1.       This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 17.04.2012 of the State Commission in appeal no. 671 of 2010 arising out of the Order dated 15.02.2010 of the District Commission in complaint no. 113 of 2006.

2.       We have heard the learned counsel for the provident fund commissioner (the petitioner herein) and for the complainant (the respondent no. 1 herein). We have also perused the record, including inter alia the Order dated 15.02.2010 of the District Commission, the impugned Order dated 17.04.2012 of the State Commission and the petition.

3.       The matter relates to sanction and disbursal of monthly family pension under the family pension scheme on the death of the employee.

4.       The District Commission vide its Order dated 15.02.2010 made its appraisal of the case. It allowed the complaint, holding that the complainant as the legal heir of the deceased employee was entitled to monthly family pension as per the rules. Extracts of its appraisal are reproduced below for reference:

7) The ground on which the claim of the complainant was rejected is that his late father Krishnan had not opted for the family pension scheme 1971 till his death and so the complainant is not entitled to claim any benefit under the scheme. The counsel for the 2^nd opposite party relied on citation in 2010(1) MLJ Page 847 Supreme Court wherein it has been held that where the employee had chosen and not exercised the option and continue to remain under contributory provident fund scheme and received entire PF amount on his retirement, having enjoyed benefits and income from provident fund amount for more than 22 years he could not seek switch over to pension scheme. The contention of the 1" opposite party is that since the complainant's father had not chosen to opt for family pension scheme 1971 till his death he is not entitled for the benefit under the scheme. The 1^st opposite party had stated in his counter and proof affidavit that 2^nd opposite party had erroneously bifurcated the EPF fund to family pension scheme
during the period from 1989 to 1999 and 1^st opposite party is prepared to rectify the above error by releasing the so erroneously bifurcated amount with interest to the legal heirs of late Krishnan. The above averment of 1^st opposite party proves from the EPF amount recovered from the pay of late Krishnan part of the amount was diverted to family pension scheme and the above amount was also credited under the above scheme with the 1^st opposite party. The facts of this case relied on by the 1^st opposite party
differs from one, in this case. Having accepted the amount paid by the father of the complainant towards family pension scheme from 1989 to 1992 1^st opposite party could not now claim that the amount was erroneously bifurcated and contributed to family pension scheme 1971 by the 2^nd opposite party. Having credited the amount under the above scheme for more than 3 years now 1^st opposite party cannot say that the above amount was credited under the above scheme by mistake. The counsel for the
complainant argued that having credited the EPF amount recovered from the pay of Late Krishnan under family pension scheme 1971; it would be presumed that 1^st opposite party had waived the option required to be given under the above scheme and admitted late Krishnan under family pension scheme 1971. The above argument has some force. Having accepted the EPF amount of late Krishnan under family pension scheme 1971, the 1^st opposite party could not now say that bifurcation of the above amount was
erroneously done by the 2^nd opposite party. In the Circumstances stated above, we hold that the action of the 1^st opposite party in refusing the claim of the complainant seems to be erroneous and by rejecting the claim of the complainant 1^st opposite party had committed deficiency in service and the complainant is entitled for the relief as prayed for. We decide these points
accordingly.
8) In the result, this complaint is allowed and the 1^st opposite
party is directed to pay monthly family pension to the complainant as the legal heir of Late Krishnan as per rules and to pay Rs.10,000/- as compensation for the mental agony and to pay Rs.3000/- towards cost within two months from the date of this order; failing which the complainant is at liberty to execute this order U/s 25 and 27 of the Consumer Protection Act 1986.  The complaint against 2^nd opposite party is dismissed.  No costs.    

5.       Appeal filed by the provident fund commissioner was dismissed by the State Commission vide its impugned Order dated 17.04.2012. The State Commission made its independent appraisal of the case, and concurred with the District Commission. Extracts of its appraisal are reproduced below for reference:

10. A retired employee who was not a member of the EPF
Scheme, 1971 can become a member of the said scheme after
remitting the past period contribution with interest thereon which he
had received under the EPF Scheme, 1952. However, as per
paragraph 6 (b) and paragraph 44 (2) of the EPS, 1995, the members of the erstwhile EFPS, 1971 shall automatically become members of the EPS, 1995 and therefore they are eligible for the benefits of the said scheme. In this case, by ........ paragraphs 6 (b), 7 (3) and 17 (3) of the EPS, 1995 since the petitioner is deemed to have become a member of the EFPS, 1971 with effect from 1-3-1971, he had automatically become a member of the EPS, 1995. So he is eligible for benefits under the said scheme.
11.       Though the above decision of the Hon'ble Madras High
Court is not directly applicable to the instant case, in view of the
employee's died in harness on 2-7-1992 before the EPS 1995 came
into force, the principle / ratio squarely applies to the instant case
since as admitted by the 1^st and 2^nd opposite parties contributions
towards EPF has been regularly deducted from the salary of the late employee and the contributions from the EPF were bifurcated to the FPS by the 2^nd opposite party for the period from 1989 to 1992 and sent to the 1^st opposite party in time. Therefore, the contention that the complainant is not entitled to the Family Pension of his late father since his father / late employee had not submitted his option form, though he has contributed to the EPF and PFS, is untenable and cannot be sustained.

12.       For the aforesaid reasons we hold that the respondent / complainant is entitled to Family Pension and that the denial of Family Pension by the 1^st opposite party to the complainant amounts to deficiency in service. 

13.       The District Forum has rightly held that there is deficiency in service on the part of the 1^st opposite party, giving proper reasons and has passed an order directing the 1^st opposite party to pay Monthly Family Pension to the complainant complainant and to pay Rs.10,000/- as compensation for mental agony with costs of Rs.3,000/-. We agree with the finding and the decision of the District Forum. There is no merit in the appeal and accordingly the appeal is liable to be dismissed.

14. In the result, the appeal is dismissed, confirming the order
of the District Forum. No order as to costs in the appeal.”

6.       As such both the fora below have appraised the facts and the rule-position and come to concurrent findings that monthly family pension was rightly due to the complainant on the death of his father. 

7.       The root of the matter was that the employer, The Indian Cements Limited (the respondent no. 2 herein), was making deductions under the employees provident fund (EPF) and remitting the same to the provident fund commissioner. From financial year 1989-90 (from April 1989) to financial year 1991-92 (upto July 1992) i.e. till the death of the employee in harness in July 1992 (02^nd July) it made deductions under the family pension scheme (FPS) and remitted the same to the provident fund commissioner. As such, in the wake of this changed mode of deduction, the formalities for disbursal of family pension under the family pension scheme to the legitimate heir of the deceased employee were initiated on his death. But later on, since the option form could not be traced, the family pension was not disbursed on ground that the employer, The Indian Cements Limited (the respondent no. 2 herein), had mistakenly made the deductions under the family pension scheme without the option form.

8.       The two fora below have dismissed the sole contention of the provident fund commissioner that option form was still required to be available on the record even when the employer’s contributions had been made under the family pension scheme for the period April 1989 to July 1992 till the death of the employee and the same had also been received by the provident fund commissioner. They have held that when all the contributions for a fairly protracted period under the family pension scheme had been made and remitted by the employer to the provident fund commissioner and the latter had also received the same, then after the death of the employee to agitate that the option form was not available / traceable was totally untenable. 

9.       The written version itself shows the mechanical and irrational manner in which the provident fund commissioner has proceeded to deal with the matter.  In this regard the following may be quoted therefrom:

3.       The father of the Complainant Sri Krishnan was enrolled to the Employees Provident Funds Scheme from 1/12/1960.  The family pension scheme -1971 was introduced with effect from 1/3/1971. The employees who were already members under Employees’ Provident Fund Scheme as on 1/3/1971 were given option to join the family pension scheme by filing in option Form-I within six months with effect from 1.3.1971. Later it was amended and that option could be exercised by the employee at any time during the membership under E.P.F. (subject to remitting back period contribution with interest).

4.         Although the late member Krishnan was alive till 2.7.1992 he did not exercise his option to join the family pension scheme of 1971 till date of death. As such he was not a member of Family Pension Scheme 1971. But however it was found that the 2^nd opposite party (Employer) had erroneously bifurcated.
contributions from E.P.F. to Family Pension in respect of the late member from April 1989 to July 1992.

5.         After the death of Krishnan one Smt. Ramu Ammal submitted a claim form under Form 10A and claiming pensionary benefits. Since it was found that the said Ramu Ammal was married by Late Krishnan when his first wife was alive and
that the marriage was invalid as per law the said claim was rejected by this 1^st opposite party by its letter dated 20/9/1994. But on the basis of wrong details provided by the 2^nd opposite party to this 1^st opposite party the employer and opposite party was asked to submit claim for 10A along with connected papers. On
such compliance by 2^nd opposite party it was directed to open Savings Bank account in Post Office and subsequently in State Bank of India. This direction was required on the basis of the erroneous bifurcation of contribution by the 2^nd opposite party from EPF to Family Pension Scheme in respect of the late Member
Krishnan during the period from April 1989 up to July 1992 though Late Krishnan was not an Family Pension Fund Member. After verification by this opposite party, it was found that late Krishnan was not a member under the Family Pension
Scheme 1971 since he had not opted for the said scheme during his life time.

