Complaint filed on: 21-04-2016                                                      Disposed on: 30-11-2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No. 57/2016 to CC. No.62/2016 (6 cases)

DATED THIS THE 30^th DAY OF NOVEMBER 2016

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT,

SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER

SMT.GIRIJA, B.A., LADY MEMBER

Complainants: -                                                                      

1. CC.No.57/2016

Gangaiah.S,

S/o. Sanjeevaiah,

Aged about 60 years,

6^th Cross, Sri Krishna Nagar,

SIT Extension, Tumkur – 572102

2. CC.No.58/2016

Mahalingappa,

S/o. Late C.R.Lakshmaiah,

Aged about 58 year,

Devaraya Patna New Extension,

Tumkur-572014

3. CC.No.59/2016

Ravichandra Naik,

S/o. Late Thimmaiah,

Sri Venkateshwara Nilaya,

Behind Water Tank,

Nethaji Road,

Vidyanagar, Tumkur-03

4. CC.No.60/2016

T.Dass S/o.Late Thimmaiah,

R/o. No.7-A1,

A-type quarters,

HMT colony, Devaraya Patna and post, Tumkur-03

5. CC.No.61/2016

Nataraju.T.S.

S/o. Late Siddalingappa,

Aged about 60 years,

Sri Channabasaveshwara Nilaya,

Sharada Devi Nagar, Belagumba Road, Tumkur.

6. CC.No.62/2016

Hanumantharaya.T,

S/o. Late Thimmappa,

Sanjay Gandhi Nagar,

Kythasandra, Tumkur.

(All the complainants Reptd. by Advocate Sri.T.Ramaiah) 

V/s

Opposite parties:-        

1. The Assistant Provident Fund Commissioner, Sub-Regional office, Peenya, Bengaluru-58
2. The General Manager [GM],

HMT Watch Factory IV^th, Devarayapatna, Tumkur.

(OP No.1 by Advocate Sri.K.V.Srinivasa Naidu)

(OP No.2-Exparte)

COMMON ORDER

SMT.PRATHIBHA. R.K, PRESIDENT

Since the OP No.1 and 2 in these six cases are one and the same, but the complainants are different and the facts of these cases are identical, so in order to avoid confusion, repetition of discussion of facts and also to avoid conflict of the opinion, so they are clubbed together and disposed off under a common order.

2. These complaints have filed these complainants against the OP No.1 and 2, under Section 12 of the Consumer Protection Act.

3. Through these complaints, the respective complainants prays to direct the 1^st OP to revise the monthly pension by extending the minimum assured benefits both in respect of past and present service separately and to revise the monthly pension by extending the weightage of two years with effect from the date of retirement of the respective complainants; and to pay arrears along with interest @ 12% p.a., and to give annual relief from 2001 to till this financial years, and to continue to pay the monthly pension to the respective complainants as per the scheme in revise scale and to award Rs.3,000=00 each to the complainants as cost of the proceedings and award compensation towards mental agony, in the interest of justice and equity.

2. The common brief facts of the complaints are as under.

The complainants in complaints Nos.57/2016 to 62/2016 have filed their respective complaints against the OP No.1 and 2 claiming certain reliefs with almost common facts.  The complainants were working in 2^nd OP. However, there is a difference with regard to the date of retirement, date of joining and the pension fixed.  Therefore, the same have been mentioned in the below mentioned table.

          In the year of 1971, the 1^st OP introduced the Pension Scheme namely Family Pension Scheme 1971 with effect from 1-6-1971. The membership to the Family Scheme was optional. The complainants were opted to join the Family Pension Scheme. The membership to the said scheme was accepted by the 1^st OP and the family pension account number was allotted to the complainants. Thereafter, the 2^nd OP deducted the monthly subscription from the complainants’ monthly salary and the same was remitted to the 1^st OP.

          The complainants further submitted that, in the year 1995, the 1^st OP repealed the Family Pension Scheme 1971 and introduced the new scheme known as Employees Pension Scheme 1995 with effect from 16-11-1995. The 1^st OP asked the complainants to submit their willingness to transfer the amount accumulated in the old scheme to new scheme and the 1^st OP accepted the willingness and continued the complainants in new scheme.

