BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  29^th February 2016

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

1. Complaint No.: 323/2015

Complainant/s:     

Cc/323/2015

Basappa s/o.Yallappa Uppar,

Age :70 Years, Occ: Pensioner,

R/o: Mandihal, Po:Mugad, Dist.Dharwad.

                        (By Sri.M.S.Patil, Adv.)

v/s.

Respondent/s :         

The Assistant Provident Fund Commissioner, Sub Regional Office, Behind Income Tax Office, Navanagar, Hubli, Dist.Dharwad.

(In person)

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. All these four complaints are of same nature and in all the cases respondent is the same, as such to avoid multiplication of repeating the judgment, proceeded to pass a common order.
2. Complainants in these complaints contended that the complainants were members of the Family Pension Scheme of 1971. Further, the complainants have opted Employee Pension Scheme 1995. Complainants retired from service by way of superannuation i.e. 58 years. The respondent has fixation of the pension is quiet, improper and same is wrongly calculated. The complainants having more than 20 years of pensionable service hence, complainants are entitled to 2 years weightage as per Para 10(2) of EPS 1995 & the same has not been provided to them for the purpose of calculating the monthly member pension. Further more the respondent has not calculated the past service pension in accordance with the law. Due to the improper calculation & attitude of the respondent the complainants have been put to untold hardship. It is bound to be termed deficiency in service on the part of the respondent to pay 12% interest on the same amount. In the month of February and August 2014 the complainants got knowledge of the fact that the fixation of their pension has not been properly fixed and when the complainants got issued legal notice which has been duly served on the respondent but the respondent failed to comply with the demands of the complainants. Hence, complainants filed these complaints against the respondent.  
3. In the written version the respondent has contended that the complainants were enrolled as members under the Employees Family Pension Scheme 1971 and thereafter become the members of the Employees Pension Scheme 1995 till they retired. Subsequently the complainants have claimed pension through application in form 10D, on receipt of the same respondent office has issued pension payment orders by sanctioning pension per month to the complainants. Aggrieved by such fixation of pension now the complainants have requested the respondent to revise the pension. The members who superannuate on attaining age of 58 years and who have rendered 20 years pensionable service or more than their pensionable service shall be increased by adding weightage of 2 years. If the period of service is less than 20 years weightage of 2 years cannot be given, the weightage is due to be given only in the year (November) 2015. The respondent has calculated the pension of complainants in accordance with the scheme and it does not call for any re-fixation or revision. The respondent further contended that the rate of contribution for both the scheme are different, benefit for the scheme cannot be equated to same. Respondent further contended that the intention of the legislation was to consider entire service i.e. past service and pensionable service for the purpose of giving 2 years weightage  as per Para.10 (2) of EPS 1995 then it would not have defined the past service and also given past service pension as per Para.12(3)(b), 12(4)(b) and 12(5)(b) as the case may be. Hence the entire service cannot be clubbed for the purpose of giving weightage of 2 years as per para.10.2 of EPS 1995. The Employees Provident Fund and Misc. Provisions Act 1952 is a social security legislation meant to provide benefits to the employees to the maximum extent. Any amendments made and published in the Gazette of India are justifiable. Accordingly amendments to Sec.10.2 of the EPS was made vide G.S.R.594 Dtd.23.07.2009 (w.e.f.24.07.2009). Similarly para.12 EPS 1995 was also amended vide GSR/431(E) dtd.15.06.2007 (deemed to have come into force from the date from which the EPS 1995 came into force 16.11.1995). In the light of above amendments the respondent has fixed the pension of applicant. There is no deficiency in service on the part of respondent and since it has calculated monthly pension in accordance with the scheme, so complaints are liable to be dismissed with cost. Further contended that complaints are barred by limitation.
4. On the said pleadings the following points have arisen for consideration:

1. Whether complainants have proved that there was deficiency in service on the part of respondent ?
2. Whether complainants are entitled to the relief as claimed ?
3. To what relief the complainants are entitled ?

Sworn to affidavit of complainants and respondent are filed apart from producing documents. Written argument of respondent is filed and both parties argued orally. 

Finding on points is as under:

1. In Affirmative 
2. In Affirmative but accordingly 
3. As per order.

  Reasons

Points 1 and 2

Details of Service rendered by the Complainants are as below

5. On perusal of the documents that, the complainants were members of Employees Family Pension Scheme 1971 from the date of joining their service. Subsequently Employees Pension Scheme 1995 was introduced and the earlier Employees Family Pension Scheme 1971 came to be merged in Employees Pension Scheme 1995. The members of Employees Family Pension Scheme 1971 continued their membership even under Employees Pension Scheme 1995. These facts are not in much dispute.
6. The grievance of the complainants is that, while fixing their pension the respondent has not considered their past service and present service and 2 years weightage is not given. On that ground they have sought for re-fixation of their pension apart from arrears of pension amount, interest and cost of the litigation.
7. Complainants have produced legal notices sent to the respondent, even after that their monthly pension has not been fixed as claimed by them.
8. The method of calculation for fixing the pension shall be computed in accordance with the following factors, viz.,

Monthly members pension = pensionable salary x pensionable service

70

 Some definitions are thus:

9. “Actual Service” means, the aggregate of period of service rendered from the 16/11/1995 or from the date of joining any establishment whichever is later to the date of exit from the employment of the establishment covered under the Act.
10. “Past Service” means, the period of service rendered by an existing member from the date of joining Employees Family Pension Fund till the 15/11/1995.
11. “Pensionable Service” means, the service rendered by the member for which contributions have been received or are receivable.
12. Rule 9 determination of eligible service, Rule 9 (B) in the case of “existing member” the aggregate of actual service and the “past service” shall be treated as eligible service.
13. Earlier to the amendment the para 10(2) the EPS 1995 reads as follows:  Rule 10 (2) in the case of a 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 a weightage of 2 years. After amendment which is expressly stand with effect from 24.07.2009 para 10(2) of 1995 shall read as follows:-
14. It was argued for the respondent that, as per 10 (2) of Employees Pension Scheme 1995 a member who superannuates on the age of 58 years and who has rendered 20 years pensionable service or more his pensionable service shall be increased by adding weightage of 2 years. One more contention taken by the respondent is that, for calculation of pension, the period of service will be considered only w.e.f. 16/11/1995, as such the complainants have not completed 20 years of pensionable service, as such weightage of 2 years is not given and their previous service cannot be considered in fixing the pension amount.
15. On perusal of the documents all these cases, complainants were members of Employee Family Pension Scheme 1971 and Employee Pension Scheme 1995.
16. The net asset of the Family Pension Scheme 1971 shall vest in and stand transferred to the Employees Pension Fund, it means that the asset of FPS 1971 stood vested and transferred to the EP Fund 1995. The complainant has contributed to the EPF 1971 scheme since the aforesaid amount got transferred to EPF 1995 Scheme. The complainant has contributed till retirement. Hence past service and actual service both considered in fixing the pension amount as per the scheme. IV (2014) CPJ 470 NC & RP/2864/2014. In these decisions Hon’ble National Commission held that, complainant while he was member 1971 Scheme & 1995 scheme, hence falls within definition of pensionable service. Hence, they are entitled to added advantage of 2 years.
17. The contention of the respondent that, complainants have not served 20 years subsequent to 16/11/1995 to give weightage of 2 years cannot be accepted. As per the decision rendered by Hon’ble. National Commission in R.P.No.3970/2009 dtd.29/6/2010 wherein a similar type of matters the Hon’ble. National Commission was pleased to hold that the period either under past service or the actual service or both as the case may be, will constitute eligible service. The eligibility for monthly pension to the member is determined with reference to eligible service only. Complainants are entitled for 2 years weightage under Rule.10 (2) of EPS 1995 and their pension have to be fixed accordingly. Hence, we have followed the said basic principle and guidelines enunciated by their lordships in the decision. Hence, in these cases the complainants are entitled to 2 years weightage.
18. In CC-323/15 in this case the complainant rendered past service was 24 years, actual service was 7 years 6 months 4 days, total eligible service was 32 years and 545 NCP days deducted actual service was 6 years. At the time of retirement he attained 58 years, date of retirement was 20.05.2003 and date of commencement of pension was 21.05.2003. Hence before amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009, considered that complainant rendered total eligible service was more than 20 years and he attained 58 years. Hence complainant is entitled to 2 years weightage amount from the respondent. Respondent in his written version mentioned that complainant is entitled to 2 years weightage  benefit as per head office circular. Hence an amount of Rs.12,974/- has been sent for credit to complainant’s bank account in January 2016. Hence considering that point no balance of 2 years weightage.

Past Service benefit considered, complainant claimed as per Para 12.4(b) of Rs.600/-. Respondent calculated as per Table B factor less than 8 years of Rs.347/-. But complainant rendered past service was 24 years. Hence complainant is entitled to past service benefit of Rs.600/- as per Para 12.4(b). Respondent paid PSB Rs.347/-, remaining amount complainant is entitled.

19. In CC-328/15  in this case the complainant rendered past service was 12 years, actual service was 14 years 11 months 7 days, total eligible service was 27 years and 690 NCP days deducted actual service was 13 years. At the time of retirement he attained 58 years, date of retirement was 23.10.2010 and date of commencement of pension was 19.11.2010. Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009. Complainant fulfilled both aspects i.e. he attained 58 years and he rendered total eligible service was more than 20 years. Hence complainant is entitled to 2 years weightage amount from the respondent.    

Past Service benefit considered, complainant admitted that respondent calculated PSB of Rs.346/-. Hence no dispute in PSB.  

20. In CC-329/15  in this case the complainant rendered past service was 7 years, actual service was 16 years, total eligible service was 23 years. At the time of retirement he attained 58 years, date of retirement was 03.05.2012 and date of commencement of pension was 04.05.2012. Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009. Complainant fulfilled both aspects i.e. he attained 58 years and he rendered total eligible service was more than 20 years. Hence complainant is entitled to 2 years weightage amount from the respondent.    

Past Service benefit considered, complainant & respondent calculated PSB are same. Hence no dispute in PSB.

21. In CC-330/15  in this case the complainant rendered past service was 13 years, actual service was 15 years 6 months 9 days, total eligible service was 29 years & 20 days NCP deducted it comes 15 years 5 months 19 days of actual service. At the time of retirement he attained 58 years, date of retirement was 24.05.2011 and date of commencement of pension was 25.05.2011. Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009. Complainant fulfilled both aspects i.e. he attained 58 years and he rendered total eligible service was more than 20 years. Hence complainant is entitled to 2 years weightage amount from the respondent.    

Past Service benefit considered, complainant & respondent calculated PSB are same. Hence no dispute in PSB.

22. Respondent contended that complaints are barred by limitation but complainants contended that in the month of September 2015, October 2015 & September 2014, it came to the knowledge of the complainants that there are errors in the calculation of pension fixed to them  and it also came to their  knowledge the pension now paid to them  from the office of respondent is lesser. Hence, after knowing the matter complainants have issued letter and legal notices but, respondent not paid the revised pension amount. Hence, they have filed this complaints against the respondent & also filed U/s.24(A) of CP Act for delay condonation application. Considering the Hon’ble. Karnataka State Consumer Disputes Redressal Commission Appeal No.415/2008 to 419/2008 it was held that period of limitation starts from date on which the pensioner came to know that the pension i.e. paid to them is not properly fixed is the date of cause of action so as to maintain the complaints. Considering that decision the complaints are maintainable.
23. Complainant prays for 12% interest from the date of retirement till realization. But on perusal of the documents earlier the respondent was not paying two years weightage benefit to the employees who have fulfilled twenty years of pensionable service & attained 58 years i.e. superannuate. There was no specific direction to the respondent under those circumstances the respondent was not counting the same. The respondent contended that for calculation of pension the period of service will be considered only w.e.f. 16.11.1995. Monthly pension calculated in accordance with the scheme. There was amendment is there, respondent cannot go against the provisions. Hence there was no deficiency in service by the respondent. Later on the EPF authority issued circular to the respondent to pay the same two years weighatge to employees who are all eligible. Hence the respondent as per the direction of EPF authority paying the same. Subsequent to the circular of the respondent is paying. But complainants are not entitled interest @12% but failing to comply the order by respondent complainants are entitled to 9% interest from the date of order till realization. But complainants are entitle to Rs.1,000/- as cost of the proceeding  and Rs.1,000/-  as compensation for mental agony.
24. Respondent contended that the scheme provisions under para.12(3) (4) and (5) of the EPS 1995 has been amended vide GSR No.431(e) dtd.15.06.2007 wherein it is clearly mentioned that this provision is deemed to have came into force i.e. 16.11.1995 as such there is no ambiguity in implementation.

25. Respondent has relied on citations  Keshavanand Bharati vs. State of Kerala.  In Keshavanand Bharati vs. State of Kerala case the Hon’ble. Supreme Court held that amendment of the constitution and gave back to parliament, the right to amend any part of the constitution including fundamental rights without affecting its basic structure. Hence respondent argued that the amendments of EPF Acts all are justifiable. On perusal of the both the parties produced by the documents. Respondent argued that Keshwanand Bharati case Hon’ble Supreme Court upholding 24^th amendment of the constitution and gave back to parliament, the right to amend any part of constitution including fundamental rights without effecting its basic structure. Hence, amendments to EPF schemes are all justifiable. But in this case also Hon’ble Supreme Court held that without effecting its basic structure amendment was justifiable. But preamble contains the basic structure of our constitution, which cannot be amended. Respondent has produced Keshwanand Bharati case year of judgment was 1973 but Hon’ble Supreme Court in the year 1983 observed that, in AIR 1983 1143 and 1983 all LG 516 Hon’ble Supreme Court held that, no retrospective effect should be given to any statutory provisions so as to impair or take away on existing rights.
26. In view of the observations made in RP/3970/2009 NC & Appeal No.1256/09, CC/745/2008, ILR 2004 Karnataka 2859, 1984 Law Suit SC, AIR 1983 Supreme Court 1143, AIR 1979 Supreme Court 592 & SLP Civil 30844/10 Supreme Court. In these decisions held that, since the said service is more than 20 years member would be entitled to weightage of 2 years in terms of Rule.10(2) of the said rules.  The Hon’ble High Court held that, intention is to pay a sum equal  to pension plus past service benefit as per para 12 (4) (a & b). Further stated that clarification cannot run against the provisions social welfare legislation meant for weaker section of the society namely the workmen. Any interpretation has to be a beneficial interpretation. Taking into consideration all aspect of the matter including the clear language and benefit and object of the beneficial legislation. 1984 Law Suit SC 122- the Hon’ble Supreme Court held that the accrued rights of such persons by making amendment of the rules with retrospective effects by adding proviso. Considering these decisions retrospective effect applying not proper.
27. In view of the above said reasons the point.1 is answered in affirmative and point.2 in affirmative but accordingly.
28. Point:3: In view of the finding on points 1 and 2 proceeded to pass the following

O R D E R

CC No.323/2015, 328/2015, 329/2015 and 330/2015 are allowed in part.

In CC No.323/2015, complainant is entitled to only past service benefit. In CC-328/2015, 329/2015 and 330/2015   complainants are entitled to 2 years weightage with a direction to the respondent to refix the pension amount in view of the observations made by this Forum as per the Rule 12(3)  &  Rule 12 (4) (a & b) and R/w. Rule 10 (2) of Employees Pension Scheme 1995 apart from giving past service benefit from the date of their retirement and balance pension amount be paid to each complainant within two months from the date of receipt of copy of this order, apart from paying Rs.1,000/- in each case as cost of the litigation and Rs.1,000/- in each case as compensation for mental agony. Failing which the balance pension amount shall carry interest @9% p.a from the date of retirement till its realization

Original order be kept in Compt.323/2015 and its copy in other connected cases.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 29^th February 2016)

(Smt.M.Vijayalaxmi)                                  (Shri.B.H.Shreeharsha)

Member                                                      President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR