BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BAGALKOT.

C.C.No.15/2020

 Date of filing: 01/02/2020

 Date of disposal:04/02/2023

P R E S E N T :-

                                          - V/S -

JUDGEMENT

DELIVERED BY SHRI.VIJAYKUMAR M. PAWALE, PRESIDENT

1.      The complainant has filed this complaint U/sec.12 of the Consumer Protection Act, 1986 against the OPs (hereinafter referred to as “OPs” in this order) for seeking order as prayed in the complaint. The prayer column in the complaint is as shown below:

“(A) That, the Hon’ble Forum be pleased to allow the complaint of complainant and direct the OPs to release the pension with arrears to the complainant from the date of attaining the 10 years of service.

(B) That the Mental agony suffered by the complainant is more. Hence Hon’ble Frum be pleased to direct the OP to pay Rs.25,000/- as mental agony and damages to the complainant.

(C) That the Hon’ble Forum be pleased to direct order Rs.5,000/- towards the Court cost of this litigation.

(D) That any other reliefs which the Hon’ble Forum, deems fit to the facts and circumstances of the case at the end of justice and equity.”

The facts averred in the complaint, in brief are as under:

2.      The complainant was working in the Bagalkot Spinning Mill Ltd., Bagalkot and he had joined service on 14.12.1984 and on the same day he was enrolled as member of Provident Fund and Family Pension Scheme and Number KN/5144/667 was allotted to the complainant by O.P.2 and this was applicable for withdrawing his PF amount and eligibility for pension of complainant. The complainant had served upto 25.01.1996 i.e. 11 years 01 month and 11 days service in the said organization. The Bagalkot Spinning Mills was winded-up on 25.01.1996 and the employment of the complainant has been ceased off.

3.      Further in the complaint it is stated that after the relinquish of office, the complainant had submitted the required forms duly signed by himself and his officials i.e. OP.No.3, the Liquidator who had been appointed  as per the Co-operative Societies Act and and he is also the administrative officer of the said winded organization.

4.      Further in the complaint it is stated that OP.No.3 had filled in the form No.10D by furnishing all particulars of the employee and put his signature with seal and the same has been forwarded to the OP.No.2 and OP.No.2 maintained all the records of the employee and OP.No.1 office was opened later for releasing pension to complainant.

5.      Further in the complaint it is stated that OP.No.1 has rejected form No.10D stating that the complainant has not completed 10 years of service in the said organization. The OP.No.2 was maintaining all the records while shifting to OP.No.1, the records might have been lost and without going through the records of the complainant blindly sent back 10-D form. In the said form it is clearly mentioned by the OP.No.3 that the joining date of the complainant is 14.12.1984 and date of leaving service on 25.01.1996, this is an authentic proof taken from the muster roll and the register maintained by the employer of the said organization.

6.      Further in the complaint it is stated that as per Sec.12 (a & b) it is clearly mentioned: (a)  Superannuation Pension if he has rendered eligible service of 10 years or more and retires on attaining the age of 58 years, (b) 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.

7.      Further in the complaint it is stated that the complainant had been joined the ESI Corporation on 14.12.1984 and also the identity card has been issued to the concern to the complainant and this is a clear proof of joining the date of the said organization to the complainant.

8.      Further in the complaint it is stated that after rejection of 10-D form the complainant sent a request letter on 22.10.2017 and got the endorsement from the OP.No.1 for settlement of his pension and release the amount, but OP.No.1 did not respond to it. Finally the complainant got issued legal notice to both OPs through registered posts, but in reply once-again they stated the same as earlier, this amounts to unfair trade practice as per 2(r) (v) (vi) (vii) of C.P. Act 1986. Hence the complainant is constrained to file the present complaint against OPs seeking relief as prayed in the complaint.   

9.      After registering the complaint, the OP.No.1 in response to the notice issued to him, appeared through his counsel and filed his written version. OP.No.2 & 4 even after service of notices not appeared in this case and not engaged any advocate on their behalf. Hence OP.No.2 & 4 are placed Ex-parte. OP.No.3 in response to the notice issued to him, appeared In-person and not filed his written version to the complainant’s complaint. 

10.    OP.No.1 in his objections it is mainly contended that the ID card issued by ESIC cannot be considered as the date of membership under the Employees Provident Fund Scheme, 1952. If the complainant has any proof for having his contribution deducted from 14.12.1984 namely salary slip for the period 1984-85 for having deducted Provident Fund Contributions, he can submit the same to OP.No.1 duly attested by the OP.No.3 as to consider his date of enrolment of membership under the Employees Provident Fund Scheme, 1952. The records maintained with OP.No.1 does not substantiate that the contributions of the complainant towards Provident Fund has been received from the date of 14.12.1984. Hence unless the complainant submits any of the proof mentioned in the complaint para No.2, his date of membership cannot be considered as 14.12.1984.

