The Lok Sabha on Wednesday passed
the crucial Pension Fund Regulatory and Development Authority Bill, 2011,
create a regulator, and cover senior citizen of our country.
The Bill has been not been passed
since 2005 when it was first introduced in Parliament. It was reintroduced in
2011. Built on the principle that ‘you save while you earn’, especially those
who have a regular income, makes it beneficial for the subscribers to the New
Pension Bill in the long run.
It was a smooth sailing for the
PFRDA Bill, 2011 in the Lower House thanks largely to the principal Opposition
party, the BJP, extending support upfront.
The Pension Authority, which was
set up in October 2003, has been functioning as an interim regulator
without a statutory recognition. With the corpus swelling to about Rs 35,000
crore over the years, it has become important for the regulator to have the
status of a statutory authority.
|
The Pension Fund Regulatory and
Development Authority Bill, 2011.
|
|
An interim
Pension Fund Regulatory and Development Authority (PFRDA) was set up in
2003. The New Pension System (NPS), which was implemented in January
2004, shifted the pension schemes from the defined benefit system to the
defined contribution system. The PFRDA Bill, 2011, seeks to give
statutory status to the interim PFRDA, define its powers and duties, and set
the broad contours of the NPS.
Highlights of the Bill
Key Issues and Analysis
|
THE PENSION FUND REGULATORY AND DEVELOPMENT AUTHORITY
BILL, 2013
—————
ARRANGEMENT
OF CLAUSES
—————
CLAUSES
CHAPTER I
PRELIMINARY
1. Short
title, extent and commencement.
2.
Definitions.
CHAPTER II
PENSION FUND
REGULATORY AND DEVELOPMENT AUTHORITY
3.
Establishment and incorporation of Authority.
4.
Composition of Authority.
5. Term of
office and conditions of service of Chairperson and members of Authority.
6. Removal
of members from office.
7.
Restriction on future employment of members.
8.
Administrative powers of Chairperson.
9. Meetings
of Authority.
10.
Vacancies, etc., not to invalidate proceedings of Authority.
11. Officers
and employees of Authority.
CHAPTER III
EXTENT AND
APPLICATION
12. Extent
and application.
CHAPTER IV
TRANSFER OF
ASSETS, LIABILITIES, ETC., OF INTERIM PENSION FUND REGULATORY AND
DEVELOPMENT
AUTHORITY
13. Transfer
of assets, liabilities, etc., of Interim Pension Fund Regulatory and
Development Authority.
CHAPTER V
DUTIES,
POWERS AND FUNCTIONS OF AUTHORITY
14. Duties,
powers and functions of Authority.
15. Power to
issue directions.
16. Power of
investigation.
17. Search
and seizure.
18. Power of
Authority to ensure compliance.
19.
Management by Administrator.
Bill No. 25-C of 2011
AS PASSED BY
LOK SABHA ON 4 SEPTEMBER, 2013
CHAPTER VI
NATIONAL
PENSION SYSTEM CLAUSES
20. National
Pension System.
21. Central
recordkeeping agency.
22. Point of
presence.
23. Pension
funds.
24. Certain
restrictions on foreign companies or individual or association of persons.
25.
Prohibition of investment of funds of subscribers outside India.
26.
Eligibility norms of the central recordkeeping agency, etc.
CHAPTER VII
REGISTRATION
OF INTERMEDIARIES
27.
Registration of central recordkeeping agency, pension fund, point of presence,
etc.
CHAPTER VIII
PENALTIES
AND ADJUDICATION
28. Penalty
for failure by an intermediary or any other person to comply with provisions of
this Act, rules, regulations and directions.
29.
Crediting sums realised by way of penalties to Subscriber Education and
Protection Fund.
30. Power to
adjudicate.
31.
Attachment of assets and supersession of management of intermediary.
32.
Offences.
33. Power to
grant immunity.
34.
Exemption from tax on wealth, income, profits and gains.
35.
Cognizance of offences by court.
36. Appeal
to Securities Appellate Tribunal.
37. Civil
court not to have jurisdiction.
38. Appeal
to Supreme Court.
CHAPTER IX
FINANCE,
ACCOUNT AND AUDIT
39. Grants
by Central Government.
40.
Constitution of Pension Regulatory and Development Fund.
41.
Constitution of Subscriber Education and Protection Fund.
42. Accounts
and audit.
CHAPTER X
MISCELLANEOUS
43. Power of
Central Government to issue directions.
44. Power of
Central Government to supersede Authority.
45.
Establishment of Pension Advisory Committee.
(ii)
46.
Furnishing of returns, etc., to Central Government.
47. Members,
officers and employees of Authority to be public servants.
48.
Protection of action taken in good faith.
49.
Delegation of powers.
50. Offences
by companies.
51. Power to
make rules.
52. Power to
make regulations.
53. Rules
and regulations to be laid before Parliament.
54. Power to
remove difficulties.
55.
Application of other laws not barred.
56. Savings.
CLAUSES
(iii)
THE PENSION
FUND REGULATORY AND DEVELOPMENT AUTHORITY BILL, 2013
A BILL
to provide for the establishment of an Authority to promote old age income
security by establishing, developing and regulating pension funds, to protect
the interests of subscribers to schemes of pension funds and for matters
connected therewith or incidental thereto.
BE it
enacted by Parliament in the Sixty-Fourth Year of the Republic of India as
follows:—
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Pension Fund
Regulatory and Development Authority Act, 2013.
(2)
It extends to the whole of India.
(3)
It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint:
Provided
that different dates may be appointed for different provisions of this Act and
any reference in any such provision to the commencement of this Act shall be
construed as a reference to the coming into force of that provision.
Short title,
extent and commencement.
Bill No. 25-C of 2011
AS PASSED BY
LOK SABHA
ON 4
SEPTEMBER, 2013
2. (1) In this Act, unless the context otherwise
requires,—
(a)
“Authority” means the Pension Fund Regulatory and Development Authority
established under sub-section (1) of section 3;
(b)
“central recordkeeping agency” means an agency registered under section 26 to
perform the functions of recordkeeping, accounting, administration and customer
service for
subscribers to schemes;
(c)
“Chairperson” means the Chairperson of the Authority;
(d)
“document” shall include any matter written, expressed or described upon
any
substance by means of letters, figures or marks, or by more than one of those
means, in
printed or in electronic version, which is intended to be used, or which may
be used, by
the Interim Pension Fund Regulatory and Development Authority, or
Authority or
an intermediary or any other entity connected with the National Pension
System, for
the purpose of recording that matter;
(e)
“individual pension account” means an account of a subscriber, executed by
a contract
setting out the terms and conditions under the National Pension System;
(f)
“Interim Pension Fund Regulatory and Development Authority” means the
Interim
Pension Fund Regulatory and Development Authority set up by the Central
Government
through Resolutions No. F.No. 5/7/2003-ECB&PR dated the 10th October,
2003 and
F.No. 1(6)/2007-PR dated the 14th November, 2008;
(g)
“intermediary” includes pension fund, central recordkeeping agency, National
Pension
System Trust, pension fund adviser, retirement adviser, point of presence and
such other
person or entity connected with collection, management, recordkeeping and
distribution
of accumulations;
(h)
“member” means a member of the Authority and includes its Chairperson;
(i)
“National Pension System” means the contributory pension system referred
to in
section 20 whereby contributions from a subscriber are collected and
accumulated
in an
individual pension account using a system of points of presence, a central
recordkeeping
agency and pension funds as may be specified by regulations;
(j)
"National Pension System Trust" means the Board of Trustees who hold
the
assets of
subscribers for their benefit;
(k)
“notification” means a notification published in the Official Gazette;
(l)
“pension fund” means an intermediary which has been granted a certificate of
registration
under sub-section (3) of section 27 by the Authority as a pension fund
for
receiving
contributions, accumulating them and making payments to the subscriber in
the manner
as may be specified by regulations;
(m)
“Pension Regulatory and Development Fund” means the fund constituted
under
sub-section (1) of section 40;
(n) “point
of presence” means an intermediary registered with the Authority
under
sub-section (3) of section 27 as a point of presence and capable of
electronic
connectivity
with the central recordkeeping agency for the purposes of receiving and
transmitting
funds and instructions and pay out of funds;
(o)
“prescribed” means prescribed by rules made under this Act;
(p)
“regulated assets” means the assets and properties, both tangible and
intangible,
owned, leased or developed by and other rights belonging to, the central
recordkeeping
agency;
(q)
“regulations” means the regulations made by the Authority under this Act;
(r)
“scheme” means a scheme of pension fund approved by the Authority under
this Act;
(s)
“Securities Appellate Tribunal” means a Securities Appellate Tribunal
established
under sub-section (1) of section 15K of the Securities and Exchange
Board
of India
Act, 1992;
Definitions.
