By Jayasree Kallat, Member:

 

            The complaint was filed on 26-8-09. The complainant A.K. Muhammed filed a petition against the opposite party alleging deficiency in service on the side of opposite party. The complainant was employed as a driver under the management of M/s. AL-Farook Residential School in Kozhikode District. The complainant started his employment in the school on 25-6-1990 and retired from service on 30-9-2008, on attaining superannuation age of 60 years. The complainant was a member of the Employees Provident Fund Scheme and Employees Pension Scheme in the year 1994. Contribution to the fund were deducted and remitted to the E.P.F. department by his employer. After retirement the complainant applied in the prescribed forms to grant him the E.P.F. benefits and also pension as provided under the Employees Pension Scheme 1995. The complainant submitted the application on 17-10-2008. The opposite party rejected the application of the complainant observing that in the nomination form submitted by the complainant the date of birth of the complainant was shown as 15-7-1957 and so he is not eligible to get the full superannuation pension under the E.P.S. 1995.    The complainant submitted that he was born on 1-7-1948 and was admitted into the first standard as a student of Puttekkad A.M.L.P.School, Post Feroke in Kozhikode District. He was admitted in the school on 19-7-1955. The complainant joined as a driver in the school on 25-6-1990 and retired from service at the age of 60. The superannuation age was counted from his date of birth ie 1-7-1948 and he retired from service on 30-9-2008. The date of birth shown in the Form -2, the nomination form submitted by the complainant was mistakenly entered as 15-7-1957. The opposite party has rejected the complainant’s application taking his date of birth as 15-7-1957. The action of the opposite party not disbursing the benefit due to the complainant is illegal, unjustifiable and amounts to deficiency in service. Opposite party rejected because of the mistake crept in the nomination form. But the complainant has produced his school certificate to show that he was born on 1-7-1948 and admitted into the first standard on 19-7-1955. The rejection of the claims of the complainant is also in utter disregard to the circular issued by the E.P.F. organization about the settlement of disputes relating to date of birth. The complainant who is haling from very poor circumstances has no means for his livelihood. The complainant had to experience a lot of hardships, mental agony and financial loss due to the non payment of the pension legally eligible to him. Hence the complainant has filed the petition seeking relief and compensation.

 

            Opposite party filed a counter statement denying the averments in the complaint. The complainant has not impleaded the Employer of the Establishment in which he had worked. There is no deficiency in service on the part of the opposite party. The issue involved is of change of date of birth to a date convenient to the complainant, contrary to the date furnished by the complainant in the nomination form which was entered as 15-7-1957. There was no complaint regarding the complainant’s date of birth when he left service. Only after leaving his employer’s service on 30-9-2008 the complainant approached the opposite party for changing the date of birth to 1-7-1948. The entire grievance of this complainant revolves around the question of his date of birth. The opposite party was prepared to immediately settle the pensionary claim of the complainant and disburse the benefits taking the date of birth as per the statutory records. Hence there was no deficiency of service on the part of the opposite party. The opposite party submitted that the complaint is devoid of merits and therefore is liable to be dismissed.

 

            The point for consider is whether the complainant is entitled for the relief sought in the petition?

 

            The complainant was examined as PW1 and ext.A1 to A5 were marked on complainant’s side. Ext.B1 was marked on O.P’s side.

 

