Email received from our AOR Sh. Purushottam Sharma Tripathi Ji about today’s proceedings in our case:
In continuation of my earlier mail sent yesterday please note that the EPF batch cases were listed today at 02 pm. Mr. Vikas Singh Senior Advocate commenced arguments at the beginning.
I forgot to mention that he brought on record that he was representing NCR and NCOA in the case. He made a strong argument by drawing attention to Section 17 of the act and demonstrated that PF exempted establishments were ipso facto members of the pension scheme and hence there no could be no differentiation between them and unexempted establishments.
He brought attention to paragraph 1 of the Employees pension scheme 1995 and compared it with paragraph 1 of the earlier family pension scheme 1971 which had been Discontinued and showed that under the family pension scheme section 17 exempted establishments employees were excluded along with section 16 employees.
He also relied on the judgment of the supreme court wherein it has been held that paucity of funds cannot be a ground to deny accrued vested rights to employees.
He sought permission to file written submission.
After his arguments before Gopal Shankaranarayanan senior advocate could argue Mr. Basant, Mr. Chitrambresh, Mr. Nadkarni, Ms Meenakshi Arora seniors addressed the court. Except for Mr. Basant and Ms. Arora to some extent none were impressive.
The coming of Mr. Gopal Shankaranarayanan senior advocate turned the entire table in our favour.
1. He took the first argument that the exercise of the option is only recognized at one place in the EPF Act,1952 in Section 6. The court does not contemplate the exercise of any option under section 6A for the pension scheme. Hence the option under paragraph 26(6) was in furtherance only for PF. There could not have been any similar option in pension scheme 1995 when section 6A legislation does not contemplate such an option.
2. He has challenged the locus of EPFO to file the instant Writ as per my submissions namely
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 Scheme. In the instant case the GOI, CBT, and PEIC have all committed to compliance with RC GUPTA JUDGEMENT. How can EPFO now be permitted to override the consistent stand taken by the trustees taken for the benefit of the employees w.r.t their monies on an actuarial valuation not having any legal validity or sanctity?
The Central Board of Trustees (CBT) and not the EPFO is the statutory authority vested with the power to administer the Provident Fund Trust. Hence EPFO has no locus to file the instant SLP/Review Petition.
- Section 5 (1A) of the EPF Act, 1952– The Provident Fund shall vest in and be administered by the Central Board constituted under Section 5 A.
- Section 5A (3) – Central Board of Trustee (CBT) shall administer the Provident Fund vested in it in such matter as specified in the Provident Fund Scheme.
- Section 5A(5) – CBT must maintain proper Accounts of the Provident Fund
- Section 5A (6) – Provident Fund Accounts maintained by CBT must be subjected to an annual statutory Audit by the CAG.
- Section 5A (8) – CAG-certified Provident Fund Account shall be forwarded by CBT to Central Government
- Section 5A (9) – Central Government shall table the CAG-certified PF Accounts along with CBT comments before each house of the Parliament.
The PF Accounts are maintained by the CBT, audited annually by the CAG, forwarded to the Central Government with comments, and tabled before the Parliament. There is no role of any Actuary Valuation within the scheme of the Act.
CBT is assisted by the PF Commissioner and other Officials who are under its superintendence and control.
Section 5D (1) – Central Provident Fund Commissioner appointed by Central Government. He is under the general control and superintendence of the CBT.
Section 5D (2) – CBT appoints the Regional Provident Fund Commissioner and other officers for the efficient administration of the Provident Fund, Pension Fund, and Insurance Scheme.
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 Scheme. In the instant case the GOI, CBT and PEIC have all committed to compliance with RC GUPTA JUDGEMENT. How can EPFO now be permitted to override the consistent stand taken by the trustees taken for the benefit of the employees w.r.t their monies?
In the 38th meeting of the PEIC on 08.12.2016, it was decided that the immediate compliance of S.C’s order dated 04.10.2016 be done. It was further decided that in respect of the members of the PF (employed with establishments not exempted u/s 17 of the Act) the records are available with the EPFO and hence the compliance should be done immediately; whereas in respect of the members of the PF Trust (employed with establishments exempted u/s 17 of the Act), before complying with the order, their records must be called and examined.
- On 19.12.2016 CBT approved the decision of the PEIC dated 08.12.2016.
- On 19.12.2016, MOL&E, GoI in its official press release accepted the obligation to ensure compliance with S.C.’s order dated 04.10.2016
- On 10.01.2017 EPFO sought clearance from the Ministry of Labour and Employment, GoI to comply with S.C.’s order dated 04.10.2016 in CA No. 10013-14 of 2016
- On 16.03.2017 UOI granted approval/clearance to EPFO to comply with the SC order dated 04.10.2016
- On 23.03.2017, the Union Minister for Labour and Employment on the floor of the House assured Parliament that the pension of all EPS pensioners will be revised in accordance with S.C.’s order dated 04.10.2016
- On 27.03.2017 Circular issued by EPFO to allow all members of EPS, 1995 the benefit of actual salary in pension funds exceeding the limit of Rs. 5,000/- of R. 6,500/- p.m. from the effective date in compliance with SC order dated 04.10.2016
Curiously from the perusal of all these documents the following are apparent
The EPFO/UOI/CBT had themselves treated all members of PF& Pension as a homogeneous class and made no distinction in the grant of higher pensionary benefit
The EPFO/UOI/CBT had themselves held retired employees to be entitled to a higher pension under Paragraph 11(3) of the Pension Scheme 1995
The EPFO/UOI/CBT had themselves acknowledged that the financial implication due to payment of enhanced pension would be well met by the Pension Scheme Fund.
Till then the stipulated time of 4 pm came to an end and the court had to rise for the day.
The supreme court was so impressed with Gopal Shankaranarayanan sirs arguments, the supreme court granted him time for 45 minutes as a special gesture on Wednesday next week on 10.08.2022
On the next day, Gopal Sir will continue to argue the case and shall place on record the various RTI-based tabular analysis.