Central Information Commission
Parveen Kohli vs Employees Provident Fund Organisation on 1 October, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC
Second Appeal No.: CIC/EPFOG/A/2018/153919
Shri Parveen Kolhi Appellant
Versus
CPIO, EPFO, Kolkata Respondent
Order Sheet: RTI filed on 12.05.2018, CPIO replied on 05.06.2018, FAO on 19.07.2018, Second
appeal filed on 31.08.2018, Hearing on 26.09.2018;
Proceedings on 26.09.2018: Appellant present at CIC, Public Authority represented by CPIO. Mr.
Shakeel Ahmad, Regional Provident Fund Commissioner-II from NIC Kolkata
Date of Decision - 01-10.2018: Directions issued, Show-cause and compensation notice issued,
posted to 15.10.2018.
ORDER
FACTS:
1. The appellant Mr Parveen Kohli sought information, on behalf of Mr. Subhash Chandra Banerjee, about number and details of pensioners whose pensionable service for pension fixation/calculation has been treated as the total of past service i.e. prior to 16.11.1995 and service beyond 16.11.1995 as per orders of District Consumer forum, State Consumer Commission, National Commission and courts of law, details of all such cases relating to issue above and list of cases and orders, copy of complete relevant files i.e. correspondence pages along with noting pages containing all the relevant documents in above cases. The CPIO replied that no such cases are available with the legal cell and provided the copy of noting sought in point no. 6. The Appellate Authority stated that the CPIO has not denied the information sought but since the information is voluminous in nature the appellant may visit and inspect the concerned files.
CIC/EPFOG/A/2018/153919 Page 1 Decision:
2. The appellant Mr. Parveen Kohli was representing the pathetic case of Mr. Subhash Chandra Banerjee (76 yrs), who is seriously ill and almost on death-bed.
This 76 years old pensioner is suffering from Ischemic Heart Disease with Epilepsy with Cerebral Hge, Hyper depression, Seizure disorder, Lumber-1 Compression fracture. He joined service in 1969, at the age of 58 yrs retired in 2002 and he was entitled to receive monthly pension from EPFO under EPS95 Scheme w.e.f 5.8.2000. His EPF Account No. is WB/129941/19, Establishment code is WB/PRB/00299411 000/0000019 and PPO No. is WB/PRB/00023532.
3. Mr Banerjee failed in Calcutta District Consumer Forum, Unit-I, vide case number CDF-I/case no. 352/2003 on 19.12.2006 and then he went in appeal against that order before State Consumer Redressal Commission, which has set aside order of the district forum and observed:
"..the appellant (Mr. Subhash Chnadra Banerjee) joined the service in the establishment of the respondent on 01.02.1969 and that he retired from the said service upon superannuation on attaining the age of 60 years on 31.08.2002. Thus, the total service period of the appellant was 33 years 7 months. It further appears to us that the total period of service of the appellant was continuous and without any break which is the admitted position...It is further ordered that the respondents shall calculate the monthly pension of the appellant according to law of the Employees' Pension Scheme, 1995, within three months and such assessed and calculated amount of monthly pension shall be payable to the appellant w.e.f. 01.09.2002. The amount of Rs. 26,400/- the amount of withdrawal benefit shall be adjusted out of the arrears amount of monthly pension shall be paid to the appellant forthwith. The arrears of the provided fund amount payable to the appellant shall be paid within one month from the date of communication of this order to the appellant together with penal interest as permissible under existing law. (12%)"
4. The EPFO, Kolkata office challenged this order before the National Commission Dispute Resolution Commission, which upheld it saying:
CIC/EPFOG/A/2018/153919 Page 2 ".....we do not find any jurisdictional error in the impugned order, warranting interference in our limited revisionary jurisdiction...Before parting with the case, we are constrained to observe that having regard to the object and spirit of the 1952 Act, the quantum of the amount involved as also the fact that the technical issue sought to be raised in the present petition may arise in a handful of cases, involving retired employees, the Provident Fund Commissioner would have done well in graciously accepting the order passed by the State Commission, instead of driving the complainant in litigation upto this forum. We dare say that, in all probability, the cost of litigation incurred in the case would be more than the petty amount of monthly pension, the complainant might ultimately receive.."
5. Despite above observations of the National Commission, against the orders of the National Commission; EPFO Kolkata appealed to the Hon'ble Supreme Court of India by diary no. 18022/2017 but on 11.8.2017 by IA 65443/2017, EPFO had withdrawn the same on their own before the Registrar of the Apex Court, but did not implement this order. He filed several complaints/representations to PM, Secretary of Labour and Employment, CPFC of EPFO which were also not responded.
6. The pathetic story of Banerjee is sad example of 'state cruelty' or 'bureaucratic harassment' of a small employee. Even after the strictures by National Commission, the attitude of officers did not change. He pleaded that as per the confirmed order the EPFO has to pay pension regularly and it cannot adjust more than Rs 26,400 that was authorized by the State Consumer forum. But the EPFO in total defiance of the orders has adjusted entire amount of his pension except Rs 1000.
