KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.740/2015

JUDGEMENT DATED: 05.07.2023

(Against the Order in C.C.No.353/2012 of CDRF, Kollam)

PRESENT:

PETITIONER/APPELLANT:

(by Adv. Pattom K. Ramachandran Nair)

Vs

RESPONDENT:

JUDGEMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is an appeal filed by the opposite party in C.C.No.353/2012 on the file of the District Consumer Disputes Redressal Commission, Kollam (will be referred as District Commission) against the order dated 07.07.2015.  The District Commission had allowed the complaint in part and directed the opposite party to calculate the pensionable service and pensionable salary as per the Employees Pension Scheme and relevant rules and to disburse the same to the complainant.

2.       The case in the complaint is that she was working in Vijayalakshmi cashew company with section number 2753 and PF account number KR/KLM/1380/2753 and she has got twelve years of eligible service.  She had worked continuously on all working days and retired on 29.07.2010 and her last wages drawn is Rs.110/- per day and her pensionable salary is Rs.3,300/-(Rupees Three Thousand Three Hundred only). But the opposite party had fixed the pensionable salary as Rs.1,149/-(Rupees One Thousand One Hundred and Forty Nine. Contribution towards pension was deducted for all twelve years and her pensionable service was assessed as 7 years 4 months and 16 days and her eligible pension as Rs.452/-(Rupees Four Hundred and Fifty Two).  But it was fixed against Employment Provident Funds Scheme 95.  According to the complainant the act of the opposite party amounts to deficiency in service and hence she had sought for a direction to the opposite party to fix the monthly pension @Rs.452/-(Rupees Four Hundred and Fifty Two) per month from the date of retirement along with costs of Rs.5,000/-(Rupees Five Thousand).

3.       The opposite party filed version that the complaint is bad for non joinder of necessary party as the employer was not made as a party to the proceedings.  Though the eligible service is 12 years she had non-contributory period of 1572 days and after 17.03.2009 she was on loss of pay from 18.03.2009 to 28.07.2010 and no contribution was deducted for that period.  After deducting those days, the Eligible service counted for pension was fixed as 7 years 4 months and 16 days in accordance with the data furnished by the employer.

The employees pension on attaining superannuation has to be calculated as per Para 12 (2)of EPS  1995 as shown below.

          The monthly pension =    Pensionable Salary x Pensionable service

                                                                                  70

1)  For 7 years            =   1149x7 =114.90

2)  For 4 months and  =   1149x136 = 6.12

                    16 days         70x365

Total monthly pension=   114.90+6.12=121.02 rounded off as Rupees 121

4.       The complainant had applied for early pension on 29.07.2010 at the age of 53 years.  As per para 12(7) of EPS 1995 it is possible for a member to get an early pension on attaining the age of 50 years and in such cases the amount of pension shall be calculated by reducing four percentage for every year which falls short of 58 years and hence her pension was arrived as Rs.95/-(Rupees Ninety Five only). According to the opposite party the fixation of pension is true and correct and requested for dismissal of the complaint.

5.       Evidence consists of the testimony of the complainant as PW1 and Exhibit P1.  On the side of the opposite party DW1 was examined and Exhibit D1 to D3 were also marked.

6.       The District Commission had reached a finding that the opposite party had adopted a faulty procedure in calculating the pensionable salary and pensionable service by deducting 1572 days as non-contributable service by treating that there was a break in service. According to the District Commission the calculation has to be made in terms of years and not on the basis of days. The cashew factory is seasonal and hence absence of working days cannot be taken as break in service. Therefore, the District Commission reached a conclusion that there was deficiency in service and the complaint was allowed.

7.       In the appeal memorandum the appellant would contend that the lower commission went wrong in fixing the last wages as Rs.110/- per day and pensionable salary as Rs.3,300/-(Rupees Three Thousand Three Hundred). The finding of the District Commission fixing the eligible service as 12 years is wrong as there was break in service. The District Commission went wrong in discarding the Exhibits marked on the side of the opposite party that there was break in service.

8.       Heard the counsel for the appellant and the respondent. Perused the records received from the District Commission.

9.       The complainant had testified as PW1. Exhibit P1 is the Pension Payment order.  Part 1 of P1 shows the eligible service of the complainant as 12 years.  Pensionable salary is also shown as Rs.1,149/-(Rupees One Thousand One Hundred and Forty Nine).  The international unit for calculation of pension is based on the years of service. The procedure of the opposite party to convert the same as days is not in accordance with the EPS 1995. Exhibit D2 is the document issued by the employer which shows that the Complainant had worked in the establishment for a period of 12 years. This establishment being seasonal the absence of work for few days assumes no significance.

10.     She was on leave from 18.03.2009 to 28.07.2010.  The opposite party initially converted the period from years to days and ultimately when pensionable service was fixed it was again converted as years. Such a conversion is against the EPS 1995.  The counsel for the complainant cited the order of the NCDRC in Revision Petition No 2702/2015 in “The Assistant Provident Fund Commissioner Vs Revamma and another” to support his contention. The EPS1995 does not contemplate calculation of pension by converting years to days that too in a seasonal establishment. There is deficiency of service on the part of the opposite party and the District Commission was perfectly correct in allowing the complaint.

11.     The District Commission had appreciated the evidence in its correct perspective and decided the matter. We find no reason to interfere with the order passed by the District Commission. So the appeal fails.

In the result the appeal is dismissed. Parties shall bear their respective costs.

SL