This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to recognize the higher option submitted by complainant on the basis of his pensionable salary `10,000 with `25,000 as compensation and cost.

          The complainant’s case is that he is  the Managing Partner of M/s. Security and Personal service, South Bazar, Kannur and is a subscriber of EPF having NO.KR.11606/1 and paying  contribution from 1989 onwards to the  tune of `6000 as monthly salary.From1996 the contribution was increased to `6500 monthly salary and  continued up to 30.4.09. On 30.4.09 the complainant resigned from his job and went abroad. He applied for the release of his provident fund and at that time complainant realized that the option tendered by the complainant was not recognized by the opposite party. The complainant rejoined in his earlier service on 01.08.09 and the opposite party informed that EPF  service from 1.11.89 to 30.04.09 of the complainant with respect to  his old account No.KR/11606/1 was transferred to his new account No.11606/53 and at that time the wages of the complaint was `6500 per month. After rejoining the complainant is drawing a salary of `10,000 per month. So the complainant put an application before the opposite party for higher option, requesting them to consider his pensionable salary on the basis of `10,000.Earlier the complainant  exercised his option based on the monthly salary and now the complainant’s request is to increase his pensonalble salary on the basis of his present monthly salary of `10,000 . But the opposite party rejected by stating that the EPS wages of the complainant was already fixed restricting the wages to `6,500.The opposite party cannot take such a stand as the complainant is now drawing a monthly salary of `10,000 per month. According to the complainant the refusal of his application for higher option by the opposite party is not legal and which amounts to deficiency of service. The complainant has every right to offer higher option of the basis of his monthly salary as the complainant is drawing a monthly salary of `10,000 at present. Due to the act of opposite party the complainant sustained much mental pain and agony and hence this complaint.

          In pursuance to the notice issued by the Forum 1^st opposite party appeared and filed their version admitting that the complainant’s establishment is under EPF 1952 from 31.8.89 and a member of the pension scheme from 31.08.89. The complainant has no consistant case as regards his designation. The complainant has shown different designation as Director, Chief Security Officer and Proprietor. The salary of the complainant exceeded `6500 during September 2003 ad contribution towards Employees Pension fund was restricted to `6500 due to non-receipt of option to contribution on salary exceeding  `6500 which was received by the opposite party only on  20.06.2007.Since the complainant and employer was not executed the option to contribute on salary exceeding `6500 on the month itself in which salary of the complainant exceeded `6,500 p/m. Complainant’s request to contribute  on salary exceeding `6500 was rejected and excess contribution received in pension fund was  transferred to provident fund.

          The complainant had submitted Form – 10 received in the office of opposite party on 24.06.09 in which complainant had put his signature in the capacity of chief Security Officer and in the letter dt.14.06.09 complainant had designated as Chief Security Officer and Director. Complainant is liable to give explanation to from which post he tendered his resignation. Nature of the establishment also cannot be identified whether it is proprietorship or partnership. All these shows that complainant had not actually resigned from the establishment but he communicated  to this office as resigned for the purpose of availing full amount from the  Provident Fund account, where as he still continues in the establishment.

          On submission of application for final settlement showing date of leaving service as 30.04.04 complainant’s provident fund account was finally settled on 09.07.09. But instead of submitting application for scheme certificate along with the application for provident fund settlement, complainant submitted application after joining the establishment on 01.08.09.As per Para 6A of Employees Pension Scheme 95 complainant continuous to be a member of Employees Pension Scheme’95 till he attains the age of 58 or from the date of vesting admissible benefit under Employees Pension Scheme ‘95. Hence complainant had continues service under Employees Pension Scheme 95 from the date of final joining  in the establishment  as 31.08.09 and still continuing the said membership treating the period from 01.05.09 to 31.07.09 as non contributory period.

          From the month of August 2009 to November 2009 complainant had drawn monthly salary of `6,000 only and from 12/2009 onwards complainant’s salary increased to `10,000.  Complainant had submitted option to contribution on wages exceeding `6500 during December 2009 itself. But option could not be accepted since the opposite party had rejected complainant’s option  way back itself on the ground that service under Employees Pension Scheme 1995 is a continuous process and only on either attaining the  age of 58 years on vesting the admissible benefits which ever is earliest, pension fund membership will be  seized.

