Dear EPS-95 pensioner friends,
Our cases pending before the honorable Supreme Court are tending towards the finalization, being fixed on 11-08-2021 for hearing. It is hoped that. " all the issues regarding EPS-95 " will be decided and all the problems of pensioners will be solved once for all. After the decision of the Supreme Court in these cases, the various cases pending in the High Courts across the country will also be settled consequently and accordingly.
Till this period, I think the AO Rs, Advocates, and Counsels pleading or appearing before the Court are fully informed and equipped and are ready in all respects. In my opinion, the law is completely in our favour, however, the Central Government is not in our favour, and therefore, we are being deprived of justice. In fact, the EPFO or the Government does have not any solid and valid legal ground for pleading and therefore they are simply passing the time by misusing the judicial process.
The EPFO, till this time, is generally Pleading on the financial viability of the funds, permission under para 26(6) of EPF scheme, joint options under proviso to para 11(3) of the EPS-95 pension scheme, permission or options while in service, etc. However, these are already deliberated in detail many times and many of them are already decided by the courts. I would like to point out and express my views in very short on some of them as below -
1) Financial viability of funds - Nowadays EPFO is pleading that " EPS-95 is defined contribution and defined pension " scheme. However, in the case of M/S Otis Elevator Employees Union, in 2003, it is pleased before the honorable Supreme Court that " EPS-95 is a major welfare scheme " of the Government of India and on this grounds, the scheme was held to be constitutionally valid. The Government of India / EPFO had given the full-page advertisement in the Newspapers and mentioned that this scheme is better than the pension scheme of Governments or LIC. The scheme was being declared as a welfare scheme, it is the responsibility of the Government of India and therefore, the Government of India should finance for the fulfillment of the purpose of the scheme. Similarly, the financial ground can not be a sufficient ground for denying the legitimate rights as per law, unless EPFO and the Government of India are declared to be Bankrupt.
The EPFO and the Government of India have other options also under provisions of the scheme to take care of the viability of the funds. The policy of EPFO or the Government will be such that " people may die for food, but stocks of food should be maintained " It is illegal and the Court will not certainly consider this type of stand of EPFO to decide the legal aspects.
2) The EPFO may plead and site the REFERENCE ORDER passed by the Division Bench of the Kerala High Court on 21-12-2020 and the M/S PAWAN HANS LIMITED case, referred therein, strongly. The M/s Pawan Hans case is not relevant in our matters, the facts therein are being different than that ours. The Reference Order has been passed by the honorable Kerala High Court with a very misunderstanding. In that case, the EPFO has succeeded in making confusion and misguiding the honorable Kerala High. The judgment of the Supreme Court dated 4-10-2016, in R C Gupta case and that the judgment dated 12-10-2018 of honorable Kerala High Court in case of Sasikumar & others, settings aside the amendments in the pension scheme from 1-09-2014 are very distinct and separate. Neither is any of these judgments, either the honorable Supreme Court or the honorable Kerala High Court directed EPFO to allow the benefits of higher pension to the employees/ pensioners who have not contributed to their actual salary. However, EPFO instilled this in the minds and succeed in misguiding the honorable Court and consequently the Reference Order. It is necessary to take care that EPFO or the Government of India should not misguide the Supreme Court. I have already written on the said Reference Order in my earlier post.
3). The SLP of EPFO against the Order dated 12-10-2018 of the Kerala High Court is being heard afresh. Similarly, the SLP of the Government of India will be heard in which the honorable the Attorney General of India, Sh. KK Venugopal will appear. The Kerala High Court decision is very clear and was already upheld by the honorable Supreme Court one time and it is very difficult to reverse. However, the Government of India and EPFO will try at their level best and with full force, to reverse the same.
One thing is not found in the Kerala High Court judgment and it is the report of "Committee On Subordinate Legislation (2015-2016) , Sixteenth Lok Sabha, Twelfth Report ". The Committee was constituted under the Chairmanship of Shri Dilip Kumar Mansukhalal Gandhi, to study the amendments in the Employees' Pension Scheme 1995. The Committee has held these amendments illegal and in violations of cannons of natural justice. The Committee held that the amendments can not be operated retrospectively. This report was presented in the Lok Sabha on 10-08-2016. The Committee report is a very supportive document in this regard. This report does not seem to be placed before the Kerala High Court. This report is very important and is in favour of the employees/ pensioners and needs to bring to the notice of the Supreme Court if required.
4). The exempted- unexpected issue and circular dated 31-05-2017 issue is already decided by the Six High Courts and Judgement of the Division Bench of Delhi High Court in BKNK case is final, replying to all the questions raised by the EPFO and EPFO is left with no point to argue henceforth.
So far permission to contribute on actual salary under para 26 (6) of EPF Scheme, in case of unexempted establishment, stand to be taken is given, in the circular dated 22-01-2019 (the said circular withdrawn for other reasons). In the case of exempted establishment, this permission is already given while approval of the rules of the trust, and after the approval of the said rules, the exemption is granted by the concerned Government. These facts are confirmed vide letter dated 03-01- 2013 from Addl Central Provident Commissioner, State of Haryana & Rajasthan to the Regional Provident Commissioner - 1.
