State Consumer Disputes Redressal Commission
Karnail Kaur vs The Manager (Depot), Food Corporation ... on 7 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.594 of 2014
Date of Institution: 26.05.2014
Date of Reserve : 15.03.2017
Date of Decision : 07.04.2017
Karnail Kaur widow of Jodha @ Zodha Singh son of Munshi Singh
resident Near Gurudwara Nanaksar, Jakhal Road, Sunam, District
Sangrur.
......Appellant/Complainant
Versus
1. The Manager (Depot), Food Corporation of India, Food Storage
Depot, Sunam.
2. The Area Manager, Food Corporation of India, District Office,
Sangrur.
3. The Assistant General Manager (Pension) Food Corporation of
India, Zonal Office (North), CPF Division, A-2A, A-2B, Sector 24,
Noida (UP)
4. The Assistant General Manager (CPF-L) Food Corporation of
India Head Quarters CPF Division 16-20, Barakhambha Lane,
New Delhi-110001.
5. Employees Provident Fund Organization, through its Regional
Provident Fund Commissioner, Regional Office, Delhi (North)
Bhavishaya Nidhi Bhavan, Plot 28, Wazirpur Industrial Area,
Delhi-110052.
6. Employees Provident Fund Organization, through its Regional
Provident Fund Commissioner, Sub Regional Office, Bhavishaya
Nidhi Bhavan, Urban Estate, Phase -I, Near TV Tower,
Bathinda.
....Respondent
First Appeal against the order dated
19.02.2014 of the District Consumer
Disputes Redressal Forum, Sangrur.
First Appeal No.594 of 2014 2
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Harcharan Singh Guram, Member Present:-
For the appellant : Sh.Sanjeev Goyal, Advocate For respondents No.1to3: Sh.N.K.Zakhmi, Advocate For respondent No.4 : Ex-parte For respondents No.5&6: Sh.Ajay Singla, Advocate HARCHARAN SINGH GURAM, MEMBER The present appeal has been filed by the appellant/ complainant against the order dated 19.02.2014 passed by the District Consumer Disputes Rederessal Forum, Sangrur in Consumer Complaint No.267 dated 29.05.2013 vide which the complaint was partly allowed by directing opposite parties No.1 to 4 to pay Rs.10,000/- as compensation.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. The complainant filed the complaint No.267 of 2013 under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") against the opposite parties on the averments that her husband having date of birth as 01.01.1944 joined the services of Food Corporation of India and was admitted to Cumulative Provident Fund (in short "CPF") and Family Pension Scheme (in short "FPS"). Her husband died on 25.11.2013. At the time of his death, he was working as FSD, FCI, Sunam. The complainant's husband left behind the complainant being his widow, Sandeep Singh and Kuldeep Singh, his two sons and Beant Kaur and Gurjit Kaur his two daughters as his legal heirs. The husband of the complainant maintained a CPF First Appeal No.594 of 2014 3 Account No.21643 and FPS/Employees Pension Scheme, Account No.119571 with the opposite parties.
4. It was averred that husband of the complainant was contributing in these accounts maintained with opposite parties No.5 & 6 through opposite parties No.1 to 4. Opposite parties No.1 to 4 were deducting the sum from his salary towards contribution to the above mentioned accounts. It was averred that after the death of her husband she being the nominee of CPF account was eligible as his legal heir to family pension under FPS account. It has been averred that she was eligible for the benefits of pension by issuance of pension payment order from opposite party No.5 and was also entitled for its benefits within one month from the date of death of her husband. It was contended that some amount of CPF was paid to her after a long delay. Neither any details of calculation was provided nor any pension payment order was issued to her in spite of lapse of a long period. Although, all the requisite formalities were completed with opposite party No.1 immediately after the death of her husband. It was alleged that inordinate delay was caused due to the negligence and default on the part of the opposite parties. It was averred that she approached the opposite parties personally several times at regular intervals to get her dues but the opposite parties compelled her to visit from one office to an other office of the opposite parties and forced her to make unnecessary correspondence for settlement of her dues. It has been averred that opposite party No.1 made a deduction from the wages of her husband and further remitted to opposite party No.2 in a chain of offices while remitting the dues to opposite party No.5. It was pleaded that she is entitled for the rest of First Appeal No.594 of 2014 4 amount of CPF lying in the account of her husband and interest on the said CPF amount which was paid belatedly and was also entitled for pension benefits alongwith interest at the rate of 18% per annum as the opposite parties denied her the amount required for her daily needs. It was pleaded that non furnishing of details, calculations, non issuance of pension payment order and non-payment of rest of the amount lying in the said CPF account amounted to deficiency in service on the part of the opposite parties, as such, all the opposite parties are jointly and severally liable and that the direction be issued against opposite parties to furnish the details and calculations of CPF Account No.21643 and FPS/EPS Account No.119571 including details of amounts contributed and interest thereupon; to release the family pension every month alongwith its arrears and interest at the rate of 18% per annum thereupon; to pay the balance sum lying in CPF account alongwith interest at the rate of 18% per annum from 25.12.2013 i.e. the date after expiry of one month of death of her husband till the date of actual payment; to pay `50,000/- as compensation for causing harassment, agony and inconvenience; to pay `11,000/- as litigation costs.
