State Consumer Disputes Redressal Commission
Basheer vs The Asst. Provident Fund Commissioner on 24 April, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/307 (Arisen out of Order Dated 08/03/2012 in Case No. CC/07/120 of District Kollam) 1. BASHEER S/O HANEEFA,OTTATHENGUVILA VEEDU,ANCHAL KOLLAM KERALA ...........Appellant(s) Versus 1. THE ASST.PF COMMISSIONER OLD MUNCIPAL BUILDINGS,CHINNAKADA KOLLAM KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.307/12
JUDGMENT DATED 24.4.2013
(Against the order in CC.120/07 on the file of CDRF, Kollam dtd:08.03.12)
PRESENT
SHRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER Basheer S/o Haneefa, Ottathenguvila Veedu, -- APPELLANT Anchal, Kollam. (By Adv. Dharmarajan) Vs. 1. The Asst. Provident Fund Commissioner Employees Provident Fund Organization, Old Municipal Building, Chinnakkada, Kollam. -- RESPONDENTS 2. The Betty Cashew Company, Channapetta, Kollam 691 311 Reptd. by its Proprietor,Benny George. (By Adv.K.V.Karma Chandran) JUDGMENT SHRI.K.CHANDRADAS NADAR:JUDICIAL MEMBER
The appellant was the complainant in CC.120/07 in the CDRF, Kollam. The complainant was a worker in the Cashew Factory owned and managed by the second opposite party. He was working as Maistery in Peeling Section. After his retirement, Provident Fund retirement pension was sanctioned to him. Not satisfied with the amount of pension sanctioned, he approached the forum alleging that he entered into service under the second opposite party establishment in the year 1980. He retired from service on 30.6.02 on attainment of 58 years of age. His pensionable service included past service from 1.7.81 to 15.11.95 and actual service from 16.11.95 to 30.6.2002. Thus he had total pensionable service of more than 21 years making him eligible for 2 years weightage. So his pension ought to have been calculated on the basis that he had 23 years of service. There was error in calculating the pensionable salary also. Hence the complaint.
2. The 1st opposite party contended before the forum that as per the certificate issued by the 2nd opposite party there was a continuous break for one year prior to 1.4.88. As per the proviso to Section 2 (F) of the Employees Provident Fund Scheme 1971 such period cannot be regularized and his service up to 31.3.88 is treated as ceased and commenced again from 1.4.88 to 15.1.95 which is only 7 years and 7 months including 1110 days of non contributory service which was regularized by diverting Rs.1926/- from PF account. His wages as on 16.11.95 was Rs.1228/- and not Rs.3666/- as claimed by him. Wages on attaining 58 years of age was Rs.2808/-. As per rules, the pension payable was only Rs.184/- after commutation. Since he has not completed 20 years of pensionable service he is not entitled to any weightage. There was no deficiency in service on the part of the 1st opposite party.
3. Before the forum, the complainant gave evidence as PW1. Exts.P1 to P3 were marked on his side. One witness was examined on the side of the opposite parties and Exts.D1 to D4 were marked on their side. As per the impugned Judgment, the forum held that deficiency in service is not established against opposite party No.1 and accordingly dismissed the complaint.
4. Before this Commission, the complainant produced one document along with IA.No.614/12 to accept the same as additional evidence. The document is issued by the 2nd opposite party and it shows the salary and the number of days during which the complainant had worked during the period from July 2001 to June 2002 which is necessary for computing the pensionable salary. It appears to be a relevant document. The explanation is that in the earlier certificate issued the number of days on which the complainant worked was not shown. This document is necessary to take a just decision in the appeal. Hence the document is admitted in evidence and is marked as Ext.P4.
5. The only question that arises for consideration in this appeal is whether the forum rightly found that there was no deficiency in service on the part of the 1st opposite party?
