<br /> <br /> <br /> By SRI.K. VIJAYKUMARAN, PRESIDENT.<br /> <br /> Complainant filed this complaint seeking EPF Pension 1995 and other reliefs.<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 which is an establishment covered by Employees Provident Fund and Miscellaneous Provisions Act, 1952. The complainant commenced her work in the year 1962 and was a member of Employees Provident Fund Scheme 1995 and in the Family Pension Fund later on. The Provident Fund Account No. allotted to her is KR.1400/217. She retired from service on 31.7.1995 after completing 33 years of regular service. The 2nd opp.party has remitted her annual subscriptions due to the Provident Fund without delay or default . The complainant applied for her Provident Fund pension in Form No. 10D through the 2nd opp.party on 25.3.1996, on 30.6.1997 and 25th March 1998 which were returned with a statement that re-option is not available to non Provident Fund members who left service before 16.11.1995 and hence your application is rejected and returned.. The complainant again applied for EPF pension in the year 2002 which was also rejected and returned. Even though the complainant resigned from her service on 31.7.1995 and the EPF came into force in 15.11.1995 the 1st opp.party had to take into consideration that the scheme had retrospective effect. The 1st opp.party instead of doing its service to the complainant rejected her application which is a grave act of deficiency in service on the part of the 1st opp.party. The 2nd opp.party being the employer had to intimate the 1st 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 her work in the year 1962 and completed 33 years of regular service. Hence the act of the 2nd opp.party is also deficiency in service. The complainant is entitled to be given Employees Provident Fund Pension Scheme 1995 from the date of her retirement., Hence the complaint.<br /> <br /> The 1st opp.party filed a version contending, interalia, that the complaint barred by limitation under section 24 A of the Consumer Protection Act 1986. As per the Manual of Employees Provident Fund Accounting Procedure Part – I General, Employees Provident Fund Organization. This opp.party is bound to weed out records every year and to retain records for the period specified in annexure ‘A’ of Record Retention Schedule The complainant was an Employees Provident Fund Subscriber bearing account No. KR/1400/217. She joined the Scheme on 1.4.1963. There were three schemes called the Employees Provident Fund 1952, the Employees Family Pension Scheme 1971, the Employees Deposit Linked Insurance Scheme 1976 etc. In the year 1995 the Employees Family Pension Scheme 1971 was repealed and a new monthly pension scheme called Employees Pension Scheme 1995 introduced with effect from 16.11.1995. The 1971 scheme was introduced with effect from 1.3.1971. All the members of Provident Scheme 1952 were given freedom to join the 1971 scheme. The complainant did not join or contributed 1971 scheme. As such she cannot claim any benefit under the Employees Family Pension Scheme 1971 or Employees Pension Scheme, 1995. Though who opt to join the 1971 scheme have to contribute 1.16% of wages from and out of the Employees Provident Fund contribution in both shares [Viz. employees share and employers share]. The complainant did not opt to join the Scheme and did not contribute to the Family Pension Scheme or pension scheme till the date of settlement of her Employees Provident Fund account in January 1996. This the statement of the complainant that she had contributed to the Family Pension Fund is wrong . The complainant had not opted for Employees Pension Scheme 1995 before the ceasing her membership in Employees Provident Fund. The membership of the complainant in EPF ceased with the closure of the account. The membership in Employees Pension Scheme 1995 is governed by para 6 of the scheme read with para 12 [b]. The complainant does not come under any of the above provisions . Since the Complainant was not a Family Pension Fund member and had not exercised her option to Employees Pension Scheme 1995 before the settlement of her Employees Provident Fund account. She is not entitled to exercise to option for Employees Pension Scheme 1995. As per para 6 only a member of Employees Provident Fund can exercise option. The complainant never contributed to the pension fund nor opted the join the pension fund during the period of Employees Provident Fund membership. There is deficiency in service on the party of this opp.party. Hence this opp.party prays to dismiss the complaint.<br /> <br /> The 2nd opp.party filed a separate version contending interalia that the complaint is not maintainable either in law on or facts. The complainant was an employee of the 2nd opp.party and was a member of Provident Fund Scheme 1952. She joined the service of the 2nd opp.party in the year 1963 and her date of birth as per the available records on 1.1.1935, she was discharged from service on 31.5.1995 at the age of 60. What all amount collected from the complainant as contribution towards Provident Fund has been remitted along with the Employer’s contribution . The Cashew industry is seasonal in nature, so there would lnot be work in the factory on all days in an year from the year 2000 the factory was sold to Krishna Food Process and the factory is now in their possession The membership of this -5-<br /> Employee ceased between 1.4.93 and 15.11.1995 whether this particular she is entitled to get pension is to be decided by the by the first opp.party. There is no deficiency in service on the part of the 2nd opp.party. Hence the 2nd opp.party also prays to dismiss the complaint.