D.O.F. 21.02.2004

                                          D.O.O. 23.02.2004

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K. Gopalan                :       President

                                      Smt. K.P. Preethakumari :       Member

Smt. M.D. Jessy               :       Member

Dated this the 23^rd day of  February, 2011.

C.C.No.45/2004

1.  C.V. Varghese,

     S/o. Varghese, Cheruparambil House,

     Odanthode, P.O. Manathan, Kannur District.

2.  P.P. Vargherse,

     S/o. Varghese, ‘Puthkkara House’,

     P.O. Manathan, Kannur District.                    :         Complainants.

3.  T.K. Lakshmikutty Amma,

     W/o. Shankaran Nair,

     ‘Vettukuzhiyil House’, Odanthode,

     P.O. Manathana, Kannur District.

(Rep. by Adv. John Joseph)

1.  The Secretary,

     Board of Trustees, E.P.F.,

     State Farms Corporation of India Ltd.,

     14-15 Farms Bhavan, New Delhi -19.

(Rep. by Adv. P.V. Lohithakshan)

2.  The Regional Provident Fund Commissioner,

     Employees Provident Fund Organisation,       :         Opposite parties.

     8^th and 9^th Floor,  Mayyor Bhavan,

     Cannaught Circus, New Delhi -1.

3.  Assistant Provident Fund Commissioner,

     Employees Provident Fund Organisation,

     Sub Regional Office, Fort Road, Kannur.

(Rep. by Adv. V.C. Pramod Kumar)

O R D E R

Smt. K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the 1^st opposite party to pay the actual amount due to the 1^st and 2^nd complainant towards EPF benefit along with 12% interest from the date of entitlement and to disburse the family pension contribution illegally withheld by him to the complainants along with 12% interest per annum from the date of entitlement till realization and to direct 2^nd and 3^rd opposite parties to pass proper pension orders with respect of 1^st and 3^rd complainants with compensation and cost.

          The brief facts of the complainants case is that they are retired employees of Central State Farm and complainant No.2 and 3 have authorized the 1^st complainant to file the case since all of them have similar interest.  The 1^st opposite party is collecting contributions for EPF and allied schemes from the employees as well as from the employer and administer the same as per EPF Act, 1952.  The 1^st opposite party is disbursing the EPF benefits to subscribers on retirement and transferring the Family Pension account to 2^nd opposite party for disbursement of pension.  2^nd opposite party is administering EPF accounts.  3^rd opposite party is passed PPO in respect of the complainants.

          The 1^st complainant is retired from service on 26.03.2003 by optioning VSS.  But the 1^st opposite party disbursed only a sum of           ` 42,000 to him against his entitlement of more than ` 80,000 and has received this amount after an inordinate delay of more than one year and granted the interest.  Many of the colleagues with identical service condition have received higher amount than that of 1^st complainant and no calculation statements is also not given by the opposite parties.  So she is entitled to get balance amount from 1^st opposite party.  The 1^st complainant received Pension Payment Order dated 10.10.2003 for an amount of ` 375 from 2<sup>nd</sup> opposite party.  But as per para 12(5) he is entitled to get ` 600 towards monthly pension.  The 1^st opposite party has not remitted the contribution paid by him to 2^nd opposite party after attainment of 58 years of age.  So 1^st opposite party is liable to refund the contribution to EPF collected from 1^st complainant and the employer for 13 months.

          The 2^nd complainant retired from service on 31.05.2001 on attainment of 60 years.  The 1^st opposite party has not disbursed the EPF contribution paid by him as well as the employer for a period of 2 years.  He has received only a sum of ` 60,000 towards Provident Fund benefits as against this entitlement of more than ` 80,000 even as per the annual account statement given by 1^st opposite party.  2^nd complainant is entitled to get more than ` 80,000 and also entitled to get interest for delayed payment also.

          The 3^rd complainant retired from service on 26.03.2001 and her date of birth is 05.07.1941 and she attained 58 years of age on 05.07.1999.  The 1^st opposite party has withheld the EPF contribution for a period of 20 months and she is entitled to get back the same with 12% interest per annum. The 2^nd opposite party sanctioned only ` 396 as monthly pension as against her entitlement of a minimum of ` 600.  The 1^st and 2^nd complainant issued a lawyer notice to 1^st opposite party, but so far no reply is sent nor any amount is paid to the complainant.  Later on 15.12.2003 another lawyer notice was issued to all opposite parties on behalf of 1^st and 3^rd petitioner.  The 1^st opposite party issued a reply dated 02.01.2004 with untenable contentions.   The 1^st and 2^nd complainants received communication dated 10.12.2003 from their employer regarding disbursement of the amount withheld by 1^st opposite party and as per the direction, they had filled up the forms sent to them and submitted same to the employer, to be forwarded to 1^st opposite party.  But no amount is paid by 1^st opposite party so far.  Hence this complaint.

