By SRI.K. VIJYAKUMARAN, PRESIDENT<br /> <br /> This is a complaint filed by the complainant seeking enhance to pension.<br /> <br /> The averments in complaint can be briefly summarized as follows:<br /> <br /> The complainant was a worker of the first opp.party. She joined the employment in 1971. She was terminated from service on 31.12.2002 on attaining 60 years. Prior to retirement for about 5 ½ years she was working on monthly salary. The opp.party 1 and 2 were deducting the complainant’s Provident Fund deduction. The complainant filed an application before the 3rd opp.party for sanctioning pension. But the 3rd opp.party sanctioned only Rs. 202/- as monthly pension. The complainant is having 31 years service and accordingly she ought to have been given Rs.600/- towards monthly pension. Towards Provident Fund accumulation, the 3rd opp.party sanctioned Rs. 28654/- . But the complainant is entitled to get more sum from provident fund. The complainant issued a notice to opp.parties 1 and 3 which were accepted by the opp.parties. In the letter sent by the 3rd opp.party it is stated that the complainant has a break in service of 9 years . It is further stated that upto 1.8.1999 she had a break in reckonable service, of 2 years and 20 days. But the complainant was born on 10.2.1942. Accordingly she completed 58 year on 10.2.2000 and not on 1.8.1999. There is no break in service to the complainant . If the deduction towards Provident fund is not effected it is the default on the part of opp.party 1 and 2 for which legal action ought to have been taken against them . The conduct of the 3rd opp.party is not taking action against them amounts to deficiency in service on the part of the opp.parties. Hence the complaint.<br /> <br /> <br /> Opp.party 1 and 2 filed a joint version. The complainant was an employee of the Kerala State Cashew Development Corporation. She was a pluvial mycadu No.24 at factory No.7 Nooranad of the 2nd opp.party. She joined the service on 14.7.1971 the date of birth of the complainant as per her service records is 1942. On attaining 58 years she became eligible for provident fund pension and therefore sent application in Form NO. 10D to the 3rd opp.party for granting pension to her. The complainant was super annuated from service on attaining 60 years on 31.12.2002. It is understood that the 3rd opp.party has sanctioned pension to the complainant and she is receiving the pension.. There is lno deficiency on the part of the opp.party 1 and 2 . They sent the necessary documents to the 3rd opp.party immediately after the superannuation. The contribution of the complainant was remitting in time . These opp.parties are not liable to pay any amount as alleged.<br /> <br /> The 3rd opp.party filed a separate version contending, interalias, that the complaint is not maintainable. The Employees Provident Fund and Miscellaneous Act 1952 provides for the institution of compulsory Provident Fund , Family Pension Fund and deposit linked insurance fund for benefits of the Employees of the factory and other establishments. Subsequently the Family Pension Fund Scheme 1971 was substituted by the Employees’ Pension Scheme 1995 from 16.11.1995. The complainant joined the Employment Provident Fund Scheme on 1.8.1972 at the age of 31 years she completed 58 years on 1.8.1999 and applied for EPS, 1995 scheme on 26.9.2001. The service particulars forwarded by the employer showed that she had a break in service[No wage earning day of 9 years during the period from 1.8.19712 to 15.11.1995 and 2 years of break in service from 16.11.1995 to the date of superannuation at the age of 58 years ie. 1.8.1999. The complainant’s pension able salary is Rs.850/-. So Rs.333/- has sanctioned as monthly member pension. The complainant opted commutation of 1/3 of her original pension. Accordingly the commuted value of pension which comes to Rs.11,100/- has been paid to her 10% of the pension sanctioned which comes to Rs.33/- is deducted from the monthly pension towards the return of capital premium which was opted by her. The maturity value of Return of Capital amounting to Rs.22,200/- will lbe paid to the nominee Smt. Susheela in the event of the death of the pensioner.. The complainant suppressed all these facts and stated that the settlement of the complainant’s Provident Fund only sum of Rs.28,654/- has been sanctioned PF accumulation including interest a sum of Rs.3441/- on account of wrong remittance of pension contribution by the employer which would be paid to the member on receipt of claim. The allegation that the complainant was born on 10.2.1942 and she attained the age of 58 years on 10.2.2000as further records. The complainant has not never raised any dispute regarding the age factor. There will be no change in eligibility or entitlement of pension even if the date of birth as 10.2. 