KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 876/2006
JUDGMENT DATED: 12.10.2010
PRESENT:-
JUSTICE.SHRI. K.R.UDAYABHANU : PRESIDENT
SHRI. S. CHANDRAMOHAN NAIR : MEMBER
APPELLANTS
1. The Regional Provident Fund Commissioner,
The Employees Provident Fund organization,
Bhavishya Nidhi Bhavan, Pattom,
Thiruvananthapuram.
2 The Assistant Provident Fund Commissioner,
EPF Organisation,
Regional Office,
Pattom, Thiruvananthapuram.
(Rep. by Adv. Sri. Shaji Chellappan)
Vs
RESPONDENTS
1. Rukkiya Beevi, W/o Younus Kutty,
Kunnuvila veedu, Kannalloor,
Thrikkovilvattom, Kollam.
2. Sundareswaran,
M/s. N.S. Cashew Factory,
Thazhuthala, Kollam.
(R1 represented by Adv. Sri. Ravi, Amicuscuriae)
JUDGMENT
SHRI. S. CHANDRAMOHAN NAIR : MEMBER
The order dated 31.10.2010 in O.P. 394/04 of CDRF, Kollam is being challenged in this appeal by the first and second opposite parties who are under directions to release all the pensionary benefits under EPF Scheme 1995 with arrears from 9.5.1996 to the complainant with interest at 9% per annum from the date of order.
The complainant had approached the Forum stating that she was a cashew worker under the 3rd opposite party from 1963 onwards and her EPF number was KL-2/1237/455and that she retired on 8.5.1996 and was a recipient of the Cashew Welfare fund Board pension from 1.3.1997. It is her case that though she was eligible to get the pension benefits under EPF Scheme 1995 and though she had applied for it through the 3rd opposite party, the same was not given to her. Submitting that she was an ailing person she filed the complaint before the Forum for directions to the opposite parties 1 and 2 to give her pension and other benefits.
The first and second opposite parties contended that the complaint was not maintainable as an earlier O.P. (O.P. No. 419/03) was filed by the complainant which was dismissed and on the very principle of restudicata the present complaint could not be entertained. It was also submitted that the complainant had joined the EPF on 1.12.1964 and that she did not join the 1995 Scheme and also had withdrawn her Provident Fund amount in November 1997. The further case of the above said opposite parties was that the complainant had not exercised her option in writing remitting the contribution of the past periods from 1.3.1971 and in such a condition the complainant was not entitled to any pension benefits as claimed by her.
The complainant was examined as Pw1 and documents P1 to P8 were marked on the side of the complainant. On the side of the 1st and 2nd opposite parties, the Provident Fund Enforcing Officer was examined as Dw1.
Heard the counsel for the appellants and the amicuscuriae for the respondent.
The learned counsel for the appellants vehemently argued before us that the order of the Forum is illegal and unsustainable on the ground that proper appreciation was not given to the facts and circumstances of the case. It is his very case that the Forum below ought not have directed the appellants to release the pension benefits under EPF Scheme 1995. It is also submitted by him that the complainant/respondent had not opted for 1995 Scheme by remitting the contribution from 1.3.1971 onwards and in such a situation the complainant is not entitled to get the pension benefits. He has also submitted before us that only an employee who has been a member of EPF as on 16.11.1995 could exercise option to join EPF, 1995 Scheme and that the appellants did not get any such option from the complainant while she was in service and therefore the direction of the Forum below is sustainable. It is further submitted that the complaint was not maintainable as the complainant had already filed a O.P. (O.P. No. 419/03) for the same relief which was dismissed and the same was not taken in appeal by the complainant. Thus he advanced the contention that the appeal is to be allowed and the order of the Forum below is to be set aside.
On the other hand the learned counsel amicuscuriae appointed by this Commission for and on behalf of the respondent, supported the findings and conclusions of the Forum below. He has submitted before us that the complainant was a member of the 1964 Scheme and though she was not a member of the 71 Scheme she could very well be a member of the 1995 Scheme and that the complainant had applied for the benefits under the 1995 scheme which ought to have been allowed by the appellants. He has also argued that the complainant/employee would not be held liable for the lapses or the short comings committed by the employer. It is his further case that the earlier complaint was dismissed for default only and in such a situation, the present complaint cannot be held to be not maintainable and hit by the principle of resjudicata.
On hearing the Counsel for the appellants, amicuscuriae for the respondent and also on perusing the records, we find that the complainant/respondent was an employee of the 3rd opposite party/second respondent and also that she was a member of the 1964 scheme. However it is also noted that the complainant was not a member of the 1971 scheme and she had not applied for the 1995 scheme. It is also noted that it was after the retirement that she claims to have applied for joining in the 1995 Scheme. But it is to be found that for joining in the 1995 scheme the complainant had to file application and remit the contribution with interest from 1.3.1971 to get benefit of the 1995 scheme. In the instant case, it is found that the complainant had not complied with the above stipulation provided under the 1995 Scheme and in such a situation we can only agree with the appellants that the order directing to release the Pension benefits under the 1995 scheme is not supported by the relevant provisions of the Employees Provident Fund Act. It is also to be found that the Forum has passed the order without proper appreciation of the rules and regulations contained in the EPF Scheme 1995. Without remitting the contribution, it was not proper for the side of the Forum below to direct the appellants/opposite parties to release the pension benefits to the complainant. As a sequel to the above discussions, we are of the opinion that the appeal is to be allowed and the order of the Forum below is to be set aside.
In the result, the appeal is allowed and the order dated 31.10.2006 in O.P. 394/04 of CDRF, Kollam is set aside. However the appellants are directed to consider the claim of the complainant, if she is ready and willing to remit the contribution for the past periods from 1.3.1971 with interest thereof for enabling her to be a member of the 1995 scheme and to get the pensionery benefits. In the nature and circumstances of the present appeal, the parties are directed to suffer their respective costs.
S. CHANDRAMOHAN NAIR : MEMBER
JUSTICE.K.R.UDAYABHANU : PRESIDENT
ST
