IN  THE  CONSUMER  DISPUTES  REDRESSAL  FORUM,  KOLLAM

            Dated this the  31^st   day of May  2019

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

        Smt. S.Sandhya Rani,Bsc, LL.B ,Member

       CC.No.145/13

Saradamma                                                           :         Complainant

Ajitha Bhavan

Chengamanadu P.O, Kollam.

[By Adv.Murali Madanthacodu]

V/s

1. Regional Provident Fund Commissioner     :         Opposite parties

         Provident Fund Organisation

         Sub Regional Office, Kollam-691001.

        [By Adv.Anchal G.Reghu Kumaran Nair]

2. Managing Director

        Capex, H&C Compound

        Kollam.

       [By Adv.G.Haridas]

FAIR ORDER

E.M.MUHAMMED IBRAHIM , President

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

The averments in the complaint as stands amended  in short are as follows. 

The complainant was a peeling worker, having section number 206 in CAPEX, Chengamanad factory.  The complainant retired on 19/02/12 as per EPS record. PF A/c No. of  the complainant is KR/KLM/0001231/000/0001140.  The complainant after retirement, applied for monthly pension and the opposite party sanctioned a monthly pension of only Rs.1169/-.  The complainant is having an eligible service of 37 years. The complainant had worked continuously in all working days except allowable leave.  The complainant has also produced true copy of  pension payment order.  The complainant was a piece rated worker and the total wages drawn by the complainant during the last

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12 months is Rs.40581/- and total number of days worked is 194.  Hence pensionable salary of the complainant is Rs.6270/-.  But the   1^st   opposite     party     calculated     pensionable  salary as   Rs.3015.  The   complainant  has an actual service of 16 years and the complainant worked in all these years.  But in 2001 there was no work in the factory and hence in 2001, contributions were not paid.  Thus the pensionable service is 15 years.  The 1^st opposite party calculated pensionable service as 4 years which is untrue and against the scheme.    The    complainant   is  eligible  to  get an actual pension of Rs.1344/- and a past service pension of 534/-.  The past service of the complainant is 20 years 9 months and 15 days which is admitted by the 1^st opposite party and the complainant is eligible to get a monthly pension of Rs.1878/-. But the 1^st opposite party sanctioned a monthly pension  of only Rs.1169/-.  The above action of the 1^st opposite party is against the scheme and hence there is  deficiency in service on the part of the opposite parties.

          Opposite party No.1&2 resisted the complaint by filing separate objection.

          In the objection/version filed by  1^st opposite party  it is admitted that the complainant was an employee under  M/s CAPEX, Chengamanad factory with EPF A/c No.KR/1231/1140  and retired  from service on 19.02.2012 and  that she had applied for monthly pension.  Accordingly the 1^st opposite party has sanctioned monthly pension of Rs.1169/-.  However the 1^st opposite party would deny the claim of the complainant that she was continuously worked in all working days and would content that there is break in service during her service under the 2^nd opposite party who reported that fact to 1^st opposite party.  The 1^st opposite party  would further content that the eligible service of the complainant is 37 years after regularisation of her break in service during the past service.  Only in the case of existing member the aggregate of actual service and the past service has been treated  as  eligible service,  provided that if there is any period

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in the past service for which the contributions towards the Family Pension Scheme, 1971 has not been received, the said period shall not be counted as eligible service.  According to the 1^st opposite party the Existing Member means an existing employee who is a member of the Employees Family Pension Scheme 1971.  It is further contented that the complainant has break in service of 5448 days out of which 5083days were regularised by diverting Rs.23,153/- from EPF Account to pension fund.  The break in service of 365 days during 83-84 was not regularised since the  factory  had not worked during that  period.  Therefore the past service of the complainant is only 20 years, 9 months and 14 days rounded off to 21 years.  As the date of joining service is 16.11.95 and date of exit is 19.02.2012, the actual service is 16 years 3 months and 3 days.  The aggregate of the above two  would comes to 37 years 17 days which is rounded off to 37 years only.  Hence the eligible service of the complainant is 37 years after regularisation of break during past service.

          The pensionable salary is calculated by the complainant as Rs.6270/- is wrong.  The  average of 12 months salary before the date of exit is calculated as Rs.3015/-.  But  there was  break in service of 4374 days from 16.11.95  to  the date of exist which is to be deducted and the net service will be 4 years 3 months and 13 days.  The  1^st opposite party would admit the claim of the complainant that she is eligible to get past service pension of Rs.534/-.  But the statement of the complainant that she is eligible to get benefit of Rs.1344/- towards pension for the period of pensionable service rendered from 16.11.95 to the date  of exist according to the opposite party is  not correct.

