EMPLOYEES PROVIDENT FUND ORGANISATION vs NALINI

THE dispute that is to be resolved by us in this appeal is with regard to the age of the 1st respondent who filed the complaint before the Consumer Disputes Redressal Forum, Kollam as O.P. No. 118/2001 for granting to her pensionary benefits under the Employees Pension Scheme, 1995 (for short the 1995 scheme) asserting that her date of birth is 20.2.1116 (M.E.) and she was superannuated by her employer, opposite parties 1 and 2 in that O.P. on attainment of the age of superannuation on 31.12.2000.

THE claim for pensionary benefits is disputed by the appellant who is the 3rd opposite party in the O.P. 118/2001 on the ground that in the declaration in Form No. 2 and the statutory return in Form No. 9 it is entered that complainant was born in the year 1945 and as such she is entitled to full pensionary benefits only in the year 2003 and she can apply for reduced pension. To prove her case that she was born in the year 1940 and attained 58 years in the year 1998 complainant/1st respondent relies on extract of admission register evidenced by Ex. P4, the order passed by the employer terminating her service with effect from 31.12.2000 evidenced by Ex. P6, the order passed by the management correcting her year of birth as 1940 evidenced by Ex. P5 and Form No. 10 -D forwarded to the appellant for sanctioning pension to her evidenced by Ex. P7. The complainant asserted in the complaint that she found out a mistake in the service book regarding the date of birth and she requested for the correction of the same with the support of admission register issued by Govt. B.P.S., Parippally. She also asserted that management had corrected the date of birth as 22.2.1116 (M.E.) (17.9.1940) in the service book and connected records.

WE have to point out here itself that it is not the case of the complainant pleaded or proved that at the time of joining the provident fund scheme she had not furnished the particulars concerning her and her nominee and the particulars furnished by her were not entered correctly by the employer in Form No. 2 declaration. For resolving the controversy that has arisen between the parties we have to consider the binding nature of declaration in Form No. 2 evidenced by Ex. D1. Paragraph -33 of the Employees Provident Fund Scheme, 1952 (for short 1952 scheme) enjoins upon an employer to make entry regarding the particulars concerning an employee and his/her nominee furnished by him or her who is required or entitled to become a member of 1952 scheme and the employee is also under a statutory obligation when asked by the employer to furnish forthwith the particulars concerning her and her nominee required for declaration in Form No. 2. Further statutory duty cast upon the employer is to forward the declaration to the Provident Fund Commissioner. It is clear from the evidence of the complainant/1st respondent (she got herself examined as P.W. 1) that the particulars concerning her and her nominee were furnished by her to make entries in form No. 2 declaration. She admits that it was after her marriage she joined the service of the second respondent and her further evidence is to the effect that her age was entered as 30 years. It is also her evidence that at the time of joining PF scheme her nominees name was entered in the declaration in Form No. 2 Her husbands name is A. Thamarakshan and he is two years older to her. It is also admitted that in Form No. 2 declaration, her year of birth is also entered. It is also brought out from her in cross -examination that her employer could come to know the name of her husband and his age only in case of her furnishing the name of her husband and his age. She also admitted that she has affixed her thumb impression to form No. 2 declaration and also admitted Ex. D1 is the Form No. 2 declaration. In Ex. D1 her year of birth is entered as 1945. There is no material to show that the employer has incorrectly recorded her age in the Form No. 2 declaration. We cannot assume or presume that in Form No. 2 declaration her age was incorrectly entered by the employer on the ground that there is material to show that the other particulars entered in Form No. 2 declaration are entered correctly. It is not the case of the complainant that the employer made an incorrect entry regarding her age in Ex. D1 with an ulterior intention to deprive her the benefits under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 or any scheme framed there under. When other entries in Ex. D1 declaration were made correctly. It is not explained to us now it is possible to hold that her age alone was incorrectly happened to be entered in Ex. D1 declaration. The employer has not put forth such a case that by inadvertence or negligence her date of birth is entered in the declaration incorrectly. Such an entry in Ex. D1 declaration was made in performance of a statutory obligation created under paragraph 33 of the 1952 scheme. The entry made therein is binding both on the employer and the employee. Our above conclusion regarding the age of 1st respondent herein gets support from Ex. D2 the statutory return in Form No. 9.

WE cannot place any reliance on the extract of admission register produced by the complainant/1st respondent to prove her assertion that she was born in the year 1940. It is true that in the admission register her date of birth is shown as 17.9.1940. It is clear from Ex. P4 extract of admission register that was issued from the school where she joined as a student in the third standard and she has produced in that school at the time of joining that school transfer certificate. It is not the extract of admission register of the complainant where she was admitted in standard first or Class 1. The Supreme Court had occasion to consider the question whether the entry made in a school register showing the age of a person is to be accepted or not and to prove the date of birth and made the following observations in the decision in Sushil Kumar v. Rakesh Kumar,AIR 2003 SC 6005. 33. Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by a statutory authority in regular course of business would be relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.

