Pension Is Deferred Salary, Right To Pension A Constitutional Right : Kerala HC - Business Guardian
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Pension Is Deferred Salary, Right To Pension A Constitutional Right : Kerala HC



While vocally espousing the right to pension as a constitutional right, the Kerala High Court has in an extremely laudable judgment titled Abhilash Kumar R & Ors vs Kerala Books and Publication Society & Ors. in WP (C) No. 11306 of 2015 and connected cases that was pronounced as recently as on August 5, 2022 has held that the right to pension is a constitutional right and that pensions cannot be paid to retired employees merely at the whims and fancies of the employers. The Single Judge Bench of Justice VG Arun minced absolutely no words to hold that, “Pension is no longer a bounty to be paid at the whims and fancies of the employer. On the other hand, pension is deferred salary, akin to property under Article 300A. The right to pension, if not a fundamental right, is definitely a constitutional right. A retired employee cannot be deprived of this right, save by authority of law.” It must be stated here that the Court was adjudicating upon a batch of petitions moved by current and retired employees of the Kerala Books and Publications Society (KBPS), a registered Society wholly owned by the State Government.

At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of Justice VG Arun first and foremost puts forth in para 1 that, “Petitioners are retired employees of the Kerala Books and Publications Society (KBPS). The KBPS is a Society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955, wholly owned by the Government of Kerala. The main object of the Society is to print and supply textbooks to the Education Department, its allied institutions and other prescribed authorities for the advancement of general and technical education and reading habits among the general public. The society’s employees were brought under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, from 01.04.1981. The Employees Pension Scheme was also made applicable, after it was launched in the year 1995. While so, the labour unions demanded that the provisions of the Kerala Service Rules should be made applicable to the employees of the Society, as regards their salary and pension. The Government referred the dispute to the Labour Court and an award was passed on 15.03.2005, directing the management of the Society to consider the demand for making the Kerala Service Rules applicable to the workers of KPBS or to convert KPBS as a Government-run-printing Unit under the Education Department, and to take appropriate decision within four months. This resulted in the KPBS appointing a two-men expert Committee for studying and reporting the possibility of implementing a pension scheme for the employees of the Society. Accordingly, the Committee submitted a report, suggesting service based pension under KSR Part III with budgetary support from the Government. After discussing the suggestion in detail, the Government issued G.O. (MS) No.66/11/G.Edn dated 18.05.2011, permitting the Society to give effect to a contributory pension scheme and family pension scheme. Alleging delay on the part of the Society in implementing the Order, W.P.(C) No.19009 of 2012 was filed by two retired employees. Later, the Government issued G.O.(MS) No.194/13/H.Edn dated 18.05.2013, according sanction for implementing a self sustainable and financially viable pension scheme with effect from 01.04.2011, without any liability to the Government. In view of this development, W.P.(C) No.19009 of 2012 was disposed of directing the respondents to take appropriate steps for implementing the decision in Ext.P3 expeditiously. Thereafter, the Government issued G.O.(P) No.588/2014/H.Edn dated 23.07.2014, according sanction for publishing the Kerala Books and Publications Society Employees Contributory Pension and General Provident Fund Regulations, 2014 (‘the Pension Regulations, 2014’). Accordingly, the Pension Regulations, 2014 was notified on 14.08.2014, providing for grant of pension to the employees of the Society. In the meanwhile, the Society, as per it’s order dated 07.06.2014, decided to sanction 25% of pension to the pensioners/family pensioners with effect from June, 2014.”

To put things in perspective, the Bench then envisages in para 2 that, “Even after publication of the Regulations, the eligible pension amount was not disbursed to the retired employees. This resulted in some of the employees filing W.P.(C) No.23055 of 2015, praying for a writ of mandamus, directing respondents 2 to 4 to disburse monthly pension to the retired employees as provided in the Pension Regulations, 2014. In that writ petition, the Society adopted the stand that it does not have the funds for disbursing pension, since the Employees Provident Fund Organisation had refused to refund the contribution remitted to its pension scheme. The Government resolved the stalemate temporarily by issuing G.O.(MS) No.62/16/H.Edn dated 01.03.2016, according sanction to the Society to raise funds for payment of pension from the profit of the KBPS as a one time measure, subject to a maximum of the amount receivable from the EPF account and subject to approval of the governing body. In view of this development, W.P.(C) No.23055 of 2015 was disposed of as per judgment dated 15.03.2016.”

