Kerala

StateCommission

A/14/353

RAJAMMA - Complainant(s)

Versus

THE REGIONAL PROVIDENT FUND COMMISSIONER - Opp.Party(s)

MURALI MADANTHACODU

27 Jul 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL NO.353/14

JUDGMENT DATED : 27.07.2016

 

(Appeal filed against the order in CC.No.275/2012 on the file of CDRF, Kollam order dated :05.06.2014)

 

PRESENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

SMT.A.RADHA                         : MEMBER

 

APPELLANT

Rajamma,

Choondalil veedu,

Pavithreswaram.P.O

Kollam, Kerala

 

(By Adv.Sri.Murali Madanthacodu)

 

Vs

RESPONDENT

The Regional Provident Fund Commissioner,

Provident Fund Organisation,

Sub Regional Office,

Kollam

 

(By Adv.Sri.K.Ramachandran Nair)

 

JUDGMENT

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

                Appellant is the complainant in CC.No.275/2012 in the CDRF, Kollam. Complainant was a piece rated cashew worker in the Alphonsa Cashew Industries. It is alleged in the complaint that her pensionable salary was Rs.4755/- but the opposite party reduced the pensionable salary to Rs.2703/- Contributions were deducted from her wages regularly and paid to the opp.party during the 15 years of her service but the opposite party reduced her pensionable service to seven years , 11 months and twenty four days. This was against the Employees Pension Scheme. The opp.party by sanctioning monthly pension of Rs.308/- has committed serious deficiency in service. Hence the complaint.

        2.     The opp.party contended that the employer on the basis of whose records pension was sanctioned is a necessary party to the proceedings. The complainant though had eligible service of 15 years, she had 2569 days of non contributory period. Hence her pensionable service is seven years, 11 months and twenty four days. As per paragraph 10 of Employees Pension Scheme 1995 pensionable service of a member shall be determined with reference to the contribution received or receivable on his behalf in the employees pension fund with effect from 16.03.96. Determination of pensionable salary is done as per paragraph 11 of Employees Pension Scheme 1995. If calculated as per paragraph 11 the average monthly wages of the complainant was only 3487 which is the pensionable salary. There is no proof to show that complainant had drawn Rs.4755/- as wages for the 12 months preceding her retirement. The complainant was a new entrant in the Employees Pension Scheme implemented from 16.11.95. Opp.party has sanctioned eligible monthly pension to the complainant. Hence there is no deficiency in service on the part of the opp.party.

3.     The consumer forum recorded the oral evidence of PW1 and DW1 and marked Exts.P1 to P3 and Exts.D1 to D3. On an evaluation of the evidence adduced the consumer forum held that the opp.party had sanctioned pension on the basis of data furnished by the employer and as such there was no deficiency in service on the part of the opp.party. Accordingly the consumer forum dismissed the complaint. Hence the appeal by the complainant.

        4.     Both the pensionable service and pensionable salary are in dispute. It is admitted that the complainant has eligible service of 15 years but her contributory period was only seven years 11 months and twenty four days and as such according to the opp.party her pensionable service was seven  years 11 months and twenty four days and not 15 years as claimed by the complainant. The opp.party arrived at the above conclusion based on the non contributory period of 2569 days in the service of the complainant.  In doing so the opp.party overlooked the fact that the work in a cashew factory is quite seasonal. Contribution is made whenever there is work in the cashew factory. The short question is whether the opp.party is entitled to convert the non working days into non contributory period. No provision in the Employees Pension Scheme authorises the opp.party to calculate non contributory period in terms of days. The opp.party has no case that contribution was not made or received during the period the complainant had worked in the cashew factory. The non contributory period occurred, as revealed by the available evidence because of the nature of the work in a cashew factory being a seasonal one. In a way, paragraph 11 of the Employees Pension Scheme which requires calculation of pensionable salary as monthly salary and the manner in which it is required to be calculated shows that the scheme does not contemplate determination of non contributory period in terms of days. So the opp.party as well as the consumer forum erred in holding that the complainant had only pensionable service of seven years, 11 months and twenty four days. On the contrary, appellant is entitled to pension for the entire 15 years of her service.

        5.     Regarding the pensionable salary both the opp.party and the consumer forum were justified in holding that the available evidence does not justify the claim of the complainant that her pensionable salary was Rs.4755/- . Hence it is unnecessary to disturb the finding of the consumer forum regarding the pensionable salary of the complainant. Monthly pension of the complainant is something to determined and paid by the opp.party. So the employer of the complainant is merely a proper party and not a necessary party to the proceedings. In view of the above conclusions, the appeal is liable to be allowed in part.

        In the result, the appeal is allowed in part. The opp.party is directed to calculate pension for the entire 15 years of service of the complainant and disburse pension accordingly with arrears. Revised order shall be passed by the opp.party sanctioning pension within one month from the date of receipt of copy of this order. The parties shall bear their respective costs in this appeal.

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

 

 

A.RADHA                         : MEMBER

 

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KERALA STATE

CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NO.353/14

JUDGMENT DATED :27.07.2016

 

 

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