IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   26^th  Day of  September 2022

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

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

                                                    CC.252/2016

Lathika                                                                 :         Complainant

W/o Raju

Raju vilasam

TKMC P.O

Karicodu,

Kottamkara, Kollam.

[By Adv.B.K.Mohanan Pillai&Adv.Kallada.P.Kunjumon]

V/s

1. Regional Provident Fund Commissioner     :         Opposite parties

          Sub Regional Office

         Parameswara Pillai Nagar

         Kollam-691001.

       [By Adv.G.Reghukumaran Nair]

2. Manager

         M/s Lekshman&Company Cashew Factory

        Kilikolloor

       Kollam.

      [By Adv.K.Ramachandran Nair]

FINAL ORDER

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

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

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

          The complainant was an employee of  the 2^nd opposite party cashew factory from 01.10.1996 onwards.  The 2^nd opposite party deducted her share of provident fund contribution and used to remit the same to the 1^st opposite party along with the share of the employer.  The PF A/c Number of the complainant is KR/KLM/1074/1745.  The complainant continued to remit the provident fund contribution till she retired from service. However during the year 2012 the sight of both eyes of the complaint reduced and she could not be able to continue her avocation in the factory.  Inspite of treatment from ESI hospital and Regional Institute of  Ophthalmology, Thiruvananthapuram her eye sight was not regained.  Hence she could not continue her employment.  Thereafter on 31.07.15 she was compelled to retire from service of the 2^nd opposite party.  She was employed at the factory till 30.05.2013 and thereafter as she fell ill.  She was on medical leave and under treatment and as her ailment was not cured the 2^nd opposite party relieved from her service on 31.07.2015. On 16.09.2015 the complainant filed  a petition to the 2^nd opposite party along with necessary medical board certificate to the 1^st opposite party through 2^nd opposite party.  But without  considering the medical board certificate the 1^st opposite party returned the application for disablement pension to the complainant indicating that the application is defective.  According to the 1^st opposite party she has sustained disablement due to the ailment of her eyes when she was not in service and therefore she is not entitled to get disablement pension.  But the petitioner is entitled to get lesser pension after completing 50 years.  The complainant has worked at the 2^nd opposite party cashew factory for 17 years and her eye sight were lost and she could not continued her avocation from 30.05.2013 onwards.  In the circumstances the rejection of disablement pension by the 1^st opposite party is without  any bonafides and without verifying the medical records.  Hence there is deficiency in service on the part of the 1^st opposite party.  The complainant further prays to pass an order by finding that the complainant is entitled to get disablement pension from 01.08.2015 onwards and allowing her to recover the disablement pension along with interest from the 1^st opposite party and its assets.  The complainant further prays to award compensation to the tune of Rs.10,000/- and costs Rs.5,000/-.

          Opposite party No.1&2 resisted the complaint by filing separate written version.  The 1^st opposite party has filed written version by admitting that the complainant was an employee of 2^nd opposite party and she joined Employees Provident Fund Scheme 1952 and Employees Pension Scheme 1995 on 01.10.1996.  The 1^st opposite party also would admit that the  PF A/c Number stated in the complaint is correct and that the contribution in respect of the complainant was received up to 31.05.2013.  The 1^st opposite party would further admit that the application for disablement pension was rejected stating disablement occurred not while the complainant was in service and would further content that even though the date of leaving employment claimed by the member is 31.07.2015, the contribution towards the EPF and EPS in respect of the member was remitted only up to 31.05.2013.  As per para 15 of EPS 1995 disablement pension can be sanctioned to an EPF member only if he or she is permanently and totally disabled while in service.  But in the instant case the contribution in respect of the complainant was received only up to 31.05.2013.  The head office has clarified the vide letter dated 24.03.1999  that the disablement should have been occurred during the contributing period of employment.  As the complainant has not contributed since 07/2013 till she attaining disablement on 07/2015.  Hence para 15 stated above is not applicable  in respect of the complainant.  However the complainant is eligible for reduced pension on attaining 50 years of age and hence the application seeking disablement pension was returned to the complainant advising her to apply for reduced/early pension  under para 12(1)(b).  There is no deficiency in service on the part of the 1^st opposite party,  as the application for pension was rejected in accordance with relevant provisions.  The opposite party further prays to dismiss the complaint as it is devoid of any merit.

