The implementation method of the Supreme Court judgment on EPS 95 pensioners is questionable.

To

Hon’ble Union Minister of Labour and Employment Govt. of India, 

Ministry of Labour and Employment, 

New Delhi-110001

The Central Provident Fund Commissioner, 

Employees Provident Fund Organisation, 

Bhavishya Nidhi Bhawan Bhikaji Cama Place, 

New Dehli-110066

Subject: Wrong applicability of instructions issued by EPFO vide its office letter no. Pension/2022/54877/15149 dated 29.12.2022 for pre-amended pensioners by wrongly implementing the judgment dated 04.11.2022 of EPFO VS Sunil Kumar & ors. etc.

Most Respected Sir,

Please refer to EPFO office letter no. Pension/2022/54877/15149 dated 29.12.2022 on the above cited subject. In this connection my submissions are as under:-

EPFO has mentioned para 44(v) in its letters issued one for those employees who retired under pre- amended scheme ie who retired on attaining the age of 58 years on superannuation up to 31.08.2014 vide its office letter no. Pension/2022/54877/15149 dated 29.12.2022 and the other for those who were to retire on or after 01.09.2014 vide its office letter по. Pension/2022/56259/16541 dated 20.02.2023. Now a question arises who are those employees who are covered under para 44(v) under 04.11.2022 judgment, as in its letter dated 20.02.2023,

EPFO has mentioned implementing the directives contained in para 44(iii) and 44(iv) read with para 44(v). I am of the considered view that para 44(v) cannot be applicable on different set of employees covered under different Supreme Court judgments, ie judgment decided by the court on 04.11.2022, R.C.Gupta judgment and judgment dated 31.03.2016 etc.

 Furthermore, who are those employees who will get the benefit of R.C.Gupta judgment as directed by the Hon’ble Supreme Court in para 44 (ix) in its judgment dated 04.11.2022. 

In my opinion, the word already exited from membership mentioned in para 44(v) in Hon’ble Supreme Court judgment dated 04.11.2022 cannot be equated with the word retirement on superannuation. In support of this, I am quote relying upon instructions contained in para 12(1)(a)(b), para 12(8) and para 14 and note mentioned under para 14 in Employees Pension Scheme 1995 which clarifies the difference between the word exit and superannuation. 

As per the instructions contained in above said paras, meaning of exit relates to those employees who leave their service before completing the eligible service of 10 years or more or they retire or ceases to be in employment before attaining the age of 58 years.

As per instructions contained in Employees Pension Scheme 1995, superannuation means attaining the age of 58 years.

 I am of the firm view that EPFO by implementing instructions contained in para 44(v) on those pensioners who had retired on attaining the age of 58 years on superannuation up to 31.08.2014 vide its letter dated 29.12.2022 as cited at above has not only violated its own instructions as mentioned in para 12 and 14 in EPS 1995 but also wrongly implemented the Hon’ble Supreme Court judgment dated 04.11.2022. I am of the considered view that para 44(i) clarifies the 04.11.2022 judgment and its applicability. Contents of paragraph 44(i) are given as under:-

“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.”

This para confirms that the provisions contained in para 44(ii) to Para 44(viii) are applicable to those present members who were in service prior to 01.09.2014 and continuing in service on or after 01.09.2014. It is worth to mention here that para 44(vi) mentioned in judgment dated 04.11.2022, has not been mentioned by EPFO in its letter dated 20.02.2023 for its implementation on those employees who were to retire on or after 01.09.2014.

 It is further added that para 44(vi) has been added by EPFO in its letter dated 29.12.2022 for its implementation on those employees who are covered under the pre-amended pension scheme. It is really surprising that para 44(vi) which is a partthe judgmentment dated 04.11.2022 has not been implemented by EPFO in its letter dated 20.02.2023. 

This requires clarification. Para 44(i) confirms that para 44(v) is a part and parcel of 04.11.2022 judgment and it is applicable on those employees who were to attain 58 years of age on or after 01.09.2014, but they had retired prior to 01.09.2014 before attaining 58 years of age and already exited from its membership, they would not get the benefit of this judgment. 

