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ELIGIBILITY OF PRE-2014 RETIREES WHO DID NOT EXERCISE OPTION UNDER PARA 11.3 OF THE EPS, 1995—A CLOSE LOOK IN THE LIGHT OF HONOURABLE HIGH COURT, MADHYA PRADESH (JABALPUR BENCH)
This is regarding the pension eligibility to the Pre-2014 retirees who did not exercise option under Para 11.3 during 2003. Hitherto, most or all of us are of the view that the Honorable Supreme Court judgement itself says that this category of employees would not be entitled for the benefit of the judgement.
2. The Madhya Pradesh High Court Jabalpur Bench delivered a judgment in favour of the petitioner who is of this category, who was actually sanctioned higher pension but after the 4th November 22 judgment of the Supreme Court, his higher pension was stopped. Aggrieved by this action, the Petitioner approached the High Court. The High Court has ordered restoration of pension. The EPFO has filed Review Petition against this order which was also disposed of in favour of the pensioner, by dismissing the same on 6th October 2023. All this is okay. But what is the reason why in the first place such a judgment in case of a category which was disallowed by the Supreme Court was delivered by a High Court. In fact, Madras High Court in another case of similar nature has disallowed the petition of the Pensioner. The Honorable Judge of the Jabalpur High Court has very humbly differed with the judgment of the Madras High Court with due respect citing the reasons therefor. The Learned Judge went on further to say that Madras High Court has not considered the aspect of the findings of RC Gupta judgement having not been set aside by the larger Bench. I have read this judgment again and again and to have more clarity, have gone through the relevant portions of the Supreme Court judgment also once again.
3. My discussion is based on the premise that a Judge of a High Court cannot afford to deliver a judgement controverting the order of the Supreme Court. For the Madhya Pradesh High Court judge to have come to that conclusion, the only reason could be that the Supreme Court order does not imply denial of higher pension benefit to the pre 2014 pensioners who did not exercise option under Para 11.3 during 2003. Having said this, I now would like to bring out the following points for the benefit of our friends.
a) As you all know, there are four categories of pensioners claiming pension on higher wages. They are:
- Those who exercised option in 2003 under para 11.3 but exited prior to 1.9.2014 (BEING ALLOWED HIGHER PENSION NOW)
- Those who exercised option in 2003 under para 11.3 but exited after 1.9.2014
- Those who did not exercise option in 2003 under para 11.3 but exited after 1.9.2014 (BEING ALLOWED HIGHER PENSION NOW)
- Those who did not exercise option in 2003 but exited prior to 1.9.2014.
*exited implies attainment of 58 years on that date.
b) Post Supreme Court’s larger Bench judgement dt.4.11.2022, surprisingly Madhya Pradesh High Court’s Indore Bench has allowed higher pension in category (ii) above. Today, there is a letter from RPFC, Vizag according to which, this category also is entitled to higher pension. Finally, the unfortunate lot is pre-2014 retirees who did not exercise option under Para 11.3 and exited from EPS before 1.9.2014.
c) Yet another surprise is the judgment of the Madhya Pradesh High Court Jabalpur Bench referred to above, which is the subject matter of this write-up.
d) Now, let us see what the Supreme Court said in regard to the pre 2014 cases who did not exercise options under Para 11.3:
Para 44(v) of Supreme Court’s judgment:
(v) The employees who had retired prior to 1st September 2014 without exercising any option under paragraph 11(3) of the pre amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment.
Now, what is implication of this order.
e) On the face of it, the above disqualifies those who did not exercise option under para 11.3 but retired prior to 1st September 2014 for higher pension. But this has to be read in conjunction with the other Paras of the Supreme Court’s order. What are they:
Deeming provision under Para 11.3:
“Provided that if at the option of the employer and employee, contribution paid on salary exceeding Rs.6500/- (Rupees Six Thousand Five Hundred) per month from the date of commencement of this Scheme or from the date salary exceeds Rs.6500/- (Rupees Six Thousand Five Hundred) whichever is later and 8.33% share of the employers thereof is remitted into the pension fund, pensionable salary should be based on such higher salary”
f) Most importantly, RC Gupta judgment has been upheld particularly with reference to there being no cut off date and secondly, contribution on wages exceeding 6500/-. This has been categorically stated as under
“We agree with the view taken by the Division Bench in case of R.C. Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (preamendment) pension scheme is concerned. The fund authorities shall implement the directives contained in the said judgment within a period of eight weeks, subject to our directions contained in this paragraph.”
g) The above is crux of the issue. Then, why did Supreme Court say about ineligibility of the above Pre-2014 category of pensioners. The catch is perhaps here, according to me.
4. If one contributes to the Provident Fund (Please don’t mistake it for Pension Fund, which we, at least I, have been thinking) on wages exceeding Rs.6500/- they are entitled to higher pension when 8.33% of such higher wages is contributed to Pension fund. This is what Para 11.3 says. It will be pertinent to quote the relevant portion of the RC Gupta judgement— In RC Gupta, the Two Judge Bench at Para 11 is categorical in stating “All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefitted some of the employees. At best what the Provident Commissioner could do and which we permit him to do under the present order is to 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 benefit of the proviso to Clause 11(3) of the Pension Scheme.”
5. As regards contribution to the Pension Fund, in RC Gupta, the Court has very clearly said that it is only an adjustment by seeking return of contributions anytime, of course, with interest as is being done now. And this has been upheld by the Supreme Court.
6. Still the question remains not fully answered as to why Supreme Court has given an order like it did, which is now being taken advantage of by the EPFO to deny pension to the pre-2014 retirees who did not exercise option under Para 11.3. When the Highest Court of the Land, that too, a Division Bench said that some category is not entitled to the benefit of the judgment, there ought to be such category. Who are the persons who are not entitled to the benefit of the Nov 22 judgment? To find the answer, we have to go back to the period of 2003 when the salaries of the public sector employees were just exceeding the wage cap of Rs 6500. There were lakhs of employees all over the country in private sector. By and large, employers would ensure in private establishments that workers do not contribute on actual salary because it involves equal amount of contribution by the employers which they are not generally inclined. That is the reason why, although the take home pay is fat, the PF recovery will be ensured to be less so that employers need not contribute equally. Also, for the purpose of pension on the higher wages, even retaining allowance and other such allowances also are to be considered to determine the pensionable salary. There will be a number of workers falling in this category who had salary exceeding Rs.6500 but were not contributing to PF on such higher salary.
7. We can thus conclude that the Supreme Court’s larger Bench’s order at Para of 44 (v) of the judgment dt 4.11.2022 disallows this category of employees who were not contributing to PF on salary exceeding Rs.6500/-. And the benefit of the judgement is not available to them and NOT to those who were contributing to PF on salary exceeding Rs.6500. Once the contribution to PF is made on salary exceeding Rs.6500, it should be deemed that they have opted for pension on higher wages and as per RC Gupta judgment upheld by the Larger Bench. Rest is only transfer of 8.33% of such contributions to the Pension Fund which the 2-member Bench of the Honorable Supreme Court in RC Gupta has already permitted the EPFO to do.
8. Therefore, according to me, the Retirees of VSP who did not exercise their option under Para 11.3 during 2003 but retired before 1.9.2014 (attained 58 years), are entitled to higher pension.
VASA SRINIVASA MURTHY
As you are all aware, there are four categories of EPS pensioners, Pre-2014 (2 types) and Post-2014(2 types).
With today’s, RPFC’s communication, only one unfortunate lot is left, i.e., Pre-2014 who didn’t exercise option under Para 11.3 but retired from VSP before 1.9.2016(attained 58 years before 1.9.2014).
In this regard, the Madhya Pradesh High Court Jabalpur Bench has delivered a judgment in n favour of a Pre-2014 Pensioner of the above category.
Analysis thereof suggests that Pre-2014 retirees can heave a sigh of relief.
In fact, in a way, their issue is yet to be adjudicated upon in the Apex Court in RC Gupta’s contempt proceedings and also a separate petition which NCR is understood to be filing.
This leaves us with a conclusion that the fight is not yet over.
I have analysed the judgement of the Jabalpur High Court Bench and given my views in the following pdf.
Pl go through and take it up appropriately.
जैसा कि आप सभी जानते हैं, ईपीएस पेंशनभोगियों की चार श्रेणियां हैं, 2014 से पहले (2 प्रकार) और 2014 के बाद (2 प्रकार)।
आज के आरपीएफसी के संचार के साथ, केवल एक दुर्भाग्यपूर्ण व्यक्ति बचा है, अर्थात, 2014 से पहले, जिन्होंने पैरा 11.3 के तहत विकल्प का प्रयोग नहीं किया था, लेकिन 1.9.2016 से पहले वीएसपी से सेवानिवृत्त हुए (1.9.2014 से पहले 58 वर्ष प्राप्त किए)।
इस संबंध में, मध्य प्रदेश उच्च न्यायालय जबलपुर खंडपीठ ने उपरोक्त श्रेणी के 2014 से पहले के पेंशनभोगी के पक्ष में फैसला सुनाया है।
इसके विश्लेषण से पता चलता है कि 2014 से पहले सेवानिवृत्त लोग राहत की सांस ले सकते हैं।
वास्तव में, एक तरह से, उनके मुद्दे पर आरसी गुप्ता की अवमानना कार्यवाही में शीर्ष अदालत में फैसला सुनाया जाना बाकी है और समझा जाता है कि एनसीआर एक अलग याचिका भी दायर कर रहा है।
इससे हम यह निष्कर्ष निकालते हैं कि लड़ाई अभी खत्म नहीं हुई है।
मैंने जबलपुर उच्च न्यायालय खंडपीठ के फैसले का विश्लेषण किया है और निम्नलिखित पीडीएफ में अपने विचार दिए हैं।
कृपया पढ़ें और इसे उचित रूप से लें।
कृपया इस सामग्री के संबंध में उच्च न्यायालय के फैसले को पढ़ने के लिए यहां दबाएं