DOF. 13 / 2 /04

                                                          DOO.  9/7/110

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  9^th day of  July   2010

C.C.No.42/2004

1. P.T.Thomas,

   Panthaplackal House,

   P.O.Keezhpally 670 704

2. K.Karthikeyan,

    Alamatharayil House,

    Keezhpally.P.O.

3. C.P.Moosa, Chenadan Padinhakkara House,  ( Deleated)

   P.O.Keeshpally

4. K.L.Issac,

   Kalathikattil House,

   P.O.Keezhpally.                                                Complainant

 (Rep. by Adv.John Joseph)

1. The Secretary,

   Board of Trustees, EPF,

   State Farms Corporation of India Ltd.,

   14, 15, Farms Bhavan, Nehru Place,                       Opposite Party

   New Delhi

   (Rep. by Adv.U.K.Ramakrishnan)

2. The Regional Provident Fund Commissioner,

   Employees Provident Fund organization,

   Regional Office, 8^th 9^th floor,

   Mayoor Bhavan, Cannaught Circus, New Delhi 1.

3. The Assistant Provident Fund Commissioner,

   EPF Organization, Sub Regional Office,

   Fort Road, Kannur. 

   (Rep. by Adv.V.C.Pramodkumar)

O R D E R

Sri.K.Gopalan, President

                     This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pass proper pension and 1^st opposite party to pay family pension contribution collected from complainantNo.3 and 4 after the attainment of 58years of age with12% interest and opposite parties to pay Rs.2000/- each as compensation together with the cost of this proceedings.

            The brief facts of the case of the complainants are as follow: The complainants paid subscriptions to EPF and allied scheme on the basis of their salary till their retirement in the year 2001. All complainants applied for family pension at the time of their retirement. All of them retired under VRS. 3^rd opposites party has passed pension orders during the month of August and October 2003. 2^nd and 3^rd opposite parties are bound to disburse family pension to the complainants’ within30 days from the date of receipt of application for disbursement of pension. Application for pension submitted March and April 2001. The  1^st and 2^nd complainants are entitled to get reduced pension as on their respective dates of retirement and complainants 3 and 4  are entitled to get superannuation pension as on the date of their retirement but pension was sanctioned after an inordinate delay of 2 years. All complainants are entitled to get 12% interest in respect of pension arrears.

            The 1^st complainant retired from the service on 5.4.01and he had already attained 51 years of age at the time of retirement (date of birth 16.2.49). He received pension payment order in the month of November 2003. The average monthly salary of 1^st complainant in respect of 12 months prior to his retirement was more than Rs.6000/-. But the family pension of 1^st complainant is sanctioned on the basis of the salary ceiling limit of Rs.5000/-. Opposite party has sanctioned pension to complainant 1 with effect from 17.11.01 as against 5.4.01 which is the correct date of entitlement. Therefore   1^st complainant is entitled to get family pension arrears for 7 more months.

            The 2^nd complainant retired on 22.3.01 and his pension able salary was Rs.6000/-. He received PPO dt.27.8.03 during the month of October 2003. PPO passed on salary ceiling limit of Rs.5000/-. His date of birth is 19.2.51 and therefore he is entitled to get pension from19.2.01 whereas the opposite party has shown the date of birth of C2 is 12.12.51 and thereby denied pension to 2^nd complainant for 12 months. His pension sanctioned with effect from 18.3.02 as against 22.3.01.

            During the pendency of the matter the 3^rd complainant expired. Since the legal heirs did not turn up for the purpose of getting impleaded. The counsel filed application to delete the 3^rd complainant from the party array. On allowing application the name of 3rd complainant has been deleted and proceeded further.

            The 4^th complainant retired on 22.3.01. He receives PPO dt.17.9.03 during the month of October2003. Monthly pension is Rs.536/-. Pension able salary considered was Rs.4580/- as against Rs.6000/- 4^th complainant attained 58 years of age on 6.6.2000 but contribution collected till his retirement date 22.3.01. Thus 4^th complainant t is entitled to get 8 months family pension contribution with interest.

