IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  30^th  Day of  May   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.85/2016

          Rajankutty.C.Y                                                     :         Complainant

          Valiyavilayil

          Chengamanadu P.O

            Melila, Kottarakkara.

          [By Adv.Murali Madanthacodu]

V/s

1.         The Regional Provident Fund Commissioner   :         Opposite parties

Sub Regional Office

The Employees Provident Fund Organization

Parameswaran Pillai Nagar, Kollam.

                    [By Adv.R.Santhosh Kumar]

2.          Sri.Abdul Karim

M/s Fouzia Cashews

Kunnicode, Avaneeswarm R.S.P.O

                  Pathanapuram.

               [By Adv.Kottiyam G Raveendran]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          The complainant was an employee of M/s Fouziya Cashews, Kunnicode, with PF A/c No.KR/KLM/1255/1393.  He was also a contributory to the different schemes under the Employees Provident Fund and Miscellaneous Provision Act since 1974.  Originally he joined service with Sujir Ganesh Naik&Company Cashew Factory, Kunnicode.  Subsequently the ownership of the said cashew company was transferred to the 2^nd opposite party on 02.12.1998 and the complainant joined as a clerk during the year 1974, continued and retired from service on 30.11.2014 from the 2^nd opposite party cashew factory.  Both the opposite parties realized the required contributions from the salary and remitted to the above schemes in the appropriate time without any failure till the cessation of his employment. Accordingly the complainant was a member of the Family Pension Fund 1974 onwards and when the Monthly Pension Scheme 1995 was introduced he became the member of the said scheme without any break as he was a monthly paid employee till 30.10.2013 and thereafter he was on leave without wages till his superannuation on 30.11.2014. 

The complainant when his salary exceeded the limits covered by the statute opted the benefits exceeding the salary limit of Rs.6500/- and the 2^nd opposite party accepted the joint option submitted on 01.07.2008 and remitted contribution @ 8.33% of the total monthly salary to the pension fund and accordingly the complainant is entitled to get the pension as per the remittance of contribution from the total salary and the 2^nd opposite party submitted the return showing the deductions towards pension contribution without  any fail and as and when such joint option received it is the duty of the 1^st opposite party to accept the option received and acknowledged and safeguard the benefit to the contributory concerned.  The 1^st opposite party accepted the same and had not disputed or informed any difficulty to the complainant nor the 2^nd opposite party relating to the joint option so received. 

The complainant before his retirement, submitted Form 10 D with proper certification of the 2^nd opposite party for his pension to the 1^st opposite party and when he got the Pension Payment Order seen issued on 28.04.2015, that the person extended was very lesser and against the provisions of the 1995 Pension Scheme under the above Act and reduced the benefit without the consideration of the salary limit of Rs.6500/- as he had drawn higher amount as salary and had average pensionable salary of Rs.14920/- per month the basis of his total salary for the preceding 12 months from his retirement.  The complainant met the 1^st opposite party  on several occasion personally but the 1^st opposite party was reluctant to heed his request which pursued the complainant to file a written complaint to the 1^st opposite party and in reply dated 09.01.2015 the 1^st opposite party denied his actual benefit and again on 06.08.2015, the complainant had submitted a detailed complaint for the extension of actual benefit and the 1^st opposite party vide reply dated 29.09.2015 denied the actual benefit and again deliberately ignored and suppressed the acceptance of the joint option with a deliberate and willful intension to discard the joint option submitted for the reductions of the pension and those acts of the 1^st opposite party is cruel and against the basic principles under a benevolent legislation.  The 1^st opposite party is duty bound to extend the pensionary benefits as per the joint option submitted and in case of any failure from the part of the 2^nd opposite party none of the pensionary benefits shall be denied and the denial thus amount to the violation of the provisions of a welfare statute and dereliction of duty, casted on the 1^st opposite party who committed the breach of the statutory provisions. 

The complainant had drawn an average monthly salary of  Rs.14920/- before his retirement and he had completed 22 years of past service and 22 years of actual service together with 2 years of weightage and therefore he had continuously contributed more than 20 years of continuous pensionable service and thereby which qualified to him to get 2 years of weightage of service and thus he rendered total continuous actual service of 22 years.  Accordingly he is entitled to get the pension as shown below.

