SRI.R. VIJAYAKUMAR, MEMBER.
The complaint is filed seeking continuation of Pension and arrears from Feb. 2007.
The case of the complainant is that the opp.party discontinued her pension benefit from 8..2..2007
The case of opp.party is that the pension payment was stopped immediately on realizing a bonafide mistake that excess amount was disbursed to the complainant. The complainant has to remit the excess amount of Rs.12,937/- so that the revised and correct EPS monthly pension can be released to the complainant.
The complainant is examined as PW.1. Ext. P1 to P3 and Ext. D1 marked. PW.2 also is examined on the side of the complainant Ext. D2 marked.
X1 and X2 marked.
From the side of opp.parties DW.1 examined. Exts. D3 and D4 marked.
Heard both sides
Points that would arise for consideration are:
1. Whether there is any deficiency in service?
2. Reliefs and costs.
The Points: 1 and 2
The case of the complainant is that the complainant, a worker holding No.25 in Grading section of Lexman and Co. Cashew Factory, Nellikunnam, entered in service on 1..4..2006 and retired after 10 year service. The opp.party allowed pension amount of Rs.437/- as per EPS Scheme 95. After deducting commuted amount the complainant had got monthly pension of Rs.247/- upto January. No pension amount was sent to the complainant from Feb 2007. Despite the enquiries made by the complainant no proper steps were taken by the opp.parties.
The case of the opp.party is that the complainant who was an EPS A/c holder bearing No.1214/2958 left service on 3..12..2005. On superannuation ,the complainant applied for pension under EPS scheme. The opp.party allowed pension. As per Para 12 [2] of EPS 1995 monthly pension in respect of the complainant computed to Rs.53/- only However due to the miscalculation occurred in the computer which was a bonafide mistake on the part of opp.party, pension was arrived at Rs.247/- per month after deducting commutation amount from the original of Rs.437/- . Realizing the bonafide mistake, the opp.party stopped payment and intimated the facts in detail to the complainant. There is no deficiency in service from the part of opp.party as alleged by the complainant
We have perused the records, the evidence and arguments.
It is admitted that the complainant, a cashew worker holding EPF A/c. No.1214/2958 was superannuated after her 9 year and 9 months service and the opp.party allowed pension for an amount of Rs.437/-. After deducting commuted amount the complainant was a recipient of monthly pension of Rs.247/- after deduction of commuted value of Pension also was admitted. It is further admitted that no pension payment was made to the complainant after January 2007.
The complainant’s contention is that the opp.party illegally stopped payment of pension without any notice to the complainant. She had produced Ext.P1, ESI card, Ext. P2 Pension Sanction order and Ext. P3 her bank Account in which pension transaction were made.
The opp.party’s contention is, the amount of pension was computed as Rs.247/- due to the miscalculation occurred in the computer. As the bonafide mistake realized, the opp.party had constrained to stop payment of pension.
As it is admitted that the complainant entered in service on 1..4..1996 she is a new entrant. As argued by the learned counsel for the opp.party the complainant’s pension is to be determined under para 12 [2] of Employees Pension Scheme 1995 which states “in the case of a new entrant, the amount of monthly superanuation pension or early pension as the case may be, shall be computed in accordance with the following factors namely
Monthly members Pension = Pensionable salary x Pensionable service
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Disputed issues in the present case are regarding pensionable salary and pensionable service. According to the opp.party pensionable salary of the complainant is Rs1283/- and pensionable service is 5years. Pensionable salary and pensionable service are calculated as per Exts. X1, X2 and Ext. D2 and D4. After deducting commuted amount Rs.3000/- and return of capital Rs.5900/- the complainant is entitled to get pension only for an amount of Rs.59/-
According to the complainant the opp.party’s calculation of pensionable salary is totally baseless and against the law and justice. The learned counsel for the complainant argued that cashew workers are minimum wages drawing workers.. The complainant is a grading worker and hence a daily rated worker. Fixed daily rate of salary is basic pay + DA . During the period of 2005 January to December the basic pay was Rs.58.75 and average DA was 24.82. The average daily wages of the complainant was Rs.83.50 . Hence the pensionable salary can be calculated as Rs.83.50 x 30 = Rs.2507.10.
Mode of Determination of pensionable salary is very well explained in para 11 of the scheme as 11[1] “ pensionable salary shall be the average monthly pay drawn [in any manner including on piece rate basis] during the contributory period of service in the span of 12 months preceding the date of exit from the membership of Employees Pension Fund”
Provided that, if a member was not in receipt of full pay during the period of twelve months preceding the day he ceased to be a member of pension fund, the average of previous 12 months full pay drawn by him during the period for which contribution to the pension fund was recovered shall be taken into account as pensionable salary
It is further explained in “para 11 [2] “ if during the said span of 12 months there are non contributory period of service including case where the member has drawn salary for a part of the month, the total wages during the 12 months pay will be divided by the actual number of days which salary has been drawn and the amount so derived shall be multiplied by 30 to work out the average monthly pay.