7. The law is clear that pension and gratuity of the employee cannot be deprived of. Division Bench of Justice K.S. Radhakrishna and Justice A.K. Sikri of Hon'ble Supreme Court observed in State of Jharkhand and Others v Jitendra Kumar Srivastav and Another:
"It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Right to receive pension is treated as right to property.
CIC/EPFOG/A/2018/153919 Page 3 It hardly needs to be emphasized that the executive instructions do not have statutory character and, therefore, cannot be termed as 'law' within the meaning of Article 300A of the Constitution. On the basis of such a circular, which is not having force of law, the appellant cannot withhold -- even a part of pension or gratuity. So far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."
8. National Consumer Commission ordered EPFO to pay as per the Employees' Pension Scheme, 1995. This scheme provided for recovery of damages for default in payment of any contributions. Paragraph 12(1) says: Where an employer makes default in the payment of any contribution to the Employees' Pension Fund, or in the payment of any charges payable under any other provisions of the Act or the Scheme, the Central Provident Fund Commissioner or such officer as may be authorized by the Central Government, by notification in the Official Gazette, in this behalf, may recover from the employer by way of penalty, damages at the rates given below:- -
TABLE
Rates of damages
S.N. Period of default (Percentage of arrears per
annum)
A Less than two months Five
B Two months and above but less Ten
than four months
C Four months and above but less Fifteen
than six months
d Six months and above Twenty Five
9. As per G.S.R. 134 dated the 28th February 96 (w.e.f. 16th March 1996) there shall be Guarantee of pensionary benefits. It says: None of the pensionary benefits under the Scheme shall be denied to any member or beneficiary for want of compliance of the requirement by the employer under sub-paragraph (1) of paragraph 3 provided, however, that the employer shall not be absolved of his liabilities under the Scheme. Para 17 A of the scheme prescribed personal responsibility of the Commissioner to make payment within 30 days otherwise with CIC/EPFOG/A/2018/153919 Page 4 penal interest @12% has to be deducted from the salary of the Commissioner:
Para 17A of the Employees Pension Scheme says: "the claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within thirty days from the date of its receipt by the Commissioner. If there is any deficiency in the claim, the same shall be recorded in writing and communicated to the applicant within thirty days from the date of receipt of such application. In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within thirty days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12 per cent per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner".
10. Appellant claimed that the employer had deposited by cheque, a sum of Rs. 70,21,856/- with the EPFO which included the entire due employees contribution as well as employer's due contribution up to May 1995 and interest up to 31.3.1996 (July 1975 to 1995-96). In that amount, Mr. Banerjee's contribution - Employees' and his PF contribution with family Pension Fund contribution was Rs. 63,308/- and a similar contribution had been paid by his employer too. Segregation of contribution responsibility of employer or EPFO & NOT of employee: Out of employer's contribution, a part representing 1.16% of Rs. 63,308/- should have been credited to his Family Pension Fund A/C as per Para 3(1) and Central Govt.'s contribution @1.16% as per Para 3(2) should also have been credited to his Family Pension Fund account. Under Para 3(4), 25, 26 of EFP Scheme 1995, it has also been provided that net assets of the Family Pension Fund/Scheme 1971 shall vest in and stand transferred to EPS Fund. So, there is no question of any outstanding balance pertaining to him and as such the amount of Rs. 1,56,634 shown as recoverable is without any basis and erroneous which needs to be corrected.
11. The total payable outstanding pension amount so calculated works out to be Rs. 5,58,281/- (upto June 2018) wherein the principal amount is Rs 1,70,060/- (excluding the amount of Rs.1000/- as pension paid for the month of June 2017 which had been credited in his bank on 6.9.2017).
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12. As per orders of the SCDRC confirmed by the NCDRC, EPFO had to calculate the arrear amount of monthly pension as per the existing law and only Rs. 26,400/- (without any interest) on a/c of withdrawal benefit wrongly paid by EPFO to Mr. Banerjee was to be adjusted out of the monthly pension arrear. It has nowhere been ordered by the NCDRC or SCDRC to recover any interest on this amount as an amount of Rs. 62,281 on a/c of interest has illegally been levied by EPFO in their calculations and shown as recoverable from him, which is erroneous and as such needs to be corrected. The amount of PF Contribution (Rs.3060/-) with up to date interest as ordered by SCDRC/ NCDRC up to June 2018 amounting to Rs. 16,789/-. EPFO had, infact, released an amount of Rs. 6059/- by cheque no. 814281 dt 30.9.2009 but due to wrong actions on the part of EPFO, even that amount could not be credited by EPFO in Mr. Banerjee's account and the amount has now accumulated to Rs. 16,790/- as per Section 72 (7) of the EPF Scheme , 1952.
13. Violations under Consumer protection Act, 1986: The action of EPFO Kolkata is also violative of the Section 25 of the Consumer Protection Act, 1986 and since the orders of SCDRC & NCDRC have not been complied with by the concerned officers of EPFO, their properties also deserves to be attached as per Section 25 of the Consumer Protection Act, 1986 and liable for penal action under Section 27 of the CP Act.
