<br /> <br /> <br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> <br /> The complainant filed this complaint for sanctioning pensionary benefits compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> <br /> The complainant was a worker in the opp.party 2 institution. He was a member of Provident Fund Scheme and ESI Scheme. She was working in the opp.party 2 institution from 1961 onwards in the shelling section and retired from service on 28.9.1994 after completing 33 years of service. Her PF account No. is KR/1317/51. The complainant has retired from service on attaining 58 years she had paid the amount due from her towards the PF account. The complainant after retirements submitted Form 10 D for sanctioning pension through the 2nd opp.party with all relevant records. But the same was rejected and returned on 26.3.2004 on the ground that she was a non EPF member and that her PF account was settled. The complainant is entitled to get pension if the 2nd opp.party has not committed any default. The complainant is not responsible. The fact of rejecting the complainant’s pension application is within the knowledge of the 2nd opp.party who has not taken any action for granting pension to the complainant. The action of the opp.parties are unfair trade practice and deficiency in service. Hence the complaint<br /> The 1st opp.party filed a version contending that the complaint is barred by limitation. The complainant has joined Employees Provident Fund on 1.4.1963 and left service on 27.9.94. She was not a member of the Employees Family pension Scheme 1971. The final settlement of her Employees Provident Fund account has been made on 28.2.1995. The Employees pension scheme 1995 came into effect with effect from 16.11.95. The complainant does not come under the Employees Pension Scheme 1995. The complainant’s pension application has been rejected and communicated by letter dated 24.2.1999. While implementing the employees’ Family Pension Scheme 1971, all members in the Employees Provident Fund Scheme 1952 were given freedom to join the scheme. The complainant does not to join the Scheme and therefore, the whole contribution was credited to her Employees Provident Fund account which she withdrew on 28.2.1995.Para 1 [2] [b] read with para 6 and 7 makes it is clear that only Employees Provident Fund member during the period of her membership and who retains membership in the Employees Provident Fund as on 15.11.1995 can exercise option to join the Employees Pension Scheme, 1995 The complainant membership in Employees Provident Fund Scheme 1952 ceased on 28.2.1995 and her PF account was finally settled on that date. The complainant does not come under para 6[a] since she joined Employees Provident Fund on 1.4.1963. Since she was not a Family Pension Scheme member Para 6 [b] and 6 [c] are not at all applicable in her case. Since she did not exercise option to join the Family Pension Fund Scheme 1971 before cessation of membership in the Employees Provident Fund Scheme 1952 and was not a an Employees Provident Fund member on 15.11.1995, para 6 [d] is also not applicable in the case of the complainant. The complain ant was at liberty to join the Family Pension Scheme 1971 till 28.2.1995 and she did not join the scheme. The complainant had been well informed about the ineligibility for the pension. The first opp.party has acted strictly in accordance with the provisions under the statute and there is no deficiency in service on their part. Hence the 1st opp.party prays to dismiss the complaint.<br /> <br /> The 2nd opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. There is no dispute between the 2nd opp.party and the complainant. The complainant was a employee of the 2nd opp.party. On attaining age of her superannuation, she retired from service on 27.9.1994. On her retirement the 2nd opp.party has sent the Provident Fund Closure form and the complainant received the Provident Fund amount. On 1.2.1999 the complainant submitted a 10D Form before this opp.party along with the option form which was transmitted to the first opp.party. Now it is understood that that application has been returned for the reason that the complainant was not a member of Employees Provident Fund and her Provident Fund is already settled. This opp.party has nothing to do with the rejection of pension claim by the Provident Fund authority. The complainant herein is under the wrong notion that the employer has not remitted the contribution of the employees and employer to the PF office. This opp.party has promptly and punctually remitted all the contribution in respect of this complaint upto 27.9.2004. The complainant was disentitled from claiming pension by the Provident Fund Authorities, not because of any act of the 2nd opp.party. There is no negligence or deficiency in service on the part of the 2nd opp.party. The 2nd opp.party is unnecessarily implicated in this case. Hence the 2nd opp.party prays to dismiss the complaint.<br /> <br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether the complainant is eligible to get the pensionary benefits under the EPS 1995?<br /> 2. Whether there is deficiency in service on the part of the opp.parties<br /> 3. Reliefs and costs.<br /> <br /> <br /> For the complainant PW.1 is examined. Ext. P1 to P6 are marked.