IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 31ST DAY OF October 2015
Present: - Smt. G.Vasanthakumari, President
Adv. Ravisusha, Member
Adv.M.Praveen Kumar, Member
CC.No.07/2013
K.K.Chellappan : Complainant
Vilanilathu House
Panavannara
Valacodu P.O
Punalur – 691305
V/S
1. The Assistant Provident Fund : Opposite parties
Commissioner EPFO (M of L, G of I)
Ponnamma Chamber -1
Parameswar Nagar
Kollam – 691001
[By Adv.Anchal.G.Reghu Kumaran Nair, Kollam]
2. The Manager
Harrison Malayalam Plantation
Itself Estate, Venture
Kalthuritty P.O – 691309
[By Adv. Joson Manavalan & T.Ajeesh , Kollam]
ORDER
ADV. RAVISUSHA, MEMBER
The complainant filed this complaint through his agent Sri.Viswambharan. The complainant was an employee of Venture Estate, Florence of Isfield Estate of Harrison Malayalam Plantation as Tapper. He had served 35 years with the estate and retired from service with effect from 18.08.2004. At the time of his retirement his one day salary was Rs.116.51. Pension was granted with effect from 18.08.2004 a sum of Rs.761/-only. The sanctioned pension amount was very less and thereby knocked the door of the Manager. Isfield to do the needful to get his correct pension. But no result revealed, thereby he approached the Labour Commissioner, Thiruvananthapuram on 27/11/2011, 09/12/21.
(2)
In receipt of reply he advised the complainant to appear before the adalath of the EPF at Kollam. . Accordingly approached APFC on 1.2.12 and presented in the adalath on 12.03.2012 in SRPFC Office at Kollam. When there was no intimation from APFC regarding the result of Adalath, a letter was sent to the APFC on 7.5.2012 and same was received by him on 8.5.2012.But no replay received. Thereby as per Information Act 2005,application was given for result of Adalath on 6.6.2012 along with application charges through M.O.But the application was rejected and returned on 18.6.2012.Again application with postal order was sent on 25.6.2012. Reply was given on 24.7.2012 to Kadathur, Thazhava.P.O, Karunagappally. But the content of the letter was very shoken one and only a negative attitude was expressed. A complaint was sent to Labour Commissioner, Trivandrum with copy to EPFO,RD, Trivandrum on 17.9.2012.The letter was directed to EPFCSRO Kollam by EPFO Trivandrum on 4 .10.2012 .But no action found taken by them. As per Information Act 2005, letter was given to S I O,EPFO,SRO,Kollam on 10.11.2012 and 12.11.2012. Further a letter was sent to Manager, Isfield Estate on 11.11.2012 and Labour Commissioner, Trivandrum on 11.11.2012. But no result revealed. It is agreed by the EPF authority that the complainant was a member of EPF with effect from 1.11.1969 and opted for family pension scheme on 28.7.1971.As such entitle for pension scheme 1995.The EPF Pension has to be calculated as per Employee’s Provident Fund and Miscellaneous Act 1952 and the Employees Pension Scheme 1995.In this case the EPF authority has not followed the rules and calculated the benefit in a wrong way thereby losses of Rs.984/-per month with effect from 18.8.2004.There is a total loss in pension. The above act created, mental stress and strain and heavy financial loss. It is clear service deficiency from the part of EPS authority and management. Hence filed this complaint.
1st opposite party filed version contenting that the complainant herein benefited with pension under EPS, 95 with effect from 18/08/2004 wide Pension Payment Order No.46052 dated 14/10/2004. No complaint has been filed till 14/02/2012. Inforder to overcome the hurdle of law of Limitation under Section 24A of the Consumer Protection Act, the complainant sought information under RTI Act 2005. Hence it is submitted that the cause of action arose from 19/10/2004 and the case has been filed only on 03/01/2013 and hence the complaint itself is barred by law of limitation as provided under Section 24A of the Consumer Protection Act and liable to be dismissed.
(3)
That the complainant joined service in the Employees Provident Fund Scheme 1952 on 01/11/1969. As per the records of the 2nd opposite party office as well this opposite party’s office the complainant’s date of birth is 01/11/1947. No family pension scheme was in existence during 1969. Those who are the members of the Family Pension Scheme can opt to join EFPS, 1971. A such the complainant opted to join the Family Pension Fund (EFPF) Scheme, 1971, which was introduced only on 01/03/1971. His membership in EFPS, 1971 was commenced with effect from 01/03/1971.
The wages of the complainant as per the statement of the 2nd opposite party’s office was Rs.245,40/- . That the complainant Shri.K.K.Chellappan, is a pensioner under EPS, 95 and is drawing pension of Rs.507/- with Pension Payment Order No.KR/KLM/46052 with effect from 18/08/2004. The eligible pension was sanctioned to the complainant which came to Rs.761/- per month. The Pension benefits of the complainant were calculated on the basis of the date of birth, wages earned and the date of joining, date of exit etc.
