SRI.K. VIJAYAKUMARAN, PRESIDENT.
Complaint for sanction of pension compensation costs etc.
The averments in the complaint can be briefly summarized as follows:
The complainant was an employee of the State Farming Corporation of Kerala Ltd, he was included as a member of the Employees Provident Fund Scheme of the opp.parties and his Provident Fund Code No. KR/3453/1443. The opp.parties regularly received contribution for the Employees Provident Fund Scheme from the complainant and as such the complainant is a consumer of the opp.parties. The complainant after successfully completing the probation period was appointed as permanent worker from 24.9.1995 and he started contributing under EPF Scheme from 24.6.1995. Total service in respect of the complainant from the date of joining till date of retirement comes to 9 years and 10 months, which can be rounded to 10 years. Hence the complainant is eligible for minimum pension. Though the complainant filed an application for sanction of monthly pension under Employees Pension Scheme 1995, the opp.parties denied pension by wrong and illegal calculation of pensionable service. The actual service of the complainant was 9 years and 10 months in total. But the opp.parties splitted the service of the complainant as past service and actual service. The past service of 4 months and 21 days was ignored and actual service 9 years 5 months and 8 days was rounded of to 9 years. The rounding of service by the opp.parties are not legal. The rounding off by splitting the length of service into two slabs of past service and actual service is illegal. Hence the complaint.
The opp.parties filed a joint version contending as follows: It is admitted that the complainant was an employee of State Farming Corporation and that he has joined the EPF/EPS on 24.6.1995 with account No.KR/3453/1443 The date of birth of the complainant is 28.11.1954 as per the Form No9. While applying 10/D application the complainant has produced copy of the School Admission register for changing his date of birth as 25.4.1947 and after verifying with the school Admission Register this opp.party has accepted hiss date of birth as 25.4.1947 The 10/D application of the complainant was rejected as the service rendered was short of eligibility for pension. It is true that the complainant had contributed to pension fund from the date of joining till the date of attaining 58 years of age. But the aggregate service of the complainant is below 10 years and hence not eligible for calculating the pensionable service. The past service of the complainant from 24.6.1995 to 15.11.1995 is 4 months and 21 days which is below 6 monhs and will be considered as nil days in past service. The actual service of the member from 16.11.1995 to 24.4.2005 is 9 years 5 months and 8 days and when rounded off comes to 9 years only. Hence altogether the complainant is having 9 years eligible service which is one year short of the period for eligibility of pension. The complainant’s allegations that the calculation arrived in computing the eligible service is irregular and improper. The pension was calculated as per the provisions mentioned in para 12 [4] of EPS 1995.. The service for calculating pensionary benefits of an existing members [who was a member of the ceased Family Pension Scheme 1971] is to be taken separately as service before 16.11.1995[past service] and service upto to the date of leaving service/ attaining 58 years of age [pensionable service] and hence in this case splitting the service has been made according to the provisions of the Employees Pension Scheme 1995. Hence the total service when rounded off comes to 9 years only for calculating pension. The eligible service needed is 10 years for calculating the minimum pension under EPS 1995. Since the total service of the employee under past service and actual service is 9 years only the application was rejected. There is no deficiency in service on the part of the opp.party. Hence the opp.party pays to dismiss the complaint.
Points that would arise for consideration are:
1. Whether the complainant is entitled to get pension.
2. Reliefs and costs.
For the complainant PW.1 is examined. Ext. P1 and P2 are marked.
For the opp.party DW.1 is examined.
POINTS:
There is no dispute that the complainant was an existing member when EPS 1995 came into force and that he was contributing to the pension fund from the date of his joining service on 24.6.1995. It is also not disputed that the complainant left service on 23.6.05 . The grievance of the complainant is that though he has 9 years 9 months and 29 days service, he was not sanctioned pension despite the fact that the period above 6 months has to be rounded as full year for the purpose of sanctioning pension.
The contention of the opp.parties is that the complainant has only 4 months and 21 days service in past service and 9 years 5 months and 8days actual service, that for calculation of pensionable service the aggregate of past service and actual service are considered, that under EPS 1995 the past service and actual services are to be taken separately and that under para 9[b] explanation it is stated that total past service for less than 6 months shall be ignored and accordingly the past service of the complainant being less than 6 months was ignored. Similarly the actual service being 9 years 5 months and 21 days it was taken as 9 years ignoring the period less than six months while rounding off.
The question is whether rounding off can be done twice ie in past service and actual service or a combined rounding The contention of the complainant is that the EPS. 95 does not authorize rounding of the period twice. DW.1 has also admitted in cross examination that the EPS 95 does not speak about double rounding of service but speaks only about rounding of service. He would further admit in cross examination that had double rounding was not made the complainant would have got pension.
The wording used in para 12 [4] pf EPS 1995 is the aggregate of past service and actual service. Even though it is stated in the explanation to para 9 [b] of the EPS 1995 that past service less than 6 months is to be ignored nowhere in EPS 95 it has been stated that the double rounding of service must be done separately for the actual service and past service. The EPS 1995 is a beneficial legislation intended to provide benefits to the workers and not to deprive them of such benefits The legislative intention in our view is a combined rounding. So in the absence of a specific provision for double rounding we are of the view that a beneficial interpretation favourable to the worker is to be made in this case ie. combined rounding In this context it is worth pointing out that DW.1 has admitted that the complainant has remitted contribution for the period from 24.6.95 to 23.6.05 which period will come above 9 years and 6 months.
At the time of argument the learned counsel for opp.party produced a notification issued by Government of India amending para 9[b]explanation as “For the purpose of this sub paragraph, the aggregate of actual service and past service for less than 6 months shall be ignored and 6 months and above shall be rounded off to a year”. That means that the legislative intention is in favour of combined rounding and not for separate rounding. The opp.party has also produced a clarification issued by the Additional Central PF Commissioner to the effect that the date of implementation of the above amendment would be based on the date of commencement of pension. A further clarification “as to be more clear all monthly member pension cases where date of commencement of pension is before 21.8.09 member would not be eligible for combined rounding off of aggregate of actual service and past service was also stated therein this clarification is not a statutory one but only an administrative direction. The notification does not specify any date of commencement of amendment or says that its application is prospective only. An administrative direction cannot prevail over the notification. Apart from that this is a pending matter at the commencement of the notification. So we are of the view that the complainant is entitled to the benefit of combined rounding and thereby eligible to get pension. Point found accordingly.
In the result the complaint is allowed directing the opp.party to sanction pension to the complainant adopting combined rounding of past service and actual service. We are not passing any order regarding compensation and costs.
The order is to be compiled with within one month from the date of this order.
Dated this the 30th day of December, 2010.
I n d e x
List of witnesses for the complainant
PW.1. – Sivaraman Nair
List of documents for the complainant
P1. – Application for Pension
P2. –Letter from the PF Officer rejecting the application.
List of witnesses for the opp.party
DW.1. – K. Perumal
List of documents for the opp.party :NIL