5. Upon notice, opposite parties No.1 to 4 filed their written reply and took the preliminary objections that the complaint was not maintainable in the present form as it required a detailed evidence alongwith oral as well as documentary, therefore, it would not be possible for the District Forum to proceed with the complaints PF Scheme could not be held to be a service within the meaning of Section 2 (i) (o) of the Act; the complainant did not fall within the definition of consumer as per Section 2 (i) (d) of the Act as First Appeal No.594 of 2014 5 the opposite parties have not taken any financial charges from her to serve her, she did not have any locus standi or cause of action to file the present complaint; the complaint filed by the complainant is false and frivolous and that she had not come to the Forum with clean hands and was guilty of concealing true facts from the Forum, therefore, the complainant was liable to be burdened with heavy costs amounting to `20,000/- for dragging them in an unwarranted and false litigation. In parawise reply, it was admitted that deceased maintained a CPF account No.21643 and FPS/EPS Account No.119571 with opposite parties No.5 & 6. It was also admitted that deceased husband of the complainant was remitting contributions in the said accounts through them and the said amounts were deducted from the salary of the deceased husband of the complainant for contributing towards these accounts. It was admitted that as an employer they were duty bound for deducting the same from the salary of the husband of the complainant for contributing towards his CPF & FPS/EPS accounts but did not charge any other charges from her husband and they were performing their legal duty as an employer, therefore, deceased husband of the complainant was not a consumer qua them. In para 3(d) of their reply, it was stated that the whole amount of CPF was paid to complainant alongwith upto date interest. It was averred that she applied for payment of CPF vide her letter dated 26.08.2008 and opposite party No.1 forwarded the said document to opposite party No.2 on the next date vide letter No.FCI/FSD/SNM/DPS/CPF/07-08 and thereafter opposite party No.2 further forwarded the said documents to opposite party No.3 on 15.09.2008 vide letter No.SGR/L-Cell/Comp-Appoint/Sunam/2003. It First Appeal No.594 of 2014 6 was stated that the amount of `3,01,312/- was sanctioned including interest upto the date of sanction i.e.05.05.2011. It was agitated that she submitted her pension case in the month of September, 2010 to the office of opposite party No.1, which was forwarded to opposite party No.2 on 13.09.2010 vide letter No.FCI/FSD/SNM/ DPS /Pension Case /2010/3511. It was stated that the said documents were further forwarded to opposite party No.3 vide letter No.SGR/IR- L/DPS/Zoda Singh/SNM/09-10 dated 18.09.2010. The said documents were returned back to opposite party No.2 with the objection that it lacked bank account details of 10 digits vide letter No.FCI/Z.O.(N)/Pension/Genl. vide correspondence dated 03.11.2010 and 04.11.2010. It was submitted that these documents were returned to opposite party No.1 vide letter No.SGR/IR- L/DPS/Zoda Singh/SNM/09-10/1056 dated 06.11.2010. In response to the correspondence the son of the complainant namely Sandeep Singh submitted the bank account details of Karnail Kaur, Kuldeep Singh, Sandeep Singh and Beant Kaur on 18.11.2010 and on receipt of the bank account details the pension documents of the complainant were forwarded to opposite party No.2 on 18.11.2010 itself. Opposite party No.2 forwarded the pension case documents to opposite party No.3 vide letter No.SGR/IR-L/DPS/Zoda Singh/SNM/09-10/1232 dated 19.11.2010. It was submitted that opposite party No.4 again returned the said documents with some objections to opposite party No.3 and the opposite party No.3 further returned to opposite party No.2 and the same was received back at the office of opposite party No.1 vide letter dated 21.03.2011. It was submitted that ultimately the full pension case of the complainant was First Appeal No.594 of 2014 7 submitted to opposite party No.5 vide letter No.CPFVI/FPS/HQ(N)/ 2013-14/8292 dated 19/20.06.2013. It was stated that the delay was not caused intentionally by their office. The copies of the correspondence were marked to her, as such, no question arises that she visited their offices on any dates as alleged by her in the complaint. It was submitted that complainant herself had failed to submit the proper forms for release of pension by opposite parties No.5 & 6 and the delay on account of completing the formalities by the complainant in their offices, and, as such, the delay occurred due to procedural formalities. All other averments made in the complaint were denied.