15 of 1992.
5
10
15
20
25
30
35
40
45
50
3
(t)
“subscriber” includes a person who subscribes to a scheme of a pension fund;
(u)
“Subscriber Education and Protection Fund” means the fund constituted
under
sub-section (1) of section 41;
(v)
“Trustee Bank" means a banking company as defined in the Banking
Regulation
Act, 1949.
(2)
Words and expressions used and not defined in this Act, but defined in—
(i)
the Insurance Act, 1938;
(ii)
the Companies Act, 1956;
(iii)
the Securities Contracts (Regulation) Act, 1956; and
(iv)
the Securities and Exchange Board of India Act, 1992,
shall have
the meanings respectively assigned to them under those Acts.
CHAPTER II
PENSION FUND
REGULATORY AND DEVELOPMENT AUTHORITY
3. (1) With effect from
such date as the Central Government may, by notification,
appoint, there shall be established, for the purposes of this Act, an
Authority to be called the
Pension Fund Regulatory and Development Authority.
(2) The Authority shall be a body corporate by the name
aforesaid, having perpetual
succession and a common seal with power, subject to the provisions of this
Act, to acquire,
hold and dispose of property, both movable and immovable, and to contract and
shall, by the
said name, sue or be sued.
(3) The head office of the Authority shall be in the National
Capital Region referred
to in clause (f) of section 2 of the National Capital Region
Planning Board Act, 1985.
(4) The Authority may establish offices at other places in
India.
4. The Authority shall consist of the following Members,
namely:—
(a) a
Chairperson;
(b)
three whole-time members; and
(c)
three part-time members,
to be
appointed by the Central Government from amongst persons of ability, integrity
and standing and having knowledge and experience in economics or finance or law
with at least one person from each discipline.
5. (1) The Chairperson and every whole-time member
shall hold office for a term of five years from the date on which he enters
upon his office and shall be eligible for reappointment: Provided that no
person shall hold office as a Chairperson after he has attained the age of
sixty-five years:
Provided
further that no preson shall hold office as a whole-time member after he has attained
the age of sixty-two years.
(2) A
part-time member shall hold office as such for a term not exceeding five years
from the date on which he enters upon his office.
(3) The salary and allowances payable to, and other terms and
conditions of service of,
the members other than part-time members shall be such as may be
prescribed.
(4) The part-time members shall receive such allowances as
may be prescribed.
(5) The salary, allowances and other conditions of service of
a member shall not be
varied to his disadvantage after his appointment.
(6)
Notwithstanding anything contained in sub-section (1) or sub-section (2),
a member may—
(a)
relinquish his office, by giving in writing to the Central Government, a notice
of not less than thirty days; or
(b)
be removed from his office in accordance with the provisions of section 6.
6. (1) The Central Government may remove from office
the Chairperson or any other member who —
(a)
is, or at any time has been, adjudged as insolvent; or
(b)
has become physically or mentally incapable of acting as a member; or
Establishment and incorporation of Authority.
Compositionof
Authority.
Term of
officeand conditions of service of Chairperson
and members
of Authority. Removal of members from office.
(c) has been convicted of an offence
which, in the opinion of the CentralGovernment, involves moral turpitude; or
(d)
has acquired such financial or other interest as is likely to affect
prejudicially his functions as a member; or
(e)
has, in the opinion of the Central Government, so abused his position as to
render his continuance in office detrimental to the public interest.
(2)
No such Chairperson or other member shall be removed under clause (d) or
clause
(e)
of sub-section (1) unless he has been given a reasonable opportunity of
being heard in the matter.
7. (1) The Chairperson and the whole-time members
shall not, for a period of two years from the date on which they cease to hold
office as such, except with the previous approval of the Central Government,
accept—
(a)
any employment either under the Central Government or under any State
Government; or
(b)
any appointment in any regulated entity in the pension sector.
(2)
The Chairperson and the whole-time members of the Interim Pension Fund
Regulatory and Development Authority holding the office as such before the
commencement
of this Act, shall not, on and after such commencement, accept any appointment
in any regulated entity in the pension sector for a period of two years from
the date on which they cease to hold office as such, except with the previous
approval of the Central Government.
8. The Chairperson shall have the powers of general
superintendence and direction in respect of all administrative matters of the
Authority.
9. (1) The Authority shall meet at such times and
places and shall observe such rules of procedure in regard to the transaction
of business at its meetings (including quorum at such meetings) as may be
provided by regulations.
(2)
The Chairperson or, if for any reason, he is unable to attend a meeting of the
Authority, any other member chosen by the members present from amongst
themselves at the meeting, shall preside at the meeting.
(3)
All questions which come up before any meeting of the Authority shall be
decided by a majority of votes by the members present and voting, and in the
event of an equality of votes, the Chairperson or in his absence, the person
presiding shall have a second or casting vote.
(4)
If any member, who is a director of a company and who as such director, has any
direct or indirect pecuniary interest in any matter coming up for consideration
at a meeting of the Authority, he shall, as soon as possible after relevant
circumstances have come to his knowledge, disclose the nature of his interest
at such meeting and such disclosure shall be recorded in the proceedings of the
Authority, and the member shall not take part in any
deliberation
or decision of the Authority with respect to that matter.
10. No act or proceeding of the Authority shall be invalid
merely by reason of—
(a)
any vacancy in, or any defect in the constitution of, the Authority; or
(b)
any defect in the appointment of a person acting as a member of the Authority;
or
(c)
any irregularity in the procedure of the Authority not affecting the merits of
the case.
11. (1) The Authority may
appoint such officers and other employees as it considers necessary for the
efficient discharge of its functions under this Act.
(2) The
terms and other conditions of service of officers and other employees of the
Authority appointed under sub-section (1) shall be such as may be
determined by regulations.
Restriction
on future employment of members. Vacancies,
etc., not to
invalidate proceedings of Authority. Officers and employees of Authority.
Administrative powers of Chairperson. Meetings of Authority.
CHAPTER III
EXTENT AND
APPLICATION
12. (1) This Act shall apply to—
(a)
the National Pension System;
(b)
any other pension scheme not regulated by any other enactment.
(2)
Every pension scheme referred to in clause (b) shall conform to the
regulations made by the Authority within such time as may be specified in the
regulations.
(3)
Notwithstanding anything contained in sub-section (1), the provisions of
this Act
shall not
apply to–
(a)
the schemes or funds under–
(i)
the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948;
(ii)
the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;
(iii)
the Seamen’s Provident Fund Act, 1966;
(iv)
the Assam Tea Plantations Provident Fund and Pension Fund Scheme Act, 1955; and
(v)
the Jammu and Kashmir Employees’ Provident Funds Act, 1961;
(b)
contracts referred to in sub-section (11) of section 2 of the Insurance
Act, 1938;
(c)
any other pension scheme, which the Central Government may, by notification,
exempt from the application of this Act;
(d)
persons appointed before the 1st day of January, 2004 to public services in
connection with the affairs of the Union, or to All-India Services constituted
under
section 2A
of the All-India Services Act, 1951;
(e)
persons appointed to public services in connection with the affairs of any
State, or such Union territories as may be specified by notification by the
Central Government.
