DOF.30/9/2009 DOO. 13/9/2010 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 13th day of September 2010 CC.264/2009 M.Rajan, Mothetty House, P.O.Koodali, Kannur Dist. Complainant (Rep. by Adv.K.K.Balaram) Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Opposite party Sub Regional Office, V.K.Complex, Fort Road, Kannur 1. 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 opposite party to reconsider and to sanction the reduced pension to the complainant with cost. The case of the complainant is that he was a weaver in Kanhirode weavers Industrial co. operative society and a member of EPF having Account No.KR/2395/486 for more than 20 years from 1.9.76 to 31.1.97. The complainant discontinued his service from Kanhirode Weavers Industrial Society on 31.1.97 due to medical ground, since he is an acute bronchial asthma and allergic patient. So the complainant was constrained to leave the employment on 31.4.97. Thereafter the complainant filed application for provident fund benefit and for disablement pension and it was rejected by the opposite party. Subsequently the complainant approached the Forum and the Forum allowed the complaint and directed the opposite party to reconsider the matter and give disablement pension to the complainant as per the order in OP.210/2000 dt. 11.7.03. The Hon,ble State commission confirmed the order of the forum as per the order dt. 1.9.05 in appeal No.985/05. So accordingly the opposite party sanctioned disablement pension to the complainant as per the pension payment order NO.KR/KVR.20443 dt.15.5.06 and the date of commencement of pension is 1.2.97. The original pension sanctioned is Rs.250/- per month and now the complainant is receiving the disablement pension of Rs.230/-. The date of birth of the complainant is on 1.4.59 and has completed the age of 50 years on 1.4.09 and 50 years is the minimum required age for claiming reduced pension. So he submitted an application dated 27.5.09 before the opposite party to sanction the reduced pension infavour of him instead of the disablement pension. The opposite party rejected the application of the complainant stating that as per the records maintained in the office of the opposite party, the complainant is sanctioned disabled pension of Rs.230/- per month with effect from February 1997 and by stating that there is no provision under EPF 1995 to convert disablement pension into reduced pension. According to the complainant the minimum requirement for claiming pension at reduced rate after leaving the employment as per EPF 1995 is that a member should complete 10 years of service and also attain the age of 50 years. The complainant had completed more than 20 years of service before leaving his service on account of total and permanent disablement and now he attained the age of 50 years on 1.4.09 and hence the complainant is now eligible to apply for pension at reduced rate. According to the complainant there is no specific provision in the E.P scheme 1995 prohibiting the opposite party in sanctioning reduced pension to an ex-employee who is presently drawing disablement pension by converting disablement pension into reduced pension or cancelling the disablement pension and sanctioning the reduced pension after the attainment of 50 years age. The cause of action for the complaint arose on and after 16.6.09, the day on which the opposite party denied the application of the complainant for getting the pension at reduced rate at Kannur which is within the jurisdiction of this Hon’ble Forum. The act of opposite party amounts to deficient service. Hence the complaint. Upon receiving the notice from the forum opposite party appeared and filed his version. According to opposite party the complainant is not a consumer since he has neither bought any goods for consideration or any service from opposite party. Complainant’s claim for disablement pension was allowed based on the direction of Hon’ble State Commission and hence the complaint is estopped from raising the dispute again before the Forum. The opposite party admits that he was a subscriber of EPF. The opposite party admits the date of retirement on 1.2.97. the opposite party further admits that the opposite party sanctioned disablement pension as per the confirmation order of Hon’ble state Commission. Accordingly the opposite party sanctioned disablement pension of Rs.250/- p.m to the complainant w.e.f 1.2.97. Since the complainant opted return of capital under Para 13(2) complainant’s pension was further reduced to Rs.230/-. As per opposite party’s record the date of birth of opposite party is on 1.4.59. The opposite party further admits that he was a member of the PF from 1.9.76 to 31.1.97. On 27.5.09 complainant submitted a letter stating that he had attained 50 years on 1.4.09 and requested to sanction pension payable to those who attained 50 years and in reply the opposite party informed the complainant that there is no provision under E.P scheme 1995 to convert disablement pension into reduced pension. According to opposite party the member pension comes under Para 12 of E, P scheme 1995. As per Para 12 (b) a member shall be entitled for early pension, if the member has rendered eligible service of 10 years or more and retires or other wise ceases to be in the employment before attaining the age of 58 years. Para 12(b) of EPS ’95 states that except as otherwise expressly provided hereinafter in monthly reimburse pension under sub Para (2) to (5), mentioned herein above as the case maybe shall be payable from a date immediately following the date of completion of 58 years of age not withstanding that the member has retired or ceased to be in the employment before that date. Para 12(7) says a member if he so desires may be allowed to drawn early pension from a date earlier than 58 years of age but not earlier than 50 years of age. In such cases the amount of pension shall be reduced at the rate of 4% for every year the age falls short of 58years. In view of the above, it is submitted that member of EPS 95 had an option to draw monthly pension on attaining the age of 50 years. Para 12(7) begins with the word member. A member was defined under Para 2(ix) as “an employee who becomes a member of the Employees pension fund in accordance with the provisions of the scheme”. Explanation below Para 2(ix) says an employee shall cease to be the member of pension fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the scheme whichever is earlier. The complainant is drawing disablement pension under Para 15 of EPS 95 i.e. 1.2.97 and hence is a ceased member to EPS’95 i.e. that date and deceased member of the EPS ’95 cannot claim another benefit under the same scheme. The Para 12 and 15 are independent paras dealing with different types of pension. Para 15(2) states that the monthly member’s pension is such cases shall be payable from the date following the date of permanent total disablement and shall be tenable for the life time of the member, implies that the legislature had no such intention of converting disablement pension into superannuation persuasion or early pension. In Vatan Mal Vs. Kailash Nath AIR 1989 SC 1534, the Hon’ble Supreme Court observed that the intention of legislature or its delegate has to be gathered from the language of the statutory provisions and not from what is failed to say and as Para 41 of EP scheme 1995, where any doubt arises with regard to the information of the provisions of this scheme, it shall be referred to the central government who shall decided the same. So the complaint may be dismissed. Upon the above contentions the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency on the part of opposite party? 