SRI.R. VIJAYAKUMAR, MEMBER.

            This is a complaint filed U/s. 12 of Consumer Protection Act seeking enhancement of pension to Rs.800/-, for getting arrears of balance pension from 1.7.;2007 along with interest at the rate of 18% and  for realization of Rs.18100/- deducted from commuted amount and Rs.10,000/- adjusted  from contribution along with interest at the rate of 18% per annum.   The complainant further prayed for compensation Rs.5000/-  and cost Rs.2000/- each from opp.parties 1 and 2.

The complainant’s  case is that she was a cashew worker of the 2^nd opp.party company from 1970 and retired from service due to superannuation  on 1.7.2001 after completion of 31 years of continuous service..   The complainant became the member of the Provident Fund Organization vide No. KR.1232/1096.   The 2^nd opp.party deducted the contribution to the PF from her salary and  remitted with the first opp.party in time.  On 1971 the complainant informed her willingness to be member of the Employees Family Pension Scheme and remitted the contribution  in EPF amount also.  On 16.11.1995 the Family Pension Fund Scheme was substituted with Employees Pension Scheme 1995.  The complainant joined with the EPS 1995 and the respective contribution was deducted by the 2^nd opp.party in time..  As she was superannuated the complainant applied for the eligible pension in form No.10D to the first opp.party duly certified by the 2^nd opp.party.   The complainant is eligible to get the EPS pension at the rate of  Rs.800/- under 1995 Act.   The opp.party allowed only Rs.544/- as monthly pension  There is a shortage of Rs.256/-.  There is no break in service till the employment with  2^nd opp.party.   The allegation of break in service is an afterthought of the first opp.party to deny the eligible pension.  The complainant opened an account with the Canara Bank Branch, Thamarakulam, Kollam vide A/c.No.33065. The 1^st opp.party did not state any explanation for the withdrawal of Rs.10,000/- from PF contribution.  The first opp.party is liable to recover the contribution from 2^nd opp.party for sanctioning the eligible pension to the complainant..  The act of issuance of pension in a reduced rate and realization of commutation amount Rs.18,100/- and Rs.10,000/- from PF account amounts to deficiency in service and it resulted in mental agony  and sufferings to the complainant.  Hence the complaint.

The opp.party filed version contending that the complainant is a pensioner bearing PPO No.19235 [KR/1232/1096] and  was a Family Pension Fund member with effect from 1.3.1971.  She has been contributing to the fund from 1.3.1971.  There is a non-contributory period of 6631 days  [18 years 2 months 1 day] during the period 1.3.1971 and 16.11.1995.   This non contributory service can be regularized only if the due contribution thereof has been received in the Employees’ Pension Fund as specified by Para 9 [b] of the Employees’ Pension Scheme 1995.  Para 9 [b] reads as follows: Para 9 [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.   Explanation:-   For the purpose of this sub-paragraph the total past service for less than six months shall be ignored and the total past service for six months and above shall be rounded to a year.  So as to enable the complainant to acquire eligibility for pension the non-contributory period of 6631 days of past service [non-contributory was regularized by diverting an amount of Rs.11752/- from her EPF account and Rs.22131/- from her pension arrears [total amount required Rs.33883/-]The date of leaving service of the complainant appears from her form No.19 application as 31.12.2001. There is no age restriction to contribute to the Employees Provident Fund Scheme 1952    The complainant is not entitled to Rs.800/- but entitled for monthly pension of Rs.500/- only.   The complainant comes under the category specified by para 12 [5] of the Employees Pension Scheme 1995.  An amount of Rs.2213/- has been transferred to pension fund towards the balance due for regularization of break in service.   The details of pension are as under:

Past service [Viz. upto 15..1..1995] [by

Regularizing non-contributory period

Of 18 years 2 months 1 day]                                  ..        24 years

Original monthly Pension granted                           ..                  544

Commutation pension 1/3                                      Rs. 181

Return of Capital                                          ..        Rs. 54        

                                                                             Rs.235                 

       [-] 235

Monthly pension in payment                         ..                         Rs. 309/-

The surrender of 1/3^rd enabled the complainant to get Rs.18100/- in lump sum.  The surrender of Rs.54/- per month enabled the complainant’s nominee to get Rs.36,300/- in the event of her death.    The diversion ofRs.10,000/- from her Employees” Provident Fund account was necessitated for regularization of break in past service in terms of Para 9 [b] of the Employees Pension Scheme, 1995.  The 1^st opp.party had acted only in lines with the Employees’ Pension Scheme 1995.  The plea of the complainant for higher rate than the provisions of the scheme  is totally wrong and unsustainable.   There is no deficiency in service.   The complainant is a prompt recipient of pension through her Bank A/c.No.33065, Canara Bank Convent Road, Kollam.   The complainant has been communicated about the position       

 The complainant filed affidavit PW.1 examined.  From the side of 1^st opp.party  DW.1 examined.   Exts. D1 to D4 marked.