(4)
Notwithstanding anything contained in sub-section (3), any State
Government or administrator of a Union territory may, by notification, extend
the National Pension System to its employees.
(5)
Notwithstanding anything contained in clause (c) of sub-section (3),
the Central Government may, by notification, extend the application of this Act
to any other pension scheme [including any other pension scheme exempted and
notified under clause (c) of subsection
(3)].
(6)
Any person governed under any of the schemes or funds referred to in
sub-section
(3)
may, at his option, also join the National Pension System.
CHAPTER IV
TRANSFER OF
ASSETS, LIABILITIES, ETC., OF INTERIM PENSION FUND REGULATORY AND
DEVELOPMENT
AUTHORITY
13. On and from the date of establishment of the Pension Fund
Regulatory and
Development
Authority,—
(a)
all the assets and liabilities of the Interim Pension Fund Regulatory and
Development Authority shall stand transferred to, and vested in, the Authority.
Explanation.—The assets of the Interim Pension Fund Regulatory and
Development Authority shall be deemed to include all rights and powers, all
properties, Extent and
application.
Transfer of
assets, liabilities, etc., of Interim Pension Fund Regulatory and Development
Authority.
whether
movable or immovable, including, in particular, cash balances, deposits and all
other interests and rights in, or arising out of, such properties as may be in
the
possession
of the Interim Pension Fund Regulatory and Development Authority and all books
of account and other documents relating to the same; and liabilities shall be deemed
to include all debts, liabilities and obligations of whatever kind;
(b)
without prejudice to the provisions of clause (a), all debts,
obligations and liabilities incurred, all contracts entered into and all
matters and things engaged to be
done by,
with or for the Interim Pension Fund Regulatory and Development Authority immediately
before that day, for or in connection with the purpose of the said Regulatory Authority,
shall be deemed to have been incurred, entered into or engaged to be done by,
with or for, the Authority;
(c)
all sums of money due to the Interim Pension Fund Regulatory and Development
Authority immediately before that day shall be deemed to be due to the Authority;
and
(d)
all suits and other legal proceedings instituted or which could have been instituted
by or against the Interim Pension Fund Regulatory and Development Authority
immediately before that day may be continued or may be instituted by or against
the Authority.
CHAPTER V
DUTIES,
POWERS AND FUNCTIONS OF AUTHORITY
14. (1) Subject to the provisions of this Act and
any other law for the time being in force, the Authority shall have the duty,
to regulate, promote and ensure orderly growth of the National Pension System
and pension schemes to which this Act applies and to protect the interests of
subscribers of such System and schemes.
(2)
Without prejudice to the generality of the provisions contained in sub-section (1),
the powers and functions of the Authority shall include–
(a)
regulating the National Pension System and the pension schemes to which this
Act applies;
(b)
approving the schemes, the terms and conditions thereof and laying down norms
for the management of the corpus of the pension funds, including investment
guidelines
under such schemes;
(c)
registering and regulating intermediaries;
(d)
issuing to an intermediary, on application, a certificate of registration and renewing,
modifying, withdrawing, suspending or cancelling such registration;
(e)
protecting the interests of subscribers by—
(i)
ensuring safety of the contribution of subscribers to various schemes of
pension funds to which this Act applies;
(ii)
ensuring that the intermediation and other operational costs under the National
Pension System are economical and reasonable;
(f)
establishing mechanism for redressal of grievances of subscribers to be determined
by regulations;
(g)
promoting professional organisations connected with the pension system;
(h)
adjudication of disputes between intermediaries and between intermediaries and
subscribers;
(i)
collecting data and requiring the intermediaries to collect such data and undertaking
and commissioning studies, research and projects;
Duties, powers
and functions of Authority.
(j) undertaking steps for educating
subscribers and the general public on issues relating to pension, retirement
savings and related issues and training of intermediaries;
(k)
standardising dissemination of information about performance of pension funds
and performance benchmarks;
(l)
regulating the regulated assets;
(m)
levying fees or other charges for carrying out the purposes of this Act;
(n)
specifying by regulations the form and manner in which books of account shall
be maintained and statement of accounts shall be rendered by intermediaries;
(o)
calling for information from, undertaking inspection of, conducting inquiries and
investigations including audit of, intermediaries and other entities or organizations
connected with pension funds;
(p)
exercising such other powers and functions as may be prescribed.
(3)
Notwithstanding anything contained in any other law for the time being in
force, while exercising the powers under clause (o) of sub-section (2),
the Authority shall have the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908 while trying a suit, in respect of the following
matters, namely:–
(i)
the discovery and production of books of account and other documents, at such
place and at such time as may be specified by the Authority;
(ii)
summoning and enforcing the attendance of persons and examining them on oath;
(iii)
inspection of any book, register and other document of any person or intermediary
referred to in section 26, at any place;
(iv)
issuing commissions for the examination of witnesses or documents;
(v)
any other matter which may be prescribed.
(4)
Without prejudice to the provisions contained in sub-sections (1), (2)
and (3) and section 16, the Authority may, by order, for reasons to be
recorded in writing, in the interest of subscribers, take any of the following
measures, pending investigation or inquiry, namely:–
(i)
restrain persons from participating in any scheme;
(ii)
restrain any office bearer of an intermediary from acting as such;
(iii)
impound and retain the proceeds under the scheme in respect of any activity which
is under investigation;
(iv)
attach, after passing an order, on an application made for approval, by the Judicial
Magistrate of first class having jurisdiction, for a period not exceeding one month,
one or more bank account or accounts of any intermediary or any person associated
with the scheme in any manner involved in violation of any of the provisions of
this Act or the rules or the regulations made thereunder:
Provided
that only the bank account or accounts or any transaction entered therein,
relating to the proceeds actually involved in the violation of any of the
provisions
of this Act
or the rules or the regulations made thereunder shall be allowed to be attached;
(v)
direct any intermediary or any person associated with the scheme in any manner
not to dispose of or alienate an asset forming part of any activity which is under
investigation:
Provided
that the Authority shall, either before or after, passing such orders, under
this section, give to such intermediaries or persons concerned an opportunity of
being heard.
15. Save as otherwise provided in section 14, if after
making, or causing to be made, an inquiry, the Authority is satisfied that it
is necessary—
(i)
in the interests of subscribers or orderly development of National Pension System
or a pension scheme to which this Act applies; or
(ii)
to prevent the affairs of any intermediary or other persons or entities
referred to in section 27 being conducted in a manner detrimental to the
interests of subscribers; or
(iii)
to secure the proper management of any such intermediary or person or entity,
it may issue such directions to such intermediaries or entities or to any
person or class of persons referred to in section 27, or associated with the
pension fund, as it may deem fit:
Provided
that the Authority shall, either before or after passing such orders, give an opportunity
of being heard to such intermediaries, entities or persons concerned.
16. (1) Where the Authority has a reasonable ground to
believe that—
(a)
the activities of the pension fund are being conducted in a manner detrimental to
the interest of the subscriber; or
(b)
any intermediary or any person associated with the schemes of the pension fund
has violated any of the provisions of this Act or the rules or the regulations
made or directions issued by the Authority thereunder,
it may, at
any time, by order in writing, direct any person (hereafter in this section
referred to as the Investigating Authority) specified in the order to
investigate the affairs of such intermediary or persons associated with the pension
fund and to report thereon to the Authority.
(2)
Without prejudice to the provisions contained in sections 235 to 241 of the
Companies Act, 1956, it shall be the duty of every manager, managing director,
officer and other employee of the company, in case of a company and every
intermediary or persons or entity referred to
in section
27 or every person associated with the pension fund to preserve and to produce to
the Investigating Authority or any person authorised by him in this behalf, all
the books, registers, other documents and record of, or relating to, the
company or, as the case may be, of or relating to, the intermediary or such
person, which are in their custody or power.