No where in the entire judgment dated 04.11.2022, it has been mentioned that the provisions of para 44(v) will be applicable on other Supreme Court judgments decided earlier and the employees covered under those judgments will not get the benefit of higher pension. EPFO by issuing the letter dated 29.12.2022 for implementing the provisions contained in para 44(v) and para 44(vi) of judgment dated 04.11.2022 on pre-amended pensioners and not implementing the provisions contained in R.C.Gupta judgment as directed by the Hon’ble Court vide its judgment dated 04.11.2022 in para 44(ix) has misled the pensioners who are covered under R.C.Gupta judgment and other Supreme Court judgments decided earlier.

It is further clarified that the Hon’ble Court has delivered its verdict on 04.11.2022 on an appeal filed by EPFO and Union Govt. against the judgment of the three High Courts who have rejected the amendments made by the Central Govt. in the Employees Pension Scheme 1995.

 Hon’ble Supreme Court in its judgment dated 04.11.2022 on page no.23 at para19, has mentioned” The Division Bench of the Kerala High Court examined the impact of the amendment to the pension scheme in respect of the following classes of pensioners or potential pensioners:-

(i) Employees who had exercised option under the proviso to para 11(3) of the 1995 Scheme and continued to be in service as on 1st September 2014.

(ii) Employees who had not exercised their option under the proviso to paragraph 11(3) of the 1995 Scheme and were continuing in service as on 1st September 2014.

(iii) Employees who had retired prior to 1st September 2014 without exercising an option under paragraph 11(3) of the 1995 Act scheme.

(iv) Employees who had retired prior to 1st September 2014 after exercising

of an option under the paragraph 11(3) of the 1995 Scheme.

Again on page 27 and 28 at para 38, it has been mentioned ” As rightly contended by the council appearing for the petitioners, the effect of the

This requires clarification. Para 44(i) confirms that para 44(v) is a part and parcel of 04.11.2022 judgment and it is applicable on those employees who were to attain 58 years of age on or after 01.09.2014, but they had retired prior to 01.09.2014 before attaining 58 years of age and already exited from its membership, they would not get the benefit of this judgment.

 No where in the entire judgment dated 04.11.2022, it has been mentioned that the provisions of para 44(v) will be applicable on other Supreme Court judgments decided earlier and the employees covered under those judgments will not get the benefit of higher pension.

EPFO by issuing the letter dated 29.12.2022 for implementing the provisions contained in para 44(v) and para 44(vi) of judgment dated 04.11.2022 on pre-amended pensioners and not implementing the provisions contained in R.C.Gupta judgment as directed by the Hon’ble Court vide its judgment dated 04.11.2022 in para 44(ix) has misled the pensioners who are covered under R.C.Gupta judgment and other Supreme Court judgments decided earlier.

It is further clarified that the Hon’ble Court has delivered its verdict on 04.11.2022 on an appeal filed by EPFO and Union Govt. against the judgment of the three High Courts who have rejected the amendments made by the Central Govt. in the Employees Pension Scheme 1995. Hon’ble Supreme Court in its judgment dated 04.11.2022 on page no.23 at para19, has mentioned” The Division Bench of the Kerala High Court examined the impact of the amendment to the pension scheme in respect of the following classes of pensioners or potential pensioners:-

(i) Employees who had exercised option under the proviso to para 11(3) of the 1995 Scheme and continued to be in service as on 1st September 2014.

(ii) Employees who had not exercised their option under the proviso to paragraph 11(3) of the 1995 Scheme and were continuing in service as on 1st September 2014.

(iii) Employees who had retired prior to 1st September 2014 without exercising an option under paragraph 11(3) of the 1995 Act scheme.

(iv) Employees who had retired prior to 1st September 2014 after exercising

of an option under the paragraph 11(3) of the 1995 Scheme.

Again on page 27 and 28 at para 38, it has been mentioned ” As rightly contended by the council appearing for the petitioners, the effect of the 

amendments to the pension scheme is to create different classes of pensioners on the basis of the date, 01.09.2014, the date on which the amended scheme came into force. Consequently, their would be –

(i) Employees who have exercised option under the proviso to paragraph 11(3) of the 1995 Scheme and continuing in service as on 1.9.2014;

(ii) Employees who have not exercised their option under the proviso to paragraph 11(3) of the 1995 Scheme, and continuing in service as on 1.9.2014;

(iii) Employees who have retired prior to 1.9.2014 without exercising an option under paragraph 11(3) of the 1995 Scheme;

(iv) Employees who have retired prior to 1.9.2014 after exercising the option under paragraph 11(3) of 1995 Scheme.The rationale in so classifying the employees covered by the pension scheme on the basis of the above date is not forthcoming.

