DOF.27.11.2007

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:   President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:              Member

Dated this, the 22^nd  day of   March  2010

CC.194/2007

P.Padmini,Punnakkan House,

P.O.Azhikode, Kannur.                                                Complainant

The Asst. Provident Fund Commissioner,

Employees Provident Fund Organization,                      Opposite party

Fort Road, Kannur.

O R D E R

Smt.K.P.Preethakumari, Member

            This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to give reduced pension with effect from 13.4.04 and Rs.10, 000/- as compensation with cost.

            The case of the complainant is that she was an employee of M/s.United Printing and dying works Azhikal and a member of the Provident Fund maintained by the opposite party with an account number KR.5281/17 and left her employment on 30.11.06. The complainant filed application for reduced pension on 28.2.07 in the proper form, but the same was returned on many occasions and was resubmitted as directed by opposite party and at last on 29.6.07, the application was rejected stating that as per the statutory returns submitted by the employer the date of birth of the complainant is 1.2.59 and hence the complainant will attain the age of 50 years on 1.2.09. But the date of birth of the complainant is 13.4.54 and the same was intimated to the employer and if the employer has taken down any other date the complainant is not responsible for the same. The complainant has produced the certificate issued by the head master of Azhikode North U.P School as a proof of date of birth as per the request of the opposite party. But the Opposite party did not accept the certificate issued by the school authority and relied upon the statement filed by the employer. So the complainant issued a lawyer notice to the opposite party to reconsider the issue. But opposite party stated that the enforcement officer could not verify the school registers since school registers are in torn and worn condition. But the stand taken by the opposite party is illegal and incorrect. Hence this complaint.

            In pursuance to the notice issued by the Forum, the opposite party appeared and filed their version.

            The opposite party admits that the complainant is a member of EPF having account No.KR.5281/17 and she left service on 30.11.06 and the employer submitted statutory return in F.10. The opposite party further admits that they rejected the application since the applicant has not attained the age of 50 as on retirement and directed to apply on attaining 50 years of age on or after 1.2.09. The averment that the date of birth is 13.4.54 cannot be accepted the opposite party has every evidence submitted by the employer of the establishment and the declaration signed by the complainant herself and countersigned by the employer. As per the initial return in F.9 submitted by the employer the age of the complaint is 23 years as on 1.2.82. As such the date of birth of the complainant is 1.2.59. Further the complainant herself furnished her date of birth as 21.1.59 in the declaration in F2 signed by her and counter signed by the employer of the establishment. The complainant has furnished another date of birth in application F.10 D different from that of furnished earlier, the opposite party asked the complainant to produce the extract of school admission register. But instead of extract of school admission register she had submitted a certificate dated 18.5.99 from the H.M.Azhikode North U.P.School stating that the date of birth of Punnakkan Padmini is 13.4.54. So in order to examine further in the matter an enforcement officer was deputed to verify the correctness of the certificate with reference to the original records maintained in the school. The enforcement officer has reported that he could not verify the details since the registers are in worn and torn condition and entries are not legible. The enforcement officer also visited the establishment and obtained a true copy of declaration in F2 dt.26.4.1982 by the petitioner and her date of birth has been clearly stated as 21.1.59. As per direction the complainant has produced a copy of  election identity cared as per which her age is 41 years as on 1.1.98, ie.date of birth is 1.1.57, which is also different from other records. More over there are number of decisions of various consumer courts and High courts upholding the validity of date of birth furnished in declaration in F2? During the course of her membership under the scheme she had not requested for correction of date of birth in the records. The opposite party is unable to accept the change in date of birth after leaving service in view of the following decisions of Supreme Court in General Manger, Bharath cooking coal Ltd. vs. Shibkumar Durshed and in Burn standard Co. Ltd. And another. As per section 20 to24 of EPF. Act and paragraph 35 of Employees Pension Scheme, the central provident fund commissioner is empowered to issue directions in case of any difficulty in implementation of scheme provisions. The complainant has not taken steps to get change the date of birth during his period of service. In appeal No.691/62 in OP.62/0-0 before CDRF, Kollam, and upheld the validity of Form No.2 declaration under EPF and declared the state Consumer Disputes Redressal Commission that the date of birth furnished in the Form 2 could not be disproved on the basis of entry in the admission register and pointed out that the admission register cannot be relied on to prove the date of birth of the complainant.

