Wednesday, October 18, 2017

Employees' Provident Fund Organization (EPFO) of India: A Typical Example How An Indian Statutory Welfare Organization Functions!

[The story of the plight and fight of non-pensioned industrial employees of India to get the decent monthly pension that is legibly due to them, but denied by the very same governmental organization that was set up to ensure them a financially tension free retired life! Read also: The EPFO Pension Fiasco: The Real Story!]

Employees' Provident Fund Organization (EPFO) is a Central Government Organization established by the Indian Government essentially to ensure a decent post retirement life to the millions of industrial employees of India, both from the private and public sector.

It came into existence due to the evolving thoughts of welfare oriented thoughts of the parliamentarians and the democratic governments of India over the decades. 

There have been essentially three types of workforce in this country:

In the first category are the direct employees of the central and state governments who are part of the governments and the governance system. They got their salaries, perks and post retirement pensions from the income drawn by the government from various kinds of taxes. They have been typically indifferent to the public with an authoritarian attitude regardless of their political masters. It has been this group that drafted the laws, drawn the rules, interpreted and implemented the rules with all possible errors always resulting in much of the complications of democratic governance. Both the public and the politicians have been at the mercy of this lot. Collectively they are known as the bureaucrats or babus.

The second category of employees has been the producers and providers of industrial goods and services working as collectives organized under various establishments and companies set up either by the public or the governments. The first category ruled over them and the former had also ensured that they were inferior to them in some manner. They lacked certain privileges as compared to the first. One was the facility of getting monthly pensions after retirement. But depending upon the organization and the type of work, they enjoyed varying types of superannuation separation benefits, in the form of lump sum retirement benefits. Contributory provident funds (CPF) , gratuity and the like for some of them had been good enough to get good post retirement monthly incomes!

The third category has been the unorganized workers, the self employed and the like in the industrial, agricultural and trading sectors. The majority of them are with actual low incomes. However, there are also a good number who apparently earned a lot by methods that cannot be determined or accounted by any one.

One of the functions of all governments everywhere, though not the first priority always, is to do actions to improve the standard of living of its citizens. This involves ensuring employment and good incomes to all adults not only during their prime life period, but also during their sunset years.

The EPFO in India is as a result of this. It got established and evolved through laws and rules made by the Indian governmental establishment over the years for providing a decent post retirement income to all non-pensioned employees both in the private and the public sector. The provident fund act and subsequent rules enacted and made by the government facilitated this. The EPFO under the Ministry of Labor and Employment of India, managed by central government bureaucrats has been entrusted to ensure this.

The babus who are entrusted to manage the collection, management and distribution of funds are not beneficiaries of the system they manage. Hence, there is the tendency of the EPFO employees developing the master kind attitude over the member beneficiaries of the EPFO system. 

In actuality, this attitude has made the EPFO a slow performer and an organization unfriendly to its own beneficiary members! It has taken decades for the organization to come to some acceptable shape and to execute the welfare functions for which it was established in the first place. The general attitude of this organization collectively over the years have been to formulate ways and rules that ensured the least benefits as possible to its beneficiary members. They intentionally tried to hide rules, regulations and guidelines from the members as far as possible.

Since the general behavior of this organization went generally against many of its contributing members, there had been a volley of court litigation that the aggrieved members had to resort to in the past.  

But the EPFO organization in general had been trying not to follow the court guidelines in letter and spirit. Its officers had been trying to be as adamant as they can in not providing the due benefits to the lakhs of industrial workers who are retired and are going to retire.

It is a typical case of how the Indian bureaucrats execute their vested interests even when their political masters and the judiciary desire the other way!

Is it that the Indian bureaucrats need re-orientation training too often to shed their colonial past and to become citizen friendly?

I do not want to write about the details of the case in which the EPFO is trying hard not to provide due retirement benefits to thousands of retired employees of Indian companies even after various court decisions and directives.

Instead I take the liberty to reproduce the appeal made by the Federation of Retired SAIL Employees to the Minister of Labor and Employment below which is self explanatory to a good deal. Similar appeals have been made by several others as well in the recent past.

The following is the appeal:

Shri Santosh Kumar Gangwar,
Hon’ble Union Minister of State,
(Independent Charge),
Ministry of Labour & Employment,
Govt. of India, New Delhi.