The points that would arise for consideration are:

1.     Whether there is any deficiency in service from the part of opp.party?

2.     Compensation and cost.

Points 1 and 2

It is admitted that the complainant was a Family Pension Fund member with effect from 1971 and has been contributed to the Scheme from 1.3.1971 and she had retired from service on 1.7.2001 due to superannuation after completing 31 years service.   As the Family pension Scheme was substituted by the Employees Pension Scheme 1995  on 16.11.1995 the complainant joined the new scheme and  made contributions

The main contention raised by the 1^st opp.party is that there is non-contributory  period of 6631 days during her service pension  from 1.3.1971 to 16..11..1995.  It can be regularized only if the due contribution there of has been  received in the EPF as specified  in para 9 [b]  of EPS 1995.  So the non contributory period was regularized by diverting an amount of Rs.11752/- from her EPF account and Rs.22131/- from her pension arrears.   Thus totally an amount of Rs.33,883/- was adjusted for the payment of pension to the complainant.

          According to the complainant diversion of the amount of Rs.33883/- is illegal as against the provisions of EPS 1995.  The break in service is an after thought of the opp.parties to reduce the pension payable to  the complainant.   Ext. D1  itself reveals that there  are 25 years worked by the complainant in the 2^nd opp.party factory up to 16.11.1995 and  paid PF and EPF contributions on all working days.  But the opp.party  calculated the absence by reducing the total  working days from the total days of  the 25 years.   There is no possibility  of a factory  to work for 365 days  in an year.   There are holidays and Sundays for every year as non working day.   The opp.party did not  care to calculate the working days and absent days in accordance with the factories Act.

          Para 9 [6] of EPS reads as follows: “In the case of existing member the aggregate of actual service and past service shall be treated as eligible service.

          Provided that if there is any period in the past service for which the contribution towards the Family Pension Scheme has not been received the said period shall  count  as eligible service only if the contribution there of have been received in the employees Pension Fund.

          In the instant case, the employee has made contributions to the Family Pension scheme 1971 through  out his past service period .   There is no provision to calculate  service in the unit of days.   The unit of calculation of service is year.  In the present case  non working days are calculated as break in service  and non contributory period .   The total number of non working days including Sundays and other holidays are calculated and it was divided by 365 to work out non contributory period.   This mode of calculation of non contributory period adopted by the 1^st opp.party is absolutely wrong  and against  the provisions of  the EPS 95 and  against  the principles of natural justice.   There is no  provision in the EPS which entrusts  the 1^st opp.party to calculate past service period in this manner.  Para 9 [1] of the EPS 95 was wrongly interpreted by the 1^st opp.paty with an intention to reduce the pension amount deliberately.  Naturally the contribution shall be payable only from the wages  earned by the employee.   There is no wages for  the non working days and the contribution shall not be paid for the non working days.  In our view the  provisions under para 9[b] is intended for the remittance of contribution for the period for which the contribution were collected from the wages and the amount was not remitted to the PF account or the period for which contribution has not been collected from the wages  in any circumstances.  The collection of contribution to the PF account for the non  earning days is deadly against the principles of natural justice .  Hence the diversion of Rs.1175 2/- from EPF account and Rs.22131/- from the pension arrears [totally Rs.33883/-] is illegal and against the provision of 1995.

Moreover all these the documents produced by the 1^st opp.party is has no authenticity.   While in cross examination DW.1 had stated that Ext. D1 is the record submitted before the 1^st opp.party by the employee and D2 is the work register kept in the office.  He had  admitted that the attendance card was not seen by him and he had not verified the Attendance Register. He had also stated that AXn \n¶pwcontributory period  Dw non-contributory  period  Dwa-\-knem¡m³ ]änÃ

From these statements itself it is obvious that 1^st opp.party prepared the calculation without any bonafides regarding the rates of contribution and the period of break  etc.  Based on Ext. D1 and D2 the 1^st opp.party hass prepared Ext. D3.   As the 1^st opp.party  failed to prove the  authenticity and genuity of D1 to D4 documents those documents cannot be accepted and the contention   made on the base of the documents  will not sustain

