Central Information Commission
Parveen Kohli vs Employees Provident Fund Organisation on 13 November, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. SridharAcharyulu (Madabhushi Sridhar), CIC
Second Appeal No.: CIC/EPFOG/A/2018/153919
Shri ParveenKolhi 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, Public Authority represented by CPIO. Mr.Shakeel
Ahmad, Regional Provident Fund Commissioner-II. Directions, show cause and compensation notice
issued.
Proceedings on 31.10.2018: Complainant/Appellant present at CIC, Public Authority represented by
CPIO. Mr. J Nayak, Assistant PF Commissioner from NIC Kolkata:
Date of Decision - 13.11.2018: Penalty imposed and show cause issued.
ORDER
FACTS:
1. The appellant sought information 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 various consumer forums, 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 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.
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2. The Commission's order dated 01.10.2018:
2. The appellant Mr. ParveenKohli is presenting the case as a well-wisher of Mr. Subhash Chandra Banerjee (76 yrs.)who is seriously ill and almost is death bed and filed RTI application reflecting his problem and harassment. He is a victim of delay and denial of payment of pension.He stated that working since 1969 and on attaining the age of 58 yrs., 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. Although entitled to receive monthly pension w.e.f. 5.8.2000 onwards, he was denied the same, He was paid minimum pension amount Rs.
1000/- for only one month i.e. for June 2017 only which had been credited in his bank on 6.9.2017 with the remarks. After that his 100 % pension has been stopped by EPFO & the status is the same till now. He alleged that the EPFO Kolkata has snatched his pension by stopping it totally and denied the Right to Life & Liberty of Mr. Banerjee by violating the orders of State Consumer Disputes Redressal Commission and National Consumer Disputes Redressal Forum.Due to the denial of his pension w.e.f. 5.8.2000 by EPFO Kolkata on illogical grounds, he approached the Calcutta District Consumer Forum, Unit-I, vide case number CDF-I/case no. 352/2003 which was decided on 19.12.2006 against him vide order no. 26.
3. The State Consumer Redressal observed in its order dated-
"It thus appears that the appellant (Mr. SubhashChnadra 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.
Thus, the present appeal succeeds, and the appeal is allowed on contest against all the respondents but without cost/with cost. The judgment and order dated 19.12.2006 in C.D.F. Case No. 352 of 2003 of the CDF is hereby set aside.
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 the order of State Consumer Disputes Redressal Forum before the National Forum. The NCDRC upheld the decision of SCDRC and passed an order in favour of Mr. Subash Chandra Banerjee. The NCDRC observed that:
CIC/EPFOG/A/2018/153919 Page 2 "We are therefore, in agreement with view taken by the State Commission to the effect that since the establishment, viz, the Bank, in which the complainant was working in the year 1971, was covered under the 1952 Act w.e.f. 01.07.1975 and he was enrolled as member in the 1971 scheme, his past service could not be ignored for determining the eligible service for the purpose of monthly pension under the 1995 scheme.
In that view of the matter, 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.
Resultantly, the revision petition falls and is dismissed accordingly but with no order as to costs."
5. The appellant pleaded before this Commission that although entitled to receive monthly pension w.e.f. 5.8.2000 onwards, he had been paid minimum pension amount of Rs. 1000/- for only one month i.e. for June 2017 only which had been credited in his bank on 6.9.2017 with the remarks. By Pension and after that his 100% pension has been stopped by EPFO & the status is the same till now. Thus, EPFO Kolkata has snatched the fundamental right to life and liberty of Mr. Banerjee by stopping his pension and also by violating the orders of SGDRC & NCDRC.
6. Division Bench of Justice K.S. Radhakrishna and Justice A.K. Sikri of Hon'ble Supreme Court held in the case of State of Jharkhand and Others v Jitendra Kumar Srivastav and Another, held that:
"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.It hardly needs to be emphasised 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."
7. The Public Authority had also been clarified that due to financial constraints & non-payment of pension w.e.f. 5.8.2000 onwards till date, if something goes wrong to the life of Mr. Banerjee, the concerned officers of EPFO shall be held personally responsible for his life and all further Civil & Criminal consequences as per law. Since CIC/EPFOG/A/2018/153919 Page 3 he has not been paid his due amount in compliance of orders of SCDRC & NCDRC and due to his adverse health circumstances, he requested and authorized the appellant to take-up his case for the grant of justice after seeking the relevant documents from EPFO Kolkata to which the appellant agreed as a social cause and in performance of his responsibility as a human being towards helpless elderly persons through selfless voluntary service but CPIO & FAA have denied the information and have obstructed in getting justice to the old pensioner who is going from pillar to post for the last 18 years but in vain.