Sub.: An appeal for implementation of verdicts of the Hon’ble Apex Court equitably and in its true spirit for the revision of EPS’95 pension to the similarly placed retirees from EPF (not EPS) Exempted establishments
Hon’ble Shram Mantri Santosh Kumar Gangwar Ji,
On behalf of over 1.20 lakh retired employees of SAIL, we welcome you to the new and independent responsibility as Union Minister of Labour & Employment. We hope and believe that you will be taking the Ministry to newer heights of success by resolving all the long pending issues of Labour and Pensioners incl. those of the Pensioners of Exempted Establishments under EPS-95.
We also wish you and your family members a Happy and Prosperous Diwali.   
We, the old aged pensioners (belonging to SAIL, an exempted for Provident Fund by EPFO but not exempted for Employees’ Pension Scheme’95) shall be grateful for sparing a few minutes out of your busy schedule in looking up the following matter for your kind & sympathetic consideration in the interest of justice: 
1)    The Employees’ Pension Scheme, 1995 (EPS’95) is an Employees’ Welfare Scheme introduced by Govt. of India under the provisions of Section 6A of the Employees’ Provident Fund & Misc. Provisions Act, 1952 which is managed and monitored exclusively by the Employees’ Provident Fund Organization (EPFO)  under your Ministry.
2)    When the EPS’ 95 was introduced all the funds of earlier Family Pension Scheme, 1971 were transferred to EPS’ 95 Fund which was notified by the Central Govt. in the Gazette of India: Extraordinary and the scheme came in to force with effect from 16th November, 1995.
3)    In accordance with the provisions contained in the Act, Provident Fund of “Unexempted establishments”is being managed by the EPFO Trust whereas that of “Exempted establishments”, it is being managed by the “Exempted Trusts” of respective establishments under the total supervision & guidelines of the “EPFO Trust”.
4) But, so far as EPS’95 is concerned; an amount @8.33% out of employer’s contribution was being transferred to EPFO by all the “Exempted” as well as “Un-exempted” establishments but on the wage ceiling of Rs.5000/Rs.6500for payment of pension under EPS’95 to the pensioners of both type of establishments after attaining the age of 58 years on similar pattern.
5)    The exemption granted to the Exempted establishments is for Provident Fund and not for Pension Scheme.  So, there is no differentiation between the “Exempted” and “Un-Exempted” establishments so far as EPS’95 Scheme is concerned.
6)    All the Pensioners of EPS’95 are getting a meager static pension from EPFO ranging between Rs.1000/- and Rs.2500/- only per month.  Recently the pension of everyone had also been revised marginally by EPFO by grantingthe benefit of 2 yrs weightage in pensionable service as per court orders.
Present confusion
7)    On the basis of orders of Supreme Court and various High Courts, the employees of both “Exempted” and“Un-Exempted” categories have been demanding implementation of revised pension on the basis of actual/higher salary instead of on ceiling amount of Rs.5000/- & Rs.6500/- by paying differential amount between the ceiling amount and actual salary along with interest in accordance with the various decisions of the Apex Court/High Courts. 
8)    As a matter of fact, various High Courts and the Supreme Court have held against the restriction of pension on the basis of wage ceiling for pension purpose and EPFO has lost all the 10 SLPs filed by them in the Supreme Court on the issue wherein seven (7) cases were decided together on 31.3.2016 i.e. RPFC Vs A. Mazeed Kunju & others (out of these, 2 SPLs were from Exempted establishments - FACT) whereas one (1) SLP was decided on 12.07.2016 in RPFC Vs Austin Joseph and ors. and two (2) SLPs were decided together on 4.10.2016 in R.C. Gupta & ors. vs Union of India & EPFO  wherein the Apex Court has held that:
10. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph 26 of the Provident Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.
11. The above apart in a situation where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, we do not see how the Provident Fund Commissioner could have been aggrieved to file the L.P.A. before the Division Bench of the High Court. All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefitted some of the employees. At best what the Provident Commissioner could do and which we permit him to do under the present order is to seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees.
12. Consequently and in light of the above, we allow these appeals and set aside the order of the Division Bench of the High Court.
9)    On the recommendations of Pension Implementation & EDLI Committee (PEIC), the matter was referred to the CBT (EPF) in its 215th meeting held on 19.12.2016 wherein the recommendations of PEIC were approved for all the EPS’95 pensioners as under:
Recommendations of the PEIC of EPFO under the Chairmanship of Dr. V.P.Joy, IAS CPFC, EPFO in its 38th meeting held on 8.12.2016: 
Item No. 3: “The agenda item was deliberated at length and the Committee unanimously decided to comply with the orders of the Hon’ble Supreme Court in SLP No. 33032-33033 of 2015 in the matter of Shri R.C.Gupta & others Vs RPFC (Shimla) & Others, in respect of all similar cases to avoid further litigation in this regard.
However, it was agreed that compliance may be made immediately in respect of the Provident Fund & Pension Members including superannuated cases whose accounts are maintained by EPFO as their details are already available with EPFO and contribution on higher wages has been received by EPFO. Their pension settlement may be regulated in accordance with the order of the Hon’ble Supreme Court by taking joint option from the employee and the employer and transfer/payment to Pension Fund as per details of payable contributions with interest.
In respect of those members of Exempted Provident Fund Trusts whose contribution on higher wages has not been received by EPFO, it was decided that their cases may be examined on verification of books of record of the exempted establishment and the trust regarding compliance to Provident Fund and Pension Fund as per the provisions of the EPF Scheme 1952 and Employees’ Pension Scheme 1995 and the information may be submitted to the committee”.

