IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(C).No. 2199 of 2005(J) ------------------------- PETITIONER: --------------- CHERIAN MARIAM KUTTY W/O. CHACKOO THOOMBALAN, AGED 55, MULARIPPADAM, NADUVATTOM, MANJAPPRA, ANGAMALI. BY ADV. MR.S.D.ASOKAN RESPONDENTS: --------------- 1. THE EMPLOYEES PROVIDENT FUND ORGANISATION, KERALA REGION, REPRESENTED BY THE REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHYANIDHI BHAVAN, THIRUVANANTHAPURAM-1. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFFICE 36/685 A, BHAVISHYANIDHI BHAVAN, P.B.NO.1895, KALOOR, KOCHI-17. 3. THE PLANTATION CORPORATION OF KERALA LTD KOTTAYAM, PIN 686 004, REPRESENTED BY ITS GENERAL MANAGER. ADV. MR.JOSEPH KODIANTHARA FOR R3 MR.MITHUN MARKOS FOR R3 MR.S.GOPAKUMARAN NAIR, SC, P.F RFOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2199 of 2005(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: LETTER SENT BY THE MANAGER OF KALLALA ESTATE TO THE PETITIONER. EXT.P2: REPRESENTATION BY THE PETITIONER TO THE REGIONAL PROVIDENT FUND COMMISSIONER, COCHIN, DATED 17.8.2004. EXT.P3: LETTER DATED 19.8.2004 SENT BY THE MANAGER OF KALLALA ESTATE FORWARDING EXHIBIT P2. EXT.P4: COMMUNICATION DATED 25.8.2004 SENT BY R2 TO SRI.P.J.JOY, M.L.A. EXT.P5: ANNUAL STATEMENT OF ACCOUNTS FOR THE YEAR 1996-97 ISSUED BY R1. EXT.P6: EXTRACT OF THE ADMISSION REGISTER ISSUED BY THE HEADMISTRESS, THAVALAPPARA H.J.L.P.S. RESPONDENTS' EXHIBITS: EXT.R3(a): LETTER DATED 30.9.1992 OF R3 TO THE ASSISTANT PROVIDENT FUND COMMISSIONER. EXT.R3(b): EXTRACT OF THE DIVERSION STATEMENT MAINTAINED BY R3 IN RESPECT OF THE PETITIONER. .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- W.P(C).No.2199 of 2005 --------------------------------- Dated this the 17th day of February, 2010 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To issue a Writ of Mandamus or any other appropriate Writ, direction or order directing the respondents 1 and 2 to sanction monthly pension under Employees Pension Scheme-1995 forthwith. ii) To declare that the petitioner is entitled to get monthly pension under the Employees Pension Scheme- 1995. iii) To issue a Writ of Mandamus or any other appropriate Writ, direction or order directing the respondents 1 and 2 to disburse the petitioner arrears of pension w.e.f. the date of resignation. iv) To issue a Writ of Certiorari or any other appropriate Writ, direction or order calling for the records leading to Exhibit P4, quashing the same.” 2. The petitioner joined the estate of the 3rd respondent, Plantation Corporation as adolescent worker on daily wages on 1.12.1965. She opted for voluntary retirement due to ill health and retired from service on 30.09.2003. Her date of birth shown in the records was 16.7.1935. By order dated 8.3.1993 of the Corporation the date of birth was corrected as 12.5.1949. Ext.P1 is a communication issued to the petitioner by the Manager of the 3rd respondent Corporation intimating her regarding the correction of date of birth. W.P.(C).No.2199 of 2005 - J 2 3. The petitioner joined the Employees Provident Fund Scheme in the year 1969 and remitted contribution to the EPF from that year onwards. She did not join the Family Pension Scheme introduced in the year 1971. According to the petitioner, when Employees Pension Scheme 1995 was introduced, she opted to join the Scheme by submitting Form No.1 during 1996. It is stated that thereafter the employer had submitted diversion statement from 1.3.1971 to 15.11.1995. thereafter the petitioner remitted E.P.S contribution till her discharge in 2003. 4. The 3rd respondent, Corporation supported the case of the petitioner. The Corporation in their counter affidavit admitted that the date of birth of the petitioner has been corrected by order dated 8.3.1993 as 12.5.1949. It is further stated in the counter affidavit that the correction of the date of birth was intimated to the Assistant Provident Fund Commissioner, who is the 2nd respondent herein. In Ext.R3(a) letter it was informed that the Corporation had accepted the school certificate and corrected the date of birth of some workers including the petitioner. Assistant provident Fund Commissioner is requested to make necessary entries in Form No.II for future transaction. The 3rd respondent also produced the intimation containing a list W.P.