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Higher Pension As Per SC Decision With Calculation - Synopsis1
Higher Pension As Per SC Decision With Calculation - Synopsis1
MANGAONKAR
(Labour Law Advisor & Compliance Expert)
M : 98200 13747; Email : dnm@dcsgr.com;
Website : www.dcsgr.com
2. This article explains how much EPS Pension you will get if you retire at the age of 58
years.
3. In past, on 1st April 2019 Supreme Court has given the decision that the pension to
be paid on actual salary rather than the capped salary (Rs. 15,000/- or Rs. 6,500/- per
month.)
• The Employees’ Pension Scheme or EPS is a Pension Scheme for the employees of
organized sector of private and public sector industrial establishments.
• This Pension Scheme is DEFINED PENSION SCHEME unlike NPS (since NPS gives
investment based returns and is market driven Scheme). While EPS gives a
guaranteed monthly pension after the retirement. Employees’ Provident Fund
Organization (EPFO) manages the Employees’ Pension Account of all those who are
contributing to EPF including Exempted and Recognised PF Trusts.
II. Suppose an employee has salary (Basic + DA) of Rs. 1,00,000/- per month and
employer contribution is 12% then Rs. 1,250/- (i.e. Rs.15,000/- X 8.33 %) will
go to EPS and rest of the amount i.e. Rs. 10,750/- will go to EPF as
Employer’s contribution.
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III. Monthly contribution to EPS is restricted to 8.33% of Rs. 6500/- = Rs. 541/- p.m.
and from Sep 2014 Rs. 1250/- pm (8.33% of Rs. 15,000/-).
Employee’s PF Employer’s PF
12% 12%
PF
8.33% 3.667%
PENSION PF
subject to max. of Rs. 1,250/- p.m.
PF
15.667%
IV. Lifelong Pension is available to the member and upon his death family members of
of the deceased member are entitled for the Pension. However, children are eligible
to receive pension only upto the age of 25 years and spouse till his/her death or till
he/she remarries whichever is earlier.
VI. An employee can start receiving the Reduced/Superannuation Pension under EPS
only after rendering a minimum service of 10 years and attaining the age of 50/58
years.
VII. One can apply for EPS Pension from the date immediately following the date of
completion of 58 years of age notwithstanding that the person has retired or ceased
to be in the employment before that date.
VIII. Maximum & Minimum Pension one can get is Rs. 7,500/- per month and Rs. 1,000/-
per month.
X. The fraction of service for six months or more is treated as one year and the service
less than six months shall be ignored. So 9 (nine) years and 6 (six) months will be
rounded up to 10 (ten) years.
XI. If no wage is earned for a certain period, that period is to be deducted from the
service, as there will be no contribution to Pension Fund.
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XII. EPS Pension is taxable and has to be considered under the head Income
from Salaries.
XIII. This EPS should not be confused with National Pension Scheme (NPS). NPS is another
Scheme for which separate deduction under section 80CCD of Income Tax is
available. NPS for private sector employees is voluntary scheme and nothing to do
with EPS .
2. PENSION BASED ON JOINING BEFORE 15th NOV, 1995 OR AFTER 15th NOV
1995.
Pension depends on your contribution to Pension Fund (subject to maximum of Rs. 1250/-
pm) and your number of years of membership to Pension Fund (EPS). There are two ways in
which pension can be calculated are explained as under;
For those who joined after 15th Nov, 1995, the formula for calculation of Pension is simple
which is as under;
Average Pensionable Salary of past 60 months X No. of Years Pensionable Service
____________________________________________________________________
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• If your number of years of membership is less than 10, then you can withdraw your
EPS amount.
• If you have completed more than 20 years in Pensionable Service then add two
years bonus in above equation.
• The fraction of service for six months or more is treated as one year and the service
less than six months is ignored. So 9 years and 6 months will be rounded up to 10
years; 15 years 9 months will be rounded to 16 years but 15 years 3 months will be
rounded to 15 years only.
