IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  24^th  Day of  May   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.83/2017

K.P.Vijayan                                                          :         Complainant

Padma Nivas

Ezhukone P.O

Kollam-691505.

[By Adv.Murali Madanthacode]

V/s

1. Regional Provident Fund Commissioner     :         Opposite parties

          Provident Fund Organisation

          Sub Regional Office

          Kollam-691001.

         [By Adv.Uliyakovil R.Santhosh Kumar]

2. Prathap.R.Nair 

          Proprietor

          Sunfood Corporation

          Kochupilammoodu, Kollam-691001.

          [By Adv.G.Haridas]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act.

          The averments in the complaint in short are as follows:-

          The complainant was a ministerial checker in the Head Office of the 2^nd opposite party.  He retired from service on 30.06.2014 from EPS, 95 since as per EPF records he completed 58 years on that day.  The PF A/c Number of the complainant is KR/KLM/0001191/00A/0000017.  After retirement the complainant applied for monthly pension.  Accordingly the 1^st opposite party sanctioned a monthly pension of Rs.2245/- from 01.07.2017 onwards.  According to the complainant he has an eligible service of 23 years in which 4 years past service and 19 years actual service.  The complainant was a cashew staff worked continuously in his service in the head office of the 2^nd opposite party with a wage of Rs.16374/- during the month of June 2014  he paid contribution of Rs.1965/- to the EPF.  The pensionable salary of the complainant will be around Rs.16000/-.  But the 1^st opposite party calculated pensionable salary as Rs.6500/-.  The 2^nd opposite party has deducted PF contribution from the total wages of the complainant and paid regularly to EPF.  The complainant has actual service of 18 years, 7 months, 15 days and he worked continuously in the service.  Therefore the

pensionable service will be 19 years and the complainant is eligible to get an actual service pension of Rs.4343/- and a past service pension of Rs.353/- and a total monthly pension of  Rs.4696/- from 01.07.2014 onwards.

          The complainant worked in the company up to November 2016 and retired on 30.11.2016 only.  The 2^nd opposite party deducted contribution from the wages of the complainant and paid to EPF up to the above date.  The 1^st opposite party accepted 8.33% of  Employer’s contribution to Employees Pension Scheme up to 30.11.2016.  The complainant is eligible to get back the employers share of EPS from 07/2014 to 11/2016 which is not yet paid by the 1^st opposite party and which is against the scheme and hence there is clear deficiency in service on the part of the 1^st opposite party.  The above act of the 1^st opposite party caused much tension and mental agony to the complainant.  Hence the complaint. 

          Though both opposite parties entered appearance, the 1^st opposite party alone has filed version and the 2^nd opposite party remained exparte.  The 1^st opposite party would admit that the complainant was an EPF member with Account Number KR/KLM/1191/A/17.  As per office records kept by the 1^st opposite party the complainant joined the EPS scheme on 01.10.1991.  His date of birth as per office records is 01.07.1956.  Hence his membership under EPS, 1995 was ceased on 30.06.2014 on completion of 58 years.  The complainant applied for superannuation pension, in Form 10 D and on receipt of application in Form 10 D, he was sanctioned monthly member pension @ Rs.2245/- per month w.e.f 01.07.2014 .  The 1^st opposite party  would deny all other claims of the complainant and would content that the contribution towards pension fund in respect of the complainant has been remitted by limiting to the wage ceiling, for the entire period of his service.  The EPS, 1995 is a contributory scheme and the benefits given to the members are in accordance with the quantum of contribution received.  The pension is calculated on the basis of pensionable service and pensionable salary.  The contention of the complainant is related to the pensionable salary which is determined as per para 11 of the EPS Scheme.  In the instant case even if the actual salary of the complainant exceeds the wage ceiling, the pensionable salary is taken as Rs.6500/-, as the member has not submitted his option to contribute to the Pension fund on his actual salary exceeding Rs.6500/- per month, the employer also had not remitted the 8.33% of the actual salary exceeding Rs.6500/- to the Pension Fund.  Hence the calculation of pension is done in conformity with  the existing scheme provision.