           Pensionable Salary  is the average monthly pay drawn during the contributory period of service in the span of 12 months preceding the date of exit from the membership of the Employees Pension Fund.  If  during the said span of 12 months there are non-contributory periods of service including cases where  the  member has drawn   salary   for  a  part of the month, the total wages

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during the 12 months shall be divided by the actual number of days for which salary has been drawn and the amount so derived  shall  be  multiplied  by  30  to  work  out  the  average  monthly  pay.  The pensionable salary of the complainant was arrived at according to  the data furnished by 2^nd opposite party ex-employer of the complainant @ Rs.3015/-.  The claim of the complainant that she is having 15 years of pensionable service appears to be incorrect.  As per the statement filed by the 2^nd opposite party/employer the complainant is having non contributory period of  4374 days during  the  period from 16.11.95 till the date of exit including the full year of 2001, during which the factory   had   not   worked   as   admitted   by the complainant.  Pensionable benefits have been calculated according to the service rendered by the period from 16.11.95 till the date of exit is proper. As the date of commencement of the pension of the complainant is after 16.11.95 her pension for the period of pensionable service is  to be calculated according to the formulae:-

                             Pensionable salary X Pensionable Service

                                                          70

or Rs.635/- whichever is more as provided in  paragraph 12(3)(i)(a).  As the pension according to the formulae was only Rs.185/- the benefit was enhanced to Rs.635/- which is  the minimum amount payable as per above provisions.

The 2^nd opposite party who is the employer of the complainant would admit that she was an employee at the 1^st opposite party that on 28.12.12 she applied for superannuation pension between 1984 and 2012 February the complainant has engaged in duty only for 2986 days out of 3010 days.  Apart from that while submitting 10 D Form on attaining the age of 58 years she filed a declaration and affidavit praying to deduct the amount from her  PF account towards pension fund for getting pension .  After getting the complaint amended the 1^st  opposite party filed additional version by contenting that the contention of   the complainant   regarding   regularisation of break in service is not correct. 

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As per the  provisions under Paragraph 9(b) of the EPS 1995 if there is any period in the past service for which the contribution towards the Family Pension Scheme 1971   has   not   been   received   the  said period shall count as eligible service only if the contributions thereof has been received in the employees pension fund.  Accordingly a sum of Rs.23153/-  was  diverted from the Provident Fund account  of the complainant to her pension fund.  The contention of the complainant that she has no information regarding the deduction of  the  amount  from  PF  a/c  is  not  correct  since the deduction was made after obtaining her consent.  A copy of the consent letter dated 28.02.12 is also produced along with additional version.

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

1. Whether the calculation of pension made by the 1^st opposite party is in accordance with the provisions of the EPS 1995?
2.  Whether there is any deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled to get declaration as prayed for in relief No.1&2?
4. Whether the complainant is entitled to get back Rs.23153/- with interest which is deducted from her Provident Fund account by the 1^st opposite party?
5. Relief and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 , Ext.P1 to P4.

Evidence on the side of the 1^st opposite party consists of the oral evidence of DW1, Ext.D1 and D2 documents.  Opposite party 2 has not adduced any evidence either oral or documentary.

Heard both sides.  The learned counsel for the complainant and 1^st  opposite party filed notes of  argument and additional notes of argument.

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Point No.1 to 4

For avoiding  repetition of  discussion of materials these 4 points are considered together.  PW1 is the complainant/ex-employee in this case.  She filed affidavit in lieu of chief examination by re-iterating her averments in the amended complaint.  Ext.P1 to P4 has been marked through this witness.  Ext.P1 is Pension Payment Order.  Ext.P2 is the break certificate.  Ext.P3 is the salary certificate  and Ext.P4 is the Provident Fund receipt of the year 2011-12.  Though PW1 has been  subjected to severe cross examination by the learned counsel for the 1^st opposite  party  nothing  materials has been brought out to disbelieve her version in the chief affidavit.  It is brought out in the re-examination and cross examination by the learned counsel for the 1^st opposite party with the permission of the forum that the alleged consent letter is written in English and she is  unaware of the content of that letter and however she would admit that she has put her signature by writing her name in English.  According to PW1 she is having no sufficient knowledge to read and understand English.

