BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 27^th February 2015

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

3) Shri.M.Lokesh          : Member

1. Complaint No.: 295/2014

Complainant/s:      Channabasappa s/o.Sidramappa Pradhani,

Age: 65 years, Occ: Pensioner, R/o. H.No.3271, Near Laxmi Temple, Parashetti Galli, Athani, Dist.Belgaum

In CC/295/2014

​

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

v/s.

Respondent/s :        The Assistant Provident Fund Commissioner Sub Regional Office, Bhavishya Nidhi Bhavan, Behind Income Tax Office, Navanagar, Hubli-580025.

(In person)

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. All these seven 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. The complainants have filed these complaints against the respondent for deficiency in service on the part of respondent. Hence direction to the respondent to revise the monthly pension by extending minimum assured benefits both in respect of past and present service w.e.f. date of retirement of the complainants and by extending the weightage of 2 years and to give annual relief from 2004 to till financial year and pay the arrears. & pay interest @12% P.A. from the date of retirement till its realization along with other reliefs.
3. The complainants contended that, complainants were working at M/s.NWKRTC.  The respondent introduced the pension scheme viz., Family Pension Scheme 1971. The complainants were opted to join the Family Pension Scheme.  Thereafter   employer deducted the monthly subscription of the said scheme from the monthly salary of the complainants and deducted amount was remitted to the office of the respondent. 
4. In the year 1995 the repealed the Family Pension Scheme 1971 and introduced the new scheme known as Employees Pension Scheme 1995 w.e.f. 15/11/1995. The complainants have given their willingness to continuation to the new scheme. The said willingness is accepted by respondent and continued the membership in the new scheme. After retirement of the complainants the employer has sent all the service records and other details to the respondent. Respondent settled the monthly pension of complainants under PPO. The monthly pension of complainants fixed.  In the month of September 2014, August 2014, November 2014 & December 2014 respectively, it came to the knowledge of complainants through one of their colleagues that there are errors in the calculation of pension fixed to them and it also came to their knowledge that pension now paid to them from the office of the respondent is lesser one that the complainants gave representation to the respondent for the revision of the pension. The said representation is duly received by respondent replied and denied to revise the monthly pension of the complainants. The said act of the respondent amounts to unfair practice and deficiency in service. Hence the complainants are constrained to file these complaints against respondent.  The respondent has not followed the provisions of law and made erroneous calculation without applying minimum assured benefits both in respect of past and present service. As per Para.10(2) of EP scheme 1995 it is necessary to give 2 years weightage to the members who superannuates on attaining 58 years and who has rendered more than 20 years pensionable service or more, but respondent not paid the 2 years weightage. As per para.32 of the E.P.Scheme 1995 it is necessary to give annual relief by making a valuation of employees pension fund. But from 2004 no such valuation was made by respondent and no relief is given to the complainants.  Hence complainants are entitled for annual relief from 2004 to this day. Hence complainants pray for above said reliefs.
5. 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 member 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 Employees Provident Fund and Misc. Provisions Act 1952 is a social security legislation meant to provide benefits to the employees to the maximum extent. 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.
6. 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 also both argued orally.

Finding on points is as under:

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

  Reasons

Points 1 and 2

Details of Service rendered by the Complainants are as below

7. On perusal of the documents, that 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.
8. 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 and annual relief 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.
9. Complainants have produced correspondence letters with the respondent , even after that their monthly pension has not been fixed as claimed by them.
10. 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:

11. “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.
12. “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.
13. “Pensionable Service” means, the service rendered by the member for which contributions have been received or are receivable.
14. 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.
15. 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.
16. 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.
17. On perusal of the documents all these cases, complainants were members of Employee Family Pension Scheme 1971 and Employee Pension Scheme 1995.
18. In Compl.No.295/2014 & 301/2014 in these  2 cases complainants have rendered more than 20 years of eligible service and at the time of retirement they attained age of 58 years. Hence, complainants are entitled to 2 years weightage  amount. The complainants have admitted that respondent paid 2 years weightage amount plus past service benefit. But prayer of the complainants that respondent paid amount after filing of the complaints, hence prays for 12% interest and cost of the proceedings. In CC/295/14 respondent has paid 2 years weightage + past service benefit amount difference amount from 01.06.2007 to 31.12.2014. In his written argument stated that the correct arrears due is only Rs.16835/- but inadvertently arrears of Rs.22295/- was distributed thereby an excess of Rs.5460/- was rededucted which needs to be adjusted. But complainant in his evidence affidavit at para.7 says that, arrears of pension comes to Rs.21805/- and interest @12% Rs.19405/- total amount of Rs.41211/- from respondent from 01.06.2007 to 01.11.2014.
19. On perusal of the documents the correct arrears due is Rs.16835/- is correct. Respondent calculated from 01.06.2007 to 31.12.2014 total 91 months difference amount comes Rs.16835/- is correct. Further complainant prays 12% interest but respondent paid amount in complaint stage hence complainant is not entitled 12% interest but he entitled to 8% interest from the date of retirement till 31.12.2014 along with Rs.1000/- as cost of the proceedings.
20. In CC/301/14 in this case complainant calculated past service benefit less than 13 years but respondent calculated less than 14 years. On perusal of the documents respondent calculated is correct. In this case respondent paid arrears amount of Rs.12376/- from 01.03.2009 to November 2014. But calculated difference amount comes Rs.12558/- (from 01.03.2009 to November 2014) 69 months x 182=12558/- but respondent paid amount Rs.12376/-. Hence in this case complainant is entitled to balance amount Rs.182/-. The complainant prays respondent paid arrears amount after filing of complaint, hence prays for 12% interest and cost of the proceedings. On perusal of request of complainant he is not entitled to12% interest, but he is entitled to only 8% interest from the date of retirement to November 2014 along with Rs.1000/- as cost of the proceedings.
21. In CC/300/14 in this case complainant calculated past service benefit Table.B factor less than 15 years. But respondent calculated less than 11 years. On perusal of the documents respondent calculated is correct. Respondent paid arrears of 2 years weightage + past service benefit difference amount of Rs.16247/- from 16.02.2006 to November 2014. Complainant also admitted said amount. Only disputed point is before weightage  ROC amount was Rs.10600/- after giving 2 years weightage  amount ROC amount was increased it comes Rs.13600/-. Respondent also admitted that after giving weightage  ROC amount increased automatically. But said amount payable to nominee of the complainant after his death. In this case also complainant prays 12% interest and cost of the proceedings. Hence complainant is entitled to interest @8% PA from the date of retirement to November 2014 along with Rs.1000/- as cost of the proceedings.
22. In CC/303/14 and 313/14 in these cases respondent not paid 2 years weightage  amount,  but past service benefit is not disputed. In CC/303/14 complainant rendered past service was 13 years, actual service was 15 years, total eligible service was 28 years and also he attained 58 years at the time of retirement. He retired from service on 31.05.2010 date of commencement of pension 01.06.2010. Hence after amended para 10(2) is applicable. In CC/313/14 in this case complainant rendered past service was 22 years actual service was 14 years total eligible service was 36 years. At the time of retirement he attained 58 years. Date of retirement was 31.05.2010 and date of commencement of pension 01.06.2010. Hence after amended para 10(2) is applicable.
23. Para 10(2) is amended on 24.07.2009. Before amended para.10(2) says that member was completed 20 years of eligible service or at the time of retirement he attained 58 years, then he is entitled to 2 years weightage  benefit. But amended para 10(2) says, that member fulfil both aspects i.e. he rendered 20 years of service and at the time of retirement he attained 58 years then only members entitled to 2 years weightage  benefit. Considered amended para 10(2), in both cases complainants are rendered more than 20 years eligible service and they attained super annuation complainants are fulfilled both aspects. Hence complainants are entitled to 2 years weightage benefit from respondents along with 8% interest from the date of retirement till its realization along with Rs.1000/- each as cost of the proceedings.
24. CC/311/14 & 312/14 in this cases respondent has paid 2 years weightage amount but only disputed fact is past service benefit minimum not paid. On perusal of the documents complainants rendered more than 20 years of eligible service and they attained 58 years at the time of retirement. Respondent calculated past service benefit as per Table.B factor of Rs.261/-. But complainants calculated as per Para 12(5) (b). In CC/311/14 complainant stated that as per Para 12(5) (b) complainant is entitled to Rs.417/- because he rendered past service was 20 years but respondent calculated Rs.261/- as per Table.B. In CC/312/14 complainant rendered past service was 22 years hence he is entitled to Rs.458/- as per Para.12(5) (b). Complainants are retired from service on 24.05.2000 and 31.05.1998 respectively. Considered that before amended scheme is applicable. The scheme is provided whichever is more complainants are entitled, hence complainants are entitled to past service benefit as per para 12(5) (b). In CC/311/14 complainant is entitled to Rs.417/- and in CC/312/14 complainant is entitled to Rs.458/- along with 8% interest from the date of retirement till its realization and Rs.1000/- each case cost of the proceedings.
25. Respondent contended that complainants taken old scheme but on 15.06.2007 Para.12 amended i.e. it is retrospective effect but some decisions held that,  AIR 1983 SC 1143 = 1983 All LJ 516 held that, no retrospective effect should be given to any statutory provisions so as to impair or take away an existing right. 1984 Law Suit SC 122, in this case Supreme Court held that the accrued rights of such persons by making amendment of rules with retrospective effect by adding provisions. 2004 Law Suit Karnataka 307, held that clarification cannot run against the provisions any interpretation has to be a beneficial interpretation. Hence this scheme is benefit for labour classes, this scheme is social security legislation meant to provide benefit to employees to the maximum extent. Hence, contention of respondent apply   retrospective effect is not proper.
26. The contention of the respondent that, complainants had 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. But in some cases respondent already paid 2 years weightage amount.
27. Past service benefit as provided the past service is 24 years, if it is less than 24 years, the pension and the past service benefit taken together shall be proportionately less subject to the minimum. Hence in these cases complainants rendered service accordingly past service benefit payable.
28. Respondent contended that complaints are barred by limitation but complainants contended that in the month of November, August, September & December 2014  respectively, it came to the knowledge of the complainants through one of the colleagues that there are errors in the calculation 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 filed these complaints against the respondent. Complainants also filed delay condonation application U/s.24 (A) of CP Act and also relied on 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 complaint. Considering that decision the complaints are maintainable.
29. Complainants pray for annual relief from 2004 to till realization. Respondent stated that central government is authority to release the annual relief, not respondent. Hence considering this point central government was not released the annual relief. Hence respondent not given annual relief to pensioner but respondent duty to give the annual relief to pensioner, hence respondent to approach central government for this purpose.
30. The complainants pray for 12% interest from the date of retirement to till its realization. On perusal of the documents earlier the respondent was not paying two years weightage benefit to the employees who have fulfilled twenty years of 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 on 26.11.2013 issued circular to the respondent to pay the same two years weighatge to employees who are all eligible & 2 years weightage can be given only in case where a superannuation pension i.e. pension at the age of 58 years had commenced prior to 24.07.2009 when para.10(2) was amended. Hence the respondent as per the direction of EPF authority paying the same and in these cases also respondent have settled two years weightage. Subsequent to the circular of the respondent is paying. So paying interest on the said amount does not arise and complainants not entitle for interest as claimed. But complainants are entitle for cost of the proceedings Rs. 1000/- in each case along with 8% interest P.A from the date of retirement till it realization.
31. In view of the above said reasons the point.1 & 2 is answered in affirmative.

