IN     THE  CONSUMER  DISPUTES   REDRESSAL  FORUM,  KOLLAM

DATED THIS THE   18^th    DAY OF FEBRUARY 2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

       Smt.S.SandhyaRani. Bsc, LLB ,Member

       Sri.Stanly Harold, B.A.LLB, Member

CC No.108/18

Pushpavally                                                :         Complainant

W/o Late Kunjuraman

Provident Fund Account

KR/1302/1912

Charuvila Veedu

Alummoodu P.O

Kollam-691577.

[By Adv.K.Dharmarajan]

V/s

The Assistant Provident Fund Commissioner        :         Opposite party

Employees Provident Fund Organisation

Old Municipal Building, Chinnakkada

At present the office is shifted to the opposite of

Archana Aradhana Theatre, Kollam-691001.

[By Adv.Ahees.S& Adv.R.Rajendran]

          FAIR  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LLM,President

                This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act. 

          The averments in the complaint in short are as follows:-

          The complainant was a shelling worker under the establishment of a cashew factory owned by Binu John and the name of  that establishment was John Cashews at Velamkonam.  It was covered under the scheme of Employees Provident Fund Organization and the establishment was covered by the provisions of Employees Provident Fund pension Scheme 1995.  The cessation of complainant’s membership from the factory was  resulted because the employee opted for pension below 58 years of age as early on  09-04-2005.  Consequent to her retirement from service, the office of the 1^st opposite party as per PPO No.KR/TVM/49544 monthly pension  payable to her as per the employees pension scheme 1995 was determined and communicated to  the complainant.  By that pension payment order her monthly pension was determined as Rs.646/-.  From that order it can see that 1/3^rd  of her monthly pension was commuted.  The commuted value was Rs.215/-.  After commutation the balance pension was fixed as  Rs.431/-.  The date of communication was shown as 09/04/2005 in the pension payment order issued from the office of 1^st opposite party.  Based on the above explanation for deducting  10%  of the balance original pension in this case comes to Rs.431/-, its 10% was deducted  by way of contribution towards Return of capital which comes to Rs.43/-. Hence the commuted portion of the pension with the ROC contribution is Rs.215+43=Rs.258/-.  After deducting the same amount from her original pension (646/-) the complainant was being paid by way of monthly pension as Rs.388/-.  This amount is being paid to the complainant through her bank account at Indian Bank of Keralapuram branch.  This payment continued till the end of August 2014.  In view of GSR 593(E) dated 26.09.2008 a new sub paragraph  has been inserted  in para 12 of the Employees Pension Scheme 1995 as (7A).  By that GSR monthly members pension including any relief payable to any existing or future member under this paragraph shall not be less than one thousand rupees for the financial year 2014-15 with effect from 01.09.2014.  In response to the insertion of that sub para the complainant Pushpavally is also eligible for the minimum pension of Rs.1000/-.  Though the complainant was entitled to get minimum monthly pension of Rs.1000/- from 01.09.2014 onwards she had been denied that benefit in its true spirit for unknown reasons.  From the minimum pension the 1^st opposite party can deduct the 1/3^rd  of her pension amount of her original pension Rs.646/- was got commuted by exercising the option for commutation when pension was sanctioned to her.  In the present case from the balance pension amount after deducting the commuted pension, 10% from the balance pension can also be deducted for making payment by way of contribution towards return of capital.  Hence its 10% comes to Rs.43/- only.  Therefore the monthly pension payable to her was Rs.431-43=Rs.388/-.  The complainant was received this amount in view of  PPO  No.KR/TVM/49544.  So from 01.09.2014 onwards the complainant was eligible  to get monthly pension of Rs.1000-258=Rs.742/-.  Instead  of that balance pension amount payable to the complainant Rs.742/-.  But she is being paid Rs.564/- per month from 30.09.2014 onwards.  It is less than Rs.178/- than the amount legally due to her.  Thereby the 1^st opposite party caused unlawful loss to the complainant which resulted in making unlawful gain to the Employees Provident Fund Organization.  The details of loss thereby being suffered by the complainant is shown in the schedule stated in the complaint.  The complainant is entitled to recover the same with its 12% interest per annum.  Till the end of 30.04.2016 the unlawful deduction made by the 1^st opposite party from the minimum monthly pension payable from 01.09.2014 to 30.04.2016 is Rs.7812/-.  The interest recoverable from the 1^st opposite  party for the unlawful deduction made from each months pension payable till 30.04.2018 is Rs.1697.70/-.  The above acts of  the  opposite party is deficiency in service.  The complainant is entitled to recover the same from the opposite party.  Therefore the complainant prays  to pass an award declaring  that the complainant is entitled to get minimum monthly pension to the tune of Rs.742/- after deducting 1/3^rd portion of the sanctioned monthly pension in view of the pension order PPO No.KR/TVM/49544 dated nil with 10% from balance monthly pension of Rs.431/- from the minimum monthly pension of Rs.1000/- sanctioned to all members of the pension Scheme during the financial year 2014-15 and to direct the opposite party to pay that amount in future and also to declare  instead of paying Rs.742/- which is less to the extent of Rs.178/- per month.  The complainant further prays to allow her to recover a sum of Rs.7812/- by way of balance pension arrears with its interest to the tune of Rs.1697.90 fell due till 31.03.2018 and her costs Rs.2000/-  with future interest on the said arrears.