          In pursuance to the notice issued by the Forum all opposite parties filed their version.

          1^st opposite party filed version contending that the complainants are not consumers since they have not availed any service from the opposite party for consideration.  The complainants were employees of State Central Farm, Aralam.  So the relationship between the 1^st opposite party and the complainants were on the basis of their being employees of the Farm and hence the relationship was that of an employer-employee and was under a contract of personal service and hence the petition is liable to be dismissed. Moreover in the complaint there is no allegation against 1^st opposite party that there has been any deficiency in service and hence 1^st opposite party is an unnecessary party and the complaint is liable to be dismissed on these aspects also.

          The 1^st opposite party admits the date of retirement shown in the complaint.  According to 1^st opposite party they had been paid the ex-gratia amount and other retirement benefits including the amounts due to them as on the date of their retirement and which had accrued in their EPF account.  The complainants have not produced any proof to substantiate their claim.  The complainants were paid the amounts due to them under the EPF account along with interest calculated upto the previous month of the date of payment.  The delay was caused on account of the fact that several employees /staff of the Farm had availed VSS and VRS at the same time and the application submitted by these employees had to be duly processed which took some time.  The calculation of pension was done by 2^nd opposite party.  Eligible pension is calculated from the date of joining service upto the age of 58 years.  Any pension contribution made after that day may have to be refunded to the complainants, if they had otherwise subscribed to the pension fund after attaining the age of 58 years.  The application submitted by 1^st and 3^rd complainants for refund of the pension contribution made after 58 years has been duly processed and they have been refunded an amount of ` 2,104 and ` 3,340 respectively.  The 1^st opposite party has no knowledge about the reason for difference in the pension sanctioned by 2^nd opposite party.  The 1^st opposite party released an amount of ` 5,673 to the 2^nd complainant towards his pension contribution recovered from him after attaining 58 years.  So there is no negligence on the part of 1^st opposite party and hence the complaint is liable to be dismissed.

          The 2^nd and 3^rd opposite parties also filed version admitting that the complainants are the ex-employers.  The 1^st opposite party is administering the EPF account of the complainants and hence EPF benefit has to be released by 1^st opposite party.  The 2^nd opposite party is having only jurisdiction to sanction monthly retirement pension and 3^rd opposite party is liable to disburse the amount since the complainants have opted to receive the monthly retirement pension through a bank under 3^rd opposite party’s jurisdiction.   The statement of the 1^st complainant that he is entitled to get ` 600 as monthly pension is not correct.  The 2^nd opposite party has prepared Input Data Sheet in respect of the complainants on the basis of the employment and contribution details in respect of the complainants available in the office of 2^nd opposite party duly certified by their employer 1^st opposite party.  On the basis of this input data 3^rd opposite party has processed the pension payment order.  On receipt of the complaint the 2^nd opposite party has given direction to the ex-employer of the complainant ie M/s. State Farm Corporation of India Ltd to refund the additional amount of EPS contribution and they had refunded the above amount to the complainant.  The contribution received from 2^nd and 3^rd complainants also released to them.  Hence there is no deficiency or irregularity in the Pension Payment Order issued by 3^rd opposite party.  It was also been informed that in case the complainants need any more clarifications regarding the date of birth and service furnished in the Pension Payment Order they may contact the Registered Office, New Delhi who is the custodian of all the documents.  So the complaint against 2^nd and 3^rd opposite parties is also liable to be dismissed.

          The following issues have been raised for consideration on the basis of the above pleadings.

1.        Whether the complainant is a Consumer and the Forum has jurisdiction to try the case.

2.        Whether there is any deficiency of service on the part of opposite parties.

3.        Whether the complainants are entitled to any relief?

4.        Relief and cost.

The evidence in the above case consists of Ext.A1 to A9 and B1 to B5.

