O R D E R

Sri. Santhosh Kesavanath P., President.

Case of the petitioner's is as follows:

The petitioner is an ex-employee of the 3^rd opposite party which is a covered establishment under the first and second opposite party as per the provisions of EPF and MP Act 1952. The petitioner states that on 31..1..2005. Petitioner retired from 3^rd opposite parties institution on superannuation . According to the petitioner as per the school certificate date of birth of the petitioner is 30..1..1947 . But as per the record maintained by the 3^rd opposite party date of birth of the petitioner's 28..7..1949.

The petitioner prepared the application for pension, on 17..2..2005 and

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submitted the applications for pension as per the date of birth shown in the school records. After accepting the application submitted by the petitioner . A letter of communication was issued by the second and first opposite party to the petitioner stating that as per form No. 2 (nomination and declaration form) the date of birth of petitioner is shown as 28..7..1949. So, second opposite party enquire to the first opposite party with regard to the decesion to be taken in the said matter. . On 27..8..2005 the petitioner filed a fresh application duly attested by the employer by making necessary corrections. Since there was a dispute with regard to the date of birth of the petitioner. Second opposite party has given necessary direction to its enforcement officer to enquire and report the matter. The enforcement officer of the second opposite party after due enquiry submitted report to the second opposite party stating that actual date of birth of the petitioner is 30..1..1947. According to the petitioner due to his financial crisis he submitted the application reserving the right of getting the superannuation pension. The opposite party had only given reduced pension to the petitioner. According to the petitioner due to the non processing of the papers the petitioner lost the superannuation pension for six months. Petitioner states that since the actual date of birth is 30..1..1947. He is entitled for superannuation pension calculated as date of birth of the petitioner as on 30..1..1947, The petitioner states that since the actual date of birth of the petitioner as per school records on 30..1..1947. The assessment of the pensionary benefits of the petitioner as if his date of birth is on 28..7..1949 is a clear deficiency of service. So, he prays for a compensation for an amount of Rs. 22969/- and also seek direction of

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the Forum to the opposite party to give superannuation pension to the petitioner in future also he prays for such other reliefs forum find just and reasonable.

First and second opposite party entered appearance and filed joint version contenting that the petition is not maintainable . They admitted that the petitioner was an ex-employee of the 3^rd opposite party. According to them the petitioner was a member of employees Provident Fund Scheme with effect from 1..7..1967 and also he was a member of family pension scheme 1971 and employees pension scheme 1995. They contented that petitioner left the service of the establishment on 31..1..2005. So, the petitioner is eligible for the benefit as provided under the scheme. The age of the petitioner as on the date of joining the member of the EPF scheme 1952, is 18 years as on 1..7..1967 as furnished in form No. 9. As per the declaration and nomination form dtd: 24..8..1967, signed in english by the member and attested by the employer, date of birth of the petitioner is shown as 28..7..1949. The petitioner has not raised any dispute regarding the date of birth before commencement of employees pension scheme 1995. Things being so in the form No. 10 D (application for monthly pension) submitted by the petitioner on 11..2..2005, duly signed by the petitioner and certified by the employer, the date of birth was mentioned as 28..1..1947. Seeing the anomalies the petitioner was advised that he was eligible for superannuation pension from 28..7..2007 and asked the petitioner to mark necessary correction in form No. 10 D by changing superannuation pension as reduced pension. The petitioner on 28..3..2005, along with certificate dated 3..1..1974 from Head Mistress, N.S.S High School , issued a letter to the opposite party. In the school certificate date of birth of the petitioner is mentioned in Malayalam Era, ie.

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15..6..122. On the ADALATH conducted by the second opposite party the matter was placed by the petitioner and was not settled. On 1..9..2005 petitioner submitted an application for getting at least redused pension because he was suffering from financial problems. Accordingly reduced pension was released by the petitioner from 26..7..2005. The opposite party contented that once the declaration in form No. 2 is signed by the member and attested by the employer it will not be altered or corrected under any circumstances because it is a signed documents by the member himself and the employer. So the opposite party contented that what ever the date of birth as school certificate or any other records the same cannot be considered for pension payment as instructed by the central office. The opposite party further contented that the decision of an accurate date of birth of an employees will not come under the jurisdiction of the Consumer Forum. So the opposite party prays for a dismissal of the petition with their costs.

The 3^rd opposite party entered appearance and filed version contenting that the petition is not maintainable either in law or on facts according to them they are not necessary party to the proceedings. The petitioner on 1..10..69 joined the service of the 3^rd opposite party. The entries with regard to the service book were entered as per the instruction of the petitioner. And if any mistake is happened that was only due to the negligence on the part of the petitioner. They pray for dismissal of the petition with their costs.

Points for diterminations are:

i) Whether there is deficiency in service on the part of the opposite parties?

ii) Reliefs and costs

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Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A6 documents on the side of the petitioner and Ext. B1 to B8 documents on the side of the opposite parties.

Point No. 1

The moot question to be decided in the case is whether the date of birth of the petitioner can be corrected and superannuation pension can be given to the petitioner as per date of birth shown in the school certificate. The opposite party has a case that the question with regard to the date of birth is not a matter coming under the jurisdiction of the Consumer Fora. Lending support of the said contention of the opposite party they produced a copy of the order of the Hon'ble State Commission rendered in appeal No. 691/02. In the said dictum the Hon'ble State Commission stated that the admission register or a transfer certificate issued by a primary school do not satisfy the proof of date of birth. The said decision is based on the decision reported in AIR 2001 SCW page 2159. In this case the petitioner produced a notification issued from the ministry of the first and second opposite party and said document is marked as Ext. A6. Ext. A6 is dated 12..12..2006 that is after the date of order of State Commission. In Ext. A6 a direction was given to all Regional Provident Fund Commissioners and all officers acknowledge of SROs with regard to the change of date of birth of employees of the Provident Fund members. In the said notification it is stated that in case were a member, who has been issued with a social security number disputes the date of birth the same cannot be entertained unless supported by the valid documentary proof such as:

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1) Certificate issued by the register of Births and Deaths.

2) Any school education related certificate

3) Certificate based on the service records of the Central/State Government

organisation.

4) Passport

So we are of the opinion that a clear direction was given by the Ministry of Labour Government of India. So by virtue of Ext. A6 order first and second opposite parties are bound to accept school education related certificate as proof of exact date of birth. So, we are of the opinion that the non consideration of the school certificate of the petitioner for considering his date of birth forgetting superannuation pension is a clear deficiency of service.

Point No. 2 In view of finding in point No. 1, petition is to be allowed and petitioner is entitled for the relief sought for. Opposite party is ordered to consider date of birth of the petitioner as per school certificate for considering the superannuation pension and other

benefits to the petitioner. Opposite party is ordered to calculate the superannuation pension as per date of birth shown in the school certificate produced by the petitioner. The opposite party is ordered to give the petitioner all the pension dues which are entitled to the petitioner as if his date of birth is on 30..1..1947 (15-6-122 M.E). Petitioner is also entitled for the superannuation pension calculated as if the date of birth of the petitioner is on 30..1..1947 (15-6-122 M.E). Petitioner is also entitled for an amount of Rs. 1000/- as compensation for the deficiency in service on the part of the

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opposite parties. No cost is ordered. The order shall be complied with within 30 days of this receipt of this order.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 30^th day of October, 2008.