IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 3535 of 2007(U) ---------------------------------- PETITIONER(S): ---------------------- M.PADMANABHAN, S/O.KUNHIRAMAN, KALATHIL HOUSE, P.O. PATHIRIYAD, KANNUR DISTRICT. BY ADV. MR.CIBI THOMAS RESPONDENT(S): ------------------------- 1. ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, P.B.NO.117, KANNUR. 2. THE SANKARANELLUR WEAVERS (SERVICE), CO-OPERATIVE P & S SOCIETY TLD., PATHIRIYAD P.O., SANKARANELLUR, KANNUR DISTRICT, REP.BY ITS SECRETARY. BY. MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3535/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LAWYER NOTICE ON 18.10.06 . P2:- COPY OF THE CERTIFICATE SHOWING THE DATE OF BIRTH OF THE PETITIONER AS 16.6.45. P3:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 28.11.06. P4:- COPY OF THE CERTIFICATE DT. 15.12.06 OBTAINED FROM THE SCHOOL AUTHORITIES SHOWING PETITIONER'S DATE OF BIRTH AS 16.6.1945. P5:- COPY OF THE LETTER SUBMITTED BY THE 2ND RESPONDENT BEFORE THE IST RESPONDENT DT. 19.12.06. /TRUE COPY/ P.A. TO JUDGE tss P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 3535 of 2007 ====================== Dated, this the 19th day of February, 2009 J U D G M E N T The main relief prayed for in this writ petition is to quash Exhibit P3, which admittedly is a reply notice sent by the first respondent in response to Exhibit P1 lawyer's notice and the other prayer is for a direction to the first respondent to re-fix and grant pension to the petitioner, taking note of the contents of Exhibits P3, P4 and P5 showing his actual date of birth as “16-6-1945” instead of the entry shown as 16-6-1943 in the records already furnished to the first respondent and has entered in their registers. 2. It is stated by the petitioner that he joined the second respondent on 1-1-1991 and retired from the service on 17-6-2003. According to him, he should have been given the pension at the rate of Rs.700/- per month, whereas his pension fixed and given is only @ Rs.325/- per month. It is W.P.(C) No. 3535/2007 -:2:- contended that the reason pointed out from the part of the first respondent, placing reliance on the date of birth shown in their records as '16-6-1943', is not correct or sustainable and that the actual date of birth as evidenced from Exhibits P2 and P4 certificates issued from the concerned school, where the petitioner had pursued his studies is 16-6-1945 which should have been entered in the relevant records as demanded in Exhibit P1 lawyer's notice and as per Exhibit P5 submission putforth from the part of the second respondent/employer. 3. The stand of the first respondent is very much discernible from Exhibit P3 reply notice sent in response to Exhibit P1 lawyer's notice, where it is stated that as per the initial return in Form 9 submitted by the employer of the establishment, the age of the member/petitioner was shown as 48 years as on 1-1-1991. It is also pointed out that neither the employer nor the member/petitioner had made any representation for changing the date of birth W.P.(C) No. 3535/2007 -:3:- during the entire period of service. Reliance is also sought to be placed, on the instructions by the Central Provident Fund Commissioner holding that the age/date of birth as declared by the member vide Form 2 at the time of joining as a member of the Provident Fund and certified/forwarded by the employer will be valid and that this will not be altered or changed under any circumstance. 4. Obviously, the prayer seeking to quash Exhibit P3, which is the reply notice sent in response to Exhibit P2 lawyer's notice is rightly stated as not pressed by the learned counsel appearing for the petitioner. With regard to second prayer, there is no case for the petitioner that the observations made by the first respondent as to the facts and figures as given in Exhibit P3 reply are wrong or that the date of birth furnished by the petitioner in Form 2 and certified and forwarded by the employer/second respondent to the first respondent was a different one. W.P.(C) No. 3535/2007 -:4:- Equally or more so, is the position since there is no case that the mistake, if any, was committed by the second respondent/employer (emphasis supplied) and that the petitioner cannot be mulcted with any adverse consequence, as he had furnished the date of birth correctly as 16-6-1945. 5. It appears that the second respondent presumably on the basis of the submission from the part of the petitioner, permitted him to continue in service. Even after 17-6-2001, till he was relieved from the service on 17-6-2003, contributions were made to the first respondent. It is pointed out by the learned counsel appearing for the first respondent that the contributions wrongly collected in respect of the period from 17-6-2001 till 17-6-2003 has already been returned to the petitioner. The learned counsel for the petitioner submits that, though he is in receipt of the amount returned, the entire amount paid to the first respondent towards contribution W.P.(C) No. 3535/2007 -:5:- has not fully been repaid, which, however, is a matter to be pursued by the petitioner and it does not form subject matter of the present writ petition. The petitioner has not been able to point out any material lapse, fault or irregularity on the part of the first respondent in entering the date of birth of the petitioner in their records as '16-6- 1943' and as such, it cannot be said that there is failure of any statutory duty cast upon the first respondent so as to sustain interference of this Court. In the above facts and circumstances, this court does not find any merit in the writ petition, which is dismissed accordingly. Sd/- P.R.RAMACHANDRA MENON, JUDGE. Skr // True copy // P.A. to Judge.