            The opposite party has relied on the statutory return in Form 2 declaration for correct date of birth of the complaint since the same is furnished by the complainant herself and countersigned by her ex-employer. The complainant has not produced the true extract of school admission register as by the opposite party and the date of birth furnished in voters identity card and school certificate and the records available in the office of the opposite party are contradictory and hence the complaint is liable to be dismissed.

            Upon the above contentions the following issues have been framed for consideration.

1. Whether there is any deficiency on the part of the opposite party?

2. Whether the complainant is entitled for the remedy as prayed in the compliant?

3. Relief and cost.

            The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A11 and B1 to B10.

Issue Nos. 1 to 3

            The complainant’s case is that she was the member of EPF and left her employment on 30.11.06 and on 28.2.07, the application for reduced pension was filed and the same was rejected by opposite party stating that she has not attained the age of 50 years. According to opposite party the date of birth of the complainant is 1.2.1959 and hence she can apply for reduced pension only on or after 1.2.09, the date on which she has attaining 50 years of age. As per the records submitted by the complainant through her employer.  I.e. in Form No.2 the date of birth is shown as 21.1.59 and in Form No.9 age is shown as 23. The form No9 is produced before the EPF along with the declaration in Form No.2. The complainant has taken steps to change the date of birth only after leaving the job i.e. on 28.2.07; during the course of her employment she has not taken any steps to change the date of birth. The Hon’ble Supreme Court in G.M.Bharath cooking coal Ltd. Vs.Shibkumar Dushad and others which was reported in2001 ILR74 it was held  that while determining the dispute in respect to change of date of birth the courts should bear in mind that a change of the date of birth long after joining service particularly when the employee is due to retire shortly which will upset in date recorded in the service records maintained  in due course of administration should not generally be accepted But in the instant case the complainant has produced Ext.A10 letter which was issued by the employer of the complainant United Printing and Dyeing works on 9.3.07, shows that  the date of birth of the complaint is 13.4.54 and  along with this the complainant has produced Ext.A1 certificate issued by the Head Master, Azhikode North U.P.School, also shows that the date of birth of the complainant is 13.4.54. But the opposite party disputed the A1 certificate. Acceding to opposite party they have deputed an enforcement officer to find out the genuinely of the certificate and he submitted his report i.e. Ext.B1. The report says that since the admission register is in a worn and torn condition he could not verify the document. More over the complaint has not taken any steps to prove the Ext.A1 document. No evidence is before us to show that in the information regarding date of birth of the complainant was given to school authorities either by the parents of the complainant or by any one who has special means of knowledge regarding the data of birth of the compliant. No material is before us to show that Ext.A1 is given by HM as per this information. More over no material is available before us to come to a conclusion that the school regiser was maintained by   a public servant in discharge of official duty or by any other person in performance of the duty specially enjoyed by him. So we hold that the entry in the certificate remains away from the range of acceptability so the A1 cannot be relied on to prove the date of birth of the complainant. The complainant again failed to prove the veracity of Ext.A10 document. There is no evidence before us to show that for issuing Ext.A10 document, the employer has based which document. It was the employer who entered the particulars concerning him furnished by the employee in Ex.B2 declaration in Form 2. After having entered in Ext.B1, the date of birth of the complainant as furnished the same by the complaint hrtself is not open to the employer to contend that the date of birth was not correctly entered in Ext.B1. So we hold that the entry in Ext.B2 is binding both on employee and employer and the entries were made in performance of a statutory duty. So we hold that the entries made in Ext.B 2 i.e. 21.1.59 is the date of birth of the complainant in the absence of concrete contra evidence. So the complainant is not entitled to reduced pension as on 13.4.04. But she is entitled to get reduced pension on attaining 50 years of age i.e. after 1.2.09 and the complainant can apply for the same. It is found that there is no deficiency of service on the part of the opposite parties and hence the complaint is liable to be dismissed and order passed accordingly.

            In the result, complaint dismissed. No cost.

                           Sd/-                Sd/-                               sd/-             

                        President                      Member                       Member