PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                             CONSUMER COMPLAINT NO.63/2022

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Smt. Madhuri Ranjan Sahu,

W/O- Sri Prafulla Kumar Sahu,

At-Shankar Nagar, PO-Budharaja,

Dist-Sambalpur-768004.                                                         ...………..Complainant

Versus

1. The Regional Provident Fund Commissioner,

SRO, Bhavishyanidhi Bhawan,

Panposh Road, Rourkela-769004.

2. Sri. Avijit Guha, Aged About 65 years,

S/o-Amerendra Nath Guha,

Proprietor, M/S A.N.Guha & Co.

At-Nayapara, PO/Dist-Sambalpur-768001.        

3. Post Master General

At/PO/Dist-Sambalpur-768001                                     …………...Opp.Parties

Counsels:-

1. For the Complainants                  :-         Sri. R.N. Debta & Associates
2. For the O.P. No.1                                     :-         Sri. B.N. Padhiary
3. For the O.P. No.2                                    :-         Self
4. For the O.P. no.3                         :          Sri. A.K. Senapati, G.P.

Date of Filing:29.08.2023,Date of Hearing :18.09.2023, Date of Judgement : 30.10.2023

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainant is that the Complainant was working under O.P. No.2 as a Bidi worker and resigned on 01.01.2005. The Complainant is having E.P.F. A/C No.OR/RKL/774/113 with O.P. No.1 and member of E.P.F. pension scheme w.e.f. 16.11.1995 to 01.01.2005 and entitled to get reduced pension after completion of age 50 years. Since 05.06.2016 the Complainant is entitled for reduced pension. The O.P. No.1 issued scheme certificate No. OR/RKL/5777 dated 31.03.2009 in favour of complainant qualifying her monthly reduced pension of Rs. 946/- During September, 2019 the Complainant approached the O.P. no.2 with all relevant papers for transmission to O.P. No.1 after verification and signature.

The O.P. no.2 refused to comply. The Complainant vide letter No.11.11.2019 submitted all required documents to O.P. No.1 by registered post. The O.P. No.1 remained silent. The Complainant issued advocate registered notice dated 08.08.2022 to the O.Ps. O.P. No.1 received the notice on 11.08.2022 but not replied. In an evasive way O.P. no.2 replied to submit relevant papers for counter signature although on 11.11.2019 documents were submitted.

The O.P. No.2 has not yet paid the unpaid wages as per order dated 11.03.2011 in Misc. Case No. 22/2007 of the P.O. Labour Court, Sambalpur for which Ex.petition 34/2013 is pending in the court of C.J. (S.D), Sambalpur. P.G. Case No. 4/2007 is also sub-judiced.

Husband of the Complainant was also working under O.P. No.2 who resigned on 01.01.2005 and in C.C. No. 86/2011 dated 06.10.2016 order was passed.

O.P. No.1 communicated letter No. 1241(2) dated 06.09.2022 and alleged that ‘D’ form along with the scheme certificate had been sent to Complainant on registered post on 24.12.2019. The Complainant never received the documents nor annexure-1,18 pages form and documents received back from O.P. No.1.

The Complainant vide letter dated 25.11.2022 addressed to O.P. No.3 made quarry about registered letter with copy to O.P. No.1. The O.P. No.3 directed Suptd. Of Posts, Sambalpur to enquire and intimate. The Suptd. of posts, Sambalpur falsely communicated to the Complainant that preservation period has been lapsed, without conveying date of destruction of records. For non-delivery of said letter the Complainant debarred to get her pension. The O.Ps are deficient in their service.

2. The O.P. No.1 submitted that as per para 12(6) of the E.P.F. Scheme 1995 a member, in case of his/her desire exercises option for the reduced pension by submitting claim form. The Complainant not submitted claim form. The claim of Rs. 946/- reduced pension per month is not correct. “Pensionable Salary” of the Complainant is Rs. 946/- P.M. The pension claim/application made in form 10D was received by O.P. no.1 and returned the Complainant vide letter No. 1188 dated 20.12.2019. On 24.12.2019 speed post booking receipt is filed. Letter dated 11.11.2019 of the Complainant with form 10D is a handi work of the Complainant vide letter dated 20.12.2019 the Complainant was informed about the anomalies in form 10D and advised to resubmit but the Complainant failed to do so. Notice dated 08.08.2022 of the Complainant has been received letter dated 11.11.2019 of the Complainant not received. Against advocate notice letter No. 1241 dated 06.09.2022 was sent to the advocate.

Case of the husband of the Complainant is different than the Complainant. The Complainant sent claim form 10D directly without any forwarding letter or letter dated 11.11.2019 without counter signature of the O.P. No2. But under all attestation of a medical officer D.Hq Hospital, Sambalpur. As per para17.A- payment of pension the form submitted was not complete in all respects. The form was not attested by employer. The O.P. No.1 is not deficient in its service and petition is liable to be rejected.