          The learned counsel for the complainant argued that the complainant is eligible to get Rs.835/- as pension for the service rendered with 2^nd opp.party and contributions remitted by the complainant.  He had argued that pension of the complainant can be calculated as specified in para 12 [5] of EPS 1995  He had further argued that as per para 12 [5] the complainant is eligible to get  Rs.500/- for the past service upto 1995.  The complainant is eligible to get a minimum pension of Rs.335/- for the actual service period [16..11.1995 to 1.4.1999].   The opp.party also admitted that the pension calculation of the complainant comes under the category specified by para 12 [5] of EPS 1995  but argued that the complainant is not entitled to Rs.800/- eligible to get and only to Rs.500/-

          While in cross examination DW.1 admitted that the pension for the period from 16..11.1995 to the date of superannuation should be calculated as per the provision  under para 12 [2] and eligible to get a minimum pension  of  Rs.335/- for   the actual service period. [16..11.95 to 1..4..99].  The complainant is superannuated and  however she  is entitled to get pension as per the provisions  under para 12 [5],  of the EPS 1995 .  Para 12 [5] of the EPS reads as follows: in the case of a member  in respect of whom the date of commencement of pension is before 16^th November 2000.

1.     Superannuation or early pension shall be equal to the aggregate of

[a]  Pension determined under sub-para [2] for the period of service rendered from 16^th November 1995 or Rs.335/- per month which ever is more.

[b] Past service pension as provided in Sub paragraph [3]

     The aggregate of [a] and [b] calculated as above shall be subject to the minimum of Rs.500/- per month, provided the eligible service is 24 years.  Provided further that if it is less than 24 years the pension shall be proportionally  lesser but subject to the minimum of Rs.265/- per month.

     The mode of calculation of Past service pension payable on completion of 58 years of age on 16^th November, 1995 is given in para 12 3 [b] .  The amount in column 2 and column 3 in para 12 [3] [b]  as the case may be  shall be multiplied by the factor given in Table B6  corresponding to the period between 16^th November 1995 and  the date of exist to arrive  past service pension payable.

     No authentic  document was produced by the complainant to prove the amount of the complainant’s salary.  The pensionable salary as per Ext. D3 is Rs.881/-.  It was not challenged by the complainant.   As the complainant’s years of past service is beyond  20 years and monthly salary was less than Rs.2500/- the amount in column No.[2] can be taken for calculation [Rs.150] Past service pension can be computed using table ‘B’ factor less than 4 years between 16..11.1005 and 1.4.99 ie. 1.395  Past service pension can be calculated by multiplying 150 x 1.396 =209..  The total  pension payable to the complainant  is Rs.335+209 is  Rs.544./-   Rs. 181/- was deducted from this amount as the complainant had  opted commutation.  For getting  return of capital 10% Rs. 54/-  also was deducted from the original pension.

     As argued by the learned counsel for the 1^st opp.party, they had calculated the complainant’s pension as per the provisions of the scheme, We could not find any  default  in the calculation of monthly pension.   The contention of the complainant that she is eligible to get pension for an amount of Rs. 800/- and above  is not correct.  It is also admitted  by the 1^st opp.party that they are  bound to pay Rs.604/- to the complainant on production of  pass book of pension drawn from Canara Bank, Convent Road, Kollam.

     Based on the above discussions and on  verification of entire   documents  before  us we find that there is deficiency in service from the part of 1^st opp.party in realizing an exorbitant amount for regularization of  eligible service.  The points found accordingly.

     In the result, the complaint is allowed in part.   The 1^st opp.party is directed to return Rs.28100/- to the complainant along with interest at the rate of 12% per annum from 1.4.99 till the date of payment.   The 1^st opp.party is further directed to pay Rs.604/- on production of pass book of  pension drawn from Canara Bank.  Convent Road, Kollam and compensation Rs.5000/- along with  cost Rs.1500/- to the complainant.

     The order is to be complied with within one month from the date of receipt of the order.

     Dated this the 31^st day of October, 2012

I N D E X

List of witnesse for the complainant

PW.1. – Droupadiamma

List of documents for the complainant: NIL

List of witnesses for the opp.parties

DW.1. – K.P. Balagopalan Nair

List of documents for the opp.parties

D1. . - Break in service certificate

D2. – Work sheet

D3. – Pension payment order

D4. – Intimation letter

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