6. The Appellate Authority's order is illegal on the ground that it ignored the CPIO's denial of information. The entire record sought id regarding very specific & related to a single, interconnected and continuous issue relating to a 76 yrs old pensioner and the Appellate Authority has directed the appellant to visit the office premises despite his serious medical conditions. The appellant has requested this Commission to direct the CPIO to provide the information sought and has pleaded for penalty proceedings against Mr. J. Nayak. The appellant has also prayed for compensation to Mr. Subhash Chandra Banerjee.
7. Mr. Shakeel Ahmad, Regional Provident Fund Commissioner-II, Kolkata, submitted that response was given to the appellant within 30 days and Rs. 1,700/- was demanded form the appellant for the copies of the records sought.
8. The appellant responded that in compliance of the order of First Appellate Authority, the CPIO sent a letter dated 31.08.2018 on 06.09.2018 demanding Rs. 1,700/- from the appellant who had already filed the second appeal before this Commission.
9. The Commission appreciates the efforts of the appellant who is a well-wisher of Mr. Subhash Chandra Banerjee, 76-year old bed-ridden pensioner, who has been harassed by the Public Authority with respect to his grievance for non-payment of pension. As claimed by the appellant, Mr. Banerjee has been paid only Rs. 1,000/- in the period of 18 years and despite the order of the National Consumer Forum, Public Authority has kept him harassing without releasing the pension. This is a crucial matter concerning life and liberty of an ailing old aged pensioner which has gone unheard for 18 years and even the filing of RTI application, first appeal and second appeal has not yielded any result.
10. The Commission directs Mr. J. Nayak, CPIO to provide certified copies of the entire file concerning Mr. SubhashChnadra Banerjee's pension, within one week. The Commission shall hold Mr. Shakeel Ahmad, Regional Provident Fund Commissioner- II, responsible in case the documents sought by the appellant are not provided to him within one week.
11. The Commission directs Mr. J. Nayak, CPIO, to show-cause why maximum penalty should not be imposed upon him for not furnishing the information sought. The Public Authority is directed to explain why it should not be directed to pay compensation to Mr. SubhashChnadra Banerjee for not mental and physical harassment and denial of information. The officers are directed to submit their explanations, before 15.10.2018 at 12:30 p.m. and the matter is posted for compliance and penalty proceedings on the aforesaid date.
CIC/EPFOG/A/2018/153919 Page 4 Decision :
3. The appellant vide letter dated 31.10.2018 submitted to the Commission as under:-
a) That although the aggrieved pensioner Mr.Subhash Chandra Banerjee of Kolkata retired from service in August 2002 (at 60yrs age) but he had attained the age of 58 years on 4.8.2000 and as such, he is entitled to receive pensionw.e.f. 5.8.2000.
This fact is as per the EPS'95 Scheme and has also been accepted by EPFO & is also mentioned in his PPO issued by EPFO.
b) That a copy of the orders dated 1.10.2018 issued by the Hon'ble CIC had been sent to the CPIO-cum-APFC, EPFO, Park Street, ; FAA-cum-RPFC, EPFO, Park Street, Kolkata; Addl. CPFC, Kolkata Zone; Addl. CPFC Pension Division at EPFO HQ, New Delhi and the Chief of the Public Authority (EPFO) i.e. Central Provident Fund Commissioner (CPFC), EPFO, Head Office, New Delhi through email on the same day i.e. on 1.10.2018 at 15:14 p.m. by the Appellant for their immediate information and n/action.
c) In my appeal dt. 31.8.2018, I had informed that a sum of Rs. 1000 had been paid by EPFO on account of monthly pension in the month of June 2017. But, it has been learnt that EPFO, Park Street, Kolkata vide lettersdt. 29.6.2017and 28.7.2017had directed the Branch Manager, United Bank of India, 24 - Park Street, Kolkata to reverse/re-credit the amount of Rs. 1000/- to the A/C no. 30147596375 of EPFO A/C no. 10 maintained with State bank of India. So in the calculations submitted in the Complaint - cum - Appeal, this amount and corresponding interest amount also needs to be added in the total amount payable to the aggrieved i.e. Mr. Banerjee, after due verification. The facts couldn't be ascertained as Mr. Banerjee is not is a good state of health at present.
