IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    18^th    Day of  September  2021

  Present: -  Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President

Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                                                             CC.213/13

Smt.Elsy                                                               :         Complainant

Pulliyakodi Santhosh Bhavan

Padappakara P.O

Mulavan, Kollam

Pin:691503

[By Adv.Kallada.P.Kunjumon]

V/s

1. The Regional Provident Fund Commissioner :     Opposite parties

         Sub Regional Office

         Employees Provident Fund Organization

        Kollam.

        [By Adv.R.Santhosh Kumar]

2. Sri.Nowfal

        S/o Abdul Salam

        Proprietor

    M/s Tasty Nut Industries

     (A.S Cashew Exporters)

      K.P.Road, Kilikolloor P.O

      Kollam-691004.

[By Adv.V.Hariprasad,Adv.Reju Prasad&Adv.Rajesh Rajan]

          FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

1.        This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act 1986.

2.       The averments in the complaint as stands amended in short are as follows.

The complainant was a cashew worker from 1973 to 2011 February at the cashew factory of the 2^nd opposite party at Perayam, Mulavana.  She contributed to the different schemes from her wages as per A/c No.KR/KLM/1271/955 under the Employees Provident Fund and Miscellaneous Provisions Act 1952, till her retirement on 28.02.2011.  On her retirement, the 1^st opposite party extended only a lesser pension of  Rs.1002/- per month from 06.02.2011 and deliberately ignored the benevolent scheme with untenable and illegal reasons.  The complainant attempted to get her original legal benefits again and again.  But the 1^st opposite party never acted positively instead tried to deny her legal benefits with illegal manner.  As per Pension scheme 1995 and also under  Employees Provident Fund and Miscellaneous Provision Act, an employee who had contributed at least for a period of 10 years to the Family Pension Scheme 1971 or to the Monthly Pension Scheme 1995 or in both schemes, the contributory is entitled to get all the benefits covered under the Employees Pension Scheme 1995.  As the complainant was in service from 1975 till 28.02.2011, she is entitled to get the above said benefits. The complainant has a total continuous service of 38 years.  The complainant is having a total service of 23 years right from 1973.  She is having an actual service of 15 years along with 2 years weightage under para 10(2) and accordingly she is eligible to get the monthly pension at least @Rs.1766/- p.m from 6^th day of February 2011 along with interest @ 12% p.a from February 2011 along with penal interest @ 12% p.a under paragraph 17(A) of the scheme.  As the 1^st opposite party has failed to extend proper service to the complainant by extending all retrial benefits under Employees Pension Scheme 1995 of the Act but refused and neglected to render proper service.  Hence there is deficiency in service.  The complainant has also sustained mental agony and other hardship, loss due to the illegal actions of the 1^st opposite party.  The complainant is also entitled to get interim relief  of 17.5% of the pension along with monthly pension.  The complainant  further pray to direct the 1^st opposite party to extent the Pension @ Rs.1766/- p.m under paragraph 12(3)(a)(b) from 06.02.2011 together with interest @ 12% p.a from March 2011 and interim relief @ 17.50% till realization along with penal interest 12% p.a under paragraph 17(A) of the Scheme and the Widower Pension @ Rs.1750/- per month and to direct the 1^st opposite party to pay Rs.10000/- towards compensation for the denial of actual pensionary benefits together with Rs.5000/- towards  the cost of the  proceedings.

