EPFO SNACHING AWAY THE RIGHTS OF OLD AGED EPS PENSIONERS.

*EPFO SNACHING AWAY THE RIGHTS OF OLD AGED EPS PENSIONERS.*

Lakhs of EPS pensioners of pre 01 09 14 retirees have received rejection letters of their joint options for higher EPS pension under para 44 v of the Sunil Kumar B judgement of Supreme court which is not related to pre 01 09 14 retirees but it is applicable to post 01 09 14 retirees.

The following paras will explain how the para 44 v is NOT APPLICABLE TO PRE 01 09 14 retirees but APPLICABLE to ONLY POST 01 09 14 RETIREES.

*CLARIFICATION TO PARA 44 V OF THE 04 11 22 JUDGEMENT.*

*PART I*

*THE TYPES OF RETIREES AS PER THE EPS PENSION SCHEME 1995.*

As per the EPS pension scheme 1995 there are two types of Retirees for the purpose of pension fixation which are as follows.

Para 12 (1)(a) : Asper this para they are NORMAL RETIREES who retired after the age of 58 years. They will get Normal / Superannuation EPS pension.

Para 12 (1) (b) As per this para they are EARLY RETIREES who retire or ceases an employment after 50 years but before attaining the age of 58 years who are eligible only for reduced / Earlier EPS pension. Also called Earlier retirees.

So these para 12 1 a and para 12 1 b categories of retirees are important in any judgement.

Opted for higher EPS pension and not opted for higher EPS pension are two more categories again in each para of 12.

In view of the above THE PARA 44 iii & iv of 04 11 22 judgement falls under para 12 1 a of EPS pension scheme.

And THE PARA 44 V and 44 vi of 04 11 22 judgement falls under para 12 1 b of EPS pension scheme.

The members under para 12 1 b of the EPS pension scheme ARE CALLED EARLY RETIREES /PENSIONERS who retire after the age of 50 years but before the age of 58 Years due to various reasons and get REDUCED EPS PENSION.

*NORMAL RETIREES ARE NOT EARLY RETIREES AND PARA 44 V IS APPLICABLE TO EARLY RETIREES. I.E. THOSE WHO ARE EXPECTED TO RETIRE ON OR AFTER 01 09 14 BUT RETIRED BEFORE 01 09 14 DUE TO VARIOUS REASONS BUT FALLS UNDER POST 01 09 14 CATEGORY.*

*PART II*

*Some important Contents of Kerala High court judgement dated 12/10/2018 in WPC no 13120 of 2015 which was the basis of Review Petition in Supreme court*

*PAGE 15 PARA I*

*They (petitioners) are also aggrieved by the changes brought about by the employees pension amendment scheme 2014. According to them the provisions of the said amended scheme drastically reduced the pension payable to them. In many of the writ petitions the validity of the amendments have been challenged.*

*In the very first para of the judgement it is very clear that, in this petition the amendments have been challenged.*

PARA NO 2 OF PAGE 15.

*The main question that arises for consideration here is whether the provisions of the employees pension scheme 1995 and employees pension amendment scheme 2014 are valid and sustainable or not.*

In this para the question before judges is the amendments are in accordance with the original EPS pension scheme 1995 or not. Which further means whether the amendments are valid or not.?

*PARA 38 PAGE 75*

*As rightly contended by the counsel appearing for the petitioners the effect of amendments to the pension scheme is to create different classes of pensioners on the basis of date 01 09 14, the date on which amended scheme came in to force. Consequently there would be -*

*1) The employees who exercised option under para 11 3 and continued in service on 01 09 14.*

*2) The employees who have not exercised option under para 11 3 and continued in service on 01 09 14.*

*3) The employees who have retired prior to 01 09 14 without exercising option under para 11 3.*

*4) The employees who have retired prior to 01 09 14 after exercising the option under para 11 3.*

*As per this para it is clear that these four clases of employees will be effected by the employees pension amendment scheme 2014.*

*Even though it is mentioned as retired prior to 01 09 14 in para 3 and 4 , the normal retirees prior to 01 09 14 retirees will not be effected by the employees pension amendment scheme 2014, but those who have to be retired on or after 01 09 14 but retired prior to 01 09 14 will only be effected by the amendment.*

*FINAL VERDICT.*

*For the foregoing reasons, the petitioners are entitled to succeed. The writ petitions are allowed as follows:*

*1) The employees pension amendment scheme 2014 brought into force by notification no. GSR NO 609 E Dated 22 08 14 evidenced by ext. P8 in WPC no 13120 of 2015 is set aside*

*ii) All consequential orders and proceedings issued by the Provident Fund authorities/respondents on the basis of the impugned amendments shall also set aside.*

*iii) The various proceedings issued by the EPFO declining to grant opportunities to the petitioners to exercise a joint option along with other employees to remit contributions to the employees pension scheme on the basis of actual salaries drawn by them are set aside.*

*iv) The employees shall be entitled to excercise the option stipulated by paragraph 26 of the EPF scheme without being restricted in doing so by the insistence on a date.*

The above verdict in brief is –

The employees pension amendment scheme 2014 is set aside.