DW1 is Meena.C.Rao, the Employment Officer, Employees Provident Office, Sub-Regional Office, Kollam.  She has also filed affidavit by re-iterating the contentions in the version and additional version and also in tune with the contention of the 2^nd opposite party.  She further identified the break in service statement which is marked as Ext.D1 and copy of the consent letter which is marked as Ext.D2.  However she would admit during cross examination that as per Ext.P3 salary certificate Pensionable salary is Rs.6270/-.  But the 1^st opposite party has not calculated  the pensionable salary to the tune of Rs.6270/-

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The learned counsel for the complainant has argued that the contention of the opposite party to the effect that  out of the total past service  of 21 years 9 months and 14 days there is a break in service of 548 days,  that for regularisation of this break in service Rs.23153/- is necessary and the opposite party has diverted this amount from the PF account of the complainant etc. are not legal and proper.  According to the learned counsel for  the complainant the above action of the opposite party is against the scheme   hence illegal and unsustainable.   Therefore the complainant is entitled to get back  the above amount with interest and penal interest. 

On going through the provisions in the Employees Provident Fund Scheme 1995 we are unable to trace out the term break in service and regularisation of break in service.  The direction under paragraph 9(b) that if the contribution for any period between Family Pension 1995 has not been received the said period shall account only if the contribution  received.  According to the learned counsel for the complainant contribution is payable only when wages is paid and the opposite party has  no  right to realise any amount from the complainant for non working days.  It is further argued that the opposite party has no right to go beyond the scheme.  We find  much force in the above arguments.  We have not found any provision in the scheme for realisation of the amount from the worker for regularisation of break in service.  The term break in service is neither defined nor explained in the EPS 1995.  There is cessation of work for which no wages.  Hence no contribution is to be paid.  On going through paragraph 9(b) we are of the view that the said provision is applicable only if the employer  not paid  wages regularly and only after it is paid that service is counted.  Here in this case  for all working days wages paid and for all wages contribution paid.  Hence there is no situation of non payment of contribution.  There   is   also   no   provision   in   the scheme to calculate the

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working days and convert the same into years since  the service is  internationally accepted as years and not on days.  Minimum days work in an year is also not insisted in the scheme and the opposite parties have no right  beyond the scheme.  As per Ext.D1 document out of 16 years service 15 years contribution has been paid.  In one year ie, 2001 there was no work at all and therefore no contribution has been paid that one year  has been deducted.  In the circumstance pensionable    service   is 15    years    even   as per Ext.D1.  In view of the materials available on record the  deduction of Rs.23133/- from the account of the employee is illegal and liable to be refunded with reasonable interest.

          The learned counsel for 1^st opposite party by relying on Ext.D2 letter has argued that the complainant has requested the 1^st opposite party to regularise the service by adjusting the amount.   The said D2 letter is seen signed by the complainant and the  employer  has also  counter signed on D2 letter.  The seal  of the employer is also seen affixed in it.  Therefore  according to the 1^st opposite party the forum is bound to accept D2 letter.  It is crystal clear from the facts and circumstances of the case that the complainant is an illiterate lady.  The letter is neatly written in English in the handwriting of somebody else and not in the handwriting of the complainant.  It is also seen that even the name of the complainant is written above her signature by another person who wrote the said letter  and not in the handwriting of the complainant.  The signature alone is put by the complainant.  Even if Ext.D2 is considered as a letter signed by the complainant it would not estop the complainant from claiming back the amount.  What is  stated  in  the  letter  is that if any amount of EPS contribution  required for regularisation of break in service may please be adjusted by the Pension arrear if any or to debit to her EPS account for the purpose of  monthly pension under the EPS 1995.  The above wording of Ext.D2 letter cannot be  considered as   an   acceptance that there is break in service.  The term break in service and

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regularisation of break in service is not stated in the  Employees Provident Fund Scheme.  In the circumstance we are of the view that the complainant is entitled to get back the amount of Rs.29159/- diverted from her account with reasonable interest.

          The past service of the complainant is 21 years 9 months.  But the opposite parties would deny the above claim.  It is clear from the available materials that the complainant worked  continuously throughout her service  and paid contribution promptly.  No amount of contribution was due to be paid by the complainant or the employer.  Therefore as per Clause 12(3)(b) amount in column No.2 is 150/-.  Actual service is 16 years 3 months and 3 days.  Hence the factor in  Table B as per 13(3)(b) is 3.560.  Therefore the past service pension is Rs.534/- as claimed by the complainant.