 The opposite party resisted the complaint by filing a detailed  version by contending that the complaint is not maintainable either in law or on facts.  However the following facts are admitted by the opposite party.  The complainant Pushpavally was an employee of M/s John Cashews, Velamkonam, Kollam and covered under the EPF&MP Act, 1952 with EPF Account Number KR/1302/1912.  She was covered by the provisions of  Employees Pension Scheme 1995 which commenced from 16.11.1995.  The complainant is a person who opted for the reduced pension at the age of 50 years. As per office records of the opposite party, her date of birth is 01.10.1954 and accordingly she has to be superannuated on 30.09.2012, on attainment of 58 years.  But the complainant had left service on 04.08.2002  and had opted for early pension w.e.f 09.04.2005 vide Form 10 D application.  Accordingly, this office had sanctioned monthly member pension @ 388/- per month with effect from 09.04.2005  vide pension payment order No.KR/TVM/49544.  As the complainant had opted for commutation and Return of Capital, the pension payable was arrived subject to the deductions on account of Commutation, ROC and early pension. 

The opposite party would further contend that as per Paragraph 12(7) of the Employees Pension Scheme ‘A member, if he so decides may be allowed to draw an early pension from a date earlier than 58 years of age but not earlier than 50 years of age.  In such cases the amount of pension shall be reduced at the rate of 3% for every year the age falls short of 58 years’.

Therefore the complainant who opted for an earlier pension is entitled to get the pension amount after the deductions made on account of the earlier pension.  So as per the Employees Pension Scheme 1995 the complainant was previously paid the pension amount according to the calculation shown below.

Actual pension payable                                                        =       824/-

The number of years falls short of 58 years                          =            8

(The  difference between the date of commencement

Of pension and the date on which the complainant become

Eligible for full pension)

The deduction @ 3% per annum for 8 years                        =       178/-

Monthly pension entitled after the deduction                       =       646/-

Premium of commutation, ie, 1/3 of 646                             =       215/-

Pension after commutation(Rs.646/-   -  215/-                     =       431/-

Premium of ROC ie, 10% of Rs.431/-                                 =          43/-

Pension paid after ROC is Rs.824-(178+215+43)               =       388/-

     It is to be noted that as per GSR 593(E) dated 19.08.2014 incorporated in paragraph 12(7A) of the Employees Pension Scheme 1995 the minimum pension for the existing or future members was increased to Rs.1000/- subject to the deductions on account of Commutation, ROC and early pension.  So from 01.09.2014 onwards the pension amount of the complainant has been enhanced to Rs.1000/- but subject to the deductions on account of Commutation, ROC and early pension.  After the deductions an amount of Rs.564/- has been sanctioned as monthly pension to the complainant.  Even though the minimum pension was increased to Rs.1000/- the said increase made was clearly subject to  the deductions made on account of the earlier pension.  The provision 7A(ii) of the Employees Pension Scheme allows the deduction on account of earlier pension.  So as per the increase made in the pension amount the complainant is entitled to get the increased pension according to the calculations shown below.

