Members are naturally worried about the Outcome of the SC Matter with the Review Petition filed by EPFO
Members are naturally worried about the outcome of the SC matter. There have been suggestions/ ideas from participants according to their understanding of the matter. I would like to clarify the issue as per my understanding and legal position.
2. As you are aware, hon’ble Supreme Court has tagged all the WPs/contempt petition with the Review Petition filed by EPFO (now it is SLP) and the SLP filed by Govt. against the judgment of KHC dated October 2018. The SLPs are against the quashing of GSR 609 (E) which came into effect w.e.f 1.9.2014.
The only linkage between the SLPs and WPs is that the cut off date for exercising joint option has been given in the GSR whereas the RC Gupta judgment declares that there cannot be any cut-off date. Further, the SLPs have not linkage at all with the contempt petitions but the Supreme Court, in its wisdom has tagged the contempt petitions also alongwith the SLPs.
3. EPFO/Government intends to get a judgment which would in fact be a review of the RC Gupta. Legally speaking, RC Gupta has attained finality and no review is now possible particularly in view of the fact the no such review of RC Gupta has been filed by Govt.
4. Till date, all the judgments are in favour of pensioners. In addition to RC Gupta, about 10 SLPs of EPFO/Govt have been dismissed by the Supreme Court in the past. Any finding of the Supreme Court against RC Gupta would mean review of RC Gupta and the earlier SLPs dismissed years back.
5. Government has been taking a stand that the corpus of EPS is 3.77 lakh crore and implementation of RC Gupta would have an impact of 15 lakh crore. Even though there have been so many ruling of SC that financial viability is no ground for denying pension, but the factual position to be kept in mind is that the annual budget of central government is around 30 lakh crore and the impact, as claimed by the Government is of 50% of annual central budget. It is also a fact that this figure is without any logical calculation and is based on presumptions.
6. Despite the above legal position entirely in favour of pensioners, we are not comfortable for obvious reasons. Some members have been arguing that we need not go into the trap of financials. My view is that this cannot be evaded. In the present circumstances, this is the most important issue which need to be tacked as the Governments’ only hope is the arguments of 15 lakh crore. Participants have been rightly arguing about 11 (3), 26 (2) etc. but all these are in the knowledge of our advocates. There is no issue which is discussed in this forum which is not in the know/consideration of our advocates.
7. Since all the petitioners before the SC have only one purpose, NCR earlier tried to ensure that we should pool our resources and have the best possible legal assistance. Unfortunately it did not succeed. Now we are in a do or die condition. We may not get this chance again. In my opinion, this is high time that we forget our personal egos and unite by engaging the best possible advocates and pooling our resources.
8. If this approach is approved by other litigants, NCR may take a lead as big brother. NCR may also contribute a largest share. It has also the largest number of effected pensioners. I know it is very difficult because of personal egos of some persons and the AORs not agreeing. I hope all the petitioners would consider this in positive way.
9. On 25th February, first of all, only respondents in SLPs of EPFO/Govt will be heard. None of the writ petitioners have a right to be heard. Since the outcome of SLPs will have impact on all of us, it is quite possible that Kerala people who have so far conducted very efficiently and won the cases in the High Court may not be able to meet the onslaught of Govt effectively.
In the event of our being united, we can also help them in the proceedings. Further, I would like to mention that individually, neither NCR nor any other group may be able to engage Sr. Advocates of the stature of AG. But if united, we can do so.
10. As everybody is aware, EPFO has placed an actuarial report which does not have any basis. We can consider engaging any agency for actuarial verification placing before that agency the data supplied by EPFO through RTI to Kohli sahib and submit that report to hon’ble SC. Since this is a time consuming process, a quick decision would be required.
11. Another thing, my suggestion is either to have this group a closed one with only those having a united approach or another group may be formed where participants should be only those who unite to fight together.
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