Judgment:
COMMON JUDGMENT:
JUSTICE SHRI. K.R. UDAYABHANU, PRESIDENT
The appellant in Appeal No. 325/2009 is the complainant/employee and the appellant in Appeal No. 422/2009 is the first opposite party/Assistant Provident Fund Commissioner in CC No. 121/2007 in the file of CDRF, Kollam. The complaint was allowed in part, against which both sides have filed appeals.
2. The case of the complainant is that she was working at Palkulangara Cashew Factory owned by the second opposite party/Cashew Development Corporation. She joined on 24-05-1972 as a shelling worker. She was a member of the Employees Provident Fund. In 1973 she became a clerk-trainee. She continued in service till 30-06-2000. She continued in the Provident Fund Employees Pension Scheme till the above date. At the time of introducing the Employees Pension Scheme 1995 she was already a member of the Employees Family Pension Scheme 1971. Her pensionable service as past service is 22 years and eligible service is 5 years. Her past service and actual service comes to 27 years. As she has rendered more than 20 years service she is entitled to the weightage of 2 years vide para 10(2) of the Employees Pension Scheme 1995. Hence the complainant has a total service period of 29 years. Hence her past service is 22 years and actual service is 7 years. As per para 11 of the Employees Pension Scheme 1995 the pensionable salary is the average monthly pay during the contributory period of service in the span of 12 months preceding the date of exit. The total monthly salary during the above period comes to Rs. 63,261.2 after deducting House Rent Allowance. The salary during the month of June 2000 was Rs. 5395.40. Her average monthly salary comes to Rs. 5271.75 which is limited to Rs. 5,000/- under para 11(3). Para 12(5) of the Scheme is applicable in her case. The pension for actual service has to be calculated as
Pensionable Salary of Rs.5000/- X Pensionable Service of 7 years
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70
With respect to the past service para 12 (3)(b) is applicable. She was drawing more than Rs. 2,500/- at the time and had more than 20 years past service. Hence on completion of the age of 58 years after 16-11-1995 the benefit under clause (2) or (3) has to be multiplied by the factor given in table B. Hence the same would be Rs. 2.044 X 170 which comes to Rs. 347.480. Hence the complainant would be entitled to get the full pension of Rs. 847/-. The first opposite party has determined her pension as Rs. 585/- only.
3. The second opposite party/employer remained absent.
4. The first opposite party/Provident Fund authorities has contended that the pension sanctioned ie, Rs. 585/- is strictly as per the rules. It was also contended that the complaint is barred by limitation. (The above point appears to have not been pressed as it was not considered in the order of the Forum and also not raised in appeal by the Counsel concerned) As to the joining of the scheme etc. by the complainant no dispute is raised. It is admitted that she completed 58 years as on 24-06-2000. Subsequently, she retired from service on 31-12-2002. On completion of 58 years she applied for monthly pension under EPS 1995. The pension was sanctioned as calculated under para 12 of the EPS. Her membership in EPS 1995 ceased on 24-06-2000. Para 10 clause 2 of EPS 1995 is not applicable as the complainant had only 5 years of pensionable service under EPS 1995. The average salary of 12 months preceding the date of attaining 58 years comes to only Rs. 4,974/-. The wages of the complainant as on 16-11-1995 was Rs. 2,350/- and hence the benefit provided under para 11(3)(b) is Rs. 150/-. She had completed 4 years 5 months and 10 days for completing 58 years and hence the corresponding factor in table B vide para 12(3)(c) is 1.536 which is for the period of less than 5 years. Hence 1.50 X 1.536 comes to Rs. 230/-. Hence the pension for the period of past service and service subsequent to the commencement of EPS Scheme 1995 comes to Rs. 585/-.
