EPS 95 PENSIONER LATEST UPDATE TROUGH RTI: VERY IMPORTANT & GOOD STAND TAKEN REG. OPTION UNDER Para 26(6) BY EPFO Thiruvananthapuram

EPS 95 PENSIONERS HIGHER PENSION LIST SEARCH BELOW:

As you are aware, EPFO HQ had got *Special Audit* conducted in r/o the Settled Pension Revision Cases on Higher salary in compliance of HQ circular dt. 23.3.2017 at the following three Regional Offices:

1. Regional Office, EPFO, Chandigarh
2. Regional Office, EPFO, Puducherry
3. Regional Office, EPFO, Thiruvananthapuram

Action taken Report/comments of Regional Office, EPFO, Thiruvananthapuram revealed that the Regional Office had taken a very good and genuine stand in support of non availability of approvals under Para 26(6) at this belated stage and had informed Head Office in clear words that their stand remains the same as had been conveyed in reply to the Audit Para no. 11 pertaining to the year 2018-19. In view of above, I had filed another RTI application for obtaining a copy of the reply submitted by the RO in r/o Audit Para no. 11 for the year 2018-19. The reply has been received from RO, Thiruvananthapuram today (5.8.2020) and is being shared in the attached Pdf file. I am very happy to receive such a clear and very genuine reply and wish other Ros should have also taken such geneuine stand.

The reply to HQ by RO, Thiruvananthapuram in r/o Audit Para no. 11 pertaining to the year 2018-19 is also being reproduced below for ready reference and its use for defending our cases as & when required (The audit observation & the reply may be seen in the attached file):

1. As per the Head Office Circular No. Pension-I/12/ 33/EPS Amendment/96/ Vol.II/34007 dated 23.03.2017 it was conveyed that as per the judgment of the Hon’ble Supreme Court in SLP(C) No.33032-33033 of 2015, a member contributing to the Provident Fund on wages exceeding the statutory ceiling or who had contributed to the Provident Fund on wages exceeding the statutory ceiling cannot be debarred from exercising option to contribute on such higher wages to the pension fund. Also, in a situation where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, the Provident Fund Commissioner could seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident fund Account before granting them the benefits of the proviso to Clause 11(3) of the Pension Scheme. .The said Circular also conveyed the approval of the MoL&E vide letter dated 16.03.2017 to allow members of the Employees' Pension Scheme 1995, who had contributed on higher wages exceeding the statutory wage ceiling of Rs.6500/- in the Provident Fund, to divert 8.33% of the salary exceeding Rs.6500/- to the Pension Fund with up to date interest as declared under the EPF Scheme 1952 from time to time to get the benefit of pension on higher salary, on receipt of joint option of the Employer and Employee. Regional Office Thiruvananthapuram has revised the pension of those who are eligible as per the terms of this circular and only after getting the Application (Joint Option) of the employer and employee in each case.

2. Accordingly, in all the cases where revision of pension has been done in RO Thiruvananthapuram, an Application (Joint Option) has been received from the pensioners, duly attested by his/her ex-employer, certifying that the employer’s share of EPF contribution on his/her actual salary has been paid without break as per the terms of para 26(6) of the Employees’ Provident Fund Scheme. It has also been verified with the available records in the system (Application software & Legacy system) that the employer & employees had indeed contributed to the EPF Scheme on salary over and above the statutory ceiling.

3. In the cases where pension has been revised, the contribution that was made on the actual (higher) salary to the Provident Fund was accepted by EPFO for the duration of service of the employee and his/her PF account was credited with such contribution made on the higher wages as well as the statutory rate of interest as applicable from time to time. The question raised by the Audit seems to be with regard to the availability of the joint request made under Para 26(6) of the EPF Scheme. This joint request ought to have been submitted at the point of time when the member and employer commenced contributing to the Provident Fund on his/her pay exceeding the salary ceiling. In almost all the cases where revision of pension has been made by RO Thiruvananthapuram, the relevant point of time is more than 20 years in the past. Therefore, the copy of the joint request made under Para 26(6) of the EPF Scheme is not traceable in the office now. The Manual of Accounting Procedure also does not specify any specific format for the joint request specified in Para 26(6). Furthermore, as per Annexure-A below paragraph 11.6 in Chapter 2 of the Manual of Accounting Procedure (Part-I) the, period of retention of records in respect of a member who has withdrawn his PF accumulation on leaving service is only 3 years after the final settlement of accounts. It was never anticipated when the members were leaving service that they would one day become eligible for pension on their actual salary retrospectively by virtue of Judicial pronouncements. In RO Thiruvananthapuram, regular weeding out of records is done and the records of those members who have settled their PF accounts more than 3 years ago have been weeded out.