• Here Pensionable Salary means salary on which Pension is deducted (i.e. maximum
upto Rs. 15,000/- pm from 1.9.2014) and Rs. 6,500/- pm before 1.9.2014.
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Example 1. How much pension will Mr. X will get if he works for 14 years from 1st
Jun 2015 and his average salary is Rs. 20,000/- p.m. Mr. X started his job on 1st Jun
2015. He works for 14 years. His average salary is Rs. 20,000 per month but for
pension service maximum salary considered is Rs. 15,000/- pm. So Mr. X’s Pension
from 2nd Jun 2030 will be Rs. 3,000/- ( i.e. 15,000/- X 14) / 70 );
HOW MUCH EPS PENSION WILL YOU GET IF YOU HAD JOINED BEFORE
15.11.1995;
• For a person who joined EPF before 15.11.1995, Pension calculation shall comprise
of following components:
PAST SERVICE means the period of service rendered by an existing member from the date of
joining Employees’ Family Pension of 1971 till the 15th November, 1995.
PENSIONABLE SERVICE means period of service rendered from 16th Nov 1995. Same as the
calculation of Pension who joined after 15.11.1995;
• The pension for someone who joined before 15th Nov, 1995 is calculated in two
parts;
(a) Calculate the pension for the period after 16/11/1995, Pensionable service,
which is explained earlier.
(b) Calculate pension amount for the period before the 16/11/1995, Past Service
Pension.
• To calculate EPS pension amount before 15th Nov 1995, Table A is used which shows
Pension amount based on Basic Salary and number of years of service till 15th Nov
1995. The Pension is fixed according to the pay band and service period till 15th Nov
1995. If a person had basic salary of Rs. 3,000/- pm on 15th Nov 1995, and he had
worked for 16 years till 16th Nov 1995, then using the Table A, he would get Rs. 135/-
Pension per month for service before 16th Nov 1995.
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TABLE A:
• The employee, who retires after 15th Nov 1995 gets enhanced pension of the past
period.
• If any employee attains his 58 years after 16th Nov, 1995, his pension amount will be
multiplied by a factor stipulated in Table “B” according to the difference between
16.11.1995 and the retirement date i.e. date of completion of 58 years.
For example, If the above person, who worked for 16 years before 15th Nov 1995 retires on
20th Nov, 1996, he would get the pension of Rs. 151.47 (Rs. 135/- pm x 1.122).
TABLE B:
FACTOR FOR COMPUTATION OF PAST SERVICE BENEFIT;
Years Factor Years Factor Year Factor Year Factor
less than 1 yr 1.039 less than 10 yr 2.077 less than 19 yr 4.152 less than 28 yr 8.301
less than 2 yr 1.122 less than 11 yr 2.243 less than 20 yr 4.485 less than 29 yr 8.965
less than 3 yr 1.212 less than 12 yr 2.423 less than 21 yr 4.843 less than 30 yr 9.682
less than 4 yr 1.309 less than 13 yr 2.616 less than 22 yr 5.231 less than 31 yr 10.457
less than 5 yr 1.413 less than 14yr 2.826 less than 23 yr 5.649 less than 32 yr 11.294
less than 6 yr 1.526 less than 15 yr 3.052 less than 24 yr 6.101 less than 33 yr 12.197
less than 7 yr 1.649 less than 16 yr 3.296 less than 25 yr 6.589 less than 34 yr 13.173
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EXAMPLE OF EPS-PENSION CALCULATION FOR THOSE WHO JOINED BEFORE
15.11.1995
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Hon’ble Supreme Court in the case of R. C. Gupta & Others etc. vs
RPFC, EPFO & Others etc. vide Civil Appeal No. (s) 10013-10014 of
2016 (arising out of SLP (C) of Nos. 33032-33033 of 2015, clearly
stated that “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 Fund Scheme is
inevitable. (Unavoidable).