          3. Opposite party 1&2 entered appearance in response to the notice and contested in the matter by filing  separate version.  Both the opposite parties though filed separate written version, would admit the following facts. The complainant entered into service of the 2^nd opposite party on 01.12.1973 and super annuated from service of the 2^nd opposite party on 28.02.2011 and  also contributed to different schemes under the Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 under Account Number KR/KLM/1271/955 till retirement.  The 2^nd opposite party has duly remitted all the PF dues of the complainant to the 1^st opposite party.  However the 1^st opposite party would dispute the allegations of the complainant that she was granted lesser pension.  It is further contented that on receipt of her application in Form 10 D for monthly pension, Pension Payment Order bearing Number KR/KLM/80018 was issued sanctioning monthly reduced pension @ Rs.1002/- with effect from 06.02.2011, the next day to the date of exit which is in accordance with the provisions of the EPS  1995 based on record submitted by the 2^nd opposite party and also considering her age, pensionable salary, pensionable service etc.  Hence the pension sanctioned @ 1002/- per month is correct.  The 1^st opposite party has issued reply to the petition of the complainant submitted under RTI Act covering all points raised in the application under RTI.  The 1^st opposite party never tried to deny her legal benefits with illegal manner.  Pensionary benefits of the complainant can be calculated as per the provisions of the scheme.  Her entire contributory service has been taken into account while computing monthly member pension.  As per the application in Form 10 D filed through the 2^nd opposite party, the complainant left the service on 05.02.2011.  As regards past service, she has a break in service of 6222 days, out of which 4032 days were regularized, remaining 2190 days were not regularized due to continuous break in service of above 1 year prior to 1998.  The calculation of past service, pensionable service etc are also stated in the written version.  As per the above calculations the complainant is having 16 years of past service and 4 years pensionable service.  According to the 1^st opposite party the complainant is eligible to get the minimum of  Rs.635/- as Actual Service Benefit as per para 12(3)(i)(a) of EPS 1995.  The complainant is entitled to get Past Service Benefit of Rs.498/-.  Accordingly the net monthly pension payable to the complainant is Rs.635+Rs.498=Rs.1133/-.

          4. The member if he or she desires, may be allowed to draw an early pension from s date earlier than 58 years of age but not earlier than 50 years of age.  In such cases, the amount of pension shall be reduced at the rate of four per cent for every year the age falls short of 58 years.  Accordingly her early pension was arrived to Rs.1002/- per month.

          5.There is no deficiency in service  as alleged and  also no irreparable loss caused to the complainant since eligible pension has been sanctioned in time and also no further benefit is entitled.  Reduction in the monthly pension was occurred as the complainant availed early pension before attaining superannuation.  The EPS-95 is a funded scheme and it is the duty and responsibility of the organization to watch the prompt disbursement of pension to eligible employees to the extent of their entitlement.  The Employees Provident Fund Organisation is one of the largest social security organizations with a mission to extend welfare measures to the working class of our nation.  It would be pertinent to note that the employer’s share of contribution depends on the  wages paid or payable to the employees.  The contribution thus received will be proportionate with the wages paid or payable to the employees.  In the instant case entitled pension is being disbursed to the complainant.  The statement of the complainant that her pensionable salary is Rs.4781/- is wrong.  Pensionable salary is the average monthly pay drawn during the contributory period of service in the span of 12 months preceding the date of exit from the membership of the Employees Pension Fund (Para 11(1) of EPS 1995).  As per para 12(2) if during the said span of 12 months there are non-contributory periods of service including cases where the member has drawn salary for a part of the month, the total wages during the 12  months span shall be divided by the actual number of days for which salary has been drawn and the amount so derived shall be multiplied by 30 to work out the average monthly pay.

6.       Pensionable salary of the complainant was arrived on the basis of the particulars of pages of  non contributory period in respect of the complainant furnished by the 2^nd opposite party.

 Accordingly total wages amounts to     Rs.4776.

 Non contributory period  is 215 days. 

Therefore pensionable salary has been calculated as follows.

                             Total wagesx30              =955/-

                                 (365-215)