However the 1^st opposite party extended only Rs.2325/- per month from 18.11.2014 which is insufficient and against the scheme which led to deficiency in service and in justice to the complainant.  The complainant submitted the application without any delay and within time and total monthly pension payable to the complainant comes to Rs.88192/- from 18.11.2014 to 17.03.2015 and paid only Rs.37200/- and a balance of Rs.50992/- is payable to the complainant by the 1^st opposite party with interest @ 18% p.a till realization.  The complainant further pray to fix the monthly pension of the complainant @ Rs.5512/- with effect from 18.11.2014 and direct the 1^st opposite party to disburse the same to the complainant and direct the 1^st opposite party  to pay Rs.50992/- together with the interest @ 12% p.a from 18.11.2014 till the day of payment to the complainant and also direct the 1^st opposite party to pay an amount of Rs.10,000/- towards compensation and Rs.5000/- towards cost of the proceedings.

          Opposite party No.1&2 resisted the complaint by filing separate version admitting the status of the complainant, date of joining service, date of birth and also the membership of the various schemes.  However the 1^st opposite party would content that the date of birth of the complainant as per office records as well as in the application Form No.10 D is 18.11.1956 and therefore his date of attaining superannuation is 17.11.2014 and not 30.11.2014 as claimed in the complaint.  The claim of the complainant is that he has no break in service till 30.11.2014 is incorrect and no contribution was received for the period from September 1995 to December 1995 due to no work.  The joint request for remittance of contribution in Pension fund above the statutory wage limit of Rs.6500/- was not received  in the office in time.  This was informed to the complainant vide letters dated 09.01.2015, and 29.09.2015 except for the period 2008-2009,2009-10 and 2012-13, the Pension fund contributions were restricted to that of the maximum statutory limit of wages of Rs.6500/-.

          On receipt of application for monthly member pension in Form 10 D the 1^st opposite party  sanctioned monthly member pension @ Rs.2325/- w.e.f 18.11.2014 vide PPO No.KR/KLM/95220 prepared on 24.04.2015.  A sum of Rs.10,308/- was also released as arrears of pension.  The pensionable salary was taken as Rs.6500/- since Pension Fund contributions were  restricted to that of the  maximum statutory limit of wages of Rs.6500/-.  As joint request was not received in the office of the 1^st opposite party in time the contribution towards EPS 1995 was restricted to that of the maximum statutory wage limit of Rs.6500/-.  As such, his Actual Service Pension was computed by taking his pensionable salary as Rs.6500/-.  The amount erroneously remitted to the pension fund above the statutory limit for a brief period was transferred to the provident fund accumulation of the complainant.  The 1^st opposite party acted according to the provisions contained in the EPS, 1995 and has not denied any benefit payable to the complainant as per the EPS, 1995.  The calculation of monthly member pension given by the complainant is incorrect as per Para 12(3)(i)(b) of EPS 1995 the past service pension payable on completion of 58 years of age on 16^th November 1995 are shown in the written version.

          The 1^st opposite party has also stated the actual service benefit, past service benefit under the Employees Family Pension Scheme and actual service benefit under Employees Pension Scheme 1995 in detail in the written version.  Accordingly as per the calculation of the 1^st opposite party  the complainant is having 21 years 05 months past service and entitled to get Rs.673/- as past service benefit and that the aggregate of actual service benefit and past service according to the 1^st opposite party is 1652+673=Rs.2325/-.  According to the 1^st opposite party the complainant is not eligible for weightage of 2 years since his pensionable service is less than 20 years.  It is further contented by the 1^st opposite party that there is no deficiency in service as alleged in the complaint and further pray to dismiss the complaint with costs and compensatory costs.

          The 1^st opposite party had already remitted all the statutory contributions collected from the complainant periodically while he was on employment, to the 2^nd opposite party without any fault or delay.  The complainant has also not alleged any dereliction on the part of the 2^nd opposite party.  That all the relevant records relating to his employment together with joint requests for remittance of contribution in the pension fund above the statutory wage limit of  Rs.6500/- in time and remitted the required contribution in his pension account and the 1^st opposite party never informed about the latches occurred from the 2^nd opposite party were duly sent to the 1^st opposite party by the 2^nd opposite party without delay including the certificates of break in service to the 1^st opposite party and also not taken any statutory actions against the 2^nd opposite party and there is not even an instance of failure from the part of the 2^nd opposite party for the submission of returns etc. before the 1^st opposite party.  The contribution of pension preparation of pension payment order, fixation and disbursement of pension etc. of the workers are being done by the 1^st opposite party not by the 2^nd opposite party and the 2^nd opposite party has no role in it and if there is any deficiency occurred on the part of the 1^st opposite party the 2^nd opposite party is not liable.  That during the period of his employment the petitioner had not raised any allegation against the 2^nd opposite party.