3. Whether the complainant is entitled to any relief as prayed in the complaint? 4. Relief and cost. The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A5. Issue No.1 The opposite party contended that the complaint is not maintain able before this Forum, since he has not purchased any goods or availed any service from the opposite party. Admittedly the complainant is the member of Employees provident Fund. In Regional Provident Fund commissioner Vs. Shivakuamr Joshi, which was reported in 2000 NCJ SC 185, the Hon’ble Apex court held that the member of Employees Provident Fund scheme established under PF and miscellaneous provisions Act, 1952 is a consumer under the act. The Regional Provident Fund commissioner discharges statutory function and doesn’t discharge any sovereign function and it is therefore service under the act. Hence we are of the view that the complainant is a consumer and hence the complaint is maintainable before the Forum. Issue No.2 to4 The complainant’s case is that he is a member of EPF from 1.9.76 and he discontinued from his service on 31.1.97 due to medical ground since he is an acute bronchial Asthma and allergic patient and now he is getting disablement pension of Rs.230/- per month. But according to the complainant he had more than 20 years of service and his date of birth is on 1.4.59 and completed the age of 50 on 1.4.09 and hence he is entitled to get reduced pension . In order to prove his case he was examined as PW1 and produced documents Exts.A1 to A5 such as photocopy of letter dt.27.5.09to opposite party, reply dt.16.6.09 by opposite party, extract of admission register, photocopy of the order in OP.210/00, photo copy of the judgment of CDRC in appeal No.985/03. But according to opposite party the complainant is getting Rs.230/- as disablement pension monthly and hence there is no provision in the EPF Act to convert disabled Pension into reduced pension. Moreover according to opposite party an employee shall cease to be the member of the fund from the date of attaining 58 years of age or form the date of vesting admissible benefits under the scheme whichever is earlier. The Forum allowed the application of the complainant for reduced pension on 11.7.03 and the Hon’ble state Commission upheld the order by granting Rs.250/- per month as disablement pension on 1.2.97. As per the Act a member of EPF 95 had an option to draw monthly pension on obtaining the age of 50 years. The complainant had attained age of 50 only on 1.4.09 and hence he has filed this application for reduced pension. The oppose party also admits that as per their records the complainant’s date of birth is 1.4.1959. But the employees Pension Scheme is Welfare legislation made for the benefit of the employees engaged in factories and establishments and any interpretation of the provision of the scheme should not be derogatory to the interest of welfare of the employees. Who were in the lower strate of the society. So the disablement pension is a benefit bestowed him due to his disablement and hence his actual benefit is his entitlement of pension and hence it does not come under the purview of Explanation to section 2(ix) of EPF scheme. So as per section 38 of EPF scheme 1995. In regard to the matter in which either there is no provision or that is inadequate provisions in the scheme, the corresponding provisions of EPF, 1952 shall apply. The EPF scheme 1995 has no provision with respect to the retention of membership. But under section 26 A of EPF scheme 1952 deals with retention of membership. As per this a member of the fund shall continue to be a member until he withdraws the amount standing in his credit in the fund as per under section 69 or is covered by a notification under section 17 of the act or an order of exemption under Para 27 or 27 A. But in this the case opposite party has not produced any evidence to show that the complainant has withdrawn the amount in the fund. Moreover we are of the opinion that since the complaint is a person having disability for work and the EPF Act is a beneficial one and for the interest of Natural justice it is more beneficial to the complainant to get reduced pension than the disabled pension we hold the view that the complainant is a member of EPF and is entitled to get the reduced pension as per the section 12(1) of the EPF Act. As per section 12(1) (b) of the EPF Scheme 1995, a member shall be entitled to early pension. If he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years. The opposite party admits the date of birth of the complainant as on 1.4.59. They also admit that the complainant was a member of the provident fund from 1.9.76. But we are not in a position to calculate the reduced pension since the complainant has not produced any documents showing pension able salary. Anyway the complaint is entitled to get reduced pension as per section 12(1) (b) of the EPS 1995. The complainant is also entitled to get Rs.500/- as cost of this proceedings from the opposite party. So the complaint is entitled to get reduced pension as per the section 12(1)(b) of EPF Scheme 1995 and the opposite party is directed to issue pension payment order for reduced pension from 1.4.09 and order passed accordingly. In the result, the complaint is allowed directing the opposite party to issue pension payment order for reduced pension to the complaint from 1.4.09 along with Rs.500/- as cost of the proceedings to the complainant within one month from the date of receipt of this order, failing which the complaint is 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.Copy of the letter dt.27.5.09 sent to OP A2.Letter dt.16.6.09 issued by OP A3.copy of the extract of admission register issued to complainant A4.Copy of he judgment in OP210/2000 of CDRF, Kannur A5.Copy of the judgment in Appeal No.985/03 of CDRC, Tvm. Exhibits for the opposite party: Nil Witness examined for the complainant PW1.complainant Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