(3)
The Investigating Authority may require any intermediary or any person or
entity associated with the pension fund in any manner to furnish such
information to, or produce such books, or other documents, or record before him
or any person authorised by him in this behalf as he may consider necessary if
the furnishing of such information or the production of such books, or
register, or other documents, or record is relevant or necessary for the purposes
of its investigation.
(4)
The Investigating Authority may keep in its custody any books, registers, other
documents and record produced under sub-section (2) or sub-section (3)
for six months and thereafter shall return the same to any intermediary or any
person associated or entity with
the pension
fund by whom or on whose behalf the books, registers, other documents and record
are produced:
Provided
that the Investigating Authority may call for any book, register, other documents
and record if they are required again: Provided further that if the person on
whose behalf the books, registers, other documents and record are produced
requires certified copies of the books, registers, other documents or record
produced before the Investigating Authority, it shall give certified copies of
such books, registers, other documents or, as the case may be, record to such
person or on whose behalf the books, registers, other documents and record were
produced.
Power of investigation.
Power to issue directions. 1 of 1956.
(5) Any person, directed to make an
investigation under sub-section (1), may examine on oath any
intermediary or any person associated with the pension fund in any manner, in relation
to the affairs of his business and may administer an oath accordingly and for
that purpose may require any of those persons to appear before him personally.
(6)
Notes of any examination under sub-section (5) shall be taken down in
writing and shall be read over to, or by, and signed by, the person examined,
and may thereafter be used in evidence against him.
(7)
If any person fails without reasonable cause or refuses–
(a)
to produce to an Investigating Authority or any person authorised by him in this
behalf any book, register, other document or record which it is his duty under
subsection
(2)
or sub-section (3) to furnish; or
(b)
to furnish any information which it is his duty under sub-section (3) to
furnish; or
(c)
to appear before the Investigating Authority personally when required to do so
under sub-section (5) or to answer any question which is put to him by
the Investigating Authority in pursuance of that sub-section; or
(d)
to sign the notes of any examination referred to in sub-section (6), he
shall be punishable with imprisonment for a term which may extend to one year,
or with fine, which may extend to twenty-five crore rupees, or with both, and also
with a further fine which may extend to ten lakh rupees for every day after the
first day during which the failure or refusal continues.
17. (1) Where the Authority, in consequence of
information in its possession, has reason to believe that–
(a)
any person who has been required under sub-section (3) of section 16 to produce,
or cause to be produced, any books, accounts or other documents in his
custody or
power has omitted or failed to produce, or cause to be produced, such books,
accounts or other documents; or
(b)
any person to whom a requisition to produce any books, accounts or other documents
as aforesaid has been or might be issued will not, or would not, produce or
cause to be
produced, any books, accounts or other documents which will be useful for, or
relevant to, an investigation under sub-section (1) of section 16; or
(c) a
contravention of any provision of this Act has been committed or is likely to
be committed by an intermediary; or
(d)
any claim which is due to be settled by the intermediary, has been or is likely
to be rejected or settled at a figure higher than a reasonable amount; or
(e)
any claim which is due to be settled by an intermediary, has been or is likely
to be rejected or settled at a figure lower than a reasonable amount; or
(f)
any illegal fees and charges have been transacted or are likely to be
transacted by an intermediary; or
(g)
any books, accounts, papers, receipts, vouchers, survey reports or other documents,
belonging to an intermediary are likely to be tampered with, falsified or
manufactured,
it may authorise any officer of the Authority, not below the rank equivalent to
that of a
Gazetted
Officer of the Government (hereafter referred to as the authorised officer),
to–
(i)
enter and search any building or place where he has reason to suspect that such
books, accounts or other documents, or any books or papers relating to any claim,
rebate or commission or any receipts, vouchers, reports or other documents are kept;
Search and seizure.
(ii) break open the lock of any box,
locker, safe, almirah or other receptacle for exercising the powers conferred
by clause (i) where the keys thereof are not available;
(iii)
seize all or any such books, accounts or other documents, found as a result of
such search;
(iv)
place marks of identification on such books, accounts or other documents or
make or cause to be made extracts or copies therefrom.
(2)
The authorised officer may requisition the services of any police officer or of
any officer of the Central Government, or of both, to assist him for all or any
of the
purposes
specified in sub-section (1) and it shall be the duty of every such
police officer or officer to comply with such requisition.
(3)
The authorised officer may, where it is not practicable to seize any such book,
account or other document, specified in sub-section (1), serve an order
on the person who is in immediate possession or control thereof that he shall
not remove, part with or otherwise deal with it except with the previous
permission of such officer and such officer may take such steps as may be
necessary for ensuring compliance with this sub-section.
(4)
The authorised officer may, during the course of the search or seizure, examine
on oath any person who is found to be in possession or control of any books,
accounts or other documents, and any statement made by such person during such
examination may thereafter be used in evidence in any proceeding under this
Act.
(5)
The books, accounts, papers, receipts, vouchers, reports, or other documents seized
under sub-section (1) shall not be retained by the authorised officer
for a period
exceeding
one hundred and eighty days from the date of the seizure unless the reasons for
retaining the same are recorded by him in writing and the approval of the
Authority for such retention is obtained:
Provided
that the Authority shall not authorise the retention of the books, accounts, papers,
receipts, vouchers, reports, or other documents for a period exceeding thirty
days after all the proceedings under this Act, for which the books, accounts,
papers, receipts,
vouchers,
reports, or other documents are relevant, are completed.
(6)
The person from whose custody the books, accounts, papers, receipts, vouchers, reports,
or other documents are seized under sub-section (1) may make copies
thereof, or
take
extracts therefrom, in the presence of the authorised officer or any other
person empowered by him in this behalf at such place and time as the authorised
officer may appoint in this behalf.
(7)
If a person legally entitled to the books, accounts, papers, receipts,
vouchers, reports or other documents seized under sub-section (1)
objects for any reason to the
approval
given by the Authority under sub-section (5), he may make an application
to the Central Government stating therein the reason for such objection and
requesting for the return of the books, accounts, papers, receipts, vouchers,
report or other documents.
(8)
On receipt of the application under sub-section (7), the Central Government
may, after giving the applicant an opportunity of being heard, pass such order
as it thinks fit.
(9)
The provisions of the Code of Criminal Procedure, 1973 relating to searches and
seizures shall apply, so far as may be, to every search and seizure made under
sub-section
(1). (10) The Central Government may, by notification, make rules
in relation to any search or seizure under this section and in particular, and
without prejudice to the generality of the foregoing power, such rules may
provide for the procedure to be followed by the
authorised
officer,–
(i)
for obtaining ingress into such building or place to be searched where free ingress
thereto is not available;
(ii)
for ensuring safe custody of any books, accounts, papers, receipts, vouchers, reports,
or other documents seized under this section. 2 of 1974.
18. If the Authority finds, after causing an inquiry to be
made, that any person has violated, or is likely to violate, any provisions of
this Act, or any rule or regulation made
thereunder,
the Authority may pass an order requiring such person to cease and desist from committing
or causing such violation.
19. (1) If at any time the Authority has reason to
believe that the central recordkeeping agency or pension fund is acting in a
manner likely to be prejudicial to the interest of subscribers, it may, after
giving the central recordkeeping agency or pension fund, as the case may be, an
opportunity of being heard, make a report thereon to the Central Government.
(2)
If the Central Government, after considering the report made under sub-section
(1) is of the opinion, that it is necessary or proper to do so, it may
appoint an Administrator to manage the affairs of the central recordkeeping
agency or pension fund, as the case may be, under the direction and control of
the Authority, in such manner as may be specified by notification.
