KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.960/2015 & APPEAL No.401/2016

COMMON JUDGEMENT DATED:16.01.2023

(Against the Order in C.C.No.07/2013 of CDRF, Kollam)

PRESENT:

APPEAL No.960/2015

APPELLANT:

(by Adv. K.V. Karma Chandran)

Vs.

RESPONDENTS:

APPEAL No.401/2016

APPELLANT:

Vs.

RESPONDENTS:

(by Adv. K.V. Karma Chandran)

COMMON JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN: PRESIDENT

          Both these appeals are filed against the final order dated 31.10.2015 of the Consumer Disputes Redressal Forum, Ernakulam (hereinafter referred to as the District Forum for short).  As per the order, the complaint has been allowed in part and the 1^st opposite party has been directed to pay a pension to the complainant after deducting 3% from Rs.1695/- from the due date and also in future.  On the arrears the complainant has been held entitled to an interest @12% per annum.  The amounts are directed to be paid within one month from the date of receipt of a copy of the order failing which, interest @15% has been ordered to be paid.  Rs.2,500/-(Rupees Two Thousand Five Hundred) has been awarded as compensation and Rs.1,000/-(Rupees One Thousand) as costs of the proceedings.  The aggrieved 1^st opposite party has filed Appeal No.960/2015 against the order.  The dissatisfied complainant is the appellant in Appeal No.401/2016.  Since both the appeals are against the same order, they have been heard together and are disposed of by this common judgement.  The parties are referred to herein, in the manner in which they are arrayed before the District Forum.  The short facts of the case are summarised as follows:

          2.       The complainant was an employee, a tapper, of a Venture Estate, Florence of Ifield Estate of Harrisons’ Malayalam Plantation.  He had so worked in the Estate for thirty five years and had retired from service w.e.f. 18.08.2004.  At the time of his retirement, he was being paid a salary of Rs.116.51/-per day.  The complainant was a member of the Employees Pension Scheme, 1995 (hereinafter referred to as the Pension Scheme for short) formulated under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952.  Therefore, he was entitled to be sanctioned and paid pension.  However, he was granted only Rs.761/- as monthly pension from 18.08.2004.  According to the complainant, the pension sanctioned to him was very low and made on the basis of wrong calculations.  He was entitled to be paid a higher pension commensurate with the long period of service put in by him.  He therefore requested the 2^nd opposite party, Manager, to have his pension corrected.  However, he could not get any relief.  Therefore he approached the Labour Commissioner, Thiruvananthapuram on 27.11.2011 and 09.12.2021.  The said Authority directed him to appear before the adalath of the Employees Provident Fund Authority at Kollam.  Accordingly, the complainant approached the Assistant Provident Fund Commissioner on 01.02.2012.  He also appeared before the adalath on 12.03.2012.  Since there was no information from the 1^st opposite party about the result of the adalath he sent a letter requesting for some information.  Though the letter was received on 08.05.2012, there was no reply.  Therefore, the complainant submitted an application under the Right to Information Act, 2005 with a request for being furnished with the result of the adalath.  However, the application was rejected and returned on 18.06.2012.  Another application accompanied by a postal order was sent on 25.06.2012.  Thereupon, a reply dated 24.07.2012 informing the complainant that his request was rejected was received.

          3.       The complainant again approached the Labour Commissioner, Thiruvananthapuram on 17.09.2012, with another request.  The said letter was directed to the Employees Provident Fund Officer, Thiruvananthapuram on 04.10.2012.  But no action was taken on the said request also.  In the same manner, though the complainant had approached all the Authorities concerned, he could not get any relief in the matter.  It is admitted by the Authorities that the complainant was a member of the Employees Provident Fund Scheme w.e.f. 01.11.1969.  It is also admitted that he had opted for the Family Pension Scheme on 28.07.1971.  However, in calculating the complainant’s pension, the Authorities had made serious mistakes and had calculated his pension wrongly.  As a result, the complainant has been suffering loss of an amount of Rs.984/- per month w.e.f. 18.08.2004.  They have refused to correct the mistakes despite repeated requests of the complainant.  Consequently, severe mental stress, strain and huge financial loss has been caused to the complainant.  It was alleged that their conduct amounted to clear deficiency in service.  Therefore, he claimed the amount that was legitimately due to him, with interest, compensation and costs.

