BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri K.V.H.Prasad, B.A., LL.B., President

Smt C.Preethi, M.A., LL.B., Member

Sri R. Ramachandra Reddy, B.Com., LL.B., Member

Wednesday the 12^th day of April, 2006

C.D.No.46/2005

Hazran Bee,

W/o. Ismail Miah,

Aged 66 years,

H.No. 19/270, Bandi Metta,

Kurnool.                                                               . . . Complainant

          -Vs-

1. Syed Nizamuddin,

    Beedi Manufacturers Pvt., Ltd.,

    Essen Tobacco Beedi Manufacturers Pvt., Ltd.,

    Rep. by its Manager,

    Mr. Ameen Mohammed Shareef,

    R/o H.No.36-209, Chittari Street,

    Kurnool.

2. The Regional Provident Fund Commissioner,

     Employees Provident Fund Organisation,

     Regional Office, Barkathpura, Hyderabad.

3.  The Assistant Provident Fund Commissioner,

     Employees Provident Organisation,

     Sub-Regional Office, Kadapa.                          . . . Opposite parties

This complaint coming on this day for Orders in the presence of Sri T.Kumar Babu, Advocate, Kurnool for complainant and Sri S.Safaquath Hussain, Advocate, Kurnool for opposite party No.1, and opposite party No. 2 represented by in person and Sri.L.Viswanatham, Advocate, Kurnool for opposite party No.3, and stood over for consideration, till this day, the Forum made the following.

O R D E R

(As per Sri. R.Ramachandra Reddy, Hon’ble Member)

1.       This CD case of the complaint is filed under sections 11 and 12 of C.P. Act, 1986 seeking direction on the opposite parties to grant monthly member pension regularly @ Rs.400/- per month, to grant a sum of Rs.38,400/- as pension arrears from the date of her retirement i.e. from April 1997 to till the month of March 2005 and to grant a sum of Rs.10,000/- towards compensation for mental agony with other remedies which the exigencies of the case demands.

2.       The case of the complainant in brief is that she was joined as Bedi worker (Home worker) with opposite party No.1 in the year 1957 and she was enrolled as a member in the E.P.F Organisation with a code No. P.F. Account No.AP/18697/323 and she was covered under E.P.F scheme only from 1-2-1986.  She was retired from service in the year 1997 and without obtaining complainant’s declaration in Form No.2 with regard to proof of her age the employer (opposite party No.1) has sent the Form No.9 to the E.P.F Organisation.  The said Form No.9 is not showing her original age.  Her actual age is 58 years at the time of retirement.  After retirement, she applied for monthly member pension under employees pension scheme, 1995.  In that application with regard to proof of her age, she enclosed the competent authority certificate.  She sent her claim forms through her employer.  Her employer (opposite party No.1) send the claim forms to the opposite party No.3, as she is having more than 10 years of service and her age is 58 years at the time of her retirement.  But the opposite party No.3 rejected the claim of the complainant in the month of September 2003 with remarks that “Not eligible for pension since crossed 58 years on the date of joining” whereas her date of birth is 1-7-1938.  The opposite party No.1 to opposite party No.3 are wilfully giving wrong age and service particulars to evade the member monthly pension and also they are furnishing false information regarding the date of joining of her service.  The employer as not taken any declaration from the complainant as required by Form No.2 and 5 and simply sent the Form No.9 showing her age wrongly.  For the fault of employer (opposite party No.1) the complainant cannot be made responsible and should not be put to loss and hardship.  Without sanctioning the pension the complainant cannot lead her life.  In this old age there is no one to look after her.  The opposite party No.2 and 3 are not accepting the claim forms.  The said act of the opposite party No.3 is illegal, arbitrary and against the interest of the worker and there by it is spoiling her life which clearly amounts to deficiency of service.  The opposite party No.1 with wrong particulars of the complainant’s age was furnished to the opposite party No.3 who inturn return the claim forms without the pension due to which act, the complainant is suffering irreparable loss and put to hardship.  The E.P.S 1995 was introduced by the government for the purpose of helping the poor, unorganised and helpless workers.  The above latches on the part of opposite party No.1 to opposite party No.3 are purely due to deficiency of service caused to the complainant.  As such there is default on the part of opposite party No.1 to opposite party No.3 as to the date of birth of her and hence she suffered much mental agony.

