BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 31/2009 Filed on 06.02.2009
Dated: 28.02.2014
Complainant:
K. Ramla, Valiyapana Veedu, Parakunnu P.O, Navaikkulam, Thiruvananthapuram.
(By adv. Kallada P. Kunjumon)
Opposite party:
Regional Provident Fund Commissioner, Bhavishyanidhi Bhavan, Pattom, Thiruvananthapuram.
(By adv. Pattom K. Ramachandran Nair)
This C.C having been heard on 27.01.2014, the Forum on 28.02.2014 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
This complaint remanded by the Hon’ble State Commission vide its order dated 07.06.2011 in Appeal No. 641/10 with direction to permit opposite parties to contest the matter.
The facts leading to filing of the complaint are that complainant was an employee of the Green Valley Cashew Factory vide employee No. 54 from 1974 to 01.03.1997, that she was a member of the Employees Pension Scheme, that she had contributed to the said scheme for 1974 to 1997, that her date of birth is 1953 thereby her age was 50 by 2003, that due to delay in getting the relevant records from the Employees’ Institution she could not move the pension application in time and moved the same to opposite party (form 19) only on 15.12.1996, that opposite party rejected the said application on 16.01.2007 on the ground that complainant is not eligible to get monthly pension and directed the complainant to apply in Form 10 C to get back the benefits under the Family Pension Scheme (FBS). It is submitted by the complainant that she had completed 23 years of service, and since she has rendered eligible service of more than 20 years she would get 2 years weightage thereby her total service period would rise to 25 years, that on the basis of which she is eligible to get at least Rs. 1,000/- per month as monthly pension and other benefits under the said scheme. Hence this complaint to direct opposite party to pay monthly pension @ Rs. 1,000/- with interest thereon from 01.03.1997 along with a compensation of Rs. 10,000/- and cost of Rs. 5,000/-.
Opposite party entered appearance and filed their version contending interalia that complainant Smt. K. Ramla bearer of EPF A/c No. KR/1201/1108 joined EFPS 71 on 01.06.1976, that her date of birth as per the office record stands as 01.06.1955, that she left service on 01.03.2007, that her EPF A/c was settled and an amount of Rs. 6,730/- sent to her SB A/c No. 17335/149 State Bank of Travancore, Kallambalam during April 2001. The statement of the complainant that she joined service in the year 1974 and her date of birth 1953 is not correct, that opposite party upon due application from the complainant settled the PF A/c during April 2001 and pension application dated 15.12.2006 was returned on 16.01.2007 for want of minimum required contributory service, that the following are the service data in respect of the complainant.
A/c No. : KR/1201/1108
Name : Ramla
Date of Birth : 01.06.1955 (21 years as on 01.06.1976)
Date of joining : 01.06.1976,
Date of cessation : 01.03.1997
Non-contributory service between
01.06.1976 and 16.11.1995 : 16 years 8 months and 3 days.
Period in between 01.06.1976
and 16.11.1995 : 19 years 5 months and 15 days.
Period of non-contribution : 16 years, 8 months and 16 days.
Age as on 16.11.1995 : 40 years
Contributory service of 2 years 8 months and 29 days is rounded off to 3 years past service
Contributory service in between
16.11.1995 and 01.03.1997 : 5 months & 20 days.
Non-contributory service : 9 months and 20 days.
That petitioner’s non-contributory past service can be regularized by remitting the past period contribution under pension scheme, that complainant if desires she can remit pension fund contribution and apply for reduced pension effective from the date of remittance. Apart she can at her option remit the contribution and secure a scheme certificate enabling to apply for full pension on completion of 58 years as on 01.06.2013. Until remittance of the past service pension contribution the petition is not acquired the minimum qualifying service for pension, that the allegation about deficiency in service is not correct in the above context. The demand raised by the complainant that she completed 23 years service is incorrect and therefore denied.
The points that arise for consideration are:-
- Whether the complainant is entitled to get monthly pension and other benefits under the Employees Pension Scheme? If so, at what rate?
- Whether the complainant is entitled to get interest on pension amount payable from 01.03.1997?
- Whether there has been deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to get compensation and cost? If so, at what amount?
In support of the complaint, complainant has filed affidavit and marked Exts. P1 to P5. Opposite party has filed affidavit and has furnished Exts. D1 to D4.