10)         After the approval by CBT (EPF); the proposal of EPFO dated 10.1.2017 for extending these benefits to all the EPS’95 pensioners was approved by MOL&E and conveyed to EPFO on 16.3.2017 and accordingly, in compliance, EPFO issued a directive to all offices on 23.3.2017 to implement the same i.e. revision of pension after accepting the differential amount w.e.f. 16.11.1995 till the date of retirement along with interest from pensioners for re-fixing their revised pension.

11)        It is also a matter of record that the decision as contained in the directive  dated 23.3.2017 had also been announced on the floor of the House of Parliament by Mr. Bandaru Dattatreya, the then Union Minister for Labour & Employment, GOI on the same day i.e. 23.3.2017 and it was also assured by him on the floor of Parliament that the said benefit will be applicable to all the EPS pensioners whether they were petitioner or not.

12)        But unfortunately, on 31.5.2017, Shri Mukesh Kumar, RPFC-1 (Pension), without any competency/approval to undone/alter the approval granted by CBT & decision of MOL&E, issued an erroneous, inequitable & discriminatory interim advisory to all filed offices to restrict the benefit to the pensioners of only “Un-Exempted” establishments and to deny the same to the pensioners of “Exempted establishments” just on the wrong plea that in R.C.Gupta & ors case petitioners happen to be from “Un-Exempted” establishments. He, however, ignored & suppressed the facts that in the Apex Court’s orders dt. 31.3.2016, in two of the SLP’s, the petitioners were from an Exempted establishment and also same benefits have also been allowed by the EPFO to the pensioners of atleast nine (9) exempted establishments as under:
*      Instrumentation Ltd
*      Fertilizers & Chemicals Travancore (FACT)
*      ITI Ltd
*      Airports Authority of India (AAI)
*      Kerala State Co-operative Agricultural Dev. Bank Ltd. (KSCADB)
*      Kerala Minerals & Metals Ltd., Kollam (KM&M)
*      Kerala State Inland Navigation Corp (KNCO)
*      Kerala Agro Machinery Corp. (KAMCO)
*      Malabar Cements
*      Many other similarly placed petitioners of various Exempted establishments

The above facts were also suppressed/ concealed by the concerned officers/officials from PEIC in its 40thmeeting and also from the Legal Advisor while seeking his advice on 31.5.2017 which is a serious matter.  Had these facts been brought on record & to their notice through the papers accessed by them, they would not have recommended as such
So, the aforesaid interim advisory is against the provisions of the Article 14 & 16 of the Indian Constitution and in violation of landmark five judge full constitution bench judgments of Apex Court in famous DS Nakara case and Deokinandan Prasad case.