3.       In pursuance of the receipt of the notice of this Forum as to the case of the complainant the opposite party No.1 and opposite party No.3 counsels appeared on their behalf and contested the case by filing their written versions, the opposite party No.2 adopted the written version of opposite party No.3 denying any deficiency of service on their part and there by any of their liability to the claim of the complainant and so seeking dismissal of the complaint with costs. 

4.       In the written version the opposite party No.1 admits that the complainant worked as a Bedi worker in this opposite parties Bedi factory and she was enrolled as a member in the E.P.F Organisation with a code P.F.Account No.AP/18697/323.  But it is in correct to say that the complainant joined the Bedi factory of this opposite party in the year 1957.  In fact, she joined the Bedi factory of this opposite party in the year 1986 only, and was retired from service in the year 1997.  It is also incorrect to say that this opposite party has sent the Form No.9 to the E.P.F organisation without obtaining her declaration in Form No.2 with regard to proof of her age and that age mentioned in Form No.9 is not the correct age of the complainant.  It is also incorrect to say that the correct age of the complainant is 58 years at the time of her retirement.  The age mentioned in Form No.9 by this opposite party is the correct age of the complainant as disclosed by her self.  The date of birth certificate filed by the complainant which is said to have been issued by a Civil Assistant Surgeon is neither correct nor is tenable in law.  No doctor however highly qualified cannot ascertain the date of birth of a person.  The said certificate is manipulated by the complainant in collusion with the concerned doctor for the purpose of this case and as such it is not at all admissible in evidence and that the application for monthly member pension of the complainant under employees pension scheme 1995 was forwarded to the opposite party No.3 showing the correct particulars with regard to date of joining and age of the complainant as such there is no deficiency of service on the part of this opposite party.  The allegations in the petition to the effect that this opposite party has wilfully given wrong age and service particulars to evade payment of member monthly pension, that there was fault on the part of this opposite party in sending Form No.9 to the opposite party No.3 are all incorrect and invented for the purpose of this complaint.  The age of the complainant as given in the complaint is incorrect.  She is now aged 89 years.  This opposite party is neither a proper nor a necessary party to this complaint and it is for the opposite party No.2 and 3 whether the complaint is eligible for pension or not as per the scheme in question. Hence, this Hon’ble Forum may be pleased to dismiss the compliant against this opposite party with costs.

5.       The written version of opposite party No.3, the same was adopted by the opposite party No.2 admits that Smt. Hazran Bee, complainant was joined in the above establishment on 1-2-1986 at the age of 70 years as per Form No.9, Register of the Establishment maintained in the Account Section, Kurnool of this office and further that Smt. Hazran Bee, complainant worked as Bedi worker in M/s Syed Nizamuddin Bedi Manufacturers (Pvt.) Ltd., Kurnool.  As per Form No.9 of the establishment the complainant was joined on 1-2-1986 at the age 70 years and left service of the establishment (opposite party No.1) in the month of 8/1997 and the complainant has submitted Form No.10-D through opposite party No.1 to this opposite party for monthly member’s pension and this opposite party as rejected the claim form No.10-D submitted by the complainant for the reason that the complainant has joined as Provident Fund member at the age of 70 years i.e. on 1-2-1986.  As per para 3 read with para 6 of employees family pension scheme, 1971 the member who joined on or after attainment of 60 years, is not eligible to become a member under E.P.F Scheme 1971.  Since Smt. Hazran Bee has joined in the E.P.F membership at the age of 70 years as per the records, she is not a member of E.P.F. Scheme 1971 and the resultant benefits.  Further the complainant has submitted along with a date of birth certificate issued by Civil Assistant Surgeon, Kurnool to this opposite party is not acceptable as per the instructions received from Head Office, New Delhi when there is recorded evidence is available and as such there is no deficiency of service on the part of this third opposite party and it is prayed that Hon’ble Forum may be pleased to dismiss the compliant against this opposite party in the interest of justice.

6.       In substantiation of the case averments while the complainant side has relied upon the documentary record in Ex.A1 to A2 besides to the sworn affidavit of the complainant in reiteration of its case, the opposite parties side has relied upon the documentary record in Ex.B1 (4 pages) and their sworn affidavits in reiteration of its defence.  Further, the complainant and the opposite parties exchanged between them interrogatories and their replies along with their written arguments with citations and the particulars of employees family pension scheme 1971 and the employees pension scheme 1995 for the appreciation of their case.

7.       Hence, the point for consideration is whether the complainant has made out the alleged deficiency of service in the conduct of the opposite parties is not granting monthly member pension regularly to the complainant and pension arrears from the date of her retirement so as to enable herself to the reliefs claimed?

8.         The Ex.A1 is an attested Xerox copy of Annexure dated 4-9-2003 which reveals that at Sl.No.3 Account No. is noted as AP/18697/323 name of the member as Smt. Hazaran Bee (complainant) age of her date of joining as 70 years, date of joining as 1-2-1986, date of leaving as 8/1997 and remarks as “Not eligible for pension since crossed 58 years on date of joining” and below the said annexure under note it is mentioned as E.P.F accounts of all above members (Who were 8 in number) have been settled. The Ex.A2 is an original certificate pertaining to the age of complainant, issued by the Civil Asst. Surgeon of Govt. General Hospital-Kurnool with the seal certifying as he has examined Smt.Hazaran Bee W/o Ismail Miya resident of Kurnool whose signature (Here left hand thumb impression of the complainant) is taken in my presence on 24-6-2001 and there by certified that she is aged about 63 years by appearance and noted as 1-7-1938 as date of birth with two personal identification marks.  The Ex.B1 is an attested Xerox copy with 4 pages.  The page 1 of the said Ex.B1 contains particulars of E.P.F Form 21-A wherein the account number, the name of the complainant, with age as 70 years and date of joining that E.P.F as 1-2-1986 with Employers and Employees contribution of E.P.F for the years 1985-86 and 1986-87, 1990-91 and 1991-92.  The page 2 of Ex.B1 is the ledger account.  Folio No.A.66393 noted the leaving service as 1-2-1997 with employees and  employers contribution of E.P.F for the years 1987-88, 1988-89, 1989-90, 1992-93, 1993-94 and 1994-95.  The page 3 of Ex.B1 i.e. Form 21-A, with employees and employers contribution of the E.P.F for the years 1995-96, 1996-97, 1997-98.  The page 4 of Ex.B1 is the ledger account folio No.A.66394  wherein noted the date of leaving service as 1-2-1997 and blank as to F.P.F and E.P.F with effect from 1-2-1986 onwards.  Actually as these 4 sheets is one big sheet while taking Xerox it was taken in 4 parts.  As seen from the Ex.B1 (4 pages) it is clear that the contributions of the employer’s and employee’s are received by the opposite party No.3 towards E.P.F contributions of the complainant from the year 1985-86 to 1997-1998 i.e. for 11 years and 7 months i.e. upto 8/1997 and further at page 1 of the Ex.B1 family pension contribution for the year 1986-87 only employee’s family pension contribution of Rs.7/- is collected but employer’s matching contribution of Rs.7/- not remitted to opposite party No.3 and for the year 1987-88 at page 2 of Ex.B1 also only employees family pension contribution of Rs.33/- is collected but employers matching contribution of Rs.33/- not remitted to the opposite party No.3 and at page 3 of Ex.B1 for the years 1996-97 and 1997-98 neither the employee’s nor employer’s family pension contributions collected and remitted the matching contributions respectively.  When the opposite party No.1 send to the opposite party No.3 the above said family pension contributions of the employee and not send the matching contributions of family pension of the complainant when employer (opposite party No.1) ought to have send the said contributions as per the Employees’ Pension Scheme, 1995 and failed as seen from the Ex.B1 (4 pages).  It was the statutory duty of opposite party No.3 to take action against the opposite party No.1 as per para 5 of the said act which reads as (1) Where an employer makes default in the payment of any contribution to the employees’ Pension Fund, or in the payment of any charges payable under any other provisions of the Act or the Scheme, the Central Provident Fund Commissioner or such officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf, may recover from the employer by way of penalty, damages at the rate given below.

