1.       The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 58 1 (b) of Consumer Protection Act 2019, against the order dated 07.01.2022 of the State Consumer Disputes Redressal Commission Gujarat (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.  228 of 2014 in which order dated 29.11.2013 of  Ahmedabad City ( Additional) District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no.  78 of 2008 was challenged, inter alia praying for setting aside the order dated 07.01.022 of the State Commission.

2.       While the Revision Petitioner(s) (hereinafter also referred to as OPs) were Respondents and the Respondent (hereinafter also referred to as Complainant) was Appellant in the said FA No. 228 of 2014 before the State Commission, the Revision Petitioners were OPs and Respondent was Complainant before the District  Forum in CC no.  787 of 2008.

 3.      Notice was issued to the Respondents on 15.07.2022.  Petitioner filed Written Arguments / Synopsis on 09.11.2023.  Due to non appearance despite service, respondent was proceeded ex parte. Delay in filing the RP was condoned after considering the reasons stated in IA/6018/2022

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant was permanent employee of C.L.Saraswati Kunj Primary Section at Ahmedabad during the period 15.06.1964 to 28.02.2002 and he was member of Employee Provident Fund Scheme 1995 ( EPF-1995).  Further,  he retired at the age of 58 years from the said institution on 01.03.2002 and thereafter from the date of attaining the age of 58 years, the amount of Rs.325/- was decided / fixed as pension amount.  He had given form 10-D to the OP on 08.11.2005 for getting short service monthly pension from the date 01.03.2002 on completion of his 58 years age.  The forwarding letter was received by the complainant stating that pension has been sanctioned on 06.12.2005 and after sanctioning monthly basic pension of Rs.325/- from the date of 01.07.2002, actual monthly member pension of Rs.184/- was sanctioned to the complainant every month.  It is further the case of the complainant that differentiate amount of Rs.7728/-from the date of 01.07.2002 and computed amount of Rs.10,800/- was credited to the complainant’s savings account after the delay of 20 days on 28.12.2005 and interest of said time period has not been credited to his account.  Further, the complainant has not been paid the monthly pension from the date of attaining the age of 58 years i.e. 01.03.2002 to 30.06.2002.  It is the case of the complainant that though his employment contains a period of 14 years till 15.11.1995, OP has taken into account his employment as 07 years instead of 14 years and OP has not given weightage of 07 years.  Though there was not any break in his whole service, OP considered only 07 years of service .  Being aggrieved, the complainant filed CC before the District Forum and District Forum vide order dated 29.11.2013 dismissed the complaint of the Complainant.  Being aggrieved, the Complainant preferred an appeal before the 

State Commission and State Commission vide order dated 07.01.2022 partly allowed the Appeal of the Complainant.  Therefore, the OP is before this Commission now in the present RP.

5.       Petitioners have challenged the said Order dated 07.01.2022 of the State Commission mainly on following grounds:

1. The order of the State Commission has been passed without appreciating the provisions of EPF Act and Schemes thereunder, being the Employees Pension Scheme 1995 and Employees Family Pension Scheme 1971 and also in excess of jurisdiction vested under the provisions of Consumer Protection Act.

2. The pension claim was filed on 08.11.2005 and it was duly processes as per the provisions of EPF and MP Act, 1952 and the schemes relying on the documents produced by the Establishment-Form 9 and Form 6A and pension payment order was released on 06.12.2005 i.e. within 30 days of receipt of the claim.

3. The issues which were never agitated before the District forum have been adjudicated by the State Commission without affording an opportunity to the Petitioner.  The issue of applicability of the Family Pension Scheme to the Establishment, whether it was w.e.f. 01.01.1989 or 01.01.1982 was never raised or pleaded by the Complainant nor the issues of wages being 2906/- instead of Rs.700/- was ever pleaded in the Complaint.

4. The Commission or forum established under Consumer Protection Act have no jurisdiction to decide the  issue of applicability of the EPF Act. The Family Pension Scheme 1971 makes Regional Provident Fund Commissioner the appropriate Authority to decide on question of membership of an employee to the Fund under the Family Pension Scheme.   The State Commission overreached its jurisdiction by deciding on applicability of the Family Pension Scheme, 1971.  Reliance of State Commission in the case of DAV College and Ors. Vs. Regional Provident Fund Commissioner reported in 1988  Supp. ( 1) SCC 518 is misconceived as State Commission is not vested with such writ jurisdiction. 

5. The form-9 submitted shows complainant’s date of joining Family Pension Scheme as 01.01.1989 which is also the date from which contribution of the complainant to Family Pension Scheme 1971 was received.  Therefore, reckonable service under Family Pension Scheme 1971 can only be considered from 01.01.1989.   The State Commission erred in concluding the date of applicability of Family Pension Scheme, 1971 as 01.01.1982.

6. The pension claim of the complainant was settled by taking his date of birth as 01.01.1944 as his age in form-9 was mentioned as 46 years as on 01.01.1989.  Despite the complainant having failed to submit any proof in support of his date of birth being 01.03.1964, the State Commission relied upon  his date of birth as 01.03.1944 in form 10-D.  The State Commission even failed to consider the fact that complainant was unable to produce evidence of his date of birth being 1944.

7. The findings of State Commission in respect of wages as on 16.11.1995 for determining past service in the process of settlement of pension is erroneous and contrary to the pleadings raised by the Complainant. State Commission was not right in considering the issue of wages as on 16.11.1995 by relying upon a salary slip of the complainant whose authenticity is doubtful, when the complainant himself has never claimed wages to be Rs.2906/- as on 16.11.1995 during the determination of his pension by the office of Petitioner in the year 2005 or in  his complaint before the District forum in the year 2008.  The wages of complainant on16.11.1995 had been taken on the basis of documents submitted by the Establishment itself i.e. Form 6A which shows that complainant had received a salaray of Rs.8320/- in 1995-1996. 