He is having past service of 24 years 8 months and 14 days. As per the break in statement submitted by the second opposite party’s office, that he had a break in service of 3 years 8 months and 12 days during the past service ( ie the period upto 15/11/95) . After deducting the above break in service, his net past service comes to 21 years and 2 days. Similarly, he is having Actual Service of 8 years 6 months and 15 days. As per the break in service statement, he had non contributory period of 365 days, in the pensionable service (ie service after 16/11/1995). After deducting the non contributory period, his pensionable service comes to 8 years. That the pension is calculated in accordance with the pensionable salary, wages etc.
The pensionable salary is arrived as follows:-
Pensionable Salary = 12 months’ salary furnished in form 10D(R1)×30
365
= 24540×30
365
= Rs.2017/-
The member’s Retirement Pension was calculated as per Para 12.4,12.7 of the Eployees’ Pension Scheme 1995 as detailed below:
(4)
- Past service benefit
Past Service: 21 years
Wages as on 15/11/95: Rs.1260/-
Past service benefit in case of pensioners with wages upto Rs.2500/- per month having past service beyond 21 years
= 150× computation factor as per table B corresponding to the period between 16/11/95 to date of exit.
= 150× 2.473
= 371/-
2.Pensionable service benefit
Pensionable service = 8 years
Monthly member’s pension = Pensionable salary × Pensionable service
70
= 2017×8
70
= 231/- which is enhanced to the minimum benefit of Rs.438/-
Therefore, net pension = 371+ 438 = 809/-
His age as on 18/08/2004 is 56 years
“A member if he so desires, may be allowed to draw an early pension from a date earlier than 58 years of age but not earlier than 50 years of age in such cases , the amount of pension shall be reduced at the rate of three percent for every year the age false short of 58 years subject to a maximum of 25% ”.
(Now, the rate of reduction of pension for grant of early pension has been enhanced to four percent)
Accordingly his early pension was arrived to Rs.761/- per month
The member opted for commutation of 1/3 rd (ie 33.33%) of the original pension , which was granted and a sum of Rs.25,400/- was paid to him as commutation of pension vide Pension
(5)
Payment Order. Accordingly his monthly pension was reduced by 33.33% (Rs.254/-). Thus the actual amount of monthly pension payable to the complainant comes to Rs.507/- (761-254). The complainant is not eligible for enhanced rate of pension as claimed. Hence prays for dismissal of complaint.
2nd opposite party filed version contending that the responsibilities of the 2nd opposite party as an employer under the Employees Provident Fund and Miscellaneous Act, 1952 and Employees Provident Fund Scheme had been duly complied by this opposite party. Even the complainant has no case that this opposite party has not made the due contributions or any other lapse or negligence at the instance of this opposite party. This opposite party has duly complied with the statutory obligations and the cause of action for this complaint, has no merit to be maintained against this opposite party. That the complainant had approached the Manager of the 2nd opposite party for recalculation of the pension amount and no action was taken by the manager is herby denied. The calculation of the pension under the EPF Act is the responsibility of the authorities of the 1st opposite party. Any grievance caused to the complainant is not at the instance of this opposite party or due to any negligence of this opposite party. This opposite party is not a necessary party. Hence prays for the dismissal of the complaint against 2nd opposite party.
The points that would arise for consideration are:-
(1). Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
(2).Reliefs and costs?
The evidence in this case consists of oral testimony of PW1, PW2 and DW1 and documentary evidence Exts. P1 to P.43 and D1 to D4.
The Points: Complainant filed this case for getting enhanced pension instead of getting pension Rs.761/-
According to the complainant he has to get Rs.1782 per month as pension from the date of retirement 18/08/2004. Complainant alleging negligence from the part of EPF authorities and management and unfair trade practice.
There is no dispute that the employee joined EPFS 1952 on 01/11/1969 and his date of birth was on 01/11/1947. Both parties agreed that the complainant joined in EPF on 01/03/1971
(6)
and resigned from service on 18/08/2004. As per this, the complainants pleading is that he had 24years 8 months and 14 days past service. But 1st opposite party’s version is that he had a break in service of 3 years 8 months and 12 days. Hence according to the opposite party 1, the complainant had 21 years and 2 days past service. But for proving the break service opposite party 1 not produced any authentic document. Hence according to the provision the complainant had past service of 24 years 8 months and 14 days ie 25 years. As per Ext P2 , wages of the complainant on 15/11/95 was Rs.1260. Past service beyond 21 years and salary upto Rs.2500, the factor is 150. As per para 12(3)(1)(b), the multiplying factor as per table B the past service less than 26 years is 7.117. Considering the above factors the complainant is entitled to get past service pension as per the existing provision is 7.117×150 = 1068. With regard to actual service: - pensionable service is 8 years 9 months ie 9 years. The pensionable service calculated by opposite patry 1 is 8 years, which is not correct.
