IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 31st day of December 2019
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
Sri.Stanly Harold, B.A,LLB, Member
CC.No.110/12
D.Vijayamma : Complainant
Punnappallil veedu
Kunnikode P.O
Vilakkudi, Pathanapuram.
[By Adv.Kallada P.Kunjumon]
V/s
The Regional Provident Fund Commissioner : Opposite parties
Sub Regional Office
Parameswaran Pillai Nagar, Kollam.
[By Adv.Anchal G.Reghu kumaran Nair]
Additional Opposite party
P.Sundaram
Managing Partner
M/s Sreelekshmi Cashew Company
Lekshmi Prabha, Kadappakkada, Kollam.
[By Adv.P.Sudhakaran]
ORDER
E.M.MUHAMMED IBRAHIM , President
This is a complaint filed by D.Vijayamma originally against the Regional Provident Fund Commissioner praying to issue direction to the 1st opposite party to extent the monthly pension to Rs.2070/- together with widow pension @ Rs.2006 per month from 30.05.2010 and interest @ 12% p.a till realisation and to direct the opposite party to extent 17.5% interim relief on monthly pension from 30.05.2010 onwards and also praying to grant compensation to the tune of Rs.10000/-together with costs of the proceedings Rs.5000/-. Subsequently on the basis of the contentions of the opposite party, the complainant got impleaded the additional 2nd opposite party who is the Managing Partner, M/s Sreelekshmi Cashew Company, Kadappakkada, Kollam as per order in IA 105/15 dated 17/09/15.
The averments in the complaint as stands amended (as per order in I.A 216/13 dated 22.05.2014) in short are as follows.
The complainant is a contributory to different schemes under the Employees Provident Funds and Miscellaneous Provisions Act. The account number of the complainant is KR/1269/841. The additional 2nd opposite party is
the employer who deducted the required amount from her wages and remitted the same in the account. The complainant has got a continuous contributory service from 1974 and even now continuing in service. The complainant being a contributory to the different schemes, applied for the Employees Pension Scheme 1995. But the 1st opposite party released only lesser pension and ignored her service and contributions against the scheme under the above said Act. As the opposite party denied the actual extent of real benefits, she applied for reconsideration for the above pension. According to the complainant she rendered a total pensionable continuous service of 35 years from 1974 to 2010 and contributed to the Family Pension Scheme 1971 from her wages till 15.11.95 without any break or cessation and the employer remitted 8.33% contribution of the wages for the pension fund, in the 1995 Pension Scheme till 29.05.2010. As the complainant contributed to the fund more than 20 years, she is entitled to get the benefit of weightage of 2 years. The complainant is entitled to get the pension from 30.05.2010 @ Rs.2070/- . She is also entitled to get 17.5% interim relief from January 2010. However the opposite party sanctioned the pension @ Rs.879/- only from 29.05.2010 and put the complainant to unnecessary embarrassment and failed to render proper service to the complainant. The above act of the 1st opposite party would amount to deficiency in service. Hence the complaint.