          The 1^st opposite party would further admit that the complainant is eligible to get back the employers share of EPS from 07/2014 to 11/2016.  At the time of settlement of EPF of the complainant  the whole amount in the EPF account has been settled.  But the employer had wrongly remitted the Employer share of contribution  towards EPS beyond the retirement date.  The excess contribution remitted by the employer in the pension fund is available with his account.  As per Head Office Circular No.Pension I/12/33/EPS Amendment/96/Vol.II/34007 dated 23.03.2017 in connection with Hon’ble Supreme Court’s judgment in SLP No.33032-33033 of 2015, if the employer had deposited 12% of the actual salary and not 12% on the wage ceiling limit of Rs.5000/- or Rs.6500/-, those members cannot be debarred from exercising option/revision of pension  on actual salary.  In the instant case, the contribution for the period 2008-09 to Date of Leaving Service in respect of the complainant has been remitted on actual salary towards EPF(both employee and employer)except for the year 2010-11, 09/2012 and 10/2012.  But the contribution towards Pension Fund had restricted to Rs.6500/- for the entire period of service.  The member had fully withdrawn/settled his EPF amount on 02.01.2017 including the excess amount remitted in Employer share up to 06/2014.  In these circumstances, since the employer had remitted the 12% on actual salary, as per the above mentioned Circular dated 23.03.2017, the complainant become eligible for exercising option for pension on actual salary, subject to the condition that the employer remits the contribution for the difference of wages above Rs.6500/- for the period 2010-11, 09/2012 and 10/2012 along with penal damages and penal interest under Section 14B&7Q of the EPF&MP Act, 1952 respectively and subsequently on fulfilling the following requirements:-

1. Application from the complainant  duly forwarded by the employer, for revision of pension.
2. The contribution with up to date interest, for the difference of wages above Rs.6500/- to be remitted towards Pension Fund.
3. Submission of Form 3A by the employer for the period 1995-96 to the Date of Leaving Service.

The amount left in Pension Fund may be adjusted with the amount, which the complainant has to be remitted in future.  There is no deficiency in service as alleged and also no irreparable loss caused to the complainant since eligible pension has been sanctioned in time on the basis of the information/documents submitted by the 2^nd opposite party, who was custodian of the service records of the complainant.

In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service on the part of opposite party No.1&2 as alleged?
2. Whether the complainant is entitled to get monthly member pension @ Rs.4968/-?
3. Whether the complainant is entitled to get arrears of monthly member pension from 01.07.2014 onwards with interest as claimed?
4. Whether the complainant is entitled to get compensation, if so what would be the quantum to be awarded?
5. Reliefs and costs. 

Evidence on the side of  the complainant consists of the oral evidence of PW1&Ext.P1 to P4 documents.  Evidence on the side of the contesting 1^st opposite party consists of  DW1 and Ext.D1to D3 documents.  The complainant and the counsel appearing for the 1^st opposite party has filed notes of argument.  Heard both sides.

Point No.1 to 3

For avoiding repetition of discussion of materials these 3 points are considered together.  The following are the admitted facts in this case.  The complainant was an employee of 1^st opposite party and also as a member of EPF scheme and the PF A/c No is KR/KLM/0001191/A/17.  The complainant entered into PF service on 01.10.1991 and left from EPS on 30.06.2014.  The date of birth of the complainant as per the records kept at the office of the 1^st opposite party is 01.07.1956.  Admittedly the membership of the complainant with EPF would cease on attaining 58 years which as per the records is on 30.06.2014.  However it is admitted by the 1^st opposite party that the complainant continued his PF membership till 30.11.2016 and thereafter he applied for superannuation pension in Form No.10 D and as per Ext.P1 PPO Rs.2245/- has sanctioned as monthly member pension w.e.f 01.07.2014.