CHAPTER VI
NATIONAL
PENSION SYSTEM
20. (1) The contributory pension system notified by
the Government of India in the Ministry of Finance vide notification
number F. No. 5/7/2003-ECB&PR dated the 22nd December, 2003,
shall be deemed to be the National Pension System with effect from the 1st
day of January, 2004, and such National Pension System may be amended from time
to time by regulations.
(2)
Notwithstanding anything contained in the said notification, the National
Pension System shall, on the commencement of this Act, have the following basic
features, namely:–
(a)
every subscriber shall have an individual pension account under the National Pension
System;
(b)
withdrawals, not exceeding twenty-five per cent. of the contribution made by the
subscriber, may be permitted from the individual pension account subject to the
conditions, such as purpose, frequency and limits, as may be specified by the
regulations;
(c)
the functions of recordkeeping, accounting and switching of options by the subscriber
shall be effected by the central recordkeeping agency;
(d)
there shall be a choice of multiple pension funds and multiple schemes: Provided
that—
(a)
the subscriber shall have an option of investing upto hundred per cent. of his
funds in Government Securities; and
(b)
the subscriber, seeking minimum assured returns, shall have an option to invest
his funds in such schemes providing minimum assured returns as may be notified
by the Authority;
(e)
there shall be portability of individual pension accounts in case of change of employment;
(f)
collection and transmission of contributions and instructions shall be through points
of presence to the central recordkeeping agency;
(g)
there shall not be any implicit or explicit assurance of benefits except
marketbased guarantee mechanism to be purchased by the subscriber;
(h) a
subscriber shall not exit from the National Pension System except as may be specified
by the regulations; and
(i)
at exit, the subscriber shall purchase an annuity from a life insurance company
in accordance with the regulations.
(3)
In addition to the individual pension account mentioned in clause (a) of
subsection
(2),
a subscriber may also, at his option, have an additional account under thePower
of Authority to ensure compliance.
National Pension
System.
Management by
Administrator.
National
Pension System having the features mentioned in clauses (c) to (g)
of sub-section
(2)
and also having the additional feature that the subscriber shall be free to
withdraw part or all of his money at any time from the additional account.
21. (1) The Authority shall, by granting a certificate
of registration under sub-section
(3)
of section 27, appoint a central recordkeeping agency:
Provided
that the Authority may, in public interest, appoint more than one central recordkeeping
agency.
(2)
The central recordkeeping agency shall be responsible for receiving
instructions from subscribers through the points of presence, transmitting such
instructions to pension funds, effecting switching instructions received from
subscribers and discharging such other duties and functions, as may be assigned
to it under the certificate of registration or as may be determined by
regulations.
(3)
All the assets and properties owned, leased or developed by the central
recordkeeping agency, shall constitute regulated assets and upon expiry of
certificate of registration or earlier revocation thereof, the Authority shall
be entitled to appropriate and take over the regulated assets, either by itself
or through an administrator or a person nominated by it in this behalf:
Provided
that the central recordkeeping agency shall be entitled to be compensated the
fair value, to be ascertained by the Authority, of such regulated assets as may
be determined by regulations:
Provided
further that where the earlier revocation of the certificate of registration is
based on violation of the conditions in the certificate of registration or the
provisions of this Act or regulations, unless otherwise determined by the
Authority, the central recordkeeping
agency shall
not be entitled to claim any compensation in respect of such regulated assets.
22. (1) The Authority may, by granting a certificate
of registration under sub-section (3) of section 27, permit one or more
persons to act as a point of presence for the purpose of receiving
contributions and instructions, transmitting them to the Trustee Bank or the
central recordkeeping agency, as the case may be, and paying out benefits to
subscribers in accordance with the regulations made by the Authority from time
to time in this regard.
(2) A
point of presence shall function in accordance with the terms of its
certificate of registration and the regulations made under this Act.
23. (1) The Authority may, by granting a certificate
of registration under sub-section
(3)
of section 27, permit one or more persons to act as a pension fund for the
purpose of receiving contributions, accumulating them and making payments to
the subscriber in such manner as may be specified by regulations.
(2)
The number of pension funds shall be determined by regulations and the
Authority may, in public interest, vary the number of pension funds:
Provided
that atleast one of the pensions funds shall be a Government company.
Explanation.—For the purposes of this sub-section, the expression
“Government company” shall have the meaning assigned to it in section 617 of
the Companies Act, 1956.
(3)
The pension fund shall function in accordance with the terms of its certificate
of registration and the regulations made under this Act.
(4)
The pension fund shall manage the schemes in accordance with the regulations.
24. The aggregate holding of equity shares by a foreign
company either by itself or through its subsidiary companies or its nominees or
by an individual or by an association of persons whether registered or not
under any law of a country outside India taken in aggregate in the pension fund
shall not exceed twenty-six per cent. of the paid-up capital of such fund or
such percentage as may be approved for an Indian insurance company under the
provisions of the Insurance Act, 1938, whichever is higher.
Central Recordkeeping
Agency. Point of presence. 1 of 1956. Pension
funds.
Certain restrictions
on foreign companies or individual or association of persons. 4 of 1938.
Explanation.—For the purposes of this section, the expression “foreign
company” shall have the meaning assigned to it in clause (23A) of section 2 of
the Income tax Act, 1961.’.
25. No pension fund shall, directly or indirectly invest
outside India, the funds of subscribers.
26. The central recordkeeping agency, points of presence and
pension funds, shall satisfy the eligibility norms as may be specified by the
regulations, including minimum
capital
requirement, past track-record including the ability to provide guaranteed
returns, costs and fees, geographical reach, customer base, information
technology capability, human resources and such other matters.
CHAPTER VII
REGISTRATION
OF INTERMEDIARIES
27. (1) No intermediary, including a pension fund or a
point of presence to the extent regulated under this Act, shall commence any
activity relating to a pension fund except under and in accordance with the
conditions of a certificate of registration granted by the Authority in
accordance with the provisions of this Act and the regulations: Provided that
any intermediary, including any point of presence, who had been associated with
a pension scheme and appointed to act as such by the Interim Pension Fund Regulatory
and Development Authority immediately before the establishment of the Authority
under this
Act for which no registration certificate was necessary prior to such
establishment, and may continue to do so for a period of six months from such
establishment or, if he has made an application for such registration within
the said period of six months till the disposal of such application.
(2)
Every application for grant of a certificate of registration under this Act
shall be in such form and manner and shall be accompanied by such fees as may
be determined by regulations.
(3)
The Authority may, after considering the application and subject to such terms
and conditions as it may specify, grant a certificate of registration as a
central recordkeeping agency, point of presence, pension fund or such other
intermediary, as the case may be.
(4)
The Authority may, by order, suspend or cancel a certificate of registration
granted under sub-section (3) in such manner as may be determined by
regulations:
Provided
that no order under this sub-section shall be made unless the person concerned has
been given a reasonable opportunity of being heard.
CHAPTER VIII
PENALTIES
AND ADJUDICATION
28. (1) Any person, who is required under this Act or
any rules or regulations made thereunder,—
(a)
to obtain a certificate of registration from the Authority for carrying on any activity
under this Act, carries on such activities without obtaining such certificate
of registration, he shall be liable to a penalty of one lakh rupees for each
day during which
the failure
continues or one crore rupees, whichever is less;
(b)
to comply with the terms and conditions of a certificate of registration fails
to do so, he shall be liable to a penalty of one lakh rupees for each day
during which the failure continues or one crore rupees, whichever is less;
(c)
to furnish any information, document, books, returns or report to the
Authority, fails to furnish the same within the time specified by the
Authority, he shall be liable to
a penalty
which may extend to one crore rupees or five times the amount of profits made
or losses avoided, whichever is higher;
Prohibition
of investment of funds of subscribers outside India.
