SRI.R. VIJAYAKUMAR, MEMBER.

            This is a complaint filed U/s. 12 of the Consumer Protection Act.

          The complainant’s case is that the 1^st opp.party illegally diverted Rs.41,545/- the full amount in the PF account to the Pension Fund account.

          The 1^st opp.party’s case is that they had diverted Rs. 41,545/- only as per the provisions in Paras 6 [d], 7[3] and 17[3] of EPS 1995 and sanctioned monthly pension at the rate of Rs.331/- per month with effect from 27.10.99 in addition to the commuted value of pension.

          The complainant filed affidavit

From the side of the complainant PW.1 examined.   Exts. P1 to P4 series marked.

From the side of the opp.parties, DW.1 examined.  Exts. D1 and D2 series marked.

Heard both sides.

The points that would arise for consideration are:

1.     Whether there is any deficiency in service from the part of opp.party?

2.     Compensation and cost.

Points 1 and 2

The complainant’s case is that she was a Cashew factory worker in the 2^nd opp.party’s factory and in completion of 60 years of age he was retired from service on 31.12.2005 .   There was a total amount of Rs.50770/-  in PF account as per the letter issued to her on 19.6.07 by the 1^st opp.party.   As she had been working in the opp.party factory for 35 years and she had been made as a member in the EPS 1995 .  But the 1^st opp.party illegally diverted Rs.41,545/- from her PF account to the EPS Scheme.   The other workers who were in service along with the complainant were repaid with more than 30,000/- rupees after deducting a nominal amount from the PF account.  But full amount from the complainant’s PF account was diverted to the  EPS scheme.  Hence the compliant filed  the complaint for getting back the excess amount diverted from the complainant’s PF account and for compensation along with  cost.

The 1^st opp.party’s case is that the complainant has not opted to join under Employees Family Pension Scheme 1971 and as such she had not contributed to the Family Pension Scheme 1971.   After the Employees Pension Scheme 1995 came into existence on 16.11..1995, the complainant opted to join in EPS 1995  with effect from 16.11.1995 and Employees Pension Fund 71 from 1.3.1971 by filing option Form in EPF Form 1 dated 15.6.2000 and became a member in  Employees Pension Scheme, 1995  as per provisions of Para 6 [d] and 7[3] of that scheme.  She had to remit the pension contributions with effect from 1.3.1971 with interest thereon as provided under para 17[3] of EPS 1995.   The balance amount of Rs.9177/- after diverting the pension fund contribution was paid to the complainant through SB account NO.10551882218 maintained by the complainant at SBI Kadavoor Branch.   The opp.party acted only in accordance with the provision of EPS 1995 and sanctioned monthly pension to the complainant at the rate of Rs.331/- with effect from 27.10.99.  As on 1.1.08 total pension paid  to the complainant is Rs. 33020/- in addition to the commuted value of pension Rs.18100/-.  The complainant has received more pension benefits than the amount diverted and also entitled to get monthly pension till her death.   The opp.party has diverted the required amount only to enable the complainant for getting monthly pension on the basis of the  written request of the complainant.

          It is an admitted fact that the complainant was a cashew factory worker in the Perinad Cashew Workers Industrial Co-operative Society No.Q 347 Chemmakkadu.P.O., Kollam. It is  also admitted that she had  joined in the Employees Provident Fund on 1.7.1963 as per A/c.No.KR/1303/459.

          According to the complainant, she was  enrolled as a member in Employees Provident Fund Scheme in 1963 itself and became a member to the statutory pension scheme started in the year 1971.  She had retired after 40 years service in the 2^nd opp.party company  But a meager amount was allowed to her as pension.   A huge amount was diverted to the EPS illegally and without the consent of the complainant

          According to the 1^st  opp.party the complainant was not a member of the Family Pension Scheme.  In order to make her eligible to get monthly family  pension under Employees Provident Fund Scheme 1995 past period contribution from 1.3.1971 to 16.11.1995 with interest is to be remitted.   For that purpose an amount of Rs.41545/- was diverted from her EPF account with her written consent .  If the amount was not diverted  she would not  be eligible for EPF pension.

The complainant produced Ext.P4 series, the statement of accounts for the year 1963-67 and 2002-2003 to substantiate that she was a member of 1971 scheme.   We have perused Ext.P4 series in detail.  Ext.P4 the statement of accounts clearly shows that the amounts were contributed to the Employees Provident Fund Scheme 1952.  In the statement of account of contribution for the year 2002-03, 2003-04 it is  also  clearly stated that no contribution to the pension scheme is included.  Hence Ext.P4 series cannot be considered as an authentic record to prove  that the complainant had periodically contributed to the 71 scheme.  Except Ext.P4 nothing was produced to show that the complainant was a  member in the 71 scheme and contributed to the said scheme.