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Para 11 (4): The existing members as on the 1st day of September,
2014, who at the option of the employer and employee, had been
contributing on salary exceeding six thousand and five hundred
rupees per month, may on a fresh option to be exercised jointly by the
employer and employee continue to contribute on salary exceeding
fifteen thousand rupees per month and the pensionable salary for the
existing members who prefer such fresh option shall be based on the
higher salary:
Provided also that the period specified in the second proviso may, on
sufficient cause being shown by the member, be extended by the
Regional Provident Fund Commissioner for a further period not
exceeding six months
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FINALLY SEE WHAT SURPEME COURT JUDGMENT SAID AND WHAT WILL BE
THE IMPACT ON CALCULATION OF PENSION ON ACTUAL SALARY POST SC
JUDGMENT;
i) The provisions contained in the notification no. G.S.R. 609(E) dated 22nd
August 2014 are legal and valid. So far as present members of the fund are
concerned, we have read down certain provisions of the scheme as
applicable in their cases and we shall give our findings and directions on
these provisions in the subsequent subparagraphs…………The Notification
dated 22.8.2014 (effective from 1.9.2014) was held as legal and valid
subject to certain conditions.
ii) Amendment to the Pension Scheme brought about by the Notification No.
G.S.R. 609(E) dated 22nd August 2014 shall apply to the employees of the
exempted establishments in the same manner as the employees of the
regular establishments. Transfer of funds from the exempted establishments
shall be in the manner as we have already directed…………….The said
Notification dated 22.8.2014 would be applicable even for EXEMPTED
establishments also.
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iii) The employees who had exercised option under the proviso to paragraph
11(3) of the 1995 scheme and continued to be in service as on 1st September
2014, will be guided by the amended provisions of paragraph 11(4) of the
Pension Scheme……………Employees who had exercised option of
contributing PF/Pension over and above Rs. 6,500/- pm and continued to be
in employment as on 1.9.2014 will eligible for provisions laid down under
para 11(4) which was inserted w.e.f. 1.7.2016. SC directed above since Para
11(3) was deleted w.e.f. 1.9.2014 vide Notification dated 22.8.2014.
iv) The members of the scheme, who did not exercise option, as contemplated
in the proviso to paragraph 11(3) of the Pension Scheme (as it was before the
2014 Amendment) would be entitled to exercise option under paragraph
11(4) of the post amendment scheme. Their right to exercise option before
1st September 2014 stands crystalised in the judgment of this Court in the
case of R.C. Gupta (supra). The scheme as it stood before 1st September
2014 did not provide for any cut off date and thus those members shall be
entitled to exercise option in terms of paragraph11(4) of the scheme, as it
stands at present. Their exercise of option shall be in the nature of joint
options covering pre-amended paragraph 11(3) as also the amended
paragraph 11(4) of the Pension Scheme. There was uncertainty as regards
validity of the post amendment scheme, which was quashed by the aforesaid
judgments of the three High Courts. Thus, all the employees who did not
exercise option but were entitled to do so but could not due to the
interpretation on cut off date by the authorities, ought to be given a further
chance to exercise their option. Time to exercise option under paragraph
11(4) of the scheme, under these circumstances, shall stand extended by a
further period of four months. We are giving this direction in exercise of our
jurisdiction under Article 142 of the Constitution of India. Rest of the
requirements as per the amended provision shall be complied
with……………All employees who did not exercise option for higher pension
on 1.9.2014 due to confusion of cut off date can now exercise their option
of higher pension within 4 (four) months from the date of the SC Order.
v) The employees who had retired prior to 1st September 2014 without
exercising any option under paragraph 11(3) of the pre-amendment scheme
have already exited from the membership thereof. They would not be
entitled to the benefit of this judgment………………………. Employees who
retired prior to 1.9.2014 without exercising option u/p 11(3) and have
already exited from the membership of the EPS Scheme (i.e. taken
withdrawal benefit or monthly pension benefit etc.) can not be given
benefit of higher pension.
