1. The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”), has been filed by the Assistant Provident Fund Commissioner (hereinafter referred to as “the Provident Fund Organisation”), Opposite Party challenging the Order dated 29.08.2014 passed by the Kerala State Consumer Disputes Redressal Commission at Thiruvananthapuram (for short “the State Commission”) in Appeal No. 322 of 2013.  By the Impugned Order, the State Commission dismissed the Appeal filed by the Provident Fund Organisation by affirming the Order dated 31.10.2012 passed by the District Consumer Disputes Redressal Forum, Kollam (for short “the District Forum”) in Complaint Case No. 69/2005 whereby the District Forum had partly allowed the Complaint and directed the Provident Fund Organisation to return ₹28,100/- to the Complainant alongwith interest at the rate of 12% per annum from 01.04.99 till realization; pay ₹604/- on production of pass book of pension drawn from Canara Bank alongwith compensation of ₹5,000/- and cost of ₹1500/-.

2. The brief facts of the case are that the Complainant had joined as a cashew worker at KSCDC Factory Kollam in the year 1970.  She became member of Provident Fund Organisation vide A/c No. KR/1232/1096.  Her employer deducted the subscription and remitted to the Petitioner Provident Fund Organisation from time to time.  She became member of Employees Family Pension Scheme in 1971.  On 16.11.1995, the Family Pension Fund Scheme was substituted with Employees Pension Scheme, 1995.  The Complainant joined with the EPS 1995 and respective contributions were deducted by her employer and got remitted to Opposite Party Provident Fund Organisation. The Complainant was terminated from service on 01.07.2001.  She applied for eligible pension in Form No. 10D with the Opposite Party Provident Fund Organisation.  It is the case of the Complainant that although she was entitled/eligible for monthly pension of ₹800/- under the Provident Fund Act, 1995 yet the Opposite Party Provident Fund Organisation sanctioned her a monthly pension of ₹544/-. It was further stated in the Complaint that despite deducting ₹181/- monthly towards commuted pension, the Opposite Party Provident Fund Organisation had not disbursed the commuted pension amounting to ₹18,100/-.  Alleging deficiency in service on the part of the Opposite Party Provident Fund Organisation, a Complaint was filed before the District Forum.

3. Upon notice, by filing its Written Version, the Provident Fund Organisation contested the Complaint on the ground that although the complainant has been contributing to the Fund from 01.03.1971 yet there is non-contributory period of 6631 days (18 years 2 months 1 day) during the period 01.03.1971 to 16.11.1995.  this non-contributory period can be regularized only if the due contribution thereof has been received in Employee’s Pension Fund as specified by Para 9(b) of the EPS, 1995.  For regularizing the non-contributory period and break in past service in terms of the Para 9(b) of the EPS, 1995, a sum of ₹33,883/- was required to be remitted, therefore, they diverted a sum of ₹1,752/- from her EPF account, ₹22,131/- from her pension arrear and ₹10,000/- from her Employees’ Provident Fund.  The Complainant had left the service on 31.12.2001 as per Form No. 19.  The Complainant is not entitled for monthly pension of ₹800/- and she is eligible for monthly pension of ₹500/- as per terms of the Employees Pension Scheme 1995.  As per option availed by the Complainant, a sum of ₹363/- and ₹54/- has been deducted from pension towards commutation of pension and return of capital respectively.  By surrendering 1/3^rd , i.e., ₹363/-, the Complainant would get ₹18,100/- in lump sum and by way of surrendering ₹54/-, the nominee of the Complainant would get ₹36,300/- in the event of her death.  They acted in lines with the Employees’ Pension Scheme 1995.  It was submitted that there is no deficiency in service on their part and prayed that the Complaint be dismissed.

4. After hearing the Parties and on analysis of the evidence adduced by the Parties before it, the District Forum had partly allowed the Complaint in above terms by observing as under:-

“…..According to the complainant diversion of the amount of ₹33883/- is illegal as against the provisions of EPS 1995. The break in service is an afterthought of the opp. parties to reduce the pension payable to the complainant. Ext. D1 itself reveals that there are 25 years worked by the complainant in the 2nd opp. party factory up to 16.11.1995 and paid PF and EPF contributions on all working days. But the Opp. Party calculated the absence by reducing the total working days from the total days of the 25 years. There is no possibility of a factory to work for 365 days in an year. There are holidays and Sundays for every year as non working day. The opp. party did not care to calculate the working days and absent days in accordance with the factories Act.

Para 9 [6] of EPS reads as follows: “In the case of existing member the aggregate of actual service and past service shall be treated as eligible service.

Provided that if there is any period in the past service for which the contribution towards the Family Pension Scheme has not been received the said period shall count as eligible service only if the contribution thereof have been received in the employees Pension Fund.