In the aforementioned backdrop the evidences brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirement of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any reasonable person.

In Brij Mohan Singh v. Priya Narain Sinha and Ors., AIR 1965 SC 282, this Court, inter alia observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age of eligibility is often prescribed.

The entry of date of birth made in school admission register in terms of Section 35 of the Evidence Act should be considered from that perspective.

However, in Birad Mal Singhvi (supra), it was held ''......to render a document admissible under Section 35 three conditions must be satisfied, first, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specifically enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded.....''

Supreme Court also very recently dealt with the same question and held in State of Punjab v. Mohinder Singh, AIR 2005 SC 1476 thus: 11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32, Clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscope have been held to be inadmissible in proof of age [See Ram Narain Vallia v. Monee Bibi, (TLR 9 Cal. 613), Mst. Biro v. Atma Ram, AIR 1937 PC 101, Satish Chandra Mukhopadhya v. Mohendra Lal Pathak, ILR 97 Cal. 849].

On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32, Clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of ones birth relates to the commencement of ones relationship by blood and a statement, therefore, of ones age made by a person having special means of knowledge of the date of birth of complainant. We cannot attach any value to the age of complainant or date of birth shown in Ex. P5.

As observed by this Court in Umesh Chandra v. State of Rajasthan, 1982 (2) SCC 202, ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence may have utility. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constituted good proof of age. There is no legal requirement that the public or other official requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem mortam.''

THE three -Judge Bench of the Supreme Court had also occasion to consider the entry in school register to determine the question of the age of an accused in Ram Deo Chauhan @ Raj Nath Chauhan v. State of Assam AIR 2001 SC 2159 and held thus: ''It is not shown that the school register was maintained by a public servant in the discharge of his official duty or by any other person in the performance of a duty specifically enjoined by the law of the country in which such register is kept. Thus the entry in the school register remains away from the range of acceptability as proof positive regarding the date of birth of the petitioner''.

FURTHER there is no material before us to show that date of birth of complainant/1st respondent was entered in the admission register on the basis of information furnished by the parents of her by any person who had special means of knowledge regarding the date of birth of the complainant. It is also not in evidence that such an entry was made in performance of statutory duty by the school authority. So no reliance could be placed on the date of birth given in Ex. P4 admission register produced by the complainant/1st respondent. It could be seen from Ex. P5 that the employer corrected her date of birth on the basis of Ex. P4 extract of admission register. As it is clear from the decision rendered by the Supreme Court that no reliance could be placed on the admission register to prove the age of a person it goes without saying that the correction of the date of birth of the employee by the employer on the basis of such an admission register cannot be attached any value. The further ground not to rely on the fact of correction of the date of birth of the employee by the employer on the basis of school admission register is that such a correction was made at the fag end of the service. So on the basis of the decision rendered by the Highest Court of the country we are inclined not to place any reliance on the fact of the correction of the date of birth by the employer. The employer had forwarded Form No. 2 declaration to the appellant under a statutory obligation and, therefore, the employer cannot be heard to say that the particulars concerning the employee furnished by her were not correctly entered in Form No. 2 declaration and, therefore, no reliance could be placed on the fact of superannuation of the employee by the employer evidence by Ex. P6 on 31.12.2000 asserting that she had attained the age of 60 years. We have already held the age of complainant/1st respondent shown in Ex. D1 is binding on the employee and the employer.

AS the complainant failed to prove her case that she had attained 60 years on the date of her retirement from the service it cannot be held that she was entitled to full pensionary benefits under the Employees Pension Scheme, 1995 in the year 2007. When she applied for pensinonary benefits in the year 2001 she had completed only 56 years as asserted by the appellant in the written version filed by it. So we have to justify the stand of the appellant that she was not entitled to full pensionary benefits at the time of making application under Form No. 10 -D and she is entitled to claim full pensionary benefits on attaining 58 years in the year 2003. As rightly contended by the appellant in the written version filed by it, it is open to the complainant to claim for reduced pension she is entitled to on the ground that she left the service on 31.12.2000.

OUR conclusion on the basis of forgoing discussion is that the order passed by the Forum below accepting the case of complainant/1st respondent is not sustainable and its direction to the appellant/3rd opposite parties to sanction pension with 12% interest from the eligible date is not sustainable. Taking into consideration subsequent event that she has completed 58 years on 1.7.2003 the appellant is to be directed to grant full pensionary benefits with effect from 1.7.2003. The appellant is fully justified in contending that the complainant/1st respondent is entitled to full pensionary benefits from 1.7.2003 and there is no deficiency in service on the part of appellant. Appellant is, therefore, not liable to pay interest on the pension payable to complainant/1st respondent from 1.7.2003. In the result the appeal is allowed and the appellant is directed to grant pensionary benefits to the complainant/1st respondent from 1.7.2003 (from 1.7.2003 she is entitled to full pensionary benefits). The parties are directed to bear and suffer their costs. Appeal allowed.