          5.       The complaint was contested by both the opposite parties filing separate versions.  According to the version of the 1^st opposite party, the complainant had retired from service in the year 2004.  Pension was granted to him under the Pension Scheme w.e.f.18.08.2004 as per Pension payment order dated 14.10.2004.  He had not preferred any complaint against the same till 14.02.2012.   In order to overcome the bar of limitation under Section 24(A) of the Consumer Protection Act 1986, the complainant sought information under the Right to information Act, 2005.  The complaint was filed only on 03.01.2014.   The complaint was barred by limitation.   The 1^st opposite party admitted that the complainant had joined the Employees Provident Fund Scheme on 01.11.1969.  No Family Pension Scheme was in existence at that time.  Later on, the complainant joined the Family Pension Fund Scheme of 1971.  His membership commences from 1971.  After the Employees Pension Scheme 1995 was introduced, he was brought under the said scheme.  He was drawing a pension of Rs.507/- w.e.f. 18.08.2004.  The eligible pension sanctioned was Rs.761 per month.  The pensionary benefits of the complainant were calculated on the basis of his date of birth, wages earned, date of joining, date of exit, etc. 

          6.       According to the 1^st opposite party, the total service of the complainant is 24 years 8 months and 14 days.  He had a break in service of three years 8 months and 12 days.  After deducting the said break in service his net past service came to 21 years and 2 days.  As per the break in service statement, he had a non-contributory period of 365 days.  After deducting the non-contributory period, his pensionable service comes to only eight years though he had an actual pensionable service of eight years six months and eight days.  The 1^st opposite party contended that his pensionable salary was calculated in accordance with paragraphs 12.4 and 12.7 of the Pension Scheme, correctly.  According to them, on the above basis, he was entitled to a net pension of Rs.809/-.  He had retired on 18.08.2004 at the age of 56years, without continuing up to the age of 58 years.  Therefore, a reduction of pension by 4% was made.  As a result, his total pension was fixed at Rs.761/- per month.  The complainant opted for commutation of one third of the original pension, which was granted and an amount of Rs.25,400/-(Rupees Twenty Five Thousand Four Hundred) was paid to him as commutation of pension.  Therefore, his monthly pension was reduced by 33.33% (Rs.254/-).  Accordingly, the actual monthly pension that he was entitled to receive became Rs.507/-.  The complainant was therefore not entitled for any enhancement in pension as claimed.  The 1^st opposite party therefore sought for dismissal of the complaint.

          7.       The 2^nd opposite party in their version contended that all their duties under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Scheme had been properly and duly discharged by them.  All contributions due and payable by them were paid without any lapse or negligence.  Therefore, the complainant has no cause of action to file the complaint against them.  The calculation of the pension under the pension Scheme was the responsibility of the 1^st opposite party.  Any grievance of the complainant can also be only against them.  The 2^nd opposite party was an unnecessary party and therefore they sought for the dismissal of the complaint. 

          8.       The parties went to trial on the above pleadings.  The evidence in the case consists of the oral testimonies of PW1, PW2 and DW1 and Exhibits P1 to P43 and D1 to D4 documents.

          9.       After close of evidence, the matter was heard and the complaint has been allowed by the District Forum.  The District Forum found that the pension calculated by the 1^st opposite party was not correct and therefore, the said conduct amounted to deficiency in service.  It was found that the correct pension payable to the complainant was Rs.1,695/-(Rupees One Thousand Six Hundred and Ninety Five) per month from which, a 3% deduction had to be made.  He was also held entitled to interest @12% per annum on the arrears of pension due to him.  An enhanced interest @15% per annum has been ordered to be paid if the order of the District Forum was not complied with, within one month.  An amount of Rs.2,500/-(Rupees Two Thousand Five Hundred) has been directed to be paid as compensation and a further amount of Rs.1,000/-(Rupees One Thousand) as costs.  As noticed above, both the complainant as well as the 1^st opposite party are before us in these appeals.

          10.     According to the counsel for the 1^st opposite party, the pension of the complainant was calculated under paragraph 12.4 of the Pension Scheme.  Credit has been given for his past service and the said period has been added on.  The District Forum has wrongly found that he was entitled to a weightage of two years.  The pension calculated by the 1^st opposite party was correct and there were no grounds to interfere with the same.  There was no deficiency in service on the part of the 1^st opposite party.  Therefore, the counsel sought for interference with the order of the District Forum.

          11.     On behalf of the complainant, it was submitted that, the salary taken by the 1^st opposite party was wrong.  Exhibits 32 to 34 prove that the correct salary of the complainant was Rs.3,990/-(Rupees Three Thousand Nine Hundred and Ninety).  There was no break in the service of the complainant as sought to be made out.  No evidence to support the said contention has been adduced by the 1^st opposite party.  The non-contributory period has been fixed without any basis and since the complainant had more than twenty years service, a weightage of two years had to be granted.  The total pensionable service of the complainant would thus be eleven years.  The compensation and costs awarded are meagre and require to be enhanced and fixed properly. 

          12.     We have heard the respective parties.  We have also perused the lower court records and given our anxious consideration to the contentions put forward.