Eligibility norms
of the central recordkeeping agency, etc. Registration of central recordkeeping
agency,
pension
fund, point of presence, etc. Penalty
for failure by an intermediary or any other person to comply with provisions of
this Act, rules, regulations and directions.
(d) to maintain books of account or
records, fails to maintain the same, he shall be liable to a penalty of one
lakh rupees for each day during which the failure continues or five times the
amount of profits made or losses avoided, whichever is higher.
(2)
If any person, who is required under this Act or any rules or regulations made thereunder,
to enter into an agreement with his client, fails to enter into such agreement,
he shall be liable to a penalty of one lakh rupees for each day during which
the failure continues
or five
times the amount of profits made or losses avoided, whichever is higher.
(3)
If any intermediary registered with the Authority, after having been called
upon by the Authority, in writing, to redress the grievances of subscribers,
fails to redress such
grievances
within the time stipulated by the Authority, he shall be liable to a penalty of
not more than one crore rupees or five times the amount of profits made or losses
avoided, whichever is higher.
(4)
If any person, who is registered under this Act as an intermediary, fails to
segregate moneys of the client or clients or uses the moneys of a client or
clients for self or for any other client, he shall be liable to a penalty not
exceeding one crore rupees or five times the amount
of profits
made or losses avoided, whichever is higher.
(5)
Whoever fails to comply with any provision of this Act, the rules or the
regulations made or the directions issued by the Authority under the provisions
of this Act for which no separate penalty has been provided, he shall be liable
to a penalty which may extend to one crore rupees or five times the amount of
profits made or losses avoided, whichever is higher.
29. All sums realised by way of penalties under this Act
shall be credited to the Subscriber Education and Protection Fund established
under sub-section (1) of section 41.
30. (1) For the purposes of adjudging under section
28, the Authority shall appoint any of its officers not below the rank
specified by regulations to be an adjudicating officer for holding an inquiry
as may be determined by regulations, after giving the person concerned a
reasonable opportunity of being heard for the purpose of imposing any penalty.
(2)
While holding an inquiry, the adjudicating officer shall have the power to
summon and enforce the attendance of any person acquainted with the facts and
circumstances of the case to give evidence or to produce any document which, in
the opinion of the adjudicating officer, may be useful for or relevant to the
subject matter of the inquiry and if, on such inquiry, he is satisfied that the
person has failed to comply with the provisions
of section
28, he may recommend such penalty as he thinks fit in accordance with the provisions
of that section, to the member in charge of investigation and surveillance.
(3)
The penalty shall be imposed by a member other than the member in charge of investigation
and surveillance:
Provided
that while adjudging the quantum of penalty under section 28, the member shall
have due regard to the following factors, namely:—
(a)
amount of disproportionate gain or unfair advantage, wherever quantifiable, made
as a result of the default;
(b)
amount of loss caused to a subscriber or group of subscribers; and
(c)
the repetitive nature of the default.
31. (1) Any person aggrieved may apply to the
Authority for an interim measure of protection in respect of any of the
following matters, namely:–
(a)
the retention, preservation, interim custody or sale of any asset or property which
is regulated by the provisions of this Act;
(b)
securing any pension fund, monies and other assets and properties owned by or
under the control of the pension fund; Crediting sums realised by way of
penalties to Subscriber Education and Protection Fund.
Attachment of
assets and supersession of
Management of
intermediary.
Power to adjudicate.
(c ) interim injunction or appointment
of an administrator; and
(d)
such other interim measures as may appear to the Authority to be just and necessary,
and the
Authority shall have power to make such orders including an order for
attachment of assets of the pension fund as it deems fit in this regard.
(2)
Where, on a complaint received by the Authority or suo motu, the
Authority, after conducting an inquiry, comes to a conclusion that the
governing board or board of directors, by whatever name called, or the persons
in control of any intermediary to the extent regulated
under this
Act are indulging in any activity which is in contravention of the provisions of
this Act or regulations, it may supersede the governing board or board of
directors or management of the intermediary in accordance with the provisions
of the regulations.
(3)
In case the governing board or board of directors or management of an
intermediary is superseded under sub-section (2), the Authority may
appoint an Administrator to manage the affairs of the intermediary in
accordance with the provisions contained in the regulations.
32. (1) Without prejudice to any award of penalty by
the member under this Act, if any person contravenes or attempts to contravene
or abets the contravention of the provisions of this Act or of any rules or
regulations made thereunder, he shall be punishable with
imprisonment
for a term which may extend to ten years, or with fine, which may extend to twenty-five
crore rupees or with both.
(2)
If any person fails to pay the penalty imposed by the member or fails to comply
with any of the directions or orders issued by the member, he shall be
punishable with imprisonment for a term which shall not be less than one month
but which may extend to ten years, or with fine, which may extend to
twenty-five crore rupees, or with both.
33. (1) The Central Government may, on the recommendation
by the Authority, if satisfied, that any person, who is alleged to have
violated any of the provisions of this Act or the rules or the regulations made
thereunder, has made a full and true disclosure in respect
of alleged
violation, grant to such person, subject to such conditions as it may think fit
to impose, immunity from prosecution for any offence under this Act, or the
rules or the regulations made thereunder and also from the imposition of any
penalty under this Act with respect to the alleged violation:
Provided
that no such immunity shall be granted by the Central Government in cases where
the proceedings for the prosecution for any such offence have been instituted
before the date of receipt of application for grant of such immunity:
Provided
further that the recommendation of the Authority under this sub-section shall
not be binding upon the Central Government.
(2)
An immunity granted to a person under sub-section (1) may, at any time,
be withdrawn
by the
Central Government, if it is satisfied that such person had, in the course of
the proceedings, not complied with the condition on which the immunity was
granted or had given false evidence, and thereupon such person may be tried for
the offence with respect to which the immunity was granted or for any other
offence of which he appears to have beenguilty in connection with the
contravention and shall also become liable to the imposition of any penalty
under this Act to which such person would have been liable, had no such immunity
been granted.
34. Notwithstanding anything contained in–
(i)
the Wealth-tax Act, 1957;
(ii)
the Income-tax Act, 1961; or
(iii)
any other enactment for the time being in force relating to tax on wealth, income,
profits or gains, Offences. Power to grant immunity.
Exemption from
tax on wealth, income, profits and gains.
27 of 1957. 43
of 1961. the Authority shall not be liable to pay wealth-tax, income-tax or any
other tax in respect of its wealth, income, profits or gains derived.
35. (1) No court shall take cognizance of any offence
punishable under this Act or any rules or regulations made thereunder, save on
a complaint made by the Authority.
(2)
No court inferior to that of a Court of Session shall try any offence
punishable under this Act.
36. (1) Any person aggrieved by an order made by the
Authority or by an adjudicating officer under this Act may prefer an appeal
before the Securities Appellate Tribunal which shall have jurisdiction over the
matter.
(2)
Every appeal under sub-section (1) shall be filed within a period of
forty-five days from the date of receipt of the order appealed against and it
shall be in such form and manner and shall be accompanied by such fee as may be
prescribed:
Provided
that the Securities Appellate Tribunal may entertain an appeal after the expiry
of the said period, if it is satisfied that there was sufficient cause for not
preferring the appeal within that period.
(3)
On receipt of an appeal under sub-section (1), the Securities Appellate
Tribunal
may, after
giving the parties to the appeal, an opportunity of being heard, pass such
orders thereon as it thinks fit, confirming, modifying or setting aside the
order appealed against.
(4)
The Securities Appellate Tribunal shall send a copy of every order made by it
to the Authority, the parties to the appeal and to the adjudicating officers
concerned.
(5)
The appeal filed before the Securities Appellate Tribunal under sub-section (1)
shall be dealt with by it as expeditiously as possible and endeavour shall be
made by it to dispose of the appeal finally within six months from the date on
which the appeal is presented to it.