Points (i) to (iv):- There is no point in dispute that complainant was a member of Employees Pension Scheme 1995. There is also no dispute on the point that complainant was a member of Employees Provident Fund Scheme 1952. According to complainant she was an employee of the Green Valley Cashew Factory vide employee No. 54 from 1974 to 01.03.1997. Her case is that she had contributed to the Employees pension Scheme till 01.03.1997 and she had a continuous service from 1974 to 1997 and her year of birth is 1953. According to complainant her age was 50 by 2003. The very case of the complainant is that she could not move the pension application in time due to delay in getting the relevant records from employees’ institution. Though complainant moved the application for pension on 15.12.2006, the said application was rejected by opposite party on 16.01.2007 on the ground that complainant is not eligible to get monthly pension and directed the complainant to apply in form 10 C to get back the benefits under the Family Pension Scheme. It has been the specific case of the complainant that she had completed 23 years of service and since she had rendered eligible service of more than 20 years she would get weightage of two years thereby her total service period would rise to 25 years, on the basis of which, she is eligible to get at least Rs. 1,000/- per month as monthly pension and other benefits under the said scheme. Ext. P1 is the letter dated 16.01.2007 issued by opposite party to complainant. As per Ext. P1 it is revealed that the application in form 19 under reference could not be entertained due to the defects noted in item No. 23 and 24. The defects stated in item No. 23 & 24 are reproduced hereunder:
23: Your provident fund amount had already been settled during 2001-02.
24 : You are not eligible to get the monthly family pension as per rules. You are therefore requested to apply in Form No. 10 C for releasing the withdrawal benefit under the Family Pension Scheme F 19 & 10 D are returned herewith.
Ext. P2 is the copy of the certificate dated 05.04.2001 issued by Green Valley Foods, Palayamkunnu. A perusal of Ext. P2 reveals that complainant was absent for duty from 1997 and continued on leave and thereafter received the ex-gratia payment from the employer and she was removed from the roll from 01.03.1997. Ext. P3 is the copy of the application for monthly pension under Employees’ Pension Scheme. As per Ext. P3, EPF Account No. is KR 1201/1108, name and address of the establishment is Green Valley Foods, Palayamkunnu, date of leaving service is 01.03.1997 and reason for leaving service is disablement. On page 6 of the said Ext. P3 it is seen that employer of the complainant has furnished the particulars of wages and pension contribution payable for period of 12 months preceding the date of leaving service. The details of break in service of the employee are also mentioned therein. Accordingly complainant had worked from 1974 to 1997. Further it is mentioned that there were no records for 1974-75, there were no works from 1983-88 and again she had worked from 1988 to 1997. The said details are seen issued by the employer. Ext. P4 is the copy of the identity card under Employees’ State Insurance Corporation. In Ext. P4 1953 is the birth year and date of entry is on 05.10.1974. Ext. P5 is the copy of the order dated 25.07.2006 of the Court of the Controlling Authority under Payment of Gratuity Act, 1972. In the said order the Court of the Controlling Authority under Payment of Gratuity Act found that the complainant herein was a peeling worker in the cashew factory of the opposite party since 05.10.1974. Due to prolonged illness she was compelled to apply for ex-gratia payment and subsequently obtained pension from Cashew Workers’ Relief and Welfare Fund Board. Only a permanent worker will get the above ex-gratia and it was also found that she was eligible for gratuity for her past 22 years of service and gratuity was allowed and directed the Manager, Green Valley Foods to disburse the gratuity amount due to Smt. Ramla. Opposite party has filed proof affidavit and has produced Exts. D1 to D4. Ext. D1 is the photocopy of the subscriber’s ledger card. Ext. D2 is the copy of the letter addressed Smt. Ramla by Assistant Provident Fund Commissioner dated 16.01.2007 intimating the former that application in form 10 D under reference could not be entertained due to the defects noted therein. Ext. D3 is the details of break in service furnished by the employer. Ext. D4 is the statement showing the amount to be diverted towards non-reckonable service. The Enforcement Officer of Employees Provident Fund has been examined as DW1 on the basis of the affidavit filed by him on behalf of the opposite party. The very stand of the opposite party is that the complainant Smt. Ramla, bearer of EPF A/c No. KR/1201/1108 joined Employees’ Family Pension Scheme 1971 on 01.06.1976 and her date of birth as per the office record stands as 01.06.1955 and she left service on 01.03.1997 and her EPF account was settled and an amount of Rs. 6,730/- sent to her SB Account SBT Kallambalam during April 2001. No birth certificate furnished by complainant to prove date of birth, but complainant has produced Ext. P4 identity card issued by Employees’ State Insurance Corporation in the name of Ramla wherein birth year is mentioned as 1953 and date of entry mentioned as 05.10.1974. Further along with Ext. P3 application for monthly pension, details of service furnished by employer is seen attached with. In the said statement also the date of birth of the complainant is recorded as 1953 and date of leaving service as 1997. It is specifically stated therein by the employer that date of commencement of family pension membership as 1974 and date from which family pension contribution recovered as 1974. Further the Court of Controlling Authority under Payment of Gratuity Act also found that Smt. Ramla was a peeling worker in the cashew factory of the opposite party, the Manager, Green Valley Foods, Palayamkunnu since 05.10.1994. In view of the above we have no hesitation to admit that complainant was a worker of the Green Valley Foods from 1974 and evidently by Ext. P4 the birth year of the complainant is 1953. On the strength of Ext. P4 identity card issued by Employees’ State Insurance Corporation and the order issued by Controlling Authority under Payment of Gratuity Act (District Labour Officer), we are of the view that complainant was a worker of the Green Valley Foods from 1974 and her birth year as 1953.
As under Sec. 4 of Employees Pension Scheme 1995, the employer shall pay the contribution payable to the Employees’ Pension Fund in respect of (each member) of the Employees’ Pension Fund employed by him directly or by or through a contractor. It shall be responsibility of the principal employer to pay the contribution payable to the Employees’ Pension Fund by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor. As under Sec. 5 of the EPS 1995, where an employer makes default in the payment of any contribution to the Employees’ Pension Fund or in the payment of any charges payable under any other provisions of the Act or the scheme, the Central Provident Fund Commissioner or such officer as may be authorized by the Central Government may recover from the employer by way of penalty, damages at the rate mentioned thereunder.
Admittedly, complainant herein was a member of the Employees’ Family Pension scheme 1971. We have already found that she joined in the service in the year 1974 and her date of birth as 1953. As per the above referred scheme, employer shall pay contribution payable to the Employees’ Pension Fund, failing which the Central Provident Fund Commissioner or such officer authorized by the Central Government may recover from the employer by way of penalty damages. There is no material on record to show that any termination order issued to the complainant till 1997. As such we find that complainant was continuously in service till 1997.
The eligibility for pension is determined with reference to eligible service. Eligible service comprises past service and actual service. The period of past service relates to the service rendered by the employees under the Employees’ Family Pension Scheme from 1971 to 15.11.1995. The actual service is the period of service rendered by the employees commencing from a date on or after 16.11.1995 till the date of exit from the employment or attainment of 58 years of age, whichever is earlier. The period either under past service or under actual service or both, as the case may be, will constitute eligible service. The eligibility for monthly pension to the member is determined with reference to eligible service only. The period of past service and actual service should be rounded off separately to the nearest year to determine the eligibility for pension.
Thus the eligible service comprises of past service and actual service. The past service relates to service rendered by the employee under the Employees’ Pension Scheme from 01.03.1971 to 15.11.1995. Herein the complainant joined in the service in the year 1974. As per Ext. P4 identity card issued by Employees State Insurance Corporation, her birth year is 1953 and date of entry is 05.10.1974. Considering 1974 as the year of joining, the past service of the complainant which is to be considered for eligible pension is 22 years. Actual service is the period of service rendered by the employee commencing from the date of order ie. 16.11.1995 till the date of exit from the employment or attainment of 58 years of age, whichever is earlier. Complainant herein contends that she left service on 01.03.1997. That means complainant had served for 1 year 3 months and 13 days after 15.11.1995. It is to be noted that the period under past or under actual service or both will constitute eligible service. Thus complainant had 22 years past service and 1 year 3 months and 13 days of actual service after coming into force of Employees Pension Scheme 1995 and since the said service is more than 20 years, she would be entitled to weightage of two years in terms of Rule 10(2) of the said Rules. According to complainant since she had rendered 23 years pensionable service, her pensionable service shall be increased by adding a weightage of 2 years, thereby her pensionable service would become 25 years. As regards monthly pension complainant claims pension as under Rule 12(5) b of the Employees Pension Scheme 1995. As per Rule 12(5)b “in case of an employee who has attained the age of 53 years or more on the 16th November 1995, the superannuation/retirement pension shall be equal to the aggregate of (a) pension as determined under sub paragraph (2) for the period of service rendered from the 16th November 1995 or Rs. 335/- per month whichever is more (b) past service benefits provided the past service is 24 years. Provided further that if it is less than 24 years the pension payable and the past service benefits shall be proportionately less but subject to the minimum of Rs. 265/- per month”. It is pertinent to note that