11.    Further in the objections of OP.No.1 it is contended that the date 25.01.1996 is the date of Liquidation of the establishment M/s.Bagalkot Spinning Mill Ltd., Bagalkot and that the OP.No.1 agrees to it. But the records maintained with OP.No.1 does not substantiate that the contributions of the complainant towards Provident Fund has been received from the date:14.12.1984 but supports that the contributions are received from 01.09.1986 hence the service rendered by the complainant is 09 years 4 months 24 days.

12.    Further in the objections of OP.No.1 it is contended that as per the records available in the Office of the OP.No.1, the complainant’s PF A/c No. is GB/RCH/5144/667 and the records substantiate that the contributions towards PF and Pension are received from 01.09.1986. 

13.    Further in the objections of OP.No.1 it is contended that on receipt of Form-19 (Final Settlement of Provident Fund) an amount of Rs.4,874/- was settled on 20.03.2018 and Form-10-D was returned vide letter No.GB/RCH/RO/ACCTS/ 5144/2017-18/3285 dated:20.03.2018 copy of letter is enclosed as Annexure-A, wherein the sentence “service rendered by you will become 9 years 03 months 24 days” may please be read as “service rendered by you will become 09 years 04 months 24 days”.

14.    Further in the objections of OP.No.1 it is contended that there is no Section 12 in the Employees’ Pension Scheme, 1995 as stated by the complainant. However, it seems that the complainant is trying to quote paragraph 12 of the Employees Pension Scheme, 1995 wherein the pension fixation is explained. The OP.No.1 has acted according to the provisions of para 12 of EPS 1995 and rejected the pension claim of the complainant on the grounds that he has not rendered eligible service of 10 years.

15.    Further in the objections of OP.No.1 it is contended that Form-10-D i.e., the claim for applying for pension was rejected by the OP.No.1 due to the reasons mentioned in the letter dated:20.03.2018, which is enclosed as Annexure-A.

16.    Further in the objections of OP.No.1 it is contended that there are no records with the OP.No.1 to prove that the complainants contributions were received from 1984-85 and the ESIC ID card cannot be considered as date of enrolment to PF membership and hence OP.No.1 prayed for dismissal of the complaint with costs. 

17.    To substantiate his case the complainant had filed his affidavit evidence and produced documents as shown below: 

18.    On the contrary, OP.No.1 to substantiate his case filed his affidavit evidence and produced documents i.e. Copy of letter dated:12.01.2023 written by Regional P.F. Commissioner-II & O.I.C, Regional Office, Raichur to OP.No.1 Advocate annexed with Form-9 and subscribers ledger card containing account statement pertaining to complainant also.

19.      Heard oral arguments from complainant and OP.No.1 and perused the written argument submitted by Advocate for complainant and entire records.

20.    The points that arise for our consideration and determination are as under:

1. Whether complainant has proved that there is deficiency of service on the part of Ops?
2. What Order?

21.

Point No.1 : In the Negative.

Point No.2 : As per final order for the following:

R E A S O N S

22.   Point No.1. The complainant in his affidavit evidence stated more or less as averred in the complaint and produced documents. After going through the documents produced by the complainant, as rightly contended by the OP.No.1, it is crystal clear that there is no any documents to show that the complainant has been enrolled as a member of Provident Fund and Family Pension Scheme on 14.12.1984. Only basing on ESI Corporation Identity Card issued to complainant it cannot be contended that on 14.12.1984 itself the complainant has become member of the Provident Fund and Family Pension Scheme and contribution towards P.F. and Family Pension has been paid by the complainant or complainant’s employer has deducted contribution towards Provident Fund and Family Pension Scheme for the complainant and same has been remitted to concerned authority.

23.    Further it is to be noted here that even in Form No.10-D also OP.No.3 has not mentioned anything about contributions sent in respect of complainant. Simply it is stated that date of membership joining the fund is 14.12.1984. As already stated above, no any corroborative or supportive documents like pay-slip has been produced by the complainant to show that the complainant’s date of membership joining the fund is 14.12.1984. Even several correspondence letters written by the OP.No.1 to complainant as well as OP.No.3 Liquidator, it appears that since beginning OP.No.1 contended that as per their office records the complainant’s date of joining in service is 01.09.1986 and date of leaving the service is 25.01.1996 and hence the eligible service rendered by the complainant is 09 years 04 months 24 days i.e. less than 10 years of service. Further it is also stated that the establishment itself is defaulter for the period from March 1988 to June 1991 and from March 1992 to date of closure i.e., 25.01.1996. Yet, OP.No.3 as well as complainant has not produced any documents to show that the complainant has become member of the Provident Fund and Family Pension Scheme on 14.12.1984 itself.