But there was no such diligency appeared from the opposite party No.3’s side in the proceeding of the case.

9.       Further, interrogatories of the complainant to the opposite party No.2 which filed on 15-7-2005 of opposite party No.2’s replies, but he has not chosen to reply to the said interrogatories of the complainant. It clearly shows the opposite party No.2’s diligency in the proceedings of the case.  The opposite party No.1 admitted in his replies to the interrogatories of the complainant for No.7 that the nomination and declaration form of the complainant i.e. Form No.2 to prove the age of the complainant has been submitted to the concerned authorities and opposite party No.1 has not preserved any copy of it to produce before this Forum and also admitted for the interrogatories of the complainant for No.8 that the Form No.5 of the E.P.F fund scheme 1952 of the complainant has been submitted to the concerned authorities and he (Opposite party No.1) has not preserved any copy of it to produce before this Forum. The interrogatories of the complainant No.9 to the opposite party No.1 is that “Can you say on what basis you have sent the name of the complainant to the opposite party No.3 for enrolling her name in E.P.F membership when she crossed 70 years at the time of joining? “ the answer for it by the opposite party No.1 is that the Bedi workers are engaged by the contractor and not by the Bedi factory directly.  As the proposal was submitted by the concerned contractor he (Opposite party No.1) has forwarded it to the concerned authorities.  Whereas the opposite party No.1 in its written version averred at para 3 that the complainant worked as a Bedi worker in its opposite party’s Bedi factory and she was enrolled as a member in E.P.F Organisation with a code P.F. Account No.AP/18697/323. The above said contradicting pleas taken by this opposite party, one has to doubt the genuineness of the above evidence to take into consideration for its appreciation in this case. But as per para 4 of the employees pension scheme, 1995 regarding the payment of contribution it is very clear that (1) the employer shall pay the contribution payable to the employee’s provident fund in respect of each member of the Employees’ Pension fund employed by him directly or by or through a contractor (2) It shall be the responsibility of the principal employer to pay the contribution payable to the Employees’ Pension Fund by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor. It is clear from the above that it was the burden of the employer (opposite party No.1) to make payments regularly towards employees’ pension fund. If such is the case the opposite party No.1 cannot escape the liability of scrutinising the papers such as Form No.2, which is the proof of the age of the complainant which is the crucial record in this case on which only the entire case depends for its consideration while sending it to the concerned authorities. When such Form No.2 submitted by the alleged contractor to the Employer.  Whereas here the opposite party No.3 in its replies to the interrogatories of the complainant forNo.1and for No.2 denied that Form No.2 was not submitted by the opposite party No.1 and the same is not available in this office and also Form No.5 for the month of March 1986 i.e. month of joining the Establishment was not found respectively. This shows the irresponsibility of the opposite party No.3 who was not diligent to preserve such important records.  Further the opposite party No.3 not contradicted the opposite party No.1’s replies to the interrogatories of the complainant.  The opposite party No.3 has not made any endeavour to cause interrogatories to the opposite party No.1 to elicit cogent answers from him in regard to the Form No.2 and Form No.5, when the opposite party No.1 clearly admits in its written version at para 5 also that the said forms were submitted to the concerned authorities (Opposite party No.3). But the opposite party No.3 admitted in its written version at para 4 that the Form No.9, Register of the Establishment maintained in the Account’s Section, Kurnool, which was furnished by the opposite party No.1 wherein the complainant was joined on 1-2-1986 at the age of 70 years and left service of the establishment (opposite party No.1) in the month of 8/1997.  As per instructions regarding the said Form No.9 under instructions the instruction No.5 says that “ Receipt of Form-2 should be ensured in respect of all the members enrolled through Form-9/5”.  Further under certificate at Sl.No.2 says that “ Certified that the old form (F.P.F) have been cancelled and kept in safe custody”. Which has to be signed beneath by the Clerk, Section Supervisor, Asst. Accounts Officer/Asst. Commissioner.  The Xerox copy of the said instructions filed by the complainant along with the particulars of “The Employees’ Pension Scheme, 1995”. But the opposite party No.3 in its replies to interrogatories of the complainant for No.1 replied as “ During the period of membership, Smt. Hazaran Bee has not submitted Form-2.  Hence, the same is not available in this office”. This irresponsible reply on the part of opposite party No.3 is arbitrary, deliberate and carelessness in respect of instruction No.5 of the instructions of the Form-9 wherein the receipt of Form-2 should be ensured in respect of the all the members enrolled through Form-9/5.  This attitude of opposite party No.3 in not following this important legitimate instructions of the authority concerned in not ensuring the receipt of the said Form-2, which is an important form i.e. Nomination and Declaration Form of the employee concerned with his / her L.T.I and signature, who was subscriber under the Employees’ Provident Fund and Employees’ Pension Scheme with part –A (E.P.F) and part –B (E.P.S) respectively.  As to the date of birth of the complainant (Subscriber) which is very crucial point in the proceedings of this case.  Basing on this declaration about the age of the subscriber only the column No.5 of Form-9 will be filled by the Employer in the Form-9 which will be submitted to opposite party No.3.  This Form-9 should be accompanied by declaration in Form-2 by every employee.  Further, the Employer has to certify under the part-B of said Form-2 that the above declaration and nomination mentioned (Form-2) has been signed/thumb impressed before him by the subscriber, employed in his establishment after he/she has read the entries/entries has been read over to him/her by him (employer) and got confirmed by him/her and employer/authorised officers of the establishment has to sign with his designation.  Name and address of the factory/establishment with rubber stamp thereof.  The Xerox copy of the said Form-2 with part-A (E.P.F) and part-B (E.P.S) was also enclosed by the complainant along with the E.P.S, 1995 for ready reference to know the contents of the said form.  These omissions and commissions on the part of opposite party No.1 inturn in accepting the same, the opposite party No.3 has to the receipt of Form-2 should have been ensured in respect of all the members enrolled through Form-9 as per the instruction No.5 of instructions mentioned in the said Form-9.  The opposite party No.2 who is Regional Provident Fund Commissioner, Hyderabad under whose jurisdiction the opposite party No.3 works when especially one Provident Fund Enforcement Officer stationed at Kurnool, where opposite party No.1’s factory was established, who has to liason the affairs and enforce, the provident fund rules and regulations under the Employee’s Family Pension Scheme, 1971 and The Employees’ pension scheme, 1995, between opposite party No.1 and opposite party No.3.  The said opposite party No.1 and opposite party No.3 are also not diligent in discharging their duties as seen from the commissions and omissions and the said officer of the opposite party No.2 would have been vigilant, all the above lacunas would have been rectified then and there and the employees of the opposite party No.1 would not have been suffered in getting their legitimate benefits from the opposite party No.3 in time. 

