IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 18TH DAY OF August 2015
Present: - Smt. G.Vasanthakumari, President
Adv. Ravisusha, Member
Adv.M.Praveen Kumar, Member
CC.No.111/2012
Saraswathy Amma : Complainant
Viswamandiram,
Edanadu
Karamcode
Chathannoor
[By Adv. Kallada.P.Kunjumon, Kollam]
V/S
The Regional Provident Fund Commissioner: Opposite party
Sub Regional Office
Parameswaran Pillai Nagar
Kollam
[By Adv.A.Nizar, Kollam]
ORDER
SMT.G.VASANTHAKUMARI, PRESIDENT
Complainant’s case is that the complainant is a contributory to the Employees Provident Funds and Miscellaneous Provisions Act, as per account No.KR/1400/844, that the employer deducted the required amount from her wages and remitted the same to the above account, that there arose no dispute between the complainant and the employer relating to the deductions, that she got continuous contributory service from 1974 and even now continuing in service, that she being a contributory to the different schemes above, she had applied for the Employees Pensions Scheme 1995, but the opposite party had released only lesser pension and ignored her service and contribution against the schemes under the above Act which amounts to deficiency of service to the complainant and compelled the complainant to seek the assistance of this Hon’ble Forum for the redressal of her grievances and the opposite party denied to extent the real benefit, though she applied for reconsideration, that the complainant rendered a total pensionable continuous service of 37 years from 1974 to 2010 and contributed to the Family Pension Scheme 1971 from her wages till 15/11/95 without any break or cessation and the employer remitted
(2)
8.33% contribution of the wages for the pension fund, in the 1995 Pension Scheme till 31/12/2010, and drawn the salary of Rs.35578/21 together with Rs. 4019/-towards 13 days National Festival Holiday, wages and 14 days leave with wages and thus drawn a total salary of Rs.39598/- for 239 working days attended by the complainant and thus she got the average daily wages @Rs.165/68 during the year 2010 and her penionable salary would come @Rs.4970/- per month and entitled to get the monthly pension @ Rs.1812/- from January 2011 and withdraw pension @Rs.1901/- per month, that she contributed to the fund more than twenty years, that therefore she is entitled to get the benefit of weightage of 2 years, thus , she is entitled to get the pension from January 2011 as shown hereunder :-
Past Service rendered from 1974 to 15/11/95 = 22 years
Actual service rendered from 16/11/95 to 31/12/2010 = 17 years
With weightage of two years
Total pensional service rendered = 39 years
Past Service Pension under para 12(3) (b) = @Rs.605/-
Actual Service Pension under para 12(3) (a) = @Rs.207/-
Pension payable per month = @Rs.1812/-
From January 2011 together with 17.5% interim relief, but the opposite party extended the pension @Rs.879/- from 04/06/2010 and reduced her contributory service from 04/06/2010 to 31/12/2010 inorder to curtail pension without any authority and put the complainant to unnecessary embarrassment and failed to render proper service to the complainant. Hence this complaint praying to direct the opposite party to extent the monthly pension from January 2011 @ Rs.1334/- together with interest @ 12% per annum from January 2011 till realization, to direct the opposite party to extent the widows pension @ Rs.190/- per month, to direct the opposite party to extent 17.50% interim relief to the monthly pension from January 2011, to direct the opposite party to pay compensation to the complainant atleast Rs.10,000/-together with the cost of this proceedings Rs.5000/-
Opposite party filed version contending that the complainant joined the EPFS 1952 on 04/06/2005, that she was a compulsory member under the erstwhile EFPFS’71 and automatically became an EPS’95 member with effect from 16/11/95, that she has completed
(3)
58 years on 03/06/2010, that she is drawing monthly pension under EPS’95 from 04/06/2010 under PPO No.KR/KLM/78003 @ of Rs.879/-, that the allegation that she had uninterrupted continuous service of 37 years is false and hence denied since her service under EPS 1995 ceased on 03/06/2010 on attaining 58 years of age though her service under EPF was continuing, that the complainants date of joining as per this office record and the record of the ex-establishment is 04/06/1975 and her date of birth as per the accepted EPF Form 2 submitted by the employee through her employer is 04/06/1952, that therefore this opposite party has taken the service only upto 03/06/2010, the date on which the complainant Smt. Saraswathy Amma attained 58 years of age, that the statement of the complainant that she was sanctioned with lesser pension is totally false, that during this period of service there were 4785 days of past service break (between 04/06/1975 to 15/11/1995) and this period of break has not been regularized, also there was 1361 days of pensionable service break (between 16/11/1995 to 03/06/2010) altogether 6146 days of break in the entire service of the complainant.(Past service break 4785+Actual service break 1361=6146), that the complainant was sanctioned with eligible pension according to her service and salary drawn, that in this connection it is submitted that the pension was sanctioned without regularizing the past service, that if the pensioner remits Rs.10351/- (upto 31/07/2012) with interest as on date of remittance towards regularization of past service benefit the pensioner will be benefited by Rs.214/- i.e past service benefit will became Rs.458/-instead of Rs.244/- and as such the pension will be enhanced to Rs.1093/- instead of Rs.879/-, that the member may be advised accordingly, that she joined in the scheme only on 04/06/1975, that upto 15/11/1995 contribution was remitted only @ 1.16% of the wages under EFPF scheme 1971 and from 16/11/1995 onwards @8.33% of the wages was paid towards EPS, 95 contribution, that in the Employee’s Pension Scheme , 1995, there is no provision for regularization of non contributory period in pensionable service ie no regularization by remitting contribution from 16/11/1995 onwards, that inorder to decide eligibility for pension under EPS’ 95 member’s service from date of joining this scheme to the date of completion of 58 years of age will be counted , but for calculating the amount pension benefits, only the service for which contributions have been received or receivable will be counted, that monthly pension @Rs.879/- has been released every month including this month to the bank account of the complainant without any delay, that the complainant is regularly receiving the maximum benefits which she is entitled under EPS’95 and there is no deficiency on the part of this opposite party and the complaint is only to be dismissed.