5. Evidence adduced consisted of the testimony of PW1, DW1, P1 and P2.
6. The Forum has held that the wages of the complainant for the past period of service has to be taken as Rs. 2,500/- as on 16-11-1995, the date of commencement of EPS 1995, in the absence of cogent proof produced by the opposite party. Hence with respect to the past service the pension has to be worked out on the basis of the salary of Rs. 2,500/- and as having more than 20 years of past service. Although not computed by the Forum the same would work out to 170 X 1.536 = Rs. 261/-. The opposite parties had taken the figure as 150 X 1.536 = Rs. 230/-. The above amount is the pension with respect to the past service. With respect to the service subsequent to the commencement of EPS 1995 the opposite parties had sanctioned pension taking the average salary as Rs. 4,968/- and applying the formula (Rs. 4968 x 5/70 = Rs. 355/-). Hence the total as Rs. 585/- (Rs. 355 + Rs. 230). The Forum has ordered to pay pension for the period subsequent to the commencement of the Scheme of 1995 at Rs. 357/- taking the average salary as Rs. 5,000/- (Rs. 5000x5/70). It is the main contention of the complainant that waitage of 2 years should be provided as per para 10(2) of EPS 1995 to the complainant both for the period of past service as well as for the period subsequent to the commencement of EPS 1995. It is contended that the Scheme being a welfare legislation interpretation should be infavour of the worker. She has also sought for interest at 12% as provided under para 17 of EPS 1995 whereas the Forum has awarded interest only at 9%.
7. We find that the dispute with respect to the past salary and the average salary of 12 months raised by the opposite parties we find has no merits. With respect to the past salary the opposite parties have not produced the contribution card submitted by the employer. The worker may not be in a position to get the same. Hence in this regard the finding of the Forum that the complainant has got a wages of Rs. 2500/- as on 16-11-1995 do not call for interference.
8. So also the finding of the Forum that the average salary for the 12 months prior to the date of superannuation would come to Rs. 6,331/- per month and the same has to be limited to Rs. 5,000/- vide para 11(3) do not call for interference. The Forum has entered into the above figure on the basis of the salary certificate issued by the second opposite party, which has been produced by the complainant. We find that no interference in this regard is called for. It has also to be noted that the difference is only marginal, as the opposite parties have taken the amount as Rs. 4,968/-.
9. With respect to the case of weightage of 2 years vide para 10(2) the Forum has held that the above clause would apply only to persons having 20 years of service after 16-11-1995. As per the above interpretation para 10(2) would apply only to those persons who have entered into service after the commencement of this EPS 1995. It appears to us that the same do not appear to be logical as the legislature would not have intended for the operation of the above clause at a point of time beyond 20 years of the commencement of EPS 1995. The opposite parties have not brought to our notice any authority in this regard. As pointed out by the Counsel for the appellant the Scheme is a welfare legislation and in case of possibility of true interpretations the one in favour of the worker should be preferred. Hence we find that the complainant is entitled for a weightage of 2 years with respect to the pension for the period after the commencement of EPS 1995.
10. The contention of the Counsel for the complainant/appellant that the waitage should be provided for the past period of service as well, we find cannot be countenanced. Unless it is specifically so mentioned the addition of waitage at two times cannot be taken as intended by the legislature. Hence we find that the complainant is entitled for the pension for the period subsequent to the commencement of EPS 1995 taking the period of pensionable service as 7. Hence the calculation would be: Rs. 5,000X7/70 = Rs. 500/-. Hence the complainant would be entitled for a total pension of Rs. 761/-(Rs.500+ Rs.261). The complainant also would be entitled for interest at 12% in view of para 17 of EPS 1995 on the arrears of pension.
In the result, appeal No. 422/09 is dismissed and Appeal No. 325/2009 is allowed in part. The opposite parties are directed to pay the above amount of Rs. 761/- as pension to the complainant from the due date and in future. For the arrears she will be entitled for interest at 12%. The amounts are to be paid within 3 months from the date of receipt of a copy of this order, failing which the complainant would be entitled for interest at 15% from the date of this order.
In the result, Appeal No. 325/2009 is allowed in part and Appeal No. 422/2009 is dismissed.
The office will forward the LCR to the Forum urgently along with the copy of this order.