(6)
Without prejudice to the provisions of sections 15T and 15U of the Securities
and Exchange Board of India Act, 1992, the Securities Appellate Tribunal shall
deal with an appeal under this section in accordance with such procedure as may
be prescribed.
37. No civil court shall have jurisdiction to entertain any
suit or proceeding in respect of any matter which an adjudicating officer
appointed under this Act or a Securities Appellate Tribunal is empowered by or
under this Act to determine and no injunction shall be
granted by
any court or other authority in respect of any action taken or to be taken in pursuance
of any power conferred by or under this Act.
38. Any person aggrieved by any decision or order of the
Securities Appellate Tribunal under this Act may file an appeal to the Supreme
Court within sixty days from the date of communication of the decision or order
of the Securities Appellate Tribunal to him on any question of law arising out
of such order: Provided that the Supreme Court may, if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal within the
said period, allow it to be filed within a further period not exceeding sixty
days.
CHAPTER IX
FINANCE,
ACCOUNT AND ADUIT
39. The Central Government may, after due appropriation made by Parliament
by law in this behalf, make to the Authority grants of such sums of money as
that Government may think fit for being utilised for the purposes of this Act.
40. (1) There shall be constituted a fund to be
called the Pension Regulatory and Development Fund and there shall be credited
thereto–
(a) all
Government grants, fees and charges received by the Authority;
Civil Court not
to have jurisdiction. Grants by Central
Government. Constitution
of Pension Regulatory and Development Fund.
Cognizance
of offences by court.
Appeal to Securities
AppellateTribunal. 15 of 1992.
Appeal to Supreme
Court.
(b) all sums received by the
Authority from such other source as may be decided upon by the Central
Government.
(2) The Fund shall be applied for
meeting—
(a) the
salaries, allowances and other remuneration of the Chairperson and other
members and officers and other employees of the Authority;
(b) other
expenses of the Authority in connection with the discharge of its functions and
for the purposes of this Act.
41. (1) The Authority shall establish
a fund to be called the Subscriber Education and Protection Fund.
(2) There shall be credited to
the Subscriber Education and Protection Fund the following amounts, namely:—
(a) grants and donations given to
the Subscriber Education and Protection Fund by the Central Government, State
Governments, companies or any other institutions for the purposes of the
Subscriber Education and Protection Fund;
(b) the interest or other income
received out of the investments made from the Subscriber Education and
Protection Fund;
(c) the sums realised by way of
penalties by the Authority under section 28.
(3) The Subscriber Education and
Protection Fund shall be administered and utilised by the Authority for
protection of the interests of subscribers in accordance
with regulations made for the purpose.
42. (1) The Authority shall maintain proper accounts
and other relevant records and prepare an annual statement of accounts in such
form as may be prescribed by the Central
Government
in consultation with the Comptroller and Auditor-General of India.
(2)
The accounts of the Authority shall be audited by the Comptroller and Auditor- General
of India at such intervals as may be specified by him and any expenditure
incurred in connection with such audit shall be payable by the Authority to the
Comptroller and Auditor-General.
(3)
The Comptroller and Auditor-General of India and any other person appointed by him
in connection with the audit of the accounts of the Authority shall have the
same rights, privileges and authority in connection with such audit as the
Comptroller and Auditor- General generally has in connection with the audit of
the Government accounts and, in particular, shall have the right to demand the
production of books, accounts, connected vouchers and other documents and
papers and to inspect any of the offices of the Authority.
(4)
The accounts of the Authority as certified by the Comptroller and
Auditor-General of India or any other person appointed by him in this behalf,
together with the audit-report thereon, shall be forwarded annually to the Central
Government and that Government shall cause the same to be laid before each
House of Parliament.
CHAPTER X
MISCELLANEOUS
43. (1) Without prejudice to the foregoing provisions
of this Act, the Authority shall, in exercise of its powers or the performance
of its functions under this Act, be bound by such directions on questions of
policy, other than those relating to technical and administrative matters, as
the Central Government may give, in writing to it, from time to time: Provided that the Authority shall, as far as
practicable, be given an opportunity to express its views before any direction
is given under this sub-section.
(2)
The decision of the Central Government, whether a question is one of policy or
not, shall be final.
Constitution
of Subscriber Education and Protection
Fund.
Accounts and
audit. Power of Central Government to issue directions.
44. (1) If at any time the Central Government is of
the opinion that—
(a)
on account of circumstances beyond the control of the Authority, it is unable to
discharge the functions or perform the duties imposed on it by or under the
provisions of this Act; or
(b)
the Authority has persistently defaulted in complying with any direction issued
by the Central Government that the Central Government is entitled to issue under
this Act or in the discharge of the functions or performance of the duties imposed
on it by or under the provisions of this Act and as a result of such default
the financial position of the Authority or the administration of the Authority
has
deteriorated;
or
(c)
circumstances exist which render it necessary in the public interest so to do, the
Central Government may, by notification and for reasons to be specified
therein,
supersede
the Authority for such period, not exceeding six months, as may be specified in
the notification:
Provided
that before issuing any such notification, the Central Government shall give a
reasonable opportunity to the Authority to make representations against the
proposed supersession and shall consider the representations, if any, of the
Authority.
(2)
Upon the publication of a notification under sub-section (1) superseding
the Authority,—
(a)
the Chairperson and other members shall, as from the date of supersession, vacate
their offices as such;
(b)
all the powers, functions and duties which may, by or under the provisions of
this Act, be exercised or discharged by or on behalf of the Authority shall,
until
the
Authority is reconstituted under sub-section (3), be exercised and
discharged by the Central Government; and
(c)
all properties owned or controlled by the Authority shall, until the Authority is
reconstituted under sub-section (3), vest in the Central Government.
(3)
On or before the expiration of the period of supersession specified in the notification
issued under sub-section (1), the Central Government shall reconstitute
the Authority.
(4)
The Central Government shall, as soon as may be, cause a copy of the
notification issued under sub-section (1) and a full report of any
action taken by it, to be laid before each House of Parliament.
45. (1) The Authority may, by notification, establish
with effect from such date as it may specify in the notification, a Committee
to be known as the Pension Advisory
Committee.
(2)
The Pension Advisory Committee shall consist of not more than twenty-five members,
excluding ex officio members, to represent the interests of employees’
associations, subscribers, commerce and industry, intermediaries, and
organisations engaged in pension research.
(3)
The Chairperson and the members of the Authority shall be the ex officio Chairperson
and ex officio members of the Pension Advisory Committee.
(4)
The objects of the Pension Advisory Committee shall be to advise the Authority
on matters relating to the making of the regulations under section 52.
(5)
Without prejudice to the provisions of sub-section (4), the Pension
Advisory Committee may advise the Authority on such matters as may be referred
to it by the
Authority
and also on such matters as the Committee may deem fit.
46. (1) The Authority shall furnish to the Central
Government at such time and in such form and manner as may be prescribed, or as
the Central Government may direct to furnish such returns, statements and other
particulars in regard to any proposed or existing programme for the promotion
and development of the pension industry as the Central Government may, from
time to time, require.
Power of Central
Government to supersede Authority.
Establishment
of Pension Advisory Committee.
Furnishing
of returns, etc., to Central Government.
(2) Without prejudice to the provisions
of sub-section (1), the Authority shall, within nine months after the
close of each financial year, submit to the Central Government a
report giving
a true and full account of its activities including the activities for
promotion and development of schemes of pension funds regulated under this Act
during the previous financial year.
(3)
Copies of the reports received under sub-section (2) shall be laid, as
soon as may be, after they are received, before each House of Parliament.
47. The Chairperson and other members and officers and other
employees of the Authority shall be deemed, when acting or purporting to act in
pursuance of any of the
provisions
of this Act, to be public servants within the meaning of section 21 of the
Indian Penal Code.
48. No suit, prosecution or other legal proceedings shall lie
against the Central Government or the Authority or any officer of Central
Government or any member, officer or other employees of the Authority for
anything which is in good faith done or intended to be done under this Act or
the rules or regulations made thereunder.
