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Supreme Court upholds validity of amended Employees’ Pension Scheme but reads down certain provisions; Explains applicability of pre & post amendment Scheme

Supreme Court: The 3-judge bench of UU Lalit, CJ and Aniruddha Bose* and Sudhanshu Dhulia, JJ has upheld the legality of certain amendments and modifications to the Employees’ Pension Scheme, 1995 (1995 Scheme) but has read down certain provisions of the Scheme.

A brief overview of the Scheme

The Scheme in question was made in pursuance of, inter-alia, Section 6-A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, which was introduced in 1995.

The 1995 Amendment contemplated formulation of a scheme for employees’ pension and the pension fund was to comprise of deposit of 8.33 % of the employers’ contribution made towards provident fund corpus as per the prevailing Statue. It also dealt with determination of pensionable salary.

At that point of time, maximum pensionable salary was Rs.5000/-  and this sum had been enhanced subsequently to Rs.6500/-. Pensionable salary was raised to Rs.15000/- by a notification dated 22.08.2014, which was to be effective from 01.09.2014. This notification brought certain other modifications in the scheme mainly restricting its coverage.

As per paragraph 3(ii) of the pension scheme, the Central Government was to contribute to the fund at the rate of 1.16 % of the pay of the members. Employees within the changed pension regime drawing more than Rs.15000/- per month have to also contribute at the rate of 1.16 % on salary   exceeding Rs.15000/- as additional contribution each month under the amended provisions.

Further, fresh option was to be exercised by the member within a period of six months from the 1st day of September 2014, which was extendable up to about 6 months on sufficient cause shown by the member.

The fourth proviso to sub-clause (4) of paragraph 11 specifies that if no option is exercised by a member within the aforesaid period, it would be deemed that the concerned member has not opted for contribution over the wage ceiling. In such a case, the contributions to the pension fund made beyond the wage limit in respect of such a member is to be diverted to the provident fund account of the member along with interest, as declared under the provident fund scheme from time to time.

Challenge to the scheme

44 writ petitions were filed in different writ petitions in different High Courts seeking invalidation of this notification on the ground that a set of employees had approached the provident fund authorities much beyond such perceived specified date, mostly on the eve of their retirement, seeking to be included in the pension scheme.

Supreme Court’s findings

“we cannot ignore the fact that the pension amount to be paid has been calculated on projections that the corpus would include the option employees’ additional contribution of 1.16 per cent. We also cannot mandate the Central Government to contribute to a pension scheme, in absence of a legislative provision to that effect. It would be for the administrators to readjust the contribution pattern within the scope of the statute and one possible solution could be to raise the level of the employer’s contribution in the   scheme.”

[EPFO v. Sunil Kumar B., 2022 SCC OnLine SC 1521, decided on 04.11.2022]


*Judgment by: Justice Aniruddha Bose

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