          Pensionable  service as per Section 10(1) of the EPS 1995 is the service of the complainant in which contribution received or receivable. As per clause 10(2) of EPS, if there is 20 years of pensionable service  a weightage of 2 years is to be added.  Pensionable service as per clause 12(2) formula is replaced by number of years.  Therefore   pensionable   service   is  number of  years  in which contributions received from the employer.  There is no provision in the scheme to convert years into days  and then to days into years.  The claim of  the complainant  that she is having 16 years of actual service.  But during the year 2001 no  contribution was paid.  Hence as per  Ext.D1 document pensionable service of the complainant is only 15 years.  The 1^st opposite party would content that the total service of 16 years 3 months has to be reduced to 4 years 3 months is highly unfair and unjust and the same cannot be acceptable at all. 

Pensionable salary is to be  calculated according to the provisions under paragraph 11(2) of EPS.  As per Ext.P3 document  which is a statement filed by the    employer    to    the  1^st  opposite party  and  the  pensionable salary  of the

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complainant is Rs.6720/-.  The total wages during  12 months span shall be divided by the total number of days for which salary has been drawn and the amount derived shall be multiplied by 30 to work out the average monthly pay. Accordingly  total wages for 12 months is 40581/-.  The total no. of working days was  194.  Therefore  per day wages is Rs.209/-(40581÷194).  As per Clause 11(2) of EPS 1995,  total wages of 12 months ÷ total working days x30 is the pensionable salary.

According to the 1^st opposite party the pensionable salary is only 3015. It is crystal clear that there is error  in the calculation of Pensionable Salary by the opposite parties.  Hence there is deficiency in service on the part of the opposite parties.

The actual monthly pension as per clause 12(2) of EPS 1995 is :-

                   Pensionable salary x Pensionable service

                                                                                30     

Since the complainant is an existing member the monthly member pension is the aggregate of past pension and actual pension which is 534+1344=1878/-.  However it is seen from the available materials that the 1^st opposite party has sanctioned only Rs.1169/- and therefore the complainant is entitled to get monthly arrears of pension @ Rs.709/-(1878-1169) from 20.02.2012 onwards along with interest.  As the complainant has sustained mental agony apart from financial loss she is entitled to get a reasonable compensation and costs of the proceedings due to the miscalculation of the amount by the 1^st opposite party. The points answered accordingly.

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Point No.5

  In the result the complaint stands allowed by holding

1. that the complainant is having a past service of 29 years and 9 months  without diverting any amount from her account. 
2. It is further held that the complainant is having a  pensionable service of 15 years and pensionable salary of the complainant is Rs.6270/-. 
3. The complainant is entitled to get a monthly member pension  of Rs.1878/- and also entitled to get monthly arrear of Rs.709/- right from 20.09.12  along with  interest at the rate of 9% per annum till realisation. 
4. The 1^st opposite party is further directed to return the amount of Rs.23153/- diverted from her account with interest @9% p.a from the date of complaint till  realisation. 
5. The 1^st opposite party is directed to pay Rs.5000/- as compensation and also directed to pay   Rs.5000/- as costs of the proceedings.

The 1^st opposite party is directed to comply with the above direction within 30 days from the date of receipt of a copy of the order failing which the complainant is entitled to recover the amounts stated under relief (c) to (e) with interest @ 12% per annum from the date of complaint till realisation with costs Rs.5000/- from opposite party No.1 and from the assets of opposite party  No.1.

Senior Superintendent is directed to sent free copy of the order to all parties concerned as provided under regulation 21(1) of the Kerala Consumer Protection Regulations 2005.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   31^st   day of  May 2019.     

E.M.Muhammed Ibrahim:Sd/-

            S.Sandhya Rani:Sd/-

              Forwarded/by Order

Senior Superintendent

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INDEX

Witnesses Examined for the Complainant:-

PW1                     :   Saradamma      

Documents marked for the  complainant

Ext.P1                  :   Copy of Pension Payment Order

Ext.P2                  :   True Copy of details of break in service

Ext.P3                  :   True copy of salary certificate 

Ext.P4                  :   True copy of Provident Fund receipt of the year 2011-12

Witnesses Examined for opposite parties:-

DW1                    :    Meena.C.Rao

Documents marked for the  opposite parties:-

Ext.D1                  :    Copy of details of break in service

Ext.D2                  :    Copy of the consent letter

                                                                                    E.M.Muhammed Ibrahim:Sd/-

                                                                                    S.Sandhya Rani:Sd/-

                                                                                    Forwarded/by Order

                                                                                    Senior Superintendent