<br /> <br /> BY SRI.K. VIJAYKUMARAN, PRESIDENT.<br /> <br /> The complaint filed by the complainant for sanctioning pension under the EPS 1995 and other reliefs.<br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant was a cashew worker in M/s PKD Cashew Exporter, Adichannalloor which is an establishment covered by Employees Provident Fund and Miscellaneous Provision Act, 1952. The complainant commenced her work in the year 1962 and was a member of the Employments provident Fund since 1963.She was a member of Family Pension Scheme 1971 and her PF Account No. was KR/1400/339 and she retired from service at the age of 58 years on 31.7.1995 after completing 33 years of regular service. The 2nd opp.party was the employer who was remitting the complainant’s annual subscriptions due to the EPF regularly. The complainant thereafter applied for the PF pension in Form10 D through the 2nd opp.party on 12.5.1997 which was rejected by the 1st opp.party, on the ground that the complainant is not eligible to have EPF 1995 pension scheme. Again the complainant on 13.11.99 forwarded her Form 10-D application with a written complaint regarding the retrospective effect of the pension scheme from 1.4.1993 which was also returned. Again the complainant applied for the EPF pension in Form 10-D along with available Family Pension records in the year 2002 which was also rejected.. Even though the complainant resigned from her service on 31.7.1995 and the EPF scheme 1995 came into force with effect from 16.11.1995, the 1st opp.party had to take into consideration that the scheme had retrospective effect.. The first opp.party without considering it rejected her application, which is deficiency in service on the part of the 1st opp.party. The 2nd opp.party being the employer of the complainant had to intimate the first opp.party that the complainant was a member of FPF 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 her work in the year 1962 and has also completed 33 years of regular service. 1st and 2nd opp.parties committed deficiency in service. Hence the complaint.<br /> <br /> The 1st opp.party filed version contending, interalia, that the complainant ceased her membership in Employees Provident Fund in March 1996 and the complaint is bard by limitation. The complainant joined the <br /> Employees’ Provident Fund on 1.4.1963. At the time of joining service her age was 30 years as per the statutory form No.9 return filed by her employer. She left service on 31.7.1995 and her Employees’ Provident Fund Account was settled in the year 1996. She was not a member of FPF Scheme 1971. She never contributed to the above scheme and she cannot claim any benefit under the scheme. The entire EPF Contribution remitted in the EPF account has been paid to the complainant during March 1996 as she applied for the same and thereby ceased membership in Employees’ Provident Fund Scheme, 1952 . There was 3 Schemes called Employees’ Provident Fund Scheme, 1952, Employees’ Family Pension Scheme, 1971 and the Employees’ Deposit Linked Insurance Scheme, 1976 administered by the 1st opp.party.. In the year 1996 a new monthly pension Scheme called Employees’ Pension Scheme, 1995 was introduced with effect from 16.11.1995 and the Employees’ Family Pension Scheme, 1971 repeated. While implementing the Employees’ Family Pension Scheme 1971 all employees in the EPF as on 28.2.1971 were given freedom to opt or not to opt for the Scheme, by contributing 1.16% of wages from and out of Employees’ Provident Fund Contribution. A number of employees joined the scheme and many did not . The complainant did not join the Scheme and remained as a Non-Family Pension Scheme scheme member 1995 Scheme extend chance to join this schemes by filing an option and remitting the contribution due to the fund from 1971 onwards. The complainant did lnot join the Pension Fund and withdrew the entire Employees’ Pension Fund in March 1996. A member of the Employees’ Pension Fund shall continue to be such member till he attain the age of 58 years or he avails the withdrawal benefit to which he is entitled under para 14 of the Scheme or dies or the pension is vested in him in terms of Para 12 of the Scheme whichever is earlier. The complainant failed to exercise option to Employees’ Pension Scheme 1995 and to remit the pension fund contribution with interest during the period of her membership in Employees’ Pension Fund Scheme, 1952. This is a requirement for acquiring membership under Employees’ Pension Fund, 1995 Thus the complainant is out of the ambit of Employees’ Pension Scheme 1995. Hence the 1st opp.party prays the dismissal of the complaint.<br /> <br /> The 2nd opp.party also filed a separate version contending interalia that the complaint is not maintainable and the complainant has no locus standi to seek any relief against the 2nd opp.party.. The complainant was an employee of the 2nd opp.party and was a covered employee under the Provident Fund Scheme. She joined service of the 2nd opp.party in the year January 1963 and as per the available service records with the 2nd opp.party her date of birth is 1.1.1933. She was discharged from service on 31.7.1995 at the age of 60. The amount collected from the complainant as contribution towards Provident fund has been remitted along with the Employer’s contribution. The cashew Industries is a seasonal one and there will not work in the factory on all days in an year. In the year 2000 the factory was sold to one Krishna Food processor and now they are in possession of the factory. The membership of this employee ceased between 1.4.93 and 15.11.1995. Whether the complainant is entitled to get pension benefit has to be decided by the 1st opp.party. There is no deficiency in service on the part of the 2nd opp.parlty. Hence the 2nd opp.party also prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> [I] Whether the complainant is entitled to get pension benefits under EPS 1995?<br /> [II] Whether there is deficiency in service on the part of the opp.parties?<br /> [III] Reliefs and costs.<br /> For the complainant PW.1 is examined. Ext.P1 to P5 are marked.<br /> For the opp.party DW.1 is examined. Ext. D1. to D5 are marked.<br /> Points:<br /> There is no dispute that the complainant joined the service of opp.party 2 in 1962 and retired from service on 31.7.95. The case of the complainant is that she was not given pension though she was a member of 1952 scheme. There is also no dispute that the complainant was a member of 1952 scheme. Though she would claim that she was a member of 1971 scheme also she has failed to establish that aspect The contention of the opp.parties is that the complainant did not file any option for joining the 1971 scheme nor she paid any contribution till her Provident fund accumulation was settled in 3/96. In fact the complainant admitted in cross examination that she has not produced any document to show that she was a member of 1971scheme . In the absence of cogent materials it is to be concluded that she was not a member of 1971 Scheme. Exts. P2 series produced by the complainant shows that she was paying only PF contribution.<br /> Para 6 deals with membership 1995 scheme since the complainant had not opted for 1971 Scheme para 6 [b] and 6[c] are not applicable in her case. Similarly para 6[a] is also not applicable as it is applicable only to those who joined 1952 scheme after 16.11.1995 Para 6 [d] is also not applicable in her case as she has not exercised option under para 7 remitting past period contribution with interest there on referred to in para 17 [3] as she has not paid necessary contribution from 1.3.1997.<br /> <br /> The PF accumulation of the complaint was settled in 3/96. She has not exercised option while holding PF membership and paid contribution with interest from 1.3.19971 onwards upto the date of remittance to the pension fund which is sine quanon for exercising option.<br /> <br /> The learned counsel for the complainant argued that the opp.parties at the time of settling PF accumulation did not inform the complainant of the benefits of 1995 scheme and had she been informed of it she would have opted the scheme. The opp.party would argue that though they have not given individual intimation to each they have given necessary intimation through the concerned employers . There is nothing to disbelieve it.<br /> <br /> Another contention of the complainant is that settlement of PF account is no bar for exercising option to the 1995 scheme as no cut off date is prescribed for option. That argument cannot be accepted . An employee ceased to become a member of 1971 scheme on attaining 60 years and she cannot exercise option after ceasing membership in the PF Account. The evidence before us shows that the complainant failed to exercise option to 1995 scheme while she was a member of 1952 scheme and also failed to pay pension fund contribution with interest thereon while she was a member of 1952 scheme. Therefore the rejection of her application for pension cannot be said to be illegal<br /> The contention of the opp.parties is that the complaint is barred by limitation. The complainant’s 1st application in Form 10 D was rejected on 7.7.97. Thereafter she filed application in 2002 which was also rejected. It is after that the present application is filed in 2005 delay condonation petition was filed and this Forum has allowed that petition. Hence this point is found in favour of complainant.<br /> <br /> In the result the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> <br /> Dated this the 7th day of August, 2008.<br /> <br />