<br /> <br /> <br /> By SRI. K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint filed by the Complainant seeking sanction of Pension.<br /> <br /> <br /> The avrnments of the complainant can be briefly summarized as follows.<br /> <br /> <br /> The Complainant was a cashew worker in P.K.D Cashew Exporter, Kaithakuzhi, Adichanalloor P.O, Kollam District which is an establishment covered by the Employee’s Provident Fund and Miscellaneous Provisions Act 1952. <br /> <br /> The Complainant commenced her work in the year 1962 and became member of Employees Provident Fund in 1963. She was also a member of family pension fund. The Provident Fund Account Number allotted to her is KR/1400/217. She retired from her service on 31-7-1995 after completing 33 years of regular service. <br /> <br /> <br /> The II Opposite party had remitted the Complainant’s annual subscription due to the Provident Fund. The complainant applied for her provident Fund pension in 10 - D application through the II opposite party on 19.02.1997, which was rejected and returned on the ground that the complainant is not entitled to get pension under 1995 scheme as the complainant was not a member of the Employee’s Family Pension Fund Scheme 1971, and as she retired from service before 16-11-1995. <br /> <br /> Again the complainant applied for pension in Form 10 –D but the same was also rejected. Another application filed in the year 2002 was also rejected by the opposite party. Even though the Complainant resigned from her service on 31-7-1995 and the Employees Provident Fund Scheme came in to force in 15-11-1995, the I Opposite party had to take into consideration that the Scheme had retrospective effect. But without doing its service to the Complainant rejected the application, which amounts to deficiency in service. <br /> The II opposite party, being the employer of the complainant had to inform the 1st opposite party that the complainant was a member of Family Pension Fund Scheme 1971, and even if the Complainant was not a member, it is the duty of the II opposite party to enlist the Complainant as she started her work in the year 1962. By not doing that duty, the II opposite party has also committed deficiency in service. Hence the Complaint. <br /> The I opposite party filed a version stating that the complainant was a subscriber of Employees Provident Fund with effect from 1-4 - 1963 to 31- 7- 1995 with employees Provident Fund Account No. KR/1400/271. The final settlement in her Employees Provident Fund Account was effected on 3-1-1996 on her application. The complainant has not opted to join the Employees Family Pension Fund 1971 though opportunity was given. Having not contributed to the scheme she cannot claim any benefit under the scheme - Non Family Pension Fund, members in Employees Provident Fund whose Provident Fund Accounts are not settled were given a chance to exercise option to join the Pension Scheme by contributing to the Family pension Fund 1971, contributions in both shares payable from 1-3-1971 on wards. The complainant did not exercise the option to joint the Employees Pension Scheme 1995-till 3/96. In 3/96 her membership in the Employees Provident Fund ceased when she withdrew entire accumulation in the Employees Provident Fund Account. The membership of Employees Provident Fund Scheme 1995 is governed by para 6 of the scheme. A member of the Employees Pension Fund shall continue to be such member till he attains the age of 58 years or he avails the withdrawal benefits. The complainant being a non Family Pension Fund member does not come under 6(b) or 6(c). Since her membership in employees Provident Fund ceased in 3/96, the Complainant is not eligible to exercise option after 3/96 ie after settlement of Employees Provident Fund. Employees Pension Scheme 1995 has no retrospective effect from 1-4-1993. But Family pension Scheme member who ceased membership between 1-4-93 and 16 - 11 -1995 and who were otherwise eligible only come under para 6 (b). The plea of retrospective application to the entire category of employees is wrong and therefore denied. The complainant failed to exercise option to Employees Pension Scheme 1995 and to remit the Pension Fund contribution with interest during the period of her membership in 1952 scheme. Thus the Complaint is out of the ambit of Employees Pension scheme 1995. <br /> <br /> <br /> Hence the opposite party prays to dismissed the complaint. <br /> <br /> <br /> For the Complainant PW1 is examined. Exhibits P1 to P4 marked. <br /> <br /> <br /> For the Opposite party DW1 is examined. Exhibit D1 marked.