7.       Accordingly the actual service benefit of the complainant was calculated.  The claim of the complainant  that she contributed to EFPS,71 from her wages earned during the period 1975 to 1995 is correct.  But the 2^nd opposite party has reported that the complainant had a total break in service of 6222 days during the above period, out of which 4032 days were regularized by crediting contribution.  Therefore the period of service prior to 15.11.1995 during which the complainant has contributed towards pension fund became 16 years.  The said service was taken into account for calculating her past service benefit.  Therefore no deficiency in service or denial of justice on the part of the  1^st opposite party in calculating pensionary benefits due to the complainant.  The 1^st opposite party has calculated and released legally admissible pensionary benefits strictly in accordance with the provisions contained in the Employees Pension Scheme 1995 and contra averments in the complaint is incorrect.  Even though the length of service of the complainant from 01.12.1973 to 05.02.2011 is 37 years,  the eligible service for pensionary benefits is 20 years only, since contribution in respect of the complainant towards pension fund was received for that period only.  The date of commencement of pension is after 31.03.2000.   The opposite party would further content that the complainant is not eligible for any interim relief.  Complainant is not entitled to get any eligible benefits under the Employees Pension Scheme 1995 have been sanctioned to the complainant on the basis of the information/documents submitted by the 2^nd opposite party who is the employer of the complainant.  Hence she is not entitled to get any additional benefit under EPF 1995.  The 1^st opposite party  further prays to dismiss the complaint with compensatory costs.

8.       The further  contentions of the 2^nd opposite party employer are as follows.

The complaint is not maintainable either in law or on facts as against 2^nd opposite party who is neither a necessary or nor a proper party to the complaint.  No relief is sought against the 2^nd opposite party.  However the 2^nd opposite party would admit that the complainant was a cashew worker at the cashew factory of the 2^nd opposite party situated at Perayam, Kundara.  The complainant was covered under the EPF&MP Act with A/c No.KR/KLM/1271/955.  The complainant entered into service of the 2^nd opposite party on 01.12.1973 and superannuated from the service of the 2^nd opposite party on 28.02.2011.  The 2^nd opposite party has duly remitted all the P.F dues of the complainant to the 1^st opposite party.  The 2^nd opposite party has no objection in the complainant  obtaining monthly pension @ Rs.1766/- or such other amount if the complainant is legally entitled to under the Employees Pension Scheme 1995 as amended up to date.  The 2^nd opposite party further prays to dismiss the complaint with costs.

9.       In view of the above pleadings the points that arise for consideration are:-

1. Whether the 1^st opposite party has properly calculated and disbursed the eligible  pension and pensionary benefits to the complainant?
2. Whether there is any deficiency in service on the part of the 1^st and 2^nd opposite party?
3. Whether the complainant is entitled to get the reliefs sought for in the complaint?
4. Relief and costs.

10. Evidence on the side of the complainant consists of the oral evidence of PW1 and got marked Ext.P1 to P6 documents.  Evidence on the side of the opposite parties consists of the oral evidence of DW1 and Ext.D1 to D4 documents.  Both sides have filed notes of argument.

11. Heard both sides.

Point No.1to3

          12. For avoiding repetition of discussion of materials these 3 points are considered together.  Following are the admitted rather undisputed facts in this case.  The complainant was an employee of the 2^nd opposite party cashew factory.  She joined service as a cashew worker from 1973.  She was a contributory to different schemes with the 1^st opposite party under A/c No.KR/KLM/1271/955.  On attaining superannuation  on 28.02.2011 she applied for pension in Form 10D through her employer, the 2^nd opposite party.  Accordingly the 1^st opposite party extended a monthly pension of Rs.1002/- from 06.02.2011 vide PPO No.KR/KLM/00080018.  The grievance of the complainant is that the 1^st opposite party has extended only a lesser pension ignoring the beneficial provisions under the EPS 1995.  According to the complainant she is entitled to get a monthly pension @ Rs.1766/- right from 06.02.2011.  She is also entitled to get interim relief @ 17.5% till realization along with penal interest @ 12% p.a,  that she is also eligible to get widower pension @ Rs.1750/- per month, compensation, costs of the proceedings.  The definite contention of the 1^st opposite party is that it has sanctioned pension to the complainant in accordance with  the provisions under the EPS 95 based on the record submitted by the 2^nd opposite party and also considering her age, pensionable salary, pensionable service etc., hence the pension sanctioned @ Rs.1002/- per month is correct.  The entire contributory service given in the break in service statement certified by the employer which are the period when the complainant did not attend work has been taken into account while computing the monthly member pension.  It is further contented that as per Form 10D application preferred  by the complainant and forwarded by the 2^nd opposite party the complainant left the service on 05.02.2011.

