KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 293/2015
JUDGMENT DATED: 20.09.2023
(Against the Order in C.C. 10/2012 of CDRC, Kannur)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANT:
The Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Bhavishya Nidhi Bhavan, Pattom P.O., Thiruvananthapuram.
(By Adv. K. Ramachandran Nair)
Vs.
RESPONDENTS:
- M. Narayanan, Manikkara (House), Manal, Alavil P.O., Kannur.
(By Adv. N. Anil Kumar)
- Proprietor, Great Malabar Beedi Works, Poothapara, Azhikode P.O., Kannur.
JUDGMENT
SRI. AJITH KUMAR D.: JUDICIAL MEMBER
This is an appeal filed by the second opposite party in C.C. No.10/2012 on the file of the District Consumer Disputes Redressal Commission, Kannur (will be referred to as District Commission for brevity) being aggrieved by its order dated 20.03.2015. The District Commission had allowed the complaint and directed the appellant to disburse the pensionary benefits, compensation of Rs. 10,000/- and costs Rs. 2,000/- to the complainant.
2. The complainant had filed the complaint u/s 12 of the Consumer Protection Act, 1986 alleging deficiency of service in not sanctioning his pensionary benefits. His case in brief is as under:
He joined as a worker in Malabar Beedi Works on 01.02.1992 and retired on 30.06.1993 after a total service of 11 years and five months and his PF Account No is KR/11023/559 and hence he is eligible for pension under EPS Scheme 1995. The company was earlier functioning with workers strength upto 200 persons and later the strength of workers was reduced to 50 and the business was closed down in 2002. The complainant was regularly paying his subscription towards PF. When he filed application for sanctioning pensionary benefits it was rejected on three grounds that a huge amount was pending as arrears towards the annual subscription for provident fund by the employer, annual statement was not filed by the employer and also that he had not completed 10 years of service.
3. The employer was arrayed as the first opposite party. The notice issued to the first opposite party was returned with an endorsement “closed”.
4. The Assistant Provident Fund Commissioner who was arrayed as the second opposite party had filed version by refuting the pleadings in the complaint. The specific case set up by the opposite party was that the employer had never remitted any contribution towards P.F and no statement was filed regarding the details of employees. The employer had failed to submit the statutory documents also. It was also alleged that the complainant had not completed 10 years service which is the eligibility criterion for an employee to claim pension.
5. On the side of the complainant PW1 was examined and Exts. A1 to A4 &A5 series were marked. DW1 was examined and Exts. B1 to B3 marked on the side of the second opposite party.
6. In the appeal memorandum the following contentions are raised:
The District Commission had failed to consider the fact that the complainant had joined service on 01.05.1994 and left service on 30.06.2003 and hence his total service was less than 10 years. The District Commission had failed to consider Exts. B1and B2 which are the statutory documents filed by the employer and Ext. B3, a joint statement filed by the employer and the complainant. The District Commission ought not to have placed reliance on Ext. A3 to reach a conclusion that the complainant had 10 years of service.
7. The complainant and his employer were arrayed as respondent Nos. 1 &2 in the appeal. The notice issued at the appellate stage to the employer was returned with endorsement ‘closed’. The 1st respondent entered appearance through his counsel. The records from the District Commission were called for. Heard, perused the records.
8. The complainant had given evidence as PW1. Ext A1 is a letter issued by the second opposite party dated 26.02.2009 to the effect that the claim for Provident fund will be decided only after recovery of the dues from the ex- employer. Ext. A2 is the statement filed by the second opposite party before the Taluk Legal Services Committee in PLC 161/2010 on a petition filed by the complainant. In Ext. A2 also it is seen stated that the pensionary benefits could be decided after getting the statutory documents. Ext. A3 is an application filed by the complainant and certified by the employer to the Workers Welfare Commissioner, Beedi Workers Welfare Fund Organization for getting financial assistance to the three school going children of the complainant. In Ext. A3 the date from which the complainant got employment is shown as 01.02.1992. Ext. A4 is the copy of the judgment in Writ Appeal No. 2409 of 2001(A) in which the complainant was the seventh appellant. Ext. A3 arose on a petition filed by the legal heirs of the deceased employer of the complainant to exempt certain items of properties from recovery proceedings initiated by the second opposite party for realization of PF Subscriptions. Ext. A5 series are the 11 documents filed by the complainant from 09.03.2005 to 28.01.2009 evidencing the representations put in by the complainant to the second opposite party to the effect that the complainant had started his service on 01.02.1992. On the basis of PW1 and Exts. A1 to A4 & A5 series the complainant would assert his case regarding the date of commencement of his service as 01.02.1992.
9. The second opposite party had examined RW1 and marked Exts. B1 to B3. Exts. B1 to B3 are the documents issued by the employer to the second opposite party. In this regard Para 2 (ix) of EPF Scheme 1995 assumes significance. “Member” is defined as an employee who becomes a member of EPF Scheme. Past service is also defined in Para 2 (xii) as the service rendered by an existing member from the date of joining EPF Scheme till 15.11.1995. Part 12 further stipulates the entitlement of pension to a member who has eligible service for a period of more than 10 years. By taking into account of the aforestated provisions it could be seen that an employee can claim benefits only after enrolling himself as a member of the pension scheme. Exts. B1& B2 are the statutory documents filed by the employer which show the date of joining of the complainant in the PF Scheme as 01.05.1994. Ext. B3 is a statement filed by the complainant in which also he would concede that he had joined in PF Scheme on 01.05.1994. This is a crucial document which is helpful to resolve the controversy. There is no case for the complainant that he had joined the PF scheme on 01.02.1992. In the absence of such a case for the complainant the case of the 2nd opposite party that the complainant had joined in the PF Scheme only on 01.04.1994 has to be accepted. There is also a recital contained in the letter dated 13.08.2007 i.e; the 4th document in Ext. A5 series issued by the complainant that the employer’s certification about his date of joining was 01.05.1994.
10. The District Commission did not consider the documents filed by the second opposite party and placed undue importance to Ext. A3 to arrive at a conclusion that the complainant had joined service on 01.02.1992. For the entitlement of Pension it has to be proved that the complainant had 10 years of service after joining in the PF Scheme.
11. On a careful consideration of the evidence on record it is found that the complainant had failed to prove that he had acquired 10 years of service after joining in the PF Scheme. There is total failure on the part of the District Commission in appreciating the evidence and reaching a logical conclusion. Since the complainant could not establish his entitlement to get the pensionary benefits under PF Scheme no deficiency of service could be attributed to the opposite parties. So the complaint is liable to be dismissed.
In the result, the appeal is allowed. The order passed by the District Commission is set aside. The complaint shall stand dismissed. Parties shall bear their respective costs.
AJITH KUMAR D. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
jb
