BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 29/2005 Filed on 20.01.2005

Dated : 15.12.2010

Complainant:

K. Raveendranatha Pillai, Poomangalam, Perumkoor, Konchira P.O, Vembayam, Thiruvananthapuram.

(By adv. G. Somanathan Nair)

Opposite parties :

1. Regional Provident Fund Commissioner (Pension) Employees Provident Fund Organization, Regional Office, New Delhi, 8^th and 9^th Floor, Mayur Bhavan, Connaught-Circus, New Delhi.

2. Regional Provident Fund Commissioner (Pension) Employees Provident Fund Organization (Ministry of Labour Government of India), Regional Office, 'Bhavishyanidhi Bhavan', Pattom, Thiruvananthapuram.

    

(By adv. K.V. Karma Chandran)

3. The Secretary, ITDC Staff Provident Fund Trust, India Tourism Development Corporation Ltd., SCOPE Complex, Core 8, 7 Lodi Road, New Delhi.

4. India Tourism Development Corporation Ltd., SCOPE Complex, Core 8, 7 Lodi Road, New Delhi-3 represented by its Chairman & Managing Director.

5. Kovalam Hotels Ltd., Kovalam P.O, Thiruvananthapuram represented by its General Manager.

(By adv. K. Murlidharan Nair)

This O.P having been taken as heard on 15.11.2010, the Forum on 15.12.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had been working in Kovalam Ashok Beach Resort which was one of the unit of the 4^th opposite party from 01.01.1973 to 28.02.2002, that while working as Maitre-de-Hotel he had reitred from service on 28.02.2002 on completion of 58 years of age, that complainant was a member of the Employees Provident Fund and Employees Pension Scheme vide Account No. DL/2256/1637/829 maintained by the 1^st opposite party, that monthly contributions were being deducted from the salary of the complainant by the management of the said Kovalam Ashok Beach Resort and the same was being remitted to 3^rd opposite party, that the 3^rd opposite party is the body which manages and utilizes the Provident Fund and employees pension fund of the employees of the 4^th opposite party, that after retirement complainant applied for monthly pension under the Employees pension scheme to the 1^st opposite party through the 3^rd opposite party, that under the direction of the 1^st opposite party 2^nd opposite party issued pension pay order No. KR/TVM/34949 sanctioning Rs. 743/- per month with effect from 19.02.2002, that in the said pension pay order the past service of the complainant is wrongly taken as 21 years instead of 23 years, that the actual service is wrongly taken as 5 years whereas it is more than 6 years and pensionable salary is wrongly taken as Rs. 6,500/- instead of Rs. 7,130/-, that if the above facts are correctly taken for computation of the pension, monthly pension entitled to the complainant would be Rs. 1,160.54 per month. Hence this complaint to get the modified pension as Rs. 1160.54 per month with effect from 19.02.2002 and to get compensation and costs.

1^st and 2^nd opposite parties filed version contending that they have already discharged the statutory duties and released the monthly pension after making rightly calculation in accordance with the provision of EPS-95, that the reckonable service under the Family Pension Fund Scheme 1971/Employees' Pension Scheme-1995 is counted only for the period for which the contribution has been received, that opposite parties never received any contribution up to 2/75, that the past service benefits of 21 years under the FPF Scheme 1971 has rightly been calculated from 01.03.1975 to 15.11.1995 as well as the actual pensionable service under the EPS from 16.11.1995 to 28.02.2002 (the date of superannuation) has rightly been calculated as 5 years, that the opposite party received Rs. 417/- towards the contribution for the period 1998-99 instead of full contribution of Rs. 5004/-, that Rs. 417/- pertains to one month contribution only, thus there was a break of 11 months in 1998-99, that opposite party received Rs. 2,919/- in the EPS contribution for the year 1999-2000 which pertains to 7 months contribution only and a break of 5 months in the year 1999-00 also calculated. Thus there was a total break in service of 16 months from 16.11.1995 to 28.02.2002. After taking out this break of 16 months opposite party has rightly calculated the reckonable service and released the monthly pension correctly to the complainant, that the break in service cannot be regularized by the opposite parties.

