STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.268/2016

JDGEMENT DATED: 15.04.2024

(Against the Order in C.C.No.312/2012 of CDRF, Kollam)

PRESENT:

APPELLANT:

(by Adv. K. Ramachandran Nair)

Vs.

RESPONDENTS:

(by Adv. James Ninan)

JUDGEMENT

SRI. AJITH KUMAR  D  :  JUDICIAL MEMBER

This is an appeal filed by the 1^st opposite party in C.C.No.312/2012 on the file of the District Consumer Disputes Redressal Forum, Kollam (the District Forum for short) against the order allowing the complaint dated 14.03.2012.

2.       The complainant had approached the District Commission alleging deficiency in service in fixing the pension.  The case of the complainant was that she was working in a factory owned by the 1^st opposite party and she was a member of the Employees Provident Fund with account no.KR/KLM/0002125/000/0001035 and she was regularly remitting her contribution to the provident fund organisation while she was in service.  On 27.01.2012 the complainant had retired from service.  Subsequently, she had approached the 2^nd opposite party for getting pension.  The 2^nd opposite party had issued a pay order by fixing her monthly pension as Rs.920/-(Rupees Nine Hundred and Twenty only). 

3.       The complainant was working as a permanent employee of the factory owned by the 1^st opposite party since 1974 and was having thirty eight years of eligible service.  But the opposite parties had wrongly calculated the pensionable salary of the complainant which caused serious mistakes.  She had approached the 2^nd opposite party to correct the mistake in calculating the monthly pension.  In this background, the complaint was lodged.

4.       The 1^st opposite party had entered appearance and filed version by conceding the fact that the complainant was a worker in their cashew factory at Chirattakonam.  It was also admitted by the 1^st opposite party that all the statutory contributions to the Employees Provident Fund were regularly paid.

5.       The 2^nd opposite party had filed a version that the pension was calculated on the basis of the details furnished by the 1^st opposite party.  According to them, the complainant was enrolled to the Provident Fund from 27.01.1976.  It is also conceded that the 1^st opposite party had remitted the corresponding contribution along with his own share of contribution to credit the same towards the account of the complainant.  The opposite party had calculated the pension on the basis of the details regarding the wages on 27.01.2012 and her date of birth as per records was 27.01.1954.  So she had completed fifty eight years on 26.01.2012 and later applied for Employees Pension which was processed and sanctioned side PPO 82071.

6.       If the complainant had joined in the Employees Provident Fund Scheme since 1974, the 1^st opposite party should have recovered EPF contribution from the wages of the complainant from 1974 onwards which is not seen done in this case.  So it is clear from the EPF Form 09 that all the employees were admitted in the Scheme from 27.01.1976 and her statement regarding the joining of the EPF Scheme is incorrect.  If the complainant was enrolled to the Scheme in….74, she could have filed a complaint and an enquiry could have been conducted by the inspectors of the EPF and appropriate action could have been taken.  There is no irregularity in sanctioning the pension of the complainant and hence the 2^nd opposite party would seek for dismissal of the complaint. 

7.       The District Commission had allowed the complaint in part and directed the 2^nd opposite party to pay actual pension considering the past twenty years of service and actual service sixteen years from 27.02.2012 with correct wages.  A compensation of Rs.2,500/-(Rupees Two Thousand Five Hundred only) and costs of Rs.1,000/-(Rupees One Thousand only) was also ordered by the District Commission.

8.       In the appeal memorandum it is averred that the District Commission has failed to appreciate the facts and circumstances of the case.  The District Commission ought to have found that as per the records produced by the employer, the respondent had a break in service of 3842 days and non-contributory days of 3687 days during her past service.  After deducting all these days, her pensionable salary was calculated as 10 years 1 month and 7 days.  The District Commission, without considering the provisions in paragraph 2(1)(XV) 9 & 10 in EPS 95 stated that the appellant has not produced the break in service certificate as documentary evidence.  At the same time, the District Commission did not consider the version of the appellant without any documentary evidence.  The District Commission has wrongly considered that there is no break in service in past service and no service without salary in the actual service.  The appellant would seek for setting aside the order passed by the District Commission.

9.       The appellant has also filed a petition as I.A.No.1596/2017 to receive additional evidence.  The additional document which is sought to be admitted in evidence is a certificate date 08.04.2016 issued by the employer of the complainant regarding the alleged break in service of the complainant.  The complainant/1^st respondent remained ex-parte though notice was served on her.

 10.    The 1^st opposite party had entered appearance.  The document which is sought to be received in evidence was issued by the Manager of the 1^st opposite party.  The District Commission has made observation that the 2^nd opposite party did not cause production of any document for proving the break in service of the complainant and accordingly the version of the 1^st opposite party was accepted and the impugned order was passed.

11.     In view of the stand taken by the District Commission in rejecting the contention of the appellant for want of documentary evidence, we find that the documents sought to be admitted in evidence may enable the Appellate Forum for a proper appreciation of evidence and the substantial cause raised by the appellant.  So I.A.No.1596/2017 is allowed and the certificate produced by the complainant is ordered to be received as Exhibit D2.

12.     Heard the counsel for the appellant and the 2^nd respondent/1^st opposite party.  Perused the records.

13.     Complainant had testified as PW1 in support of the averments contained in the complaint.  Exhibit P1 is the ESI sanction letter.  The Enforcement Officer of the Employees Provident Fund Organisation was examined as DW1.  Exhibit D1 is the details of the complainant obtained from the checklist in Form 09 of the employer.  The main grievance of the appellant is that the District Commission did not consider the break in service of the complainant.  According to the learned counsel for the appellant, Exhibit D2 is a crucial document which would show that the complainant had break in service.  So the pension has to be calculated by deducting the break in service.  The unit in calculating pension is years.  The appellant wanted a calculation converting the years as that of days and thereafter when the period is reckoned for fixing the pension, a further conversion is made to years and the pension is seen calculated.

14.     Exhibit D1 would show that the complainant was in the service of the 1^st opposite party from 1974 till January 2012.  The establishment operated by the 1^st opposite party is a cashew factory and the activities in a cashew factory is seasonal in nature.  So the employees might not be getting work throughout the year.  When calculating pension, the period has to be reckoned in the unit as years.  If such a calculation is made, it can be seen that the complainant was in service from 1974 to the date of superannuation.  So the calculation made by the appellant is apparently faulty.

15.     This issue was already answered by this State Commission in appeals A 740/2015,A 462/2013 & A 961/2015.  The finding of the State Commission has attained finality in view of the order passed by the National Consumer Disputes Redressal Commission as per the order in RP No.2071/2015 in “The Assistant Provident Fund Commissioner Vs Revamma and another”.   The EPS1995 does not contemplate calculation of pension by converting years to days that too in a seasonal establishment.  

16.     So the contention raised by the appellant is unsustainable.  No rules would authorise the appellant to construe the days worked and to convert the same by way of years when the pensionary service is reckoned.  Such a conversion is an unauthorised one.  The calculation of pension is to be made by construing the years as unit of service.  The appellant has adopted an unauthorised method in converting years as days and to calculate the pensionable service on days basis.  The appellant is expected to get the pension strictly in accordance with the stipulations contained in the EPF Scheme.  Appellant has departed from the procedure contemplated under the EPF Scheme and hence we find that the appeal lacks merits.

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

SL