<br /> <br /> <br /> The points for consideration are:<br /> <br /> 1. Whether the complainant is entitled to get pensionary benefits covered under the Employees Provident Fund Scheme 1995? <br /> 2. Whether the Complaint is barred by limitation?<br /> 3. Whether there is any deficiency in service on the part of the opposite parties?<br /> 4. Reliefs and costs.<br /> <br /> Points 1 to 4<br /> <br /> It is an admitted fact that the complainant was a member of Employees Provident Fund Scheme 1952 and was not a member of Employees Family Pension Scheme 1971. She has failed to exercise option as provided under para3 and 4 of Employees Provident Fund Scheme 1952. The Complainant retired from service on 31.07.95 and her Provident Fund accumulation under the 1952 Scheme was settled in 3/96. Under para 6A of the Employees Pension Scheme 1995 a member of that scheme ceases to be a member on attaining 58 years or when the withdrawal benefit is availed. Para 6 <br /> deals with membership of Employees Pension Scheme. A member of the 1952 scheme can opt to join the 95 schemes under para 7 or para 17. For exercising option under para 7 certain payments under para 17 is a pre-condition. The provision of para 6(a) is not applicable herein or complainant has not become a member of 1952 scheme on or after 16.11.95. Para 6(b) and (c) are also not applicable herein as the complainant never was a member of 1971 scheme. Para 6(d) is also not applicable herein as the Complainant has not remitted the past period contribution with interest there on.<br /> <br /> The Complainant has not exercised option before receiving the Provident Fund accumulation in 3/96 and the settlement of her EPF account was on the basis of her application. The complainant has also not opted to join the 1971 scheme. Since the membership of the complainant ceased with effect from 3/96, She is not eligible to exercise option subsequently. It is argued by the opposite party that the option should be exercised while holding Provident Fund membership and the amount of contribution and interest up to the date of remittance be transferred from the Provident Fund accumulations to the pension Fund. That has not been complied with in the case of the complainant.<br /> <br /> The learned Counsel for the Complainant argued that the opposite parties at the <br /> time of settling Provident Fund account did not inform the complainant about the advantages of the 95 schemes and had they informed her she would have opted for the scheme. Dw1 has stated in cross-examination that though individual intimations are not given information through the employer were given. The Complainant in these <br /> circumstance prays to give an opportunity to opt the scheme. It is argued by the learned counsel for the Complainant that the settlement of PF account is no bar for exercising option to the EPS 95 scheme as no cut off date is prescribed for exercising option and that the Complainant can become a member of 1971 scheme which is a pre-condition for option to EPS 95 at any time by contributing the FPF share with interest from 1.3.1971. That argument cannot be accepted. The complainant herein retired from service on 31.7.95 on attaining 60 years of age. A member of 1971 scheme ceases to be a member on attaining 60 years and no option can be exercised once the membership is ceased. Therefore, the Complainant herein cannot become a member of 1971 scheme again and as such her application for pension cannot be entertained. We find that there is no deficiency in service on the part of the opposite parties. Point found accordingly.<br /> <br /> In this context it is worth pointing out that Form 10D application of the Complainant was rejected and returned on 19.2.1997. Again she submitted another Form 10 D application on 13.11.99, which was also rejected and returned on 15.12.99. A third Form 10 D application was filed in the year 2002, which was also rejected. It is after the rejection of the 3rd application this complaint is filed. The opposite parties argued that the present complaint is barred by limitation. It is to be pointed out that complainant filed IA 119/05 long after filing the complaint, which was allowed by this Forum though without a considered order. Since the delay in this case is already condoned we answer the point in favour of the complainant.<br /> <br /> <br /> <br /> In the result the complaint fails and the same is dismissed. No costs. <br /> <br /> <br /> INDEX<br /> <br /> List of witness for the complainant<br /> <br /> PW1 Kamalakshi Amma<br /> Ext. P1 : Terminating Order (31/7/95)<br /> Ext.P2 : PF remittance slip<br /> Ext P3 : 10 D Form<br /> Ext P4 : Registration memo<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />