Heard learned counsel for the petitioner and perused the records.

Notices were issued to the respondent upon the admission of this revision petition and inspite of service of notice, none appeared to represent the respondent.  Accordingly, the respondent was proceeded ex-parte vide order dated 07.05.2018.  

Learned counsel for the petitioner has urged that even though the appeal filed by the petitioner was allowed by the SCDRC Kerala (hereinafter referred to as the State Commission), yet a further direction has been given for the refund of Rs.39,682/- which is absolutely unwarranted and is not in accordance with law. 

It is aggrieved by this part of the order that the petitioner has come up questioning the correctness of the impugned order dated 27.08.2014 to that extent.

The facts lie in a narrow compass.  The complainant/respondent was an employee of a Cashew Factory and having entered into service in 1960, he was a member of the Employees Provident Fund Scheme.  The complainant retired from service after superannuating on 01.08.2002 upon completion of almost 32 years of service and having completed 58 years of age.  The provident fund deposit disbursal gave rise to the dispute and the complainant filed his complaint (CC/164/2009) before the DCDRC Kollam (hereinafter referred to as the District Commission) praying for the amount which according to him was due.  The complaint was allowed on 18.06.2013 and aggrieved the Regional Provident Fund Commissioner filed First Appeal No. 501/2013 where it has been held that the rate of payment for which the complainant was eligible was Rs.717.17 and therefore the award @ Rs.1048/- by the District Commission was erroneous.  The appeal was allowed to that extent but while extending relief, the State Commission in para-5 held as follows:

“5.      But it appears that the appellant deducted Rs.39,682/- for regularizing pension contrary to Law.  It is pertinent to notice that the employees pension scheme 1995 does not contemplate contribution to the employees provident fund on daily basis or non contributory period in terms of days or months.  Employment in a cashew factory is a seasonal one and none of the provisions in the scheme authorizes the appellant to deduct any amount from the provident fund deposit with a view to regularize the non contributory period.  The question is whether there was break in service.  There is no dispute that there was no break in service or failure on the part of the employee to contribute during the period he actually worked in the factory.  In the circumstances, the complainant respondent is entitled to get the amount of Rs.39,682/- deducted from is provident fund deposit.  It follows that the appeal is liable to be allowed and the order of the Consumer Forum is liable to be modified as indicated above.” 

Learned counsel submits that this relief as extended by the State Commission to the complainant was neither pleaded nor prayed for.  Learned counsel has invited the attention of the Bench to the copy of the complaint that has been filed on record as well as the prayer clause therein.  It is therefore submitted that the State Commission has proceeded to grant a relief in excess what had been claimed and was even otherwise not permissible in accordance with law.

Learned counsel has relied on the letter which has been brought on record in compliance of the order passed by this Commission through a compilation.  The said letter is dated 09.03.2005 sent by the complainant for regularising the break in service and for making any adjustments in that regard.  Learned counsel has also invited the attention of the Bench to the letter dated 05.07.2018 in this respect clarifying the legal status and the justification for the deductions made.

We have considered the submissions raised and we find that the complainant does not seem to have challenged the order passed by the State Commission dated 27.08.2014 whereby the rate of payment has been held to be Rs.717.17.  Consequently, the order attains finality to that extent as against the complainant.

Coming to the relief prayed for by the petitioner in respect of the amount directed to be refunded on account of the deductions made for regularising the non-contributory period, suffice it to say that the evidence of the complainant himself having written a letter to that effect on 09.03.2005 remains unrebutted and further the communication dated 05.07.2018 substantiates the contentions raised on behalf of the petitioner.  In such circumstances, the direction given by the State Commission for refund, which was not even pleaded for in the complaint, seems to be an exercise in excess of jurisdiction by the State Commission.

Consequently, the revision petition deserves to be allowed.  Accordingly, we allow the revision petition to the aforesaid extent and set aside para-5 of the impugned order for the reasons given hereinabove with no directions as to costs.

The revision petition is accordingly allowed.