          The learned counsel for the opp.party would argue that as the complainant was not a member in 1971 scheme, the complainant had given  consent for diversion of necessary amount from PF account  to enable her for getting pension as per the EPS 1995 . The opp.party produced Ext. D1 the letter given by the complainant on 20.1.2004 in which the complainant consented for this diversion.   The learned counsel for the complainant argued that Ext.D1  was prepared fraudulently by the 1^st opp.party.   The complainant is having primary education and she will never affix thumb impression in any document. 

It is admitted by the complainant while in cross examination that she had not opted 71 scheme.  It is also stated by  the complainant that she had not opted 95 scheme also.  She had totally denied that no letter was sent to her by the 1^st opp.party  demanding remittance of contribution from 1971 to 1995 and she had not given any consent letter to the 1^st opp.party.   She denied that Ext. D1 application was not given by her.   She had further stated that noththing was given by her to the 1^st opp.party in writing and the amount was diverted without her  consent.  But she had not denied that she is a recipient of monthly pension at the rate of Rs.331/- she had also admitted that balance amount Rs.9177/- was received through SBI Branch, Kadavoor.

          It is an admitted fact that the complainant joined in the PF account in the year 1963 vide A/c.No.KR/303/459 and contributed to the Fund.   But she remained as a non optee to the Employees Pension Scheme 1971 and Employees Pension Scheme until 15.6.2000.  For enabling an employee who has not opted the schemes to get pension, application and contribution along with interest for that period is inevitable.  If she had opted, her membership will come under para 6 [d] of Employees Pension Scheme.   On exercise of option the complainant will come under category specified in para 7[3] referred to Sub paragraph [d] of para 6, of the scheme.  As per para 17 [3] ‘members referred to in Sub paragraph [3] of paragraph 7  shall be deemed to have joined the ceased Employees Family Pension Scheme, 1971 with effect from 1.3.1971 on remittance of past period contribution with interest there on’.

          Here in this case, according to the 1^st opp.party Rs.41545/- was diverted for  enabling the complainant to get monthly pension on getting application for option and consent for diversion of a necessary amount from PF account.  On the other hand the complainant contented that he had not opted the scheme or had given consent for diversion of amount fom PF account.

          The fact that the complainant is receiving monthly pension was not denied.   An Employee who had not opted the scheme under 71, and 95 scheme can be made eligible to get the monthly pension only on payment of contribution.   The total denied of the complainant that he had not given application for option and consent for diversion lacks bonafides.  It is pertinent to note here that the balance amount  was received by the complainant in the month of June 2007 through  Bank without any protest.   Even though the complaint stated while in cross-examination that return of capital amounting Rs.18,100/- was not received by the complainant there is no accounts in the complaint regarding this aspect.

          Even though the learned counsel for the complainant argued that a meager amount was allotted to the complainant as monthly pension and as a service holder of 40 years the pension should be refixed , there is no averments in the complaint regarding this aspect also.  It is obvious from this facts that the complainant is not having consistency in her case

          The complainant alleged in the complaint that the co-workers have received  more than Rs.30,000/- after diversion to the EPS.  But no evidence produced in this regard and no specific case was pointed out by the complainant.

          Both the parties have not produced statement of accounts of contribution.  The definite contention of the opp.party that the complainant was not a member in the 1971 Scheme and 1995 Scheme previously and she had opted the scheme  later when the opp.party alleges that the complainant is not a member in the pension scheme, the burden is upon the complainant to prove that actually she was a member in the pension scheme and contributed to the pension schemes periodically.   Nothing was produced to  show that the complainant was a member in the 1971 and 1995 schemes and contributed to the  said schemes.  Even though the complainant has stated in re examination that the  2^nd opp.party is an institution owned and governed by the Government  and  hence all the employees became  members in the pension scheme,  after the act was come in to existence, nothing was produced from the part of  complainant to substantiate her stand point.   The complainant failed to establish her case..   As argued by the 1^st   opp.party if the contributions are not paid along with interest she would not be eligible for getting pension.   The amount was diverted  in order to make her eligible to get monthly pension

          Considering all the facts, circumstances and evidence adduced in this case, we find that there is no deficiency in service or negligence from the part of opp.party.

          In the result, the complaint is dismissed.  There is no order as to cost.

          Dated this the   31^st     day of December, 2012.

:

I N D E X

List of witnesses for the complainant

List of witnesses for the complainant

PW.1. – Santhamma Amma

List of documents for the complainant

P1. – Termination order

P2. – Pension Payment Order

P3. – Reply  dated 30.1.2007

P4.series  - Form 23

List of witnesses for the opp.parties

DW.1. – Abdul Latheef

List of documents for the opp.aprties

D1. – Copy of letter to the opp.party dated 20.1.2004

D2. – Intimation Letter dated 27.12.2005