As it turned out, the Bench then enunciates in para 3 that, “W.P.(C) Nos.19570 of 2016, 10438 of 2020 and 29160 of 2020 are filed for a declaration that the petitioners are entitled to get full pension with effect from the date of their retirement, based on the Government orders and in accordance with the Pension Regulations, 2014. W.P.(C) Nos.11306 of 2015 and 22445 of 2017 are filed by employees in service, seeking to quash the Government order notifying the Pension Regulations, 2014 and for a declaration that the petitioners therein are entitled to continue as members of Employees Provident Fund Scheme, the Employees Pension Scheme and the Employees Deposit Linked Insurance Scheme under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. Contempt of Court Case No.1719 of 2021 is filed by one of the petitioners in W.P.(C) No.19009 of 2012, alleging non-compliance with the directions contained in the judgment in that writ petition.”

Be it noted, the Bench then points out in para 9 that, “The following facts are not in dispute.

The Society, after due discussion with the Government, had decided to constitute a two-member committee for conducting enquiry and submitting report regarding the possibility of forming a separate pension fund for its employees. The decision in that regard was taken in the wake of demand from the labour unions, pointing out the huge disparity in salary and pension between Government employees and employees of the Society, despite KBPS being fully owned by the Government. The committee had suggested payment of pension in the manner provided under Part III of KSR. This aspect was also discussed and deliberated upon before the Government granted permission to enforce the Pension Regulations, 2014. The Government order in this regard was duly considered and accepted by this Court as evidenced by the judgment in W.P.(C) No.19009 of 2012.”

Finally and far most significantly, the Bench then holds in para 13 that, “It is pertinent to note that in State of Jharkhand v. Jitendra Kumar Srivastava [(2013) 12 SCC 210], the Apex Court declared the right to receive pension as akin to a right in property. The contextually relevant portion of that judgment reads as under;

“The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:

300-A.Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that the attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”

The legal position emanating from the above precedents is that, pension is no longer a bounty to be paid at the whims and fancies of the employer. On the other hand, pension is deferred salary, akin to property under Article 300A. The right to pension, if not a fundamental right, is definitely a constitutional right. A retired employee cannot be deprived of this right, save by authority of law. Applying the above principles to the instant case, I have no doubt that, having formulated the pension regulations and having stopped payment of contribution to the EPF pension fund, the society cannot wriggle out of its responsibility by pleading paucity of funds. It is for the society to stimulate the required funds, either from its profit or revenue. The dispute with the EPF Organisation and the delay in receiving back the EPF contribution, are not acceptable as an excuse for non-payment of eligible pension to the retired employees. Based on the above discussion, I find the petitioners in W.P.(C) Nos.19570 of 2016, 10438 of 2020 and 29160 of 2020 to be entitled for the relief sought. As far as the petitioners in W.P.(C) Nos.11306 of 2015 and 22445 of 2017 are concerned, their grievance stands substantially redressed by the issuance of G.O.No.417/2019/H.Edn dated 24.12.2019, which stipulates that the existing regular employees are exempted from the Pension Regulations, 2014 and reinstated to the EPF pension scheme.

The writ petitions are therefore disposed of as under;

(i) The employees superannuated/retired before 24.12.2019 are declared to be entitled for pension in accordance with the Pension Regulations of 2014. They shall be paid full pension with effect from 01.10.2022.

(ii) The arrears of pension due to the above group of employees shall be paid in four stages, viz; 25% of the arrears on or before 01.01.2023, and 25% each on or before 01.04.2023, 01.07.2023 and 01.10.2023.

(iii) The employees in service as on 24.12.2019, like the petitioners in W.P.(C) Nos.11306 of 2015 and 22445 of 2017, shall be governed by the EPF Pension Scheme, as provided in G.O.(MS) No.417/2019 dated 24.12.2019 or the National Pension Scheme, as the case may be.

(iv) The funds necessary for payment of pension and arrears shall be drawn/raised from the society’s profit and revenue.

(v) The Government shall take earnest and sincere efforts to pay the amounts due to the Society for the works executed.

(vi) In view of the directions above, COC No.1719 of 2021 is closed.”

In essence, the Kerala High Court while setting the record straight has made it indubitably clear that pension is a deferred salary akin to property under Article 300A of the Constitution of India. It was also made abundantly clear that pension is no longer a bounty to be paid at the whims and fancies of the employer. The Court also sought to make it clear that the right to pension if not a fundamental right, is definitely a constitutional right. More to the point, the Court held that a retired employee cannot be deprived of this right save by authority of law. No denying it.

