IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  18^th      Day of  November  2021

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.54/15

Meenakshy Amma                                                            :                                                    Complainant

W/o Surendran Pillai

Kattumpurathu Veedu,Mannamala,

Kilikolloor P.O,Kollam.

[By Adv.K.Dharmarajan]

V/s

1. Assistant  Provident Fund Commissioner                   :       Opposite parties

Employees Provident Fund Organisation

Old Municipal Building,Chinnakkada, Kollam.

[By Adv.R.Santhosh Kumar]

2. Kilikolloor Cashew Workers Industrial Co-operative

Society Ltd(Q) 347,

Kallumthazham P.O, Kollam-691004.

FINAL    ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

1.       This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.

2.       The averments in the complaint in short are as follows:-

     The complainant was a worker attached to the 2^nd opposite party Cashew workers  Industrial Co-operative Society Ltd.  She superannuated at 20.06.2012 as a Caner checker.  She was also a member of Employees Family Pension Scheme 1971.  Subsequent to  the commencement of Employees Pension Scheme 1995 the entire fund of the Employees Family Pension Scheme 1971 was merged into the fund of EPS 1995.  She entered into service during the year 1986 and became a member of the 1^st opposite party during the financial year 1986-87 and she obtained the receipt usually issued in Form No.23 on remitting the provident fund contribution by way of subscribers annual statement of account of the employee concerned.  Though the complainant ceases to be a member of EPS on the date of superannuation her monthly pension was determined by the 1^st opposite party as per order dated 14.10.13 by vide PPO No.KR/KLM/00088105 which was allotted to her.  Inorder to determine her monthly pension she had her past service from 1986 to 15.11.1995 and her actual service thereafter till 20.06.2012.  As per the PPO referred above it is determined that the complainant is entitled to get altogether Rs.920/- as original monthly pension both for past service period and actual service period.  According to the complainant the above PPO was not in accordance with the law as pensionable service and pensionable salary of the complainant was fixed in a most erroneous manner which amounts to deficiency in service.  In fact the complainant is having past service for the period from 05.04.1986 to 15.11.1995 ie, 9 years 7 months and 11 days and it is to be treated as 10 years.  Her actual service was from 16.11.95 to 20.06.17 which is 16 years 7 months and 5 days which is to be rounded to 17 years.  Therefore the total pensionable service comes to 27 years.  Therefore she is entitled to 2 years weightage also for determining pension.  The complainants monthly wages at the time of commencement of pension scheme 1995 was more than Rs.2500/-.  Therefore past service pension payable as per para 12(3) (b) as shown in B schedule is 85x3.85=327.  The pensionable salary for that period as per para 11(1) proviso of Employees  Pension Scheme 1995 would come to Rs.5931/-.  Hence pension for that period will have to be calculated as per sub para(2) of para 12 of the scheme 1995 ie, 19x5931/70=Rs.1610/-.  Therefore the total pension payable to the complainant is Rs.327+1610=Rs.1937/-.  But the 1^st opposite party instead of calculating as above has fixed pensionable salary in a most illegal and unjustifiable manner.  Hence the complaint.

3.       The 2^nd opposite party remain exparte.  R.K.Ramakrishnan, Assistant Provident Fund Commissioner of the Employees Provident fund Organisation, Sub Regional Office, Kollam on behalf of the 1^st opposite party has filed a detailed written version by admitting that the complainant was an EPF member with A/c No.KR/1491/814 that she joined the scheme on 21.06.1986.  Her date of birth as per records is 21.06.1954.  As such, her membership under EPS,1995 was ceased on 20.06.2012 and the complainant applied for superannuation pension in EPF Form 10D.  The date of birth shown in the said Form 10 D is 1954.  On receipt of Form 10D she was sanctioned monthly member pension @920/- w.e.f 21.06.2012 vide PPO No.KR/KLM/88105 dated 14.10.2013. 