          As per Para II (3) the maximum penionable salary shall be limited to `6500 per month. Provided that if at the option of the employer and employee, contribution paid on salary exceeding `6500 per month from the date of commencement of this scheme or from the date of salary exceeds `6500 whichever is later and 8.33 to share of the employee thereof is remitted into the pension fund, Pensionbale salary shall be based on such higher salary. On a plain reading of the above, it becomes crystal clear that if both employer as well as employee submitted in writing their willingness to contribute towards the pension fund on salary exceeding `6500 and only on accepting their willingness by this opposite party, contribution towards pension fund can be made on salary  exceeding `6,500. The opposite party has rightly rejected the option submitted on 10.12.09 by complainant since service under Employees Pension Scheme 1995 is continuous one and option to contribute as wages exceeding `6500 p.m has already been rejected by the opposite party during June 2007 itself. Except the complainant and Smt.Ambika, complainant’s wife none of the employee had even drawn more than `2000 per month. The complainant is diverting the profit as his salary and salary of Ambika and paying towards the respective provident fund for the purpose of escaping from income tax etc. If the complainant is allowed to contribute  wages exceeding `6500 as their discretion and pensionary benefits rate disbursed on higher salary in the absence of corresponding contribution from the central Government future of  employees Pension Fund  will be in great danger. As per Para 41 of employees Pension Scheme, 1995 central govt. is empowered to issue clarifications were any doubts arises in interpretation of any provisions. So the complaint is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

       1. Whether there is any deficiency on the side of opposite

           party?

         2. Whether the complainant is entitled to get any relief as

              prayed in  the complaint?

        3.   Relief and cost.

                    The evidence consists of the oral testimony of PW1, DW1 and Exts.A1, A2 and B1 to B 5.

Issue No.1 to 3

          The complainant’s case is that he was a member of EPF pension from 1989 up to 30.04.09 and paying contribution and during1996 his salary was increased to the limit of `6500 on 30.04.09 he resigned and received the PF contribution on 01.08.09 he rejoined and is drawing a salary of `10,000 and hence filed an application to consider pensionblae salary `10,000. But the option was rejected. But the complainant was entitled to get higher option on the basis of monthly salary of `10,000. In order to prove his case he was examined as PW1 and produced documents such as letter dt. 01.02.2010 by Assistant Provident Fund Commissioner, Kannur and copy of option dt. 31.08.10 issued by the complainant to opposite party. In order to disprove the case the opposite party also examined DW1 and produced documents such as application given by the complainant to opposite party, option  by Ambika, returns, statement of contribution from April 2007 to 2008, 2008 to 2009, 2009 to 2010, submission of chalans, option of Ambika etc. According to opposite party the reason for rejecting the option on higher salary is due to belated option and also due to different status shown by the complainant. According to complainant he had rejoined on 01.08.09 and his salary was increased after rejoining and hence submitted Ext.A2 option before the opposite party. The opposite party admits that the complainant had continuous service under Employees Pension Scheme 1995 from the date of initial joining in the establishment on 31.08.89 and still continuing the said membership.

          The opposite party contended that due to non-receipt of option within time, the contribution from the Central Government will not be received and hence the opposite party was not in a position to pay the pension. But  section 3 (2) states that “the Central government shall also contribute at the rate of 1.16% of the pay of the members of the Employees Pension Scheme and credit the contribution to the employees pension fund provided that where the pay of the member exceeds `6500 per month the contribution payable by the employer and the Central government be limited to the amount payable in his pay of `6,500 only. So the above contention is not sustainable. So as far as the higher option is considered the central government contribution and employer’s contribution is   limited to `6,500 only. More over Ext.A2 is the option for higher option. So the contention of opposite party is not sustainable. Hence there is deficiency of service on the part of the opposite parties and hence they are liable to recognize option on the basis of higher salary of `10,000.The complainant is also entitled to get `2,000 as cost of this proceedings and order passed accordingly

In the result, the complaint is allowed directing the opposite party to recognize the higher option dt. 31.08.2010 submitted by the complainant on the basis of pensionable salary as `10,000 per month with `2,000  (Rupees Two thousand only) as cost of the proceedings  to the complainant  within  one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of consumer protection Act.

                   Sd/-                         Sd/-

                        President                     Member      

APPENDIX

Exhibits for the complainant

A1.Letter dt.10.02.2010 sent by OP.

A2.Copy of the letter dt.31.08.10 sent to OP

Exhibits for the opposite party:

B1.Copy of the letter dt.14.6.09 sent to OP

B2 & B3.Pension scheme with statements

B4.Copy of the letter dt.21.9.09 issued by complainant

B5. Copy of the option submitted by complainant dt.20.06.2007

Witness examined for the complainant

PW1. Complainant

Witness examined for the opposite parties:

DW1. M.Valsala

                                                          /forwarded by order/

                                                          Senior Superintendent

Consumer disputes Redressal Forum, Kannur.