By G. Yadunadan, President:

            An employee of the Vatakara Taluk Co-operative Marketing Society Ltd. has filed the above complaint alleging that there was an undue delay in the disbursement of pension under the Kerala Co-operative Societies Employees Self Financing Pension Scheme 1994 and that the pension being given is very low than what he is legally entitled to.  Complainant claims to have been employed in the post of “Attender”  in the Society and he retired on  31.5.1999 after 31 years of service.  He is a member of the Kerala Co-operative Societies Employees Self Financing Pension Scheme 1994 and eligible for monthly pension @ Rs.1046/- as per section 22 of the said scheme.  He would contend that even though he was eligible to get pension from 1999 onwards he was given pension only from 2004 onwards, that too after a registered notice dated 23.1.2004.  He was not given any interest for the delayed period and arrears of pension up to 30.4.2004 was calculated @ Rs.500/- per month and not at Rs.1046/-.  Even though the complainant had caused a registered lawyer notice dated 10.5.2004 to be issued, the opposite party has not complied with the requirement made therein or issued a reply even.  Hence alleging negligence and deficiency in service on the part of the opposite party the above complaint is filed praying for an order directing the opposite party to pay pension @ Rs.1046/- per month, for payment of interest @ 9% for the delayed period from 1.6.1999 and arrears of pension, compensation of Rs.25,000/- cost of Rs.2000/- and for a further direction to the respondent to consider full service of the petitioner.

            The opposite party entered appearance and filed their version contending, on verification of the normal request for the pension by the verification officer, Kozhikode Centre of the opposite party, he had in his report reported that complainant’s eligible service starts from 6.9.1970 in which date he joined in Contributory Provident Fund.  He retired from service of the Society on 31.5.1989.  Thus he has a total of 345 months service which includes non qualifying service of 109 months.  Hence the total qualifying service is 236 months.  The average pay calculated in order to sanction the pension is correct as per the service details of the employee as also with service books and the records of the Society.  The Vatakara Taluk Cio-operaticve Society remitted its initial payment of pension fund to the office of the opposite party only on 28.1.2003.  Thus there is no delay on the part of the opposite party in granting the pension.  This Forum has no jurisdiction to try the above matter and thus in short sought for the dismissal of the complaint. 

The complainant was examined as PW1 and Ext. A1 to A4 were marked.  Ext. B1 and B2 were marked on the side of the opposite party.

Issues that arise for consideration:  (1) Whether the complaint is maintainable?  (2)  What is the actual qualifying service and pension the complainant is entitled to?  (3)  Is the complainant entitled to interest for the delayed period?  (4) What order as to relief including compensation and cost.

Issue No.1:  The opposite party has raised a contention that the above complaint is not maintainable as the complainant will not be a consumer as contemplated under the Consumer Protection Act.  The Hon”ble High Court of Kerala in Kerala StateCo-op. Employees Pension Board Vs. Consumer Disputes Redressal Forum, 2004 (1) KLT page 111 has held that the Board is providing service and retired employees of Co-op. Socitieis who are members of the scheme are consumers under the Act.  Hence we hold that the above complaint is maintainable and the complainant is a consumer as contemplated under Consumer Protection Act.