d) It is surprising to note that as per the Pension Payment Enquiry on the EPFOs website, following sum has been shown having been paid to Shri Banerjee but facts are otherwise (as nothing has actually been paid) and this is a conclusive proof of suppression of facts:
May 2017: Rs. 1,57,961 (but factually not paid) June 2017: Rs. 1,000 (paid or not yet to be confirmed in view of Para c above) July 2017: Rs. 1,000 (but factually not paid) August 2017: Rs. 1,000 (but factually not paid)
e) EPFO vide its letter dt 11.10.2018 has informed to Hon'ble CIC that within 7 working days, his arrear pension amount will be credited in his bank account whereas only sums of Rs. 1,46,561 and Rs. 12,851 have been credited in the bank account of Mr. Banerjee on 12.10.2018 against the total due amount of more than Rs 6,00,000. Further, EPFO has not sent any details of calculations, interest allowed or not & on what rate etc to ascertain as to how the amount has been arrived at because no communication has been received from EPFO in this regard. EPFO officers are perhaps not aware that except the Hon'ble Supreme Court, no one else (including EPFO) has any power to re-examine the issues/relief which have already been SETTLED by the NCDRC.
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f) That CPIO vide letter no. WB/PRB/RTI/ParveenKohli/775/18-19/403 dated 27.9.2018 with a copy to Hon'ble CIC, 7th floor, First M.S.O. Building, CGO Complex, Nizam Palace, 234/4 AJC Bose Road, Kolkata-20, West Bengal(Annexure -6) sent the documents in following manner to the Appellant in sheer violation of the provisions of RTI Act, 2005 and also in deliberate/willfuldefiance of the directions given during the hearing in this case on 26.9.2018 Loose bundle of around 1000 papers in torn envelope as physically shown to the Hon'ble CIC during the penalty proceedings on 31.10.2018 None of the documents are certified/attested, as physically shown to the Hon'ble CIC during the penalty proceedings on 31.10.2018; thus violation of Section 2(j)(ii) of the RTI Act, 2005 despite clear directive of Hon'ble CIC on 26.9.2018 and again at Para 19(a) of the orders dt. 1.10.2018 Documents were not provided point wise/file wise as the information sought was on five (5) specific points/files. One heap of about 1000 loose papers cannot be co-related with each point.
Large numbers of pages are not readable. Had the CPIO certified the documents, he would have noticed the very dim/ poor quality/ not readable photo copies of the documents.
g) Disobedience of orders of Hon' CIC: No intimation has yet been received from the CPIO-cum-APFC or from FAA-cum- RPFC, Park Street, Kolkata regarding Redressal of grievance of Mr. Banerjee and the date by which the entire due amount will be released in the bank account of the aggrieved 76 yrs old pensioner. The detail of computation of the amount including interest as ordered by the SCDRC/NCDRC and provisions contained in the EPF Act 1952, EPF Scheme 1952 and EPS 1995 Scheme; when released also needs to be provided to the aggrieved.
h) Deliberately sending official communications at the wrong address: Despite availability of correct/current address of communication, EPFO, Park Street, Kolkata is sending communications at the old/incorrect address of Mr. Banerjee. Even the copy of the letter dt 11.10.2018 addressed to Hon'ble CIC has been sent to Mr. Banerjee at the wrong/old address despite the fact that the correct address is available in their record and is reflecting in the following communications but such an action of EPFO clearly proves their bad intentions to harass the old pensioner Mr. Banerjee (a serious note needs to be taken in this regard):
• Form No. 10-D submitted for grant of monthly pension • His PPO no. WB/PRB/00023532 as seen on the website of EPFO (Original set not yet given) • Orders dt. 18.11.2016 of NCDRC - RPFC &anrvsSubhash Chandra Banerjee • Letter no. A/018/WBPRB/29491/19/---06/398 issued by Mr. J. Nayak, APFC, EPFO, Park Street, Kolkata addressed to Mr. Banerjee at the correct/current address • Authority letter submitted to EPFO by Mr. Banerjee authorizing me to defend his case In view of above, the Appellant, in the interest of justice, very humbly prays as under:
CIC/EPFOG/A/2018/153919 Page 6 i. CPIO may kindly be directed to provide point wise information complete in all respects i.e. duly certified & readable copies of all the documents/files as sought in my RTI application dt. 12.5.2018 along with noting pages in respect of all the five (5) points (Noting & correspondence pages separate for each file duly page numbered) and free of charge in accordance with Section 7(6) of the RTI Act, 2005 as also directed by Hon'ble CIC in his orders dt 1.10.2018 at Para 19(a). ii. A copy of the explanation on directives contained in Para 19 and Para 21 of the order dt 1.10.2018, if received by the Hon'ble CIC, may also be kindly provided to the Appellant for the information & record of aggrieved 76 yrs old pensioner.