4.       However the 1^st  opposite party would content that the claim of the complainant that she is eligible to get monthly pension @ Rs.1937 is not in accordance with the EPS 1995.  The opposite party has acted only in accordance with the returns and remittance received from the employer relating to the complainant.  According to the 2^nd opposite party the past service of the complainant is only 9 years 4 months and 24 days.  There is a break in service of  1924 days  which is to be deducted from the above 9 years 4 months and 24 days.  Therefore the actual past service is only 4 years 1 month and 20 days.  Past service benefit according to the 1^st opposite party is only Rs.285/-.  The claim of the complainant that her wages as on 15.11.1995 was above Rs.2500/- is incorrect.  The complainant has made the above claim without producing any  documentary evidence to support the same for the purpose of  getting some undue benefit for the past service rendered by her.  According to the 1^st opposite party the complainant is having pensionable service only for 7 years 2 months and 4 days.  The claim of the complainant that her pensionable salary of Rs.5931/- is wrong.  Pensionable salary is the average monthly pay during the contributory period for the span of 12 months preceding the date of exit from the membership of the Employee Pension Fund.  If during the said span of 12 months there are non-contributory period of service including cases where the member has drawn salary for a part of the month, the total wages during the 12 months span shall be divided by the actual number of days for which salary has been drawn and the amount so derived shall be multiplied by 30 to work out the average monthly pay.  Based on the above the pensionable salary of the complainant was arrived at Rs.5889/-.  Therefore the pensionable service benefit of the complainant was calculated to Rs.589/-.  However pensionable service benefit was enhanced to Rs.635/- as per Para 12(3)(i)(a) since the date of commencement of pension is after 16^th November 2005.  The complainant is not eligible for weightage under Para 10(2) of EPS 1995 since her pensionable service is less than 20 years.  The opposite party has stated the mode of calculation of past service pension and pensionable service benefit in detail.  Accordingly the monthly pension payable to the complainant is Rs.635+Rs.285=Rs.920/-.  There is no deficiency in service as alleged and therefore there is no chance of causing any irreparable loss since the pension sanctioned in time in accordance with the existing provisions of EPS 1995.  On the basis of the information/documents submitted by the 2^nd opposite party employer and therefore the complainant is not entitled to get any further benefit.  The complainant is not entitled to get any additional benefit under EPS 1995.  The 1^st opposite party further prays to dismiss the complaint with costs and compensatory costs.

5.       In view of the above pleadings the points that arise for consideration are:-

1.  Whether the 1^st opposite party has calculated past service benefit and pensionable service benefit of the complainant in an illegal and un justifiable manner as alleged in the complaint?
2. Whether there is any deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled to get enhanced monthly pension @ Rs.1937/- and also entitled to get arrears of monthly pension and interest as claimed?
4. Reliefs and costs.

6. Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P3 documents.  Evidence on the side of the contesting 1^st opposite party consists of the oral evidence of RW1 and Ext.D1 document.
7.   Heard both sides.  The learned counsel appearing  for the complainant and 1^st opposite party has filed notes of argument also.

Point No.1&2

8.     For avoiding repetition of discussion of materials these 2 points are considered together.  The following are the admitted facts in this case.  The complainant was a cashew factory worker under the 2^nd opposite party cashew factory.  She entered into service during the year 1986 and the complainant joined the EPS on 21.06.86.  The complainant was superannuated on attaining the age of 58 years on 20.06.2012.  She was a member of both the ceased Employees Family Pension Scheme 1971 and the new Employees Pension Scheme 1995.  Admittedly she is an existing member as per Para 2(vi)of the EPS 1995.  It is also an admitted fact that as per Ext.P2 PPO the complainant has been allowed monthly member pension of Rs.920 w.e.f  21.06.2012.  PW1 who is none other than the complainant has deposed that Ext.P2  PPO is not in accordance with the law as her pensionable service and pensionable salary has been  fixed in a most erroneous manner which according to PW1  amounts to deficiency in service.

9.       Now the question to be considered is whether the opposite party has properly fixed the pensionable service and pensionable salary inorder to arrive at a  proper monthly pension.  The learned counsel for the complainant has argued that the complainant is having a past service of  9 years 4 months and 11 days and it is to be rounded to 10 years and hence  she is entitled to get past service pension @ Rs.327/- (85x3.85).  The learned counsel for the 1^st opposite party has vehemently argued that the complainant is technically having 9 years 4 months and 24 days past service there is a break in service of  1924 days which is to be deducted from the above period.  Therefore according to the learned counsel for the 1^st opposite party the complainant is having actual past service only 4 years 01 month and 09 days and therefore the past service benefit according to the 1^st opposite party is only Rs.285/-.