After issuance of circular dated 23-03-2017 ( which is at abeyance from 20-03-2021) and after revision of near about 25000 pensioners' pension, EPFO is taking the stand that the option under proviso to para 11 ( 3) of EPS-95 scheme, should be exercised while in service. This is an afterthought of EPFO. This issue is already decided in the case of Austin Joseph C & Ors, WA/LPA 1362/2014 decided on 17-10-2014 by the honorable Kerala High Court, and SLP 19954 / 2015 of EPFO is rejected by the honorable Supreme Court on 12-07-2016. This was the case filed by the seven retired employees. The details regarding this point are already given in one of my posts and very specifically and in detail, in the post of Shri. Praveen Kohli Saheb, dated 4-03-2021. It is also a fact that the Employees were/ are not given the opportunities to exercise the option for pension on actual salary in the past. M/S Otis Elevator Employees case was decided on 11-11-2003. Then EPFO vides its letter dated 1-12-2004 fixed a " Cut off date 1-12-2004" for opt3). The SLP of EPFO against the Order dated 12-10-2018 of the Kerala High Court is being heard afresh. Similarly, the SLP of the Government of India will be heard in which the honorable the Attorney General of India, Sh. KK Venugopal will appear. The Kerala High Court decision is very clear and was already upheld by the honorable Supreme Court one time and it is very difficult to reverse. However, the Government of India and EPFO will try at their level best and with full force, to reverse the same.
One thing is not found in the Kerala High Court judgment and it is the report of "Committee On Subordinate Legislation (2015-2016) , Sixteenth Lok Sabha, Twelfth Report ". The Committee was constituted under the Chairmanship of Shri Dilip Kumar Mansukhalal Gandhi, to study the amendments in the Employees' Pension Scheme 1995. The Committee has held these amendments illegal and in violations of cannons of natural justice. The Committee held that the amendments can not be operated retrospectively. This report was presented in the Lok Sabha on 10-08-2016. The Committee report is a very supportive document in this regard. This report does not seem to be placed before the Kerala High Court. This report is very important and is in favour of the employees/ pensioners and needs to bring to the notice of the Supreme Court if required.
4). The exempted- unexpected issue and circular dated 31-05-2017 issue is already decided by the Six High Courts and Judgement of the Division Bench of Delhi High Court in BKNK case is final, replying to all the questions raised by the EPFO and EPFO is left with no point to argue henceforth.
So far permission to contribute on actual salary under para 26 (6) of EPF Scheme, in case of unexempted establishment, stand to be taken is given, in the circular dated 22-01-2019 (the said circular withdrawn for other reasons). In the case of exempted establishment, this permission is already given while approval of the rules of the trust, and after the approval of the said rules, the exemption is granted by the concerned Government. These facts are confirmed vide letter dated 03-01- 2013 from Addl Central Provident Commissioner, State of Haryana & Rajasthan to the Regional Provident Commissioner - 1.
After issuance of circular dated 23-03-2017 ( which is at abeyance from 20-03-2021) and after revision of near about 25000 pensioners' pension, EPFO is taking the stand that the option under proviso to para 11 ( 3) of EPS-95 scheme, should be exercised while in service. This is an afterthought of EPFO. This issue is already decided in the case of Austin Joseph C & Ors, WA/LPA 1362/2014 decided on 17-10-2014 by the honorable Kerala High Court, and SLP 19954 / 2015 of EPFO is rejected by the honorable Supreme Court on 12-07-2016. This was the case filed by the seven retired employees. The details regarding this point are already given in one of my posts and very specifically and in detail, in the post of Shri. Praveen Kohli Saheb, dated 4-03-2021. It is also a fact that the Employees were/ are not given the opportunities to exercise the option for pension on actual salary in the past. M/S Otis Elevator Employees case was decided on 11-11-2003. Then EPFO videos its letter dated 1-12-2004 fixed a " Cut off date 1-12-2004" for option and then employees were not allowed to exercise the said option. Even after the decision of Kerala High Court that such fixing of the cut-off date is not in the power of EPFO, they used to fix Cut off date very wrongly, which they have pleaded in the Supreme Court in the case of R C Gupta. The honorable Supreme Court interpreted the law and held that " there is no cut-off date to exercise the option". As per the circular dated 23-03-2017 only, for the first time after 1-12-2004, EPFO allowed the unexempted establishment pensioners to exercise the option. However, they are not following their own circular and now the same is very illegally kept in abeyance.
All these issues are required to be decided by the honorable Supreme Court in these cases and very clear and specific orders need to be issued so that EPFO will not be left to take any advantage of any ambiguity.
It is hoped that the honorable Supreme Court will decide and issue the appropriate directions.
Wish you all the best and also hope for the best.
Thanks.
Dada Tukaram Zode
Nagpur, Maharashtra.
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