All the proceedings issued on the basis of the Amendment are set aside.

All the proceedings issued by EPFO declining to grant opportunities are set aside.

The employees shall be entitled to excercise the option as per para 26 without reference to a date.

All the judgement is regarding amendment only.

*The importance of the judgement.*

*The prayer is against the Employees pension amendment scheme 2014.*

*The question before the judges is whether the employees pension amendment scheme 2014 is vaid or not.*

*The judgement set aside Pension Amendment scheme 2014 and all corresponding proceedings.*

*The employees allowed to opt for pension scheme as per EPS 95 scheme without restrictions and as per para 26 of the scheme.*

*Hence Kerala High court judgement is regarding validity of the Amendment only which is applicable to post 01 09 14 retirees but not for pre 01 09 14 retirees.*

*PART III*

*CONTENTS OF RC GUPTA JUDGEMENT*

*To understand the para 44 V OF SUNIL KUMAR B judgement of supreme court dated 04 11 22, it is to be understood the RC Gupta judgement of supreme court.*

*The following are the contents of the RC Gupta judgement.*

*PARA 10 AT PAGE 7*

*We do not see how excercise of option under para 26 of the Provident Fund scheme can be construed to estop the employees from exercising a similar option under para 11 3.*

*If both the employer and employee opt for deposit against the actual salary not on the ceiling amount excercise of option under para 26 of the Provident Fund scheme is inevitable.*

*PARA 11 PAGE 7&8*

*The above apart in a situation where the deposit of the employer,s share at 12% has been on the actual salary and not on the ceiling amount we don not see how the Provident Commissioner could have been aggrieved to file the LPA. before the division bench of the High court.*

*All that the Provident Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefited some of the employees.*

*At best what Provident Commissioner could do and which we permit him to do under the present order is to seek return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund account before granting them the benifit of the provision to Clause 11 3 of the pension scheme.*

*Once such a return is made in whichever cases such return is due, consequential benifits in terms of this order will be granted to the said employees.*

*PARA 12 PAGE 8*

*Consequently and in light of the above we allow these appeals and set aside the order of the Division bench of High court.*

*The brief of the RC Gupta judgement in lay man’s language.*

*If the employee and employer opted under para 26 6 for contribution to PROVIDENT FUND at 12% , the option under para 11 3 for pension on Higher Wages can not be stopped.*

*If employer and employee opt for pension on Higher Wages the amount lying in Provident Fund can be transferred to pension fund by a transfer/book adjustment.*

*In case retired employees the Provident Commissioner can seek return of all the differential amounts which the employee withdrawn from the PF account.*

*Once the employees deposit the amount he should be given consequential benifits.*

*PART IV*

*CONTENTS OF SUNIL KUMAR B JUDGEMENT DATED 04 11 22 OF SUPREME COURT.*

The following are some of the contents of Sunil Kumar B judgement of 04 11 22 and explanation in brief.

*PARA 2 OF THE 04 11 22 JUDGEMENT.*

*In this judgement we shall deal with the legality of certain amendments and modifications made by the central government to the employees pension scheme 1995.*

The above para clearly states that the judgement is regarding amendment which is purely applicable to post 01 09 14 retirees but not for pre 01 09 14 retirees.

*If the 04 11 22 judgement is for reviewing the RC Gupta judgement the bench should have mentioned that the 04 11 22 judgement is for reviewing the RC Gupta judgement but it clearly said “In this judgement we shall deal with the legality of certain provisions and modifications made by Central government to the pension scheme 1995*

*PARA 41 OF THE 04 11 22 JUDGEMENT.*

*As per para 41 of 04/11/22 judgement the following are the key clarifications in favour of pre 01 09 14 retirees.*

*In the RC Gupta (supra) it has been specifically held that there was no cut off date in proviso to para 11 3 as it stood before 2014 amendment.*

*In our opinion the interpretation given to provision to paragraph 11 3 prior to 2014 amendment does not require any reconsideration.*

*We agree with the reasoning of the two judge bench of this court on this point as expressed in the said judgement.*

*As there was no cut off date to be contemplated prior to 2014 amendment limiting the entitlement of enhanced pension coverage to those employees only who had already excecised an option under clause 11 3 of the un amended scheme would be contrary to the ratio of the decision of this court held in the case of RC Gupta (supra).*

*We are not holding that no option was required to be excecised as per proviso to paragraph 11 3 of the scheme as it stood prior to Amendment.*

The para 44 v is not a para. It is only sub para of 44 i which explained the very purpose of the judgement.

*PARA 44*
*We accordingly hold and direct:-*

PARA 44 I

*The provisions contained in the notification number GSR 609 (E) dated 22 08 14 are legal and valid.*

The judgement said that the AMENDMENT is Valid. IT DOES NOT MEAN RC GUPTA JUDGEMENT IS STRIKED DOWN. INSTEAD IN THIS JUDGEMENT THE RC GUPTA JUDGEMENT IS UPHELD VIDE PARA 41.

Judgement further said.

