KERALA STATE CONSUMER DISPTUES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTAHPURAM

APPEAL NO.868/2012

JUDGMENT DTD :30.11.2013

(Appeal filed against the order in CC.No.50/2007 on the file of CDRF, Kollam dated: 27.09.2012)

PRESENT

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

SMT.A.RADHA                               : MEMBER

SMT.SANTHAMMA THOMAS      : MEMBER

The Regional Provident Fund

Commissioner,

Employees Provident Fund

Organization, Sub Regional l                    APPELLANT

Office, Chinnakkada, Kollam

(By Adv.K.V.Karma Chandran)

Vs.

Ponnamma,

Varoor veedu,                                                   RESPONDENT

Thalachira,

Chakkuvarakka.P.O

Vettikkavila, Kunnicode

JUDGMENT

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

                    Appellant was the opposite party in CC.No.50/2007 in the CDRF, Kollam. The sole respondent was the complainant. She alleged in her complaint that she was a worker in the peeling section of Kesav Cashew Factory, Nedumpayikulam, Ezhukone. Ever since she joined service in the cashew factory in 1968, the employer had deducted contributions from her salary as per the Employees Provident Fund and Miscellaneous Provisions Act till she attained the age of 58 years on 31.12.2006. The factory was closed in May 1997. She was in the regular employment till then. She ceased to be a worker on closing the factory. She applied for minimum monthly pension as per the Employees Pension Scheme 1995 after attaining 58 years on 31.12.2006. The complainant submitted necessary documents and the rest of the details were to be furnished by the owner of the factory. The application sent by the complainant was accepted by the opposite party. But since specimen signature was not there, the complainant was directed to send another application and accordingly the complainant sent necessary application. The opposite parties sent letter dated:14.06.2006 to the owner of the factory stating that necessary Form A was not sent by the employer. The complainant understands that the employer has sent necessary details .But on enquiry,  when there was delay in sanctioning pension, the complainant was told that her application was rejected since Form No.1 was not submitted before attainment of 58 years of age and because she was not a member of family pension scheme. The complainant can not be held liable for the default on the part of the employer. The refusal of the opposite party to grant minimum pension amounting to Rs.1435/- is deficiency in service on the part of the opposite parties. Hence the complaint.

          2.      Version styled as additional version is seen filed by the opposite party Regional Provident Fund Commissioner. But the version itself is not seen among the Lower Court Record. The contentions raised are that the complainant did not opt to join either the employees family pension scheme 1971 or the employees pension scheme 1995 while she was a worker.  Only after settling her EPF dues the complainant made claim for membership which was against law and existing procedures. The employer of the complainant is a necessary party to the proceedings as he has duty to prepare retain and submit statutory returns in respect of the employees working under him from time to time to the office of the opposite party under the employees provident fund scheme 1952. Kesav Cashew Company ceased to function with effect from 01.01.1997 as is evident from the report dated 25.08.2001 of the Inspector of Factories and Boilers. But this fact was concealed by the employer with a view to misappropriate public fund. As a matter of fact the employer himself has not given any benefit to the employees till the date shown as date of leaving service. The opposite party need not preserve any document after the retention period prescribed. The complainant is not eligible to join the schemes and there is no bonafides in this application. Hence the complaint was liable to be dismissed.

          3.      Before the Forum the complainant gave evidence as PW1. Exts.P1 to P6 were marked on her side. One witness was examined on the side of the opposite party and Exts.D1 and D2 were marked on their side. The District Forum as per the impugned order held that the complainant was entitled to the reliefs sought and accordingly allowed the complaint. Hence the appeal by the Regional Provident Fund Commissioner, the opposite party.

          4.      The only question that arises for consideration is whether deficiency in service on the part of the appellant is established by evidence, if so whether the order of the District Forum is sustainable. The allegation in the complaint as seen earlier is that the application filed by the complainant for minimum pension was rejected by the appellant. But in the appeal memorandum the specific allegation is that a monthly pension of Rs.800/- was granted to the complainant under the provisions Employees Pension Scheme 1995 and the complainant was entitled to that much amount alone. It is also specifically contended that no contribution was made to the Employees Pension Fund 1995 for the period from 16.11.1995 to 31.12.2005. At the time of arguments the allegation that a pension of Rs.800/- per month is in fact sanctioned to the complainant was not at all disputed. So we are proceeding to decide case on the assumption that Rs.800/- per month is being paid to the complainant as monthly pension under the Employees Pension Scheme. The question is whether there is sufficient evidence to show that she is entitled to monthly pension of Rs.1435/- as claimed. The complainant claims to have both past service and actual service under the Employees Pension Scheme 1995. Though there is no dispute that the complainant attained the age of 58 years on 31.12.2006 it is admitted in the complaint itself that the cashew factory in which the complainant was working was closed down in May 1997.  So the claim that contribution was being made to the Employees Pension Scheme there after is a doubtful claim. The quantum of pension is dependent on the number of years in which contribution was actually paid also. That apart pension is to be calculated based on the past service and actual service as well as the pensionable salary. There is not even allegation regarding the pensionable salary of the complainant. Evidence is lacking on all the above aspects. Pension is calculated based on the statutory formula in which past service, actual service and pensionable salary counts . So in the absence of these particulars the District Forum did not obviously allow the complaint based on the statutory provisions,but merely based on the prayer in the complaint That Rs.800/- per month was sanctioned as pension by the appellant being a fact there is absolutely no evidence that they in anyway erred while sanctioning the above amount as pension. So no deficiency in service on the part of the appellant can be made out in the absence of which the complaint can not be entertained. It follows that the appeal is liable to be allowed.

          In the result, the appeal is allowed. In reversal of the order of the District Forum, Kollam in CC.No.50/2007 dated: 27.09.2012, the complaint is dismissed. The parties are directed to bear their respective costs in the appeal.

                                                                K.CHANDRADAS NADAR   : JUDICIAL MEMBER

A.RADHA                               : MEMBER

SANTHAMMA THOMAS      : MEMBER

be