          According to the complainant his salary as on June 2014 was Rs.16374/-  and the corresponding contribution to the  EPS was deducted and paid and therefore his pensionable salary will be around Rs.16,000/-.   But  pension was calculated by the 1^st opposite party by considering Rs.6500/- as pensionable salary.  If the pensionable salary was considered as Rs.16,000/- he is entitled to get monthly member pension @ Rs.4696/- w.e.f  01.07.2014.

The learned counsel for the opposite party has argued that the complainant had exited from the Employees Pension Scheme 1995 on attaining superannuation on 30.06.2014.  Further he had not utilized the joint option provided under para 11(3) of the EPS which is open only to members of Employees Pension Scheme.  Furthermore the employer had not remitted to the Employees Pension Fund contributions in respect of the complainant’s actual higher salary for the entire period from the date on which his salary exceeded the wage limit to the date of exit under the EPS 1995 and therefore the 1^st opposite party has decided to grant pension on actual salary subject to condition that the employer remits contribution for  the difference of wages above Rs.6500/- for the year 2010-11 and 09/12 &10/12(on those years the employer had not remitted on actual salary) as well as  penal damages and penal interest u/s 14(B) & 7(Q) of EPS &MP Act 1952 respectively.

The learned counsel for the complainant has argued that payment of contribution as per actual salary was made by the complainant and accepted by the 1^st opposite party which is evident from Ext.P4 document.  The 1^st opposite party has also admitted that fact in this case and that the acceptance of contribution by the 1^st opposite party is the explicit proof or submission of joint option.  Once the payment started then if it fails it is the duty of the 1^st opposite party to realize the amount from the  employer as per the provisions of the Act.  We find much force in the above argument.

Since the complainant is an existing  member the monthly member pension is the aggregate of past pension and actual pension which according to the complainant is Rs.353+4615=Rs.4968/-.  But he was getting Rs.2245/- only as monthly member pension.  Hence the complainant is eligible to get Rs.4968/- along with interest for the balance amount from 01.07.2014 onwards.  As the contribution as per actual salary is paid to the provident fund from the date  exceeding the limit of  Rs.6500/- and was accepted by the 1^st opposite party and subsequently denying the benefit as per the Act and Scheme definitely amount to deficiency in service as argued by the learned counsel for the complainant.

Admittedly the complainant is having 4 years 01 month and 15 days past service.  There is also no dispute with regard to the past service pension of Rs.353/- awarded by the 1^st opposite party to the complainant.  Now pensionable service of the complainant is to be ascertained.  Section 10(1) of the EPS 1995 pensionable service is defined as the service of the complainant in which the contribution received or receivable.  Pensionable service stated u/s 12(2) formulae is replaced by Number of years.  Hence pensionable service is the number of years in which contribution received from the employer.  The actual service of the complainant is 19 years and contribution received for the entire 19 years up to 30.06.2014.  The complainant is also entitled to get weightage of 2 years.  Therefore pensionable service is 19+2=21 years.

The next aspect is to be considered is pensionable salary of the complainant.  As per Section 11(1) of the EPS and as per Ext.P3 document total wages during the last 12 months span is Rs.15383/-.  The normal limit of pensionable salary  was Rs.6500/-.  But contribution as per the actual salary was remitted to the provident fund from the date in which the salary exceeds the limit of Rs.6500/-.  Pensionable salary is based on such higher salary.  The 1^st opposite party would admit that the employer paid contribution based on the actual salary from the date in which salary exceeded the limit and the payment  was accepted by the 1^st opposite party.  In the circumstances the 1^st opposite party has no right to object the right of the complainant  as per Section 11(3) of the EPS and also as held by the Hon’ble High Court of Kerala.

The learned counsel for the 1^st opposite party has argued that the complainant’s EPF contribution both employee and employer share for the  period from 2008-2009 till the date of leaving service(30.11.2016) was remitted on his actual salary and on 02.01.2017 the complainant had withdrawn/settled all his EPF balance including the amount remitted by the employer on account of his contributions on higher pay.  It is further admitted in para 9 of the argument note filed on behalf of the 1^st opposite party that the complainant is entitled to the employers share of employees pension fund contributions from 07/2014 to 11/2016.   But the entire amount for the complainant’s EPF account was paid to him while settling the PF amount.  It is also admitted that the employer had erroneously remitted the employers portion of the EPF contributions to his PF from the time he exited from the employees pension scheme at the age of 58 until he left service on 30.11.2016.  The complainant has also no much dispute with regard to the above contentions that excess money credited to his pension fund account 07/2014 to 11/2016 was credited to his bank account along with interest. 