*Sofar 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- PARAGRAPS.*

The judgement said the bench has read down the the certain provisions of the scheme pertaining to present members. PRESENT MEMBERS MEANS RETIRED AFTER 01 09 14. BUT NOT RETIRED PRIOR TO 01 09 14.

The judgement further said the bench will give directions on these provisions in the following SUB PARAGRAPHS. Hence para 44 V is sub para of para 44. Therefore para 44 can not be read separately. The para 44 is sub para of para 44. Hence the para 44 V is to be read with MAIN para 44.

In view of the above the para 44 V and 44 VI of the 04 11 22 judgement are related to para 12 1 b of the EPS pension scheme which is related to EARLY RETIREES. BUT NOT RELATED TO NORMAL RETIREES before 01 09 14.

*PART V*

*LAND MARK JUDGEMENT OF PUNJAB AND HARYANA HIGH COURT.*

*There is no negativity of pre 01 09 14 retirees in 04/11/22 judgement. But the 04 11 22 judgement endorsed the RC Gupta judgement for pre 01 09 14 retirees.*

clarification only was not provided in the para 44 v of 04 11 22 judgement.

The punjab and haryana High court has given number of judgements in favour of pre 01 09 14 retiree of EPS pensioners after 04/11/22 judgement.

But despite number of judgements in favour of EPS pensioners lot of writ petitions filed in panjab and haryana High court due to rejection of joint options by EPFO.

And also EPFO repeatedly going for appeal for higher bench in Punjab and Haryana High court.

In view of the number of writ petitions and also to avoid repeated appeals by EPFO the Panjab and Haryana High court has also given a land mark judgement explaining the para 44 v which is not clarified by the supreme court.

The normal retirees prior to 01 09 14 do not have any impact on the Amendment to pension scheme.

Hence the para 44 v is not for pre 01 09 14 retirees but it is for post 01 09 14 retirees category.

*PART VI*

*FCIHQRS LETTERS TO EPFO HQRS FOR ACCEPTING PENSION CONTRIBUTION ON HIGHER SALARY DURING 2006.*

During 2006 there was lot of correspondence between EPFO Delhi and FCIHQRS. During 2006 Fcihqrs New Delhi has written number of letters to EPFO New Delhi for accepting pension contribution on higher salary for it’s employees.

But EPFO New Delhi in turn has rejected the proposal of accepting the pension contribution on higher salary in writing.

When the EPFO has rejected the fcihqrs proposal for accepting the pension contribution on higher salary during 2006, how can the EPFO insist for the joint options for the period of 2006.

There is no possibility of maintaining the records by either FCI or the by retirees for 20 years once the proposal is rejected.

The joint option is nothing but it is an acceptance of both employees and employer ‘s willingness to contribute pension fund on higher salary.

The FCIHQRS Letters to EPFO are the willingness to contribute pension fund on higher salary by FCI employees.

The rejection letter by EPFO to FCI hqrs is the rejection letter to all FCI employees.

When FCI hqrs has conveyed willingness to contribute pension fund on higher salary of its employees it is nothing but the joint option of all the employees and employer of FCI. So is the case with rejection letter of EPFO.

*PART VII*

*DISMISSAL OF MISCELLANEOUS WRIT PETITIONS BY SUPREME COURT.*

The miscellaneous petitions have been dismissed by supreme court neither because of the RC GUPTA judgement is wrong nor because of the 04 11 22 judgement is wrong but because of the Prayers in the miscellaneous petitions are wrong.

The preyars in the miscellaneous petitions were either REVIEW OF THE 04 11 22 JUDGEMENT OR TO WITHDRAW THE PARA 44 V FROM 04 11 22 JUDGEMENT.

Since both the judgments of RC Gupta and Sunil Kumar B are perfect and did not find fault with the judgments the miscellaneous petitions were dismissed.

It does not mean that the para 44 V is pertaining to Normal retirees which is not correct.

*PART VIII*
*CONCLUSION.*

As per 12 1 b of the EPS 95 pension scheme the para 44 v is applicable to early retirees but not applicable to normal retirees.

The Kerala High court judgement dealt with the Amendment GSR NO 609 E which is applicable to post 01 09 14 retirees but not for pre 01 09 14 retirees.

The RC GUPTA land mark judgement applicable to pre 01 09 14 retirees which said even after retirement the joint option for higher EPS pension can be given as there was no cut off date prior to Amendment.

The Sunil Kumar B judgement of supreme court upheld the RC Gupta judgement.

There was no review petition on RC Gupta judgement but a review petition was for revoking the Amendment which was striked down by the Kerala High court and other High courts.

The Sunil Kumar B judgement said that the bench is dealing with the Amendment for present employees as the employees retired on or after 01 09 14 only will be present employees after amendment and those who retired prior to 01 09 14 are past Employees.

The miscellaneous petitions in supreme court are dismissed only due to wrong prayers but not due to applicability of the para 44 v to Pre 01 09 14 retirees.

In view of the above the EPFO and the government should withdraw all the rejection letters issued to poor old aged EPS pensioners who are aged above 70 years and who can not survive for a longer period.

G Narayana.
A SOCIAL ACTIVIST.