KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 741/2015

JUDGMENT DATED: 07.06.2023

(Against the Order in C.C. 112/2012 of CDRC, Kollam)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

The Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Bhavishya Nidhi Bhavan, Pattom P.O., Thiruvananthapuram.

              (By Adv. K. Ramachandran Nair)

                                                Vs.

RESPONDENT:

Sreedevi Amma, Ambanathupadinjatepura, Manakkara, Sasthamcotta, Kollam.

  (By Advs. Kallada P. Kunjumon & Dinesh Sajan)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is an appeal filed by the opposite party in C.C. No. 112 of 2012 on the file of the Consumer Dispute Redressal Commission, Kollam (referred as District Commission).

2.  The District Commission as per the order dated 23.07.2015 allowed the complaint and directed the opposite party to calculate the past service pension and the actual service pension of the complainant as per the EPS 95 Scheme and relevant Rules within one month from the date of  receipt of the copy of the order.   Being aggrieved by the above order this appeal has been filed by the appellant who is the Assistant Provident Fund Commissioner, Employees Provident Fund Organization.

3. The case of the complainant is that she is a contributory to the Employees Provident Fund and Miscellaneous Provisions Act 1952 from 1973 and she has got a continuous service of 41 years.  Her past service is 23 years and actual service is 16 years with weightage of 2 years.  She had contributed to the Pension Fund for more than 20 years and on attaining the age of 58 years on 31.12.2011 she was entitled to get pension @ Rs. 1,866/- per month from 01.01.2011 onwards.  But the opposite party had fixed her pension @ Rs. 899/- per month after reducing her contributory service from 01.07.2011 to 31.12.2011.

4.  The opposite party had filed a version that the complaint is bad for non-joinder of necessary parties due to the non-impleadment of the employer. The complainant was a compulsory member under the EPF 1971 Scheme who automatically became a member of the EPF 95 scheme with effect from 16.11.1995.  As per her service records it could be seen that that her date of birth is 01.06.1953 and her date of exit from EPS 95 on attaining the age of 58 years is 31.05.2011.  As per the statement received from the employer it could be seen that the complainant had a break of 6145 days from service and cannot be considered for the non-contributable period of 4278 days. Hence deduction of the break in service in respect of her past service was worked out as 5 years 7 months and 18 days and her pensionable salary was calculated on the basis of the average monthly pay drawn during the contributory period of service in the period of 12 months immediately preceding the date of exit from the EPS 95 as Rs. 899/- per month.  If the complainant is aggrieved by the order passed she has to approach the appellate Forum.  The complaint is liable to be dismissed.

5.  The appellant would assail the order passed by the District Commission on the ground that the complaint is bad for non-joinder of necessary parties.  According to the appellant the District Commission has failed to reckon the break in service in computing the pension and also to appreciate the evidence in its correct perspective for reaching at a proper conclusion.

6.  The evidence of the complainant consists of her testimony as PW1 and Exts P1 to P4.  The opposite party gave evidence as DW1 and Exts D1to D4 were marked.

7.  Heard both sides.  Perused the appeal memorandum and the records received from the District Commission.

8. Though the appellant would contend that the Complaint is bad as the employer is not arrayed as a party it is to be noted that the complainant had never sought for any relief from the employer.  She had also caused production of the necessary documents to prove her contentions.  As long as the complainant never sought for any relief against the employer it cannot be concluded that the complaint is bad for non-joinder of necessary parties.

9.  The second contention advanced by the appellant is that the official act performed by the statutory authorities coming under the Employees Provident Funds Scheme is beyond the scope of the Consumer Protection Act and so the complaint is not maintainable. The legal position is well settled by the authoritative pronouncement of the Apex Court reported in SC (CP) 563 in Regional Provident Fund Commissioner Versus Bhavani wherein the Apex Court declared that a complaint is maintainable before the Consumer Forum with respect to the deficiency of service on the part of the statutory authorities coming under the Employees Provident Fund Act.  So the technical contention raised by the appellant regarding maintainability of the complaint is untenable.

10.  The complainant had caused production of the copy of the Pension Payment Order and the particulars of her pension and marked as Exts. P1 and P2.  She had also caused production of Form No. 23 and copy of the compilation sheet of the subscribers’ annual statement of accounts marked as Exts. P3 and P4.  Ext. P1 produced by the complainant would show her date of birth as 01.06.1953 which fact was admitted by her in court.  The opposite party had caused production of Ext. D3 wherein the date of birth of the complainant is shown as 01.06.1953. Exhibit D3 is a document issued by the employer which contains the date of birth of the complainant.  It would show that the complainant had joined in the pension scheme on 01.06.1973 at the age of 20 years.  The entries contained in Ext. D3 would also tally with Ext. P1. So the materials on record would convincingly prove that the complainant was born on 01.06.1953 and retired from service on 31.05.2011. So the stand taken by the opposite party regarding her date of birth does not appear to be correct. The District Commission had appreciated the evidence adduced by both parties and reached the correct conclusion that the complainant had past service from 01.6.1973 to 15.11.1995 and actual service from 16.11.1995 to 30.05.2011. There is absolutely no reason to interfere with the findings reached by the District Commission.

11.  The next contention advanced by the appellant is that there was break in service of 6145 days which is to be deducted and further deduction of 4278 days is also to be made on the reason that no contributory pension was paid.  The opposite party had placed reliance upon Exhibit D3 to contend that there was break in service for the complainant, but nowhere in Ext. D3 it is noted that there was break in service.  In this connection it is significant to note that the complainant was working in a cashew factory which is a seasonal factory.  As per the Explanation to 9(a) of the Employees Pension Scheme 1995 it is clearly stated that in case of employees working seasonally in any establishment the period of actual service in any year notwithstanding that such service is less than a year shall be treated as a full year.  The entries contained in Ext. D3 would show that the complainant had worked continuously and rarely she had lost days work during her long tenure of service.  Admittedly the complainant was working in a seasonal factory and Exhibit D3 only shows that she had worked for Limited days but the Explanation to 9(a) of the new scheme has to be applied in finding out the eligible service. Therefore the stand taken by the opposite party in curtailing the eligible service of the complainant for the reason that she had worked for a limited days is found unsustainable as her case is squarely protected under the Explanation to 9(a) of the Scheme.  So the opposite party had arbitrarily reduced the eligible service of the complainant in fixing the pension and there is deficiency of service on the part of the opposite party and hence a direction to correct the mistake is inevitable. The order passed by the District Commission in this regard is strictly in tune with the specifications contained in the Employees Provident Fund Scheme 95.

12.  A further deduction of 4278 days is adopted in calculating the eligible service on the ground that no contribution was paid by the employer. Payment of contribution is the concern of the employer. Authority and power was available with the opposite party in causing initiation of coercive measures against the employer in collecting the contribution.  The failure on the part of the statutory authority in causing initiation of proper measures in collecting the contribution from the employer cannot be taken as a ground to deprive an employee from seeking the eligible benefits by resorting to the provisions contained in the new scheme.  So the opposite party cannot deduct the period of eligible service for the reason that no contribution was paid by the employer.  So it is found that the opposite party had committed grave errors in depriving the complainant from receiving the eligible pension by disregarding the specific provisions incorporated in the pension scheme.

13.  The District Commission had appreciated the evidence on record and reached a correct conclusion. Therefore we do not find any reason to interfere with the order passed by the District Commission.  Resultantly the appeal is only to be dismissed.

In the result the appeal is dismissed.  Parties shall bear their respective costs.

AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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