State Consumer Disputes Redressal Commission
Chief General Manager & Anr., vs Regional Commissioner & Anr., on 16 April, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.FA/12/512
Instituted on 20.09.12
1. Chief General Manager, SECL,
Baikunthpur Area, Baikunthpur,
Dist. KOREA (C.G.)
2. Sub-Area Manager, SECL,
Pandavpara, (Jhilmili Area),
Baikunthpur Area, Baikunthpur,
Dist. KOREA (C.G.) ... Appellants.
Vs.
1. Regional Commissioner,
CMPF Office, Jabalpur (Shaktinagar),
Dist. JABALPUR (M.P.)
2. S.N.Prasad, S/o: Shri Sumarsai,
R/o: Vill. Chirguda, P.O.Patna, Tah. Baikunthpur,
Dist. KOREA (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K.Gupta, for appellants.
Shri Mukesh Sharma, for respondent no.1.
Shri A.K.Shukla, for respondent no.2.
ORDER
Dated: 16/04/2013 PER: - HON'BLE JUSTICE SHRI S.C.VYAS, PRESIDENT The appellant herein was OP Nos.2 & 3 before District Consumer Disputes Redressal Forum, Korea-Baikunthpur (hereinafter called "District Forum" for short) in complaint case No.52/12, which have been directed vide order dated 16.08.12, to prepare pension case of the complainant within 45 days and then to forward the same before OP No.1. The OP No.1 has also been directed to pay the balance // 2 // pension to the complainant within one month along with dearness relief and to continue payment of pension till lifetime of the complainant. Feeling aggrieved by this order the appellants / Employer SECL has come up before us by way of this appeal.
2. Indisputably, the complainant was employee of the appellants in Pandopara colliery on the post of Assistant Grade-I and retired in that capacity on 30.11.2001. The case of the complainant before District Forum was that at the time of retirement the appellants Employer has merely paid the amount of provident fund to the complainant, but nothing was paid against deduction which was made by the employer in pension account nor the pension was assessed for every month payment. It has been averred that the employer was deducting from the salary of the complainant every month contribution towards provident fund as well as in the pension fund and that deduction against pension fund was required to be deposited with OP No.1 the CMPF in their account. The complainant made request on many occasions with the appellants for payment of pension but only evasive replies were given. So, thereafter alleging it as deficiency in service on the part of the employer as well as the Commissioner of the CMPF consumer complaint was filed before District Forum.
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3. The Commissioner of CMPF, Jabalpur has not filed any detailed reply of the complaint in the form of written version and merely an application was filed to the effect that the Account No., which has been mentioned in the complaint regarding deduction of contribution of Coalmines Employees Provident Fund was incorrect and such Account No. was not allotted to any of the member. In the Office of the respondent No.1 / OP No.1, the work of maintenance of Accounts of Coalmines Employees Provident Fund Scheme 1948 was being done and was to be paid by the Head Office.
4. The appellants herein in their reply have averred that the complainant was employed in the year 1963, but he was not a member of Coalmines Family Pension Scheme 1971. Another scheme Coalmines Pension Scheme came into effect in the year 1998 and for becoming member of that scheme it was necessary for the complainant to give his option within 60 days from the date of notification and to file an application to that effect in the Office of the appellants / OP Nos.2 & 3, but the complainant had never submitted such option and therefore no pension was fixed and paid. So, the appellants had not committed any deficiency in service in not paying any amount of pension.
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5. Learned District Forum did not agree with the defence taken by the appellants and by the impugned order has allowed the complaint with direction to prepare pension case of the complainant and to forward the same to the concerning Office.
6. We have heard arguments advanced by both parties and perused the record of the District Forum as well as the documents which have been brought on record before us at the appellate stage by way of evidence.