6. Opposite parties No.5 and 6 filed their written reply and took the preliminary objections that the husband of the complainant joined the Employees Pension Scheme on 01.02.1995 and his date of death is 25.11.2003. As per the Rules of Employees Pension Scheme his membership ceased on 31.12.2001 and as per provisions of EPS 1995, minimum eligible service for getting pension is more than 10 years, as such, no pension could be granted to the complainant. It was further averred that she could withdraw the amount lying deposited with opposite party No.5 & 6. It was also averred that Form No.10-D was received from the side of opposite parties No.1 & 4 on 26.04.2013. After verification, it was found that as per provisions of EPS, 1995 the eligible service in respect of the deceased member Sh.Jodha Singh was less than 10 years and, as such, she was not entitled to get monthly pension of her late husband and the same was rejected vide their letter dated 05.07.2013. Thus, the complaint filed by the complainant was not maintainable. It was admitted that First Appeal No.594 of 2014 8 husband of the complainant was maintaining CPF Account No.21643 and EPS No.119571. It was vehemently agitated that deceased husband of the complainant had put in less than 10 years of service and, as such, the complainant was not entitled for family pension. The claim of the complainant was received from opposite parties No.1 to 4 being employer of her husband on 24.06.2013. It was submitted that the husband of the complainant joined the membership under EPS, 1995 on 01.02.1995 and his membership ceased on 31.12.2001 i.e. date he had attained the age of 58 years, date of superannuation as per the provisions of the scheme and denied all other averments.
7. The District Forum allowed the parties to lead their evidence in support of their averments. The complainant tendered in his affidavit and documents as Ex.C-1 to Ex.C-16. On the other hand, opposite parties No.1 to 4 tendered their affidavit as Ex.OP1/A and documents Ex.OP1/B to Ex.OP1/U. Opposite parties No.5 & 6 have also tendered in evidence their affidavit as Ex.OP5/1 and documents Ex.OP5/2 & Ex.OP5/3.
8. The District Forum heard the arguments of the learned counsel for the parties and partly allowed the complaint against opposite parties No.1 to 4 as referred above.
9. Aggrieved with the order complainant has filed the present appeal in this Commission.
10. We have perused all the records of the District Forum. Learned counsel for the complainant argued that as per the provisions of EPF under Employees Provident Fund Scheme 1952 under para 72, it pertains to the payment of Provident Fund. Under First Appeal No.594 of 2014 9 sub para (1) it is stated that when the amount standing to the credit of a member becomes payable, it shall be the duty of the Commissioner to make prompt payment as provided in this Scheme.
11. Learned counsel for the complainant argued that the case of the complainant is covered under Employees Provident Fund Scheem 1952. He specifically referred to Para No.72, Sub Para (i), Sub clause 5 (a) to 5 (dd). Paragraph 69, sub clause (a) to (dd). sub para (c) of paragraph 72 etc.