            The complainant’s case is that he was employed as a driver under the management of M/s. AL-Ferook Residential School, P.O. Feroke College in Kozhikode District. The complainant started his employment on 25-6-1990 and retired from service on 30-9-2008 on attaining superannuation age of 60 years. The complainant was a member of the Employees Provident Fund scheme and Employees Pension Scheme since 1994 and contribution to the fund were deducted and remitted to the E.P.F. department by his employer. After his retirement the complainant applied for E.P.F. benefits and for pension as provided under the employees’ pension scheme 1995. The opposite party rejected the application by observing that in the nomination form submitted by the complainant the date of birth of the complainant was shown as 15-7-1957 and such he is not eligible to get the full superannuation pension as provided under the employees’ pension scheme. The complainant has argued that a mistake had crept in while entering the date of birth in form-2. The complainant was born on 1-7-1948. But in the form-2 the date of birth of the complainant was shown as 15-7-1957. For this reason the opposite party has rejected the complainant’s application for full superannuation pension. The complainant has produced Ext.A1 to A5 to prove his case. Ext.A1 is the extract of admission register in Puttekkad A.M.L.P.School, Feroke. Ext.A1 shows that Muhammed A.K.’s date of birth is 1-7-1948. Counsel for the opposite party had objected marking of ext.A1 as it was not an original document. Complainant filed I.A.57/2010 to call for the documents from the School. The opposite party raised no objection. The I.A. was allowed and original document was summoned from the school. The original document was verified by the Forum and date of birth of Muhammed A.K. was found to be 1-7-1948 in the original document of the school as well. From the Ext.A1 it is proved that the complainant was born on 1-7-1948. The complainant had joined as a driver in the school on 25-6-1990 and was enrolled as a member of the Employees Provident Scheme and Employees Pension Scheme in the year 1994. The contribution to the fund was remitted to the E.P.F. department by the complainant’s employer. Complainant has also produced his marriage certificate from Murshidul Anam Jama – At Mosque, Morayoor in Malappuram District which is marked as Ext.A2 which shows that the complainant got married on 15-4-1966. Ext.A2 is the certificate issued to the complainant by the Khasi. Ext.A3 produced by the complainant discuss regarding the change of date of birth of employees’ pension fund member. Whenever there is a disagreement on the date of birth this guideline is to be followed to find a workable solution to vital issues as in this case. The valid documentary proof to be taken into consideration for clarification in the date of birth is mentioned in Ext.A3 circular. Document No.1 certificate issued by the Registrar of Births and deaths. Document No.2 any school education related certificates. (3) certificate based on the service records of the central state government organization. (4) Passport The complainant herein has produced Ext.A1, school certificate and clarified by calling for the original document which was produced before the Forum by the school authorities and the date of birth of the complainant is confirmed to be 1-7-1948. Hence the Forum is of the opinion that a mistake must have crept in while entering the date of birth of the complainant in Ext.B1. As the complainant has produced concrete proof of the date of birth, we are of the opinion that the complainant is entitled for the full superannuation pension. The complainant has produced Ruling Reported in 2008 (3) KLT 789 (Regional Provident Fund commissioner Vs Bhavani) considered by the Hon’ble Supreme Court an identical issue. A similar Ruling reported in 2010 (1) KLT 223 ( Chandrika Vs State of Kerala) is also produced by the complainant. The Hon’ble High Court of Kerala has considered a similar situation of a Government servant for correction of the date of birth at the fag end of her career in Government service. The opposite party has produced Rulings which is related to the correction of date of birth at the fag end of the career of an employee to stick on in employment. But in the case of the complainant it is to grant the pension after attaining superannuation age of 60 for which he has produced proof showing his date of birth as 1-7-1948 before the Forum. The pension as provided under the Employees Pension Scheme is a statutory right accrued by the member under social security legislation. The employees are contributing from their earnings a portion to the P.F. and pension scheme so that they can make it available in their old age. Hence we are of the opinion that the complainant is entitled to get the full superannuation pension as provided under the employees’ pension scheme 1995.

            In the result the petition is allowed and the opposite party is directed to consider the application submitted by the complainant for the full superannuation pension as provided under the Employees Pension Scheme and to grant him the E.P.F. benefits also. No order as to costs. Opposite party is to comply the order within one month from the date of receipt of copy of the order.

 

Pronounced in the open court this the 3^rd day of August 2010.

Date of filing:26.08.09

 

            SD/-PRESIDENT                    SD/-MEMBER                        SD/-MEMBER

APPENDIX

 

Documents exhibited for the complainant:

A1.True copy of the extract of admission register issued by the Head Master.

A2. True copy of the Marriage certificate of the complainant.

A3. True copy of circular dtd. 12.12.2006.

A4. True copy of letter dtd. 14.01.09.

A5.Photo copy of Registered letter dtd. 22.04.09.

 

Documents exhibited for the opposite party:

B1.Nomination and declaration form

 

Witness examined for the complainant:

PW1. A.K.Muhammed ( Complainant)

 

Witness examined for the opposite party

None

                                                                                                            Sd/- President

 

//True copy//

 

(Forwarded/By order)

 

 

SENIOR SUPERINTENDENT.