Main Dispute before Court of law besides some other prayers

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The latest news on pension court case – EPS-95:Brief on Hon’ble Supreme court proceedings regarding pension case — EPS- 95 held on 2-8-2022, 3-8-2022, 4-8-2022, 5-8-2022,10-8-2022, 11-8-2022 before three judges bench i.e Honble Judges S/sri U.U.Lalit, Aniruddha Bose and Sudhanshu Dhulia;

Main Dispute before Court of law besides some other prayers:

Allowing pensioners to opt for pension on their higher wages and not on wages fixed by EPFO ie Rs 6500/- prior to 1-9-2014 and Rs 15000/- after 1-9-2014.

Cases heard by Hon’ble Supreme court

1) EPFO appeal against Kerala High court Judgement dt.12-10-2018.

2) SLP filed by the Govt of India in support of EPFO on the financial exchequer.

3) Besides 67 respondents ( directly filed Slips or impleading ) but the main respondent is Kerala High court petitioners who won the case in Kerala.

Brief on court proceedings

EPFO only appealed against Kerala High court Judgement, so the three judges bench, first of all, heard the argument s of EPFO lawyer Sri Aryam Sunderam for the first two days along with Govt of India lawyer Sri Vikramjit Banerji. The essence of their arguments are:

1) EPFO lawyer cited one high-rank officer’s benefit if permitted him to claim pension on his higher wages — he will pay differential amount of contribution of 38 lakhs with interest to EPFO and walk away with arrears of 41 lakhs plus monthly pension. He also argued vehemently against the retrospective effect of the pension benefits.

High-rank officers are only 15 to 20 per cent of EPS-95 pensioners. Further, those retired after 2014 will receive arrears of pension for a small period ie 5 to 6 years but depositing the differential amount with interest calculated for a period of 15 years and more. It means he is remitting to EPFO a huge amount and receiving a very small amount as an arrear. It is not only in the case of high-rank officers but also in the case of every pensioner who retired after 2014.

In addition to this widows, and pensioners have to pay a differential amount of contribution on higher wages but receiving pension half of their eligible pension. It means depleting pension funds does not arise. Moreover, both pensioners ie. husband and wife died their contribution lakhs of rupees accumulating in pension fund without payment of any pension.

2) Next the Govt of India ASGI Sri Vikramjit Banerji emphasized on the financial impact of pension on higher wages allowed and he has gone to the level that the poorer vulnerable section of Society will suffer due to depleting funds.

Comment on this: When Otis Elevator Employees’union filed the case in Madras High court against the implementation of this EPS-95 Scheme, the Govt argued in the court it is a welfare /social security scheme but now it is arguing against the Social security of pensioners without revision of pension in accordance to the cost of living. How pensioners can live with Rs1000/- or less per month at present cost of living.

Respondent lawyer’s arguments in brief ;

Next Supreme court allowed Kerala High court batch cases lawyers, Sri Kailashnath Pillai, to argue and he presented the case very effectively regarding repercussions of amendments Dt. 22-8-2014, deletion of para 11(3), loss of pension on the calculation of 60 months instead of 12 months and finally placed the data that financial liability is only Rs 15000/- crores only and not hypothetical figure of Rs 15 lakhs crores. He also explained to the court that the accumulation of EPFO funds is increasing gradually and not depleting. Further, he brought to the notice of the court that even daily wages workers earn Rs1000/- daily whereas these pensioners are earning less than this amount monthly, hence the review petition of EPFO and Govt SLP be dismissed.

2) Another senior lawyer Sri Gopal Shankara Narayana argued excellently on behalf of pensioners. He started arguments as follows:

EPFO’s role under the act is that of a fund manager. The Central Board of trustees is the trustees of the fund. The employees are the beneficiaries under both PF and pension schemes. In the instant case the GOI, CBT and PEIC have all committed to compliance with R C Gupta’s judgement. How can EPFO now be permitted to override the consistent stand taken by the Trustees which actually taken for the benefit of the employees?

All employees covered under the Employees provident fund whether working in exempted or un-exempted establishments are ipso facto necessarily members of the pension scheme (EPS-95) as per the existing legal framework. He also said exempted and non-exempted don’t make any difference as money ultimately goes to the pension funds. The concept of a cut of date for every Joint option to contribute on actual salary over the ceiling amount is against both the EPF para 26(6).

EPS -95 para11(3). Actuarial Report is ex-facie false and misleading and contrary to RTI replies obtained from EPFO. The pension fund as it currently stands is sufficient to disburse any enhanced pension to employees based on RTI information. More than 2.6 lac EPS members have died after RC Gupta’s judgement without receiving revised pension on actual salary made applicable by EPFO vide circular Dt. 23-3-2017.

3) Another sr. lawyer Sri Venkataramani presented his arguments very interestingly against a review of RC Gupta’s judgement. He said on PF Act there is no difference between exempted trust and non-exempted trust. Social securities are applicable even in all other countries also. All of a sudden bringing amendments which will deprive the large number of sections is not at all correct. This amendment of 22-8-2014 shifts the burden of 1.16% from Govt to individual. Rebooting the financial sustainability argument of EPFO is a violation of our Fundamental Right. Artificial decisions have been taken ignoring constitutional arguments.

4) One more sr. advocate Sri Vikas Singh made a strong argument by drawing the attention of the court that there is no difference between exempted and non-exempted establishments under this pension scheme. He also referred to the earlier judgement of the Supreme court wherein it has been held that paucity of finds cannot be a ground to deny accrued vested rights to employees.

5)Next Ms Meenakshi Arora argued exceptionally well and placed several data before the judges to prove that the corpus of EPFO has gone up from Rs 8,253 crores to Rs 3,93,604 crores and EPFO is paying pension only out of interest earned from employees’ contributions and not out of corpus. The principle amount always remains in the corpus fund itself.

Now the judgement is reserved after six days of proceedings held in the Hon’ble Supreme court. It may pronounce at any time.

Critical analysis of expected judgement:

1) We can expect Supreme court judgement only with reference to Kerala High court Judgement Dt. 12-10-2018 and may not speak about other prayers out of this Kerala High court Judgement.

2) EPFO prescribed cut-off date and prevented these pensioners while in service from submitting of option to get higher pension as per provisions of EPF Act 1952 and EPS-95 Scheme and proved before all courts it is illegal. The Supreme court also dismissed all appeals made by EPFO against these judgements.

Now Supreme court cannot support this cut-off date.

3) Before the Supreme court now EPFO changed their strategy by focusing arguments on Financial Viability instead of provisions of the EPF Act 1952 and the EPS-95 Scheme because they lost every case in almost all High courts and their appeals were dismissed by the Supreme court.

In the day-to-day proceedings when Sri Vikramjit Banerji, ASGI argued that now after retirement if pensioners ask for retrospective benefits it will not be justified, then Hon’ble judge Sri U U Lalit said that there are a number of judgements allowing benefit retrospectively and simultaneously there are judgements denying it. But as far as my knowledge the Division Bench of Himachal Pradesh only denied the benefit of pensioners but this judgement was superseded by the Supreme court in the R C Gupta case.

Now, this issue is reopened and hanging before the Supreme court for Judgement on whether to allow pensioners to opt for pension on higher wages with retrospective effect or not.

4) The second issue before the Supreme court is allowing pensioners of both exempted and non-exempted establishments to claim pensions on their higher wages.

If the Supreme court admitted both in favour of pensioners, the lakhs of pensioners are cheerful besides declaring the Amendment 2014 GSR is illegal.

Hope that we may hear good judgement in favour of lakhs of pensioners from the Hon’ble Supreme court soon. Wait and see.



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