1942 is accepted instead of 1.8.1941. The member will get pension from 10.2.2000 only she will have to refund pension receive for the period from 1.8.99 to 9.2.2000. The opp.party acted only in accordance with the liability. No documents have been produced by the complainant to substantiate her claim. The complainant is not entitled to get any benefit other than Rs.3441/-. Hence the 3rd opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether the complainant is entitled to get pensionary benefits under EPS 1995.<br /> 2. Whether there is any deficiency in service on the part of the opp.parties<br /> 3. Reliefs and costs.<br /> <br /> <br /> For the complainant PW.1 and 2 are examined. Exts. P1 to P11 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined. Ext. D1 and D2 are marked.<br /> <br /> <br /> <br /> Points <br /> <br /> <br /> This complaint is filed by the complainant seeking enhancement of her pensionary benefits. The complainant seeks enhancement of pension on various grounds. After giving evidence in this case the complainant died on 5.10.2005. Her daughter one Suseela aged 34 years filed an impleading petition which shows that she is the sole legal representative of the deceased complainant. This Forum has allowed the impleading petition and impleaded her as additional second complainant. <br /> <br /> <br /> Now the question is whether a legal representative can maintain a complaint seeking enhancement of pension of the deceased especially when that legal representative is not the spouse but one who has no right over the pension of the deceased. Here the legal representative impleaded after the death of the complainant is her daughter aged 34 years and not the spouse. Under para 16 [3] [c] a child is entitled to get children Pension only up to the age of 25 years. Here the daughter impleaded is 34 years as on the date of impleadment and so is not entitled to get pension of the deceased. She is also not a disabled lady entitled to the benefit of para 3 [e] . It is an <br /> admitted fact that she has received the return of capital for which alone she is entitled as the nominee of the pensioner.<br /> <br /> <br /> As pointed out earlier this complaint is filed seeking enhancement pensionary benefits. The definite contention of the opp.parties is that as per Ext. D1 there is a break in services of about 11 years to the complainant ie. 9 years during past service and 2 years in actual service. There is absolutely no material to show that during the life time of the pensioner or at the time of applying for pension the complainant had regularized her break in service.<br /> <br /> The learned counsel for complainant argued that there is no break in service to the complainant and her contribution to PF was regularly realized by opp.parties 1 and 2 and if the same is not remitted opp.party 3 ought to have taken action against them and from the conduct of opp.party 3 in not taking any action it can be presumed that there is no arrear. According to opp.party 3 the complainant was an employee in a cashew Factory, where the work is dependent on the availability of cashew nut. The pension scheme provides eligibility for the seasonal workers also in order to get the benefit to the employees provided they pay contribution for the non-wage earning days in order to regularize it as pensionable service, but the employer is liable to pay contribution to wage earning days only. According to the opp.party 3 in the case of seasonal factories work for even a day can be taken as a year. But that is not applicable in the case of contribution. The complainant has not produced any document to prove that she had paid contribution for the entire period. In cross examination this fact has been <br /> admitted by PW.1. Therefore the complainant is not entitled to get enhancement in pension.<br /> The additional complainant as pointed out earlier, after the death of the original complainant, has received the return of capital premium. She has no right, what so ever, in the pension. For all that has been discussed above we find that there is no deficiency in service on the part of the opp.parties and that the complaint is not maintainable. Point found accordingly.<br /> <br /> <br /> In the result the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> <br /> <br /> Dated this the 29th day of July, 2008.<br /> <br /> <br /> <br /> <br /> I N D E X<br /> <br /> <br /> List of witnesses for the complainant <br /> Pw.1. - Panchami<br /> PW.2. – Santhamma<br /> <br /> <br /> List of documents for the complainant<br /> P1. – Termination order<br /> P2. - Pension order<br /> P3. – ESI card<br /> P4. – Advocate notice<br /> P5. – Postal receipt<br /> P6. – Acknowledgement card<br /> P7. – Advocate notice to the Regional Provident Fund Commissioner<br /> P8. –Postal receipt<br /> P9. – Acknowledgement card<br /> P10. - Pension particulars<br /> P11. - Supplementary of EPF<br /> <br /> <br /> List of witnesses for the opp.party<br /> DW.1. – Vijayamohanan Pillai<br /> <br /> <br /> List of documents for the opp.party<br /> D1. – Break in Service certificate sent by the factory<br /> D2. – Letter sent by the PF Authority to the complainant<br /> <br />