SRI.K. VIJAYAKUMARAN, PRESIDENT.

          This is a complained seeking enhancement of pension, compensation and costs.

          The averments in the complaint  can be briefly summarized as follows:

          The complainant was a worker of Parvathy Mills, Kollam.  He was a member of the opp.party organization with account No,KR/7/1640.  The complainant retired from service on 8.6.2005.   At the time of retirement he was having 30 years of eligible service.   The complainant is entitled to get pension under the 95 Scheme.  The pension  sanction was to be under section 12 of the EPS 1995.  The Pensionable salary is defined under section 13 of the above Act.    For calculating average  emoluments 12 months salary last drawn prior to the retirement has to be  taken into consideration.  But the opp.party has considered only the salary of the complainant  till 11/1995   for working  out the average emoluments.   Accordingly a pension   of Rs. 923/- alone was sanctioned   even though the complainant is entitled to get much more than that.  The complainant’s salary in during the year 95 was Rs. 1,952/- but in the year 2005  his salary was Rs.4,296/-.  The salary as on 8.6.2005 ought to have been taken for sanctioning pension.   The conduct of the opp.party in taking into consideration the 95 salary is against the provisions of law.   The complainant though inform the opp.party in person and by letters for correcting the  calculation of pension the opp.parties did not take any action and hence the complaint.

          The opp.party filed version contending as follows:   The complainant has been  enrolled to Employees Provident Fund Scheme, 1952 from 1.9.1974.  He was brough under the Employees Pension Scheme 1995  with effect from 16.11.1995.  His membership in EPS 1995 ceased on 8.6.2005 on attaining 58 years.  The entitlement  towards monthly pension under EPS 95  is described in para 12 [3] [b] read  with para 12 [4] [b]for his past service entitlement.  Accordingly the eligible amount of Rs.150/- prescribed under  para 12 [3] [b]  ismultiplied by the factor in Table B as specified in para 3 [c]   The complainant wages for past service under EFPS is Rs.1952/- and his pensionable salary under the EPS 1995  is Rs.  4296/-.  Accordingly the complainant is entitled to get a sum of Rs.371 as past service entitlement.  The complainant’s pension for actual service under 12[2]  comes to Rs.552/-  that is pensionable salary  into pensionable service devided by 70.  The complainant has a past service of 20 years and actual service of 9 years.  Accordingly the pension of the complainant comes to Rs.923/- that is past service pension of Rs.371/-   The complainant had opted for return of capital under para13 as  such he is entitled for 90%  of the original pension which come  to Rs.831/- only after deducting Rs. 92 towards 10%  towards return of capital..    The complainant has totally misconceived the Scheme and alleges that the average pay in 1995 only is considered  for assessing the pension.  Where is incorrect His pay for 95 is considered for assessing the pension portion due under the EPS 1995for his service  upto 16.11.1995..  The pay for 2004-05 and 2005-06 has been taken for calculation of pension due for the service rendered under the Scheme between 16.11.1995 to 8.6.2005.  Both the pay of Rs.1952 and Rs.4296/-  have been taken as a factor for arriving  the pension under the EPS 1995.  The complainant’s  allegations that his pension is calculated by taking the salary as Rs.1952 only is totally wrong.  The complainant has been given the due pension he is entitled under the EPS 1995.  The opp.party had discharged in duty in   time  perfectly.  Therefore the allegations deficiency in service is denied.  The opp.party is not liable to pay any compensation and cost.  Hence the opp.party prays to dismiss the complaint.

Points that would arise for consideration ate:

1.    Whether the complainant is entitled to get enhancement pension as prayed for?

2.    Whether there is deficiency in service on the part of the opp.parties?

3.    Reliefs and costs

For the complainant PW.1 is examined.  Ext.P1 to P5 are marked

For the opp.party DW.1 is examined.   Ext. D1 to D4 are marked.

Points:

The main contention of the complainant is that the calculation of his average emoluments for pension is wrong and therefore his pension happened to be much less than the amount of pension he is entitled to get. It is argued by the complainant that the pensionable salary is the average of 12 months pay immediately preceding the date of retirement.  It is true that para 11 of EPS 1995 states so.  But in the case of an employee who was in service at the commencement of EPS 95  there are two types of service  viz past service and actual service.  Para 2 [1] [XII] defines past service as the period of service rendered by an existing member from the date of joining Employees  Family Pension Fund till 15.11.95.   The actual service is the service rendered by an employee from 16.11.95  till the date of exit  Pensionable service is defined in para 2 [1][ XV]  as the service  rendered by a member for which contributions have been received or receivable.  When EPS 1995 refers to 2 types of service ie. Past service and actual service in the case of an employee who was in service on 16.11.1995 the salary under the two services have to be worked out and the aggregate of the two is given as pension.  In the case of past service  salary the average of salary  for 12months  immediately preceeding 16.11.1995 is taken by the opp.party.  As  far as past service is concerned 15.11.1995  is the exit date.  The salary drawn by the complainant on 8.6.2005  ie. the  date of exit from service on superannuation, cannot be taken to work out average salary of past service.   The salary as on 8.6.2005 can be considered  only for working out the average  salary under the actual service.   The complainant has no case that the salary worked out by the opp.parties for the past service and actual service are not correct.  When EPS 1995 says that the aggregate or past service pension and actual service pension is to be taken while sanctioning pension  to the existing employees at the commencement of EPS 1995  the legislative  intention is obvious.  If the intention was to take the average salary for 12 months immediately preceding the date of exit alone then it would not have referred to past service pension and taking aggregate of past service pension and actual service pension.   So we are of the view that the contention that for working out average  salary for pension in the case of existing employees the salary for 12 months immediately preceding the date of exit alone is to be taken cannot be accepted for the reasons state above.  We find no illegality in the calculation of complainant’s pension by the opp.parties.

          Another contention of the complaint is that though he has 9 years, 7 months and 23 days actual service the opp.parties have taken only 9 years whereas  the same ought to have been rounded to 10 year  as the service more than 6 months is to be rounded to one year.  But the  records produced by the opp.parties  shows that the complainant has 63 days NCP which is to be deducted .  Therefore,  the contention that his service having more than six months  duration  which ought to have been  rounded to one year cannot be accepted.  When 63 days are deducted the service will be less than  6 months  which is to be ignored.  So that contention also cannot be accepted.  On a careful consideration of the evidence now before us we are of the view that there is no error in  the calculation of pension of the complainant warranting interference of this Forum.  There is no deficiency in service on the part of the opp.parties.  Points found accordingly.

          In the result the complaint fails and the same is hereby dismissed.  No costs.

            Dated this the 30^th day of March, 2009.

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I N D E X

List of witnesses for the complainant

PW.1. Sivadasan.A

List of documents for the complainant

P1. – Employees Pension Scheme 1995

P2. – Advocate notice

P3. – Postal receipt

P4. – Postal receipts

P5. – Acknowledgement card.

List of witnesses for the opp.party

DW.1. - K.P. Balagopan Nair1. –

List of documents for the opp.party

D1. -  Form No. 3-A 2004-05

D2. -  Form No. 3A [2005-06]

D3. – Form No.3A  April 1995 to March 1996

D4. – Pension Payment order.