EPFO gave a “malicious twist” to the Judgement of Sri R.C. Gupta & Others delivered on 4th October, 2016 and attributed the same ” malicious twist” to the Hon’ble Supreme Court and its judgement of 4th November, 2022.
How the “malicious twist” happened?
On Page No: 1 of the Circular of 29th December, 2022, EPFO reproduced one of the Para in the Judgement of 4th November, 2022 as follows:
” 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 judgement.
Again quoted on Page No: 2 of the same Circular a Para of the Judgement of 4th October, 2016 in case of
Sri R.C. Gupta & Others:
” the appellant-employee on the “eve” of their “retirement” i.e., sometime in the year 2005 took the plea that the provisio brought in by the amendment of 1996 was not within their knowledge and, therefore, they may be given the benefit thereof, particularly, when the employer’s contribtion under the Act(i.e., Employees’ Provident Fund Scheme, 1952) has been on actual salary and not on the basis of ceiling limit of either 5,000/- or 6,500/- per month, as the case may be. This plea was negativated by the Provident Fund Authority on the ground that the proviso visualized a cut-off date for exercise of option, namely, the date of commencement of Scheme or from the date the salary exceed the date of commencement of Scheme or from the date the salary exceeded the ceiling amount of 5,000/- or 6,500/- per month, as may be. As the request of the appellant-employees was subsequent to either of the said dates, the same cannot be acceded to.
( Dictionary meaning of eve: noun: the day or period of time immediately before an event or occassion: on the eve of her departure he gave her a little parcel.
- the evening or day before a religious festival: the service of Passover eve. * chiefly poetic/literary: evening: a bitter winter’s eve.)
On close observation of the above Paras, in the first para “exited” is used and in the second para “retirement” is used.
In the parlance of EPS,’95 only the words “on attained the age of 58 years” has legitimacy but not for the word “retirement” as retirement happens at the end of the month on attaining the age of 58 years, 60 years, 62 years, 65 years, as the case may be.
The para as quoted above in the Judgement of Sri R.C. Gupta, thus attained legitimacy.
This means there is documentary evidence that Sri R.C. Gupta & Others who have not exercised option inbetween 16-03-1996 and 30-04-2004, approached the concened Provident Fund Commissioner, with a “written request” which was ” acknowledged in writing” by the concerned P.F. Commissioner, on the eve of their retirement and their plea was negativated “in writing” by the concerned Provident Fund Commisioner.
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Hence Sri R.C. Gupta must have additional copy of his written request and also the writeen negatived reply by Regional Provident Fund Commissioner.
Similarly the concerned Regional Provident Fund Commissioer must have copy of the writeen request of Sri R.C. Gupta and also the Office Copy of the writeen negatived reply”.
Hence, Employees or anybody through RTI to the concerned Regional Provident Fund Commissioner, may ask for copy of the above letters.
Further on the eve of retirement which can be one week before retirement or a fortnight as the case, as per the Dictionry meaning quoted above.
As already mentioned in the above Para of the Judgement of 4th October, 2016, Sri R.C. Gupta & Others have retired in 2005. It is not known on attaining the age of 58 years or 60 years or the month in which retired.
As an example, Sri R.C. Gupta, retired in the month of May, 2005. Being 02-05-1945 (again example) as his Date of Birth, he exits EPS,’95 on 01-05-2005 and from 02-05-2005 to 31-05-2005 i.e., the Date of Retirement on attaining the age of 58 years, he is no longer Member of EPS,’95. Thus when the approached before a fortnight (15-05-2005) or a week (24-05-2005) before the concerned Regional Provident Fund Commissioner, it is deemed that he approached after exiting EPS,’95 on 01-05-2005.
Moreover as per Para No: 69 of Employees’ Provident Fund Scheme, 1952, an Employee can withdraw 90% of his Provident Fund accumulations of both Employee’s and Employer’s before retirement. Thus there is the possibility of Sri R.C. Gupta, withdrawing 90% of his Provident Fund accumulations before Retirement.
Thus at the time of approach to the concerned Regional Provident Fund Commissioner, Sri R.C. Gupta emptied 90% of his accumulations in his Provident Fund Account especially from Employer’s part from which only 8.33% difference between Ceiling and Full Wages is to be transferred for Higher Pension. Thus there is possibility of Withdrawing 90% from P.F. Account when he approached the concerned Regional Provident Fund Commissioner, either on 15-05-2005 or 24-05-2005.
Thus there is no possibility of adjustment of account from Provident Fund to Pension Fund by the concerned Regional Provident Fund Commissioner in this case even though both the accounts of Provident Fund and Pension Fund are maintained by P.F. Commissioner in case of Unexempted Establishments to which Sri R.C. Gupta belongs (Himachal Tourism Development Corporation), and the RPFC has to collect the difference with interest only from Sri R.C. Gupta directly through his Employer.
This also requires proof from concerned Regional Provident Fund Commissioner. And further RPFC has to shown proof if there is RTI enquiry in this regard. Thus it is almost all clear that Sri R.C. Gupta approached the concerned Regional Provident Fund Commissioner, may be after withdrawing 90% of his Provident Fund Accumulation and certainly after exiting the EPS,’95.
But Sri R.C. Gupta was sanctioned Higher Pension, even though he submitted Option to the concerned Regional Provident Fund Commissioner, after exiting EPS,’95 becuase the Judgement of 4th October, 2016 was delivered after more than 11 years after his exiting EPS,’95 (2005 to 2016)
Then how can EPFO prescribe Employees who attained 58 years on or before 31-08-2014, that they should submit Options for Higher Pension before they are Members(during the period of service) of EPS,’95 vide Para 6(ii) of the letter of 29th December, 2022, when they are similary placed on par with Sri R.C. Gupta.
6 (ii) exercised joint option under the proviso to Para 11(3) of the pre-amendment scheme while being “members of EPS,’95”.
The other condition to opt for Higher Pension in the said Circular on the same Page is
6 (iii) their exercise of such option was declined by PF authorities.
Here in Para No: 6(iii) there is no word “declined in writing” by PF authorities but simply “declined by PF authorities” which means even oral decline by PF authorities. In addition instead of “their exercise of Option in writing” it is only “exercise of such Option”.
Exercise of Option can also mean Oral request for accepting Option.”
If EPFO ask written proof regarding declining of Option by the Employees, it can as well verify from the Office Copy of the “Decline Letter” available in Regional Provident Fund Commisioner and itself publish the name of the Employees whose options were declined.
To be continued……..
G. Srinivasa Rao, Mobile No: 89851 72459 & WhatsApp No: 86398 71817