Provident Fund Commissioner Hubli vs KRISHNA

THIS revision petition has been filed by the Assistant Provident Fund Commissioner, Hubli (hereinafter referred to as the ''Petitioner '') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Karnataka (hereinafter referred to as the ''State Commission '') in Appeal No. 2295/2006 in favour of Krishna (hereinafter referred to as the ''Respondent '').

IN his complaint before the District Forum, the Respondent/Complainant had stared that he had been working as a Cinema Operator at Vandana Talkies, K.R. Puram, Shimoga City and after his retirement from service on 1.10.2000, he applied to the Petitioner for settlement of his pension and provident fund by filing his claim in the prescribed Form No. 10. He also completed various formalities as prescribed by the Petitioner. However, Petitioner did not pay him his full claim on the grounds that in the nomination form furnished by him, his date of birth was shown 1.9.1940 whereas in his School Leaving Certificate and details supplied by his employer, his date of birth was shown as 25.4.1936. Petitioner paid him only Rs. 47,704. Respondent issued a legal notice in which he stated that his illiterate parents had wrongly given his date of birth as 25.4.1936 in his school whereas his actual date of birth was 1.9.1940 and therefore, Petitioner should settle his claim by treating his date of birth as 1.9.1940. However, despite this clarification which was confirmed from the service records of the Respondent, Petitioner did not heed his request and Respondent, therefore, filed a complaint before the District Forum requesting that the Petitioner be directed to treat his date of birth as 1.9.1940 and settle his claim with regard to the full pension and provident fund amount due to him along with Rs. 15,000 as damages as well as litigation and other costs. Petitioner denied the above allegations and stated that the case of the Respondent was settled strictly as per the Employees '' Pension Scheme, 1995 which is relevant in the present case taking into account as per the Scheme the date of birth of the Respondent and his period of service during which there was contribution towards provident fund and pension. Since, two dates of birth were available in the instant case, Petitioner was fully justified in seeking further proof/clarification from the Respondent to decide regarding his actual date of birth. The Petitioner concluded that after due consideration it was decided was his School Certificate indicating his date of birth as 25.4.1936 was a more authentic and credible proof of his actual age. Even as per normal practice, it is the School Certificate which is usually taken as an authentic proof of age. Further, as per the documents made available by the Respondent his pension and provident fund contributions commenced in 1987 and no proof was provided of any earlier contribution prior to 1987. Taking into account these facts and treating his date of birth as 25.4.1936, the Respondent attained the age of superannuation in 1996 after rendering service of only 8 years and 7 months and not the required service of 10 years as per the Scheme. Under these circumstances, the claim of the Respondent was rightly settled at Rs. 47,704 and he was not entitled to more enhanced provident fund or pension amount based on 18 years of service as concluded by Respondent.

THE District Forum after hearing the parties and considering the evidence filed before it allowed the complaint by accepting Respondent ''s date of birth as being 1.9.1940 and observing as follows: "According to the school record dote of birth of the complainant shown as 25.4.1936 and according to the service record his date of birth is shown as 1.9.1940. Complainant belongs to illiterate family migrate from village side and there might have been a mistake occurred in his school records and the service record is more authenticated record. It is possible in India while admitting the complainant to the school, the person who has filled the form might have given, wrong information due to illiteracy or lack of information. "

The District Forum, therefore, directed that the Petitioner to settle the full claim of the Respondent with regard to the pension and provident fund amount as per the date of birth recorded in the service records i.e. 1.9.1940 and also pay him Rs. 15,000 as damages and Rs. 2,000 towards litigation costs.

AGGRIEVED by this order, Petitioner filed an appeal before the State Commission which upheld the order of the District Forum by accepting Respondent ''s contention that his date of birth was actually 1.9.1940 and the school records which indicated that his date of birth was 25.4.1936 cannot be relied upon since there was also some overwriting on it. Aggrieved by the order of the State Commission, Petitioner filed a revision petition before this Commission which was dismissed. Hence, the present review application. Notice sent to the Respondent was received back with the postal remark "not claimed ". However, since the points involved in this case required interpretation of Rules and since Respondent appear to be a very poor person, in order to do complete justice to both parties, it was decided to seek the assistance of a lawyer on behalf of the Respondent. This Commission, therefore, appointed Mr. Sanjoy Kumar Ghosh, Advocate as Amicus Curiae to conduct this case on behalf of the Respondent.

COUNSEL for Petitioner and the Amicus Curiae made oral submissions. Counsel for Petitioner pointed out that as per documents supplied by the employer of the Respondent, it was clearly indicated that contribution towards pension and provident fund started from 1.9.1987 and Respondent ''s date of birth was also stated as 25.4.1936 in the concerned document (i.e. Form No. 9). No evidence was produced before the Fora below that Respondent/his employer had contributed any pension/provident fund prior to 1.9.1987. Therefore, the Respondent ''s contentions that he had actually been working from 1966 is not confirmed by any evidence documentary or otherwise except for his own statement. Regarding the date of birth, Respondent ''s contention that his parents had given a wrong date of birth is a mere conjecture and is not borne out by any credible evidence to support the same. In fact, the overwriting in the School Leaving Certificate was only in respect of the name of the Respondent ''s father which perhaps was made by the Respondent himself to devalue the authenticity of the School Leaving Certificate. Since Respondent joined the Scheme in 1987 and he superannuated at the age of 58 years in 2000, he had not completed 10 years of service as required under Section 12 of the Employees '' Pension Scheme, 1995. The Fora below erred in not appreciating these facts.

THE Amicus Curiae while conceding that there was no documentary evidence on record to support the Respondent ''s contention that he/his employer had made any contribution towards Provident Fund/Pension prior to 1.9.1987 now ever submitted that the Fora below being Courts of fact had after considering the evidence on record concluded that the service records of the Respondent indicating his date of birth as 1.9.1940 was a more credible document than the School Leaving Certificate and if this is accepted then it was rightly concluded by the Fora below that Respondent attained age of superannuation only in 2000 and, therefore, the contributions towards Pension and Provident Fund Scheme were for more than 10 years as required under the Employees '' Pension in 1995. We have heard both learned Counsel for Parties and have carefully considered the evidence on record. We find force in the contention made by the Counsel for Petitioner that there is credible documentary evidence on record which is the Respondent ''s employer certificate in Form No. 9 that Respondent joined the Provident Fund and Pension Scheme only in 1987 and, therefore, the contributions started from that date. In the same Form, it is clearly stated that the Respondent ''s date of birth is 25.4.1936 and, therefore, Respondent had not put in the required 10 years of contributory service and was thus not entitled to Pensionary/Provident Fund benefits for the period as claimed by him. We have also gone through the School Certificate which clearly indicates the Respondent ''s date of birth as being 25.4.1936. The minor overwriting in the certificate is in respect of the Respondent ''s father ''s name and not in respect of Respondent ''s date of birth. Further, there is a clarificatory letter from the concerned School authorities confirming that the Respondent was a student in that School from 1943-44 to 1946-47 and that his date of birth as per the School records was 25.4.1936. We further note that the Respondent himself in the various forms submitted under his signature to the Regional Provident Fund Commissioner has indicated is date of birth at one place as 1.9.1940 and in the same Form at another place as 25.4.1936. More importantly, the Respondent has not produced any credible evidence in support of his contention that his actual date of birth is 1.9.1940 and not 25.4.1936. A perusal of the order of the District Forum in this connection reproduced earlier indicates that the conclusion of the District Forum that the Respondent ''s date of birth was 1.9.1940 and not 25.4.1936 is based merely on conjectures e.g. that a mistake "might " have occurred or wrong information "might " have been given by the Respondent ''s parents due to their being illiterate, etc. We are, therefore, of the view that the Fora below erred in concluding that the date of birth of the Respondent was 1.9.1940 and not 25.4.1936 by not giving due evidentiary value to the School Certificate which is usually taken as authentic proof of age. Further, the only documentary evidence on record from the Respondent ''s employer and submitted by the Respondent himself to the Provident Fund authorities clearly indicates that Respondent had joined the Scheme on 1.9.1987 and there is no evidence whatsoever of any contributions made either by him or by his employer in respect of the Provident Fund and Pension prior to that period. Thus, it is clear from the above that the Respondent ''s contribution to the Pension and Provident Fund Scheme began on 1.9.1987 and concluded after 8 years and 7 months in the year 1996 on his attaining the age of superannuation i.e. 58 years and, therefore, he was not entitled to the Pensionary and other benefits for over 10 years of service as claimed by him. We, therefore, set aside the orders of the Fora below and allow the revision petition with no order as to costs. Revision Petition dismissed.