13)        It is pertinent to mention that neither there is any mention of differentiation regarding EPS’95 pensioners of “Exempted” & “Un-exempted” establishments in any of the judgments of High Courts and Supreme Court nor such issue had ever been raised by EPFO in any court during the last 10 years i.e. since 2007 onwards prior to issue of interim advisory dated 31.5.2017 which is discriminatory, illegal, erroneous and inequitable and violative of article 14 & 16 of the Constitution of India.
14)      It is also a matter of record of Parliament that Hon’ble the then Union Minister of Labour & Employment who was also the Chairman of CBT had also stated/ assured on the floor of Parliament while replying to a question of Mr. NK Premachandran, MP, Kollam on 28.7.2017 that “As far as Supreme Court Judgment is concerned, we are implementing that. Last time in the parliament itself, I have indicated that to you.  I will examine the circulars which may not be in line with Supreme Court judgment.”  But nothing has been done till date in this regard.
15)      The matter of determination of pensionable salary exceeding the statutory wage ceiling limit and exercise of option under deleted proviso to Para 11(3) of EPS’ 95 has been agitated before many High Courts. 
16)      Hon’ble High Court of Kerala, in particular, in its very recent judgment dated 19.07.2017 in Writ Appeal No.2298 of 2015 filed by EPFO, after considering the detailed Affidavit no. 881/2017 filed by EPFO in the aforesaid WA rejecting contents of the erroneous interim advisory dt. 31.5.2017 as mentioned therein,had dismissed the Writ Appeal of EPFO on similar lines directing the EPFO that the “8.33% of the employer’s contribution proportionate to the salary of employees in excess of Rs.6500/- shall now be credited to the pension scheme and orders passed in accordance with law.  Needless to say the interest accrued in the provident fund account to that extent also will stand transferred to the pension account.  The employees shall also submit application along with their employer wherever the same has not been done”. This covers the retired employees also.
17)     Apex Court, in a catena of judgments has also held that only because one person has approached the Court that would not mean that persons similarly situated should be treated differently.  It has also been held by the Apex Court in DS Nakara case that it is the duty of the Government to avoid unwarranted litigation and not to encourage litigation for the sake of litigation.

18)     MOL&E in reply to various RTI applications has confirmed that neither any proposal had been received from EPFO regarding issue of said interim advisory dated 31.5.2017 nor any such approval has been granted to EPFO. 

19)     MOL&E has further stated that only approval dated 16.3.2017 has been granted to EPFO to allow members of the Employees Pension Scheme 1995 who had contributed on higher wages exceeding the statutory wage ceiling of Rs. 6500 in the Provident Fund to divert 8.33% of the salary exceeding Rs. 6500 to the Pension Fund with up-to-date interest as declared under EPF Scheme, 1952 from time to time to get the benefit of pension on higher salary on receipt of joint option of the Employer and Employee  (in compliance of which EPFO had issued the directive dated 23.3.2017). 

We, the pensioners belonging to establishments Exempted for Provident Fund but Un-Exempted for Employees’ Pension Scheme’95 earnestly request your good self to kindly direct CPFC, EPFO to immediately withdraw its erroneous and unapproved Interim Advisory dated 31.5.2017 and to restore the well considered & lawful decision of the Competent Authority i.e. CBT(EPF) and  Ministry of Labour & Employment, Govt. of India by implementing the valid & equitable directive dated 23.3.2017 issued by EPFO for granting the benefit of pension revision on actual/higher salary instead of on ceiling amount to the similarly situated retired pensioners of “Exempted” establishments at par with those of “Un-Exempted” establishments under EPS’95 after getting deposited the retrospective contribution/differential amount with interest w.e.f 16.11.1995 in accordance with the decision dated 4.10.2016 of the Apex Court.
Sir, your act of kindness shall give a new lease of life to the old aged poor pensioners and they will always bless you and remember you ever for this gracious act of kindness and justice which shall save them from running around for litigation at the fag end of their lives to get justice.
With kind regards,

Yours faithfully,
For & on behalf of Federation of Retired SAIL Employees (Regd)
(& Members of Exempted Establishments in India)


(Ram Agar Singh)
General Secretary
Copy by e-mail to:
·         Secretary, Labour, MOL&E
·         Addl. Secretary, Labour, MOL&E
·         Jt. Secretary, MOL&E
·         CPFC
·         Members of CBT- with a request to get the EPFO’s Interim Advisory dated 31.5.2017 withdrawn.
  • Director (Finance, SAIL, New Delhi for info and n.a.
  • All Member Associations of FORSE for info & n.a.
Will the minister concerned direct the EPFO authorities to act in favor of the concerned EPFO members based on the facts represented in the above said and similar pleas? (Not likely, Indian political bosses become assertive only for issues where they have some special interest!)

Will the EPFO authorities act for the benefit of the concerned members now? ( Not likely, they might try to pull on with litigation: Read this news)

Would it be necessary for the concerned members to approach the courts again? (Very likely)

What would be the final outcome?

Only time would tell.

After all it is democratic India, still in the process of learning good governance!

Even after seventy odd years!