As per order in 325/2009 of CDRC, Tvm. Since the complainant have more than 20 years of service (34 years), he is entitled to get 2 years weightage. Hence the total pensionable service is 9+2= 11 years. The other point to be found is pensionable salary. As per pay slip issued by opposite party 2 (from Ext.P.32 to P.42) the average monthly pay for pension calculation is Rs.3990. Considering the above factors the complainant is entitled to get actual pension as per the provision ie pensionable salary × pensionable service ie 3990×11 = 627
70 70
Hence the total pension is 1068+ 627 = 1695.
From the amount 3% is to be deducted towards short service pension.
On considering the above facts, there is deficiency in service on the part of opposite party1.
As far as opposite party 2 is concerned DW1 had not deposed that 2nd opposite party had contravened any duties mandated for the Employer under the Employees Provident Funds & Miscellaneous Provisions Act, 1952, or the Employees Pension Scheme, 1995. There is no evidence that notices have ever been issued by the 1st opposite party authorities to this opposite party for contravention of any duties mandated under the aforementioned Act and Scheme. More over complainant also did not adduce any specific evidence against this opposite party to show their deficiency in service.
(7)
Considering the entire evidence we are of the view that there is no deficiency in service on the part of opposite party2.
In the result, the complaint is allowed in part. The 1st opposite party is directed to pay the amount after deducting 3% from Rs.1695/- , as pension to the complainant from the due date and in future. For arrears he will be entitled for interest at 12%. The amounts are to be paid within 1 months from the date of receipt of a copy of this order, failing which the complainant would be entitled for interest at 15% from the date of this order. The 1st opposite party is further directed to pay Rs.2500/- as compensation and Rs.1000/- as cost to the proceedings.
Dated this the 31st day of October 2015.
G.VASANTHAKUMARI:Sd/-
ADV.RAVISUSHA:Sd/-
ADV.M.PRAVEENKUMAR: Sd/-
Forwarded/by Order
Senior Superintendent
I N D E X
PW:1:- K.K.Chellappan
PW.2.-Benil John
DW.1:-Meena.C.Rao
Ext.P.1:-Notice for payment of gratuity of letter to bank
Ext.P.2:- Pension order
Ext.P.3:- Copy of compliant given to Labour Commissioner, TVM
Ext.P.4:-Letter No.2011-2012/1352003 dated 14/02/2012
Ext.P.5:- EPFO.No.2012-13/6106 dated 18/06/2012
Ext.P.6:- Letter dated 25/06/2012
Ext.P.7:- EPFO letter 2012/7543 dated 24/07/2012
Ext.P.8:- Complaint dated 17/09/12
Ext.P.9:-EPFO letter No.2012-13/8166A dated 28/9/12
Ext.P10: RTI information dated 10/11/2012
(8)
Ext.P.11:-Letter dated 12/11/2012
Ext.P.12:-Letter dated 11/11/2012
Ext.P.13:-Letter dated 11/11/2012
Ext.P.14:-EPFO No.2012-13/11672 dated 11/12/2012
Ext.P.15:-EPFO No.2012-13/11673 dated 10/12/12
Ext.P.16:-Form No.14
Ext.P.17:-Copy of cheque No.338109 dated 03/03/2011
Ext.P.18:-Application
Ext.P.19:-Discharge order
Ext.P.20:- Company statement of payment
Ext.P.21:-EPFO No.2011/114 dated 08/09/11
Ext.P.22:-Pension Payment order
Ext.P.23:-Pension Payment Order
Ext.P.24:-Pension details
Ext.P.25:-Pension Payment order
Ext.P.26:-EPF statement scheme 1992/93
Ext.P.27:- EPF statement scheme 1993/94
Ext.P.28:- EPF statement scheme 1996/97
Ext.P.29:-EPF scheme 1952 statement of 2001-2002
Ext.P.30:- EPF scheme 1952 statement of 2002-2003
Ext.P.31:-Pay slip of 14/03/1995
Ext.P.32:- Pay slip of 14/01/2003
Ext.P.33:- Pay slip of 14/02/2003
Ext.P.34:- Pay slip of 14/03/2003
Ext.P.35:- Pay slip of 14/04/2003
Ext.P.36:- Pay slip of 14/06/2003
Ext.P.37:- Pay slip of 14/07/2003
Ext.P.38:- Pay slip of 14/08/2003
Ext.P.39:- Pay slip of 14/09/2003
Ext.P.40:- Pay slip of 14/10/2003
(9)
Ext.P.41:- Pay slip of 14/01/2004
Ext.P42:- Pay slip of 14/02/2004
Ext.P.43:- Form 10 D
Ext.D.1:-Wages copy
Ext.D.2:-Copy of reply notice 2012/7543 dated 23/07/2012
Ext.D.3:-Copy of notice dated 11/12/2012
Ext.D.4:-Copy of reply notice 2012-13/11673 dated 10/12/2012