          The complainants further submitted that, after retirement, the 2^nd OP has sent all the service records and other details to the 1^st OP. Thereafter, the 1^st OP settled/fixed the monthly pension of the complainants.

          The complainants further submitted that, in the month of April 2016, it came to the knowledge of the complainants through one of their colleagues that, there are errors in the calculation of pensions fixed and pension now paid to them by the 1^st OP is lesser one that the complainants entitled. Immediately, the complainants have given representation to the 1^st OP for the revision of the monthly pension, but the 1^st OP has not revised the monthly pension of the complainants till this date. The said act of the 1^st OP amounts to unfair trade practice and deficiency of service. Hence the complainants are constrained to file these complaints before the Forum

          The complainants further submitted that, as per the provision of the Employees Pension Scheme 1995, the monthly pension is calculated for two different periods separately i.e. past service-scheme namely Family Pension Scheme 1971 and present service-scheme namely Employees Pension Scheme 1995 till his retirement. As per the paragraph no.12 of the Employees Pension Scheme 1995, the monthly pension means aggregate of the past service and present service pension benefits. The 1^st OP has not followed the provisions of the law and made erroneous calculation without applying minimum assured benefits. Therefore the complainants are entitled for minimum assured benefits both in respect of past and present services separately.

          The complainants further submitted that, as per the paragraph no.10 (2) of the Employees Pension Scheme 1995, it is necessary to give two years of weightage period to the members who superannuate on attaining the age of 58 years or/and who has rendered 20 years of pensionable service or more. In the present cases, the 1^st OP failed to follow the provisions of the paragraph No.12 (2) of the scheme and the said benefit has not extended to the present complainants. The complainants have rendered more than 20 years of pensionable service and they are entitled for the benefit of weightage of two years.

          The complainants further submitted that, as per the paragraph No.32 of the Employees Pension Scheme 1995, it is necessary to give annual relief by making valuation of Employees Pension Fund, but from the year 2001, no such valuations are made by the 1^st OP and no annual relief is given to the complainants. The 1^st OP failed to follow the provisions of the scheme Therefore the complainants are entitled for the annual relief from 2001 to this date as per the provisions of the scheme.

          The complainants further submitted that, the period of limitation starts from the date on which it came to the knowledge of the complainants about the erroneous calculation of pension in the month of October 2014. Hence the complaints are in time, since 1^st OP is paying wrongful pension every month, therefore every month the fresh cause of action arises. Hence the present complaints are filed.  

3. After service of notice, the 1^st OP has appeared through his counsel and filed version to the respective complaints. The 2^nd OP has not appeared before the forum, hence he was called out absent and placed him exparte.

4. In the version, the 1^st OP submitted that, the complaints are not maintainable in the eyes of law, facts and circumstances of the cases, since the complainants’ does not fall under the “Consumer” as defined in the CP Act. The complainants have already been granted pension as per the Employees Pension Scheme 1995, and if there is any variation/difference/shortage, the same can be adjudicated by the 1^st OP under the provision of Employees Pension Scheme 1995 which provides for necessary machinery to adjudication of the dispute.

Without prejudice, the 1^st OP submitted that, many pensioners across the Karnataka State have filed the complaints came out with the similar plea for grant of weightage of two years on the pensionable service from the date of entitlement.  Some of the complainants have reached the Hon’ble National Consumer Disputes Redressal Commission, New Delhi for resolution of the issue.  The Hon’ble Supreme Court of India by its order in SLP No.30844/2010 dated 15-11-2010 has dismissed the appeal with the observation that, Question of Law is kept open and the Hon’ble Supreme Court in its order dated 01-03-2013 and 23-3-2015 while disposing the SLP (Civil) No.4490-4506/2013 and SLP No.3556/2014 has again observed that “Question of Law kept open”. Again the 1^st OP has approached the Apex court on three occasions and on each count, the apex court has observed that, the question of law is kept open to be decided in a appropriate case. The said observation of the Hon’ble Apex Court manifests that, the issue has not attained finality and orders of the lower forums are subject to scrutiny in appropriate case.

The 1^st OP further submitted that, the complainants are retired employee of the 2^nd OP and they were member of erstwhile Employees Family Pension Scheme 1971. The 1^st OP has been paying pension regularly being monthly member pension as per the Employees Pension Scheme, 1995. The pension proceeds have been credited to the SB accounts of the complainants. However the complainant being not satisfied with the quantum of pension paid to them filed the instant complaints before the Forum claiming addition of service of two years as contemplated under Para 10 (2) of the Employees Pension Scheme, 1995. It is not that, the complainants’ prays that, they are not being paid pension but he disputes the quantum of it. The 1^st OP disputes the claim of the complainants on the following grounds.

The 1^st OP further submitted that, the definition under the Employees Pension Scheme 1995 needs as cogent reading; Under Para 2 (1) (xii): “Past Service” and Under Para 2 (1) (ii): “Actual Service” and Under Para 2 (1) (vi) means an existing employee who is member of the Employees Family Pension Scheme, 1971. Determination of Eligible service; (a) in the case of “new entrant” the “actual service” shall be treated as eligible service. (b) In the case of the “existing member” the aggregate of actual service and the post service shall be treated as eligible service. (c) Demand for weightage in this case is based on wrong interpretation of the “Pensionable Service” under Para 10 (2) of the Employees Pensions Scheme, (d) “pensionable service and past service” has been defined separately under Para 2(xv) and 2 (xii) respectively making the intent of law makers clear that, pensionable service and past service are two different aspects and (e) above mentioned facts get further clarified from the reading of Para 12 (2) of the Pension Scheme where Pensionable Service means service from 16-11-1995 onwards.

The 1^st OP further submitted that, as per the provision contained under Para 10 (2) of the Employees Pension Scheme 1995 a member is entitled for weightage of two years, interalia if they have put in pensionable service of 20 years. The said provision read as hereunder:

“10. Determination of pensionable service – (1) the pensionable service of the member shall be determined with reference to the contribution (received or are receivable) on their behalf in the Employees’ Pension Fund.

(2) In the case of the member who superannuates on attaining the age of 58 years (and) and who has rendered 20 years of pensionable servcie or more, his pensionable service shall be increased by adding a weightage of 2 years”.

On reading of the above said Proviso is that, a member has to render 20 years of pensionable service or more for adding of two years service as weightage for payment of pension.  “Pensionable service” means the service rendered by the member for which contributions have been (received or are receivable).

The 1^st OP further submitted that, the service rendered by the member for which contributions have been received or are receivable can only be taken into consideration for the purpose of computation of pensionable service. Whereas the complainants claim that the weightage of 2 years to be added to the eligible service is incorrect. The scheme clearly contemplates that weightage of two years will be extended to the person who is having pensionable service as defined start only from 16-11-1995 and not from any earlier date when the Employees Family Pension Scheme 1971 was in force. The intended benefit under Employees Family Pension Scheme 1971 extended as per the Para 12 (3) (b). Past service shall be given below: “The past service benefits payable on completion of 58 years of age after 16-11-1995”.     

The 1^st OP further submitted that, the said past service benefits rendered by the member is fully protected by extending the additional benefits of multiplication by table-B factor up the benefits under 1995 Scheme due to the member, the combination of the service as rendered in 1971 scheme ad 1995 scheme is not tenable and against the provisions of the Employees Pension Scheme 1995. The benefits of two years of weightage on eligible service were to be calculated on the pensionable service and not otherwise.

The 1^st OP further submitted that, the eligible service which consists of past service in case of existing member and his service rendered under EPS 1995 the pensionable service is Actual service-on contributing service. With the above, it is clear that, Paragraph 12 (3) (i) (b) narrate about the benefits of 1971 scheme and distinctly paragraph 10 (2) of the EPS 1995 specifies about the weightage of service rendered in the 1995 scheme.

The 1^st OP further submitted that, the eligible service has been defined in Para 9 of the Act and specifically in relation to the existing member has been defined in Para 9 (b) i.e. to say the aggregate of actual service and the past service shall be treated as eligible service with certain proviso. It is further submitted that, the proviso of Para 9 (b) categorically states that the contributions towards Family Pension Scheme 1971 will only signify the eligible service and nothing to do with the pensionable service.

The 1^st OP further submitted that, it is not disputed that past service which is to be included in calculating the eligible service and the eligible service entitles to various kinds of pension as referred to in Para 12 of the EPS 1995 and it has nothing to do with the pensionable service. Pensionable service was carved as per Para 3 of the EPS 1995 and as such at no stretch of imagination it can be said that contributions received or receivable relates and means prior to the incorporation of Scheme of EPS 1995 as the same relates to actual sercvie that come into force with effect from 16-11-1995 or on the date of commencement of service whichever is later and that does not relates to the past service. There is a separate formula for calculating pensionary benefits for new pension scheme which is governed by the Para 12 (2) of the new scheme and there is also a district formula for calculating benefits under the old scheme under Para 12 (3), 12 (4) and 12 (5) of the scheme 1995.

The 1^st OP further submitted that, the complainants had sought the benefits of their past service i.e. one by taking advantage of two years weightage and also the monthly pension as arrived for the pas service under Para 12 (3), 12 (4), and 12 (5) of the new scheme, which is totally contrary to the law and also a case of double jeopardy. The very existence of two formulas for calculating the separate benefits for the service rendered under the old scheme and for the service rendered under the new scheme which clearly shows that the benefits under both the schemes are exclusive of each other.    

The 1^st OP further submitted that, the consequent on amendment of Para 10 (2) of EPS 1995 vide notification dated 24-7-2009 when Para 10 (2) was amended substitution the words “and/or” with “and” cases where superannuation pension i.e. pension at the age of 58 years had commenced prior to 24-7-2009 is entitled for the weightage of two years on pensionable service.  The following type of cases are not entitled for weightage of two years namely a) All early pension cases and b) Superannuation pension cases where date of commencement of pension is on and after 24-7-2009.

The 1^st OP further submitted that, in the instant cases, the complainants have retired from the service and the date of exit is consequent to amendment (wef 2-7-2009) of Para 10 (2) of EPS 1995. As per the amended proviso, the complainants are required to meet both the statutory conditions i.e. (a) retirement on superannuation (58 years) and (b) to rendered 20 years of pensionable service i.e. service from 16-11-1995. These conditions are not fulfilled by the complainants

The 1^st OP further submitted that, the complainants have attempted to misinterpret the Para 12 (3-5) of the EPS 1995 by construing minimum pension of Rs.635=00 and Rs.800=00 and pleads for enhanced pension which is contrary to provisions of Para 12 of the EPS 1995.        

   The 1^st OP further contended that in writ appeal No.3191/2004 filed by the department has been dismissed by the Division bench of this Hon’ble court vide orders dated 12-10-2004.  The Hon’ble Supreme Court of India in its order dated 20-04-2010 disposed the SLP No.3174/2007 filed by the department made an observation that the “question of law is kept open”.  It is imperative that with the said observation by the apex Court the ratio set by the Hon’ble Court in Chennakeshavalu case has not attained finality and writ petition No.44432/2011 filed by the Pensioner’s Association before the Hon’ble High Court of Karnataka is pending for disposal/matter is sub-judice.  Hence, Chennakeshavalu case is not application to the cases on hand. 

The 1^st OP further submitted that, the consequent on amendment in Para 12 of the EPS 1995 with effect from 15-6-2007, the legislative intent of law makers/issuance of notification by Central Government manifests in itself that grant of pension is squarely dependent on date of commencement of pension only. In the instant cases, the complainants have been granted superannuation pension after 24-7-2009 and hence not entitled for relief. The complainants are not entitled for weightage of two years pensionable service on the grounds that para 10 (2) of the EPS 1995 provides for weightage of two years of pensionable service to only those members who have put in 20 years of pensionable service and retired from service on attaining the age of superannuation of 58 years.

The 1^st OP further submitted that, for contributory sercvie prior to 16-11-1995 when the contributions used to come into the Employees Family Pension Fund @ 2.32%, he pension benefit is given in the form of past service benefit, which is added to the formula pension. As the Employees Pension Fund was set up with 16-11-1995 and contributions at @ 8.33% received only from 16-11-1995 onwards into this fund, therefore contributory service after 16-11-1995 only has to be taken as pensionable service.