7. Learned counsel for the appellants Shri R.K. Gupta has very vehemently argued that the respondent No.2 / complainant was never a member of pension scheme and had never submitted any Option Form to the appellants and therefore no question arises of fixing his pension and of payment of the same. In this regard he has drawn our attention towards pay slip, Document D-2, which has been filed by the appellants at the appellate stage as evidence and submitted that this document clearly describes CCLPF No.M/1298 and this No. was merely the P.F. Account No. of the complainant and not that of the pension fund, so the pension was not payable. Full form of CCLPF is Central Coalfields Ltd. Provident Fund. It has been submitted that the complainant started his service in the year 1963 and since then he was member of CCLPF and the No. was allotted. Thereafter, he never // 5 // opted to become a member of Coalmines Family Pension Scheme 1971 or Coalmines Pension Scheme 1998, which was made applicable retrospectively in the year 1996. Learned counsel for the appellant has not shown us the provisions of Coalmines Pension Scheme 1998 or that of Coalmines Family Pension Scheme, 1971, but from the Pay Slip, which has been brought on record by the appellants at the appellate stage as evidence, it is clear that from the monthly salary of the respondent No.2 / complainant amount of Rs.152/- was deducted as contribution towards pension fund and Rs.96/- was further deducted towards Additional Pension Fund from the pay of September 2000. At the bottom descriptions of provident fund as well as that of pension fund have also been given separately. It has been clearly mentioned that 'Pension: 1055.00', which means that this amount of pension was to be paid after retirement or that this amount was the amount of pension fund, calculated by that time to be paid. It is worth mentioning that the complainant before District Forum has also filed Pay Slip of the month of December 2001 and in that Pay Slip, contribution towards Pension Fund was shown as Rs.186/- and Additional Pension Fund Rs.96/-. Thus the contribution was increased substantially and so the amount of pension, which has been mentioned in the bottom was also increased to the amount of Rs.1,622/-. These two documents further clarifies that contribution towards Pension Fund was continuously being made by the // 6 // complainant and the amount was continuously being deducted from the salary of the employee by the appellants / Employer. This amount must be available with the appellants or in the Office of respondent No.1, to which the contribution of employees towards pension fund was to be transmitted and therefore in view of entries in the Pay Slips of different months, it has become clear that the deductions were made from the salary of the complainant against the Pension Fund and Additional Pension Fund, so this argument of the appellant is not sustainable that the appellant had not opted to become a member of the Pension Fund.
8. If there was no option on behalf of the complainant for becoming member of the Pension Fund, then there was no occasion for the employer to deduct any amount towards Pension Fund. These deductions itself prove that there was option. Secondly, if there was no option submitted by the employee and he had denied to become a member of the Pension Fund, then such document of denial should be there in the Office of the appellants / Employer, which could have been filed by the appellants before the District Forum or before us, but to all our surprise no such document of denial of option has been filed, therefore presumption in favour of giving consent by the complainant for becoming member of Pension Fund arises, in view of the Pay Slips of the respondent No.2 / complainant.
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9. The appellants have taken plea that they are having pension scheme in the name of Coalmines Pension Scheme 1998 or Coalmines Family Pension Scheme 1971. Central Government has also formulated pension scheme for the employees, who are working in Private Sector or who are not in Government Service. The Scheme is known as the Employees' Pension Scheme 1995. This Scheme was formulated by the Central Government in exercise of powers conferred by Section 6A of the Employees' Provident Funds and Miscellaneous Provisions Act 1952. It has been clarified in Section 1 clause (3) of the Scheme that "this Scheme shall apply to the employees of all factories and other establishments to which the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 applies or is applied under sub-section (3) or sub-section (4) of section 1 or section 3 thereof". Clause 20 of the Scheme talks about the 'duties of employers' and it has been clarified that "(1) every employer shall send to the Commissioner within three months of the commencement of this scheme, a consolidated return of the employees entitled to become members of the Employees' Pension Fund showing the basic wage, retaining allowance, if any, and dearness allowance including the cash value of any food concession paid to each of such employees" and then "every employer shall send to the Commissioner within 