24.    On the contrary O.P.No.1 has submitted document i.e. Copy of letter dated:12.01.2023 written by Regional P.F. Commissioner-II & O.I.C, Regional Office, Raichur to OP.No.1 Advocate annexed with Form-9 and Subscribers Ledger card  clearly depicts that the complainant’s date of eligibility of membership is 01.09.1986  and date of leaving service is 25.01.1996.  As per Subscribers Ledger Card pertaining to complainant it appears that Date of Joining P.F : 1.9.1986 & date of Joining Pension Fund : 16/11/1995 and Date of Exit P.F and Date of Exit Pension Fund : 25/01/1996. So looking to these documents it is very much clear that, as rightly contended by the OP.No.1, the complainant has not rendered eligible service of 10 years to get early pension as mentioned in para 12(1)(b) of the Employees Pension Scheme 1995. 

In a decision rendered by Hon'ble High Court of Karnataka in Writ Appeal No.232/2006 (S-R) (Sri.M.S.Desai Vs. The Regional Provident Commissioner, Sub Regional Office Hubli and The Divisional Commissioner NWKRTC, Hubli Division, Hubli) on 31.10.2008, in para No.24 of the judgment, it has been stated as under:

  “24. A perusal of paragraphs 10, 11 and 12 make it very clear that a minimum period of ten years 'eligible service' rendered by an employee or more on attaining age of 58 years, such persons become eligible and are entitled to receive pension. The scheme does not expressly say that 'eligible service' means only the period during which a member has contributed, on the other hand, a clear distinction is maintained in terms of paragraphs – 9 and 10 of the scheme to indicate as what is the 'eligible service' and as to how eligible service is to be determined and as to how pensionable service is to be determined.”

25.    So, looking to all the documents produced by both parties and looking to provisions of EPS 1995, and in view of principles stated in the above referred decision and also looking to some admitted facts and circumstance of the case  it cannot be stated that there is deficiency of service on the part of O.Ps. Admittedly, the complainant has not adduced any cogent and acceptable documentary evidence to show that he had joined the Pension Fund on 14.12.1984 except ESIC I.D card. Moreover, in the said I.D card name is mentioned as  'Shivayogi ' and not mentioned as ' Shivappa'. Further in the said I.D card full particulars are not mentioned. Further it is to be noted here that looking to Family Particulars shown in ESI Corporation I.D. Card and Family Particulars shown in the application for Monthly Pension Form-D submitted by the complainant it appears that ESI I.D. card is not pertaining to complainant and same might be fabricated. Because in the application for monthly pension form submitted by complainant under the head of Particulars of Family his daughter Bhimmavva’s D.O.B. is mentioned as 06.06.1986 whereas in the ESI Corporation I.D. Card complainant’s daughter Bhimmavva’s D.O.B. mentioned as 1986, but said I.D. Card said to have issued to complainant when he joined the service i.e. on 14.12.1984. Further in the application for monthly pension form complainant’s wife by name Mahadevi’s D.O.B. (date of birth) is mentioned as 01.01.1969, but whereas in the ESI Corporation I.D. Card said Mahadevi’s D.O.B. is shown as 1965.

26.    Therefore, as rightly contended by the OP.No.1, the eligible service rendered by the complainant is from 01.09.1986 to 25.01.1996 is 9 years 04 months 24 days which is less than 10 years and so complainant is not entitled to get any pension from OP.No.1 as mentioned in para 12(1)(b) of Employees' Pension Scheme, 1995. Under such circumstances it has to be held that the complainant has failed to prove that there is deficiency of service on the part of OPs. Hence point No.1 is answered in the negative.

27.   Point No.3 : In view of answer on point No.1 and for the foregoing reasons the complainant's complaint has to be dismissed. Therefore, we proceed to pass the following

O R D E R

1. The complainant’s complaint is dismissed. No order as to costs.

2. Send the copies of this order to the parties free of cost

         forthwith.

(Dictated to the Stenographer, typed by him on computer, corrected, signed and then pronounced on this the 04th day of February  2023).

(Shri.Vijaykumar M. Pawale)

President

(Shri.Rangangouda S. Dandannavar)

Member

(Smt.C.H.Samiunnisa Abrar)

Lady Member