iii. To kindly impose maximum penalty of Rs. 25,000/- on Mr. J. Nayak, CPIO-cum-
APFC for delay of 142 days (beyond 30 days after receipt of my application dt 12.5.2018 till the date of penalty hearing i.e. 31.10.2018) in accordance with Chapter V Clause 20(1) or any other provision of the RTI Act, 2005 of the RTI Act, 2005 which provides that if CPIO has not furnished the information within the specified time shall impose a penalty of Rs. 250/- for each daytotal amount of such penalty shall not exceed Rs. 25,000/- .
(Please refer judgment dated 19.5.2016 in CWP no. 17758 of 2014 decided on 19.5.2016 by the Punjab & Haryana High Court, Chandigarh in Smt. ChanderKantavs SIC and also in CWP no. 640 of 2012 decided on 24.8.2012 by the Division Bench of HP High Court, Shimla wherein it was held that either the penalty has to be imposed at the rate fixed i.e. Rs. 250/- per day of delay or no penalty has to be imposed.) iv. Stern disciplinary action may kindly be recommended to the Ministry of Labour & Employment, GOI, New Delhi and to the Chief of Public Authority i.e. CPFC, EPFO, Head Office, New Delhi against Mr. J. Nayak, CPIO-cum-APFC by invoking the provisions contained in Chapter V Clause 20(2) or any other provision of the RTI Act, 2005 which provides that if CPIO has not furnished the information within the specified time shall recommend for disciplinary action against the CPIO under the Service Rules applicable to him for dereliction of duties and callous behavior towards an ailing old pensioners, not providing the certified copies point-wise as per the provisions contained in the RTI Act, 2005; directions of the Hon'ble CIC as per his orders dt 1.10.2018 and for wilful violation of the Article 21 and Article 300-A of the Constitution of India, Non-implementing the orders of the SCDRC dt. 19.1.2009/NCDRC dt. 21.10.2016, Violation of Consumer Protection Act, 1986 and also for confiscating entire pension amount of the aggrieved w.e.f. 5.8.2000 onwards illegally.
v. To kindly order for the recovery of interest (to be paid to the aggrieved) from the salary of erring officer(s)/Commissioner as per Para 17(7) of the EPS'95 Scheme 1995 and Para 72(7) of the EPF Scheme, 1952.
vi. To kindly order maximum compensation to the aggrieved 76 yrs bed-ridden old pensioner who has been harassed and denied his due pension for a long period of 18 years as Hon'ble CIC may consider appropriate in accordance with Chapter V Section 19(8)(b) or any other provision of the RTI Act, 2005 vii. EPFO to immediately release the following amount (less the amount credited on 12.10.18):
CIC/EPFOG/A/2018/153919 Page 7 • Approx. Rs. 6,00,000 on a/c of minimum monthly pension of Rs. 1,71,060w.e.f. 5.8.2000 till its disbursal plus interest @12% in accordance with orders of SCDRC dt. 19.1.2009/ NCDRC dt. 21.10.2016 and Para 17(7) of the EPS Scheme, 1995 • Approx. Rs. 20,000 on a/c of Provident Fund contribution arrears of Rs. 3,060 for the period from July 2003 onwards uptill the date of its payment plus interest @12% in accordance with orders of SCDRC dt. 19.1.2009/ NCDRC dt. 21.10.2016 and Para 72(7) of the EPF Scheme 1952. This refund with interest (total Rs. 6059 at that time) had been initiated by EPFO vide cheque no 814281 dt 30.9.2009 but the amount with up-to-date interest has still not been credited to the account of the aggrieved.
