ASSISTANT PROVIDENT FUND COMMISSIONER vs Sh N Siddoji Rao

THIS common order shall decide two revision petitions detailed above. The Assistant Provident Fund Commissioner, the petitioner filed as many as 35 revision petitions, out of which, 28 revision petitions were dismissed as withdrawn vide order dated 03.03.2014. Thereafter, the petitioner withdrew three revision petitions vide order dated 26.09.2014. Lastly, he withdrew two other revision petitions vide order dated 15.12.2014. Now, we are left with the above detailed two revision petitions pertaining to Sh. N.Siddoji Rao and Sh.P.Gangadhar, complainants/respondents. The facts of both the cases are identical, therefore, we take up the facts from the case of Asst. P.F. Commissioner Vs. Sh.N.Siddoji Rao and Anr.

SH . N. Siddoji Rao, the complainant was working in Karnataka State Road Transport Corporation (KSRTC). He retired from service on 06.05.2010. The complainant joined the service on 12.08.1980. In the year 1971, the Department of OP1 had already introduced a Pension Scheme, namely, Family Pension Scheme, in the year 1971. The complainant retired as an employee of KSRTC w.e.f. 06.05.2010. He was a member of the erstwhile Employees'' Family Pension Scheme, 1971. The OP has been regularly paying a sum of Rs.1,619/ - being pension, as per the provisions of Employees'' Pension Scheme, 1995. However, the petitioner is claiming weightage of 2 years'' as contemplated under Para 10(2) of the Employees'' Pension Scheme, 1995. Paras 10(1) and 10(2) of the said scheme run, as follows : - "10. Determination of pensionable service. (1) The pensionable service of the member shall be determined with reference to the contributions received or receivable on his behalf in the Employees'' Pension Fund.

(2).In the case of the member who superannuates on attaining the age of 58 years, and who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of two years".

COUNSEL for the petitioner argued that the pensionable service means, the service rendered by the member, for which, contributions have been received or receivable. Our attention was also invited towards the definition of ''contribution'', under Section 2(c) of the said Act, which runs, as follows : - "contribution" means a contribution payable in respect of a member under a Scheme or the contribution payable in respect of an employee to whom the Insurance Scheme applies".

It was also argued that if a provision of flaw is confusing, then paras 35 and 41 of the Employees'' Pension Scheme, 1995, lay down that Government can issue directions for clarification. Again, the Hon''ble Apex Court, in SLP 30844/2010, dated 15.11.2010, filed against a case decided by this Bench, titled, The Assistant Provident Fund Commissioner Vs. Mallikarjuna Devendrappa Veerapur, an Ex -employee of M/s. Halasiddanath S.S.K. Niyamith, Nippani, has dismissed the appeal filed by the petitioner, but have kept the question open.

INSTEAD of touching the heart of the problem, the counsel for the OP1/petitioner, has tried to skirt it. Definition of ''pensionable service'' as per para 2 (xv) of the Scheme, states: - "Pensionable service" means, the service rendered by the member for which contributions have been received or are receivable]"

FURTHER , Note to Part -3 of the Employees'' Pension Scheme, 1995 deals with the employees'' pension fund which reads as under: - "(1) From and out of the contributions payable by the employer in each month under Section 6 of the Act or under the rules of the Provident Fund of the establishment which is exempted either under clauses (a) and (b) of sub -section (1) of Section 17 of the Act or whose employees are exempted under either paragraph 27 or paragraph 27 -A of the Employees'' Provident Fund Scheme, 1952, a part of contribution representing 8.33 per cent of the Employee''s pay shall be remitted by the employer to the Employees'' Pension fund within 15 days of the close of every month by a separate bank draft or cheque on account of the Employees'' Pension Fund contribution in such manner as may be specified in this behalf by the Commissioner. The cost of the remittance, if any, shall be borne by the employer.

(2) The Central Government shall also contribute at the rate of 1.16 per cent of the pay of the members of the Employees'' Pension Scheme and credit the contribution to the Employees'' Pension Fund: Provided that where the pay of the member exceeds 1[rupees six thousand and five hundred] per month the contribution payable by the employer and the Central Government be limited to the amount payable on his pay of [rupees six thousand and five hundred] only.

(3) Each contribution payable under sub -paragraphs (1) and (2) shall be calculated to the nearest rupee, fifty paise or more to be counted as the next higher rupee and fraction of a rupee less than fifty paise to be ignored.

(4) The net assets of the Family Pension Scheme, 1971 shall vest in and stand transferred to the Employees'' Pension Fund."

[7] Consequently, both the complainants qualify both the eligibility conditions. They have served for more than 20 years'' and retired at the age of 58 years''. This view finds further support from the judgment of this Commission in RP Nos. 662 to 666 of 2014, titled Regional Provident Fund Commissioner Vs. H.C.Shiva Rudrappa and Ors., decided on 28.08.2014.

[8] Both the revision petitions have no force. Both are, therefore, dismissed.