Actual pension payable                                                        =       1000/-

The number of years falls short of 58 years                          =            8

(The  difference between the date of commencement

of  pension and the date on which the complainant become

eligible for full pension)

The deduction @ 3% per annum for 8 years                        =       178/-

Monthly pension entitled after the deduction                       =       646/-

Premium of commutation, ie, 1/3 of 646/-                           =       215/-

Pension after commutation(Rs.646/-    -  215/-                    =       431/-

Premium of ROC ie, 10% of Rs.431/-                                 =          43/-

Pension paid after ROC is Rs.1000-(178+215+43)             =       564/-

As per the deduction the complainant is entitled to get only Rs.564/- which is regularly paid to the complainant without any default.  The averment in the petition that the complainant is entitled to get Rs.742/- as per the clause of GSR 593 9(E) dated 19.08.2014 is not correct.  There is no illegality or irregularity in making the said payment.  There is no deficiency in service on the part of  the opposite party.  The opposite party also made proper reply to the notice sent by the complainant by explaining the details of the pension amount which is entitled to the complainant.  As per the GSR 593(E) paragraph 12 (7A) (ii) the minimum pension amount of  Rs.1000/- is payable shall be subject to the deductions on account of earlier pension of the complainant.  Accordingly the complainant is given the pension subject to such deductions  and there is no amount due to the complainant from the opposite party.  The original petition is filed on an experimental basis and the complainant is not entitled to any relief as sought for.  The complainant is not entitled to get the amount of Rs.7812/-  by way of balance pension arrears with interest  to the tune of Rs.1697.90/- and also not entitled to any cost  for the proceedings.  The pension amount entitled to the complainant is regularly paid by the opposite party without any default.  The complainant is not entitled to the cost of the proceedings since there is no deficiency in service on the part of the opposite party. The complainant is not entitled for any further benefit.  The Employees Pension Scheme 1995 is a funded scheme and it  is the duty and responsibility of this organization to watch the prompt disbursement of pension to all eligible employees to the extent of  their entitlement.

     In view of the above pleadings the points that arise for consideration are:-

1. Whether the complainant is entitled to get Rs.742/- as minimum monthly pension instead of Rs.564/- as provided under paragraph 12 7(A) of the EPS 1995 as per GSR(E) dated 19.08.2014?
2. Whether the complainant is entitled to get arrears of pension with interest as alleged?
3. Whether  there is any deficiency in service on the part of the opposite party?
4. Whether the complainant is entitled to get compensation as claimed?
5. Reliefs and costs.

Both sides have not adduced any oral evidence  but got marked Ext.A1 and A2 documents on the side of the complainant.  Ext.A1 is the pension order as PPO No.KR TVM/49544.  Ext.A2 is the reply letter No.KR/KLM Pen Cell dated 02.02.2018.

The opposite party has got marked Ext.B1 copy of the Pension work sheet dated 06.05.2005 of the complainant.

Both sides have filed notes of argument.  However the advocates appearing for both sides have not turned up and advanced any oral argument,  though sufficient opportunity was granted to them.

Point No.1 to 4

For avoiding repetition of discussion of materials these 4 points are considered together.  There is no dispute with regard to the fact that the complainant was a shelling worker in the establishment John Cashew at Velamkonam.  The said factory was covered under the scheme of EPF organization and establishment was also covered by the provisions of EPF pension scheme 1995.  It is also an admitted case that the complainant opted for early pension below the age of 58 years with effect from 09.04.2005.  The date of birth of the complainant is 01.10.1954 and accordingly she was to be superannuated on 30.09.12 at the age of 58 years.  But  the complainant  left the service on 04.08.2002 by opting early pension with effect from 09.04.2005 as per Form 10 D application.  It is also an un disputed fact that the complainant had opted for commutation  and Return of Capital.  Hence the pension payable had to be arrived at subject to the deduction on account of commutation, Return of Capital and early pension.