13. According to the 1^st opposite party the complainant is not having continuous service of 44 years as claimed in the complaint that there is a break in service and the 2^nd opposite party has forwarded a break in service statement to the 1^st opposite party which is marked as Ext.D2.  Accordingly the complainant was having non contributory period of 5581 days during her past service (ie, the period from 01.05.72 to 15.11.95) and 4016 days during actual service (ie, the period from 16.11.95 to 30.06.12).  It is further contented that the complainant is having a break in service of 6222 days out of which 4032 days were regularized.  Hence she is having only 15 years 11 months and 14 days past service. Accordingly the complainant is having only 25 years of eligible service and the claim of the complainant that she is having 42 years of continuous service is wrong.

          14. Pensionable  service as per Section 10(1) of the EPS 1995 is the service of the complainant in which contribution received or receivable. As per clause 10(2) of EPS, if there is 20 years of pensionable service  a weightage of 2 years is to be added.  Pensionable service as per clause 12(2) formula is replaced by number of years.  Therefore pensionable service is number of years in which contributions received from the employer.  There is no provision in the scheme to convert years into days  and then to days into years. 

15. According to the learned counsel for the complainant there is no break in service and hence there is no question of regularization of break in service. On going through the provisions in the Employees Provident Fund Scheme 1995 we are unable to trace out the term break in service and regularization of break in service.  The direction under paragraph 9(b) is that if the contribution for any period has not been received the said period shall count only if the contribution  received.  According to the learned counsel for the complainant contribution is payable only when wages is paid and the opposite party has no right to   realise any amount    from   the complainant for non working days.  It is further argued that the opposite party has no right to go beyond the scheme.  We find  much force in the above argument.  We have not found any provision in the scheme for realisation of the amount from the worker for regularization of break in service.  The term break in service is neither defined nor explained in the EPS 1995.  There is cessation of work for which no wages.  Hence no contribution is to be paid.  On going through paragraph 9(b) we are of the view that the said provision is applicable only if the employer  not paid  wages regularly and only after it is paid that service is to be counted.  Here in this case  for all working days wages paid and for all wages contribution paid.   Hence there is no situation of  non payment of contribution.  There is also no provision in the scheme to calculate the working days and convert the same into years since  the service is  internationally accepted as years and not on days.  Minimum days work in an year is also not insisted in the scheme and the opposite parties have no right go  beyond the scheme. Pensionable  service as per Section 10(1) of the EPS 1995 is the service of the complainant in which contribution received or receivable.

16. The pensionable salary specified by the 1^st opposite party is Rs.3894/- which according to the complainant is not acceptable.  According the  complainant her pensionable salary was 4702/- calculated on the basis of her actual salary together with 13 days festival holiday wages and leave with wages.  Therefore the complainant claims actual service pension under para 12 3(a) together  with 2 years of weightage under papa 10(2) as she had rendered more than 20 years of pensionable service.  It is the further claim of the complainant that the 1^st opposite party failed to calculate monthly salary as provided in para 11(2) of the pension scheme 1995.  According to the opposite party pension was sanctioned to the complainant in accordance with the provisions under the EPS 1995 based on the record submitted by the ex-employer of the complainant and also considering her age, pensionable salary, pensionable service etc.  Hence the pension sanctioned @ Rs.1002/- is correct.  There is no dispute with regard to the age of the complainant as on the date of retirement.  As per the particulars of member  of employees pension scheme 1995 date of birth of the complainant is 01.12.1995.  Date of cessation of membership is 05.12.2011.  Date opted for pension before 58 years age is 06.02.2011.  In view of the above materials it is clear that as on the date of retirement she has not attained the age of 58 years but attained only 55 years and odd months.  Admittedly the complainant has chosen to retired on 05.02.2011.  However no documentary evidence  is available to find out pensionable salary which is 12 months average salary preceding the date of retirement.  Neither the complainant nor the opposite party has pleaded and proved what is the average salary of 12 months preceding the date of retirement. Therefore it is not possible to calculate pensionable salary nor it is possible to say whether the pensionable salary of Rs.3894/- fixed by the 1^st opposite party is correct or not.

