Date of Filing:12/07/2018

Date of Order:31/01/2020

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 31^stDAY OF JANUARY 2020

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI. D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1167/2018

Vs

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT.

1.     ThisComplaintisfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not calculating the family pension and other pension properly and providing minimum pension as mentioned in the Employees Family pension Scheme and Employees Pension scheme, not providing the benefit of two years weightage, and to direct OP to pay arrears of pension of Rs.35,868/- from 28.04.2010 to January 2010, directing OP to pay a monthly pension at the rate of Rs.2,380/- from 28.04.2010 till payment of the entire amount along with interest at 12% to give annual relief from the year of retirement till the financial year and order to pay Rs.10,000/- towards damages for causing mental agony, pain and suffering andfor such other reliefs as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are that:the complainant joined the post of conductor on 14.05.1982 with KSRTC and retired on 30.04.2012 having a service of nearly 30 years.  Earlier OP introduced a plan of family pension scheme 1971 with effect from 01.03.1971 to 16.11.1995. Afterwards from 16.11.1995 a new scheme called Employees Pension Scheme 1995 was introduced.  Certain amount was being deducted out of his salary every month in respect of the said scheme and being credited to OP. he was also given option to give willingness to transfer the amount accumulated in the old family pension scheme and the new employees pension scheme. After retirement, OP fixed a monthly pension of Rs.1,648/- from 28.04.2010.  Complainant came to know during December 2016 that there is an error in calculation in the pension, and he was being given less pension than what he was due. A representation on 19.01.2017 was given to OP. Inspite of it, OP did not oblige and revised the pension as per the scheme and as per the provisions of Para 12 (3)(a) and 12(5) (b) of the Employees Pension scheme 1995, OP has to calculated pension upto 1995 as per the provisions of the family pension scheme and from 1995 onwards under employees pension scheme. The monthly pension will be the sum of both the pensions arrived at under the above scheme.

3.     It is contended that the complainant is also entitle for minimum pension assured under the both the scheme. The Hon’bleHigh Court of Karnataka in ILR 2004 KAR 2859 has held that: OP has to provide theminimum assured benefit in respect of past and present services whereas, OP intentionally has not given the minimum assured benefit under above 2 pension schemes which amounts to Unfair trade practice as defined u/s 2 (R)(4)(5) and (6) of the C.P.Act.  Further as per para 10 (2) of the Employees pension scheme 1995, those employees who superannuate on attaining the age of 58 years or who has  rendered 20 years of pensionable service or more, are entitle for  two years of additional weightage period.

4.     The complainant is entitle for the same whereas , OP has not extended the said benefits.  Under Para 32 of the Employees pension scheme 1995, OP has to give annual relief by making valuation of the Employees pension fund, whereas, OP has not done so.  He paid the contribution from the date of becoming member to the scheme till his retirement whereas OP failed to pay the annual relief to him. Under para 17(a) of the scheme, OP is liable to pay interest on the said arrears of amount @ 12% p.a as affirmed by the HON’BLE NATIONAL COMMISSION in the case between P.F COMMISSIONER VS SULEKHA REPORTED in 2008 CPJ 306. Even the KARNATAKA STATE CONSUMER DISPUTE REDRESSAL COMMISSIONin 415 and 419/08 between YEMANAPPA AGASAR AND OTHER VS ASST. P.F COMMISSIONERhas held the period of limitation starts from the date on which the complainant comes to know the erroneous pension calculation. Hence the complaint filed is in time and prayed the forum to allow the complaint.

5.     Upon the service of notice, OP appeared through its representative the Asst. Provident fund Commission and has filed a detailed version wherein it has admitted the date of entry of the complainant into the service, into the family pension scheme, into the employees pension scheme, and also having issued pension payment order:BGMRD00001832and also sanctioning of monthly pension of Rs.1,830/- P/M w.e.f 28.04.2010.After the sanctioning of the pension the complainant has been receiving the pension.