            Pension payment order passed by the opposite parties is not proper. Due to the negligence of opposite parties pension benefits were received only after a delay of more than two years. The 1st opposite party furnished incorrect details to second opposite party and all the opposite parties are jointly and severally liable to compensate the complainant. Lawyer notice was sent but  replies sent with untenable contentions. Hence this complaint.

            Pursuant to the notice sent by the Forum opposite parties 1 to 3 entered appearance and filed version. 1^st opposite party filed version separately and 2^nd and 3^rd opposite party jointly.

            1^st opposite party filed version contending that the complainants cannot be treated as a consumer since they have not availed service from 1^st opposite party for consideration. Complainants were employees of Central State Farm, Aralam. The relation ship of complainants and this opposite party were on the basis of employee employer relations and were under contract of personal service. Hence the complaints are  not maintainable. The complainants retired on various dates as stated in complaint. 1^st opposite party has no control over the calculation of pension and disbursement. So the allegations that the complainants 1 and 2 are entitled to get the arrears of family pension has not been admitted. The application for refund of pension contribution by the 3^rd complainant is being processed and if found entitled same will be given. The 4th complainant has been asked to submit an application for refund of pension contribution and needful shall be done on receipt of such application. There is no delay in disbursement of the pension benefits. Since there was lot of pension application, it takes much time for collection of related details, processing and cross verification etc. It is also pertinent to state the delay caused due to contingency of revising the prescribed form twice. There is no deficiency in service on the part of this opposite party and thus prayed to dismiss the complaint.

            3^rd opposite party field version in the form of written statement for and on behalf of both 2^nd and 3^rd opposite party.  During the main allegations of complainant 2^nd and 3^rd opposite party raised the following contentions, which are briefly stated below.

            1^st opposite party administrating the EPF accounts of the complainants. The EPF benefit has to be released by 1^st opposite party only. 2^nd opposite party is having jurisdiction to sanction monthly reduced pension and 3^rd opposite party is liable to disburse the amount of pension since the complainants have opted to receive pension through the bank under the jurisdiction of 3^rd opposite party. It is not true that complainant had submitted application for disbursement of pension immediately after their retirement. The 1^st complainant, Sri. P.T. Thomas has even signed the application in F. 10 D on 17.11.01. 2^nd complainant Sri.K. Karthikeyan has signed the application on 18.3.02. The 4^th complainant Sri. K.I. Issac submitted application on 11.3.03 Monthly pension has been sanctioned to Sri. Thomas with effect from 17.11.01, Sri.K.Karthikeyan with effect from 18.3.02. As per  instruction Para 7-6-6 of Manual of Accounting procedure, Employees Pension Scheme 1955 the date of  application is the date of option in F. 10 D. The option exercised by the member for reduced pension is final and no change should be entertained after the receipt of PPO. So the date of option for reduced pension determined by opposite parties 2 and 3 is perfectly in order. The member has singed the application on 17.11.01 and pension calculated with effect from 17.11.01 since the member has not submitted his willingness of commencement of pension separately. The date of leaving service of the 1^st complainant is 5.4.2001. At the time of leaving service the contribution of the member was received on the maximum salary of Rs.5000/-. The contribution has been received for Rs.5000/- per month up to the date of leaving service on 5.4.01. The salary limit pf Rs.6500/- is effected only from 1.6.01 i.e. after the date of leaving of complainant NO.1 Date of application of Karthikeyan was 18.3.02 and had not expressed option separately so that pension has been sanctioned with effect from 18.3.02.

             2^nd Complainant also entitled to get pension based on the salary of Rs.5000/- even if he was drawing above Rs.6000/- since the salary limit of Rs.6500/- is affected only from 1.6.01. Date of leaving of 2nd complainant is 22.3.01. Pension sanctioned from the date of application and commencement is not related with the age but quantum is related with age. On receipt of the complaint this opposite party taken up the matter with 2^nd opposite party. 2^nd opposite party informed that the correct date of birth of complainant No.2 is 19.2.1951 and it was due to oversight the date of birth was mentioned as  19.12.1951 instead of 19.2.1951 in the input data sheet. When the date of birth is corrected as 19.2.1951 monthly member pension will be further reduced to Rs.793/- from the present rate of Rs.811/-.When the quantum of monthly Reduced Pension decreases quantum of return of capital will also change.