complainant’s birth year as per Ext. P4 is 1953, while as per Ext. P3 date of birth is 05.10.1953. If that be so, complainant had not attained the age of 53 on 16.11.1995. Hence Rule 12(5) cannot be applicable to the case in hand. As per Rule 12(3) of the Employees Pension Scheme 1995, “in case of an employee (who was a member of the ceased Family Pension Scheme 1971) and who has not attained the age of 48 in 16.11.1995, (a) pension is determined under sub paragraph (2) for the period of pensionable service rendered from the 16th November 1995 or Rs. 635/- per month whichever is more (b) past service benefit shall be payable subject to a minimum of Rs. 800/- per month provided the past service is 24 years. Thus Rule 12(3) is applicable to the fact of this case, since complainant never attained age of 48 years on 16.11.1995. Though opposite party has raised the contention of non-contribution for some period, as under Rule (5) of the Employees Pension Scheme 1995, recovery of damages for default in payment of any contribution to the Employees Pension Fund or in the payment of any changes payable under any other provisions of the Act or the scheme, the Central Provident Fund commissioner or such officer as may be authorized by the Central Government, by the notification in the official gazette, in this behalf, may recover from the employer by way of penalty, damages at the rates mentioned. Moreover it should be noted that the Act/Scheme is a beneficent piece of social welfare legislation, aimed at promoting and securing the well being of the employees. Any narrow interpretation of the provisions of the Act which will have the effect of defeating the very object and purpose of the Act. Further it is to be noted that during the course of past service, opposite party has no case that complainant was terminated from service by the employer. In view of the above we find complainant is entitled to get pension at the rate of Rs. 635/- per month plus past service benefit, thus pensionable service from 16.11.1995 is at the rate of Rs. 450/-. Since past service is less than 24 years, complainant is entitled to get pension Rs. 635/- + Rs. 450/- = Rs. 1085/- per month but complainant claimed monthly pension at the rate of Rs. 1,000/- per month from 1997. It is to be noted that she applied for pension only on 15.02.2006 by Ext. P3 and application for monthly family pension was rejected on 16.01.2007 by Ext. P4. This complaint is seen filed on 06.02.2009. Taking the overall situation and evidence available on record, we deem that it will be expedient and justice will be well met if complainant is granted pension at the rate of Rs. 1,000/- per month from 15.02.2006. For arrears, complainant will be entitled for interest @ 9%. Opposite party shall pay the arrear amount after adjusting Rs. 6,730/- already sent to her SB A/c 17335/149 during April 2001. Non-payment of eligible pension would amount to deficiency in service.
In the result, complaint is allowed. Opposite party is directed to pay Rs. 1,000/- as pension per month from 15.02.2006 and in future. For arrears complainant will be entitled for interest at the rate of 9% per year. Opposite party shall pay the arrear amount after adjusting Rs. 6,730/- already sent to her during April 2001. The amounts are to be paid within two months from the date of receipt of this order. In the facts and circumstances of the case, there will be no order as to compensation.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 28th day of February 2014.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
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C.C. No. 31/2009
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - Abdul Salam
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of letter dated 16.01.2007 issued by O.P to complainant.
P2 - Copy of certificate dated 05.04.2001 issued by Green Valley Foods,
Palayamkunnu.
P3 - Copy of application for monthly pension under Employees Pension
Scheme.
P4 - Copy of identity card under Employees’ State Insurance
Corporation.
P5 - Copy of order dated 25.07.2006 of the Court of the Controlling
Authority under payment of Gratuity Act, 1972.
III OPPOSITE PARTY’S WITNESS:
DW1 - G. Shaji
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Copy of subscribers’ ledger card
D2 - Copy of letter addressed to complainant by O.P dated 16.01.2007.
D3 - Copy of details of break in service.
D4 - Copy of statement showing amount to be diverted towards non-
reckonable service.
Sd/-
PRESIDENT
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