6.     OP has contended that they have calculated the pension under family pension scheme 1977 as per para 12(3)(b) of Employees Pension Scheme 1995 by taking past service of fourteen years. From the date of entry into the service upto 15.11.1995 and calculated the pension as per para 12(3)(a) of Employees pension scheme 1995 by taking 20 years of service rendered from 16.11.1995 till the date of retirement /exists on 17.10.2015excluding the break in service of 368 days under FPF scheme and 338 of noncontributory period under EPF 1995 scheme. As per family pension scheme 1971 complainant is entitle for Rs.412/- and Rs.1418/- as per para 12(3) in respect of employees pension scheme.  The aggregate of which it is morethan Rs.635/- which worksout to be Rs.1830/- p/m and the claim of the complainant that minimum of Rs.800/- p/m in respect of Para 12(3)(b) of the Employees Pension Scheme 1995 cannot be granted.  As per the rules and amended rules and also as per the gazette notification of India giving retrospective effect and HON’BLE HIGH COURT OF KARNATAKA’sdecision in Channakeshavalu case is not applicable to the case in hand.  The minimum pension of Rs.800/- p/m as stated in 12(3)(a)(b) is for the total pension arrived after aggregate of past service and pensionable service under the above schemes and hence, in this case,the aggregate of pension  under the scheme for this complainant is morethan Rs.635/- and hence Rs.1,418/- is fixed as pension per month by applying Rs.135/- with multiplicant 3.502 which worksout to be 412/- and hence no relief can be granted and there is no deficiency in service on their part. The pension fixed and being paid under the above scheme are as per the provisions of the rules and regulations and hence prayed the forum to dismiss the complaint.

7.      In order to substantiate their case, both parties have filed affidavit evidence and documents. Heard the arguments, the following points have arise for our consideration:-

 (1)   Whether the complainant has proved

deficiency in service on the part of the O.P?

(2)  Whether the complainant is entitled to

the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT 1: In the affirmative

POINT 2: Partly In the affirmative

                For the following:

REASONS

POINT No.1 & 2:

9.     It is not in dispute that the Complainant was appointed as a Conductor on 13.05.1976 in the Department of Karnataka State Road Transport Corporation and he retired from the service on 27.04.2010.  The Complainant is a Member of Family Pension Scheme 1971.  In the Year 1995, the Opposite Party repealed the Family Pension Scheme 1971 and introduced the new Scheme known as Employees’ Pension Scheme 1995 with effect from 16.11.1995.   After the retirement of the complainant, the Opposite Party fixed the monthly pension of Rs.1,830/- with effect from 30.04.2010 including 2 years additional weightage as per the rules, since he retired after completing 58 years.  Complainant came to know through one of his colleagues that there is an error in calculation of pension and less amount of pension is being paid every month to him.  Immediately, the Complainant gave a representation and according to the Complainant, he is claiming that he is entitle to a pension of Rs.2,380/- per month and that he is being paid Rs.1,648/- per month only and difference of pension amount i.e. Rs.732/- per month is to be paid to him from the day on which his pension was fixed i.e. 28.04.2010/30.04.2010he is eligible for pension of Rs.2,378/- per month.   To substantiate the contentionthe Complainant has filed his sworn affidavit reiterating the contents of the complaint and also has produced and got marked documents.

10.   Further he has produced the details of his service wherein he retired on 30.04.2010 after attaining superannuation i.e 60 years. The Asst. P.F Commissioner has issued pension arrears statement in respect of sanctioning the pension under Employees Provident scheme 1995 wherein a sum of Rs.1,648/- is fixed as a monthly pension. Ex P3 is the copy of the notice issued to the regional provident fund commissioner stating that his pay as on 15.11.1995 was Rs.2500/- and he has put in past service of 13years 6 months to be rounded off to 14 years and present service as 17 years 5 months rounded off to 17 years and total pensionable eservice is 30 years and his pensionable salary is Rs.6,500/- p/m.

11.   On the other hand, the complainant has not produced the last pay drawn or the average of six months salary in order to calculate the pensionable salary to fix the pension.