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Govt extends date for submission of R&D proposals



The Government has extended the deadline for submission of proposals related to R&D scheme under the National Green Hydrogen Mission. The R&D scheme seeks to make the production, storage, transportation and utilisation of green hydrogen more affordable. It also aims to improve the efficiency, safety and reliability of the relevant processes and technologies involved in the green hydrogen value chain. Subsequent to the issue of the guidelines, the Ministry of New & Renewable Energy issued a call for proposals on 16 March, 2024.

While the Call for Proposals is receiving encouraging response, some stakeholders have requested more time for submission of R&D proposals. In view of such requests and to allow sufficient time to the institutions for submitting good-quality proposals, the Ministry has extended the deadline for submission of proposals to 27th April, 2024.

The scheme also aims to foster partnerships among industry, academia and government in order to establish an innovation ecosystem for green hydrogen technologies. The scheme will also help the scaling up and commercialisation of green hydrogen technologies by providing the necessary policy and regulatory support.

The R&D scheme will be implemented with a total budgetary outlay of Rs 400 crore till the financial year 2025-26. The support under the R&D programme includes all components of the green hydrogen value chain, namely, production, storage, compression, transportation, and utilisation.

The R&D projects supported under the mission will be goal-oriented, time bound, and suitable to be scaled up. In addition to industrial and institutional research, innovative MSMEs and start-ups working on indigenous technology development will also be encouraged under the Scheme.

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India, Brazil, South Africa to press for labour & social issues, sustainability



The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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India to spend USD 3.7 billion to fence Myanmar border



India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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FM defends Atal Pension Scheme, highlights guaranteed returns



Finance Minister Nirmala Sitharaman defended the Atal Pension Yojana (APY) against Congress criticism, asserting its design based on choice architecture and a guaranteed minimum 8% return. She emphasized the scheme’s opt-out feature, facilitating automatic premium continuation unless subscribers choose otherwise, promoting retirement savings. Sitharaman countered Congress allegations of coercion, stating the APY’s guaranteed returns irrespective of market conditions, supplemented by government subsidies.

Responding to Congress’s claim of scheme misuse, Sitharaman highlighted its intended beneficiaries – the lower-income groups. She criticized Congress for its alleged elitist mindset and emphasized the scheme’s success in targeting the needy. Sitharaman accused Congress of exploiting vote bank politics and coercive tactics, contrasting it with the APY’s transparent framework. The exchange underscores the political debate surrounding social welfare schemes, with the government defending its approach while opposition parties raise concerns about implementation and efficacy.

Finance Minister Nirmala Sitharaman’s robust defense of the Atal Pension Yojana (APY) against Congress criticism highlights the ongoing debate over social welfare schemes in India. Sitharaman’s assertion of the APY’s design principles, including its opt-out feature and guaranteed minimum return, underscores the government’s commitment to promoting retirement savings among lower-income groups. The Atal Pension Yojana, named after former Prime Minister Atal Bihari Vajpayee, was launched in 2015 to provide pension benefits to workers in the unorganized sector. It aims to address the significant gap in pension coverage among India’s workforce, particularly those employed in informal and low-income sectors. The scheme offers subscribers fixed pension amounts ranging from Rs. 1,000 to Rs. 5,000 per month, depending on their contribution and age at entry, after attaining the age of 60. Sitharaman’s response comes after Congress criticism alleging the APY’s inefficacy and coercive tactics in enrolment.

Congress General Secretary Jairam Ramesh described the scheme as poorly designed, citing instances of subscribers dropping out due to unauthorized account openings. However, Sitharaman refuted these claims, emphasizing the APY’s transparent and beneficiary-oriented approach. The finance minister’s defense focuses on three key aspects of the APY: Choice Architecture: Sitharaman highlights the opt-out feature of the APY, which automatically continues premium payments unless subscribers choose to discontinue.

This design element aims to encourage long-term participation and ensure consistent retirement savings among subscribers. By simplifying the decision-making process, the scheme seeks to overcome inertia and promote financial discipline among participants. Guaranteed Minimum Return: Sitharaman underscores the APY’s guarantee of a minimum 8% return, irrespective of prevailing interest rates. This assurance provides subscribers with confidence in the scheme’s financial viability and incentivizes long-term savings.