12. In order to find out what are these paragraphs, the same are enumerated hereunder:-
"Para 69 Circumstances in which accumulations in the Fund are payable to a member (1) A member may withdraw the full amount standing to his credit in the Fund--
(a) On retirement from service after attaining of the age of 55 years:
Provided that a member, who has not attained the age of 55 years at the time of termination of his service, shall also be entitled to withdraw the full amount standing to his credit in the Fund if he attains the age of 55 years before the payment is authorized;
(b) on retirement on account of permanent and total incapacity for work due to bodily or mental infirmity duly certified by the medical officer of the establishment, or where an establishment has no regular medical officer, by a registered medical practitioner designated by the establishment;
(c) immediately before migration from India for permanent settlement abroad [or for taking employment abroad];
(d) on termination of service in the case of mass or individual retrenchment;
(dd) on termination of service under a voluntary scheme of retirement framed by the employer and the employees under a mutual agreement specifying, inter alia, that notwithstanding the provisions contained in sub-clause (a) of clause (oo) of section 2 of the Industrial Disputes Act, 1947, excluding voluntary retirements from the scope of definition of "retrenchment" such voluntary retirements shall for the purpose be treated as retrenchments by mutual consent of the parties.
xx xx xx xx xx xx xx xx"
"Para 72 Payment of Provident Fund (1) When the amount standing to the credit of a member, becomes payable, it shall be the duty of the Commissioner to make prompt payment as provided First Appeal No.594 of 2014 10 in this scheme. In case there is no nominee in accordance with this Scheme, [or there is no person entitled to receive such amount under sub-paragraph
(ii) of paragraph 70] the Commissioner may, if the amount to the credit of the Fund does not exceed [Rs.10,000] and if satisfied after enquiry about the title of the claimant, pay such amount to the claimant.
xx xx xx xx xx xx"
"Para 72, Sub para (5)
(a) Every employer shall, at the time when a member of the Fund leaves the service, be required to get the claim application, for payment of provident fund in cases specified in clauses (a) to (dd) of sub-paragraph (1), of paragraph 69, duly filled in and attested, and to forward the said application [within five days of its receipt] to the Commissioner or any other officer authorised by him in this behalf.
(b) Every employer shall, at the time when a member of the Fund leaves the service, be required to get the claim application, for payment of provident fund in cases specified in clause (e) of sub-
paragraph (1), and in sub-paragraph (2) of paragraph 69, duly filled in and attested, and to give the said application to the member, for submission, on completion of the period specified in sub-paragraph (2) of paragraph 69, [provided the member continues to remain unemployed in a factory or other establishment to which the Act applies], either through post or in person with proper identification, to the Commissioner or any other officer authorized by him in this behalf.
(c) Every employer shall, on the death of the member and on receipt of an application for receiving the amount standing to the credit of such member, forward forthwith, [but not later than five days of its receipt] the said application to the Commissioner or any other officer authorized by him in this behalf.
(d) If the applicant is unable to send the claim application through the employer or duly attested by him, for any reason whatsoever, he may forward it to the Commissioner or any other officer authorized by him in this behalf and wherever necessary, the Commissioner or any other officer authorized by him in this behalf, may forward such application to the employer and the employer shall be required to return it within five days of its receipt."
"Para 72 Sub Para 7 (7) The claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within 30 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 30 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 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner."
He further argued that the claim form properly completed needed to be submitted within 30 days period, according to sub-para 7 of paragraph 72.
13. He argued that the claim of the complainant was not settled as per the guidelines of Provident Fund Scheme, 1952, First Appeal No.594 of 2014 11 therefore, the complainant is entitled to claim 12% penal interest from the opposite parties when her case was not settled within 30 days as per guidelines enumerated above.
14. He argued that District Forum wrongly disallowed the relief sought by the complainant for seeking family pension to be paid to her as per the provisions of Employees Pension Fund Scheme, 1995. The District Forum by quoting para 12 Sub - Para (a) of Employees Pension Scheme, 1995 disallowed her relief. It did not give any finding with regard to sub-para 8 of Para 12 of Employees Pension Scheme 1995, which contains directions as under:-
"(8) If a member ceases to be in employment by way of retirement or otherwise earlier than the date of superannuation from which pension can be drawn, the member may, on his option, either be paid pension as admissible under the Scheme on attaining the age exceeding 50 years or he may be issued a scheme certificate by the Commissioner indicating the pensionable service, the pensionable salary and the amount of pension due on the date of exit from the employment. If he/she is subsequently employed in an establishment coverable under this Scheme, his/her earlier service as per the scheme certificate shall be reckoned for pension alongwith the fresh spell of pensionable service. The member postponing the commencement of payment of pension under this paragraph shall also be entitled to additional relief sanctioned under this scheme from time to time.