It is also an undisputed  fact that in the case of employees who opted for early pension the provisions contained in sub para 7 of para 12 of EPS is applicable.  Accordingly a member if he so desires may be allowed to draw an early pension from a date earlier than 58 years of  age but not earlier than 50 years of age.  In such case the amount of pension shall be reduced @ 3% for every year the age fall short of  58 years. It is further admitted fact that as per GSR 593(E) dated 19.08.2014 the minimum pension with effect from 01.09.2014 as per the existing EPS 1995 has been enhanced to Rs.1000/-.  Hence the monthly pension amount of the complainant was also to be enhanced to Rs.1000/-.  As per Ext.P2 letter Pension revised order it is clear that Rs.178/- still being deducted from the monthly pension payable to the complainant along with 1/3 portion of the pension amount commuted and rest of the original pension 10% was deducted towards Return of Capital.  Altogether Rs.258/- has been seen deducted from the monthly pension of the complainant.  According to the complainant the deduction of Rs.178/- in every month from the actual monthly pension payable even after the complainant attained her age of superannuation as early on 30.09.12 is not legal and proper.

It is clear from the available materials that the monthly pension amount entitled to the complainant was actually Rs.824/-.  However as the complainant opted for early pension at the time retirement the number of  years fall short of 58 years (the actual age of retirement) was 7 years 5 months and 21 days which  is the difference between the date of commencement of early pension and date  on which the complainant become eligible for full pension.  It is also an admitted fact that since the complainant opted for early pension an amount @3% p.a for the said sum of Rs.824/- was deducted for the said period of  7 years 5 months and 21 days.  Hence an amount of Rs.178/- was to be deducted .  In the circumstance the actual monthly pension entitled after the said deduction was Rs.646/-.  Hence it is clear that at the time of retirement at the age of 50 years the original monthly pension entitled to the complainant was Rs.646/-.  It is also an admitted fact that along with the said deduction 1/3 rd of the said 646/- which amount to Rs.215/- was also taken towards the premium of commutation.  Therefore the pension after the said commutation amount  will be  646-215= 431.   Deduction on account of premium of ROC is 10% of above amount which is admittedly Rs.43/-.  Hence pension to be paid after  deductions on account commutation, ROC and early pension was 824-(178+215+43)=388.  It is clear from the available materials that the 2^nd opposite party has been paying the above amount of Rs.388/- without any default.  However admittedly minimum pension was increased to Rs.1000/-  w.e.f 01.09.14 as per GSR 593(E)Paragraph  12(7A) ii.  But the said increased amount of Rs.1000/- has to be paid subject to deduction on account of commutation, ROC and early pension which is 1000-(178+215+43) = 1000-436=564.  Therefore it is cristal clear that the monthly pension due from the 2^nd opposite party is only Rs.564/-.  In the circumstance it is cristal clear that the deductions made by the 2^nd opposite party is lawful as provided subject to the proviso of paragraph 12 (7A) of the EPS 1995 and GSR 593(E) dated 19.08.14.  Hence there is no deficiency in service on the part of the 2^nd opposite party.

The learned counsel for the complainant has vehemently argued that the deduction of 3% every year from the pension calculated till the complainant who opted for early pension attained the age of 58 years only on superannuation and that to such amount could decrease gradually 3% in every year from the total 21% deducted fr0m Rs.824/- and thereafter the pensioner is entitled for full pension amount after deducting the portion of commuted pension and ROC and hence payment of Rs.564/- towards monthly pension is not legal and proper.  But we find no enabling provision to decrease gradually 3% in every year from the total 21% deducted for 7 years from the pension amount of Rs.824/-.  Hence we find not merit in the above contention.

On evaluating the entire materials available on record we come to the conclusion that the 2^nd opposite party has granted eligible monthly pension to the complainant from the date of retirement and hence we find no deficiency in service on the part of the opposite parties.  We also find no merit in the complaint and the same is only to be dismissed.   Points answered accordingly.

Point No.5

In the result the complaint stands dismissed.

Parties are directed to suffer their respective costs.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 18^th   day of  February  2020.        

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

                                                                                    Senior Superintendent

INDEX

Witnesses examined for the complainant:-Nil

Documents marked for the complainant:-

Ext.A1series:- Pension order as PPO No.KR TVM/49544.

Ext.A2 :- Reply letter No.KR/KLM Pen Cell dated 02.02.2018.

Documents marked for the opposite party:-

Ext.B1:- Copy of the Pension work sheet dated 06.05.2005 of the complainant.

          E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

                                                                                     Senior Superintendent