49. (1) The Authority may, by general or special order
in writing, delegate to any member, officer of the Authority or any other
person subject to such conditions, if any, as
may be
specified in the order, such of its powers and functions under this Act (except
the powers under section 52) as it may deem necessary.
(2)
The Authority may, by a general or special order in writing, also form
committees of the members and delegate to them the powers and functions of the
Authority as may be specified by the regulations.
50. (1) Where an offence under this Act has been committed
by a company, every person who at the time the offence was committed was in
charge of, and was responsible to, the company for the conduct of the business
of the company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly:
Provided
that nothing contained in this sub-section shall render any such person liable
to any punishment provided in this Act if he proves that the offence was
committed
without his
knowledge or that he has exercised all due diligence to prevent the commission of
such offence.
(2)
Notwithstanding anything contained in sub-section (1), where any offence
under this Act has been committed by a company and it is proved that the
offence has been
committed
with the consent or connivance of, or is attributable to, any neglect on the
part of any director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be deemed to be guilty
of the offence and shall be liable
to be proceeded
against and punished accordingly.
Explanation.—For the purposes of this section,—
(a)
“company” means any body corporate and includes a firm or other association of
individuals; and
(b)
“director”, in relation to a firm, means a partner in the firm.
51. (1) The Central Government may, by notification,
make rules for carrying out the provisions of this Act.
(2)
In particular and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:—
(a)
the salary and allowances payable to and the other conditions of service of the
Chairperson and whole-time members under sub-section (3) of section 5;
Members, officers
and employees of Authority to be public servants.
Protection
of action taken in good faith.
Delegation
of powers. Offences by companies.
Power to
make rules.
(b) the allowances payable to part-time
members under sub-section (4) of section 5;
(c)
the additional functions which may be performed by the Authority under clause (p)
of sub-section (2) of section 14;
(d)
any other matter in respect of which the Authority may exercise the powers of a
civil court under clause (v) of sub-section (3) of section 14;
(e)
the procedure to be followed by the authorised officer under sub-section
(10)
of section 17;
(f)
the form and manner in which an appeal may be filed before the Securities Appellate
Tribunal and the fee which shall accompany such appeal, under sub-section
(2)
of section 36;
(g)
the procedure to be followed by the Securities Appellate Tribunal in dealing with
an appeal, under sub-section (6) of section 36;
(h)
the form in which annual statement of accounts shall be maintained by the Authority
under sub-section (1) of section 42;
(i)
the time within which and the form and manner in which returns and reports are
to be made by the Authority to the Central Government under sub-section (1)
of
section 46;
(j)
any other matter which is to be, or may be, prescribed, or in respect of which
provision is to be made, by rules.
52. (1) The Authority may, by notification, make
regulations consistent with this Act and the rules made thereunder for carrying
out the provisions of this Act.
(2)
In particular, and without prejudice to the generality of the foregoing power, such
regulations may provide for all or any of the following matters, namely:—
(a)
the time and places of meetings of the Authority and the procedure to be followed
at such meetings (including the quorum at such meetings) under sub-section
(1)
of section 9;
(b)
the terms and other conditions of service of the officers and other employees
of the Authority under sub-section (2) of section 11;
(c)
the regulations to be made by the Authority in respect of pension schemes referred
to in clause (b) of sub-section (1) of section 12 and the time
within which such schemes should conform to the regulations, made under
sub-section (2) of that section;
(d)
the establishing of mechanisms for redressing grievances of subscribers under
clause (f) of sub-section (2) of section 14;
(e)
the form and manner in which books of account shall be maintained and statement
of accounts shall be rendered by intermediaries under clause (n) of sub-section
(2) of section 14;
(f)
amendment to the National Pension System referred to in sub-section (1) of
section 20;
(g)
the conditions of its purpose, frequency and limits for withdrawals from individual
pension account referred to in clause (b) of sub-section (2) of
section 20;
(h)
the conditions subject to which the subscriber shall exit from the National Pension
System referred to in clause (h) of sub-section (2) of section
20;
(i)
the conditions subject to which the subscriber shall purchase an annuity referred
to in clause (i) of sub-section (2) of section 20;
(j)
the duties and functions of central recordkeeping agency under sub-section (2)
of section 21;
(k)
the determination of compensation of fair value of the regulated assets payable
to central recordkeeping agency under proviso to sub-section (3) of
section 21;
(l)
the manner of receiving contributions and instructions and transmitting them to
the Trustee Bank or central recordkeeping agency, as the case may be, and Power
to
Make regulations.
paying out
the benefits to the subscribers, under sub-section (1), and the
regulations governing functioning of points of presence under sub-section (2)
of section 22;
(m)
the manner in which a pension fund may receive contributions, accumulate them
and make payments to the subscriber under sub-section (1), the number of
pension
funds under sub-section (2), the functioning of the pension fund under
subsection
(3),
and the manner of managing the schemes by the pension fund under subsection
(4)
of section 23; (n) the form and manner in which an application for grant
of certificate of registration shall be made and the fee which shall accompany
such application under sub-section (2) of section 27;
(o)
the conditions subject to which a certificate of registration may be granted to
an intermediary under sub-section (3) of section 27;
(p)
the procedure and manner of suspension or cancellation of certificate of registration
of intermediaries under sub-section (4) of section 27;
(q)
the procedure for holding inquiry by an adjudicating officer under subsection
(1)
of section 30;
(r)
the supersession of the governing board or Board of directors of the intermediary
under sub-section (2) of section 31;
(s)
the management of affairs of the intermediary by an Administrator under sub-section
(3) of section 31;
(t)
the manner of administering and utilising the Subscriber Education and Protection
Fund under sub-section (3) of section 41;
(u)
the delegation of powers and functions of the Authority to committees under
sub-section (2) of section 49;
(v)
establishment, duties and functioning of the National Pension System Trust;
(w)
any other matter which is required to be or may be specified by regulations or
in respect of which provision is to be or may be made by regulations.
53. Every rule and every regulation made under this Act shall
be laid, as soon as may be after it is made, before each House of Parliament,
while it is in session, for a total
period of
thirty days which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the session or
the successive sessions aforesaid, both Houses agree in making any modification
in the rule or regulation or both Houses agree that the rule or regulation
should not be made, the rule or regulation shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity
of anything previously done under that rule or regulation.
54. (1) If any difficulty arises in giving effect to
the provisions of this Act, the Central Government may, by order, published in
the Official Gazette, make such provisions not inconsistent with the provisions
of this Act as may appear it to be necessary for removing
the
difficulty: Provided that no order shall be made under this section after the
expiry of five years from the commencement of this Act.
(2)
Every order made under this section shall be laid, as soon as may be after it
is made, before each House of Parliament.
55. The provisions of this Act shall be in addition to and
not in derogation of the
provisions
of any other law for the time being in force.
56. Anything done or any action taken by the Interim Pension
Fund Regulatory and Development Authority and Central Government under the
Resolutions of the Government of India in the Ministry of Finance number F. No.
5/7/2003-ECB&PR, dated the 10th October, 2003 and
F.No.1(6)2007-PR, dated the 14th November, 2008 and notification number F. No.
5/7/2003-ECB & PR, dated the 22nd December, 2003, shall be deemed to have
been done or taken under the corresponding provisions of this Act.
Power to remove
difficulties. Rules and regulations to
be laid
before Parliament. Application of other laws not
barred.
Savings.
LOK SABHA
————
A BILL
to provide
for the establishment of an Authority to promote old age income security by establishing,
developing and regulating pension funds, to protect the interests of subscribers
to schemes of pension funds and for matters connected therewith or incidental
thereto.
————
(As
passed by Lok Sabha)
GMGIPMRND—2541LS(S3)—04-09-2013.
No comments:
Post a Comment