10.     Now we shall discuss whether there is any break in service as contented by the 1^st opposite party and if so whether it would be deducted while calculating the past service.  Pensionable  service as per Section 10(1) of the EPS 1995 is the service of the complainant in which contribution received or receivable. As per clause 10(2) of EPS, if there is 20 years of pensionable service  a weightage of 2 years is to be added.  Pensionable service as per clause 12(2) formula is replaced by number of years.  Therefore pensionable service is number of years in which contributions received from the employer.  We find no provision in the scheme to convert years into days  and then to days into years as done in the case of the complainant. 

11.     According to the learned counsel for the complainant there is no break in service and hence there is no question of regularization of break in service. On going through the provisions in the Employees Provident Fund Scheme 1995 we are unable to trace out the term break in service and regularization of break in service.  The direction under paragraph 9(b) is that if the contribution for any period has not been received the said period shall count only if the contribution  is received.  According to the learned counsel for the complainant contribution is payable only when wages is paid and the opposite party has no right to   realize any amount    from   the complainant for non working days.  It is further argued that the opposite party has no right to go beyond the scheme.  We find  much force in the above argument.  We have not found any provision in the scheme for realization of the amount from the worker for regularization of break in service.  The term break in service is neither defined nor explained in the EPS 1995.  There is cessation of work for which no wages.  Hence no contribution is to be paid.  On going through paragraph 9(b) we are of the view that the said provision is applicable only if the employer  not paid  wages regularly and only after it is paid that service is to be counted.  Here in this case  for all working days wages paid and for all wages contribution paid.   Hence there is no situation of  nonpayment of contribution.  There is also no provision in the scheme to calculate the working days and convert the same into years since  the service is  internationally accepted as years and not on days.  Minimum days work in an year is also not insisted in the scheme and the opposite parties have no right go  beyond the scheme. Pensionable  service as per Section 10(1) of the EPS 1995 is the service of the complainant in which contribution received or receivable.

12.     Admittedly the complainant was a member of  Employees Family Benefit Scheme 1971 and that membership continued till the commencement of the Employees Pension Scheme 1995.  Further in the Employees Pension Scheme 1995 it is stipulated under Section 2(viii) that pension payable under the Employees Pension Scheme and also includes Family Pension admissible and payable under Employees Family Pension Scheme 1971  immediately preceding the commencement of the Employees Pension Scheme 1995 w.e.f 16.11.1995.   Para 12(2) of the Employees Pension Scheme 1995 provides that in case of a new entrant the amount of monthly superannuation pension or early pension as the case may be computed in the following manner.

          Pensionable salary X Pensionable service

                                      70

13.     The determination of eligible service is stipulated under para 9 of EPS 1995.  In case of a new entrant the actual service shall be treated as eligible service.  Further it is stated that the total actual service shall be rounded off to the nearest year and the fraction of service  for 6 months or more shall  be treated as 1 year and the service less than 6 months shall be ignored.  In the case of existing member the aggregate of actual service and past service shall  be treated as eligible service  provided that if there is any period in the past service for which contribution towards the Family Pension Scheme 1971 has not been received, the said period shall be counted as eligible only if contribution thereof shall be received in the Employees Pension Fund.

14.     The 1^st opposite party has no dispute with regard to the fact that the complainant has joined Employees Provident Fund Scheme on 21.06.1986 and her membership ceased to exist on 20.06.2012.  Therefore it is clear that she is having 9 years 4 months and 11 days past service.  But the learned counsel for the 1^st opposite party has pointed out by relying on the oral evidence of RW1 and Ext.D1 document that the complainant is having 1924 days of non contributory period.  Therefore the above period of 1924 days has to be deducted from her past service of 9 years 4 months and 24 days as contribution has not been received for that period.  We find no merit in the above argument.   It is clear from the  available materials that she worked in the establishment in all working days on which there was work.  The cessation of work if any was not due to the fault of the member of an establishment cannot be called as a break in service at all.  It is true that there may not have employment in certain days but the same is not due to the fault of the worker and it cannot at any stretch of  imagination considered as break in service especially when the opposite parties have no case that the complainant remained unauthorisely absent or she has been retrenched from service for any period. As there is no break in service and regularization of break in service Ext.D1 break in service statement is not acceptable at all.