10.     The complainant’s counsel, the opposite party No.2’s Enforcement Officer and the opposite party No.3’s counsel filed their written arguments.  The opposite party No.2 has relied upon the judgement of Supreme Court of India of Civil Appeal No.6142/2000 about date of birth, but the facts of the said judgement have no relevancy for the present case of the complainant of this Forum.  Further the opposite party No.2 relied on the judgement of Delhi State Consumer Disputes Redressal Commission, New Delhi in II (2003) CPJ 538, about the limitation in this case as this judgement also is not relevant in view of Ex.A1 filed by the complainant and also about this aspect of limitation in their written versions, neither opposite party No.1 nor opposite party No.3 whose written version adopted by the opposite party No.2 have not raised this point during the proceedings of the case.  The opposite party No.3’s counsel also in its written arguments relied on the judgement of opposite party No.2 i.e. Supreme Court of India of Civil Appeal No.6142/2000, which need not be discussed again here.  The complainant’s counsel in its written arguments relied on the judgement of National Consumer Disputes Redressal Commission, New Delhi in I (2003) CPJ 81 (NC) wherein pension refused on the ground that the complainant retired in 1985 as per records but E.P.F contribution accepted till 31-12-1995, for almost 10 years after alleged superannuation.  Here in this present case also without obtaining the declaration of the age of the complainant in Form-2 from the opposite party No.1 which is a statutory obligation of opposite party No.3, in column No.5 of Form-9 where the age on date of joining into the Fund or date of birth has to be noted as per Form-2 of the complainant but noted by the opposite party No.1 without taking into consideration of From-2 submitted by the complainant, as the same was not reached by opposite party No.3 as alleged by him along with Form-9 as 70 years as to the age of the complainant in that column.  But whereas the date of joining into the service of opposite party No.1 was noted as 1-2-1986 and the date of leaving the service was mentioned as the 8^th month of 1997 (8/1997) as per the Ex.A1, i.e. the complainant was in service for 11 years and 7 months.  But refused to pay the monthly family pension and arrears by the opposite party No.3. The facts and lacunas of the opposite party No.1 to opposite party No.3 are discussed at length and their deficiencies are appeared clearly.  Hence the facts of the above judgements have to be taken into consideration wherein opposite party No.2 and 3 hierarchy kept accepting the E.P.F contribution to till 8/1997 for almost 11 years and 7 months after the alleged date of leaving the service by noting the date of entering into service as 70 years without looking into statutory Form-2 and instruction No.5 of the instructions mentioned in Form-9.  So much for the case of the poor by an agency of the Government charged with the responsibility to take care of the welfare of the workers.