Issue No.2:  Clause 18 of the Pension scheme states that every employee of the Society to which this scheme applies shall subject to the other provisions of the scheme, be eligible for pension under the scheme.  Clause 19 deals with qualifying service and under sub clause 1A the qualifying service for granting pension under the scheme shall be in the case of an employee who was in the service of a Society on the date of application of this scheme to that society the length of service commencing from the date of joining the Contributory Provident Fund, provided that the qualifying service shall be limited to the period for which the employer’s contribution towards the Provident Fund has been fully paid by the Society in respect of that employee.  Sub clause 3 states that the period spent on leave except Leave without allowances shall be counted for qualifying service.  The mode of computation is provided in clause 22.  Under clause 27, an employee shall submit his formal application for superannuation pension in annexure 1 form to the chief executive of the society at least one year in advance of the date of his anticipated retirement or for retiring pension as soon as may be after the grant of permission by the appointing authority to retire.  The Chief Executive of the society will have to forward the said application to the Board with the relevant records and a verification certificate.  The complainant would contend that the method of calculation of average pay as per section 2C of the scheme is average pay drawn by the last 10 months of his qualifying service and pay defined in section 2G as basic pay, special pay, personal pay, dearness allowances and any other amount ordered to be treated as pay such as consolidated pay.  As per the calculation of the complainant he is eligible for a monthly pension of Rs.1046/-.  The opposite party considered only 236 months of service (19 years, 8 months) instead of 360 months.  Thus due to the act of opposite party the complainant has suffered loss of qualifying service of 10 years in the calculation of service for pension.  Due to this calculation the complainant is having a monthly loss of Rs.546/- from pension amount.  The complainant submits that the above said reduction of service committed by the opposite party is only for the purpose of reducing the pension amount.  The opposite party allowed only monthly pension of Rs.500/- reducing the actual amount illegally.  Complainant admits in cross examination that he had served the Society for 5 years without any salary.  Complainant further alleges that there is manipulation and corrections made in his service book by the present secretary of the Society.  The society is not made a party in the above complaint.  In view of the rival contentions of the parties, we are of the view that the issue regarding the determination of the actual eligible/qualifying service and the actual amount of pension the complainant is entitled to, is beyond the scope of adjudication of this Forum and hence the issue is answered accordingly.  The complainant shall be at liberty to approach the appropriate Forum/authority under the Kerala Co-operative Societies Act, 1969 for settlement of the dispute regarding his period of service etc. and thereafter approach the opposite party for re-fixing his pension, if he is so entitled.

Issue No.3:  Further case of the complainant is that even though he retired from service on 31.5.1999, the retirement benefit and pension are unreasonably delayed by the Society and the opposite party.  Thereafter on 23.1.2004 the complainant sent a registered notice to the opposite party claiming pension for full service and interest for delay and then only the opposite party informed the complainant vide pension sanction order dated 23.4.2004 No.262/KKD stating that the opposite party granted Rs.500/- per month from 1.6.1999 without giving any reason for delay.  The opposite party also granted Rs.29500/- towards arrears of pension up to 30.4.2004 @ Rs.500/- per month without interest and compensation for the delay.  Thereafter on 10.5.2004 a registered lawyer notice was issued by the complainant against the illegal acts of the opposite party and claiming full service, 9% interest for delayed pension and for Rs.1046/- per month as pension.  Opposite party received the notice but no reply was issued.  Complainant is claiming Rs.1046/- per month as monthly full pension with 9% interest for delayed pension from 1.6.1999 and arrears of pension and Rs.25,000/- as compensation and Rs.2000/- as costs.  Regarding the actual quantum of pension complainant is entitled to, we are not expressing any opinion as indicated while answering issue No.2 above.  As per Ext. A1 pension sanction order No.262/KKD issued by the opposite party the date of entry into service is shown as 23.4.1969, date of joining Contributory Provident Fund as 6.9.1970,  date of retirement as 31.5.1999 and the date of commencement of pension is shown as 1.6.1999.  As per clause 29 of the scheme pension shall be payable per month which shall commence in the case of superannuation pension, from the beginning of the month succeeding the month in which the employee retires from the service of a Society after attaining the age of 58 years.  Thus the complainant was entitled to pension with effect from 1.6.1999.  Admittedly the payment was made only on or after 23.4.2004 as per payment advice No.3558.  Thus there is a delay of around 4 years and 10 months.  The explanation offered in the version is that the Vatakara Taluk Co-operative Society remitted its initial payment of pension fund only on 28.1.2003 and being a self financing pension scheme the opposite party could not afford to sanction pension to those employees who were not included in the pension scheme and that the delay in pension sanctioning to the complainant is not the fault of the opposite party.  The Society had not taken any action to admit the complainant in the pension board in time.  On a close scrutiny evidence and records available in the matter, we are not satisfied with the explanation given by the opposite party.  As held by the Hon’ble High Court of Kerala in 2004 (1) KLT III “ it is trite law that retiral benefits are not a bounty from the employer/state to a retired employee. It is an undefeasible right.  Any delay in disbursement should be viewed strictly, if there is no justifiable reason for the procrastination, the officers responsible for the latches should not be spared.  Unless there is accountability, lethargy and indifference will prevail.  Petitioner cannot also contend that the pension board being a statutory body constituted by the Govt.  it cannot be held liable for any lapse on the part of the member societies in remitting the contribution.  No doubt it is a statutory body constituted by virtue of the powers conferred on the Govt. under section 80A of the Co-op. Societies Act.  But the board cannot take shelter under any statutory immunity nor can it plead helplessness in administering the fund.  Clause 38 of pension scheme empowers the board to recover the amount of arrears from the Societies towards the fund with interest as arrears of public revenue.  In the above circumstances the opposite party is liable and responsible to pay interest for the delayed period in disbursing pension to the complainant. The opposite party shall be at liberty to realize the said amount from the society, if they are legally entitled to otherwise. 