(C).No.2199 of 2005 - J 3 of employees whose date of birth stands corrected. The 3rd respondent Corporation also produced Ext.R3(b) diversion statement which would go to show that the Corporation has been collecting contributions till the year 1995. Page No.2 of the counter affidavit of the 3rd respondent contains the details regarding the contribution made by the petitioner to the EPF for the period from April 1991-92 to April 2006-07. The statement in paragraph 2 also shows that the petitioner was making contribution up to April 2006-07. 5. This Court, during the course of hearing, directed the petitioner to produce the petitioner's admission register. Accordingly, the petitioner produced the abstract of the admission register issued by the Headmistress of Thavalappara H.J.L.P.S, Manjappra and marked as Ext.P6. The date of birth recorded in the admission register shows that her date of birth is 12.5.1949. The 3rd respondent Corporation send Ext.P3 communication to the Regional Provident Fund Commissioner requesting him to consider the representation of the petitioner. It is intimated in Ext.P3 that though she had joined EPF in 1969, she had not joined EPF Scheme when it was implemented in 1971, but, when the EPS was introduced in the year 1995, she W.P.(C).No.2199 of 2005 - J 4 had opted to join the Scheme through option in Form I during 1996. It was also informed that the Corporation had submitted diversion statement from 1.3.1971 to 15.11.1995 and afterwards the petitioner remitted the EPS contribution till her discharge in 2003. By the said communication the Assistant Provident fund Commissioner was requested to make necessary entires in Form No. II for future transaction. 6. From the datas furnished in page 2 of the counter affidavit of the 3rd respondent regarding the details of remittance for the period from April 1991-92 to April 2006-07 an amount of Rs.25,222/- has been paid as employers contribution and an equivalent amount is also paid as employees contribution. 7. The grievance of the petitioner is that after her relieving from service pension was not sanctioned under the monthly pension scheme. Her representation dated 17.8.2004 addressed to the Regional Provident Fund Commissioner, Cochin is marked as Ext.P2. Ext.P2 was sent along with a forwarding letter on 19.8.2004 by the Manager of the 3rd respondent Corporation and the same was marked as Ext.P3. 8. The stand taken by the respondents 1 and 2 is that the petitioner is not eligible for monthly pension because she had W.P.(C).No.2199 of 2005 - J 5 attained the age of 60 on 15.7.1995, on the date of introduction of the Employees Pension Scheme. It can be seen that the said stand was taken by respondents 1 and 2 for the reason that they are relying on the nomination dated 1.11.1969. Going by the corrected date of birth the petitioner attained the age of 60 only on 12.5.2009. It is a fact that the worker had been making contribution to the EPF Scheme from 1969 and continue to contribute till her discharge in 2003. Going by the diversion statement produced as Ext.R3(b) and the statement showing the details of payment for the period till 2006-07 the first respondent had accepted the petitioner's contribution as a member of EPF scheme. Ext.P5 is the true copy of the annual statement of account for the year 1996-97 issued by the first respondent evidencing the contributions made by the petitioner during the year 1996-97. The statement is attached to the letter dated 25.8.2004 by the Assistant Provident Fund Commissioner addressed to the Member, Kerala Legislative Assembly. 9. Respondents 1 and 2 prayed for dismissal of the writ petition. According to them, at the time of joining the PF, she has declared her date of birth as 16.7.1935 through the nomination in Form No.II dated 1.11.1969. They have produced W.P.