Opposite parties 3 & 4 contend that the role of opposite parties 3 & 4 is limited to the extent of forwarding application of the member to the concerned RPFC office, that the pension amount is computed and disbursed by the concerned office, that opposite parties 3 & 4 have no authority to modify the pension order. Hence opposite parties 3 & 4 prayed for deletion from the array of respondents.

5^th opposite party (Kovalam Hotels Limited) filed version contending that 5^th opposite party took over the Kovalam Hotels from the 4^th opposite party on 11.07.2002, that 5^th opposite party is not aware as to the facts narrated in the 1^st para of the complaint prior to the said date. 5^th opposite party is not aware of the other contentions regarding replies furnished by other opposite parties, that there was no subsisting liability towards the complainant when the 5^th opposite party took over the Kovalam Hotels, that no indication was given by the 4^th opposite party regarding any liability to the complainant on taking over the hotel by the 5^th opposite party. Complaint is not maintainable as against 5^th opposite party. Hence 5^th opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the opposite parties 1 & 2 are liable to modify the pension pay order No. KR/TVM/34949 granting monthly pension of Rs. 1,160/-?

2. Whether there is deficiency in service on the part of opposite parties?

3. Whether the complainant is entitled to compensation and costs?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P10. In rebuttal opposite parties 1 & 2 filed affidavit and have marked Exts. D1 & D2. 5^th opposite party has filed affidavit.

