B. V. Durga prasad
Food Corporation of India
Is it EPFO Struggling to win EPS-95 CASE before Court of law by diverting the petitioners as well as court attention from their blunder administrative decision taken during 2004?
If we go through the history of EPS-95 cases since 2007, the answer is – YES.
History of the case: It is known to everybody that in 2007 the first case filed in the Hon’ble High Court of Kerala by M.Babu & A.K.Jayappan, Employees of Fact LTD, seeking justice for grant of pension on their higher wages because EPFO denied higher pension to them on the ground that they submitted option for higher wages after cut-off date ie.1-12-2004 which fixed by EPFO.
In this case first of all the single Judge has given a verdict in favour of employees. subsequently EPFO appealed to DIVISION BENCH and historical judgement was given by the BENCH during March 2013 stating that “ the contention of the petitioners was that there is no provision anywhere in ACT or the Employees’ pension scheme fixing a cut-off date for availing of the benefit under the proviso to clause 11(3) of the Employees’ pension scheme. The ACT 1952 and the pension Scheme do not authorise anybody to fix such a cut-off date also.”
Further it is also stated in the judgement that ” according to us, the decision of the learned Single Judge that even assuming that anybody has power to fix that cut-off date, certainly such power is not with the 2nd respondent- Regional Provident Fund Commissioner, is quite correct. We find that the learned Single Judge has considered the contention of the Provident Fund Organisation that the employers and the employee require to file a joint application which has not
been done in this case. But as noticed by the learned Single Judge, the Regional Provident Fund Commissioner did not insist on the same, while permitting the petitioners to avail of the benefit of the proviso to clause 11(3). Hence, the non-filling of the joint application was rightly held to be not a ground for denying the benefit to the write petitioners.”
This was the blunder administrative flaw done by EPFO and on this they made several appeals in the Hon’ble Supreme Court against similar judgements of KERALA HIGH COURT but all were dismissed . They waited for 8years without knowing what to do. When the DIVISION BENCH OF Himachal Pradesh reversing the order of the learned Single Judge by which the learned Single Judge had directed that the appellant-employees (ie. R.C.Gupta & others) would be entitled to the benefit of deposit of 8.33% of their actual salary in the pension fund irrespective of the ceiling limit. As a result R.C. Gupta and others made a appeal in the Supreme court during 2015 and till then the supreme court upheld the judgements of High court as it is but first time the elaborate arguments taken place on both sides in SUPREME COURT and EPFO was with full confidence to win the case. But judgement based on the existing ACT1952 & Employees’ pension scheme- 95 and again EPFO lost the case.
After this R.C.Gupta judgement in 2016, EPFO understand that they havefixed cut-off date without jurisdiction and also it is against provisions of ACT-1952 and PENSION SCHEME-95. So they decided to change their strategy and raised new objection that R.C.Gupta belongs to non-exempted establishment and Supreme court judgement applicable to only the employees of non-exempted establishments. This new theory adopted to divert the petitioners from the vital point of cut-off date fixation which is illegal. That new strategy also not stand before any High court and the appeal made by EPFO against the judgement of Kerala High Court dt 12-10- 2018 was also dismissed by the Supreme court.
Now again EPFO has come up with different strategy ie. presenting to the court 15 lacs crores of rupees burden on GOVERNMENT if accepted pension on higher wages. As a matter of fact all the existing 65 lacs of pensioners are not eligible for higher pension except 40% of existing pensioners. The details are given below:
A) First of all we emphatically brought to the notice of the court that this hypothetical 15 lakh cores of expenditure might have calculated reckoning all the EPS-95 Pensioners ie. arround 65 lakh pensioners but among them only 40 % of pensioners only eligible for this benefit of higher pension as detailed below;
i) The EPFO fixed wages of Rs 6500/- per month to everybody and calculating pension on fixed wages of Rs 6500/-. The employees who were working in small units and retired on or before 2004 most of them not at all crossed this fixed wages limit and now they are not eligible for pension on higher wages. so such pensioners should be deducted from this 65 lakhs.
