IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   25^th      Day of  January 2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                                                CC.308/16

1. Prasanna                                  :         Complainants

        W/o Late Reghupathy

        Sreeniketham

      Residing at Reghu Villa

        Paranthiyil, Pullichira P.O

       Kollam-691304.

2. Riju.P.Reghu

          Panayil Padinjattathil

          Valathungal

          VWRA-83

         Eravipuram.

3. Reena.P.Reghu

         Saritha Bhavan

        Thazham Middle

        Chathannoor, Meenad Village

          Kollam. 

4. Reenu.R

        Reghu Villa

        Paranthiyil

        Pullichira P.O

       Kollam.

       [By Adv.K.Dharmarajan]

V/s

1.         Employees Provident Fund Organisation          :         Opposite parties

Represented by its Assistant Provident Fund Commissioner

(Pension), Sub Regional Office, Kollam-691001.

[By Adv.R.Santhosh Kumar]

2.         United Electrical Industries Ltd.

Vadakkevila P.O

Pallimukku, Kollam-691010.

                 [By Adv.G.Haridas&Adv.Revathi Krishnan]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

 This  is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

The Averments in the complaint as stands amended in short are as follows:-

The complainant was an employee of the 2^nd  opposite party United Electrical Industries Ltd. Kollam, which is covered under the provisions of  Employees Provident Fund Scheme.  He entered into service on 01.07.1980.  the complainant was one of the members of the said scheme.  He superannuated from service on 25.04.2008 on attaining the age of 58 years.  Before becoming a member of EPS  the complainant was a member of the Employee Family Pension Scheme 1971.  The complainant before becoming a member of EPS he had his membership in Employee Family Benefit Scheme 1971 for a period of more than 15 years.  This period is treated as past service for calculating pension payable to the complainant.  The rest of his service ie, from 16.11.95 to the date of his superannuation  ie, on 25.04.2008 is the actual service which is 12 years 5 months and 9 days.  As per the provisions contained in para 10(2) of the Employees Pension Scheme 1995 the complainant is entitled to get weightage of 2 years as he has got more than 20 years of service.  The complainant is having 27 years total eligible service.  Therefore he is eligible to get weightage of 2 years for calculating monthly pension.  However the 1^st opposite party has sanctioned Rs.1427/- as monthly pension which is less than the eligible amount.  For the past service period the pension payable is as per the provision contained in para 12(3) (1)(b) of the Employees pension Scheme 1995.  His monthly wages on 15.11.1995 is determined erroneously as Rs.350/-.  At  the time when employees Pension benefit scheme 1995 came into force his monthly wages was more than Rs.2500/- and his past service was above 15 years the amount of Rs.135/- has to be multiplied by the relevant factor seen in Table B against service period the employee underwent between 16.11.1995 and 25.04.2008, the date on which the complainant ceased to be a member or the date of his exit from service.  In calculating the same the 1^st opposite party took 12 years as the actual period.  Hence as per the Table B, the factor shown against less than 13 years will have to be taken into account for fixing the relevant factor for multiplying with Rs.135/- to arrive at past service pension benefit.  It is shown as 3.290/- so the past service period’s pension payable is 135x3.290=444.  The next item is the pension payable for the actual service period.  The actual service period is 12 years.  Along with it the 2 years eligible service as weightage has to be added.  Hence totally it comes to 14 years.  For 14 years actual service period the pension amount payable is 6500x14/70=1300.  Therefore the monthly pension payable as per para 12(3)(ii) of the scheme 1995 is the aggregate of past service benefit and the actual service benefit arrived at.  That is Rs.444+1300=1744.  Instead of that amount the complaint was paid only less Rs.313/-.

Opposite party issued P.F Account No.KR/KLM/0000036/000/0000706 and PPO No.KR/KLM/00065996 issued to the complainant and his pension there by sanctioned is Rs.1427/- only.  Hence the amount determined is less Rs.317/- every month.  The date on which the complainant became eligible for pension is on 26.04.2008.  From that day onwards he was entitled to get monthly pension Rs.1744/- instead of that he has been allowed to pay at the rate of Rs.1427/-  but even from that amount unlawful deduction is being made.  There is deficiency in service on the part of the 1^st opposite party. 

This complaint ought to have been filed on or before 25.07.2010 the date as he came to know from SBT of Jerome Nagar Branch regarding the passing of the pension order under challenge in this case.  Now there is delay of 3 years and 6 months 12 days hence a delay condonation petition is filed in this case.  After fixing the monthly pension as Rs.1427/- its 1/3^rd can be deducted for commutation which come to Rs.475/-.  Hence the balance comes to Rs.951.4.  As per para 13 A for Return of  Capital 10% of the original pension can be deducted.  The original pension as per para 13 A is the balance 2/3^rd portion of the sanctioned pension.  Hence 10% deducted can be of the 2/3^rd portion Rs.951.  Hence  monthly pension payable is Rs.856/- instead of that he is being paid is Rs.808/-  (951-143) which  is incorrect as per para 13 A of the Pension Scheme 1995. 