15 days of the close of each month a return in respect of the employees leaving // 8 // service of the employer during the preceding month." It was also the duty of every employer to "maintain such accounts in relation to the amounts contributed by him to the Employees' Pension Fund as the Central Board may, from time to time, direct and it shall the duty of every employer to assist the Central Board in making such payments from the Employees' Pension Fund to his employees as are sanctioned by or under the authority of the Central Board". In respect of becoming member of the Employees' Pension Fund it has been stated in Section 3 that "from and out of the contributions payable by the employer in each month under section 6 of the Act or under the rules of the Provident Fund of the establishment which is exempted either under clauses (a) and (b) of sub-section (1) of section 17 of the Act or whose employees are exempted under either paragraph 27 or paragraph 27A of the Employees' Provident Funds Scheme, 1952, a part of contribution representing 8.33 per cent of the employees' pay shall be remitted by the employer to the Employees' Pension Fund within 15 days of the close of every month by a separate bank draft or cheque on account of the Employees' Pension Fund contribution in such manner as may be specified in this behalf by the Commissioner. The cost of the remittance, if any, shall be borne by the employer." Then there is provision of Central Government's contribution in the Fund and it has further been clarified that "where the pay of the member exceeds rupees six thousand and five hundred per month the // 9 // contribution payable by the employer and the Central Government be limited to the amount payable on his pay of rupees six thousand and five hundred only".
10. In respect of membership clause 6 clarifies as under : -
"6. Membership of the Employees' Pension Scheme.- Subject to sub-paragraph (3) of paragraph 1, this Scheme shall apply to every employee,-
(a) who on or after the 16th November, 1995 becomes a member of the Employees' Provident Fund Scheme, 1952 or of the provident funds of the factories and other establishments exempted by the appropriate Government under section 17 of the Act, or in whose case exemption has been granted under paragraph 27 or 27A of the Employees' Provident Fund Scheme, 1952, from the date of such membership;
(b) who has been a member of the ceased Employees' Family Pension Scheme, 1971 before the th commencement of this Scheme from 16 November, 1995;
(c) who ceased to be a member of the Employees' Family Pension Scheme, 1971, between 1st April, 1993, and 15th November, 1995 and opts to exercise his option under paragraph 7;
(d) who has been a member of the Employees' Provident Fund or of provident funds of factories and other establishments exempted by the appropriate Government under section 17 of the Act or in whose case exemption has been granted under paragraph 27 or 27A of the Employees' Provident Fund Scheme, 1952, on 15th November, 1995, but not being a member of the ceased Employees' Family Pension Scheme, 1971, opts to exercise his opinion under paragraph 7."
Section 6A talks about 'retention of membership' that "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 // 10 // benefit to which he is entitled." Section 7 provides for 'option for joining the Scheme' which says that the "members who died between 1st April, 1993 and 15th November, 1995, shall be deemed to have exercised the option of joining the Scheme on the date of his death." Then there are provisions regarding other members for exercising the option for becoming member of the Scheme at different stages, but from reading the entire Act it is clear that it is the duty of the employer to seek option or to seek clear cut denial of its employees to not becoming member of the Scheme of Pension Fund.
11. In the facts of the present case, we find that no such denial has been produced by the appellants. On the contrary pay slips produced by both parties clearly shows that contributions towards pension fund have been made by the employee and the employer was deducting the amount from his salary every month. Thus, it is clear that he was a member of Pension Scheme and therefore was entitled to have benefits of the Scheme after his retirement and if the Employees' Pension Scheme 1995 was not made applicable to the employees of the Coalmines then the employer, as contended by learned counsel for the appellants, was having its own pension scheme. But provisions of that Pension Scheme have not been brought on record and therefore by applying the principles of natural justice, on the basis of Pay Slips, the District Forum has come to a right conclusion that contributions were // 11 // made by the employee towards pension fund, so he was entitled for pension as per the Pension Scheme and therefore directions have been given to prepare pension case of the complainant and to send the same to the Commissioner CMPF.
12. In view of the aforesaid, the appeal has got no substance and is liable to be dismissed. The same is so dismissed. No order as to cost.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/04/2013 /04/2013