<br /> <br /> <br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Is not the complainant the member of 1971 scheme?<br /> 2. Whether the complainant is entitled to get pensionary benefit under the EPF 1995.<br /> 3. Reliefs and costs.<br /> <br /> <br /> For the complainant PW.1 is examined. Exts. P1 to P3 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined. Exts. P1 and P2 are marked.<br /> <br /> <br /> Points:<br /> <br /> The complainant joined the 2nd opp.party in the year 1962 and superannuated on 31.7.1995. Admittedly she was a member of 1952 scheme and she retired prior to the coming into force of the 95 scheme. It is sent that her Provident Fund Account was settled in January, 1996. The definite case of the opp.party 1 is that the complainant did not opt for 1971 scheme as provided under paras 3 and 4 prior to the settlement of her PF account and therefore she is not entitled to get pension under the 95 scheme.<br /> <br /> Para 6 of the 95 scheme deals with the membership in that scheme. Para 6A lays down that member of that scheme ceases to be a member on attaining 58 years. The complainant herein has retired from service on 31.7.95 whereas the 95 scheme came into force on 16.11.1995. Though the learned counsel for the complainant would argue that this scheme has come into force with introspective effect from 1.4.93 that argument does not appeal to us. The scheme permits certain categories of pension to opt the scheme who ceased to be member of 1971 scheme between 1.4.93 and 15.11.95. It does not mean that the scheme has retrospective application from 1.4.93.<br /> <br /> As pointed out earlier the complainant was a member of 1952 scheme. Though she would claim that she was a member of 1971 scheme also no material, worth believable was produced to establish that aspect. The opp.party 1 has categorically stated that the complainant is not a member of 1971 scheme. So paras [b] and [c] are not attracted in the complainants case for opting the 95 scheme as she was not a member of 1971 scheme. Provisions of para 6 [d] are also not applicable. Since she has not paid any contribution as provided therein. <br /> <br /> As per rules with the closure of PF account and receiving the PF accumulation the membership thereon ceases. The complaint received the PF accumulation in January 1996. An employer cannot opt the 1971 Scheme after attaining 60 years. So in January 2006 the complainant cannot exercise option. It is well settled that the option must be exercised during the subsistence of PF membership. The amount of contribution and interest from 1.4.1971 up to the date of remittance has also to be transferred to the pension fund. There is no dispute that has not been complied with.<br /> The learned counsel for complainant argued that at the time of settlement of PF account the opp.parties did not bring to her notice the advantages of 95 scheme which they are bound to do and had they informed her about it she would have opted for the scheme. DW.1 has stated that information has been given to the employee through their employer and there is nothing to disbelieve the same. <br /> <br /> It is argued by the learned counsel for the complainant that the settlement of PF account is no bar for exercising option to 1995 scheme as no cut off date is presented for option. The argument cannot be accepted. Even assuming that there is not cut off period for exercises option one of the pre conditions for exercising option to 95 scheme is that the employee must be a member of 1971 scheme and that contribution of 1971 scheme with interest from 1.3.1971 has been paid. As pointed out earlier a member of 1971 scheme ceases to be a member on attaining 60 years and cannot become a member of 71 scheme after that.<br /> <br /> The complainant has produced the ruling of the High Court of Kerala in OP.18432/97. In our view that decision is not applicable in this case. That decision was rendered by High Court in a special case where the employees were retrenched lwhich is not the case herein. <br /> <br /> The opp.party argued that the complaint is barred by limitation. It is argued that the 1st 10D application of the complainant was rejected as early as 26.3.1996 which was rejected and returned. The complaint was filed only in the year 2004. Sec. 24A prescriber a period of limitation of 2 years. Filing of 10D application again and again will not extend the period of limitation. The cause of action arose with the rejection of the 1st application. Therefore this complaint is barred by limitation. Point found accordingly.<br /> <br /> <br /> <br /> <br /> In the result the complaint fails and the same is dismissed. No costs.<br /> <br /> <br /> <br /> <br /> Dated this the 31st day of July, 2008.<br /> <br /> <br /> <br /> <br /> I N D E X<br /> <br /> <br /> List of witnesses for the complainant<br /> PW.1 – Parukutty<br /> <br /> List of documents for the complainant<br /> P1. – Termination order<br /> P2. - !0.D Form<br /> P3. – Rejection Memo<br /> <br /> List of witnesses for the opp.party<br /> DW.1. – Ramlath Beevi<br /> <br /> List of documents for the opp.party<br /> D1. – Retention Record<br /> P2. – Repudiation letter<br />