In view of the above pleadings the points that arise for consideration are:-

1. Whether the 1^st opposite party has extended only a lesser pension to the complainant against the provisions of the Employees Provide Fund Scheme?
2. Whether there is any deficiency in service on the part of the 1^st opposite party?
3. Whether the complainant is entitled to get the monthly pension @ Rs.5512/- along with interest and costs as prayed for in the complaint?
4. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1, Ext.P1 to P4 and P5 series documents.Evidence on the side of the 1^st opposite party consist of the oral evidence of DW1 and Ext.D1 to D4 documents.The 2^ndopposite party has not adduced any evidence either oral or documentary.

Both sides have filed notes of argument.Heard both sides.

Point No.1 to 3

          For avoiding repetition of discussion of materials these 3 points are considered together.  The following are the admitted facts in this case.  The complainant was an employee of  M/s  Fouziya Cashews, Kunnicode and he was a contributory of  different schemes under the Employees Provident Fund and Miscellaneous Provisions Act since 1974.  Originally the complainant joined the service with Sujir Ganesh Naik& Company Cashew Factory, Kunnicode. Subsequently the ownership of the said cashew company was transferred to the 2^nd opposite party on 02.12.1998.  It is also an undisputed fact that the complainant joined as a clerk during the year 1974, continued and retired from service on 30.11.2014 from the 2^nd opposite party cashew factory.  The 2^nd opposite party realized the required contributions from the salary and remitted the same in the above schemes without any failure till the cessation of his employment.  According to PW1 he was a member of Family Pension Fund from 1974 onwards and when the Monthly Pension Scheme 1995 was introduced he became the member of the said scheme and he has paid monthly subscription till 30.10.2013 and thereafter he was on leave without wages till his superannuation on 30.11.2014.

          Admittedly the complainant is having a past service of 21 years 7 months and 15 days and the past service pension extended is Rs.673/- which is not a disputed fact in this case.  As per Section 10(1) of EPS 1995 pensionable service is the service of the complainant in which contributions received or receivable.  It is further to be pointed out that as per Section 10(2) of EPS if there is 20 years of pensionable service a weightage of 2 years is added.  Pensionable service under clause 12(2) is calculated on the  basis of number of years.  Hence pensionable service  is number of years in which contributions received from the employer.  Even though the actual service of the complainant is 19 years, contribution received only for 18 years up to 30.11.2013 and during the remaining 1 year the complainant was admittedly on leave without wages.  Hence pensionable service is 20 years including  2 years of weightage.

          Now regarding the calculation of pensionable salary.  As per Section 11(1) of EPS 1995 and as per Ext.P4 documents average monthly wages during the last 12 months span is Rs.14920/-.  Normal limit of pensionable salary was Rs.6500/- .  But as per clause 11(3) of  EPS if 8.33% of share of the employers of the actual salary is remitted to the pension fund from the date in which the salary exceeds the limit of Rs.6500/- per month pensionable salary shall be based on such higher salary.  As the 1^st opposite party admits that the employer paid contributions based on the actual salary from 08/2008 to 03/2010 and 04/2012 to 03/2014.  The salary of the complainant exceeds the limit of Rs.6500/- from 07/2008 onwards and contributions paid as per actual salary from 08/2008 onwards.  The payment was also accepted by the 1^st opposite party and hence the 1^st opposite party cannot object the legal right of the complainant as per clause 11(3) of the EPS Act.  Ext.P2 dated 01/07/2018 is the option submitted by the complainant to the 1^st opposite party through his employer.  The employer has seen forwarded the same to the Assistant Provident Fund Commissioner (2^nd opposite party) which is clear proof of submission of joint option on 01/07/2008.  The payment  of contribution as per actual salary was accepted by the 1^st opposite party only because the joint option was  submitted on 01.07.2008.   The  acceptance of contribution by the 1^st opposite party is the clear proof of the submission of above joint option.  Ext.P5 series is the copy of the declaration of the pensioner cum undertaking by the employer wherein also it is clearly stated that the employer have contributed the employers share of  provident fund contribution on his actual salary without break as per the terms of para 26(6) of the EPS scheme.  It is also seen from Ext.P5 series undertaking of the employer that he had forwarded certified copy of Form No.3(A) return relating to the complainant from 16.11.95 on which date the complainant’s salary exceeded the statutory wage limit till his retirement.  In view of Ext.P2 and P5 documents it is crystal clear that the actual salary of the complainant exceeded the limit of Rs.6500/- w.e.f 16.11.95 and the employer has remitted contribution as per the actual salary and the same was accepted by the 1^st opposite party.  The learned counsel for the 1^st opposite party has argued that the contribution as per actual salary was not received for the period from 04/2010 to 03/2012.  But it is settled position that once the payment started and the payment of the same is failed then it is the duty of the 1^st opposite party to realize the amount from the employer as provided in the said act.  Further more in Ext.P2 option it is clearly stated that……….GsX-¦nepw amk-§-fn A§s\ ]nSn-¨-S-¡m-Xn-cp-¶m Fsâ PF A/c(A/c No.1)  \n¶pw B XpI FSp¯v AUvPÌv sN¿Wsa¶v At]-£n-¡p-¶p.