6.         Because the late member Krishnan had not opted to join the Family Pension Scheme 1971, the claim form submitted under Form 10A referred by the complainant Madasamy @ Murugan was returned to the ex-employer (the 2^nd opposite party) as per letter No.TN/TNY/AG-V(1)/190/3858/2005, dated 13.12.2005. The benefits conferred under the Family Pension Scheme 1971 was not available to late Krishnan, and subsequently to his heirs, since during his life time as well as during the service period with 2nd opposite party the late member had not opted to join the Family Pension Scheme. As such the Complainant is not
entitled to claim the benefits under the said scheme when his father had not exercised his option to join the scheme 1971 during his period of service.

7.         It was only because of the erroneously bifurcated contribution from Employees Provident Fund to the Family Pension Scheme 1971 in respect of late member Krishnan, this opposite party had initially required particulars of the account in State Bank etc. However when the mistake was traced and confirmed
that no payment under Family Pension Scheme is entitled for payment to the complainant this first opposite party has informed through letter dated 13-12-2005 expressing their inability to make payment under Family Pension Scheme, to the 2^nd opposite party.
8.         This 1^st opposite party is prepared to rectify the erroneously diverted amount from Employees Provident Fund to Family Pension Scheme by the ex-employer/2^nd opposite party for the period from 1989-1990 upto 1992-93 by releasing the amount with interest to eligible legal heirs on receipt of claim in
Form 20. This fact was communicated by this opposite party to the complainant in reply dated 17/8/2006 to the Advocate's notice dated 10/7/2006. Apart from this, the complainant is not entitled to the relief claimed.

As such the provident fund commissioner admits that the contributions were actually made to the family pension scheme from f /y 1989-90 to 1992-93 and that the process of releasing the family pension had been initiated. However, it then goes on to contend that when the “mistake” was “traced” they came up with a solution to “rectify” the “mistake” by “releasing” the “erroneously diverted” amount with interest to the eligible legal heirs of the deceased employee.

10.     Both the fora below have rightly held that in the given facts the absence of option form by itself was not fatal to the case since the contributions to the family pension scheme had been made for a considerable period spread over four financial years i.e. from 1989-90 to 1992-93 and had continued till the death of the employee.

11.     We however even fail to understand that when the contributions were in fact going into the family pension scheme and the initiation of the process of releasing family pension had also been undertaken, just because the option form was not available / traceable how could a presumption be made that it was not filled-up by the employee and the deductions and remittances made by the employer were under a ‘mistake’. There is nothing to show that any fact finding inquiry was undertaken to determine whether the option form was never filled up by the employee or it had been misplaced by the employer or the office of the provident fund commissioner etc. and also as to what actually occasioned the employer to start making and continuing with deductions under the family pension scheme which are now being contended to be a ‘mistake’. It cannot be accepted that in a matter like this even though there is no fact finding inquiry but yet defence of ‘mistake’ has been taken with complete opacity towards identifying the actual reason for the initiation and continuation of the contributions and without conclusively determining whether the employee had not submitted the option form or whether the same was not traceable because of some lapse not attributable to the employee. There is no clarity on how these contributions were first started and then continued till the death of the employee when at that time as per the stand of the provident fund commissioner the ‘mandatory’ requirement of option form was not being met. There is nothing to show that any attempt was made to fix responsibility and to inculcate systemic improvements for future in respect of the averred mistaken contributions made by the employer and received by the provident fund commissioner for a fairly protracted period spread over a number of financial years. We also fail to understand as to why a decision was taken to penalize the legitimate heir of the deceased employee when it was being averred in the same breath that the mistake was on the part of the employer (i.e. not on the part of the employee). Though we may hasten to clarify that when for a fairly protracted period the contributions were made to the family provident fund and the employee concerned as well as the employer and the provident fund commissioner were aware of the same, the non-availability of the option form after his demise was not materially relevant at all.  

12.     We notice no apparent perversity in the findings by the two fora below or a legal principle ignored or erroneously ruled. The award made by the District Commission as upheld by the State Commission appears both conscionable and lawful.

13.     It bears relevance that after the death of the employee in 1992 the family pension legitimately due has not been released only on the sole ground that after initiation of the disbursement process the option form could not be traced when admittedly for a number of financial years the contributions were regularly made into the family pension scheme. This necessitates, atleast now, time-bound compliance, else travesty of justice would be further compounded.

14.     We have no hesitation in dismissing the petition, sustaining the impugned Order of the State Commission and ordering that the same shall be complied with within six weeks from today, failing which, on the one hand a cost of Rs. 1 lakh shall be paid in addition by the provident fund commissioner to the complainant and, on the other hand the District Commission shall forthwith undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.      

15.     The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel as well as to the District Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.