Both opposite parties resisted the complaint by filing separate written versions. However the 1st opposite party would admit that the complainant was an EPF member with EPF Account No.KR/1269/841 that she joined the EPF scheme in the year 1973. As per the records kept at the 1st opposite parties office the complainant joined in the scheme only on 1.11.1973 at the age of 29 years. Her date of birth was taken as 01.11.1944 but as per the 10 D application produced by the complainant the date of birth is 30.05.1952. The 1st opposite party would deny the contention of the complainant that she had an uninterrupted service since 1974 and is even now continuing in service. It is further contented that the complainant attained the age of 58 years on 29.05.2010 and as such she applied for benefits under EPF 1995 which was sanctioned vide order P.P.O.No.B.KR/KCM/78581 and a monthly pension of Rs.578/- was allowed from 30.05.2010 under E.P.F 1995. The complainant submitted E.P.F form No.19 to get the benefits under EPF Scheme 1952 which was sanctioned on 21.11.2011 and an amount of Rs.26123/- was sent to her SB A/c maintained with SBI, Kunnikode branch. The claim of the complainant that she is still in service is false and baseless. The opposite party sanctioned pension to the complainant considering her past service in EPF scheme 1971+contributory service in EPF 95 and in accordance with provisions. The date of joining service by the complainant as per the office records is on 01.11.1973. According to the complainant her date of birth is 30.05.1952. Therefore the date of attaining the age of 58 years is 29.05.2010. The complainant would claim Rs.2017/- as monthly pension which is inadmissible and based on wrong calculation. She is having breakage of service 16 years 2 months and 1 day which is to be deducted from her total service. Her net past service is 22 years 19 days minus 16 years 2 months and 1 day which is 5 years 10 months and 18 days . The breakage of service has not been regularised by paying contribution. According to the 1st opposite party wages as on 15.11.95 was Rs.550/- corresponding factor as per table under para 12=80. The 1st opposite party would further contented that the complainant is having 4 years 5 months 2 days which is to be rounded to 4 years. According to the 1st opposite party the actual service benefit to the complainant is Rs.62.11 and the said amount is enhanced to Rs.635/- as per para 12(3)(i)(a) notification. Therefore the monthly pension is aggregate of actual service benefit and past service benefit = 635+244=879. The said amount is enhanced to Rs.1000with effect from September 2010 as per the notification. As the complainant is not having 20 years of pensionable service she is not entitled to get weightage of 2 years. The 1st opposite party further prays to dismiss the complaint with its cost.
The additional 2nd opposite party filed on separate version in tune with contentions raised by the 1st opposite party and would further contend that the complaint is not maintainable either in law or on facts that there is no provision in the EPF Act 1995, or in Employees Pension to regularise the non contributory period in the pensionable service. The mode of calculation of monthly pension is provided under Para 12 of EPF 1995. It is further contented that the date of commencement of pension in respect of the complainant is from 30.05.2010 as she had completed 58 years on 29.05.2010 and hence her monthly pension is to be calculated as per Para 12(3) of EPF, 1995. The complainant is receiving the maximum benefits which she is entitled under EPF Act 1995 and there is no deficiency in service on the part of additional 2nd opposite party. The Additional 2nd opposite party also prays to dismiss the complaint with cost and compensatory cost.
In view of the above pleadings the following points arise for consideration.
- Whether there is any deficiency in service on the part of the 1st and 2nd opposite parties?
- Whether the complainant is entitled to get the enhanced pensionery benefits claimed in the complaint?
- Relief & Costs.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. The specific allegations of the complainant is that 1st opposite party has sanctioned only lesser pension by ignoring her service from 1974. Admittedly the date of joining service by the complainant as per her office records is 01.11.1973and her date of birth is 30.05.1952. If that be so the date of attaining superannuation at the age of 58 years is 29.05.2010 as claimed by the opposite parties. According to the complainant she is entitled to get pension as per the continuous pensionable service with her last drawn wages for the last preceding 12 months of her completion of 58 years from 16.11.1995 to 29.05.2010 @Rs.1465/- calculated on the basis of her actual salary together with 13 days Festival Holiday wages and Leave with wages and Rs.605/- for the period from 1973 to 15.11.1995 as past service benefit and accordingly the complainant claims a monthly pension @Rs.2070/-.
The learned counsel for the complainant has further argued that the complainant is having 35 years continues and uninterrupted service right from 1974 to 2010. It is further argued that if a person having continuous service more than 20 years weightage of two years will be added. According to the learned counsel for the complainant total pension to be sanctioned is @ Rs.2070/-. But the opposite party has calculated pension at the rate of Rs.879/- only which is highly unfair, and that all the requirements to be complied with. The pensioner are already complied with that the complainant was paying contribution to the pension fund is an admitted fact. The employer and Central Government was also making contribution. She has already completed 10 years service and having more than 44 years of continuous service.