The 1^st OP further submitted that, past service is not pensionable service and therefore unless one has completed 20 years of pensionable service the benefit to two years weightage cannot be given to the complainants. The provisions of Employees Pension Scheme 1995 specifically provide different benefits for past service and pensionable service. The past service and Actual service is added only to decide eligibility for pension and Employees Pension Scheme 1995 explicitly provides for the same.

The 1^st OP further submitted that, in the event of any difficulty in disbursement of pension and other benefits or for resoling any difficulty in implementation of the scheme, the central government has authority to issue a direction as contemplated under Para 35 and 41 of the EPS 1995. The claim of the complainants for grant of quantum of pension by consideration of weightage of two years as per Para 10 (2) of the EPS 1995 invokes interpretation of question of law and resolution of said aspect falls outside the jurisdiction o this forum.

The 1^st OP further submitted that, grant of annual relief to the pensioners under the EPS 1995 rests on the policy decision of the central government/Central Boards of trustees, Employees Provident Fund Organization, New Delhi and it is also coordinated with the working of actuaries of the Pension fund.

The 1^st OP further submitted that, the complainants have been granted superannuation pension consequent to amended para 10 (2) of EPS 1995 (WEF 14-7-2009) and is not entitled for weightage of two years on pensionable service as the complainants does not fulfill the eligibility criteria as stipulated under para 10 (2) of the EPS 1995. There is no deficiency of service on the part of 1^st OP and therefore the claim of the complainants be rejected, in the interest of justice and equity.   

5. In the course of enquiry in to the complaint, the complainants and 1^st OP have filed their affidavit evidence reproducing what they have stated in their respective complaints and version. The complainants have filed their written arguments.  We have heard the arguments of both parties and pursed the documents and then posted the cases for orders.

6. Based on the above materials, the following points arise for our consideration;   

1.      Whether the complainants have proved the alleged deficiency in service by the 1^st OP?

2.      Whether the complainants are entitled for weightage of two years as per Rule 10 (2) and 12 (3) of the Act?

3.      What order?

7. Our findings on the above points are as under:

Point No.1:           In the Affirmative

Point No.2:          In the Affirmative

Point No.3:           As per order below

REASONS

8. All the complainants have come up with the present complaints contending that, there is error in calculation of the pension, in-fact they are entitled for the separate minimum assured pension for the past and present service according to the Para 12 of the Employees’ Pension Scheme 1995 and also they are entitled for the weightage of two years as per Para 10 (2) of the Employees’ Pension Scheme 1995 and also entitled for annual relief under Employees Provident Fund Scheme 1995.  But the 1^st OP has not followed the provision of law and made erroneous calculation.  Hence, these complaints are filed.

9. The 1^st OP submitted that, according to the circular issued by the Head Office, EPFO, New Delhi dated 26-11-2013 those who retired prior to 24-07-2009 are entitled for the weightage of two years.  It is further submitted that Para 10(2) of EPS Scheme 1995 was amended retrospectively with effect from 16-11-1995 according to vide Government Notification No.G.S.R.431E dated 15-06-2007. The above arguments, is not justifiable.  Because at the time of entering into the scheme by the complainants, no such provision were existing and there is no material evidence available on record to show that the same is applicable retrospectively. The circular issued by the Government cannot be considered as an amendment to the Act.  Hence it is not applicable to the cases on hand.

10. However, it is seen on record that, the complainants have filed their own memo of calculation disclosing the particulars required for decision of these cases they are inclusive of Provident Fund Number, name of the members, date of birth, date of joining to EPF, date of exit, age at exit, age as on 16-11-1995 pay as on 15-11-1995, past service period, present service and pensionable salary etc.,

11. The Provision of Law defines under the Employees Pension Scheme 1995 herein under:

“Para 10(2) is as under:- 

In the case of the member who superannuates on attaining the age of 58 years, and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years”.

12. As per Section 10(2), it is very clear that, the complainants are entitled two years of weightage periods those who superannuates on attaining the age of 58 years and/or who has rendered 20 years of pensionable service or more. Further, according to 10 (2) of the EPS 1995, all the complainants have put more than 20 years of service, hence they are entitled for two years weightage.

