along with past accumulation statement, showing the entitlement of each of the employees under the respective heads including their share of reserve and surplus, which is all duly quantified, this court finds that the said statement also clearly shows the entitlement of the employees/writ petitioners. As to the amount also quantified under the “reserve and surplus” which admittedly, was an amount accrued on the investment, of the contribution made to the provident fund account of the employee, any return from such investments is the lawful entitlement of the employee. 43. Para 28 of the EPF Scheme, 1952, provides:- “28. Transfer of accumulations from existing Provident Funds.- (1)Every authority in charge of, or entrusted with the management of, any Provident Fund in existence [* * *], the accumulations wherein are to be transferred to the Fund under sub-section (2) of section 15 of the Act, [or sub-section (5) of section 17 thereof, as the case may be] shall, [* * *] (i) send to the [* * *] Commissioner a statement showing the amount standing to the credit of each subscriber on the date of the transfer, the total accumulations to the credit of subscribers generally on that date and the advances, if any, taken by the 18 subscribers [within twenty-five days of the application of the Scheme, or cancellation of the exemption, as the case may be] (ii) transfer to the Fund in the manner specified in sub- paragraph (2) the total accumulations standing to the credit of the subscribers in relation to each factory [within ten days of the application of the Scheme, or cancellation of the exemption, as the case may be, in case of liquid cash in bank and within thirty days in case of securities]; and (iii) transfer to the [Central Board] all pass books, books of account and other documents relating to the said accumulation. (2)All accumulations standing to the credit of the subscribers, howsoever invested, shall be transferred to the Fund by the authority aforesaid in cash: [Provided that where the whole or any part of such accumulations consists of investments in Government securities, [or in securities guaranteed by appropriate Government as regards repayment of principal and payment of interest or in both] the authority making the transfer to the Fund shall transfer those securities at the price for which they were actually purchased or transfer a sum equivalent to such price. In case, however, the whole or any part of such accumulations is invested in National Savings Certificates or National Plan Savings Certificates, the appreciated value of such certificates at the time of the transfer will be taken into account in determining the amount of the accumulations to be transferred, provided that the difference between the face value of such certificate and their appreciated value at the time of the transfer has already been credited to the accounts of the subscribers:] [Provided further that where the whole or any part of such accumulations consists of investments in [securities bearing no guarantee of an appropriate Government as regards repayment of principal and payment of interest] the Central Government may, in exceptional cases, allow acceptance of the transfer of such securities from the authority making the transfer to the Fund at the price for which they were actually purchased.] 19 Explanation.-The total amount of provident fund accumulations includes interest thereon and the authority in charge of the Fund shall transfer in cash any balance of interest on investments which happens to be undistributed on the date of the transfer, or realised or realisable for the period prior to the registration of the securities in the name of the Central Board of Trustees, Employees' Provident Fund. (3) Any cash transferred under sub-paragraph (2) shall be deposited in any office or branch of the Reserve Bank of India or the [State] Bank of India to the credit of the Central Board, and the receipt obtained in respect thereof shall be forwarded to the [* * *] Commissioner: Provided that where there is no office or branch of either of the two Banks at the place where the [factory or other establishment] is situated the amount shall be credited to the Central Board by means of a Reserve Bank of India [Governmental Draft at par]. (4) The accumulations transferred to the Fund in accordance with this paragraph shall be credited to the account of each of the members of the Fund, to the extent to which he may be entitled thereto having regard to the statement furnished by the authority aforesaid. (5) When the accumulations in any such Provident Fund as is referred to in sub-paragraph (1) have been so transferred to the Fund, the [* * *] Commissioner may, by notification in the Gazette of India, declare that the subscribers of such Provident Fund have now become members of the Fund and that the accumulations aforesaid have now become vested in the Central Board.” 44. Thus Para 28(4) EPF Act clearly states that the fund transferred should be credited to the account of each of the members (employees) of the fund as per statement, (past accumulation statement), which herein also quantifies the reserve and surplus amount. 20 45. In view of the said facts this Court is of the view that:- i. The impugned order that the amount lying with reserve and surplus fund cannot be distributed, in view of para 28 (2) of the EPF Scheme, 21 1952 is clearly erroneous and not in accordance with law being an abuse of the process of law. ii. Para 28 of the E.P.F. Scheme, 1952 only talks transfer of fund and the interpretation of the authority concerned that once it is transferred to the Central Board Trustees, it becomes part of the EPF Corpus and belongs to all the members of the funds and not just employees of the establishment, is not in accordance with law being a totally erroneous, interpretation of the beneficial Act and Scheme, in view of the provision of Para 28(4) of the scheme. iii. Admittedly, the transfer of the fund in this case, in the year 2011 on the exemption/relaxation being withdrawn, included the provident fund contribution and reserve and surplus etc. and admittedly the provident fund dues have been paid to the employees by the authorities concerned even after the fund was transferred to the Central Board Trustees and as such the explanation of the authorities concerned stating that once the reserve and surplus is transferred, it becomes fund of the EPF Corpus is a wrong interpretation, which goes against the intention of the legislation while creating such laws for the benefits of the employees. 46. In view of the facts as discussed above, it is seen that the past accumulation statement while transferring all fund of the respondent no.4 clearly showed the provident fund dues and other dues and also clearly 22 quantified the dues of each and every employee as per their entitlement to the share in the reserve and surplus fund. 47. As such when the provident fund dues could be paid from the same fund by the Central Board of Trustees on transfer, the quantified amount of reserve and surplus as shown in the past accumulation statement is also to be transferred to each of the employees as per their rightful and legal entitlement. 48. The said view of this Court is supported by the fact that the authorities at Hyderabad rightly interpreted the said entitlement of the employees and transferred the reserve and surplus amount to the respective employees as per their entitlement, in view of the fact that the same is quantified in the past accumulation statement. 49. The authority in Kolkata, West Bengal has totally misinterpreted the law in respect of the respondent no.1 in this case, in the impugned notice/order dated 08.03.2018, observing that the amount has been transferred as reserve and surplus fund as shown in the balance sheet, by totally ignoring the details provided in the past accumulation statement while transferring the funds, on exemption being withdrawn. 50. Thus the impugned order dated 08.03.2018 passed by the Respondent no. 1, being not in accordance with law is hereby quashed and set aside. 51. The respondent nos. 1 and 2 are directed to pay the dues of the employees as per the amount quantified against each of the employees in the past accumulation statement in respect of reserve and surplus 23 amount within two months from the date of this order along with interest at the statutory rate. 52. The writ application is accordingly allowed. 53. Applications, if any, connected thereto stand disposed of consequently. 54. Interim order, if any, stands vacated. 55. Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Shampa Dutt (Paul), J.)