Provided that if the member does not take up an employment coverable under this scheme, but dies before attaining the age of 58 years, the amount of contributions received in his case shall be converted into a monthly widow pension/ children pension. The widow pension in such cases shall be calculated at the scale laid down in Table "C" and the children pension at 25 per cent thereof for each child (upto two). If there is no widow than orphan pension shall be payable at the rate of 75 per cent of the amount which would have been payable as a widow pension subject to the provisions of paragraph 16."
15. He further argued that as per para 16 under the Employees Pension Scheme 1995, the complainant was eligible for benefit of Family Pension on the death of her husband being a member on the ground that Pension to the family shall be admissible from the date of death of the member, if the member dies while in service, even when, at least one month's contribution has been paid First Appeal No.594 of 2014 12 into the Employees Pension Fund. The detail of paragraph 16 is explained as under:-
"16. Benefits to the family on the death of a member (1) [Pension to the family] shall be admissible from the date following the date of death of the member if the member dies:-.
(a) while in service, provided that at least one month's contribution has been paid into the Employees' Pension Fund, or
(b) after the date of exit but before attaining the age of 58, from the employment having rendered service entitling him/her to monthly member's pension but 1[before the commencement of pension payment or]
(c) after commencement of payment of the monthly member's pension (2) (a) The monthly widow pension shall be :--
(i) in the cases covered by clause (a) of sub-paragraph (1), equal to the monthly members pension which would have been admissible as if the member had retired on the date of death or Rs 450/- or the amount indicated in Table 'C' whichever is more.
xx xx xx xx xx xx xx
(b) the monthly widow pension shall be payable upto the date of
death of the widow or re-marriage whichever is earlier. (3) Monthly children pension :-
(a) If there are any surviving children of the deceased member, falling within a definition of family, they shall be entitled to a monthly children pension in addition to the monthly widow/widower pension.
(b) Monthly children pension for each child shall be equal to 25 per cent of the amount admissible to the widow/widower of the deceased member as monthly widow pension payable under sub-paragraph (2) (a)
(i) provided that minimum monthly children pension for each child of the deceased member shall not be less than 31[Rs. 150/- per month.]
(c) Monthly children pension shall be payable until the child attains the age of 25 years.] (d ) The monthly children pension shall be admissible to maximum of two children at a time and will run from the oldest to the youngest child in that order."
16. On the other hand, learned counsel appearing on behalf of opposite parties No. 5 & 6 argued that complainant is not eligible for pension as her husband did not complete 10 years of service, when he attained the age of 58 years. He argued that as per Sub- para 12 of Employees Pension Scheme, 1995, the deceased husband did not complete his 10 years of service as required under the provisions of Employees Pension Scheme as he had attained the age of 58 years on 31.12.2001 though he continued to remain in First Appeal No.594 of 2014 13 service of the FCI even after that date and died while in service of FCI. He further argued that no pension can be paid if the contribution towards Employees Pension Scheme, 1995 was less than 10 years. He also argued that para 16 is not relevant in the present appeal as the husband of the complainant had not contributed his contribution in the Employees Pension Scheme upto 10 years.
17. He further argued that they have remitted the amount of Rs.3,01,312/- to the complainant on 05.05.2011 vide Ex.OP-1/D being the cumulative provident fund contribution alongwith eligible rate of interest as per the provisions of Provident Fund Act. He argued that as per para 72, Sub - para 7 states that when a claim is received by Provident Fund Commissioner, the same has to be settled within a period of 30 days. If there is a delay in settling the claim beyond 30 days then the Provident Fund Commissioner is liable to pay penal interest at the rate of 12% per annum on the deposited amount lying with the Provident Fund Commissioner. He argued that there was no fault on the part of the Provident Fund Commissioner as the complainant's application was received at their end on 26.04.2013. The Provident Fund claim of the complainant under Provident Fund Scheme, 1952 was sanctioned within 30 days of the maximum permissible limit as provided under sub-Para 7 of Para 72 of the Provident Fund Scheme, 1952. The said claim was settled within 30 days from the date of receipt of the claim which was received on 26.04.2013 and claim was settled at their end on 05.05.2013. The fault for late submitting the claim application of the complainant lies with opposite parties No. 1 to 4 thus opposite First Appeal No.594 of 2014 14 parties No. 5 & 6 are not liable for any deficiency and no penal interest is liable to be paid by them. He further argued that the complainant is not entitled for family pension and strongly opposed the arguments of the learned counsel of the complainant.