13. Further, with regard to the separate minimum assured pension for the past and present service under EPS 1995. The 1^st OP contended that, according to the aggregate of A & B shall be subject to the minimum pension fixed, if past service is 24 years.  Further, there is no separate minimum pension fixed for past and present service under Section 12 of the Employees Pension Scheme 1995.

14. Further according to Section 12 (3) to 12 (5) of EPS 1995, it is clear that minimum pension fixed for the past service and subsequent service from 16-11-1995 is separate.  Hence, we are of the opinion that, the monthly pension of each of the complainants should be fixed with reference to their age group and number of years of service put in and if their pension more than the minimum fixed under the scheme, the pension is so calculated should be taken into consideration. On perusal of the documents produced by the complainants, the above complainants not completed 48 years as on 16^th Nov. 1995. Hence, they are entitled for permission as per 12 (3) of the EPS 1995.

15. With regard to weightage and also past and present service, there is decisions of Hon’ble High Court of Karnataka in the case of K.Channakeshavalu v/s Employees Provident Fund Organization reported in ILR 2004 KAR 2859, and in a decision rendered by the Karnataka State Commission in the case of Assistant Provident Fund Commissioner, Hubli v/s Allurappa Hirelal and others in Appeal No.3449-3458/2009 and Appeal No.1134-1140/2010 dated 16-12-2011 and in the Hon’ble Karnataka State Consumer Disputes Redressal Commission Bangalore in Consumer Appeals No.613-650/2012 dated 03-06-2013 and the Hon’ble National Consumer Redressal Commission, New Delhi, and in the case of the Regional Provident Fund Commissioner, Hubli, v/s Mallikarjun Devendrappa Veerapur reported in 2010 (3) CPR 45 dated 29-6-2010.

16. Ultimately, in view of the discussions and the law laid down in the EPS Scheme 1995 and the decision of the Hon'ble National Consumer Redressal Commission, the Hon'ble State Commission and also the Hon'ble Supreme Court of India which have considered the similar issue in favour of the Complainants. Hence, we hold that, there is a deficiency of sercvie on the part of the 1^st OP.

17. In view of the facts and materials placed before us and discussion held above, the 1^st OP is directed to recalculate the pension of the complainants in the above complaints as per 12(3) of the Employees Provident Fund Scheme 1995 by giving weightage of 2 years to all the complainants and also extend the minimum assured benefits both in respect of past and present service with effect from the date of retirement along with arrears of pension with interest @ 12% p.a. and also directed the 1^st OP to give annual relief as per para 32 of Employees Pension Scheme, 1995.  The 1^st OP is also directed to pay Rs.2000=00 to each of the Complainants as litigation costs and this order shall be complied within 30 days from the date of receipt of this order. As far as the 2^nd OP is concerned, there is no deficiency of service and hence the complaints filed against the 2^nd OP is dismissed and accordingly we answer these points. In the result, for the foregoing reasons, we proceed to pass the following order.

COMMON ORDER

        The complaints of complainants bearing No.57/2016 to 62/2016 are partly allowed.

The 1^st OP is directed to recalculate the pension of the complainants in the above complaints as per 12(3) of the Employees Provident Fund Scheme 1995 by giving weightage of two years to all the complainants and also extend the minimum assured benefits both in respect of past and present service with effect from the date of retirement of each of the complainants along with arrears of pension with interest @ 12% per annum.

The 1^st OP is further directed to give annual relief as per para 32 of Employees Pension Scheme 1995.

          The 1^st OP is further directed to pay Rs.2,000=00 each to the complainants towards cost of this litigation. 

The complaints’ filed against the 2^nd OP is hereby dismissed.

This order is to be complied by the 1^st OP within 30 days from the date of this order.

          It is ordered that, the original order shall be kept in the complaint No.57/2016 and copy thereof in complaint Nos.58/2016 to 62/2016.

Supply free copy of this order to both parties. 

(Dictated to the stenographer, transcribed and typed by him, then corrected and pronounced in the open Forum on this the 30^th day of November 2016).

LADY MEMBER                  MEMBER                     PRESIDENT