        Therefore it is clear that if any amount is due on this count the opposite parties can deduct the same from the PF a/c  of the complainant and they are not expected to say that since contribution as per the actual salary has not been received the complainant is not entitled to get pension on the basis of actual salary.

The learned counsel for the opposite party has further pointed out that proceedings are pending before the Hon’ble Supreme Court and until final decision of the Hon’ble Supreme Court in the review petition the process of revising pension based on actual salary the complaint is to be dismissed with liberty to file a fresh complaint before this Commission after the decision of the  Hon’ble Supreme Court or to defer the matter sine a die until the decision of  Hon’ble Supreme Court.  As there is no stay of proceedings this Commission is expected to proceed with the case and pronounce an order especially when the matter is oldest one(having 6 year old) and if at all the opposite party is aggrieved by the order it can obtain a stay  of execution of the order until the disposal of the review petition pending before the Hon’ble Supreme Court.

          The actual monthly pension as per para 12(2) of the EPS 1995 is calculated by applying formulae:-

Pensionable salary x pensionable service

                                 70

           =   14920x20           =Rs.4263/-

                     70              

          Since the complainant is an existing member the monthly member pension  is an aggregate of past pension and actual pension which is Rs.673+4263=Rs.4936/-.  The complainant is eligible to get Rs.4963/- as actual monthly pension from 18.11.2014 onwards.  But the complainant was admittedly getting monthly member pension @ Rs.2325/- per month from 18.11.2014.

          In view of the materials discussed above it is clear that the 1^st opposite party has extended only a lesser pension than the actual pension the complainant is entitled to  get.  Therefore there is clear deficiency in service on the part of the 1^st opposite party and the complainant is entitled to get the balance amount(difference between the actual monthly member pension – the extended pension of  Rs.2325/)= 4936-2325=Rs.2611/-.  The complainant is also entitled to get interest @ 6% p.a for the above amount of Rs.2611/- from 18.11.2014 onwards as arrears of wages apart from the right of  getting monthly member pension @ Rs.4936/- from 18.11.2014.  The complainant is also entitled to get reasonable compensation for deficiency in service committed by the 1^st opposite party and also for costs of the proceedings. In view of the materials available on record we are inclined to limit compensation and costs to the tune of  Rs.10,000/-.  The points answered accordingly.

Point No.4

          In the result complaint stands allowed

1.  Directing the 1^st opposite party to fix a monthly member pension of the complainant @ Rs.4963/- w.e.f 18.11.2014 onwards.
2. The 1^st opposite party is directed to pay the arrears of monthly member pension ie, 4936-2325=Rs.2611/- per month from 18.11.14 onwards along with interest @ 6% p.a for the arrears of pension.
3.  The 1^st opposite party is directed to pay Rs.10,000/- as compensation including costs.

The 1^st opposite party is directed to comply with the above directions within 45 days from today failing which the complainant is at liberty to execute the order as provided under  the Consumer Protection Act.

          Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  30^th day of  May  2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Rajan Kutty

Documents marked for the  complainant

Ext P1:        Copy of  Pension Payment Order.

Ext P2:        Copy of letter from the complainant to The Assistant Provident Fund Commissioner.

Ext.P3:        Copy of certificate from Fouzia Cashews.

Ext.P4 :       Copy of contribution card for currency period 1^st April 2012 to 31^st March 2013.

Ext.P5 series: Copy of joint option submitted as per direction of the Forum.

Witnesses Examined for the opposite party:-

DW1           :         Maji.G.Krishnan.

Documents marked for the opposite party:-

Ext.D1        :     Authorisation for appearance for and on behalf of employees provident fund organization.

Ext.D2        :         Copy of letter from EPFO to the Sri.Rajan Kutty.C.V.

Ext.D3        :      Copy of circular dated 20.03.2021 from EPFO.

Ext.D4        :         Copy of circular from EPFO dated 23.03.2017.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent