BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE                                

Dated this the 24^th May 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT. LAVANYA M. RAI                  : HON’BLE MEMBER

ORDERS IN

C.C.No.84/2016

(Admitted on 23.02.2016)

Mr. Richard Fernandes,

Rahul Villa,

Door No. 3.30.2485,

Cosmos Enclave,

KadriKambla Road,

Mangalore  575004. D.K.

                                                                   ….. COMPLAINANT

(Advocate for the Complainant: Smt. LCH)

VERSUS

The Asst. Provident Fund Commissioner (Pension)

EPF Organization, Regional Office,

Silva Road, Highlands, Mangalore  2.

                                                                         …......OPPOSITE PARTY

(Advocate for the Opposite Party: Sri JRN)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

          The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under

     The complainant claims he worked for continuous service at KSRTC, Mangalore till 10.3.2014 and was contributed to the pension fund and monthly pension is being paid to him.  The earlier Family Pension Scheme 1971 was repealed the Family Pension Scheme 1971 and introduced a new scheme known as Employees’ Pension Scheme 1995 came into effect from 15.11.1995.    Complainant came to know in 2015 certain cases were filed before the Forum and that there are errors in fixing the monthly pension scheme seek re-fix of his monthly pension by including the benefit under para 12 (3-5) (a) and 12 (3-5) (b) and 10 (2) as well as Para 32 of Employees Pension Scheme 1995 on that count question as to past service of the employee while fixing the pension amount Supreme Court in Civil Appeal No.30844/2010.  Hence seeks reliefs mentioned in the complaint.

2.   Opposite party in the version denied the allegation made as to the entitlement of any of the benefit neither under para 10 (2), para 32 or 12 (3.5) (a) and 12 (3.5) (b) of the Employees Pension Scheme 1995.   Even though the complainant had fulfilled the service of more than 20 years of service mentioned in the para 10 (2) as to fulfilled another period of superannuation pension on the date of retirement. Complainant retired when he was 55 years as his date of birth is 13.12.1959 hence seeks dismissal of the complaint.

3.     In support of the above complainant Mr. Richard Fernandes filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below.   On behalf of the opposite parties Mr. V Husenappa (RW1) Assistant P.F Commissioner (Pension), also filed affidavit evidence and answered to the interrogatories served on him. 

4.      In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order? 

     The learned counsels for both sides filed notes of arguments.  We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:

               Point No. (i) : Affirmative

               Point No. (ii) : Negative

               Point No. (iii) : As per the final order.

REASONS

5.        POINTS No. (i):       That complainant is a person drawing pension from opposite party No.1 due to his service render with opposite party No.2 is undisputed.  Hence there is relationship of consumer and service provider between the parties. The claim of complainant of benefit under para 10 (2) and 12 (3.5)(a) and 12 (3.5) (b) of the Employees Pension Scheme 1995 and also relief under para 32 were claimed by complainant and disputed by opposite party.  Hence there is live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.    Hence we answer point no.1 in the affirmative.

6.      Points No. (ii):     Opposite party refer to the definitions of actual service, past service and pensionable service of the Employees Pension Scheme 1995 section 2(1)(Xii) and 2(1)(XV) para 2 (ii) read thus:

(ii) Actual Service means the aggregate of periods of service rendered from the 16^th 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;

(Xii) Past Service means the period of service rendered by an existing member from the date of joining Employees Family Pension Fund till the 15^th November, 1995.

(XV) Pensionable Service means the service rendered by the member for which contributions have been (received or are receivable).

7.     Para 9 mention how eligible service is to be determined as follows:

9. Determination of eligible service.

(a) In the case of new entrant the actual service shall be treated as eligible service.  The total actual service shall be rounded off to the nearest year.  The fraction of service for six months or more shall be treated as one year and the service less than six months shall be ignored.

(b) In the case of the existing member the aggregate of actual service and the past service shall be treated as eligible service.  Provided that if there is any period in the past service for which the contributions towards

the Family Pension Scheme, 1971 has not been received, the said period shall count as eligible service only if the contributions thereof have been received in the Employees’ Pension Fund. 

8.     Para 10 as to determination of Pensionable service read thus:

Determination of Pensionable Service:

1. The pensionable service of the member shall be determined with reference to the contributions (received or receivable) on his behalf in the Employees Pension Fund.  
2. In the case of the member who superannuates on attaining the age of 58 years and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years.

9.     In the case on hand the claim of opposite party that the complainant retired at the age of 55 years, that his total period of past service as defined under para 2 (1) (xii) of the Employees’ Pension Scheme 1995 is 8 years and this total pension service as defined at para 2 (1) (xv) of the scheme only 18 years 3 months and that his total past service +pensionable service is not disputed by complainant.   Even in his affidavit evidence filed subsequent to this version filed by opposite party the statement made by opposite party No.1 in the version is undisputed by complainant.

10.     That complainant retired subsequent to 21.9.2009 i.e. he retired on 10.3.2014 is undisputed.

11.     In the circumstance of this nature, the learned counsel for opposite party No.1 has drawn our attention to a decided case by Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal Nos.1271 to 1295/2016 dated 15.12.2016 at para 12, 13 and 14 are which is by considering the amended para 12 of the scheme of 1995 amended para 10 (2) as quoted at this order and para 12, 13 and 14 reads thus:

10.  With regard to the question of giving of weightage of 2 years it is seen that para 10(2) of Employees Pension Scheme 1995 the employee is entitled for additional weightage of 2 years in the circumstances

detailed there under.  For the sake of convenience the said para 10(2) is excerpted hereunder:

In the case of the member who superannuates on attaining the age of 58 years and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years.

12. Thus, if an employee is retired after attaining the age of 58 years, but, before 24.07.2009, he is entitled for weightage of 2 years of pensionable service irrespective of rendering pensionable service of 20 years or not.

13. If an employee retires before 24.07.2009, but, before attaining the age of 58 years, he is entitled for the additional weightage of 2 years depending upon 20 years pensionable service.

14. If an employee retires after 24.07.2009, then he is entitled for weightage of 2 years provided the employee complies with both the conditions of age and pensionable service, i.e. he must also have put in pensionable service of 20 years to get the additional weightage of 2 years.

12.     Thus certain undisputed fact by the complainant in this case that his pensionable service is 18 years 3 months and that he retired when he attained at the age of 55 years and was not in service on the date of superannuation and that his total service was less than 20 years.   In the circumstance that has retired subsequent to 24.7.2009 i.e. subsequent to the amendment of para 10 (2) of the Employees  Pension Scheme 1995 complainant is not entitled for benefit under para 10 (2) of the pension that under 12 (3.5) (a) and (b) of the scheme of 1995. In the respect of complainants claim under para 32 of the said scheme of 1995 is considered mentioned such benefits as to be given to the pensioner only if Central Government declares any benefit under para 32 of the scheme of 1995 when no such declaration is made by the Central Government question of opposite party No.1 making payment to complainant does arise. Hence on all counts claimed by complainant there is no deficiency of service on the part of the opposite party made out by complainant.  Hence we answer point No.2 in the negative.

13.     POINTS No. (iii):     Wherefore the following

ORDER

The complaint is dismissed.

       Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 8 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 24^th May 2017)

              MEMBER                                              PRESIDENT

       (LAVANYA M. RAI)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum               D.K. District Consumer Forum

             Mangalore.                                            Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Richard Fernandes

Documents marked on behalf of the Complainant:

Ex.C1: Copy of the representation submitted to the P.F. Department Mangalore dated 29.02.2016

Ex.C2: Copy of the particulars of pensioner

Ex.C3: Copy of the letter of Employees Provident Fund Organisation  Dated 04.03.2016

Ex.C4: Copy of the letter of Employees Provident Fund Organisation Dated 22.07.2016

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. V Husenappa, Assistant P.F Commissioner (Pension),

Documents marked on behalf of the Opposite Party:

 Nil

Dated: 24.05.2017                                        PRESIDENT