<br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> <br /> <br /> This is a complainant seeking sanction of pensionary benefits under the EPS 1995.<br /> <br /> The Averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant was a cashew worker in the 2nd opp.party company. He commenced his work in the year 1959 and was a member of the EPF since 1963. He was also a member of Family Pension Scheme 1971. He retired from service at the age of 58 on 10.5.1995 after completing 36 years of regular service The subscriptions towards the Provident Fund and pension fund were being remitted by the 2nd opp.party. The complainant applied for his pension in Form No. 10D through the 2nd opp.party on 25.2.1997 which was rejected and returned stating that he is not entitled to get pension. The complainant submitted another Form 10D application on 30.3.1998 which was also rejected. 3rd application was filed in the year 2002 and another application was filed in the year 2003. These applications were also rejected and returned. The complainant resigned from his service on 31.7.1995 and the Employees Pension Fund Scheme came into force on 15.11.1995. The first opp.party without taking into consideration the fact that the scheme had retrospective effect simply rejected the application which is an act of deficiency in service . The 2nd opp.party being the employer of the complainant had to intimate the first opp.party that the complainant was a member of the Family Pension Fund Scheme 1971 and even if the complainant was not a member it is the duty of the 2nd opp.party to enlist her name in the said scheme as the complainant started his work in the year 1959 and has also completed 36 years of regular service. Hence the complaint.<br /> The first opp.party filed a version contending as follows: The complainant was a member of Employees Provident Fund with Account No.KR/1400/19 his age as per the statutory return in Form NO..9 filed by opp.party 2 on 1.4.1963 was 34 years. The complainant has filed a statutory declaration in form No.2 which shows that he was aged 34 years as on 30.4.1963 He left service in year 1995. The contention of the complainant that he was a member of Employees Family Pension Scheme 1971 is totally wrong. An employee can keep his membership in the fund till his Employees Provident Fund account is settled irrespective of age factor. He can contribute to Employees Provident Fund as long as he earns wages irrespective of age . While implementing Employees Family Pension Scheme 1971 all members in Employees Provident fund Scheme 1952 were given liberty to join the scheme but the complainant did not join the scheme or remitted contribution. The statement of the complainant that the scheme has retrospective effect is totally wrong. The complainant was not a Employees Family Pension Fund Scheme 1971 member. Since he acquired 60 years in the year 1989 as a non Family Pension Scheme 1971 member he is out of the ambit of the Employees Pension Scheme 1995 which came into effect on 16.11.1995 The complainant is not entitled to exercise the option open to the Family Pension Fund Scheme 1971 members who ceased membership in between 1.4.1993 and 16.11.1995. Accordingly the application for pension was rejected. There is no deficiency in service on the part of the opp.parties. Hence the 1st opp.party prays to dismiss the complaint.<br /> The 2nd opp.party filed a separate version. The complainant was a worker of the 2nd opp.party and was covered a member of 1952 scheme. As per the available records the date of birth of the complainant is 1.1.1935. He was discharged from service on 1.5.1995 at the age of 6o years. What all amount collected from the complainant as contribution towards Provident Fund has been remitted along with the employers contribution. The 2nd opp.party was a cashew industry. It is seasonal in nature and so there would not be work in the factory on all days in an year. In the year 2000 the factory was sold to Krishna Food process and the factory is now in their possession. There is no deficiency in service on the part of the 2nd opp.party and hence they also prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> <br /> 1.Whether the complainant is entitled to get 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 /> For the complainant PW.1 is examined. Ext. P1 to P4 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined. Ext. D1. to D6 are marked. <br /> <br /> Point:1 <br /> <br /> The contention of the opp.parlty is that this complaint is barred by limitation. The learned counsel for the 1st opp.party argued that the Form 10.D filed by the complainant was dismissed by opp.party in 1997 but the complaint was filed only on 2.8.2005 ie. after about eight years after the rejection of the Form 10D. It is further argued that Sec. 24A of Consumer Protection Act prescriber a period of limitation of 2 years and therefore this complaint filed after about 8 years is hopelessly barred by limitation. It is to be stated that long after the filing of this complaint the complainant filed IA.145/05 on 2.8.2005 for condonation of delay which was allowed by this Forum as per order dt. 5.8.2005. The opp.parties did not file any appeal or revision against that order and that order has become final. Therefore, we hold that this complaint is not barred by limitation. Point found accordingly.<br /> <br /> Point:2 :The complainant joined the EPF 1952 in the year 1963 is not disputed. There is also no dispute that his services were terminated as per Ext.P1 prior to the coming into force of EPS 1995. The definite contention of the opp.parties is that the complainant was not a member of 1971 scheme and that he has not remitted any contribution towards 1971 scheme and in support of that contention they rely on Ext.D4 copy of contribution card. The complainant also failed to produce any document to prove that he was a member of 1971 scheme.<br /> <br /> Para 6 of EPS 1995 deals with membership in 1995 scheme. Para 6[a] is not applicable in the case of the complainant as he joined 1952 scheme prior to 16.11.1995. Since the complainant had not opted for the 1971 scheme para 6[b] and 6[c] are also not applicable in his case. The provisions of para 6 [d] is also not attracted in the case of the complaint as he has not exercised option under para 7 remitting past period contribution with interest thereon referred to in para 17[3].<br /> <br /> The complaint has withdraw the Provident Fund accumulation on 17.5.1996. Though PW.1 would claim that he has recovered only balance amount after paying necessary past contributions to 1971 scheme in cross examination he has admitted that there is no documents to prove that fact. Ext. D5 also shows that no contribution has been made by complaint towards family pension fund. There is also nothing to show that the complainant exercised option to join 1971 scheme prior to the settlement of Provident Fund accumulation. <br /> <br /> The complainant has produced Ext.P4 medical certificate to show that he was aged 68 years as on 27.8.2005 ie he was 58 years only as on 1995. Ext.P4 is not admissible as the same was issued without conducting ossification test. Therefore Ext.P4 cannot be accepted for discarding Exts. D2 and D4.<br /> <br /> The pension application of the complainant was rejected lby the opp.party 1 as he was not a member of 1971 scheme who failed to exercise option to join that scheme before settlement of Provident Fund accumulation and also because he completed 60 years in 1989. As pointed out earlier the complainant failed to establish that he was a member of 1971 scheme or that he exercised necessary option before receiving the Provident Fund accumulation and paid necessary contribution. In these circumstances we are of the view that the rejection of the complainant’s pension application as per Ext.D7 is proper and there is no deficiency in service. 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 30th day of August, 2008.<br /> <br /> <br /> <br /> I n d e x<br /> <br /> List of witnesses for the complainant <br /> PW.1. – Sreedharan<br /> <br /> List of documents for the complainant<br /> P1. – Termination order<br /> P2. – Repudiation letter<br /> P3. – 10.Dform<br /> P4. – Medical Certificate <br /> <br /> List of witnesses for the opp;.parties<br /> DW.1. – K.P. Balagopalan Nair<br /> <br /> List of documents for the opp.parties<br /> D1. – Authorisation letter<br /> D2. – Form No.9<br /> D3. – Form No.10<br /> D4. – Form No.2<br /> D5. – Form 3 A<br /> D6. - Letter sent by 1st opp.party to the complainant dt. 21.4.97 <br /> <br /> <br /> <br />