4. Considering the fact that we have accepted the EPF contribution on actual salary of the retired employees in question from 1995-96 onwards till their date of leaving service and had also credited their PF accounts with the statutory rate of interest as applicable for successive financial years, it is not tenable to say now that joint request under Para 26(6) was not submitted. A much more reasonable assumption would be that the joint request/option would have been submitted at the point of time when the member and employer had commenced contributing to the Fund on salary exceeding the statutory ceiling and this would have been verified / approved at the relevant points of time when the annual accounts were compiled. The Application (joint option of employer and employee) now submitted by the pensioners for revision of their pension is a reiteration of the joint request that was made by them under Para 26(6) of the EPF Scheme.

5. The IAP has pointed out that the Head Office Circular No. Pension-I/12/33/96/ Amendment/Vol.IV/16762 dated 22.01.2019 stands withdrawn. However, it is pertinent to point out that this circular had to be withdrawn only because the contents of paragraph 4 of the said circular which placed reliance on Para 11(4) of the EPS 1995 (inserted in the Scheme with effect from 01.09.2014) contradicted the judgment dated 12.10.2018 of the High Court of Kerala in WP(C) 13120/2015 & connected cases whereby the High Court had set aside the Notification No. GSR 609(E) dated 22.8.2014 vide which Para 11(4) was incorporated into the EPS 1995. Due to this, several contempt cases were filed in the High Court of Kerala against the ACC-HQ (Pension) necessitating the withdrawal of the said circular vide circular dated 07.02.2019. However, the principle elucidated in paragraph 2 of the circular dated 22.01.2019, which is relevant to the present observation of the IAP, is perfectly valid.
6. The IAP has also mentioned in the Audit observation that a Circular dated 08.06.2018 was issued by HO which directed all field offices to comply with the instructions issued by HO “to revise the pension cases of all the eligible members as per the existing software and the provisions in the Pension Scheme”. The same circular however points out those field offices (RO Thiruvananthapuram included) which have been “taking appropriate actions on the detailed order of the Hon'ble Supreme Court duly circulated by Head Office for compliance by utilizing the provisions already existing in the relevant software, whereas some offices are deliberately not taking any action to revise the pension claims to eligible members by taking one plea or the other”. RO Thiruvananthapuram is in compliance with the instructions contained in the HO Circular dated 23.03.2017 as reiterated by the Circular dated 08.06.2018.

7. It is also relevant to note here that the Hon’ble High Court of Kerala in its judgment dated 05.03.2013 in Writ Appeals 568/2012, 569/2012 and 1174/2012 [which were filed by EPFO against the judgment in WP(C) 6643/2007, 9927/2007 and 13220/2007] dismissed the Writ Appeals holding that “the non-filing of the joint application was rightly held to be not a ground for denying the benefit to the writ petitioners.” The SLP(C) 7076, 7107 & 7108 of 2014 that were filed by EPFO against this judgment in the Hon’ble Supreme Court were also dismissed vide Order dated 31.03.2016. More recently, the Hon’ble High Court of Kerala in its Judgment dated 12.10.2018 in WP(C) 13120/2015 & connected cases has held among other things that “the employees shall be entitled to exercise the option stipulated by paragraph 26 of the EPF Scheme without being restricted in doing so by the insistence on a date”. The said judgment is in force as on date as no stay could be obtained on it so far from the Supreme Court.

8. It may also be noted that the Internal Audit Party which had conducted the previous Audit at RO Thiruvananthapuram for the financial year 2017-18 did not raise this specific observation on the non-availability of the joint request under Para 26(6). This is the first time such an observation has been made.

9. In conclusion, it is reiterated that the revision of pension on actual (higher) salary is being done in RO Thiruvananthapuram strictly in respect of those who are eligible as per the terms of the Head Office Circular No. Pension-I/12/ 33/EPS Amendment/96/Vol.II/34007 dated 23.03.2017 and subsequent Circulars on the matter and also the various judgements of the High Court of Kerala, as and where applicable. The Applications (Joint Options) for revision of pension which were received in this office from those pensioners who are eligible as per the Circular dated 23.03.2017 as well as from the petitioners in the various Writ Petitions disposed vide the Judgement dated 12.10.2018 of the High Court of Kerala have been entered in a register opened to monitor the receipt of such applications. They are processed strictly as per their date of receipt. Cases are not processed out of turn unless compliance has to be made within a specific time consequent to a Court order.

10. In view of the facts as narrated above, the Audit Para may be dropped.

CLICK HERE TO DOWNLOAD ALL DOCUMENT: RTI - Very Imp. & clear stand taken by EPFO Thiruvananthapuram- Reg option under para 26 (6)