In the instant case, the employee has made contributions to the Family Pension Scheme 1971 throughout his past service period. There is no provision to calculate service in the unit of days. Then unit of calculation of service is year. In the present case non working days are calculated as break in service and non contributory period. The total number of non working days including Sundays and other holidays are calculated and it was divided by 365 to work out non contributory period. This mode of calculation of non contributory period adopted by the 1st Opp. Party is absolutely wrong and against the provisions of the EPS 95 and against the principles of natural justice. There is no provision in the EPS which entrusts the 1st Opp. Party to calculate past service period in this manner. Para 9[1] of the EPS 95 was wrongly interpreted by the 1st opp. party with an intention to reduce the pension amount deliberately. Naturally the contribution shall be payable only from the wages earned by the employee. There is no wages for the non working days and the contribution shall not be paid for the non working days. In our view the provision under para 9[b] is intended for the remittance of contribution of the period for which the contribution were collected from the wages and the amount was not remitted to the PF account or the period for which contribution has not been collected from the wages in any circumstance. The collection of contribution to the PF account for the non earning days is deadly against the principle of natural justice. Hence the diversion of ₹11,752/- from EPF account and ₹22,131/- from the pension arrears [totally ₹33,883/-] is illegal and against the provision of 1995.

Moreover all these the documents produced by the 1st Opp. Party is has no authenticity. While in cross examination DW.1 had stated that Ext. D1 is the record submitted before the 1st Opp. Party by the employee and D2 is the work register kept in the office. He had admitted that the attendance card was not seen by him and he had not verified the Attendance Register. He had also stated that …….contributory period non-contributory period………..

From these statements itself it is obvious that 1st Opp. Party prepared the calculation without any bonafides regarding the rates of contribution and the period of break etc. Based on Ext. D1 the 1st Opp. Party hass prepared Ext. D3. As the 1st opp. party failed to prove the authenticity and genuity of D1a to D4 documents those documents cannot be accepted and the contention made on the base of the documents will not sustain.

The learned counsel for the complainant argued that the complainant is eligible to get ₹835/- as pension for the service rendered with 2nd Opp. Party and contributions remitted by the Complainant. He had argued that pension of the complainant can be calculated as specified in para 12 [5] of EPS 1995. He had further argued that as per para 12[5] the complainant is eligible to get ₹500/- for the past service upto 1995. The complainant is eligible to get a minimum pension of ₹335/- for the actual service period [16.11.1995 to 1.04.1999]. The Opp. Party also admitted that the pension calculation of the complainant comes under the category specified by para 12 [5] of EPS 1995 but argued that the complainant is not entitled to ₹800/- eligible to get and only to ₹500/-

While in cross examination Dw.1 admitted that the pension for the period from 16.11.1995 to the date of superannuation should be calculated as per the provision under para 12 [2] and eligible to get a minimum pension of ₹335/- for the actual service period. [16.11.1995 to 1.4.1999]. The complainant is superannuated and however she is entitled to get pension as per the provision under para 12 [5], of the EPS 1995. Para 12 [5] of the EPS reads as follows: in the case of a member in respect of whom the date of commencement of pension is before 16th November 2000

1.       Superannuation or early pension shall be equal to the aggregate of [a] Pension determined under sub-para [2] for the period of service rendered from 16th November 1995 or ₹335/- per month whichever is more.

[b] Past service pension as provided in sub paragraph [3].

The aggregate of [a] and [b] calculated as above shall be subject to the minimum of ₹500/- per month, provided the eligible service is 24 years. Provided further that if it is less than 24 years the pension shall be proportionally lesser but subject to the minimum of ₹265/- per month.

The mode of calculation of past service pension payable on completion of 58 years of age on 16th November 1995 is given in para 12 3 [b]. The amount in column 2 and column 3 in para 12 [3] [b] as the case may be shall be multiplied by the factor given in Table B6 corresponding to the period between 16th November 1995 and the date of exist to arrive past service pension payable.

No authentic document was produced by the complainant to prove the amount of the complainant‘s salary. The pensionable salary as per Ext. D3 is ₹881/-. It was not challenged by the complainant. As the complainant’s years of past service is beyond 20 years and monthly salary was less then ₹2500/- the amount in column No.[2] can be taken for calculation [₹150] past service pension can be compound using table “B” factor less than 4 years between 16.11.1995 and 1.4.1999 i.e. 1.395  past service pension can be calculated by multiplying 150, 396 and 209. The total pension payable to the complainant is ₹335+209 is ₹544/- ₹181 was deducted from this amount as the complainant had opted commutation. For getting return of capital 10% ₹54/- also was deducted from the original pension.

As argued by the learned counsel for the 1st Opp. Party, they had calculated the complainant’s pension as per the provision of the scheme, we could not find any default in the calculation of monthly pension. The contention of the complainant that she is eligible to get pension for an amount of ₹800/- and above is not correct. It is also admitted by the 1st Opp. Party that they are bound to pay ₹604/- to the complainant on production of pass book of pension drawn from Canara Bank, convent Road, Kollam.