• Rs 26,400 on a/c of withdrawal benefit may be adjusted without any interest out of the total payable amount as per orders of the SCDRC dt. 19.1.2009/ NCDRC dt. 21.10.2016 viii. That Public Authority (EPFO) must provide a copy of the ORIGINAL PPO with all related papers duly signed to Shri Banerjee and also to ensure release of regular monthly pension in future. EPFO must also provide all the calculation sheets showing the calculations of amount & interest (with rate applied) on each head (as above) so as to ascertain the correctness of calculations in accordance with the orders of SCDRC, NCDRC and the provisions contained in the EPF Act 1952, EPF Scheme 1952 and EPS'95 Scheme so as to close the matter after verification of calculations once for all.
ix. Keeping in view the deteriorating adverse health conditions of the 76 yrs old bed-
ridden aggrieved, TIME BOUND directions may also be kindly issued to the Public Authority to resolve all the issues relating to the pension of aggrieved once for all judiciously and in accordance with the decisions of SCDRC dt. 19.1.2009/ NCDRC dt. 21.10.2016, Para 17(7) of the EPS'95 Scheme and Para 72(7) of the EPF Scheme, 1952 as prayed at (vi) & (vii) above and also providing certified copies of all the sought documents point wise as prayed at (i) above.
x. To kindly pass any other order/relief as Hon'ble CIC may deem it fit in the case so as to maintain sanctity of the RTI Act, 2005 by all public authorities besides obeying the orders of the Constitutional Authority i.e. Hon'ble CIC, in future too.
xi. To kindly direct EPFO, Park Street, Kolkata to ensure that from now onwards, all the communications must be sent to Mr. Banerjee at his correct/current address. Further, attested copies of all the communications, if any, sent to Mr. Banerjee atleast during the calendar years 2016 to 2018 at his old/incorrect address be provided to Mr. Banerjee for his information. However, a request has also been sent through email by Mr. Banerjee to EPFO, Park Street, Kolkata on 19.10.2018 for updating/correcting his residential address.
xii. To kindly direct EPFO Head Office to circulate these FINAL ORDERS to all of their field offices so that they may also not harass any pensioners as done by EPFO, Regional Office, Park Street, Kolkata in the case of Mr.Subhash Chandra Banerjee
- the aggrieved pensioner.
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4. Mr. Ajitesh Kumar, Regional P.F. Commissioner- (I) vide letter dated 11.10.2018 submitted to the Commission as under:-
As directed the issue has been re-examined and the concerned Officer has been directed to redress the grievance of Shri Subhash Chandra Banerjee at the earliest. It is expected that within 07 working days his arrear pension amount will be paid in his bank account.
5. The appellant submitted that documents given by the respondent authority are not in the form of certified copy. The appellant also stated that the respondent authority had credited only an amount of Rs. 1,46,000/- (approximately) in the bank account without providing any break-up details.The respondent authority submitted thatMr. Shakeel Ahmed is the actual authority who dealt with pension file of Mr. Subhash Chandra Banerjee. In view of this, the Commission considers Mr. Shakeel Ahmed as deemed CPIO and directs him to show-cause whymaximum penalty should not be imposed upon him for not providing the complete information within the stipulated time period. All the explanations must reach to this Commission within 30 days from the date of receipt of this Order.
6. Further, the Commission notes that Mr. J Nayak has not submitted any written explanations with regard to show cause notice issued to him and also he could not substantiate his submissions during the hearing.Subsequently, Mr. Nayak has provided uncertified copies of documents running into thousands of pages and some of the information has still not been provided like break-up of his pension details. Accordingly, the Commission once again directs the CPIO Mr. J Nayak to provide complete information along with the break-up details of pension of Mr.Subhash Chandra Banerjee in the form of certified copies within 10 days from the date of receipt of this Order.
7. The Commission alsonotes that despite the order of the Commission, Mr.Nayak has not provided complete information till date and hence considers this a fit case to impose penalty under Section 20 of the RTI Act. In view of this, the Commission imposes a token penalty of Rs. 10,000/- (Rupees Ten thousand only) onMr. Nayak, the CPIO. The penalty of Rs. 10,000/- shall be deducted by the Public CIC/EPFOG/A/2018/153919 Page 9 Authority from the salary of Mr. J.Nayakby way of demand draft drawn in favour of "PAO CAT", New Delhi in forward the demand drafts addressed to Deputy Registrar (CR-II), email: [email protected] Room No. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi-110067. The first instalment should reach the Commission by 15.01.2019 and the last instalment should reach by 15.02.2019.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
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