ii) Further most of the widow pensioners do not get considerable benefit of pension on remittance of differential amount of contribution towards pension fund in lakhs of rupees wef Nov 1995 to till date of expire of employee.
iii) It is also not beneficial to the pensioners who have gone under various VRS Schemes during 2004.
iv) In addition to this some are already drawing pension on higher wages as per court orders and also some organizations employees request ie. joint declarations considered by the EPFO prior to prescribed cut -off date 1-12-2004 and granted pension on higher wages . It is already existing expenditure and not a new one, so the hypothetical figures of Rs 15 lakh crores is not true after reckoning of statistical data of net eligible pensioners on higher wages. If we deduct these non-beneficiaries mentioned above from (i) to (iii) and existing beneficiaries in (iv) , the net beneficiaries available for higher pension is only 40% of 65 lakh pensioners. In such a case if the number of beneficiaries reduced ,the Government expenditure also drastically decline and this hypothetical figure of Rs 15 lakh crores mentioned in the court without any description is not acceptable.
In this connection it is pertinent to refer the land mark judgment delivered by the Supreme court on 1-7-2015 in civil appeal no.1123 of 2015 arising out of SLP(c) no.321 of 2015 titled State of Rajasthan vs Mahendranath Sharma stating that the Govt cannot take a plea of financial burden to deny legitimate dues of the pensioners. Further the decision of Constitutional Bench in Deokinandan Prasad vs State of Bihar wherein this Bench authoritatively ruled that pension is a right and the payment does not depend upon the discretion of the Government but it is governed by the rules and a government servant coming within those rules is entitled to claim pension. up-gradation of pension is also a right and not bounty.
It is applicable in our case also on the ground that while in service we want to contribute more on our wages to get higher pension as per existing provisions 26(6) of EPF&Misc Act 1952 and 11(3) of EPS-95. But our legitimate right was denied by EPFO by fixing one cut-off date which later declared by all the courts it is illegal. Now we are seeking justice before court of law.
In the judgment of Kerala High Court dt 12-10-2018 it is stated” it cannot be disputed that, the work force in our country is only being in numbers with more and more establishments springing in to existence and getting covered by the provisions of EPF Act. The contributions paid by them on the basis of actual salaries drawn by the employees are constantly adding to the base of the Fund . Such process accretion is a continues phenomenon. Therefore, there is no evidence of the fact that the payment of pension as alleged is depleting the Fund.”
Further the pension scheme is essentially a social welfare measure that should serve the social purpose for which it is brought into force for the benefit of pensioners in view of the obligations in the Directive Principles, the state had to find some means to ameliorate the conditions of the retired employees.
Since 2007 to 2016 ie from FACT Employees case to R.C.Gupta case in
almost all courts EPFO tried to defend the cut-off date fixed by them . But they could not win the cases. Now they are playing foul game to divert the petitioners and their lawyers to focus on other baseless points raised by them such as exempted and non-exempted, financial implications, cessation of membership after retirement etc, rather than arguing on cut-off date which is vital point to argue to win the case by the petitioners.
In cognizance above all the petitioners lawyers should focus and argue on the provisions of ACT and pension scheme and illegal fixing of cut-date without jurisdiction and as a result these petitioners lost the benefit of higher pension even though they represented several times to contribute more towards pension fund while in service and now they are seeking justice before court of law. In the case of financial implications it is only secondary and we can win the case only on this vital point – fixing of cut-off date by EPFO without jurisdiction and deprived the benefit of higher pension to these petitioners.
Present position of court case:
One SLP filed by the Ministry of Labour & employment , another revision petition filed by the EPFO on the dismissal of EPFO appeal against KERALA High court judgment dt 12-10-2018 and more than 40 SLPS filed by various organization employees/pensioners are referred to three judges bench in Supreme Court and yet to constitute this bench to take up these cases. our retired friends represented twice to the Hon’ble chief justice when he visited Hyderabad to constitute the bench to take up this case soon. Hope it may realise soon.