Food Corporation of India
In the present situation we must be very cautious to defend our EPS-95 Case before a court of law :
In the case of pension on higher wages under EPS-95 raised by M.BABU & A.K. Jayappan in the Hon’ble Kerala High Court during 2007 and since then up to R.C Gupta case in 2016 the court case was around para 26(6) of Employees’ provident Fund and Miscellaneous Provisions Act 1952 and 11(3) of Employees’ pension Scheme-95 including cut-off date prescribed by EPFO without any delegation of powers. As a result, the employees won the cases in various courts but the situation is different now and we must be very cautious to present our arguments before the court of law.
why we must be cautious before a court of law?
Unlike earlier arguments, the EPFO now brought to the notice of the court that the financial burden on the Government will be on the higher side, and very recently the Attorney –General SriK.K.Venugopal said to the SUPREME COURT that if allowed pension on higher wages to the EPS-95 Pensioners the financial burden on Government will be Rs 15 lakh crores.
Now the present national scenario changed due to the covid-19 pandemic the economic growth of India estimated to decline 5% during the current year. The Government also spending lot of amount to control Covid-19 and on arranging medical facilities to the affected people besides providing tax concessions , free interest loans to the manufacturing units to revive the economic condition . some times this may also think over by the judges the financial burden on the Government before concluding the verdict.
In such a case how to defend it ?
1) At present EPS-95 pensioners are around 65 laks and EPFO calculating by taking average benefit to each on a total of 65 laks and informing the court of this much financial burden on the Government if allowed pension on higher wages. As a matter of fact, all the 65 laks of pensioners are not eligible for pension on higher wages as detailed below:
a) The number of employees retired without crossing the wages of Rs 6500/- and drawing pension at present are to be deducted from this 65 laks. Such people are more as they retired from small trade units before 2004. We should get this number through RTI .
b) Among 65 laks some are already drawing pension on higher wages and those pensioners should be deducted because there will not be a new financial burden on the Government.
c) In the case of widow pensioners they are eligible for 50% of pension only and it is not beneficial for most of them because there will not be a considerable hike in their pension after remitting the differential amount of contribution to EPFO.
d) Before some of the courts EPFO produced a financial benefit to the pensioner by reckoning one of the high-rank officers’ salaries Naturally, the high-rank officers will get a lot of hike in their pension if it is on their higher wages. This is not the criteria to reckon the financial burden on the Government by taking financial benefit of one of the high-rank officer and multiplying with 65 laks pensioners and deriving multi crores (ie 15 lakh crores) for showing before the court. such high-rank officers are
10 to 15 % of 65 lakhs only. So we have to calculate an average salary of an employee who joined an organization in the entry-level post and reached middle management level in his 35 years of service and retired. The pension benefit deriving on this average salary should be multiplied with net pensioners eligible for higher pension. This will not show huge exchequer on Government. This analysis to some extent worked out by one of the petitioners Sri Neeraj Bhargava and the same posted by our Parveen Kohli ji in WhatsApp groups on 8-2-2020.
2) At present situation we cannot demand adjustment of differential amount of contribution from the arrears and moreover we should inform the court that each pensioner has to remit the differential amount of contribution since 1995 till attaining the age of 58 to claim this higher pension on their full wages and it is calculated that each one should remit to EPFO in an average Rs 2.5 lakhs to 6 lakhs and high-rank officers should pay more than that. In that case, there will not be any financial implications as said by the EPFO.
3) Moreover we should present only one prayer very strongly in the court instead of making the case complicated with so many prayers. Only one prayer is the grant of pension on higher wages as per provision of para 26(6) of EPF & Misc pro Act 1952 and para 11(3) of EPS-95 Scheme because the benefit of higher pension option deprived by the EPFO by prescribed cut-off date against the above provisions without any legitimate powers while the petitioners were in service.
Some are under the impression that financial implications cannot be considered by the court but under present conditions, we must be well prepared to present in the court with authenticated proof and statistics that a number of pensioners eligible for higher pension are this much only and not 65 lakh of pensioners, this much amount only to be needed for grant of pension on higher wages and not 15 lakh crores as said by EPFO . Further for getting this higher pension each pensioner has to remit the differential amount of contribution to EPFO with effect from 1995 till attaining the age of 58 in lakhs ie minimum amount of Rs 2.5 lakhs to maximum 12 lakhs and there will not be much financial burden on the Government as said by the EPFO.
The need of the hour is we have to prepare our lawyers to counter the financial implications also by providing the required information.
Thanks to Shri B.V.Durga prasad for contributing this Article.
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