3. The O.P. No.2 employer submitted that the Complainant is not an employee of the O.P. No.2 which is decided in C.C. No. 175/2008 and 176/2008 of this forum on 08.08.2012. As per reduced pension scheme the employee is to put his/her signature/L.T.I. in presence of employer and attestation is required. The O.P. No.2 is not a service provider of the Complainant and deficiency in service does not arise. Reply to the advocate notice has been given. Conduct of the Complainant is fraudulent and no locus standi to approach the forum. The complaint is liable to dismissed.
4. The O.P. No.3 in reply submitted that as against registered letter No. CO056530106IN dated 24.12.2019 sent by EPFO, Rourkela to Complainant enquiry was made and suitable reply has been given. Delivery slip is not available in Budharaja post office as the period of preservation is 1.1/2 years as per Postal Manual Volume ‘V’. Accordingly letter No. CR/CPG-Misc/2022-23 dated 13.12.2022 was issued.

The Complainant neither bought any goods nor hired service from O.P. No.3 and accordingly, can not be termed as a ‘Consumer’ and allege deficiency in service. The O.P. No.3 need to be excluded from the case.

5. The Complainant filed the following documents:

1. Letter No. 11.11.2019 along with enclosures submitted to O.P. No.1.
2. Advocate notice dated 08.08.2022.
3. Reply of O.P. No.2 dated 20.08.2022
4. Advocate notice dated 17.11.2016.

The O.P. No.1 filed the following documents:

1. Return of form 19 vide letter No. 774/113/1188 dated 20.12.2019 with postal registration receipt.
2. Reply to advocate notice dated 08.08.2022 for resubmission of the form 19.
3. Reply of O.P. No.2 to advocate notice dated 08.08.2022.
4. Letter No. 1188 dated 20.12.2019 of APFCC(GA-II)
5. Postal receipt dated 24.12.2019
6. Reply notice to Sri. P. Debta dated 06.09.2022
7. Tracking report of letter to Sri. P. Debta dated 08.09.2022
8. Reply notice dated 06.09.2022 to Complainant.
9. Postal tracking report of M.R. Sahu dated 08.09.2022
10. Reply notice of Mr. A.Gupta dated 20.08.2022

The O.P. No.2 filed following documents:

11. Copy of order in C.C. No. 175/2008 and 176/2008 dated 08.08.2012
12. Memo in Ex. Case No. 34/2013(Arising out of I.D. Misc Case No. 22/2007.
13. Bank Statement.

The O.P. No.3 filed following documents:

14. Notice dated 25.11.2022 of Complainant.
15. Letter to Suptd. Posts dated 05.12.2022
16. Reply of Suptd of Posts dated 13.12.2022
17. Period of preservation of records.

6. Basing on the statement of the parties and documents filed the following issues are framed:
103606587.  

1. Whether the Complainant is a consumer of the O.Ps and the Complainant is not maintainable before this Commission?
2. In view of decision in C.C. No. 175/2008 and 176/2008 of this Commission whether this case is not maintainable and the Complainant has no locus standi to file the case.
3. Whether non-payment of reduced pension to the Complainant amounts to deficiency in service on the part of O.P. No.1 & 2?
4. What relief the Complainant is entitled to get?

Issue No.1 : Whether the Complainant is a consumer of the O.Ps and the Complainant is not maintainable before this Commission?

In C.C. Case No. 175/2008 and 176/2008 dated 08.08.2012, this Forum made observation and dismissed the cases on the ground that the O.Ps are not deficient in their service, paid the accumulated provident fund and scheme certificate. From record it reveals that there was enimical term between the employer, O.P.No.2 and the employee/Complainant. For recovery of dues I.D. Misc. Case No. 22/2007 was preferred before the Presiding officer, Labour Court, Sambalpur. After order also the employer failed to pay the award amount. In Execution case No. 34/2013 of the court of C.J. (S.D), Sambalpur the amount was paid by the employer, which is admitted by both the parties.

This is a Complaint claiming the reduced pension. Admittedly the Complainant was working under the O.P. no.2 having P.F. A/C No. OR/RKL/774/113 under O.P. No.1. The Complainant is a member of the E.P.F. pension scheme w.e.f.  16.11.1995 to 01.01.2005 and after completion of 50 years she is entitled to reduced pension as her date of birth is 05.05.1966 recorded by the O.Ps. The O.P. No.1 & 2 also not denied this aspect.

The labour legislations are welfare legislations and especially the E.P.F. is a contribution of the employee for his/her family in future. The relation between the Complainant and O.P. no.2 is master-Servant. In the decision AIR 2008 SC-2957 at page 2960(para-20), it was held by their lordship that the person responsible for working of pension scheme is service given within the meaning of consumer protection Act, 1986 and the employee is a consumer within the meaning of Sec. 2(1) d (ii) of th e Act, 1986. Accordingly the issue is answered in favour of the Complainant. The case is maintainable before this Commission.