The learned counsel for the 1st opposite party has also argued that the opposite party sanctioned pension to the complainant considering her past service in EPF scheme 1971+contributory service in EPF 95 and in accordance with statutory provisions.
According to the learned counsel for the 1st opposite party the correct calculations are as follows:-
Date of birth - 30.05.1952(admitted)
Date of completion of 58 years - 29.05.2010(admitted)
Date of joining EPFS 1971 - 01.11.1973
Date of cessations of EPF 1971 - 15.11.1995
Total service till 15.11.1995 - 22 years and 19 years
It is further contented that the Break in service:16 years 2 months and 1 day and the said break in service is to be deducted from total service. Hence net past service = 22 years 19 days minus 16 years 2 month and 1 day = 5 years 10 month and 18 days. Therefore the complainant has got net past service only for 5 years 10 month and 18 days. It is further contented that the break in service has not been regularized by paying contribution. The learned counsel for 1st opposite party has pointed out Para 9(b) which says that if there is any period in the past service for which contribution to the family pension scheme 1971 had not been received the said period shall count as eligible service only if the contribution there of has been received in the employees pension fund.
It is also argued on behalf of the 1st opposite party that as per the definition under para 2(1)(V) of EPS 1995 pensionable service means the service rendered by the member for which contribution have been received or receivable. Furthermore as para 10(1) of EPS 1995 the pensionable service of the member shall be determined with reference to contribution received or are receivable on behalf of the employees pension fund. The learned counsel for the 1st opposite party has pointed out that the actual service benefit has to be calculated by applying the formulae.
Pensionable salary x pensionable service
70
= 1087x4 = 62.11
70
The said amount of Rs.62.11 is enhanced to Rs.635/- as per para 12(3)(i)(a)(notification). So her monthly pension is the aggregate of actual service benefit and past service benefit=635=244=Rs.879. This amount is enhanced to Rs.1000 with effect from September 2014 as per the notification. Therefore according to the learned counsel for the 1st opposite party the pension granted to the complainant is legal and proper and no interference is required.
The learned counsel for the complainant has argued that the above calculation of pension is wrong that the 1st opposite party has extended only lesser pension by ignoring the provisions under the Employees Pension Scheme 1995, that there is deliberate and wilful violation of statutory provisions by the opposite parties and that pensionable salary shall be calculated only on the basis of Para 11(1) and 11(2) of the Employees Pension Scheme 1995. In view of the facts and circumstances of this case we find force in the above contention Clause(1) of Para 11 of the said scheme would indicate that the pensionable salary shall be the average monthly pay drawn . Clause(2) of Para 11 would further indicate the way in which average monthly pay drawn has to be calculated. Clause (2) of Para 11 of the above Scheme states 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. By applying the above mandate of the scheme we have to calculate pensionary benefits. It is clear from the available materials that the complainant had worked in a cashew factory which is providing seasonal employment right from the year 1973 to 2010 till superannuation and she has no break in service as claimed by the opposite party while in service. The complainant had not been retrenged or kept away from her employment either by her management or she herself. In the circumstance and in view of paragraph 9 of the scheme we are of the view that the complainant/contributory is entitled to get her benefit fully and her pensionery benefits shall not be curtailed by misinterpreting the statutory provisions.
On going through the provisions in the Employees Provident Fund Scheme 1995 we are unable to trace out the term break in service and regularisation of break in service. The direction under paragraph 9(b) that if the contribution for any period between Family Pension 1995 has not been received the said period shall account 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 arguments. We have not found any provision in the scheme for realisation of the amount from the worker for regularisation of break in service. The term break in service is neither defined nor explained in the EPS 1995. It is true that as per Ext.D1 details of break in service there were no work during the year 1982 to 1991 and also there was no work for the year 2001-2002 and 2002-2003. However even the opposite parties have no case that the complainant has not attended for work on those years on her own accord. It is clear that those non working days occurred beyond the control of the complainant/employee which will not constitute break in service as contented by the learned counsel for the 1st opposite party. 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 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 beyond the scheme.
