By G. Yadunadhan, President:

            An employee of the Vatakara Taluk Co-op. Marketing Society Ltd. has filed the above complaint alleging that there was 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.  The complainant claims to have been employed in the post of “Secretary” in the Society and he retired on 31.8.1997 after 28 years of service.  He is a member of the Kerala Co-op. Societies Employees Self Financing Pension Scheme 1994 and eligible for monthly pension at the rate of Rs.2328/- as per Section 22 of the said scheme.  The complainant submits that actually he has 28 years of total service in the society, he joined in CPF on 1.4.1973, hence the qualifying service for pension is 24 years.  But the opposite party deducted  8 years of qualifying service of the complainant illegally and considered only 16 years for pension.  The opposite party was calculated the pension at the rate of Rs.861/- per month and not at the rate of Rs.2328/-.  Even though the complainant had caused a registered lawyer notice dated 21.6.2004 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 to pay pension at the rate of Rs.2328/- per month, for payment of interest @ 9% for the delayed period from 1.9.1997 and arrears of pension, compensation of Rs.25000/- cost of Rs.3000/- and for a further direction to the respondent to consider full service of the petitioner.

            The opposite party entered in appearance and filed their version contending inter-alia the following:  On verification of the formal request for the pension by the Verification Officer, Kozhikode Centre of the opposite party, he had in his report reported that the Vatakara Taluk Co-op. Society started the contributory provident fund only on 1.9.1981 but the society decided to implement contributory provident fund with effect from 1.4.1973.  The opposite party has not collected the pension fund for the period from 1.4.1973 to 31.8.1981.  As per the pension scheme Rule 19(1) the qualifying service counts for the pension commencing from the date of joining in the CPF.  Hence the qualifying service of 16 years calculated by the opposite party is legalone.  The society  submitted the formal request for pension application only on 29.5.1998, after a lapse of 10 months.  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 the complaint is liable to be dismissed.

            The complainant was examined as PW1 and Ext. A1 to A11 were marked.  Opposite party has no oral evidence.  Ext. B1 was marked on the side of the opposite party.  RW1 was also examined 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 if 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.2328/-.  The opposite party considered only 16years of service instead of 24 years.  Thus due to the act of opposite party the complainant has suffered loss of qualifying service of 8 years in the calculation of service for pension.  The opposite party sanctioned only Rs.861/- per month to the complainant from 1.9.1997 on the basis of 16 years of service, unlawfully excluding 8 years if qualified service and average 10 nmonths pay as Rs.2154/-.  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.861/- reducing the actual amount illegally.  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 31.8.1997, the retirement benefit and pension are unreasonably delayed by the Society and the opposite party.  Thereafter on 1.12.1999and 12.1.2002 the complainant made a representation to the opposite party against the said deficiency of service committed by the opposite party but both petitions were rejected on flimsy grounds.   Finally the opposite party issued pension revision order dated 23.10.2002 vide No. PB PPO/78/KKD stating that monthly pension amount of the petitioner is enhanced from Rs.861/- to Rs.1552/- due to the enhancement of the average 10 months pay raised from Rs.2154/- to Rs.5820/-.  But the pension enhancement affected from 1.4.2000 only, instead of 1.9.1997, the date of retirement and on that basis arrears from 1.4.2000 to 31.10.2002, Rs.21421/- were also given without any interest and compensation.  Thereafter on 21.6.2004 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.2716/- per month as pension.   Opposite party received the notice but no reply was issued.  Complainant is claiming Rs.2328/- per month as monthly full pension with 9% interest for delayed pension from 1.9.1997, and arrears of pension and Rs.25,000/- as compensation and Rs.3000/- 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.78/KKD dated 26.5.1999 issued by the opposite party the date of entry into service is shown as 1.9.1991, date of retirement as 31.8.1997 and the date of commencement of pension is shown as 1.9.1997 total qualifying service as 16 years, Last pay drawn as Rs.2160/-, average emoluments as Rs.5820/-. And amount of pension as Rs.1552/-.   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 1.9.1997.  Admittedly the payment was made only on or after 26.5.1999 as per payment order.  Thus there is a delay of around 1½ years .  The explanation offered in the version is that the Vatakara Taluk Co-operative Society remitted its initial payment of pension fund only on 1.9.1981 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 Supreme 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 Pension Payment Order.

A2        Photocopy of the proceedings No. PB/PPO.No.78/KKD. Dated 26.5.99.

A3        copy of letter from the complainant to the opposite party dated 16.12.99.

A4        Photocopy of letter from the complainant to the opposite party dated 12.1.2002.

A5        Copy of letter No. PB/PPO/78/KKD dated 10.1.2000.

A6        Copy of proceedings No. PB.PPD.78/KKD dated 23.10.2002.

A7        Copy of lawyer notice dated 21.6.2004.

A8        Copy of postal acknowledgement card.

A9        Copy of Chalan form.

A10      Photocopy of chalan receipt for Rs.8347/-.. 

A11      Photocopy of chalan receipt for Rs.983/-.

Documents exhibited for the Opposite party:

B1         Photocopy of pension docket.

Witness examined for the complainant:

PW1     P.P. Balan Nambiar, S/o. Rama Kurup,-Complainant.

PW2     V.N. Kunhikannan, S/o. Kelappan, Namithalayam, P.O. Cheekkonnu, Kakkattil.

Witness examined for the opposite party:

RW1     Ismail, S/o. Ahammed M.K., Mannankavil House, Mannankav P.O.

-/True copy/-

Sd/-President

(Forwarded/by Order)

Senior Superintendent.