6. Admittedly, the complainant was a maistery in the Peeling Section at the Cashew Factory owned by the 2nd opposite party. There is no dispute that he joined the EPF scheme of the 1st opposite party on 1.7.1981. He retired from service on 1.7.2002 on attainment of 58 years of age. For the purpose of calculating pension in such cases both pensionable service and pensionable salary will have to be taken into account. It is not disputed that in the case of the complainant, the service included past service as per Employees Family Scheme in 1971 and actual service as per Employees Provident Fund Scheme. The complainant claimed past service from 1.7.81 till 15.11.95. This is disputed by the 1st opposite party. According to them, the complainant has break in service for more than one year and therefore it should be deemed that the service was terminated and commenced again from 1.4.88 . If that be so, he had only past service of 7 years and 7 months. This argument is advanced based on Section 2 (F) of Employees Family Pension Scheme 1971. It defines reckonable service. It reads:
Reckonable service means service rendered by a member of the Family Pension Fund in respect of which contributions are payable under this scheme and includes any period of service in respect of which no wages are drawn by such member on account of temporary closure of the establishment, strike, lock-out or leave without pay, or for any other reason, of a similar nature or otherwise, and in respect of which contributions (both the member's and employer's shares) are payable by diversion from his Provident Fund Account as provided in sub-paragraph (2-A) of Paragraph 9 of this Scheme and also includes any period of service in respect of which wages are drawn but no contributions are payable in terms of sub-paragraph (4) of paragraph 9 and which shall be deemed to have been paid for purposes of paragraphs 28, 31 and 32 of this scheme.
7. The second proviso is also relevant. As per Section 2 (F) reckonable service includes any period of service in respect of which no wages are drawn on account of temporary closure of the establishment, strike, lock out etc. But as per the proviso if no wages was drawn in excess of one year such period cannot be taken as reckonable service. So, the period must be in excess of one year. The definite contention in Paragraph 3 of the version of the 1st opposite party is that as per the break certificate of the complainant forwarded by the 2nd opposite party there was a break of one year during the period 1987 - 88. So, the break in service alleged is for one year and not in excess of one year. The break certificate referred to in the version is marked as Ext.R2. As per Ext.R2 also in 1987 only the complainant had not worked. This is one year and the contention in the version is in tune with Ext.R2. The argument that there was break in service for more than one year is seen taken at a belated stage. Provident Fund Scheme is implemented as a welfare measure for the employees and the 1st opposite party cannot be allowed to refuse eligible pension on flimsy ground. It is quite obvious that in discarding service up to 1.4.88, the 1st opposite party acted against the provisions of law. As per paragraph 2 (F) of Employees Provident Fund Scheme 1952, an employee is excluded from the scheme only when he has withdrawn the full amount of his accumulations in the provident fund and in certain other contingencies such as drawing salary exceeding Rs.6500/- per month. None of these conditions apply in the present case. Hence the complainants past service actually extends up to 15.11.95 from his date of entry into the scheme on 1.7.81. Relating to his actual service there is no serious dispute. So his pensionable service will have to be calculated accordingly.
8. Regarding the pensionable salary the main contention of the 1st opposite party is that the number of days in which he had worked was not available. Now that Ext.P4 is produced by the complainant the pensionable salary can be calculated in accordance with the relevant rules. It can thus be seen that the 1st opposite party has not sanctioned the eligible pension to the appellant which amounts to deficiency in service on their part. Hence the appeal is liable to be disposed of with suitable directions.
In the result, the appeal is allowed. The order of CDRF, Kollam in CC 120/07 dated 8.3.12 is set aside. The 1st opposite party shall calculate the eligible pension of the appellant on the basis of past service from 1.7.81 till 15.11.95 and actual service there after till his retirement in the light of Ext.P4 certificate and disburse the same with arrears within 3 months from the date of receipt of the copy of this order, failing which the 1st opposite party shall pay compensation of Rs.5000/- each for every months delay. Considering the facts of the case, the parties are directed to bear their respective costs in the appeal.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
A.RADHA : MEMBER
SL
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER