Complaint filed on: 26-09-2016                                                      Disposed on: 17-05-2017

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.122/2016 to CC.No.131/2016 (10 cases)

DATED THIS THE 17^th DAY OF MAY 2017

PRESENT

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

SMT.GIRIJA, B.A., LADY MEMBER

Complainants: -           

1. CC.No.122/2016

Mangaleswari.R,

W/o. H.Parameswarappa,

Mangala Krupa, Behind RTO office, Vidyanagar, Tumakauru

2. CC.No.123/2016

Mahadevappa

S/o, Late Basanth Rao,

Aged about 61 years, Swastik Nilaya,

Mallige Road, 9^th Cross, Ashok Nagar, Tumakuru

3. CC.No.124/2016

B.S.Shankarappa

S/o. Late Narasaiah,

Aged about 61 years, Beechanahalli, Dandinashivara post, Turuvekere taluk, Tumakuru

4. CC.No.125/2016

Halappa.B,

S/o. Basappa,

Aged about 61 years,

9^th Cross Ashok Nagar,

Tumakuru town and  

Tumakuru District

5. CC.No.126/2016

Rudramurthy.B.N,

S/o. Late Nanjapachar,

Aged about 62 years,

Byadagere (Kasaba Hobli), Madenahalli post,

Gubbi taluk,

Tumakuru district  

6. CC.No.127/2016

Parameshwarappa

S/o. Late Hanumanthappa,

Aged about 60 years,

Behind RTO Office, Manjunatha Chowltry, Vidyanagar,  

Tumakuru-

7. CC.No.128/2016

Kamasettappa,

S/o. Late C.Kariyanna,

Aged about 60 years,

Vidyanagar, Sri Siddeshwara Nilaya, 10^th Cross, Vidyanagar, Tumakuru

8. CC.No.129/2016

Jayanna S/o. Late Range Gowda,

Aged about 60 years,

Prajwala Nilaya, 1^st Main, 2^nd Cross, Giri Nagar Extension, Kyathasandra post,

Tumakuru 

9. CC.No.130/2016

Boregowda S/o. Ganganna,

Aged about 59 years, Maralure Dinne Main Road, Vishwanna Layout, Shanthi Nagar,

Tumakuru

10.CC.No.131/2016

Venkatesha Nayak S/o. Late Gangaiah, aged about 56 years,

Sapthagiri Nilaya, Nayakanapalya, Gulur Hobli, Sasalu post, Tumakuru

 (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 post, Tumakuru.

(OP No.1- by Advocate   

Sri.G.H.Sreenivasa)

(OP No.2- Ex-parte)

COMMON ORDER

SMT.PRATHIBHA. R.K, PRESIDENT    

Since the OP No.1 and 2 in these 10 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.122/2016 to 131/2016 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 of the said scheme 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 July/Sept.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 their 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 common versions 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, 4490-4506/2013 and 3556/2014 dated 15-11-2010, 1-3-2013 and 23-3-2015 has dismissed the appeals with the observation that, “Question of Law is 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 revision of pension with reference to Para 12 (4) and Para 10 (2) of the Employees Pension Scheme, 1995. It is not that, the complainants’ prays that, they are not being paid pension but they dispute 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, 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 service or more, his pensionable service shall be increased by adding a weightage of 2 years”.

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 member/pensioner is required to meet the mandatory requirement of completion of 58 years/age of superannuation pension for claiming weightage of two years w.r.to para 10 (2) of EPS 1995. The members who avail reduced pension /early pension with reference to para 12 (7) of the EPS 1995 fail to fulfill the mandatory requirement and thus are not entitled for grant of weightage of two years for release of enhanced pension.

The 1^st OP further submitted that 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 24-7-2009) of Para 10 (2) of EPS 1995 and the complainants have opted for reduced pension of EPS 1995 and the date of entitlement of pension is 12-12-2006 i.e. which is prior to date of superannuation. 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, for resolution of dispute the OP/PF-department has taken up the issue before higher forum and even up to Apex court and result of which has landed in multiple litigation on the same issue. Without prejudice to the pending litigation and position of law as placed in preceding para, looking at the gravity of the issue and in the interest of members/pensioners of EPF, the EPF organization, head office, New Delhi has come out with the proposal for extending the benefit of two years of service as on the date of exit. The EPF organization has taken up the matter with ministry of labour and employment, Government of India for accord of consent and the ministry has accepted the proposal submitted by the Head office, EPFO, New Delhi on 6-7-2016. On acceptance of proposal by the Ministry of labour and employment and the EPFO, New Delhi vide communication letter bearing No.Pension-13 (4) 16/7915 dated 25-7-2016 has decided to extend weightage of two years to the pensioners with the indicator that for the limited purpose of grant of weightage of two years, pensionable service will include service rendered under EPS 1995 as well as erstwhile Family Pension Scheme 1971 to fulfils the condition of 20 years or more pensionable service. Based on the extant circular dated 25-7-2016 referred in preceding para, in members has put in the required service but does not fulfill the other criteria.

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, the Hon’ble High court order in WP 21359/2000 was challenged before the Supreme court and 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 and matter is sub-judice.  The pension of complainants have been regulated as per para 12.3 and para 12.7 of the EPS 1995 and the ration of Chennakeshavalu case is with reference to para 12 (4) of the EPS 1995 and as the said ration is not applicable to the case on hand. 

