ADV. RAVISUSHA, MEMBER.
This complaint filed by the compliant for getting pensionary benefits under the EPS Scheme.
The averments in the complainant can be briefly summarized as follows:
The complainant was an employee of the Kesav Cashew Company, Ezhukone prior to 1963 to 2006 till she attained the age of 58 years on 31.12.2006 with Provident Fund contributions under A/c.No.KR/1244/301 and she contributed to the respective scheme under the Employees Provident Funds and Miscellaneous Provisions Act. On her retirement she applied for pension under Employees Pension Scheme 1995 in the above Act and the opp.party denied her Pensionary benefits without any sufficient reason which resulted to insufficiency of service to be extended by the opp.party which compelled the complainant to seek the assistance of this Hon’ble Forum to redress her grievances for the denied pensionary benefits. Hence the complaint.
The opp.party filed version contenting that, the complaint is not maintainable either in law or on facts.
The complaint is bad for non joinder of by necessary part namely the employer of the complainant M/s Kerava Cashew Company, Kollam in order to have a proper adjudication of the claim, the employer is a necessary party. On this ground the complaint is to be dismissed. The minimum eligible service prescribed under paras 12 of EPS 1995 for monthly pension, to pension scheme members is 10 years. The complainant was not a pension scheme member. She would not come under any of the benefits provided under 197 or 1995 scheme.. The opp.party filed supplementary version. The matter was again considered on the basis of the 10 D application for the first time during January 2008 along with form 19 application which was before attaining the age of 58 years. The tota service oof the complainant as a member under the employees provident fund and MP Act 1952 for the period from 1.3.1997 to 31..3..1988 was treated as ceased due to the continuo9us break in reckonable service of more than one year as per the then standing orders. But as per the latest instructions from the Central Office Multiple spells of service separated by a continuous break in reckonable service of one year may aloe be clubbed for arriving eligible service for pensionary benefits. Hence the members EPF service from 1.3.1971 to 16.11.1995 out strips the non eligibility break of less than 10 years. Therefore the complainant was informed to forward the 10D form on a condition that she is prepared to clear the entire arrears of EPF /EPS due along with interest. To this demand the complainant informed that she is not in a position to remit the said amount. Therefore the opp.party has decided to recover the said amount of EPS contribution with interest from the pension arrears of the complainant on sanctioning the same. Accordingly the same was realized and monthly pension is paid. The establishment M/s. Kesava Cashew Co. [KR/124] ceased functioning with effect from 1.1.1997. In this case the complainant had a complete period of non contributory service from 16.11.1995 to 31.12.2005 due to break in reckonable service and no work in the establishment. This fact is evident from the break in service certificate of the employer. In the 1995 scheme there is no provision for regularization of non contributory period. In this scheme to decide eligibility for pension, members service from date of joining this scheme to date of leaving service will be counted. But for calculating amount of pension benefits only the service for which contributions have been received will be counted. Pension calculation of the complainant has to be made as per para 12 [3] as her date of commencement of pension is 31.3.2006. The past service of the complainant is 25 years. The aggregate of actual service benefit and past service benefit = 635 +0=635/- Hence there is no deficiency in service.
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.parties
2. Reliefs and costs.
For the complainant PW.1 is examined and marked Exts. P1 to P6
For the opp.parties DW.1 is examined and marked Exts. D1 and D2.
THE POINTS:
In this case as per Ext. P6 ESI card the year of birth of the complainant is on 1948. When the complainant submitted 10D application the opp.party denied the said application due to the reason that the complainant was not a member under 1971 or 1995 scheme. According to the opp.party the complainant is not entitled to get any of benefits provided under 1971 or 1995 scheme.
Then the opp.party again considered on the basis of the 10D application during January 2006 along with form 19 application which was before attaining the age of 58 years.
Opp.parties version is that the complainant was not a member under 1971 or 1995 Scheme . According to the complainant she was a member under both 1971 and 1995 scheme. For proving that the complainant produced Ext. P5 series . In Ext.P5 series it can be seen that the Employees and Employers contributions were remitted. So from Ext.P5 series, complainant proved that she was a member of 1971 scheme. All the members under 1971 pension scheme were automatically becomes the members of the 1995 scheme. Hence the complainant was a member under 1971 scheme and under 1995 scheme.
Next point to be decided is what amount of pension is entitled to the complainant. The complainant had got 25 years of past service from 3/71 to 15.1.954. As per para 12 [3] since the complainant has rendered more than
24 years of eligible service the past service monthly pension is Rs.800/- Actual service pension:-
According to the opp.party the complainant’s establishment M/s. Kesava Cashew Co. [KR/124] ceased functioning with effect from 1.1.1997 as Ext. D1 report of Inspector of Factories and Boilers. The perusal of Ext. D1 shows that there is no such factory. The fiorst one mentioned in Ext. D1 is CHW/KVR/11/148/88 Kannan Cashew Exports, Ezhukone. The complainant’s Cashew Company mentioned in the complaint is Kesav Cashew Company, Ezhukone. More over Ext. D1 is only a certified copy Original of Ext. D1 is not produced. Opp.party further contented that the complainant had a complete period of non-contributory service from 16.11.1995 to 31.12.2005 due to break in reckonable service and no work in the establishment. But the break in service certificate of the employer is not produced here. Hence the opp.party’s contention cannot be accepted. There is no provision in the statute about break in service contribution and to realize contributions for the non-working strike and closure periods.
Actual Service Pension as per para 12 [3] [a]
Date of joining ;; 16;;11;1995
Date of cessation .. 31.12.2005
Pensionable service .. 11 years 1 month 15 days
Actual service benefit
As per para 12 [3][a] .. 635
Total pension benefit .. 800 +635 = 1435/-
In the result, the complaint is allowed in part . Opp.party is directed to give pensionary benefits to the complainant as shown ie Rs.1435/- per month from 1.1.2007 onwards. Opp.party is also directed to give all other benefits also as per law and Rs.5000/- as compensation and Rs.2000/- as cost to the proceedings. The order is to be complied with within one month from the date of receipt of the order.
Dated this the 27th day of September, 2012.
I N D E X
List of witnesses for the complainant
PW.1. - Samsun
List of documents for the complainant
P1. – Reply to 10D form
P2. – Letter dated 14.6.2006
P3. – Letter dated 10.10.2006
P4. – Pension application form
P5 series . – Form 23 [photocopy 7 Nos.]
P6. – ESI Card
List of witnesses for the opp.party
DW.1. – P.P. Abdul Latheef
List of documents for the opp.parties
D1. – Letter dated25..8..2001
D2. – Subscriber’s Ledger cards[Form No.21.A]