            The 4^th complainant Sri. K.I. Issac retired on 22.3.01 and pension has been sanctioned with effect from 6.6.2000 at the rate of Rs. 536/-. The allegation that his actual pensionable salary was Rs.6000/- instead of Rs.4580/- is not correct. The salary ceiling was enhanced from Rs.5000/- to Rs.6500/- only with effect from 1.6.01. His average salary on attaining58years of age (6.6.2000) was Rs.4580/. Hence average wages on 6.6.2000 was taken into consideration for pension calculation. Hence there is no irregularity. On receipt of complaint matter was taken up with 1^st opposite party and 1^st opposite party informed that the contribution deducted after 58 years has been released to Sri. Issac by DD dt.25.5.04 for Rs.3590/-. Hence there is no deficiency on the part of opposite parties and prayed to dismiss the complaint.

            On the above pleadings the following issues were raised for consideration.

1. Whether the complaint is maintainable?

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

3.      Whether the complainants are entitled for the relief as prayed in the complaint?

4.       Relief and cost.

                        The evidence in this case consists of the documentary evidence Exts.A1 to A11 and B1 to B7.

Issue No.1

                  Opposite parties raised the question of maintainability. There are ever so many decisions that have made it clear that the member of EPF scheme is a consumer and a complaint by member-employee is maintainable. In the case RPF Commissioner Vs.Shivakumar Joshi reported in 2000(I) SCC 98 it was held that statutory authority not invested with  sovereign function while discharging its statutory functions provides service and would be liable under the Act in case of any deficiency in service. An employee, member of employee’s Provident Funds Scheme is a “Consumer” and duties performed by Regional Provident Fund Commissioner under the scheme are service. Invocation of section 2(1) (d) & (o) therefore permissible against provident Fund Commissioners by member-employee for delay in payment of provident Fund under EPF Scheme “Consumer” and “service”. In the light of the above decision our considered view is that the above complaint is obviously maintainable and thus issue No.1 is answered infavour of the complainant.

Issue Nos 2to 4

                  Admittedly complainants 1, 2 and 4 are subscribers of EPF and allied schemes. Their grievances are identical. The complainants retired on various dates.         The first relevant point to be considered is with respect to the allegation of entitlement of family pension arrears for 7 more months. The delay of submission of application is an important factor to this respect which has to be looked into patiently. The first complainant Sri. Thomas retired from the service on 5.4.01 on attaining 51 years. His date of birth is 16.2.49. It is the allegation of complainant No.1 that opposite party has sanctioned pension to him with effect from 17.11.01 as against 5.4.01. Complainant has not given evidence or even stated any where the date of application though he pleaded that all the complainants had applied for pension at the time of their retirement and complainant No.1 is entitled for family pension arrears for 7 more months. The specific case of the opposite party is that Sri.P.T.Thomas the first complainant signed in the description roll with his F. 10D application on 17.11.01. This contention was not challenged by complainant. The signature on the description rolls with 10 D application proves that date of application, is on 17.1.01.  Complainant No.1 has case that he is entitled for pension with effect from 5.4.01 but he has no case that the date of application F 10 D was on 5.4.01. Complainant is entitled for pension from the date of application since it is taken in to consideration as the date of option. So sanctioning of pension with effect from 17.11.01, can only be considered proper. As per Para 17-A the claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within thirty days from the date of its receipt by the commissioner. The option for reduced pension should be given by the member in his application. In Form 10 D (EPS). As per  instruction 7.6.6 the date given in the application by the member if not the employer or in the absence of both the date of receipt of application in the office with reference to  dated office seal affixed by the inward section, should be taken in to account. Under these circumstances no deficiency in service can be attributed upon the opposite party in sanctioning the monthly pension to Sri.P.T.Thomas with effect from 17.11.01 even if his date of leaving service was 5.4.01.