          The 2^nd opposite party filed separate version by raising the following contentions.  The 2^nd opposite party is not a necessary party as no relief is sought against the 2^nd opposite party. However the 2^nd opposite party would admit the averments in para 1 of the complaint to the effect that the complainant was working at the 2^nd opposite party cashew factory right from 01.10.96 and she retired from service on 31.07.2015 as she could not continued her employment due to ailment.  That when she was employed in the 2^nd opposite party cashew factory she started her treatment for the ailment of her eyes.  The 2^nd opposite party would further admit that while she was employed as a worker the 2^nd opposite party deducted share of provident fund and ESI from her wages and deposited the same at the 1^st opposite party along with the share of 2^nd opposite party and that was continued till 30.05.2013 that the complainant has forwarded an application for disablement pension through the 2^nd opposite party.  The 2^nd opposite party has not committed any deficiency in service in connection with her employment at the 2^nd opposite party institution.  The 2^nd opposite party would further pray to dismiss the complaint with its costs.

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

1. Whether the rejection of the disablement pension by the 1^st opposite party is legal and proper?
2. Whether the complainant is entitled to get disablement pension from 31.07.2015 onwards?
3. Whether there is deficiency in service on the part of  opposite parties No.1&2?
4. Whether the complainant is entitled to get compensation from opposite parties  as claimed?
5. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 to 3 and Ext.P1 to P8 documents.Evidence on the side of the 1^st opposite party consists of oral evidence of DW1 and Ext.D1 to D5 documents.

Both sides have filed notes of argument.Heard both sides.

Point No.1to3

          For avoiding repetition of discussion of materials these 3 points are considered together.  The following are the admitted facts in this case.  The complainant was an employee of the  2^nd opposite party cashew factory from 01.10.1996.  She  worked as such till 30.05.2013 and relieved from service on 31.05.2015 due to her ailment.  The complainant applied for disablement pension as per para 15 of the EPS 1995.  The 1^st opposite party rejected her application for disablement pension by finding that she is ineligible for the same and also by finding that she is eligible for getting reduced pension as envisaged in para 12(1)(b) of  the EPS 1995 and she was advised to apply for the same on her attaining the age of 50 years.  There is also no dispute with regard to the fact that the complainant was an employee  covered under all schemes provided under the EPF and Miscellaneous Provisions Act 1952 right from 01.10.1996.  The 2^nd opposite party who was  employer realized the required contribution from wages earned by the complainant till 30.05.2013 and remitted the same at the office of the 1^st opposite party along with the share of the employer that the complainant started her treatment of the ailment of her eyes when she was employed as a worker in the 2^nd opposite party cashew factory.

          According to the complainant the rejection of her application for disablement pension is against facts and circumstances and the provisions of the scheme and hence there is deficiency in service on the part of the 1^st opposite party.  The 1^st opposite party resisted the above claim of the complainant by relying on Ext.D1 medical board certificate and argued that disablement sustained only on 31.07.2015 and her contribution towards the EPS 1995 was received only up to 31.05.2013 due to her non employment from 01.06.2013 till 31.07.2015 on which date she left the service.  Hence according to 1^st opposite party disablement occurred during the non employment period and hence it was during the non contributing period of her membership.  It is further contented by the learned counsel for the 1^st opposite party by rely on Ext.D2 clarificatory order of the Additional Central Provident Fund Commissioner that the disablement need be occurred during the employment contributing to the membership of the fund and not extendable during the non employment period of membership if any.  Again by relying on Ext.D3 Break in service certificate issued by 2^nd  opposite party the learned counsel for the 1^st opposite party has argued  that the complainant  worked only for 7 days out of the total 221 working days of the factory during the year 2013-14 and during the year 2014-15,  she has not worked in any single day, though there was 144 working  days during that year.  However it is an undisputed fact that  there was no working days in the factory during the period of 2015.  It is also argued on behalf of the  1^st opposite party that as per Ext.D4 document furnished by the 2^nd opposite party regarding the particulars of the membership from May 2013 onwards would indicate that there was no wages paid or contribution remitted  for the period from June 2013 to July 2015.  It is further argued  that as the 1^st opposite party has acted in accordance with provisions of the schemes and rules there is no deficiency in service in rejecting the application for disablement pension.  In the light of the materials available on record we find no merit in the above arguments.