Issue No.2 In view of decision in C.C. No. 175/2008 and 176/2008 of this Commission whether this case is not maintainable and the Complainant has no locus standi to file the case.

E.P.F. pension scheme is covered under the Consumer Protection Act, 2019 as master-servant relationship exist between the Complainant and O.P. No.2 and decision in C.C. Case No. 175/2008 and 176/2008 is not applicable in this case. Complainant has contributed to-wards the pension scheme and entitlement is not denied by the O.Ps. Accordingly, the Complainant has locus standi to file the Complainant and case is maintainable.

Issue No.3 Whether non-payment of reduced pension to the Complainant amounts to deficiency in service on the part of O.P. No.1 & 2?

It is the admission of the parties that the Complainant is a member of E.P.F. pension scheme w.e.f. 16.11.1995 to 01.01.2005. After completion of 50 years the Complainant is entitled to reduced pension. The Complainant claimed Rs. 946/- P.M. reduced pension whereas the O.P. No.1 submitted that Rs. 946/- was pensionable salary of the Complainant and the procedure of claim was explained. Date of birth of the Complainant as 05.05.1966 is not denied. Accordingly, the Complainant is entitled for the reduced pension after 05.05.2016 is established.

The second point of consideration is that when the Complainant is entitled for reduced pension after 05.05.2016 on which date it is applied to the O.P. No.1 for payment of reduced pension. As per submission of O.P. No.1 pension claim to be made in prescribed form-D. The O.P. no.1 received the form and returned to the Complainant vide letter No. 1188 dated 20.12.2019. Vide regd. letter No. C00565301063 IN dated 24.12.2019. No any acknowledgement receipt has been filed. The Complainant remained silent till 08.08.2022 and thereafter issued advocate notice through Sri. Pritish Debta. Thereafter the O.P. no.2 issued letter dated 20.08.2022 to the Complainant’s advocate. The O.P. No.1 has given a reply vide letter No. 1241 dated 06.09.2022 and stated that the claim form 10D has been returned vide letter No. 1188 dated 20.12.2019. From the aforesaid facts and circumstances it reveals that the Complainant is very irregular in claim. A question arises after completion of 50 years on 05.05.2016 why immediately thereafter claim was not made. Further it is the admission of Complainant that on 11.11.2019 form 10D including documents were sent to O.P. No.1. After return of documents by O.P. No.1 the Complainant through Advocate Pritish Debta demanded the reduced pension. Here also another question arises from 11.11.2019 till 08.08.2022 why the Complainant remained silent. To save skin the Complainant has taken the plea that the returned post of O.P. No.1 has not been received. To create new cause of action a notice was issued to the O.P. No.3 dated 25.11.2022 and subsequent correspondences of O.P. No.3. It is neverless to mention that the Complainant alleged the non-receipt of letter dated 1188 dated 20.12.2019 of O.P. No.1 and dragged the O.P. No.3 to this Commission. The O.P. No.1 paid the registration charges to O.P. No.3, but the Complainant dragged the O.P. No.3 to this Commission. In the instant circumstances the Complainant is not a consumer of O.P. No.3 and accordingly not a necessary party.

The third point of consideration is that whether counter signature of the employer is necessary in form 10D? As per para-17 A payment if pension of EPS, 1995 the claim form should be complete in all respects along with requisites. The duty of O.P.No.1 is to intimate the beneficiary within 30 days from dat submittedclaim form. As the form 10D was not counter signed by the employer within the statutory period the form has been returned to the Complainant. There is no any deficiency on the part of the O.P. no.1. In the other hand due to enimical term with the O.P. no.2 the Complainant has not obtained counter signature and attested through Medical officer of Dist.Hqr. Hospital, Sambalpur. As the employer is present and it is statutory requirement to obtain counter signature in form 10D and the Complainant failed to do so. The O.Ps are not deficient in their service rather the Complainant failed to approach the employer, O.P. No.2

The issue is answered accordingly.

As discussed Supra the O.P. No.1 & 2 are not deficient in their service as in consonance with EPS-1995 the Complainant has not applied before the O.P. No.1.

Issue No. 4 What relief the Complainant is entitled to get?

As it reveals the Complainant intends to avail reduced pension as per EPS-1995, accordingly the Complainant has to maintain the requirements of the scheme. Taking into consideration the circumstances of the case following order is passed:

ORDER

                   The Complaint is partly allowed on contest against the O.P. No1. & 2 and dismissed against O.P. no.3. The Complainant is entitled to get reduced pension under EPS-1995 w.e.f. 05.05.2016. The O.P. no.1 & 2 are directed to settle and make arrangement of payment after proper calculation of the pensionable amount within one month of receipt of fresh application from the complainant with documents. In case of receipt of application admissible interest is to be paid w.e.f. 05.05.2016. No cost and compensation.

Order pronounced in the open court on this 30^th day of October, 2023.

Supply frees copies to the parties.