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vi) The employees who have retired before 1st September 2014 upon exercising
option under paragraph 11(3) of the 1995 Scheme shall be covered by the provisions
of the paragraph 11(3) of the Pension Scheme as it stood prior to the amendment of
2014…………………………Employees who retired prior to 1.9.2014 upon exercising
option u/p 11(3) of the EPS Scheme can be given benefit of higher pension.
vii) The requirement of the members to contribute at the rate of 1.16 per cent of
their salary to the extent such salary exceeds Rs.15,000/- per month as an
additional contribution under the amended scheme is held to be ultra vires
the provisions of the 1952 Act. But for the reasons already explained above,
we suspend operation of this part of our order for a period of six months.
We do so to enable the authorities to make adjustments in the scheme so
that the additional contribution can be generated from some other legitimate
source within the scope of the Act, which could include enhancing the rate of
contribution of the employers. We are not speculating on what steps the
authorities will take as it would be for the legislature or the framers of the
scheme to make necessary amendment. For the aforesaid period of six
months or till such time any amendment is made, whichever is earlier, the
employees’ contribution shall be as stop gap measure. The said sum shall be
adjustable on the basis of alteration to the scheme that may be
made…………………Employee need not to contribute additional 1.16% of their
Salary over and above Rs. 15,000/- for opting towards higher pension,
however, EPFO has been given time of 6 (six) months to come out with
source to generate funds in legitimate manner to compensate with 1.16%
of contribution. Consequently, employees opting for such higher pension
will have to contribute additional amount of 1.16% atleast for next 6
months for contributing towards higher pension. After 6 (six) months SC
will give directions to the EPFO about such 1.16% collected from the
employees from the date of exercising such option.
viii) We do not find any flaw in altering the basis for computation of pensionable
salary…………………….Vide Notification dated 22.8.2014, EPFO had modified
formula for computing monthly pension payable to the members which
increased from 12 months to 60 months for computing average pensionable
salary. SC refused to interfere in said computation method and hence, the
said system of computation of average pensionable salary based on 60
months’ average shall continue as it is as against earlier method of
comouting the same on 12 months’ average salary.
ix) We agree with the view taken by the Division Bench in the case of R.C. Gupta
(supra) so far as interpretation of the proviso to paragraph 11(3) (pre-
amendment) Pension Scheme is concerned. The fund authorities shall
implement the directives contained in the said judgment within a period of
eight weeks, subject to our directions contained earlier in this
paragraph………………EPFO to implement all above directions given in the
judgment within a period of 8 (eight) weeks and should come out with
white paper thereon for the benefit of the member-employees.
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SC also observed that if employee has opted permission to contribute on the salary more
than the statutory limit of Rs. 15,000/- (or Rs. 6,500/- pm) as the case may under Para
26(6) of the EPF Scheme, 1952, then such member-employees need not to seek separate
permission under Para 11(3) or 11(4) of the EPS Scheme, 1995 and application u/p 26(6)
should be considered as application under para 11(3) or 11(4) .
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Table Showing Calculation of contribution on restricted salary and actual Salary
(with revised pension on actual salary)
1 Looking at the above figures of Return on Investment (ROI), it looks fair enough that one
should go for higher pension since Higher Pension Scheme is beneficial for the member-
employees who have long life (WHICH IS ALWAYS UNCERTAIN);
2 But it depends upon many other factors too such as after the death of
subscriber/member the spouse gets only 50% Pension and after his/her death the
money is lost since children by time would cross 25 years of their age and after 25 years
they are not eligible for Children Pension.
3 Option of investment of the differential amount paid for getting higher pension should
also be explored to have a higher rate of return than the investment in Pension.
4 Viability of the Scheme in the context of EPFO for giving the Pension at a rate higher
than the market rate. This factor was time and again highlighted by the EPFO but there
is no supporting data available with the EPFO to substantiate this argument.
5 Higher Pension benefit is subject to Income Tax deduction.
6 Calculation is based on assumed figure of salary. The calculation and decision to be
taken depends on person to person based on his actual data.
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