New pension scheme
K S NARAYAN
(Querist) 10 May 2014
This query is : Resolved
There are 8 employees who are covered under New Pension Scheme. Of the 8 employees, 1 has joined in 2006, 0ne in Jan 2009 two in July 2009, two in Nov/dec 2009 and one in 2011. PFRDA was formed in 2011 and we were all directed by our Administrative Ministry which is Min of Tourism - HRD Division. In 2013, we have registerd the institute in NPS scheme. Of the 8 employees, 6 have got their PRAN nos The remaining two of them are not registering and finding some pretext and even trying to approach the judiciary so that they may continue in the existing CPF scheme. NPS is mandatory for all central government employees working directly in ministries, autonomous institution under a particular ministry who have joined on or after Jan 2004.
What action may be initiated against such erring employees. please advise.
P. Venu
(Expert) 10 May 2014
Is NPS mandatory? There is no such Notification or statutory rule. The employees are within their right to approach the judicial forums.
K S NARAYAN
(Querist) 10 May 2014
Mr. Venu - NPS is Mandatory for all employees joining central govt. services on or after 1.1.2004. There is a notification from dept of personel and welfare and it has also got the Assent of President of India and included in the gazette.
Anirudh
(Expert) 10 May 2014
If it is mandatory, what is separately required from them. All that is required the Pay and Accounts Officer has to deduct the 10% from salary and remit to the New Pension Scheme. Where is the question of their refusing and you taking any action against them.?
In any case, if they had approached judiciary, you await the decision of the judiciary. Every one can approach the court for their real or perceived rights.
P. Venu
(Expert) 10 May 2014
The New Pension Scheme is not notified under Article 309 of the Constitution and hence, legally, is not pari materia with the provisions of CCS(Pension) Rules, 1971.
The legal position that emerges is that employees who have joined after 1/1/2004 are not entitled for the retirement benefits under the CCS(Pension)Rules. The Government may find it difficult to defend the legality of this arrangement, if questioned in a judicial forum or tribunal.
P. Venu
(Expert) 10 May 2014
Repeated by error. Regret for the inconvenience.
Guest
(Expert) 10 May 2014
Mr. Narayan,
Irrespective of whether the employees desire to contribute or not under the NPS, as a Principal of the Institution, you are bound to recover and deposit the amount of due contribution on their part under the NPS, as they are governed by the conditions of service applicable to them at the time of their appointment.
You should NOT be reluctant in discharge of your own duties in wait for any future judicial interference, which the employees are yet to seek.
The employees, if aggrieved can be free to approach the court of law/CAT. It is for the Ministry of Law to see whether the Government is able to defend or not the NPS. Your duty to obey the Government orders should not be deterred by any event, which is yet to take place. When you say MANDATORY that is mandatory for you and the employees both to act as per the provisions of the scheme.
K S NARAYAN
(Querist) 10 May 2014
They are required to submit the forms for them to be the benefeciaries of the scheme. Their monthly contribution is already been deducted and kept separately. Can any disciplinary action be taken for indiscipline.
Rajendra K Goyal
(Expert) 10 May 2014
Issue clear instructions in writing to submit the required forms.
In case of failure to do so, take action as per service conditions.
P. Venu
(Expert) 10 May 2014
If the employees do not submit the forms, all that it may entail is that they would not be entitled to get the matching contribution from the employer credited into their account.
Initiating disciplinary action would, in all probability, result in opening a Pandora's Box.
K S NARAYAN
(Querist) 11 May 2014
What would happen if disciplinary action is initiated. Pls advise.
Anirudh
(Expert) 11 May 2014
I want to recall a real incidence. A show cause notice was issued an official calling him to show cause why disciplinary action should not be taken against him.
Pat came the reply from the employee: Disciplinary action should not be taken against me, because my disciplinary authority is not having so much time to deal with such sort of cases!
Guest
(Expert) 11 May 2014
First of all, you need to know whether you are the disciplinary authority of the teacher. If yes, you should be aware of the rules and procedure of taking disciplinary action. If not, refer the matter to the designated competent disciplinary authority of the employee.
T. Kalaiselvan, Advocate
(Expert) 14 May 2014
The experts have very clearly explained the position of law as well as their proper opinions on the subject issue. Besides, you may reply to expert Mr. Dhingra's particular question which is repeated here for your reference:You should NOT be reluctant in discharge of your own duties in wait for any future judicial interference, which the employees are yet to seek.
The employees, if aggrieved can be free to approach the court of law/CAT. It is for the Ministry of Law to see whether the Government is able to defend or not the NPS. Your duty to obey the Government orders should not be deterred by any event, which is yet to take place. When you say MANDATORY that is mandatory for you and the employees both to act as per the provisions of the scheme.
Please explain your stand and position to the above mentioned observation.
P. Venu
(Expert) 14 May 2014
Service rules or scheme could be called mandatory only if, I repeat, enacted or notified under 309 of the Constitution. The new pension scheme lacks the requisite force of law. It only amounts to a contract. And no contract is possible without informed consent.
Guest
(Expert) 14 May 2014
Mr. Venu,
Why don't you file a PIL, if you feel the scheme is not mandatory and is not covered under Article 309? By repeatedly writing that the scheme is not enacted or notified under Article 309 is not going to solve the problem of the querist. You should also know that being in a position to implement the scheme, the querist has no authority to challenge the scheme in a court of law.
You should also know that the scheme was duly approved through the budget of 2003-04 and was subsequently notified separately in the Gazette of India (Extraordinary) on 22.12.2003.
K S NARAYAN
(Querist) 14 May 2014
Mr.Dhingra has rightly said regarding the repeated saying of Mr. Venu that it is announced in the budget of 2003-04, subsequently notified through gazzette of India. A regulatory authority is also formed which have been statutory powers to make new amendments. PFRDA was formed to regulate tbe entire activity of NPS. Coming to our position, it is mandatory for all employees who have joined after 1.1.2004. I am pursuing the case and except these 2 employees, 6 other employees have registered and even got our PRAN Numbers. The Board of Governors have also made it clear to all concerned employees that it mandatory to follow suit. I am looking for what kind of disciplinary action to be initiated against these two erring employees and this was the main reason why I have approved this elite forum for their guidance and advise. I have learnt so much since this topic was put for discussion and all the learned people have really contributed for the cause. I continue to seek your guidance and advise after expressing my stsnd, Iwill also place the facts before our Chsirman for his directions. I once again request you all to direct me in this matter.