Issue No.1

          The 1^st opposite party filed version contending that the complainants are not consumers as per Section 2(1)(d) of the Act,  since the relationship between 1^st opposite party and the complainants was that of an employer-employee.  But it is a well settled position of law that the member of a EPF and miscellaneous provisions Act, 1952 is a consumer under the Act, since the Hon’ble Apex Court in Regional Provident Fund Commissioner Vs. Shivkumar Joshi held that the member of a scheme is a consumer and the same was reported in 2000 NCJ SC (185).  So we hold the view that the complainants are consumer under the Act and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.  The complainant’s further case is that they were members under the EPF and the opposite parties has not disbursed them the entire entitled EPF benefits, Family Pension in proper manner in time.  Moreover the 1^st opposite party has not refund the excess contribution received from the complainants.   In order to substantiate their case the complainants have produced documents such as letters issued to complainants dated 10.12.2003 from Central State Farm, Aralam, Pension Payment Order of 1^st complainant, copy of lawyer notice dated 01.10.2003, acknowledgement, copy of lawyernotice dated 15.11.2003,  Pension Payment Order of 2^nd complainant, reply dated 26.12.2003 from State Farms Corporation of India and Revision of Pension Payment Order of 1^st and 3^rd complainant.  In order to disprove the case opposite party also produced documents such as particulars of 1^st and 3^rd complainants, pension worksheets of 1^st and 3^rd complainants, letter dated 26.07.2004 from State Farms Corporation to Accounts Officer, EPF in order to answer issue No.2, the grievances of each complainants have to be considered separately.  The 1^st and 2^nd complainant has the grievances that 1^st opposite party kept the EPF benefit, the pension sanctioned to her is less than that she is actually entitled, and 1^st opposite party has not remitted the contribution paid by complainant to 2^nd opposite party after attainment of 58 years of age and hence 1^st opposite party is liable to refund 13 months contribution both from 1^st complainant and from the employer.  The complainants have not produced any documents to prove that he is entitled to get more than the amount paid by 1^st opposite party as their benefit.  Eventhough the Forum has issued a direction to produce documents to Secretary, Board of trustees as per the petition filed by the complainants, they have not produced the same and instead of producing documents Secretary has filed an affidavit to the effect that the entire records pertaining to the EPF account of the complainants along with other employees have already been forwarded to the EPF authorities Regional Provident Fund Commissioner, Office of the Assistant Provident Fund Commissioner, Kannur.   But the complainants have not taken further steps for producing the same.  So in the absence of EPF annual account statements we are not in a position to ascertain the amount and hence the 1^st and 2^nd complainant failed to prove this contention.

          The 1^st opposite party contended in their version that they have already refunded to the 1^st , 2^nd and 3^rd  complainants an amount of        ` 2104, ` 5673 and ` 3340 respectively which was received as pension contribution after they had attained 58 years of age.  The complainants have not produced any documents to disprove the contention and hence we hold the view that there is no merit in the contentions.

          Yet another contention of the 1^st complainant is that he is entitled to get ` 600 as pension instead of ` 375.

          As per Ext.A2 the particulars with respect to 1^st complainant is as follows.

Date of Birth                                     :         10.02.1942

Date of attaining 58 years                 :         10.02.2000

Past service upto 15.11.1995            :         14 Years

Date of cessation of membership      :         09.02.2000

Actual Service                                   :         4 Years

Eligible Service                                 :         18 Years

Pensionable Service                          :         4 Years

Pensionable Salary                           :         ` 1675

          In this case the commencement of pension of the 1^st complainant is on 10.02.2000 ie before 16^th November, 2000.  So the pension amount can be calculated as per Section 12(5) of the Employees Pension Scheme, 1995.

          Accordingly

          (1)  The superannuation or early pension shall be equal to the aggregate of

                   (a) Pension as determined under sub-para(2) for the period of service rendered from 16.11.1995 or 335 per month which is more.

                   (b)  Past service pension payable on completion of 58 years of age on 16.11.1995.

So as per Section 12 5(1) the monthly member’s

                             Pension =      Pensionable Salary x Pensionable Service

                                                                                 70

                                          =    1675x4/70 = 95.71

So as per Section 12(5)(1)(a)    =  335

          The past service pension can be calculated  as per Section 12(3)(i)(b) of EPS, 1995.

          Past service          =        14 Years

          The factor as per table B since the complainant had required less than 5 years to complete 58 years age as on 16.11.1995    =       1.536

The amount stated in the column of Section 12(3)(i)(b) = 95

                                                                                    = 95x1.536

                                                                                   = 145.92

The aggregate of (a) and (b)      =      335+145-92

                                                =        480-92

          So pension as per Sect 12(5)(ii)         =        500

Since the complainant has only 18 years of service the pension as per Section 12 (5)(ii)  =  500- (500x18/100) = 410

The 1^st complainant is entitled to get 410 as monthly pension and he is entitled to get the same from 10.02.2000 and hence he is entitled to get balance amount with 12% interest from date of entitlement till realization.