The 1^st OP further submitted that, the pre-amended para and amended para 12 of the EPS 1995 with effect from 15-6-2007 results in no change as regards quantification of pension of entitled pensioners is concerned barring a change with regard to determination of eligibility of pension with reference to age of pensioner has been substituted with the periodicity of pension claim/date of commencement of pension. The service rendered by the pensioner under both the pension scheme i.e. erstwhile family pension scheme 1971 as well as under employees pension scheme 1995 has been duly honoured and accordingly admissible pension is being granted to the entitled pensioners.   

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. The said amendment with effect from 15-6-2007 has proved to the advantageous to the pensioners of pension fund with the reasons that grant of pension based on age as on 16-11-1995 has resulted in unwieldy process and the law makers/executive have removed the lacuna/ambiguity by making necessary amendment . 

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 minimum pension with reference to Para 12 (3) 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 granted reduced pension and hence is not entitled for weightage of two years on pensionable service in compliance with para 12 (2) of the EPS 1995. The complainants does not fulfill the eligibility criteria as stipulated under para 10 (2) of the EPS 1995. That the complainants have referred to ration of Chennakeshavalu case and pleads for grant of pension in compliance with para 12 (4) of EPS 1995 on contrary rule proviso i.e. pension has been accorded to pensioner in accordance with para 12 (3) of EPS 1995.  Hence, the claim of the complainant is untenable and falls short of consideration. 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 complaints, 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.  The complainants have filed documents along with complaint. 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 Para 10 (2) and 12 (3) of the Employees Pension Scheme 1995?

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 came up with the 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 Paragraph-12 of the Employees’ Pension Scheme 1995 and also they are entitled for the weightage of two years as per Paragraph No.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, the present complaints are filed.

9. The 1^st OP 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.

10. It seen from the record, the complainants have filed their own memo of calculation disclosing the particulars required from 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 exist, age as on 16-11-1995 pay as on 15-11-1995, past service period, present service and pensionable salary etc.  

11. On perusal of the records, it is seen that, the complainants have completed more than 20 years service. The complainants have contributed to the Family Pension Scheme under the 1^st OP and further opted for Employees Pension Scheme 1995 w.e.f. 15-11-1995 by submitting their willingness to transfer the amount accumulated in the old scheme with 1^st OP to the new scheme. The 1^st OP accepted the same and thereby the complainants in the above cases have continued to be the members in the new pension scheme with 1^st OP, at the time of entering into new EPS 1995. As per Para 10 (2) of Employees Pension Scheme 1995, it reads 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 Para 10 (2) of the Employees Pension Scheme 1995, those who superannuates on attaining the age of 58 years and/or who has rendered 20 years of pensionable service or more, they  are entitled for two years of weightage period. In the above cases, the complainants have completed 20 years service. Hence, the complainants are entitled for two years weightage as per 10 (2) of EPS 1995. Since, the complainants have completed 20 years of pensionable service.

          13. The 1^st OP submitted that, as amendment of Para 10 (2) vide Government Notification dated 24-7-2009 when Para 10 (2) was amended substitution the words “and/or” with “and”. The above complainants are not superannuates on attaining the age of 58 years. 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. Further the circular issued by the Government cannot be considered as an amendment to the EPS Act.  

          14. Further the complainants submitted that, they are entitled for separate minimum assured benefits for past and present service. According to para 12 (3) to 12(5) of Employees Provident Fund Scheme 1995, the minimum pension fixed for the past and present service is separate. Further, Section 12(3) to 12(5) of the Family pension scheme 1995 made very clear that separate minimum assured pension for the past service and the present services considered separately.

        15. On perusal of the records, it is seen that, all the complainants are not completed 48 years as on 16^th November 1995.  Hence, they are entitled for the pension as per 12(3) of the Employees Provident Fund Scheme 1995. Hence, the complainants are eligible for pension as per Section 12 (3) of the EPS 1995; the separate minimum assured benefits for past and present service as per Section 12 (3) of EPS 1995.

16. 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.613-656/2012 dated 03/06/2013 and the Hon’ble National Consumer Redressal Commission, New Delhi, 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.

17. In view of the discussions held above, we hold that, the Scheme 1995 is very clear and the law laid down by the Hon'ble National Consumer Redressal Commission, and also 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.

18. In view of the fact and materials placed before us and discussion held above, Opposite Party No.1 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 from the date of retirement along with arrears of pension with interest @ 12% p.a. The Opposite Party is also directed to pay Rs.3,000=00 to each of the Complainants as litigation costs and the payment shall be made within 45 days from the date of this order. As far as apposite party No.2 is concerned, there is no deficiency in service on the part of the 2^nd OP, hence the complaint filed against the 2^nd OP is hereby dismissed and accordingly, we answer these points in a affirmative. In the result, for the forgoing reasons, we proceed to pass the following;

COMMON ORDER

          The complaints of complainants bearing No.122/2016 to 131/2016 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 pay Rs.3,000=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.122/2016 and copy thereof in complaint Nos.123/2016 to 131/2016.

Supply free copy of this order to both parties.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 17^th day of May 2017)

LADY MEMBER                                    PRESIDENT