Based on the above discussion and on verification of entire documents before us we find that there is deficiency in service from the part of 1st Opp. Party in realizing an exorbitant amount for regularization of eligible service. The points found accordingly.

In the result, the complaint is allowed in part. The 1st Opp. Party is directed to return ₹28100/- to the complainant along with interest at the rate of 12% per annum from the 1.4.1999 till the date of payment. The 1st Opp. Party is further directed to pay ₹604/- on production of pass book of pension drawn from Canara Bank, Convent Road, Kollam and compensation ₹5000/- along with cost ₹1500/- to the complainant. The order is to be complied within one month from the date of receipt of the order.”

5. Aggrieved with the Order passed by the District Forum, the Opposite Party Provident Fund Organisation preferred Appeal before the State Commission, which affirmed the Order passed by the District Forum and dismissed the Appeal in following terms:-

“In order to justify the contention that there was break in service paragraph 9 (b) of the Employees Pension Scheme 1995 is relied on especially the explanation that the total past service for less than six months shall be ignored and total past service for six months and above shall be rounded off a year. But the mistake appears to be in interpreting the explanation in such a way to discard service in every month which is less than for 50% days. This is evident from Ext.D1, the alleged detail of break in service produced by the first opposite party. For example in 1978 there were only total 105 working days. It is pertinent to notice that the complainant was working in a cashew factory. She had worked on 100 days out of the 105 working days and took leave or was absent only on five days. But in the remarks column 265 days are shown as the non contributory period. This is the case with all other years. So obviously, the first opposite party/ appellant interprets paragraph 9 (b) in such a way that there should be contribution from the employee for each and every days of the year. This interuptation is totally misplaced. Paragraph 11(2) gives clear indication as to how the average monthly pay will have to be worked out. Once that is done payment of contribution is an obligation of the appellant to recover damages for default in payment of contribution. Without doing so the appellant adopted the short cut method of deducting the contribution from the pensionary benefit and amount from her EPF account. Exct.D1 does not justify a conclusion that there was break in service of the complainant. So deduction of amount on the ground that there was non-contributory period in her service was totally unjustified. So it appears that if correctly calculated the complainant’s claim for pension could have been sustained into but in the absence of appeal by the complainant we are not considering the claim of the complainant any further. But the appeal is devoid of merit and is accordingly dismissed with cost of ₹5000/- to the first respondent/complainant..”

6. Being aggrieved, challenging the Impugned Order passed by the State Commission, the Petitioner Provident Fund Organisation has filed the present Revision Petition before this Commission.

7. Ms. Megha A., learned Counsel appearing on behalf of the Petitioner Provident Fund Organisation submitted that the District Commission and State Commission had failed to appreciate that there was 6631 days break in service of the Complainant as such she was not eligible to maximum past service benefit for want of contribution to the Family Pension Scheme 1971 and she has rightly been sanctioned monthly pension of ₹544/- as per provisions of EPS, 1995.  The impugned Order passed by the Fora below is bad in law and against provisions of EPF & MP Act 1952 and EPS 1995.  It was prayed that the Orders passed by the Fora below be set aside and the complaint be dismissed.

8. Per contra, Mr. Retuakumar, learned Counsel appearing on behalf of the Complainant/Respondent herein, supported the Impugned Order passed by the State Commission as according to him the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference

9. We have heard Ms. Megha A., learned Counsel appearing on behalf of the Opposite Party/Petitioner Provident Fund Organisation, Mr.  Retuakumar, learned Counsel appearing on behalf of the Complainant/Respondent.

10. After going through the documents available on record and having given thoughtful consideration to the various pleas raised by both the Parties, we are of the considered opinion that the District Forum has rightly held that there was deficiency in service on the part of the Provident Fund Organisation in realizing an exorbitant amount for regularization of eligible service and this finding has been rightly affirmed by the State Commission vide its well-reasoned Order dated 29.08.2014. While passing the Orders, the District Forum as well as the State Commission had considered all the material evidence on record and there is no illegality, material irregularity or jurisdictional error in the Orders passed by the Fora below.  It is well settled by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] that the Revisional Jurisdiction of this Commission under section 21(b) of the Consumer Protection Act, 1986 is extremely limited and this Commission cannot set aside the Order passed by the State Commission in Revisional Jurisdiction until and unless there is any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission.  For ready reference, relevant paragraph of the Judgment passed by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [supra]  is reproduced as under:-

“9.     It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

11. Thus, in view of the law laid down by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ (supra), we do not find any good ground to interfere with the well-reasoned Order passed by the State Commission.  Consequently, the present Revision Petition fails and is hereby dismissed.  Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.