12.   OP has filed a calculation sheet wherein it has calculated the Complainant’s past service after excluding 368 days of break in service at 18 years 6 months and the wages as on that day was Rs.3,500/- and pensionable service after excluding 330 days of NCP days as 14 years 5 months and 12 days. When the date of joining to the service of the complainant i.e. 13.05.1976 and the retirement on attaining the age ifsuperannuation on 13.04.2010 is taken into consideration the total service  and pensionable service works out to be nearly 33 years (32 years 11 months 12 days ) excluding the breaking service and 330 days of NCP days.

13.   As per Para 9  Determination Of Eligible Service: Eligible service Determined service is(a)………………..

(b) in the case of “existing member “ the aggregate of actual service and past service shall be treated as eligle service for pension. Provided that if there is any period in the “past service” for which contribution towards the family pension scheme 1971 has not been received the said period shall count as eligible service only if contribution thereof have been received in the Employees Provident Fund. Explanation: for the purpose of sub paragrapha the aggregate of actual service and past service for less than six months ignored and six months and above shall be rounded off to the next year.

14.   It is also in para 10(2) that in case of member who superannuate on attaining the age of 58 years who has rendered 20 years pensionable service or more his pensionable service shall be increased by adding a weightage of two years. 

15.   When this is taken into consideration, Op has not at all placed any materials to show that there was no contribution days during the past service.  On its own admission, Rs.3,500/- is the wage he was earning as on 15.11.1995 and in respect of his past service 135 X 3.052 which amounts to Rs.412/- p/m to be taken into consideration and not as claimed by the complainant i.e Rs.3.052 X Rs.95 = Rs.290/- per month.

16.   The Opposite Party in their version has contended that the pension fixed by them is correct and proper and in accordance with law.  It is settled  law that, the pension should be fixed by considering aggregate of past service and present service. If any Employee served more than 20 years, to give additional weightage of 2 years.  So in the present case, admittedly, the Complainant Joined service on 13.05.1976and retired on 30.04.2010 i.e., Past Service is 14 Years 6 months Rounded off to 14 years and present/actual service 17 years, 5 months 12 days, Rounded off to 17 years, total pensionable service is 31 years.   The Complainant is entitled for 19 years of service pension(including 2 years weightage). Even taking into consideration the salary of the complainant at the time of retirement as Rs.6,389/- (OP has arrived at the right figure after looking into the service records and pay details and as the complainant has not produced any documents to show that he was drawing salary of Rs.6500/- p/m) Rs.6389X19(17+2)/70 which works out to be Rs.1,764.28 and added to the same, a sum of Rs.412/- per month being the past pension, the same worksout to be Rs.2,176.28 and the same is rounded off to Rs.2,176/-. Complainant is already drawing Rs.1,830/- per month andthe difference works out to be Rs.346/-per month which the complainant is entitle to from 30.04.2010 onwards along with interest at 6% per annum. 

17.   The contention of the complainant that he is entitle for Rs.800/- per month being minimum amount under para 12 (3)(a) and (b) is not acceptable as it is if the total payable pension is short of Rs.800/- he should be given minimum Rs.800/- whereas in this case the aggregate of para 13(a) and (b) works out to be Rs.2,176/- and hence there is deficiency in service in calculation and paying the amount and POINT NO.1 IN THE AFFIRMATIVEand in the result the complainant is also entitle for amount as mentioned above and answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. OP i.e.Regional Provident Fund Commissioner, represented by its Authorized Signatory is hereby directed to revise the monthly pension of the Complainant from Rs.1,830/-  to Rs.2,176/- per monthand to pay the difference of amount i.e. Rs.346/-from 30.04.2010 with interest at 6% per annum thereon.

3. Further OPis hereby directed to pay Rs.2,000/-  towards cost and litigation expensesto  the complainant.

4.  O.P ishereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by her corrected and then pronounced by us in the Open Forum on this 31^stDAY OF JANUARY 2020)

MEMBER                          PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the sub division establish  order dated 19.02.2011.

Ex P2: Copy of the certificate of life.

Ex P3: Copy of the Legal notice dated 19.01.2017

Ex P4: Copy of the Postal receipt.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:SriA.V.Balasubramaniam, Asst. P.F. Commissioner of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Memo of calculation.

MEMBER                        PRESIDENT

A*