(4)
The points that would arise for consideration are:-
(1).Whether there is any deficiency in service on the part of the opposite party?
(2).Reliefs and costs?
The evidence in this case consists of the oral testimony of PW1 and DW1 and documentary evidence Exts P1 to P4 and D1 to D3.
The Points: The first and foremost contention raised by opposite party is that the complaint is bad for non-joinder of necessary party. It is true that the complaint is bad for non-joinder of necessary party since the employer is not in the party array. But it is well settled that on that ground alone a complaint cannot be thrown away. Here the complainant ought to have impleaded the employer just after the filing of version. But the complainant has not chosen to do so. It is fatal to complainant’s case.
There is dispute between the complainant and the opposite party as to the date of birth of the complainant, the date of entry of the complainant into the service of the employer, as well as the actual date of retirement which is dependent on her date of birth. In this regard, the contentions of the opposite party is to be looked into. As per Ext.P2 (Form 10-D) her date of birth is shown as 1952. It is her year of birth only. But Ext.D2 (Form No.9) shows that she joined the pension scheme on 04/06/1975 at the age of 23 years. Since she had 23 years of age on 04/06/1975 she attains 58 years of age on 30/06/2010. This also tally with the entries in Ext.P4 which shows that her date of birth is 04/06/1952 and her date of joining the scheme is on 04/06/1975. Therefore on attaining 58 years of age she retired on 30/06/2010. There is absolutely no evidence to substantiate the allegation otherwise raised by the complainant. So in the absence of evidence the date of birth and other details recorded in the official records will prevail. It follows that the complainant had past service from 04/06/1975 to 15/11/95 and actual service from 16/11/95 to 30/06/2010. So the number of years of service put in by the complainant will have to be calculated accordingly.
The main contention of the opposite party is that there was break in service of 4785 days during the period of past service and 1361 days during the actual service of the complainant so this non contributory period will have to be excluded in calculating her pension. The contention is taken based on Ext.P.3(a) details of break in service certificate issued by the employer. It is
(5)
seen from Ext.P.3(a) that the complainant had worked on most of the days when there was work in the cashew factory. For example during 1982-1983 there were 40 working days and the complainant attended work on all days, ie 40 days. There are so many years in which the complainant put in 100% attendance. So it is quite obvious that the opposite party wants to reckon the service of the complainant in terms of days and none of the Rules of the employees pension scheme authorizes the opposite party to do so. It is also pertinent to note that the work in
a cashew factory is seasonal. So only when there is work an employee is expected to attend the work. The rules clearly contemplates calculation of service in terms of years and not on the basis of days. Even if the employer failed to remit the contribution, rules require the opposite party to realize the same by resorting to coercive methods and therefore the employee cannot be blamed. It follows that the complainant is entitled to pension as per rules for the past service from 04/06/1975 to 15/11/95 and for the actual service from 16/11/95 to 30/06/2010.
In the result, the complaint is allowed in part directing the opposite party to calculate the past service pension and the actual service pension as per the employees pension scheme and the relevant rules and to disburse the same to the complainant with past arrears. This order shall be complied with within one month from the date of receipt of copy of this order. No order as to cost and compensation.
Dated this the 18th day of August 2015.
G.VASANTHAKUMARI:Sd/- ADV.RAVISUSHA: Sd/-
ADV.M.PRAVEENKUMAR: Sd/-
Forwarded/by Order
Senior Superintendent
I N D E X
PW.1:- Saraswathy Amma
DW1:-Sathyan Nanatt
Ext.P.1:- Copy of Pension Payment Order
(6)
Ext.P.2:-Copy of pension application (Form -10D)
Ext.P.3:-Copy of leave with wages
Ext.P.3 (a):- Break in certificate
Ext.P.4:-Form 23
Ext.D.1:- Authorization letter
Ext.D.2:- Form No.9
Ext.D.3:-True copy of Form No.2