6.       Heard counsels of petitioner. On account of absence despite notice, Respondent was proceeded ex-parte.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, and records of State Commission and District Forum are summed up below.

6.1     Counsel for the Petitioner argued that as per records, particularly form 9 submitted by Establishment, showed the age of complainant / respondent as 46 years, hence the date of birth of complainant was accepted as 01.07.1944. The Department / Petitioner maintains records as submitted by the establishment and therefore there is no lapse on the part of the Petitioner to treat the date of birth of complainant as 01.07.1944 and not 01.03.1944 as alleged by the complainant.   No proof for date of birth was provided by the complainant.   It is further argued that pension was released within the prescribed period of 30 days and there was no delay in releasing the pension.  Counsel further argued that there was no contribution made by the concerned Establishment / School between 1982 to 1989.  The Scheme was made effective in the present case w.e.f. 01.01.1989 and accordingly a contribution @ 1-1/6% of basic wages, DA and retaining allowance was directed to commence w.e.f. 01.01.1989.  Therefore, the complainant cannot be given benefit of 7 years when scheme was not applicable to the employer / establishment / school in the present case and reckonable service can only be considered from 01.01.1989.    It is further argued that computation of pension was based on the Form 6A by the Establishment for the relevant year.  Merely on the basis of single salary slip  or a document never furnished by the Establishment with the Petitioner, the last drawn salary in 1995-1996 could not have  been assumed to be Rs.2906/- per month. 

7.  The records of the case clearly indicate that the complainant's date of birth is 01.03.1944, as stated in Form 10-D and the reply to the RTI application provided by Shri C.L. Sarswati Kunj School. it is evident that the correct date of birth is 01.03.1944. In support of this conclusion, the State Commission referred to a relevant observation made by the Hon'ble Supreme Court in the case of Regional Provident Fund Commissioner Vs. Bhavani, 2008 7 SCC 111. The Court emphasized that corrections to dates of birth requested towards the end of one's career should not be discouraged if the correct date of birth is recorded in official company records, including service records. As the complainant's date of birth was correctly recorded in the records of Shri C.L. Sarswati Kunj School, it is accurate for pension calculations. Therefore, based on the documented evidence from the school, we are of the view that the complainant is entitled to receive pension for the period from March 2002 to June 2002.

Based on the records submitted to the State Commission, it is evident that the complainant became a member of the Employee Provident Fund Scheme 1995 from 01.07.1982, with Account No. GJ/13731/12. The opponent PF office submitted a letter dated 30.01.1989 (Annexure R2), stating that contributions towards the Family Pension Scheme were to be deposited from 01.01.1989 onwards. The OP’s counsel argued that contributions to the Family Pension Scheme began from 01.01.1989, entitling the complainant to receive the Family Pension from that date. However, the complainant's counsel presented a copy of the EPFO website, indicating the date of coverage as 01.04.1982. Regarding the applicability of the Employees Family Pension Scheme, 1971, it is emphasized that the scheme was mandated for all establishments covered under the Provident Fund Act, 1952. Therefore, based on the provisions of this Act, it is inferred that Shri C.L. Sarswati Kunj School is also covered under the PF Act 1952 from 01.04.1982. The Hon'ble High Court of Gujarat, in Gitaben Arvindkumar Sheth vs. Regional Provident Fund Commissioner and Ors. 1995 SCC OnLine Guj 297, observed that once an establishment fulfills the eligibility criteria mentioned in the Act, the applicability of the Family Pension Scheme is automatic, irrespective of any formal order by the competent authority. Consequently, after the framing of the Family Pension Scheme, its provisions align with the date of coverage under the Act for Provident Fund purposes. Therefore, the complainant is entitled to benefit from the Family Pension Scheme.

As per the observations made by the State Commission, there is a discrepancy regarding the consideration of the complainant’s salary by the OP PF office for the month of November 1995. The complainant's salary slip, submitted to the State Commission, clearly indicates his salary as Rs. 2,906/- for November 1995. However, due to the complainant's absence, an erroneous figure of Rs. 700/- was recorded by the OP PF office. According to Section 7.5.19 of the Employees' Pension Scheme 1995, the wages as of 16.11.1995 must be preserved until the creation of the employee master file, and the wages for November 1995 should be indicated in Form 24. In this context, the wages of Rs. 2,906/- for 16.11.1995 should be considered for pension calculation, rather than the erroneously mentioned Rs. 700/-. While the OP's counsel argued that the complainant himself mentioned Rs. 700/- as his wages for November 1995, it is contended by the complainant's counsel that the complainant was initially unaware of his actual wages for November 1995 and only stated Rs. 700/- based on the information available at that time. Subsequently, upon receiving accurate information through an RTI application, the complainant stated his correct salary in the rejoinder.

Furthermore, the computation of the pension worksheet Part B, on record in the State Commission, mentions the wages on 15.11.1995 as Rs. 700/-. However, considering the evidence and provisions of the Employees' Pension Scheme 1995, we agree with the State Commission's opinion that the wages for 15.11.1995 should be considered as Rs. 2,906/- for pension calculation purposes.

8.  In view of the foregoing, we are in agreement with the findings of the State Commission and find no reason to interfere with the same. There is no illegality or material irregularity or jurisdictional error in the order of State Commission and the same is upheld. Accordingly the RP is dismissed.

9.       The pending IAs in the case, if any, also stand disposed off.