<br /> <br /> <br /> For the opp.parties DW.1 is examined. Ext. D1 to D5 are marked.<br /> <br /> Points: 1 to 3<br /> <br /> The contention of the 1st opp.party is that the complaint is barred by limitation. It is argued that the complainant who was superannuated on 27.9.94 submitted Form 10D seeking sanction of pensionary benefit under the 1995 Scheme which was rejected and returned on 24.2.1999 on the ground that she was not a member of 1971 scheme and that her EPF account was already settled on 28.2.1995. The complainant has filed this complaint only on 13.1.2005 Section 24A of the Consumer Protection Act 1986 prescriber a period of limitation of 2 years and so this complaint ought to have been filed within 2 years from 24..2..1999 in the date of rejection of pension application. This complaint filed on 13.1.2005 according to the opp.parties is barred by limitation.<br /> <br /> The learned counsel for the complainant argued that the monthly pension being a continuous benefit it is not barred by limitation under section 24 A. It is further argued that the statute does not prescribe any cut off date for exercising option and therefore also the complaint is not barred. It is true that there is no cut off date for exercising option under the 1995 scheme. But once the Form 10D submitted by the complainant is rejected the period of limitation runs from the date of rejection. Ext. D1. shows that the 1st Form 10 D was rejected as early as 24.2.1999 and the complaint filed on 13.1.2005, in our view, is hopelessly barred by limitation. <br /> The contention of the learned counsel for the complainant is that the <br /> Employees pension Scheme 1995 came on 16.11.1995 with retrospective effect from 1.4.1993 and that the complainant who retired from service on 27.9.1994 and settled her PF account on 28.2.1995 is entitled to opt the scheme. That argument cannot be accepted. There is absolutely nothing to show that EPF 1995 has retrospective effect from 1.4.1993. No material was also placed before us to establish this aspect Para 6[c] of EPS 1995 says <br /> that a pension who ceased to be a member of 1971 Scheme between 1.4.1993 and 15.11.1995 can exercise option to the 1995 Scheme under para 7. It does not mean that the 1995 scheme has retrospective effect from 1.4.1993.<br /> There is no dispute that the complainant retired from service on 27.9.1994 and her Provident Fund Account settled on 28.2.2005. Though the complainant would claim that she was a member 1971 scheme no material, worth believable, was produced to establish that aspects. The case of the opp.parties is that the complainant was not a member of 1971 scheme. The complainant has no case that she exercised option to become a member of 1971 scheme and no evidence regarding that fact is forthcoming. So the only possible inference on the basis of the evidence and records before us is that the complainant is not a member of 1971 scheme.<br /> <br /> <br /> Para 6 of EPS 1995 deals with the membership of that scheme. Para 6 [a] deals with persons who become members of 1952 Scheme after 15.11.1995 which is not applicable herein as the complainant became the member of 1952 scheme on 1.4.1963. Para 6 [b] is attracted only if it is established that the complainant was a member of 1952 scheme before the commencement 1995 Scheme from 16.11.1995. So para 6 [b] is also not applicable herein. For attracting para 6 [c] the sine qua non is that the complainant ceased to be a member of 1971 scheme between 1.4.1993 and 15.11.1995 Para 6 [c] is also not applicable in the case of the complainant as she never was a member of 1971 scheme. So the complainant cannot exercise option under para 7[2] and 17[2] . Moreover the complainant completed 58 years before the commencement of 95 scheme and therefore, cannot become a member of 1995 scheme. Para 6 [d] is also not applicable as the complainant has ceased to become a member of 1952 scheme as early as 28.2.1995 and only during the subsistence of the membership in 1952 scheme option to 1995 scheme can be exercised. So in our view the complainant who ceased to become a member of 1952 scheme prior to 16.11.1995 and who was a non Family Pension Scheme member is not entitled to get pension as she will not come in any of the clauses of Para 6. Therefore, there is no deficiency in service on the side of the opp.parties. For all that has been discussed above we find that the complainant is not entitled to get pension. Point found accordingly.<br /> <br /> <br /> <br /> In the result, the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> <br /> Dated this the 22nd day of August, 2008.<br /> <br /> <br /> I N D E X<br /> <br /> <br /> List of witnesses for the complainant<br /> PW.1. – Kunju pennu<br /> <br /> List of documents for the complainant<br /> D1. – Termination order.<br /> P2. – identity card.<br /> P3. – ESI Card<br /> P4. – Pension rejection Letter<br /> P5. – Form 10 D<br /> P6. – Form No.2<br /> <br /> List of witnesses for the opposite parties <br /> DW.1. – K.P Bala Gopalan Nair<br /> <br /> List of documents for the opp.parties<br /> D1. – Pension rejection letter dated 24.2.1992<br /> D2. – Work sheet for authorizing the Employees Provident Fund Dues<br /> D3. - Form NO.9<br /> D4. – Form No.19<br /> D5. – Forwarding note.<br /> <br /> <br /> <br />