15.  According to PW1 she is having 17 years of service from 16.11.95 to 20.06.2012.  Inorder to arrive at the figure payable as past service pension the figure shown in the table against column no.2 or 3 whichever is applicable will have to be taken for calculation.  In the case of the complainant her past service is 9 years the figure shown in 3^rd column ie, 85 is only relevant.  As the complainant has got 17 years actual service which is less than 18 years for fixing the relevant factor applicable to the complainant.  Hence as per Table B the relevant factor will be given  against less than 18 years in table B which is 3.845.  Therefore the past service pension  will come to Rs.85x3.845 =Rs.327/- as claimed by the complainant. 

16.     Inorder to calculate actual service pension the actual monthly salary of preceding 12 months will have to be taken from which she ceased to be a member.  Ext.A3 is the salary statement for the period from January 2011 to 31.12.2012.  The total of the above 12 months salary comes to Rs.71177.2.  The average  for 1 month is arrived as follows.  71177.2 ÷ 12=5931 as claimed by the complainant.  The complainant is having a total pensionable service of 26 years(9+17).  As per para 10(2) of 1995 Employees Pension Scheme an employee who has 20 or more years pensionable service shall be increased by adding 2 years.   In other words 2 years weightage has to be given if the employee is having 20 years or more pensionable service.  Therefore she is having 19 years of pensionable service if 2 years weightage is added.  The actual service pension under para 10(2) of the EPS 1995 will be, 

Pensionable salary x Pensionable service/70= 5931x19/70=1609.84.

17.     In view of the materials discussed above the total monthly pension payable to the complainant would come to Rs.1935.69(1609.84+327).  The said amount is rounded to Rs.1937/-. 

18.     As the complainant has not been sanctioned the entire pension as provided under the statute there is deficiency in service on the part of the 1^st opposite party.  There is no provision in the scheme to calculate contribution to the alleged break in service.  There is also no provision to collect past service or actual service contribution for the regularization of service.  But the 1^st opposite party has improperly calculated pension to the tune of Rs.920/- instead of the actual monthly pension of  1937.  As the 1^st opposite party has improperly calculated monthly member pension eligible to the complainant against the statutory provision there is clear deficiency in service on the part of the 1^st  opposite party. On evaluating the entire materials on record we hold that Ext.P2 Pension Payment Order is liable to be set aside and the complainant is entitled to get the enhanced monthly pension at the rate of Rs.1937 and also entitled to get eligible pensionary benefits including arrears of monthly pension with  reasonable interest for arrears of pension. The points answered accordingly.

Point No.3

19.            In the result complaint stands allowed by holding that the complainant is entitled to get monthly pension @ Rs.1937/- from 21.06.2012 onwards.  Ext.P2 Pension Payment Order granting Rs.920/- as monthly pension to the complainant is based on improper and illegal calculation and hence  stands set aside. 

The 1^st opposite party is directed to recalculate monthly pension @ Rs.1937/- from 21.06.2012 onwards and disburse all eligible pensionary benefits including the arrears of pension along with interest @ 6% p.a within 45 days from the date of this order. 

The 1^st opposite party is also directed to pay Rs.3000/- as costs of the proceedings to the complainant.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  18^th   day of  November  2021.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by order

Senior Superintendent

INDEX 

Witnesses Examined for the Complainant:-

PW1    :           Meenakshi Amma

Documents marked for the  complainant

Ext.P1 :   EPF Scheme 1952 subscriber’s annual statement of accounts

Ext.P2  :   Copy of Pension Payment Order

Ext.P3 :   Salary statement for the month of  January 2011 to December 2012

Witnesses Examined for the opposite party:-

RW1    :   Vinoj.A.R

Documents marked for opposite party:-

Ext.D1:Statement of  Break in service

                                                                      E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by order

Senior Superintendent