The government’s commitment to subsidizing any shortfall in actual returns further strengthens the attractiveness of the APY as a retirement planning tool. Targeting the Needy: Sitharaman defends the predominance of pension accounts in lower income slabs, arguing that it reflects the scheme’s successful targeting of its intended beneficiaries – the poor and lower-middle class. She criticizes Congress for its alleged elitist mindset and suggests that the party’s opposition to welfare schemes like the APY stems from a disconnect with the needs of marginalized communities. Sitharaman’s rebuttal also addresses broader political narratives surrounding social welfare policies in India.

She accuses Congress of exploiting vote bank politics and coercive tactics, contrasting it with the transparent and inclusive framework of the APY. The exchange underscores the ideological differences between the ruling Bharatiya Janata Party (BJP) and the opposition Congress, with each side advocating for their vision of social welfare and economic development. In addition to defending the APY, Sitharaman’s remarks shed light on the broader challenges and opportunities facing India’s pension sector.

Despite significant progress in expanding pension coverage through schemes like the APY, the country still grapples with issues such as financial literacy, informal employment, and pension portability. Addressing these challenges requires a multifaceted approach involving government intervention, private sector participation, and civil society engagement.

As India strives to achieve its vision of inclusive and sustainable development, initiatives like the APY play a crucial role in promoting economic security and social equity. Sitharaman’s defense of the scheme underscores the government’s commitment to addressing the needs of vulnerable populations and ensuring their financial well-being in the long run.

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Regulatory steps will make financial sector strong, but raise cost of capital



India’s financial system regulator, the Reserve Bank of India (RBI), is demonstrating a serious commitment to improving governance and transparency at finance companies and banks, with the RBI’s recent measures aimed at curtailing lenders’ overexuberance, enhancing compliance culture and safeguarding customers.

While the global ratings firm has appreciated the RBI’s “diminishing tolerance for non-compliance, customer complaints, data privacy, governance, know-your-customer (KYC), and anti-money laundering issues”, it has cautioned that increased regulatory risk could impede growth and raise the cost of capital for financial institutions. “Governance and transparency are key weaknesses for the Indian financial sector and weigh on our analysis. The RBI’s new measures are creating a more robust and transparent financial system,” says S&P Global Credit Analyst, Geeta Chugh. “India’s regulator has underscored its commitment to strengthening the financial sector. The drawback will be higher capital costs for institutions,” Chugh cautions.

The RBI measures include restraining IIFL Finance and JM Financial Products from disbursing gold loan and loans against shares respectively and asking Paytm Payments Bank (PPBL) to stop onboarding of new customers. Earlier in December 2020, the RBI suspended HDFC Bank from sourcing new credit card customers after repeated technological outages. These actions are a departure from the historically nominal financial penalties imposed for breaches, S&P Global notes.

Besides, as the global agency points out, the RBI has decided to publicly disclose the key issues that lead to suspensions or other strict actions against concerned entities and become more vocal in calling out conduct that it deems detrimental to the interests of customers and investors. “We believe that increased transparency will create additional pressure on the entire financial sector to enhance compliance and governance practices,” adds Chugh. The global agency has also lauded the RBI’s recent actions demonstrating scant tolerance for any potential window-dressing of accounts.

These actions include the provisioning requirement on alternative investment funds that lend to the same borrower as the bank finance company. Amidst the possibility of some retail loans, such as personal loans, loans against property, and gold loans getting diverted to invest in stock markets and difficulty of ascertaining the end-use of money in these products, S&P Global underlines the faith of market participants that the RBI and market regulator, the Securities and Exchange Board of India, want to protect small investors by scrutinizing these activities more cautiously.

On the flip side, at a time of tight liquidity, the RBI’s new measures are likely to limit credit growth in fiscal 2025 (year ending March 2025). “We expect loan growth to decline to 14 per cent in fiscal 2025 from 16 per cent in fiscal 2024, reflecting the cumulative impact of all these actions,” says Chugh. The other side of the story is that stricter rules may disrupt affected entities and increase caution among fintechs and other regulated entities and the RBI’s decision to raise risk weights on unsecured personal loans and credit cards may constrain growth. Household debt to GDP in India (excluding agriculture and small and midsize enterprises) increased to an estimated 24 per cent in March 2024 from 19 per cent in March 2019. Growth in unsecured loans has also been excessive and now forms close to 10 per cent of total banking sector loans.

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