          The pertinent question to be answered is whether the complainant was in service till she is relieved from service on 30.07.2015 due  to her ailment to both eyes and whether she was having any break in service from 1996 till 30.07.2015.  According to the complainant she had uninterrupted and unblemished service for more than 20 years.  There was no denial of work, suspension, retrenchment or removal from service till she is relieved of on 31.05.2015 and ceases to be the worker due to total loss of sight of both her eyes.  It is brought out in evidence that  the complainant had undergone treatment since 2012 while she was in service and relieved of from service on 31.07.2015 due to her continuous ailment and permanent disability to perform any work for the remaining period of life which is clear from the oral evidence of PW1 and PW3, Ext.P4 and D5 documents.  It is pertinent to point out that the complainant never requested the opposite parties to relieve her from service on 31.05.2015 but as the physical condition ascertained by the medical board to the effect that she is unfit for any job and the same was convinced by the 2^nd opposite party,  the complainant was relieved from her service on 31.07.2015 which is on the basis of her inability and incapacity to continue as a normal employee.  In this connection it is to be pointed out that the Enforcement Officer, Employees Provident Fund Organization who has been examined as DW1 would admit during cross examination  that in Ext.P3 pension application the date of relieving the complainant from service is written as 31.07.2015 and the same was attested by the employer and her date of leaving employment has been accepted by the 1^st opposite party.  DW1 would further admit that Ext.D1 has been obtained in the prescribed form from the medical board wherein it is stated that the complainant is totally and permanently unfit  for employment.  The complainant was intimated vide Ext.D5 letter issued on behalf of the 2^nd opposite party that the petitioner was under treatment from 2013 onwards and the  name of the complainant was in the muster roll till the date of leaving service.

          It is clear from the available materials that the complainant had undergone treatment from the Super Specialty Hospital of the ESIC and she was referred to Regional Institute of Ophthalmology, Thiruvananthapuram since 05.10.2012.  Ext.P5 series and P6  documents would make it clear that even in her ailment the complainant worked during the month of April to July, September 2012 and June 2013 and contributed the funds of the schemes.  It is an admitted fact that cashew industry in Kerala State is a seasonal industry and contribution in any period during an year should be taken as full year contribution as per para 2 of the pension scheme 1995.  It is crystal clear from the available materials that the complainant had contributed to different schemes even during her ailment and while she was undergoing treatment.  In the circumstances we are of the view that the complainant is entitled to get disablement pension from 01.08.2015 onwards and the rejection of the application filed by the complainant claiming disablement pension by the 1^st opposite party is not legal and proper.  Points answered accordingly.

Point No.4

           It is further to be pointed out that though the complainant is eligible to get disablement pension from 01.08.2015 onwards the 1^st opposite party has denied the same by misinterpreting  the provisions of the statute and also without properly considering the documents produced by the complainant along with pension application.  Therefore  we find merit in the case of the complaint that she has sustained much mental agony apart from financial loss. 

           On evaluating the entire materials available on record we find that  the complainant has succeeded in establishing that there is clear deficiency in service on the part of the 1^st opposite party.  In the circumstances the complainant is entitled to get the prayer sought for under relief No.1&2.  The points answered accordingly.

Point No.5

          In the result complaint stands allowed in the following terms:-

1. The 1^st opposite party is directed to sanction and disburse  disablement pension to the complainant from 01.08.2015 along with arrears and interest @ 6% p.a for the arrears till the date of disbursement of the arrears. 
2. The 1^st opposite party is also directed to pay Rs.10,000/- towards compensation and costs of  the proceedings to the complainant. 
3. The 2^nd opposite party stands exonerated as no relief is sought against the employer.

     The 1^st opposite party is directed to comply with the above directions within 45 days from today failing which the complainant is entitled to get the order executed as per the provisions of Section 71&72 of the Consumer Protection Act 2019.

     Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the    26^th  day of  September  2022.

            E.M.Muhammed Ibrahim:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Lathika

PW2  :         Jithin.J.S

PW3  :         Dr.Suprabha.C

Documents marked for the  complainant

Ext P1:        Letter from Employees Provident Fund Organisation,Kollam dtd 13.01.2016.

Ext P2:        Relieving order from 2^nd opposite party dated 04.08.2015.

Ext.P3:        Application for monthly pension.

Ext.P4:        Medical certificate from District Medical Board, Kollam.

Ext.P5 series         : Photo copy of OP tickets.

Ext.P6 series         :Copy of exgratia register(page No.154 to 157)

Ext.P7 series         :Subscribers ledger card and contribution details.

Ext.P8 series         : Break in service certificate, Copy of Form 3(A)- 2012-13 and

       Form 3(A) 2013-14.

Witnesses Examined for the opposite party:-

DW1           :         Vinoj.A.R

Documents marked for the opposite party:-

Ext.D1 (S/O)        : Copy of Medical Certificate from the Medical Board.

Ext.D2(S/O)        : Copy of the clarification dated 24.03.1999 received from Head Office.

Ext.D3(S/O)        :  Copy of  Break in service certificate.

Ext.D4                  : Statement in Annexure III.

Ext.D5                  : Letter dated 21.12.2015.