Issue No.4:  The Hon’ble Suprement Court of India, in Charan Singh Vs. Healing Touch Hospital and others 2000 III CPR 1 (SC) has held that while quantifying damages, Consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purposes of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider.  In paragraph 13, it is further held that it is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc, suffered by the complainant which is in issue, it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.  The Hon’ble Supreme Court of India in Lucknow Development Authority Vs. M.K. Gupta, 1994 (12) SC 243 has held “the jurisdiction and power of the Courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027, on the principle that an award of exemplary damages can serve a useful purpose in vindicating the strength of law.  An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law.  It acts as a check on arbitrary and capricious exercise of power.  Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide.  But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance.  Harassment of a common man by public authorities is socially abhorring and legally impermissible.  It may harm him personally but the injury to society is far more grievous.  Crime and corruption thrive and prosper in the society due to lack of public resistance.  Nothing is more damaging than the feeling of helplessness.  An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.  Therefore the award of compensation for harassment by public authorities not only compensates that individual, satisfies him personally but helps in curing social evil.  It may result in improving the work culture and help in changing the outlook” and so observing further held under our constitution sovereignty vests in the people.  Every limb of the constitutional machinery is obliged to be people oriented.  No functionary in exercise of statutory power can claim immunity, except to the extent protected by the Statute itself.  Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law.  Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation.  The word compensation is again of very wide connotation.  It has not been defined in the Act.  According to dictionary it means, compensating or being compensated; thing given as recompense.  In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation.  The provision in our opinion enables a consumer to claim and empowers the commission to redress any injustice done to him.  Any other construction would defeat the very purpose of the Act.  The commission or the forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.

Thus keeping in view of the above principles laid down by the Hon’ble Supreme Court of India and upon consideration of all the relevant matters in issue and especially conduct of the opposite parties we grand the following reliefs:

The opposite party is directed (1) to pay interest @ 9% per annum for the pension kept in arrears till 23.4.2004 from the defaulted date onwards.

(2) to pay a sum of Rs.10,000/- as compensation to the complainant

(3) to pay a sum of Rs.500/- as costs.

The above payments shall be made within a period of 2 months, failing which the same shall carry an interest of 9% per annum till payment.

            Pronounced in open Court this the 14^th  day of January 2010.

                        Sd/-President.                                                  Sd/-Member

APPENDIX

Documents exhibited for the complainant:

A1        Photocopy of the proceedings N o.262/KKD/R.Dis. dated 23.4.2004.

A2        Photocopy of the payment advice No.3558 dated 23.4.2004.

A3        Photocopy of lawyer notice dated 10.5.2004.

A4        Photocopy of the postal acknowledgement card.

Documents exhibited for the opposite party:

B1         Photocopy of the acquittance roll.

B2         Photocopy of the pension docket.

Witness examined for the complainant:

PW1     Damodaran. K.E., S/o. Paithal Adiyodi, Kanharadan House, P.O. Narippetta.

-/True copy/-

Sd/-President

(Forwarded/by Order)

Senior Superintendent.