          The learned counsel for the opposite party has further pointed out that proceedings are pending before the Hon’ble Supreme Court and until final decision of the Hon’ble Supreme Court in the review petition the process of revising pension based on actual salary the complaint is to be dismissed with liberty to file a fresh complaint before this Commission after the decision of the  Hon’ble Supreme Court or to defer the matter sine a die until the decision of  Hon’ble Supreme Court.  As there is no stay of proceedings this Commission is expected to proceed with the case and pronounce an order especially when the matter is oldest one(having 5 year old) and if at all the opposite party is aggrieved by the order it can obtain a stay  of execution of the order until the disposal of the review petition pending before the Hon’ble Supreme Court.

In view of the materials available on record including  the admission of 1^st opposite party in his version and also in view of Ext.P4 document it is crystal clear that joint option was submitted and the 1^st opposite party has  received contribution  as per the actual salary by considering the joint option submitted by the employer.  It is the settled position that once the payment of contribution as per the actual salary was started it is the duty of the 1^st opposite party to realize the amount even if the employer fails to pay contribution as per the actual salary. If the 1^st opposite party failed to collect the contribution as per the actual salary after filing joint option there is deficiency in service on the part of the 1^st opposite party.  The monthly actual pension as per clause 12(2) of the EPS 1995 is (Pensionable salary x pensionable service÷70) which would come to the tune of Rs.4615/-.

Since the complainant is an existing member the monthly member pension is the aggregate of past pension and actual pension.  There is no dispute with regard to past pension which is Rs.353/- per month.  The monthly actual pension is Rs.4615/- as shown above.  Therefore the monthly member pension entitled to the complainant is Rs.353+4615=Rs.4968/-.  In  view of the materials available on record it is clear that the complainant is entitled to get the monthly member pension at the rate of  Rs.4968/- w.e.f  01.07.2014 onwards.

It is also brought out in evidence that as the actual monthly member pension legally entitled to the complainant is not sanctioned by the 1^st opposite party  there is deficiency in service.  According to the complainant as the 1^st opposite party has granted only a lesser pension than the amount legally eligible to him, he has sustained much mental agony apart from financial loss and therefore he is entitled to get compensation for the mental agony.  The complainant is also entitled to get reasonable costs of the proceedings.  The points  answered accordingly.

In the result the complaint stands allowed in the following terms.

The  1^st opposite party is directed to pay monthly member pension @ Rs.4968/- along with arrears from 01.07.2014 onwards with interest @ 6% p.a.  The 1^st opposite party is also directed to pay Rs.10,000/- towards compensation and costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  24^th day of  May  2022.

                           E.M.Muhammed Ibrahim:Sd/-

                           S.Sandhya Rani:Sd/-

                         Stanly Harold:Sd/-

                         Forwarded/by Order

                          Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         K.P.Vijayan

Documents marked for the  complainant

Ext P1:        True Copy of  Pension Payment Order.

Ext P2:        True copy of salary revision Jan.2014.

Ext.P3:        True copy of salary statement.

Ext.P4 series: Copy of application from the complainant and copy of certificate from  2^nd opposite party.

Witnesses Examined for the opposite party:-

DW1           :   Maji.G.Krishnan.

Documents marked for the opposite party:-

Ext.D1        : Circular dated 23.03.2017 from EPFO

Ext.D2        : Copy of order from Hon’ble Supreme Court.

Ext.D3        :Copy of circular dated 20.03.2021 from EPFO.

                                   E.M.Muhammed Ibrahim:Sd/-

                                   S.Sandhya Rani:Sd/-

                                   Stanly Harold:Sd/-

                                  Forwarded/by Order

                                  Senior Superintendent