32)Point:3: In view of the finding on points 1 and 2 proceeded to pass the following

O R D E R

The Compt.No.295/14, 300/14, 301/14, 303/14, 311/14, 312/14 & 313/14 are allowed in part.  But in CC/295/14  complainant is entitled for only 8% interest from the date of retirement to till 31.12.2014 along with Rs.1000/- cost of the proceedings. In CC/300/14  complainant is entitled only 8% interest from the date of retirement to till November 2014 along with Rs.1000/- cost of the proceedings. In CC/301/14  complainant is entitled to Rs.182/- difference amount and 8% interest from the date of retirement to till November 2014 along with Rs.1000/- cost of the proceedings.  In CC/303/14  complainant is entitled 2 years weightage  amount along with 8% interest from the date of retirement to till its realization along with Rs.1000/- cost of the proceedings. In CC/311/14  complainant is entitled past service benefit amount Rs.417/- per month along with 8% interest from the date of retirement to till its realization along with Rs.1000/- cost of the proceedings. In CC/312/14  complainant is entitled past service benefit amount Rs.458/- per month along with 8% interest from the date of retirement to till its realization along with Rs.1000/- cost of the proceedings. In CC/313/14  complainant is entitled 2 years weightage  amount along with 8% interest from the date of retirement to till its realization along with Rs.1000/- cost of the proceedings, 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) and 12(5) (b) and R/w. Rule 10 (2) of Employees Pension Scheme 1995 apart from giving weightage of two years and 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, failing which the balance pension amount shall carry interest @9% p.a from the date of retirement till its realization apart from paying Rs.1,000/- as cost of the litigation and Rs.1,000/- towards loss and mental agony in each case.

Original order be kept in Compt. 295/2014 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 27^th day of February 2015)

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

Member                                 Member                                                 President

Dist.Consumer Forum            Dist.Consumer Forum                        Dist.Consumer Forum

MSR