Past service means the period of service rendered by an existing member from the date of joining Employees Family Pension Fund till 15th November 1995. According to the complainant she is having a past service of 21 years and 9 months which is rounded to 22 years. Hence the complainant is entitled to get past service pension as provided under paragraph 12(3)(b) and Table B of the scheme. In the circumstance the claim of the opposite parties that the complainant is having only a past service of 5 years 10 months and 18 days is not acceptable at all. As the complainant is having a continuous past service of 22 years her past service benefit as per para 12(3)(b) and Table B of the scheme will be Rs.605/- as claimed by the complainant.
Pensionable salary is to be calculated according to the provisions under paragraph 11(2) of EPS. Though the complainant would claim that her pensionable salary is 6032/-, there is absolutely no pleadings and evidence for the same. In her complainant the complainant has not stated what was her wages as on the date of retirement. However Ext.P1 PPO serial item No.19 wages on the date of exit has been stated as Rs. 1682/-. In the proof affidavit also there is no averments regarding the wages drawn on the last month of retirement. However she would claim that she was drawing an average pay of Rs.201.07 per day. On what basis she has claimed to have been getting average pay of Rs.201.07 per day is not pleaded. In the circumstance the pensionable salary shown as item No.17 in PPO is only to be accepted as correct.
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. The claim of the complainant that she is having 15+2=17 years of actual service. But as per Ext.P4 details of break in service and Ext.D1 document which contains the same details marked by the opposite party. It is clear that the complainant has not worked 8 years from 1982 to 1991 as the factory was closed. It is also clear that there was no work at all during the year for 2 years from 2001 to 2003. As there was no salary there was no contribution to this scheme. The non contributory period is not disputed rather admitted by the complainant. Even if the company was closed and there was no work for about 11 years the same cannot be taken into account since it was not due to any suspension, retrengment or removal of the complainant from service. In short the above absence of work is not due to the fault of the complainant. Therefore the above period cannot be excluded while calculating actual service.
The actual monthly pension as per clause 12(2) of EPS 1995 is :-
Pensionable salary x Pensionable service
30
= 1087x17
30
= 615.96 rounded to 616
Since the complainant is an existing member the monthly member pension is the aggregate of past service benefit and actual service benefit which is 605+616=1221/- per month. However it is seen from Ext.P1 Pension Payment Order that the 1st opposite party has sanctioned only Rs.879/- from 29.05.2010 and therefore the complainant is entitled to get monthly arrears of pension @ Rs.242/- (Rs.1121- Rs.879) from 30.05.2010 onwards along with interest. It is crystal clear that there is error in the calculation of Pensionable Salary and service pension by the opposite parties. Hence there is deficiency in service on the part of the opposite parties.
As the complainant has sustained mental agony apart from financial loss due to the wrong calculation and granting a lesser pension she is entitled to get a reasonable compensation and costs of the proceedings. The points answered accordingly.
Point No.3
In the result the complaint stands allowed in the following terms.
- The 1st opposite party is directed to extend monthly pension @ Rs.1121/- with effect from 30.05.2010 along with interest @ 6% p.a till realisation of the arrears of monthly pension.
- The opposite parties are also directed to pay compensation to the tune of Rs.10,000/- and costs Rs.5000/- to the complainant within 45 days from the date of getting a free copy of the order.
Though the complainant would claim Interim relief to the monthly pension @ 17.5% p.a from 30.05.2010, there is no pleadings and evidence for allowing the same. Hence that prayer stands dismissed.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 31st day of December 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Vijayamma
Documents marked for the complainant
Ext.P1 : Copy of Pension Payment Order
Ext.P2 : True copy of EPS Statement
Ext.P3 : Copy of Application for monthly pension
Ext.P4 : Copy of details of break in service
Witness examined for the opposite party:-
DW1 : Sunilkumar
Documents marked for the opposite party:-
Ext.D1 : Copy of details of break in service
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
