REGIONAL PROVIDENT FUND COMMISSIONER TRIVANDRUM vs KOCHIKA THEKKEMUKALI VEEDU

APPELLANT is the 2nd opposite party in O. P. 50/5 filed by the complainant for sanctioning to her pensionary benefits under the Employees Pension Scheme, 1995 (for short 1995 Scheme) and the lower Forum (CDRF, Kollam) accepted the case of the complainant that she is entitled to pensionary benefits on the ground that she had more than 10 years of service which entitled her to claim pensionary benefits. The operative portion of order reads as under: "the complaint is allowed directing the Ist opposite party to release all pensionary benefits to the complainant from 2. 4. 2000 calculating the services of the complainant in both accounts No. KR 1268/1490 and No. KR 1268/176. The pensionary benefits carry 9% interest from the date of order. There is no order as to compensation and cost. The order is to be complied within one month from the date of order. "

THE order passed by the lower Forum is challenged before us on the ground that complainant received the provident fund benefits as early as in the year 1989 (13. 7. 1989) and ceased to be a member of Employees Provident Fund Scheme, 1952 (for short 1952 scheme) on receiving the benefits in the year 1989. After the 1st opposite party became the owner of the cashew factory where the complainant was employed, she had again joined the 1952 Scheme in the year 1991 (on 1. 4. 1991) and the new account number assigned to her was 1268/1490. As she had joined the 1952 scheme only in the year 1991 and her date of birth is 1. 4. 1942 she was not eligible for pensionary benefit under 1995 Scheme on the ground that she had only a total service (both actual and past service) of less than 10 years and she had attained 58 years in the year 2000. The question that is to be considered in this appeal by us is as to whether the lower Forum is justified in passing the order directing the 2nd opposite party who is the appellant herein to sanction pensionary benefits holding that she is eligible for pension on the ground that her service is to be computed on the basis that she had joined the 1952 Scheme as early as in the year 1969.

It is clear from the termination notice issued to the complainant by the 1st opposite party that her service was terminated by the 1st opposite party with effect from 31. 12. 2001 asserting that she had attained 58 years on 31. 12. 2001. That fact is evidenced by Ext. P1 produced by the complainant herself. Her form No. 10d application for sanctioning pension was rejected by the appellant and returned to her on the ground that on verification of various documents produced by her the office of the appellant confirmed that her year of birth is 1942 and as such she had attained 58 years as on 1. 4. 2000 and is not having the required minimum eligible service of 10 years for getting monthly pension. Ext. P2 was sent by the appellant rejecting complainant''s claim for pensionary benefits on the above stated grounds.

WE cannot accept the assertion of the complainant that her date of birth is 24th March, 1943 and in order to support her case on that aspect she has not produced any reliable documentary evidence. She has produced a certificate evidenced by Ext. P3 issued by the village officer that her date of birth is 24th March, 1943 and it is asserted in that certificate that such a certificate was issued by the village officer on the basis of the evidence given by the witnesses. We cannot place any reliance on Ext. P3 produced by the complainant to prove her date of birth on the ground that Ext. P3 does not disclose as to whether the witnesses who gave evidence before the village officer regaring the date of birth of complainant are the near relatives of the complainant who are having direct knowledge regarding the date of birth of the complainant or evidence was given by persons who have special knowledge regarding the date of birth of the complainant. In Form No. 9 declaration produced by the appellant evidenced by Ext. D1 her retirement date is shown as 31. 12. 2001. Form No. 2 declaration is not produced by the appellant. Though in Ext. D1 complainant''s age is shown as 49 years no reliance could be placed on it on the ground that there is no material before us to show that age of complainant was entered in Ext. D1 on the basis of information furnished by the complainant. There is no case for the appellant that Form No. 2 was not forwarded to it by the erstwhile employer of complainant as enjoined under paragraph 33 of 1952 Scheme. Form 2 is in its possession or custody and adverse inference is to be drawn against it.

IT is an undisputed fact that the complainant joined the 1952 Scheme as early as in the year 1969 and she withdrew all the provident fund benefits in the year 1989. Thus she ceased to be a member of 1952 Scheme on withdrawing the benefits under 1952 Scheme. It is also not in dispute that after the management of the factory was changed and the 1st opposite party became the owner of the factory she joined again in the 1952 Scheme in the year 1991 and the 1995 Scheme came into force with effect from 16. 11. 1995. It is clear from the case set up in the written version that at the time of introduction of 1995 Scheme the complainant was a member of 1952 Scheme i. e. , she joined in that scheme in the year 1991. She was a member of Employees Family Pension Scheme, 1971 (for short 1971 Scheme) and a member of 1971 Scheme ceases to be a member of that scheme on attaining 60 years. So at the time of joining 1952 Scheme in the year 1991 she had not ceased to be a member of 1971 Scheme and we can only proceed on the premise that complainant ceased to be a member of 1971 Scheme only on 15. 11. 1995. The expressions eligible member, existing member, actual service and past service are relevant for deciding the question whether the complainant is entitled to pensionary benefits as found by the lower Forum. "actual service means the aggregate of periods of service rendered from 16th November, 1995 or from the date of joining any establishment whichever is later, to the date of exit from the employment of the establishment covered under the Act. " "eligible member means an employee who is eligible to join the employees pension scheme". "existing member means an existing employee who is a member of the Employees Family Pension Scheme, 1971. " "past service means the period of service rendered by the existing member from the date of joining employees family pension fund till 15th November, 1995. "

There is no case for the parties that after the change of management or acquiring right of ownership by the 1st opposite party complainant discontinued to be an employee of the factory for some period and joined again in the year 1991. Paragraph 6 of 1971 Scheme deals with the retention of membership of 1971 Scheme and paragraph 6 says that member of family pension fund shall continue to be a member of the Family Pension Fund till he becomes entitled to withdraw the benefits to which he is entitled under this scheme or dies during the period of reckonable service, whichever is earlier (the proviso is not relevant for our consideration ). Paragraph 32 of 1971 Scheme deals with retirement-cum-withdrawal benefits. Paragraph 32 is extracted below: retirement-cum-withdrawal benefits-On attaining the age of 60 years or on cessation of membership from the Family Pension Fund before attaining the age of 60 years for reasons other than death (benefit at the rates specified in the schedule appended to the scheme shall accrete to the member of the Family Pension Fund) subject to the condition that he has contributed to the Family Pension Fund for a period of not less than one year. Explanation - For determining the number of full years of contributions paid, the period of reckonable service on different spells, if any, under paragraph 6 of the Scheme shall be included.

THE complainant became entitled to withdraw benefits under 1971 Scheme from 16. 11. 1995. There is no case of parties that complainant withdrew the benefits under 1971 Scheme before 16. 11. 1995.

IT is not disputed before us that complainant continued to be an employee of the factory from the year of joining (1969) till she retired on 31. 12. 2001 though there was change of management or change of ownership. She continued to be a member of 1971 Scheme till 15. 11. 1995. Her past service was from 1971 to 1995 that is 24 years and her actual service is from 16. 11. 1995 till 2001 till she ceased to be a member of 1995 Scheme on attaining 58 years that is from 16. 11. 1995 to 2001. Thus the appellant was not justified in refusing pensionary benefits under the 1995 Scheme holding that she was having only service of less than 10 years. Therefore, we are not in a position to accept the contention of the appellant that complainant was not entitled to pensionary benefits. For entirely different reasons, we are of the view that complainant is entitled to pensionary benefits. Appellant is directed to sanction pensionary benefits to the complainant/respondent in accordance with law. Appeal is disposed of accordingly. In the facts and circumstances of the case no order as to costs. Appeal disposed of.