EPFO Circulars are to be challenged

Dt. 20/07/2024

From – Dada Tukaram Zode, Nagpur,

To,
The EPS 95 Pensioner friends,
(Specifically, Pre- 01/09/2014 retirees).

Dear friends.

       On 15/07/2024,  total 9 SLPs,  filed in the Supreme court by our pre- retirees Madras pensioners friends, against the Madras High court 7/02/2024  judgement are rejected and therefore, there is slightly discouragement amongst the pensioners friends. However, in my opinion, we have not lost everything. Before the Madras High court, in my opinion, the stands taken and the contention that , their cases falls under clause 44(VI) of the 3 judges bench judgement of 4/11/2022,  was not correct and appropriate, and therefore,  consequently they failed before the High court and subsequently before the Supreme court also.

1) In fact, total clause no. 44 of the judgement dated 4/11/2022 is related to the employees who were on and after 1/09/2014 in service and it is not related to the employees those who were in service prior to 1/09/2014 and those retired prior to 1/09/2014 or Pre -retirees.
The judgement dated 4/11/2022 is, mainly, to decide the Amendments vide GSR 609 (E) and the total clause no 44 is mainly related to the employees affected by the said Amendments. The employees retired prior to 1/09/2014 are not affected by the said Amendments and the clause no 44 is not concerned with them. The Clause 44(V) says, employees retired prior to 1/09/2014, without exercising option for higher pension , will not get the benefits of this judgement (4/11/2022). Prior to this judgement, the employees retired prior to 1/09/2014 , were covered by and entitled to, the higher pension, as per R C Gupta judgement and the 3 judges bench uphold the R C Gupta judgement. Therefore, all the employees retired prior to 1/09/2014 are eligible for higher pension as per R C Gupta and as per R C Gupta , there is no time limit for option under Para 11 (3) of the pension scheme. The interpretation of clause no 44 and specifically of 44(V) made by our honorable leader Shri Praveen Kohli is correct and appropriate.( already circulated).

2). The EPFO has
misinterpreted the judgement dated 4/11/2022 and taking the advantage of unclear clause 44 (V), issued the circular dated 29/12/2022 and dated 25/01/2023. In my opinion, these Circulars are required to be challenged first, which are seems to be not yet properly challenged before any High court or the apex court. The EPFO is playing tactics and unfortunately , our people are being entangled in the same. So far the judgement dated 4/11/2022 is concerned, the employees retired prior to 1/09/2014 are related with the clause no. 37,38,39 ,41 and 43 , and rest of the judgement is pertaining to the post retirees , affected by the Amendments. The Clause no 37,38 and 39 are on the Exempted -Non Exempted issue i.e. on the discrimination vide Circular dated 31/05/2017 and the clause no 41, 43 are on correctness of the R C Gupta judgement. These issues, namely Exempted – Non Exempted and correctness of R C Gupta are decided by the higher bench in the favour of the employees and therefore, there is no problem for Pre- retired employees to be entitled for and to get the higher pension. The higher bench has finally quashed the Circular dated 31/05/2017 and upheld the R C Gupta. As per R C Gupta judgement dated 4/10/2016 and now as per higher bench judgement date 4/11/2022 , there is no time limit for option under Para 11( 3) of the pre-amended pension scheme. Similarly, whether the retired person can exercise the option or not, is decided in Austin Joseph case. The Supreme court rejected the SLP(C) No.19954/2015 of the EPFO , in Austin Joseph case, on 12/07/2016 and held that retired employees can also exercise the option of higher pension under para 11 (3) of the scheme, if contribution is deposited on actual salary and not on statutory limit. With these facts, it is very clear that the Austin Joseph case judgement dated 12/07/2016 ; the R C Gupta judgement dated 4/10/2016 and 3 judges bench judgement dated 4/11/2022 allowed the employees to be eligible for higher pension under para 11 (3) of the pension scheme and held that there is no time limit for option.

3). The circular dated 29/12/2022 and the circular dated 25/01/2023 are very very illegal, arbitrary and in contravention of all High courts and Supreme court judgements. In my opinion unless these Circulars are challenged and get quashed, problems will not be solved and ways of employees retired prior to 1/09/2014 will not be cleared . While challenging these Circulars it is also required to be brought to the notice of the court that —

a). The employees retired prior to 1/09/2014 were not given any opportunity to exercise their option, since 1/12/2004 till their retirement. The EPFO issued a circular dated 1/12/2004 and imposed a “cut off date” and stopped accepting the option for higher pension. This cut off date lastly quashed by the Supreme court on 12/07/2016 rejecting the SLP of the EPFO in Austin Joseph case. The EPFO issued the second Circular dated 30/07/2006 imposing an another Cut off date, the date on which employee crosses a statutory limit. This cut off date held illegal and arbitrary in R C Gupta case on 4/10/2016. Then after, the EPFO completing all formalities and after taking the approval of the Government of India MOL& E, issued a circular dated 23/03/2017 and asked to submit the options for higher pension. Thus the employees were not allowed to submit the options from 1/12/2004 to 23/03/2017. The Exempted establishment employees, by virtue of next circular dated 31/05/2017 , were banned and thus, the Exempted establishment employees are not being allowed to submit their opinion since 1/12/2004 till today. They have not been given any opportunity in their service period .
The Employees were not allowed to exercise their option during their service period and now it is said that , they should have exercise their option prior to their retirement. This is cheating and fraud by the EPFO.

b). Next point is the cut off date. By these Circulars, the EPFO created a artificial cut off date i.e. ” date of retirement ” as the cut off date for the option. Rejecting the 10 SLPs ( 7 SLPs on 31/03/2016, 1SLP on 12/07/2026 Austin Joseph case, 2 SLPs on 4/10/2016 including R C Gupta) , it is held by the Supreme court that the EPFO has no power or authority to fix up any cut off date in proviso to para 11 ( 3) of the pension scheme. Therefore, these Circulars fixing the ” cut off date ” are illegal, arbitrary and against all the judgements/ orders of the High courts as well as the Supreme court. In the judgement dated 4/11/2022 also, no where or at any place, it is mentioned that the employees should exercise their option prior to their retirement. Contrary, the post retired employees are given the opportunity to exercise their option after their retirement. Moreover, issue of option after retirement has achieved the finality in Austin Joseph case. Therefore, these Circulars are directly against the order of the Supreme court in Austin Joseph case. Unfortunately, this Austin Joseph case is not highlighted by our people and is deliberately hided by the EPFO.

    Thus, in my opinion, the above Circulars are required to be challenged and all above mentioned facts are required to be brought to the notice of the court. We are trying to do the same and going to file the Rejoinder,  in our case, before the High court at Nagpur Bench.
    I have mentioned all above, for your reference and information please. Hope the best.
           Thanks.

Dada Tukaram Zode

57/58 Jaydurga Layout No.2,
Manish Nagar, Nagpur 440047, M.S
Mob 9405929678