          The other grievance of the 3^rd complainant is that she is entitled to get 600 as monthly pension instead of 396.

          The particulars of 3^rd complainant as per Ext.A7 is as follows.

Date of Birth                                     :         05.07.1941

Date of attaining 58 years of age       :         06.07.1999

Past service upto 15.11.1995            :         15 years

Actual service                                    :         4 Years

Eligible Service                                 :         19 Years

Pensionable Service                          :         4 Years

Pensionable Salary                           :         ` 1956

In this case the commencement of pension of the 3^rd complainant is 05.07.1999.  ie before 16^th November, 2000. So in the case of 3^rd complainant also pension can be calculated as per Section 12(5) of EPS, 1995.

So as per sect.12(5)(i)(a)

The monthly member’s pension= Pensionable SalaryXPensionable Service

                                                                                 70

                                                = 1956x4/70 = 111.77

So as per Sec.12(5)(1)(a)          =        ` 335

The past service pension can be calculated as per Sec. 12(3)(i)(b) of EPS, 1995

                   Past service =       15 Years

The amount stated in Column of Sec 12(3)(i)(b)   =        ` 95

The factor as per table B since the complainant had required less than 4

years to complete 58 years age as on 16.11.1995  =  1.396

                                                                               =  95x1.396

                                                                               =  132.62

The aggregate of (a) and (b)               =        335+132.62

                                                          =        467.62

So pension as per Section 12(5)(i)     =        ` 500

Since the complainant has 19 years of service only the pension as per Section 12(5) (ii)

                                                          = 500 – (500x15/100)

                                                          = 500 -75

                                                          =  425

          The 3^rd complainant is entitled to get ` 425 as monthly pension and she is entitled to get the same from 06.07.1999 onwards and hence she is entitled to get balance amount with 12% interest from 06.07.1999 till realization. 

So from the above discussion it is seen that there is deficiency of service on the part of 2^nd and 3^rd opposite parties in calculating the monthly pension of 1^st and 3^rd complainant.  It is seen that the 1^st complainant is entitled to get ` 410 and 3<sup>rd</sup> complainant is entitled to get ` 425 as their monthly pension.  They are also entitled to get the pension arrears from the date of entitlement till realization with 12% interest.  The 1^st and 3^rd complainant is also entitled to get ` 2000 as compensation and ` 1000 as cost of this proceedings and 2^nd and 3^rd opposite parties are liable to pay the same.  The 1^st opposite party is exonerated from the liability since it is found that there is no deficiency of service on the part of 1^st opposite party.

In the result the complaint is allowed directing the 2^nd and 3^rd opposite party to issue revised pension payment order to the 1^st and 3^rd complainant for an amount of ` 410 (Rupees Four hundred and ten only) and ` 420 (Rupees Four hundred and twenty only) respectively as monthly pension.  They are also directed to pay the balance of monthly pension with 12% interest per annum from the date of entitlement till realization with ` 2000 (Rupees Two thousand only) as compensation and ` 1000 (Rupees One thousand only) as cost each to 1^st and 3^rd complainant within one month from the date of receipt of this order, failing which the 1^st and 3^rd complainants are at liberty to execute the order as per the provisions of Consumer Protection Act.         

                          Sd/-                          Sd/-                         Sd/-

President                    Member                             Member

APPENDIX

Exhibits for the Complainant

A1.  Letter dated 10.12.2003 to 1^st Complainant.

A2.  P.P.O. No.KR/KNR/13274 of 1^st Complainant.

A3.  Copy of Lawyer Notice dated 01.10.2003.

A4.  Acknowledgement.

A5.  Letter dated 10.12.2003 to 2^nd Complainant.

A6.  Lawyer notice dated 05.12.2003.

A7.  P.P.O. No.KR/KNR/13014 of 3^rd Complainant.

A8.  Reply letter dated 26.12.2003.

A9.  Letter dated 24.12.2003

Exhibits for the opposite party

B1.  Input data sheet in respect of 1^st complainant.

B2.  Pension worksheet and computation of pension in respect of 1^st

      Complainant.

B3. Letter dated 26.07.2004.

B4. Input data sheet in respect of 3^rd complainant

B5. Pension worksheet and computation of pension in respect of 3^rd   

      complainant

Witness examined for the complainant

Nil

Witness examined for the opposite party

Nil

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT