Wonder | Amendment in EPS vide GSR 609 dt. 22.08.2014 was not placed by EPFO before the SC

25.03.2024

Dear friends,

Since the amendment in EPS vide GSR 609 dt. 22.08.2014 was not placed by EPFO before the SC in all the TEN (10) SLPs decided against EPFO on 31.03.2016 (7) – Majeed Kunju & ors, 12.07.2016 (1) – Austin Joseph & ors (all pre-01.-9.2014 superannuated cases) and 04.10.2016 (2)- RC Gupta & ors; the 2-J bench in Para 10 of the Judgment dt. 24.08.2021 in SLP 8658-59/2019 (EPFO vs Sunil Kumar) Link: https://bit.ly/4abidCd  referred the matter to 3-J Bench seeking specific decision on following two issues (i.e. Scope was precisely limited to following issues):

Whether there would be a cut-off date under paragraph 11(3) of the Employees’ Pension SchemeWhether the decision in R.C. Gupta would be the governing principle on the basis of which all these matters must be disposed of

Please read para 44(i), 44(v) and 44(ix) of the Judgment dt. 04.11.2022 very carefully:

44(i): “The provisions contained in the notification no. G.S.R. 609(E) dated 22ND August 2014 are legal and valid. So far 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-paragraphs”.

So, all the directions in Para 44 are meant for only those who were affected adversely due to amendments in GSR 609 dt. 22.08.2014 (i.e. post 01.09.2014 pensioners)

Direction nos.44 (ii) to 44(iv) and 44(vi) to 44(ix) are meant for only those who were members of EPS as on 01.09.2014 (and either superannuated on attaining the age of 58 on/after 01.09.2014 or who are still members) 

44(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.”

Direction nos.44 (v) is for only those; who were to superannuate on attaining the age of 58 years on or after 01.09.2014 but had exited/ retired (NOT SUPERANNUATED) prior to 01.09.2014 i.e. this direction will affect only those who were to attain 58 yrs of age on or after 01.09.2014 but had exited by availing early pension/withdrawal benefit/ scheme certificate etc. Therefore, those who superannuated on attaining the age of 58 yrs prior to 01.09.2014 are NOT AFFECTED at all by this direction particularly in view of 44(i). 

In EPS, 

Superannuation pension is for those who continue as a member of EPS till attaining the age of superannuation (58 yrs) 

Early pension cases are those who avail early pension prior to attaining the age of superannuation i.e. 58 yrs

Exit cases are those who exit the membership prior to attaining age of 58 yrs i.e. by availing withdrawal benefit/ scheme certificate etc

44(ix): We agree with the view taken by the Division Bench in the case of R.C. Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (pre-amendment) 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 earlier in this paragraph.”

So, the judgment dt. 04.10.2016 containing the ratio decidendi has to rule the field in all such cases.  

Pension of pre-01.09.2014 superannuated cases had been implemented vide circular dt 23.03.2017 after following due process of law with the approval by CBT & MoL&E.  This benefit had been denied to similar pensioners from exempted estts vide circular dt 31.05.2017. In Paras 37 to 39 of the judgment dt. 04.11.2022 (Sunil Kumar case), this issue has also been settled. So, circular dt 23.03.2017 should be applicable on this category too.

Gist:

Post 01.09.2014 cases are to be governed by RC Gupta judgment dt. 04.11.2022 in whose cases, the same was NOT IMPLEMENTED; subject to directions contained in para 44 (ii to ix) of Sunil Kumar Judgment dt. 04.11.2022

and 

Pre-01.09.2014 cases (unexempted & exempted) are to be governed by RC Gupta judgment dt. 04.11.2022 which has already been implemented vide circular dt. 23.03.2017 after following the due process of law and approval by CBT (19.12.2016) & MoL&E (16.03.2017) in r/o cases from unexempted estts. 

The ratio decidendi of RC Gupta case is contained in the DECREE dt. 04.10.2016 has to rule the field in all cases whether pre-01.09.2014 or post 01.09.2014 as mentioned in the GIST above by following the following decision: (Certified copy of the DECREE can be accessed at the link: https://bit.ly/3Tc9rNu

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

12. Consequently and in light of the above, we allow these appeals and set aside the order of the Division Bench of the High Court.” AND THIS COURT DOTH FURTHER ORDER that this ORDER be punctually observed and carried into execution by all concerned:” 

Surprisingly, EPFO has totally ignored the above ratio decidendi in its circulars dt. 29.12.2022 & 25.01.2023 issued while implementing 04.11.2022 judgment WHEREAS, the contents of the DECREE were applied while seeking approvals from PEIC (08.12.2016), CBT (19.12.2016) in their respective agendas and also in the proposal dt. 10.01.2017 submitted by EPFO to MoL&E.  The proposal was approved by MoL&E vide letter dt. 16.03.2017 and then EPFO issued the circular dt. 23.03.2017 for allowing the benefit to pre-01.09.2014 retirees (all petitioners herein). Similar procedure as directed in 04.11.2022 judgment for post 01.09.2014 cases was applied while implementing RC Gupta judgment vide circular dt 23.03.2017 in r/o pre-01.09.2014 cases of un-exempted estts.

EPFO was fully aware of the fact that the ratio decidendi of RC Gupta Judgment was applicable to all EPS Pensioners whether pre-01.09.2014 retirees or post 01.09.2014 retirees or serving employees and belonging to un-exempted and exempted estts. (both) and the same has also been reflected in the Paras 2.8, 2.9 & 3.2 of the reply submitted by Dr. VP Joy, IAS, the then CPFC/EPFO by way of an affidavit dt. 09.01.2018 in the Contempt Petition no. 1816-1817 of 2017 in RC Gupta case as under:  https://bit.ly/3Tc9oBi
Para 2.8: (Extracts) ……. “It is stated that besides HPTDC, there are many other similar establishments whose employers are/were contributing on full salary and eligible for revision of pension and cases of retired employees of these establishments are also being revised…….”.Para 2.9: (Extracts) ……. “It is stated that in cases where member is still in service the amount is being diverted on receipt of option and in cases where the employee has retired and withdrawn their PF, in those cases, they are being asked to deposit the differential amount (the differential between the amount calculated @8.33% of the actual salary)Para 3.2: (Extracts) ……. “It is stated that in cases where members are still in service, the amount is being diverted on receipt of option and in cases where the employees have retired and withdrawn their Provident Fund, they are being asked to deposit the differential amount on actual salary, being the difference in the amount calculated @8.33% of the actual salary and the amount contributed by the employer @8.33% on the ceiling limit of Rs.6,500/- and the interest ………………”.Para 3.13.  (Extracts) ……. “MoL&E vide letter dated 16-03-2017 conveyed its approval to allow members of the Employees’ Pension Scheme, 1995 who had contributed on higher wages exceeding the statutory wage ceiling of Rs.6,500/- in the Provident Fund to divert 8.33% of the salary exceeding Rs.6,500/- to the Pension Fund with up-to-date interest as declared under 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” 

For further details on above and for downloading any of the related document, please read Page nos. 1 to 9 and see table in my earlier post dt. 21.03.2024 by clicking the link: https://bit.ly/4crQVJR

Parveen Kohli 

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