18. We have gone through the paragraph 69 and Para 72 pertaining to Employees Provident Fund Scheme and to the Circumstances in which accumulations in the Fund are payable to the members as mentioned above.
19. The remittance to provident fund account is admitted by the employer where the employer is not maintaining contributory employees provident and the same is maintained by the third party as a service provider.
20. Opposite parties No. 1 to 4 had received the application for release of provident fund as well as family pension from the complainant on 25.08.2008 and the said application was forwarded to opposite party No.2 on the next date itself. Thereafter opposite party No.2 forwarded the entire set of documents to opposite party No.3 on 15.09.2008. He further argued that the Provident Fund Commissioner settled the amount of Rs.3,01,312/- including interest upto the date of sanction i.e. 05.05.2013. He further argued that the complainant submitted her pension case in the month of September, 2010 in the office of opposite party No.1. The entire documents regarding the payment of Provident Fund Claim of the complainant alongwith her pension documents were forwarded by their offices to opposite party No.5 vide their letter No.CPFVI/FPS/HQ(N)/2013- 14/8292 dated 19.06.2013 / 20.06.2013. He argued that delay was not caused intentionally at their offices. The delay in the offices of First Appeal No.594 of 2014 15 opposite parties No. 1 to 4 occurred due to technical reasons, such as completing the formalities for sending the claim documents of Provident Fund and Family Pension to the Provident Fund Commissioner. He further argued that complainant's husband was a Government employee and it is well settled law that no relief can be sought against the employer who happens to be a Government Department and Consumer Foras are not having any power to decide or grant any relief against Government departments nor the complainant was entitled to file her complaint against their departments in the Consumer Forum. He argued that the orders passed by the District Forum needs to be set aside as the same is against the principles of law.
21. Order passed in Consumer Complaint No.267 of 2013 by the District Forum has attained finality qua opposite parties No.1 to 4 i.e. FCI and opposite parties No. 5 & 6 as no appeals have been filed by the Opposite parties No.1 to 6 against the impugned order dated 19.02.2014, passed by District Forum.
22. The next question for consideration before us is whether Provident Fund Commissioner was a service provider or not? In the citation titled as Dy.General Manager, CPF, F.C.I., New Delhi Versus Kashmir Singh & Ors decided on 13.04.2015 in Revision Petition No.3317 of 2008, as per this citation the Hon'ble National Commission examined the case law settled by Hon'ble Apex Court in Regional Provident Fund Commissioner Versus Bhavani 2008(7) SCC 111, wherein the complainant/respondent was aggrieved on account of failure / refusal of the Regional Provident Fund Commissioner to release pension to her and she approached the First Appeal No.594 of 2014 16 consumer forum seeking direction for release of her pensionary benefits from the date of retirement. The claim was resisted inter alia on the ground that respondent/ complainant was not a consumer within the meaning of Consumer Protection Act. The District Forum took the view that the complainant was a consumer within the meaning of 2(i)(d) of the Consumer Protection Act. The said view was upheld by the State Commission and the matter was taken by the Regional Provident Fund Commissioner to the Hon'ble Supreme Court on the ground that the Consumer Protection Act would not be applicable to their case. Rejecting the appeal filed by the Regional Provident Fund Commissioner the Hon'ble Supreme Court, inter alia, held as under:
Dr. Padia's submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a 'service giver' within the meaning of Section (1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of 'master and servant."
It would, thus, be seen that even in the above referred case, it was only the Regional Provident Fund Commissioner and not the employer who is the service provider.First Appeal No.594 of 2014 17
23. Now, in order to find out that whether the relief sought by the present complainant in this appeal before us for our consideration is that the District Forum wrongly disallowed her complaint for grant of family pension. The appeal against the impugned order has been filed seeking directions to Provident Fund Commissioner i.e. opposite parties No. 5 & 6 to release the family pension; to pay penal interest at the rate of 12% per annum on account of late release of Provident Fund amount to her.