11.     Hence, the opposite party No.1 to opposite party No.3 miserably failed to substantiate their case against the cogent material and the particulars of Employees’ Pension Scheme, 1995 rules and regulations along with Xerox copies of the Form-2 and Form-9/5 filed by the complainant’s side, the act of opposite party No.1 to opposite party No.3 in not granting monthly member pension regularly @ Rs.400/- per month and Rs.36,400/- as pension arrears from the date of her leaving service i.e. from August 1997 to till the month of March 2005 for the complainant as is remaining without any justifiable excuse, the said conduct of opposite party No.1 to 3 is certainly amounting to failure on their part in performing this statutory duty in not granting the above said amounts to the complainant and there by amounting to deficiency of service and there by entitling the complainant to the claim as the bonafides of the complainant claim are not otherwise disturbed.

12.      In the result and in sum up of the above discussion, the complaint is allowed directing the opposite party No.1 to 3 jointly and severally to pay monthly member pension regularly @ Rs.400/- per month, to pay a sum of Rs.36,400/- as pension arrears from the date of her leaving service i.e. from August 1997 to till the month of March 2005 with interest @ 9% per annum, to pay Rs.5,000/- towards compensation for mental agony and to pay Rs.1,000/- towards costs of this case and the opposite party No.1 to 3 is granted one month time for the compliance of this order.  In default, the opposite party No.1 to 3 shall pay the supra awarded amount with 12% interest per annum from the date of said default till the date of realisation.

Dictated to the Stenographer, transcribed by him corrected and pronounced by us in the Open Forum this the 12^th day of April 2006.

PRESIDENT

                   MEMBER                                                                       MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant: Nil                                        For the opposite parties: Nil

List of Exhibits marked for the complainant:-

Ex A.1 Certified copy of Annexure, dt 4.9.2003 issued by Asst. P.F. Commissioner

            Officer-In-Charge.

Ex A.2 Age Certificate Dt.24.6.2001.

List of Exhibits marked for the opposite parties:-

Ex B.1 Attested copy of Lodge Extract Form 1985, 86 to 1997-98.

PRESIDENT

          MEMBER                                                                                 MEMBER

Copy to:-

1. Sri S. Safaquath Hussain, Advocate, Kurnool.
2. Sri.L.Viswanatham, Advocate, Kurnool.
3. The Regional Provident Fund Commissioner, Employees Provident Fund

     Organisation, Regional Office, Barkathpura, Hyderabad.

1. T. Kumar Babu, Advocate, Kurnool.

Copy was made ready on:

Copy was dispatched on:

Copy was delivered to parties on