          17. It is clear from the available materials that the complainant entered into service on 1973 and therefore she is having actually rendered 22 years of continuous past service for which the 2^nd opposite party has collected family pension fund contribution from her service without any Break in Service.  It is to be pointed out that the complainant had worked in a cashew factory from the month of December 1973 till the month of November 2011 which is the date of exit and she has no  break in service as claimed by the opposite parties since even according to the opposite parties the complainant has not been retrenched or kept away by her employment either by her  management or herself and under papa 9 of the scheme enables a contributory to get her benefit fully and shall not be curtailed her pensionery benefit by misinterpreting the statutory provisions.  As the complainant is having a continuous service of more than 20 years she is also entitled to get weightage of 2 years of service.  As I have pointed out above the complainant has not provided sufficient materials to calculate the average monthly pay of 12 months preceding the date of exit from the membership of EPS.  In the absence of any such data Commission cannot be able to calculate monthly pension, arrears of pension etc. sought for under relief No.1&2.  The complainant has also not pleaded and proved sufficient materials regarding the interim relief and widower pension claimed in the complaint. 

          18. According to the complainant the 1^st opposite party failed totally to calculate monthly salary as provided under 12(2) of the Pension Scheme 1995.  The 1^st opposite party has also ignored National Festival Holiday Wages and one days wages for every 20 days work.  The 1^st opposite party also ignored 2 years weightage as the complainant had completed 18 years of continuous service in claiming monthly pension.  The above right are approved by virtue of statutory provisions.  Ignoring those provisions and calculating monthly pension would definitely reduce the monthly pension and which amounts to deficiency in service and unfair trade practice.  Though there is no provisions in the scheme to calculate contribution to the alleged break in service and there is no provision to collect past service or actual service contribution for the regularization of service.  But the 1^st opposite party has calculated pension after calculating break in service and regularization of break in service etc. which is against the statutory provision.  The 1^st opposite party has miserably failed to collect the contribution through the 2^nd opposite party during the entire period of service.  It is the bounden duty of the 1^st opposite party to direct the 2^nd opposite party to recover the contribution for such period if genuine.  But no such step has been seen taken by the 1^st opposite party which is a deliberate and willful latches on the part of the 1^st opposite party.  hence there is deficiency in service on the part of the 1^st opposite party also.  It is also brought out in evidence that the complainant has sustained mental agony due to the improper calculation and granting a lesser pensionery benefits than the actual benefits to her.  Therefore the complainant is entitled to get compensation for the same from the 1^st opposite party.  The points answered accordingly.

Point No.4

          In the result complaint stands allowed in the following terms.

The 1^st opposite party is directed to re-calculate monthly pension and other pensionery benefits eligible to the complainant on the basis of the relevant statutory provisions and observations made in paragraph 14 to 18 of this order.

The 1^st opposite party is directed to pay compensation to the tune of Rs.10,000/-  and also  pay Rs.5000/- as costs of the proceedings.

The 1^st Opposite party is directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is at liberty to duly execute the order through the process of this Commission.

     Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 18^th   day of  September   2021.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

                                                                                    Senior Superintendent

INDEX 

Witnesses Examined for the Complainant:-

PW1            :         Smt.Elsi (Complainant)

Documents marked for the  complainant

Ext.P1         :   Copy of the PPO

Ext.P2         :   Copy of the ESIC Identity card of the complainant

Ext.P3         :   Copy of Super Annuation notice

Ext.P4         :   Copy of  reply send under RTI

Ext.P5         :    Copy of intimation of exgratia assistance

Ext.P6         :    Copy of Form 23 issued by the 1^st opposite party

Witnesses Examined for the opposite party:-

DW1 :   K.R.Sunilkumar, Enforcement Officer, Employees Pension Fund Organisation, Sub Regional Office, Kollam.

Documents marked for opposite party:-

Ext.D1        :         Copy of  Petition under RTI filed by the complainant

Ext.D2        :         Copy of  Reply received under RTI

Ext.D3        :         Copy of  Break in service certificate

Ext.D4        :         Copy of  Consent letter of the complainant

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

Senior Superintendent