24. From the perusal of the record, we observe that FCI has taken five long years to process the application of the complainant for release of Provident Fund and Family Pension and the documents complete in all respects were sent by FCI to Provident Fund Commissioner on 19.06.2013 / 20.06.2013. It is also observed that Provident Fund Commissioner decided to release the cumulative amount of Provident Fund in favour of the complainant vide its order dated 05.05.2013 by releasing the amount of Rs.3,01,312/- in favour of the complainant alongwith due interest. From the perusal of these two dates, it is evident that though there is no delay for settlement of provident fund by the Provident Fund Commissioner beyond 30 days, as such no penal interest can be awarded on the provident fund amount released in favour of the complainant.
25. The next point for consideration before us is that whether the argument put forth by the counsel for the opposite parties No.5 to 6 are valid arguments that no family pension is payable to the complainant as her late husband joined the scheme under Employees Provident Fund Scheme 1995 w.e.f. 01.02.1995 and he ceased to be a member on 31.12.2001 on attaining the age of First Appeal No.594 of 2014 18 superannuation of 58 years though her husband died while in service of FCI on 25.11.2013.
26. In order to decide this point, we have examined Employees Provident Fund Scheme, 1995 Rules under para 12 and para 16 the same are enumerated hereunder:-
"12. Monthly Members Pension - (1) A member shall be entitled to-
(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."
"16. Benefits to the family on the death of a member (1) [Pension to the family] shall be admissible from the date following the date of death of the member if the member dies:-.
(a) while in service, provided that at least one month's contribution has been paid into the Employees' Pension Fund, or
(b) after the date of exit but before attaining the age of 58, from the employment having rendered service entitling him/her to monthly member's pension but 1[before the commencement of pension payment or]
(c) after commencement of payment of the monthly member's pension (2) (a) The monthly widow pension shall be :--
(ii) in the cases covered by clause (a) of sub-paragraph (1), equal to the monthly members pension which would have been admissible as if the member had retired on the date of death or Rs 450/- or the amount indicated in Table 'C' whichever is more.
xx xx xx xx xx xx xx
(b) the monthly widow pension shall be payable upto the date of
death of the widow or re-marriage whichever is earlier.
TABLE C (See Paragraph 16) EQUIVALENT WIDOW PENSION Salary at day of Equivalent widow pension death not more than (1) (2) (Rupees) (Rupees) Upto 300 250 First Appeal No.594 of 2014 19 350 327 400 343 450 359 500 375 550 391 600 408 650 425 700 442 750 459 800 476 850 493 900 510 950 527 1000 544 1050 561 1100 578 1150 595 1200 612 1250 629 1300 646 1350 664 1400 682 1450 700 1500 718 1550 736 1600 754 1650 772 1700 797 1750 808 1800 826 1850 844 1900 862 1950 880 2000 898 2050 916 2100 935 2150 954 2200 973 2250 992 2300 1011 2350 1030 2400 1049 2450 1068 2500 1087 2550 1106 2600 1125 2650 1144 2700 1163 2750 1182 2800 1201 2850 1221 2900 1241 First Appeal No.594 of 2014 20 2950 1261 3000 1281 3050 1301 3100 1321 3150 1341 3200 1361 3250 1381 3300 1401 3350 1421 3400 1441 3450 1461 3500 1481 3550 1501 3600 1521 3650 1541 3700 1561 3750 1581 3800 1601 3850 1621 3900 1641 3950 1661 4000 1681 4050 1701 4100 1721 4150 1741 4200 1751 4250 1761 4300 1771 4350 1781 4400 1791 4450 1801 4500 1811 4550 1821 4600 1831 4650 1841 4700 1851 4750 1861 4800 1871 4850 1881 4900 1891 4950 1896 5000 1901 5050 1906 5100 1911 5150 1916 5200 1921 5250 1926 5300 1931 5350 1936 5400 1941 5450 1946 5500 1951 First Appeal No.594 of 2014 21 5550 1956 5600 1961 5650 1966 5700 1971 5750 1976 5800 1981 5850 1986 5900 1991 5950 1996 6000 2001 6050 2006 6100 2011 6150 2016 6200 2021 6250 2026 6300 2031 6350 2036 6400 2041 6450 2046 6500 2051.] (3) Monthly children pension : - -
(a) If there are any surviving children of the deceased member, falling within a definition of family, they shall be entitled to a monthly children pension in addition to the monthly widow/widower pension.