The above clearly shows that the date, 01.09. 2014, on which amendment to the pension scheme came in to force have created the above four types of employees.

In my views, the Hon’ble Supreme Court has clarified about the above said four types of employees in its judgment dated 04.11.2022 in para 44(iii), 44(iv), 44(v) and 44(vi). It is worth mentioning here that the Hon’ble Supreme Court in its judgment dated 04.11.2022 on page no. 14 & 15 Hon’ble court has quoted section 6 A of the Act of 1996 and mentioned about different types of pension which would be paid under EPS 1995 such as:-

(a) Superannuation Pension, retiring pension or permanent total disablement pension

(b) Widow or widower’s pension, children pension or orphan pension payable to the beneficiaries of such employees.

Superannuation pension is paid to those employees who retire on attaining the age of 58 years. Retiring pension is paid to those employees who retire, or cease to be in the employment before attaing the age of 58 years. In both the above cases ie for entitlement of superannuation pension or retiral pension, minimum 10 years or more eligible service is required. It is again worth to mention here that EPFO is mis implementing the meaning of words “prior to 1st September 2014, for example, in para 44(v), it has been mentioned “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 there of. They would not be entitled to the benefit of this judgment.” Here prior to 1st September 2014 means those employees who were to attain 58 years of age on superannuation on or after 01.09.2014 but they had retired and already exited from membership before attaing 58 years of age. 

They would not get the benefit of this judgment. It is in my Hon’ble opinion that applicability of Judgement dated 04-11-2022 as per para 44(v) is that the said para is applicable to those employees who are seeking benefits of post amendment scheme i.e. higher pension to those employees getting wages/salary beyond Rs. 15,000/- where as the present case of the number of sangh is that they are seeking benefits of Pre amendment scheme i.e. also as per the directions given by the Hon’ble Supreme court in R. C. Gupta case and wide judgment dated 04-11-2022 Hon’ble Supreme Court has also affirmed the Judgement of R. C. Gupta’s case in para 44 (iv) & 44 (ix) of the said judgment.

It is a matter of great surprise that EPFO by picking up para 44(v) and para 44(vi) from judgment dated 04.11.2022 and implementing it on those pensioners who are not covered under this judgment and rather covered under R.C.Gupta judgment and other judgments decided earlier. It is pertinent to mention here that Hon’ble Supreme Court in its judgment dated 04.11.2022 has shown agreement with the R.C.Gupta judgment and has directed the EPFO to implement the directives contained in the said judgment within a period of eight weeks. The directives under R.C.Gupta judgment were given by the Hon’ble Supreme Court 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 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. Even Hon’ble Supreme Court in its judgment dated 04.11.2022 in para 44(iv) has given the benefits of R.C.Gupta judgment to those employees who have not exercised their option under para 11(3) prior to 01.09.2014 and they were in service on or after 01.09.2014.It is worth to add that the judgment dated 04.11.2022 of Hon’ble Supreme Court is crystal clear that they will get the higher pension but in my views EPFO is not implementing the judgment in its true letter & spirit.

It is crystal clear that EPFO is misinterpreting and mis-implementing the judgment dated 04.11.2022 and denying the benefit of higher pension to all the pensioners who are covered under R.C.Gupta judgment, 31.03.2016 judgment etc.

It is requested to allow higher pension as per the pre amendment scheme 1995 to all the pensioners of EPS 1995 as per the directions of Hon’ble supreme court vide its judgement dated 04-11-2022, R. C. Gupta judgment and 31-03- 2016 judgment etc.

with best regards.

Yours Faithfully Paras Ram Rauk (परस राम रांका) 2913/24

राचिय भारतीय खाद्य निगम मित कर्जमारी कायानानिति जोधपुर 287/पुर/2016-17

Copy for information & necessary action at your and please

1- The Chairman and managing director, Food corporation of India Head Quarter, 16-20 Bara Khamba Lane New Delhi 110001

2- The General manager (pension) Food Corporation of India, Zonal Office (North) A-2A, A-2B, Sector-24 Noida-201301

Paras Ram Rank (पररा राम रांका) 29(3/24

सचित भारतीय खाद्य निगम

287/पुर/2016-17

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