The complainant died on 02.02.2015 and hence from 03.03.2015 the additional complainant no.1 is eligible for minimum pension in view of CSR 593(E) dated 19.08.2014.  In this complaint there is no dispute regarding employees eligible service and pensionable service.  The formula applicable is laid down in the scheme.  Even then the opposite party in a most illegal and unjust manner disallowed the eligible pension amount unlawful deduction is  being made  and the amount determined and being paid by way of monthly pension to the complainant on every month is Rs.317/- less than the actual entitlement.  Hence the 1^st opposite party is liable to pay Rs.1744/- by way of monthly pension and the opposite party is also liable to pay the balance amount on the entire arrears with 12% interest as contemplated under para 17 A of the scheme from the date on which it fell due , ie 26.04.2008.  The complainant further prays to pass an order directing the opposite parties to pay a monthly pension @ Rs.1724/- instead of Rs.1427/- till his death and thereafter the widow pension payable by considering the enhanced pension and allow the 1^st additional complainant to realize the pension arrears with interest @ 12% p.a from the 1^st opposite party.

 2^nd opposite party remains exparte.  The 1^st opposite party filed detailed version resisting the claim of the complainant.  However it is admitted in the written version that the complainant was an employee of 2^nd opposite party which is covered under the EPF&MP Act 1952.  The complainant was having EPF A/c No.KR/36/706.  He was also a member of the Employee Pension Scheme 1995.  Before becoming a member of EPS 1995 he was a member of the ceased Employees Family Pension Scheme 1971.  As per office records the complainant joined EPF scheme on 01.07.1980 and his date of birth is 26.04.1950.  The membership under EPS 1995 was ceased on 25.04.2008 which is the date of leaving service.  The complainant applied for superannuation pension in Form No.10 D and on receipt of the application monthly pension @ Rs.856/- per month w.e.f 26.04.2008 has been sanctioned as per PPO No.KR/KLM/65996.  The original  amount of monthly pension payable to the complainant was Rs.1427/-.  But as the complainant had opted for commutation and return of capital the pension payable was arrived at Rs.856/- after deducting commuted pension and return of capital.  The death of the complainant on 02.02.2015 is also admitted.  It is further contented that widow pension @ Rs.1000/- per month is sanctioned  to his spouse Smt.Prasanna from 03.02.2015.  All the other averments in the complaint are denied by the 1^st opposite party and it is further contented that the pension was sanctioned considering the entire service rendered and contribution made by the employer  with respect to the complainant .  The mode of calculation of monthly pension, past service and past service benefit and actual service benefit are elaborately detailed in the written version.  It is further contented that the weightage of 2 years was also sanctioned and revised the monthly pension @ Rs.967/- w.e.f May 2017 and arrears were also released to the legal heirs.  It is further contented that the complainant has not produced any documentary evidence to prove that his wages on 15.11.95 was above Rs.2500/- and the complainant is not entitled to get any  further benefit based on available records.  It is also contended that there is no deficiency in service on the part of the 1^st  opposite party and further pray to dismiss the complaint with costs and compensatory costs.

In view of the above pleadings the points  that arise for consideration are:-

1. Whether there is any deficiency in service on the part of the 1^st opposite party in calculating pension and pensionary benefits of the deceased complainant as alleged?
2. Whether the additional 1^st  complainant is entitled to get the arrears of revised pension and widow pension as prayed for?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence  PW1 and Ext.A1 to A3 documents.  Evidence on the side of the contesting 1^st opposite party consists of the oral evidence of DW1, Ext.D1&D2 series documents.  Both sides have filed noted of argument.

          Heard both sides.

Point no.1 to 3

          For avoiding repetition of discussion of materials these 2 points are considered together.  The following are the admitted facts in this case.  The original complainant Sri.N.Raghupathy is an ex-employee of the 2^nd opposite party.  He entered into service on 01.07.1980 and joined the EPS 1971 during that year.  The complainant was superannuated on attaining the age of 58 years on 25.04.08.  He was a member of both the ceased Employees family Pension Scheme and the new Employee Pension Scheme 1995. It is also an admitted fact that as per Ext.P2 PPO the complainant has been allowed monthly  member pension @ Rs.1427/- w.e.f  26.04.2008.

          PW1  is none other than the wife of deceased complainant.  She is the 1^st additional complainant and one of the legal heirs of the deceased.  She has deposed in terms of the averments in the amended complaint.  According to PW1 her husband has been allowed monthly pension at the rate of Rs.1427/- as per Ext.A2 PPO that after deducting Rs.476/- as commuted pension,  the remaining Rs.951/- has been granted as monthly reduced pension w.e.f  26.04.2008.    Her husband is entitled to get more pension than shown in Ext.A2 order.  According to the complainant as the 1^st opposite party has granted only lesser pension ignoring the principles of granting pension, there is deficiency in service on the part of the 1^st opposite party.  According to PW1 her husband joined in the scheme on 01.07.1980 and continued till commencement of the Employees Pension Scheme 1995.  Therefore he is having 15 years 4 months and 5 days service period between 01.07.1980 and 15.11.1995.  Hence the past service period is 15 years 4 months and 15 days.  According to PW1 actual service period starts from 16.11.95 till the date of retirement on superannuation ie, 25.04.2008.  Therefore the complainant is having 12 years 5 months and 9 days actual service.  Therefore the deceased complainant is having 27 years 9 months total service.  As her deceased husband is having 28 years of service he is eligible to get 2 years weightage inorder to calculate total service. 

The opposite party would content that the eligible service of the original complainant has to be calculated by considering contributory service and past service.  Inorder to calculate contributory service actual service rendered by the member for which the contribution to the fund has been received or are receivable.  Actual service means the aggregate period of the service rendered from 16.11.95 or from the date of joining the establishment whichever is later to the date of exit from the employment.  In the present case actual service rendered by the original complainant for which contribution to the fund received is from 16.15.95 to 25.04.2008 which is 12 years 5 months and 9 days.  The above calculation is in tune with commutation of contributory service of the complainant.  But in the case of past service the 1^st opposite party is having serious dispute.  The learned counsel for the 1^st opposite party has argued that past service has to be calculated as provided under para 9 B which reads “provided that if there is any period in the past service for which contributions towards the Family Pension Scheme 1971 has not been received the said period shall be commuted as eligible service only if the contribution have been received in the EPF”.  According to the 1^st  opposite party pensionable service of the deceased complainant  has to be calculated as provided under 10(1) of the EPF 1995.  Accordingly the pensionable service of the member shall be determined with reference to the contributions received or are receivable on his behalf in the Employees Provident Fund. 

The question to be considered is whether the 1^st opposite party has properly fixed the pensionable service and pensionable salary inorder to arrive at a proper monthly pension.

          The learned counsel for the complainant has argued that monthly member pension is to be calculated by applying the formulae:-

                  Pensionable salary x Pensionable service

                                             70

Admittedly  the employee joined in the scheme on 01.07.1980 and continued till the commencement of the Employees Pension Scheme 1995 ie from 01.07.1980 to 15.11.95 which is 15 years 4 months and 15 days.  Therefore past service period is 15 years 4 months and 15 days.  Actual service period pension is therefore 6500x14/70 = Rs.1300/-.

As per para 2(xii) the term past service means the period of service rendered by an existing member from the date of showing Employees Family Pension Fund till 1995.  It is an undisputed fact that on 01.07.1980 the original complainant joined in the scheme and continued till the commencement of Employees Pension Scheme on 15.11.95.  The intervening period is the past service period which is calculated as 15 years 4 months and 15 days.  But according to the learned counsel for the 1^st opposite party in the case of “past service” there is a provision under Para 9(b) which says “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 Provident Fund.  In the case of the Regupathy, though he is having the past service of 15 years from her date of joining on 01.09.1980 to 15.11.1995.

The actual service period  from 16.11.95 to the date of attaining superannuation at the age of 58 years on 25.04.18 is 12 years 5 months and 9 days.  Therefore the total service as per para 9(8 explanation) is the sum total of the aggregate of past service(15years+4months)+actual service(12 years 5 months)=27 years 9 months.  As the period of actual service exceeds 27.6 months the service of 9 months is rounded as 1 year.  Hence the aggregate service is 28 years.  It is further to be pointed out that even the contesting opposite party(1^st opposite party) has no dispute regarding the eligibility of weightage to the complainant.  As his total service is 28 years as explained above he is entitled to get weightage of 2 years inorder to calculate total service for the purpose of calculating pension and pensionary benefits.  Therefore the total service will be 28+2=30 years.  Therefore the actual service period pension is 6500x14÷ 70=1300.

The past service pension is to be calculated as per the provisions contained under para 12 3(B) of the Employees Pension Scheme 1995.  Inorder to calculate past service pension the complainant’s monthly wages has to be ascertained.  According to the complainant the 1^st opposite party has wrongly calculated the monthly wages to Rs.350/-.  But actually when the Employees Pension Scheme 1995 came into force his monthly wage was more than Rs.2500/-.  It is clear from  Ext.A1 document that the complainant’s monthly salary at the commencement of the Employees Pension Scheme 1995 was Rs.2982/- which is more than Rs.2500/-.  The above figure is arrived at on the basis of last 1 year’s salary statement.  As the complainant’s actual service pension was to be allowed between 16.11.95 to 25.04.2008 which is 15 years 5 months.  As it is more than 15 years the figure shown against table serial number 3 is 135 and not 132.  As per para 12 3(B) of the pension scheme the amount under column 2 or 3 shall be multiplied by the factor given in Table B corresponding to the period between 16.11.95 till the date of exit.  Hence the factor shown in Table B for 12 years 5 months and 9 days is 3.292. Therefore the past service period pension is calculated as follows:-

135x3.292= 444.42

However the opposite party made a wrong calculation against the statutory provisions and fixed past service pension as Rs.313/- by taking wrong factor and figures which is not acceptable at all.  It is further to be pointed out that determination of pensionable service under para 10(2) a member who superannuates for attaining the age of 58 years and who has rendered 20 years or more years of service his pensionable service shall be increased by 2 years.  In the present case admittedly the original complainant rendered past service of 15 year 4 months and 14 days.  The actual service period is 12 years 5 months 9 days as indicated above.  Hence the total service is 27 years 9 months and 23 days.  After 27 years there are 7 months and as it is more than 6 months it shall be counted as 1 year.  If that be so as per para 9(B) explanation the total service period is 15+2+1=18 years.  Even according to the contesting opposite party the original complainant is entitled to get weightage of 2 years and if the weightage is also added the total year of service comes to 28+2=30 years.  It is clear that the claim of the complainant that he is entitled to get Rs.1300/- as actual service period pension is correct.  Therefore total monthly pension payable is 1300+444=Rs.1744/- from 25.04.2008 onwards.  But instead of that much pension the opposite party sanctioned only Rs.1427/- as per Ext.A2 PPO.  It is further to be pointed out that in Ext.A2 PPO the past service period pension and actual service pension are not shown separately.  There is a difference of  Rs.317/- than the actual entitlement of pension and the amount already awarded as monthly pension.  In view of the materials discussed above the complainant is entitled to get Rs.317/- more as monthly pension from 26.04.2008 onwards.  It is an undisputed fact that form the sanctioned monthly pension 1/3 portion was commuted.  If that be so the balance of monthly pension would come to Rs.1162 .64 which is rounded to Rs.1163/-.  However as per para 13 as return of capital 10% will have to be deducted from the balance amount of Rs.1163/-.  Hence the monthly pension entitled to the complainant is Rs.1046.7 which is rounded to Rs.1047/-.  As per opposite parties calculation the net monthly pension payable is Rs.856/- instead of Rs.1047/-.  Therefore the difference is Rs.191/-. 

It is an admitted fact that the complainant died on 02.02.2015 and therefore the additional complainant who is none other than the wife and legal heir is entitled to get minimum pension right from 03.02.2015  in view of CSR 593E dated 19.08.2014.  The complainant is entitled to get arrears of revised pension and widow pension along with interest at the rate of 12% p.a on the basis of the above calculations.    As the complainant has not been sanctioned eligible pension and commutation of pension there is clear deficiency in service on the part of the 1^st opposite party.  The point answered accordingly. 

Point No.3

          In the result complaint stands allowed in the following terms.

1. The 1^st opposite party is directed to pay monthly pension @ Rs.1744/- instead of Rs.1427/- to the 1^st additional complainant till the death of Sri.Regupathy and thereafter pay the widow pension considering the enhancement in the pension amount allowed or the minimum widow pension whichever is more.
2. 1^st opposite party is further directed to pay pension arrears of the deceased complainant from 26.04.2008 till the death of the employee Regupathy along with interest at the rate of 12% p.a.
3. The 1^st opposite party is directed to pay costs Rs.5000/- to the 1^st additional complainant.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  25^th  day of  January  2022.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

          Forwarded/by Order

          Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Prasanna

Documents marked for the  complainant

Ext A1 :  Contribution card for currency period 1^st April 1995 to 31^st March 1996. 

Ext A2:  Pension Payment Order.

Ext.A3 :  Photo Copy of PPO(R.Sukumaran)

Witnesses Examined for the opposite party:-

DW1:          Maji.G.Krishnan

Documents marked for opposite party:-

Ext.D1:       Basic details of N.Regupathy Achary.

Ext.D2:       PPO.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Forwarded/by Order

         Senior Superintendent