Points (i) to (iii):- Admittedly, complainant is a member of Provident Fund maintained by the opposite parties 1 & 2 and opposite parties 1 & 2 released the monthly pension in accordance with the provisions of EPS 1995. It has been the case of the complainant that opposite parties 1 & 2 had issued pension pay order No. KR/TVM/34949 sanctioning Rs. 743/- per month instead of sanctioning Rs. 1,160.54. According to the complainant, opposite parties 1 & 2 had wrongly taken the past service of the complainant as 21 years instead of 23 years, the actual service wrongly taken as 5 years instead of more than 6 years and further the pensionable salary taken wrongly as Rs. 6,500/- instead of Rs. 7,130/-. It has been the case of the complainant that if correct approach is adopted by the opposite parties 1 & 2 his monthly pension would come to Rs. 1,160.54. Ext. P1 is the copy of the advocate notice dated 28.05.2004 addressed to opposite parties calling upon them to modify the pension order within 30 days from the date of receipt of the notice. Ext. P2 is the postal receipt. Ext. P3 is the reply notice by Employees' Provident Fund Organization to advocate Sri. Somanathan Nair dated 03.06.2004 stating that according to the pension papers processed at Regional Office, New Delhi, the pensioner has only 21 years of past service, that the pensioner has one year and 5 months break in service (non-contributing period) during the period 1998-00 and hence the total service comes to only 5 years and hence no revision in pension is warranted. Ext. P4 is the copy of the order of suspension dated April 23, 1998 issued by General Manager, Ashok ELITE Hotels. Ext. P5 is the order of punishment dated 27.07.1999 issued by Ashok ELITE Hotel's General Manager. Ext. P6 is the copy of the office order dated 16.02.2000 granting annual increment raising basic pay etc. with effect from 01.03.1999. Ext. P7 is the copy of the order of the appellate authority dated 10.10.2000 setting aside the order of the disciplinary authority imposing upon the complainant a punishment of reduction in rank and reduce it to the stoppage of one increment without cumulative effect. Ext. P8 is the copy of the office order dated 11.11.2000 by Kovalam Ashok Beach Resort stating the basic pay. Ext. P9 is the statement of provident fund account for the year 1997-98. Ext. P10 is the statement of provident fund account for the year 1999-2000. Complainant has admitted in the complaint that he was suspended from the service vide order dated 23.09.1998 pending enquiry and that the said suspension was revoked vide order dated 27.07.1999. It is submitted by the complainant that suspension being not a punishment does not amount to break in service. It has been contended by the complainant that he was paid full wages for the period under suspension and his contribution for the whole said period was deducted from his arrears of salary for the said period. Complainant never furnished any document to substantiate that aspect. It is the say of the opposite parties 1 & 2 that the past service benefit of 21 years under the FPF scheme 1971 has rightly been calculated from 01.03.1975 to 15.11.1995, since there was no contribution up to 2/97. According to opposite parties 1 & 2 the reckonable pension service is taken from 01.03.1975 to 15.11.1995. As far as the actual pensionable service is concerned, there was a break of 11 months in 1998-99, that complainant had remitted only Rs. 417/- instead of Rs. 5,004/-. Similarly opposite party received Rs. 2,919/- in the EPS contribution for the year 1999-00, that the said contribution pertains to 7 months only thereby there was a break of 5 months in the year 1999-00 also. According to opposite parties 1 & 2 there was a total break in service of 16 months from 16.11.1995 to 28.02.2002. The said break in service cannot be regularized. It is pertinent to note that complainant has produced the statement of provident fund Account for the year 1997-98 vide Ext. P9 and statement of provident fund account for the year 1999-00 vide Ext. P10. He has never furnished the statement of provident fund account for the year 1998-99 by which we presume that the stand taken by the opposite parties 1 & 2 that they received only Rs. 417/- towards the contribution for the period 1998-99 instead of full contribution of Rs. 5,004/- is correct. On perusal of Ext. P9 EPF contribution comes to Rs. 5,004/-. There is no such document for the period 1998-99. Similarly a perusal of Ext. P10 would reveal that complainant had remitted only Rs. 2,919/- towards EPF contribution for the year 1999-00 which according to opposite parties 1 & 2 relates to 7 months only and thereby there is a break of 5 months in the year 1999-00. Complainant never produced any document to show that he has paid full contribution for the period 1999-00. As such we are of the view that the stand took by the opposite parties that they have calculated pension rightly in accordance with the provisions of EPF 95 remains uncontroverted. In the absence of any documents in support of the complaint, we find opposite parties are not liable to modify the pension order. Opposite parties 3 & 4 have submitted that they have no role in the matter as they have no authority to modify the pension order. 5^th opposite party submitted that they took over the Kovalam Hotels from the 4^th opposite party on 11.07.2002. To substantiate that aspect 5^th opposite party has furnished a copy of the share purchase agreement dated 11.07.2002. Admittedly complainant retired from service on 28.02.2002. Complainant never furnished any material to indicate any liability regarding the complainant was handed over to the opposite party on taken over. Moreover the issue herein is in regard to the revision of pay order. Opposite parties 3 to 5 have no role in it. Deficiency in service not proved. In view of the foregoing discussions and material available on records we find complaint has no merits at all which deserves to be dismissed.

In the result, complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of December 2010.

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 29/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - K. Raveendranatha Pillai

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of the advocate notice dated 28.05.2004 addressed to

opposite parties.

P2 - Postal receipt.

P3 - Reply notice by Employees' Provident Fund Organization

to advocate Sri. Somanathan Nair dated 03.06.2004

P4 - Copy of the order of suspension dated 23.04.1998.

P5 - Copy of the order of punishment dated 27.07.1999

P6 - Copy of the office order dated 16.02.2000

P7 - Copy of the order of the appellate authority dated

10.10.2000

P8 - Copy of the office order dated 11.11.2000 by Kovalam

Ashok Beach Resort.

P9 - Statement of Provident Account for the year 1997-98.

P10 - Statement of Provident Account for the year 1999-2000.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of Pension Payment Order.

D2 - Copy of reply notice to the complainant's advocate

PRESIDENT

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