                   In the case of complainant No.2 Sri.K.Krthikeyan monthly reduced pension sanctioned with effect from 18.3.02 though his date of leaving was 22.3.01. Herein also opposite party contended that the commencement of reduced pension has not been related the date of leaving the service but the date of application. The case of complainant No.2 is that his pension sanctioned with effect from 18.3.02 as against 22.3.01. Ext.B3 application 10 D (EPS) shows that the document together with it, the description roll of the member signed by the employer only on 18.3.02. If that be so it is difficult to find deficiency in service on the part of oppose party in sanctioning pension with effect from 18.3.02.

                  The second important point for consideration is salary ceiling limit. The complainants allegation is that the average monthly pension in respect of 12 months prior to their retirement comes more than Rs.6000/- and the salary ceiling limit applicable to all the complainants is Rs.6500/- and not Rs.5000/-. But opposite party sanctioned pension to 1^st complainant on the basis of salary ceiling limit of Rs.5000/-. The 2^nd complainant who retired on 22.3.01 had pensionable salary Rs.6000/-. But pension sanctioned based on salary limit Rs.5000/-. Opposite party contended that the salary limit of Rs.6500/- for the purpose of Employees Pension Scheme Contribution is effected only form 1.6.01. This is not challenged by complainant. Opposite party has pointed out that as per Govt. Of India Notification No.GSR 774(E) dated 8.10.01 the ceiling limit of Rs.6500/- for the purpose of employee’s pension scheme contribution is affected with effect from 1.6.01. Here it is seen the date of retirement of complainant No.1 is 5.4.01 2nd complainant is 22.3.01 and that of 4^th complainant is 22.3.01. In other words the retirement dates of all the above mentioned complainants 1,2 and 4  are prior to Govt. of India increased the maximum pensionable salary from Rs.5000/- to Rs.6000/-. Hence the allegation that the salary ceiling limit applicable to all the complainants is Rs.6500/- and not Rs.5000/- is not sustainable. In the light of the above mentioned notification of Govt. Of India the sanctioning of pension on the basis of salary ceiling limit Rs.5000/- is legal and sustainable as far s all the complainants are concerned.

                  In remaining point of allegation left to be examined with respect to the deficiency of service on the part of opposite parties in connection with the contribution collected from  4^th complainant. The averment of complainant is that Sri.Issac; the 4^th complainant attained 58 years of age on 6.6.2000 but opposite party collected contribution till the date of retirement on 22.3.01. So 4^th complainant is entitled to get 8 months family pension contribution. It is explained by opposite parties in such way that the matter has been taken up after receipt of the complaint, with 1^st opposite party. 1^st opposite party has stated that 4th complainant has been asked to submit an application for refund of pension contribution beyond 58 years. 3^rd opposite party in their version has made it clear that the amount of pension contribution deducted after 58 years in respect of Sri. K.I.Issac has been released by DD NO.050723 dt.25.5.04 for rs.3590/-. There was no comment on this answer of opposite party by the complainant.

                  A close-up analysis of the facts and circumstances together with the supporting evidence on record including relevant documents do not permit us to hold that the complainants are entitled for any relief. We are of considered view that there is no deficiency of service on the part of opposite parties. The issues 2 to 4 are thus found against complainants.

                  In the result the complaint stands dismissed. No cost.

                                      Sd/-                             Sd/-              Sd/-

President                      Member           Member

APPENDIX

Exhibits for the complainant

A1 to A4.:PPOof complainant Nos. 1  to 4

A5Copy of the lawyer notice sent to OP

A6.Reply notice

A7.Copy of the lawyer notice sent to Ops 5.12.03

A8 & 9. Reply notice sent by OPs.

A10 &A11.Copy of the salary slips issued to 1st & 2^nd complainant

Exhibits for the opposite parties

B1.Copy of Para 12(6) and (7) of EP.S’95.

B2 & 3..copy of F.10D in respect of  Thomas and Karthikeyan

B4.Page 53, 54 & 55 of Manual of Accounting procedure EPS.1995..

B5.Copy of order in OP.37/01 of this court

B6.Copyof Para 17 A of EPS, 95

B7.Computerised worksheet of calculation of pension in respect of 2^nd complainant

Witness examined for either side: Nil                             /forwarded by order/

                                                                                Senior Superintendent

Consumer Disputes Redressal Forum, Kannur