          13.     The complainant was admittedly a tapper in the service of the 2^nd opposite party.  He had retired from service w.e.f. 18.08.2004.  The dispute in these appeals is with respect to the correct pension that is due to him.  According to him, his salary computed by the 1^st opposite party is wrong.  The weightage to which he was entitled has not been given to him.  Consequently, he has been suffering monetary loss ever since his retirement.  According to the 1^st opposite party, the pension of the complainant was fixed properly and correctly in accordance with the provisions of the Employees Pension Scheme.  Therefore, it is contended that the District Forum went wrong in granting relief to the complainant.

          14.     In the above context it is necessary to take stock of the relevant provisions of the Pension Scheme.  Paragraph 11 of the Pension Scheme reads as follows:

There is dispute regarding the actual salary that was being drawn by the complainant.  The 1^st opposite party has proceeded to compute the pension of the complainant taking his last drawn salary as Rs.2,017/-(Rupees Two Thousand and Seventeen).  According to the 1^st opposite party he had a break in service of three years eight months and twelve days and a non-contributory period of 365 days.  After deducting of the above periods, his past service was worked out as twenty one years and two days.  Accordingly, his pensionable service was calculated to be seven years, six months and fifteen days.

          15.     It is not in dispute that the date of birth of the complainant is 01.11.1947.  Admittedly he joined the Employees Provident Fund on 01.03.1971.  He retired from service on 18.08.2004.  It is also not disputed that the complainant had a total service of twenty four years, eight months and fourteen days.  However, the 1^st opposite party contends that he had a break in service of three years, eight months and twelve days.  But, there is no evidence on record in support of the above fact.  Therefore, the said contention is rejected.  Since his total service is twenty four years, eight months and fourteen days, the period has to be rounded off as twenty five years.  Consequently, he is entitled to a weightage of two years.

          16.     A perusal of the pay slips, Exhibits P32 to P42 shows that his last drawn salary was Rs.3,990/-(Rupees Three Thousand Nine Hundred and Ninety).  His past service is twenty four years, eight months and fourteen days and therefore, it has to be taken as twenty five years.  We have already found that his last drawn wages is Rs.3,990/-(Rupees Three Thousand Nine Hundred and Ninety) as per paragraph 12(3)(i)(b) of the Pension Scheme.  The factor as per Table B that forms part of the Pension Scheme is 7.117.  His salary being more than Rs.2,500/-(Rupees Two Thousand Five Hundred)per month and his service being twenty five years or beyond twenty years, the factor 7.117 has to be multiplied with 170, which is the correct multiplier.  Therefore,
7.117x170 = 1209.89, which is rounded off to Rs.1,210/-(Rupees One Thousand Two Hundred and Ten).  Since his service is more than twenty years, he is entitled to a weightage of two years under paragraph 10.2 of the Pension Scheme.  Therefore his total pensionable service comes to eleven years.  In view of the above, the computation of the complainant’s pension has to be done as follows:

i.e., = 627
 

His total pension therefore works out to (1210+627) =1,837/-(Rupees One Thousand Eight Hundred and Thirty Seven).  The District Forum has fallen into the error of taking the factor as 150 instead of 170.  From the above amount, 3% has to be deducted towards Short Service Pension.

          17.     In the above view of the matter the finding of the District Forum that there is deficiency in service on the part of the 1^st opposite party being fully justified is confirmed.  The contention of the complainant that the District Forum had not calculated his pension correctly is found to be justified.  We are not satisfied that any interference with the order of the District Forum as sought for by the opposite party is called for.  Therefore, except for correction of the mistake made by the District Forum in computing the complainant’s pension to the extent noticed above, the order of the District Forum does not call for any interference.  In view of the above, the Appeal No.960/2015 is liable to be dismissed while Appeal No.401/2016 is liable to be allowed.

          18.     Though the complainant has made a fervent appeal to enhance the amount of compensation as well as costs ordered to be paid by the District Forum, we are not inclined to do so.

          In the result, these appeals are disposed of as below:

1. Appeal No.960/2015 fails and is accordingly dismissed with costs of Rs.10,000/-(Rupees Ten Thousand)
2. Appeal No.401/2016 is allowed.  The actual pension due and payable to the appellant herein is fixed as Rs.1,837/-(Rupees One Thousand Eight Hundred and Thirty Seven) subject to a deduction of 3% towards Short Service Pension.  The pension at the above rate shall be due and payable to the appellant herein from the date of his retirement and in future.  The arrears shall be paid to him with interest @12% per annum.  The pension with all arrears shall be paid within one month from the date of receipt of a copy of this judgement failing which the entire amount would carry interest @15% per annum from the date of this order.
3. Both the appeals are disposed of as above.  No costs.

SL