In the present case even though the opp.party is claiming that they had calculated pensionable salary as per paragraphs 11 [1] and 11 [2] in our perusal we find that the mode of calculation adopted by the opp.party is wrong. The complainant was super annuated and relieved from service on 31..12..2005. As there is non contributory periods of service in the span of 12 months para 11 [2] is applicable in the case. The amount of average per day salary shall be multiplied by 30 to work out the average monthly pay. As argued by the learned counsel for the complainant Cashew workers are minimum wages drawing workers The argument of the complainant that minimum wages per day was Rs.58.75 and average DA was 24.82 during span of 12 months preceding the date of exit from the membership of Employees Pension Fund was not challenged by the opp.party. To calculate average monthly wages this amount should be multiplied by 30. Hence the pension salary of the complainant can be calculated as 83.57 x 30 = 2507.10. The calculation of opp.party that pensionable salary is only Rs. 1283/- is absolutely wrong and against the provisions of the act and against natural justice
Another point of contention is regarding pensionable service. The learned counsel for the opp.party argued that pensionable salary and pensionable service were calculated as per X1, X2 and D2 and D4 . The learned counsel for the complainant argued that the calculation of opp.party is baseless and against the scheme. The unit of service in year. The scheme directs that the unit of service as year ie. the number of year that the contribution received. In the present case the actual service is 10 year and number of years which contribution received is only 9 years. There was no work for the year 2003-04. Hence pensionable service should be calculated as 9 years. Non contributory
Period of the complainant is described in remarks column of Ext. D2..
It is seen that total working days of the complainant divided by 365 is calculated as pensionable service year. The opp.party worked out pensionable service, deducting 5 years from the complainant’s total service period, 9 years and 9 months. The total non working days are calculated as 1670. Eligible and permitted leave, holidays, break of service due to the reasons beyond the control of Employee are also added to the non-working and non-contributory period.
The mode of calculation adopted by the opp.party for the determination of non contributory period and number of years to be deducted from total service is :-
Total number of non working days throughout the service period including holidays and eligible leave etc.
365
In the year 1996-97 the complainant had worked for 250 days. Number of total working days in that year was 270. Loss of working days of the member was only 20. The rest 95 days in that year is calculated as non-contributed period and that period was deducted from pensionable service. This method of calculation is adopted through out her service period. It is pertinent to note here that total loss of working days of the complainant is only 88 days in her total service period of 9 years and 9 month . The method of calculation of pensionable service adopted by the opp.party is absolutely wrong and against natural justice.
There is no provision in the act which entrusts the opp.party to calculate pensionable service in this manner. The opp.parties are wrongly interpreting the provisions of the scheme. As it is a welfare legislation welfare attitude should be taken by the opp.parties.
As per paragraph 4 of the Act ‘payment of contribution [1] the Employee shall pay the contributions payable to the Employees pension fund in respect of the [each member] of the Employees Pension Fund employed by him directly or though a contractor.”
As the cashew Industry is a seasonal Industry there will be seasonal breaks in employment. The employee is not responsible for this break.
Services is calculated in the unit of years and not in the unit of days or months. Determination of pensionable service also is intended to calculate in the unit of years. We find that the opp.party wrongly interpreted the provisions of the act with the intention of maximum minimization of pension to the complainant. As a welfare legislation the provisions should be interpreted in favour of the employee. The intention of the legislature should also be understood. Paragraph 41 of the act interpretation states that “where any doubt arises with regard to the interpretation of provisions of this scheme, it shall be referred to the Central Government who shall decide the same” Hence if the opp.party has any doubt with regard to the provisions of determination of pension the matter can be referred to the Central Government
For all that has been discussed above, we are of the view that there is deficiency in service from the part of opp.party. The points found accordingly. The complainant is entitled to get enhanced pension as per the provisions of the Scheme.
In the result, the complaint is allowed. The opp.party is directed to pay monthly pension adopting calculation as Pensionable salary Rs.2507 x Pensionable service 9
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The opp.party is also directed to pay the arrear amount along with interest at the rate of 6% from the date of this complaint till the date of payment. The opp.party is further directed to pay cost Rs.1500/-
Dated this the 30th day of April, 2012.
I N D E X
List of witnesses for the complainant:
PW.1. - Bhamini
PW.2. - Ramachandran Nair
List of documents for the complainant
P1. - ESI card
P2. - Confirmation letter
P3. - Pass book
X1. - Form 3 A [revised] 1996-97
X2. - Form 3 A [revised] 2005-2006
List of witnesses for the opp.parties
DW.1. - B. Vinod
List of documents for the opp.parties
D1. - Letter sent by PF Authority to the complainant
D2. - Break in service certificate
D3. - Pension payment order
D4. - Monthly salary report.