(b) Monthly children pension for each child shall be equal to 25 per cent of the amount admissible to the widow/widower of the deceased member as monthly widow pension payable under sub-paragraph (2) (a)
(i) provided that minimum monthly children pension for each child of the deceased member shall not be less than 31[Rs. 150/- per month.] (c ) Monthly children pension shall be payable until the child attains the age of 25 years.] (d ) The monthly children pension shall be admissible to maximum of two children at a time and will run from the oldest to the youngest child in that order."
27. We have also looked into sub para 8 of para 12 with proviso thereunder, which is also enumerated hereunder:-
"(8) If a member ceases to be in employment by way of retirement or otherwise earlier than the date of superannuation from which pension can be drawn, the member may, on his option, either be paid pension as admissible under the Scheme on attaining the age exceeding 50 years or he may be issued a scheme certificate by the Commissioner indicating the pensionable service, the pensionable salary and the amount of pension due on the date of exit from the employment. If he/she is subsequently employed in an establishment coverable under this Scheme, his/her earlier service as per the scheme certificate shall be reckoned for pension alongwith the fresh spell of pensionable service. The member postponing the commencement of payment of pension under this paragraph shall also be entitled to additional relief sanctioned under this scheme from time to time.
Provided that if the member does not take up an employment coverable under this scheme, but dies before attaining the age of 58 years, the amount of contributions received in his case shall be converted into a monthly widow pension/ children pension. The widow pension in First Appeal No.594 of 2014 22 such cases shall be calculated at the scale laid down in Table "C" and the children pension at 25 per cent thereof for each child (upto two). If there is no widow than orphan pension shall be payable at the rate of 75 per cent of the amount which would have been payable as a widow pension subject to the provisions of paragraph 16."
By going through para No. 12 & para No.16 and after comparing the two provisions we are of the view that para No.12 relates to pension to a member and it does not relate to release of Family Pension in case of death of a member. As per para 12, no pension can be paid to a Member who has not put in service of 10 years and has not contributed to the family pension scheme for a period of 10 years. In the instant case, the husband of the complainant joined the scheme on 01.02.1995 and superannuated on 31.12.2001 by reaching 58 years and as per the arguments of the learned counsel for opposite parties No. 5 & 6 no contribution was received from FCI for the credit in his pension account after 31.12.2001. However, this point was not clarified by the counsel for opposite parties No.1 to 4, whether any contribution to pension was remitted by FCI after 31.12.2001 to Employees Pension Scheme. Thus in view of the arguments of the counsel for opposite parties No.5 & 6 we find that para 12 of Family Pension Scheme 1995 relates to payment of pension to a member and it does not relate to family pension if a member dies while in service. Thus, para 12 is not a relevant para in order to adjudicate the controversy regarding family pension to a member's widow or children. Thus, the argument raised by the counsel for opposite parties No.5 & 6 does not have any merit.
28. However, the relevant para is 16 which deals with the Family Pension. This para states that family pension will be paid to a First Appeal No.594 of 2014 23 widow of a member if the member dies while in service and the family pension would be payable to a widow of a member even if only one month's contribution is deposited as contribution in the Employees Pension Scheme, 1995.
29. We are of the opinion that as per para 16 of Employees Pension Scheme, 1995, the complainant is entitled to family pension as per Employeee Pension Scheme, 1995. Accordingly, we are of the view that the order passed by the District Forum needs to be modified as relief of family pension to her was disallowed by not going through the provision of para 16 of Employees Pension Scheme, 1995, wherein family pension is permissible under the Rules.
30. Sequel to the above, the appeal filed by the appellant/complainant is partly allowed. The opposite parties No. 5 & 6 are directed to provide the full details of calculations of interest calculated on the provident fund amount of Rs.3,01,312/- paid by the Provident Fund Commissioner vide its settlement order dated 05.05.2013 in favour of the complainant and also are directed to provide the cumulative amount of provident fund deposited by her late husband with them. They are further directed to release family pension to the complainant as per Table C from the date of death of the complainant's husband alongwith arrears with 9% interest per annum from the due date.
31. We also direct the opposite parties to pay an amount of Rs.25,000/- as compensation for causing harassment and mental agony on account of declining the family pension to complainant in violations of paragraph 16 of Employees Pension Scheme, 1995. First Appeal No.594 of 2014 24
32. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER April,07, 2017 parmod