(C).No.2199 of 2005 - J 6 the Form No.II as Annexure I. It is submitted by the respondents 1 and 2 that neither the petitioner nor her employer had ever requested to these respondents to change her date of birth in her nomination form. I have already referred to the communication issued by the Plantation Corporation of Kerala Ltd. which was produced and marked as Ext.R3(a). In the said communication correction of date of birth was intimated to the Assistant provident Fund Commissioner and further requested the Assistant Provident Fund Commissioner to correct the date of birth in Form No. II for future transaction. Therefore it may not be correct to say that neither the petitioner nor her employer had ever requested the respondents 1 and 2 to change her date of birth in Form No. II nomination. Respondents 1 and 2 maintained the stand as the date of birth of the petitioner was 16.7.1935, she attained the age of 58 on 15.7.1993 and 60 years on 15.7.1995, and therefore, the petitioner is not eligible for joining the Pension Scheme from 16.11.1995 under paragraph 6(d) r/w paragraph 7 (3) of the Pension Scheme or under any provisions of the said scheme. It is also submitted that the contributions wrongly made by the 3rd respondent from 1995 onwards has already been refunded to the petitioner, with interest admissible under W.P.(C).No.2199 of 2005 - J 7 Paragraph 60 of the EPF Scheme 1952, at the time of settling her PF Account. The PF account was settled including the amount wrongly remitted by the 3rd respondent in the Pension account. According to them no further amount is due to the petitioner as on date under any of the Schemes framed under the EPF & MP Act, 1952. It is also contended that the benefits under the Employees Pension Scheme 1995 are actuarially conceived by adopting a fair actuarial process of Assets - Liability match. Any increase of liability due to payments in excess of Scheme design will adversely affect actuarial projection and consequently the financial viability of the scheme itself. Therefore the respondents had adopted a uniform policy not to accept any change in date of birth already declared by the members at the time of joining through Form II, especially, after retirement or at the fag end of their career. In this context it is important to note that the change of entires in the register regarding the date of birth has been duly informed to the Assistant Provident Fund Commissioner, Cochin vide Ext.R3(a) communication. Going by the corrected date of birth the petitioner attained the age of 60 on 12.5.2009. Therefore the respondents 1 and 2 ought to have accepted the request made by the Plantation Corporation of W.P.(C).No.2199 of 2005 - J 8 Kerala in Ext.R3(a) letter and ought to have corrected the entries in Form II. The policy adopted by the respondents 1 and 2 not to accept any change in the date of birth is scrupulously followed in cases where such request was made after retirement or at the fag end of the service. Here, the superannuation of the petitioner is in 2009. Therefore the respondents should have made necessary changes in the relevant records including Form II during the said period. The very fact the petitioner and her employer has been paying contribution till 2006-07 and the further fact that the respondents 1 and 2 continue to accept the petitioner's contribution after 1995, obviously because of the awareness of the fact that her date of birth in the service records by order dated 8.3.1993 based on her school records, the rejection of the petitioner's claim for monthly pension is not proper and therefore not legal. In the circumstances a direction is issued to the respondents 1 and 2 to sanction monthly pension under Employees Provident Fund Scheme, 1995 to the petitioner and the respondents 1 and 3 shall disburse the arrears of pension from the date of her discharge w.e.f. 30.9.2003. In the additional statement filed by respondents 1 and 2 it is stated that the contributions under the Pension Scheme wrongly made by the W.P.(C).No.2199 of 2005 - J 9 3rd respondent from 1995 onwards has already been refunded to the petitioner with interest admissible at the time of settling her PF account. It is made clear that for availing the benefit of EPF Pension Scheme, 1995 the petitioner shall repay the amount received from the PF organisation at the time of settlement with interest within a period of three months from today. Respondents 1 and 2 shall issue a statement showing the correct amount due from the petitioner with interest, within a period of one month from the date of receipt of a copy of this judgment. On receipt of the said statement, the petitioner shall remit the amount within two months thereafter. Writ petition is disposed of accordingly. HARUN-UL-RASHID, JUDGE. bkn/-