14. Appellant also demanded suitable compensation to Mr. Banerjee who was victim of lethargy, red-tape and cruel attitude of officers, which made him to suffer for 18 years compelling him to go up to national commission and huge litigation expenses, violating his Fundamental Rights i.e. Right to Life & Liberty (Article 21) and Right to Property (Article 300A). He further pleaded:
a) Release monthly pension arrears with interest to the tune of Rs.
5,58,011 (Rs. 1,71,060 plus interest) as per my calculation up to June 2018 as per Section 17(7) of the EPS Scheme 1995.
b) Adjust Rs.26,400 as claimed by EPFO towards refund of withdrawal benefit out of the amount of arrears of monthly pension but without interest as there was no fault on the part of employee and also the SCDRC & NCDRC have not ordered so.
CIC/EPFOG/A/2018/153919 Page 6
c) After crediting the monthly pension arrears with interest, release
monthly pension @ Rs.1,000 from July 2018 onwards regularly to the Bank Account of Mr. Banerjee..
d) Refund Rs.16,789 being the Provident Fund Contribution refund already initiated by EPFO vide cheque No. 814281 on 30.09.2009 for Rs.6,059 in accordance with the orders of SCDRC upheld by the NCDRC as per Para 72 (7) of the EPF Scheme, 1952 as reproduced in Point No. 4(c) but the same was not actually received in payee's account till date. Now subsequent interest also needs to be added in compliance of orders of SCDRC/NCDRC as above.
15. He also requested to initiate IMMEDIATE appropriate disciplinary actions against erring officers and recover the payable interest from their salaries for harassing a senior citizen for more than 17 years (leading to his multiple ailments) under Civil Service Conduct Rules, CP Act, CrPC, IPC etc for violating the provisions under the EPF Act 1952, EPF Scheme 1952, EPS Scheme 1995, Consumer Protection Act 1986, Constitution of India (Article 21 and Article 300A) so that no other EPFO officer may dare to act so in future. Appellant warned the officers that they should hold responsibility if anything goes wrong with the old man Banarjee.
16. His appeals to higher officers also did not yield any result. Then he sought information and relevant documents to pursue the matter further. The reply of CPIO that no such cases were available except case of Banerjee. Thus they know the grievance of Banerjee about which they should have given complete information. But they did not give. The CPIO wrongly considered it as third party information and also wrongly invoked section 7(9) saying disclosure diverts substantial resources of the public authority and denied. The CPIO wrongfully used this section as a provision of denial. Neither CPIO nor any other officer of Public Authority conducted themselves in responsible manner to redress the pension issue. At least the First Appellate Authority, who was a senior officer, RPFC 1, should have addressed the issue and redress the grievance of Banarjee.
17. Appellant assailed the order of the Appellate Authority as illegal as that ignored illegal CPIO's denial of information. Authority has directed to collect Rs CIC/EPFOG/A/2018/153919 Page 7 1700 as copying charges. This means that except cost of copying no other diversion of resources could happen and could have been given in the first 30 days only. The Commission notices that first appellate authority has not applied his mind and agreed with illegal invocation of Section 7(9). He lost the chance of resolving the problem of pensioner Banerjee, but also acted like heartless Babu. Appellant insisted on penalty for CPIO and compensation to Mr. Subhash Chandra Banerjee.
18. Mr. Shakeel Ahmad, Regional Provident Fund Commissioner-II, Kolkata, claimed that he sought Rs 1700 for copies as directed by First Appellate Authority. As information was not given within first 30 days, documents should have been given free of charge. This amounts to further denial of information and also harassment.
19. The Commission directs Mr. J. Nayak, CPIO and concerned RPFC to
a) provide certified copies of the entire file concerning Mr. Subhash Chnadra Banerjee's pension, before 15th October 2018 free of cost,
b) explain why the order of National Consumer Commission's order in Banerjee's case was not implemented, when it will be implemented,
c) inform which officer is responsible for denial of pension to Banerjee and what action was taken against for non-compliance of the order of National Consumer Commission,
d) explain legal reasons, policy with documents, why entire pension amount of Banerjee was confiscated and he was deprived of his pension since 2002, and
e) inform by what time his pension will be restored, arrears paid with interest to Banerjee.
20. Mr. Shakeel Ahmad, Regional Provident Fund Commissioner-II, shall be responsible to ensure the delivery of the documents and above information.
21. The Commission directs Mr. J. Nayak, CPIO to show-cause why maximum penalty should not be imposed upon him for not furnishing complete information sought within stipulated time. The Public Authority shall explain why it should not be directed to pay Rs 25 lakh as compensation to Mr. Subhash Chnadra Banerjee CIC/EPFOG/A/2018/153919 Page 8 for harassment, denial and deprivation. The Commission directs the RPFC who is also first public authority, to enquire into this harassment, initiate efforts to redress the grievance and inform the Commission, Mr. Banerjee and appellant when his amount will be paid.
22. All responses shall reach before 15.10.2018, and the matter is posted for compliance and penalty proceedings on 15.10.2018 at 12:30 p.m. SD/-
(M. Sridhar Acharyulu)
Central Information Commissioner
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