BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  31^st December 2015

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

1. Complaint No.: 285/2015
2. Complaint No.: 286/2015
3. Complaint No.: 287/2015
4. Complaint No.: 288/2015 
5. Complaint No.: 289/2015

Complainant/s:     

Cc/285/2015

Prabhakar s/o.Laxman Rao Malavade,

Age :67 Years,

R/o: LIG 198, Gandhi Nagar,

Gokul Road,

Hubli-580030.

Cc/286/2015

Krishnaji s/o.Shridhara Rao Joshi,

Age: 70 Years,

R/o: Kulkarni Compound,

Tabib Land, Hubli 20

Cc/287/2015

Ganapati s/o.Bhagavanthappa Bongale,

Age: 63 Years,

R/o: D 48, Kumara Park, Gokul Road,

Hubli

Cc/288/2015

Suresh s/o.Yallappa Shindhe,

Age: 59 Years,

R/o: Gowder Oni, Gopanakoppa, Hubli.

Cc/289/2015

Karimsab s/o.Dastagirsab Nadaf,

Age: 62 Years,

R/o: Mathad Oni, At:Amargol,

Post.Navanagar, Hubli.

                        (By Smt.G.Geetabai, Adv.)

v/s.

Respondent/s :         

The Assistant Provident Fund Commissioner (Pension), Employees Provident Fund Organization, Bhavishya Nidhi Bhavan, New Block No.10, Behind Income Tax Office, Navanagar, Hubli-580025.

(In person)

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. All these 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 pay the arrears with interest @18% P.A. along with other reliefs.
3. Complainants joined service in NWKRTC Regional workshop, Gokul Road, Hubli, Mysore Kirloskar Ltd, Gokul road, Hubli & Karnataka central Co-Op Bank Ltd, Unakal Branch, Hubli , Dist: Dharwad, in different posts.  The respondent is the pension paying authority which has to fix the pension of all the retired employees who had joined the Employees Pension Scheme 1995, during their service complainants were members of Employees Family Pension Scheme 1971. Since the date of joining the duty and subsequently the Employees Pension Scheme 1995 was introduced & earlier employees family pension scheme was closed, as such complainants became members of Employees Pension Scheme 1995 since 15/11/1995 and they claim to have paid contribution as per the stipulations laid down in both the schemes till they retired, as such complainants are entitled to pension from the date of retirement. After retirement of the complainants, the respondent has fixed pension of the complainants which is mentioned in their PPO but the respondent has not taken into account the entire period of service rendered by them in calculating the pension correctly. Their past service is not considered, even weightage of 2 years is not given to them though they have served for more than 20 years, as such the pension amount of complainants has to be fixed according to the Employees Pension Scheme 1995 & weightage of 2 years is also to be given apart from paying arrears of pension till the date and they are also entitled to interest on the arrears of amount apart from cost of the litigation.
4. 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 respondent further contended that the rate of contribution for both the scheme are different, benefit for the scheme cannot be equated to same. 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. Respondent further contended that any amendments made and published in Gazette of India are justifiable. Accordingly amendment to Sec.10(2) of EPS was made vide GSR 594 Dt.23.07.2009 w.e.f. 24.07.2009. Similarly para.12 of EPS 1995 was also amended vide GSR 431 (E) Dt.15.06.2007 (deemed to have come into force from the date from which EPS 1995 came into force i.e. from 16.11.1995). The amendments as cited above have been brought by way of amendment passed by Parliament of India the Supreme Court cannot challenge any amendment carried out by Parliament of India under 42^nd amendment the supremacy of the parliament has been established. The Hon’ble Supreme Court gave this historical judgment in the case of Sri.Keshwanand Bharati vs. State of Kerala AIR 1973 SC 1461 upholding 24^th amendment of the constitution and gave back to parliament the right to amended any part of the constitution including fundamental rights without affecting its basic structure. National Commission, State Commission and High Court and Supreme Court cannot interpret the provisions of EPF & Misc. Act 1952. The purpose for which the amendments were passed with retrospective effect i.e. w.e.f. 16.11.1995.
5. 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 and citations. Written argument of complainants and respondent are filed and also 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

6. 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.
7. 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.
8. Complainants have produced quite number of correspondence letters with the respondent , even after that their monthly pension has not been fixed as claimed by them.
9. 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:

10. “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.
11. “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.
12. “Pensionable Service” means, the service rendered by the member for which contributions have been received or are receivable.
13. 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.
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 assets 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 complainants have contributed to the EPF 1971schme since the aforesaid amount got transferred to EPF 1995 scheme. The complainants have contributed from joined the service to till retirement. Hence past service and actual service both considered in fixing the pension amount as per the scheme.
17. Earlier to the amendment the para 10(2) of 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.
18. After amendment which is expressly stand with effect from 24-07-2009, para10(2) of the 1995 scheme reads as follows:-

Rule 10 (2) in the case of A member who superannuates on attaining the age of 58 years and who as rendered 20years pensionable service or more , his pensionable service shall be increased by a weightage of 2 years.

19.  In C- 285/15 In this case complainant rendered past service was 24 years. Actually service was 4 years. Eligible service was 28 years.  Complainant at the time of retirement he attained 52 years. Retired from service on 27.12.1999 and date of commencement of pension on 26.04.2000. Hence before amended para 10(2) is applicable. Para 10(2) is amended on 24/07/2009. Considering that complainant rendered more than 20 years of eligible service. Hence complainant is entitled to 2 years weightage. But in this case complainant claimed as per para 12.4(a) of Rs 438. But respondent paid minimum of Rs 335, but scheme is given option whichever is more complainant is entitled. Hence complainant is entitled to pension amount of Rs 438 as per para 12.4(a)

     Respondent calculated past service benefit (PSB) is Rs 420 as per B-Factor, but complainant claimed as per para 12.4(b) of Rs 600. Because he rendered Past service was 24 years. Hence he entitled to PSB of Rs 600. At the time of retirement he attained age of 52 years. Hence. as per para.12.7 the amount of pension shall be reduced @ 3% every year the age falls short of 58 years.

20. In C- 286/15 In this case complainant rendered past service was 24 years. Actually service was 4 years. Eligible service was 28 years.  Complainant at the time of retirement he attained 54 years. Retired from service on 16.12.1999 and date of commencement of pension on 06.04.2000. Hence before amended para 10(2) is applicable. Para 10(2) is amended on 24/07/2009. Considering that complainant rendered more than 20 years of eligible service. Hence complainant is entitled to 2 years weightage. But in this case complainant claimed as per para 12.4(a) of Rs 438. But respondent paid minimum of Rs 335, but scheme is given option whichever is more complainant is entitled. Hence complainant is entitled to pension amount of Rs 438 as per para 12.4(a)

     Respondent calculated past service benefit (PSB) is Rs 347 as per B-Factor, but complainant claimed as per para 12.4(b) of Rs 600. Because he rendered Past service was 24 years. Hence he is entitled to PSB of Rs 600. At the time of retirement he attained age of 54 years. Hence. As per para.12.7 the amount of pension shall be reduced @ 3% every year the age falls short of 58 years.

21. In C- 287/15 In this case complainant rendered past service was 21 years. Actually service was 4 years. Eligible service was 25 years.  Complainant at the time of retirement he attained 50 years. Retired from service on 25.02.2000 and date of commencement of pension on 17.01.2002. Hence before amended para 10(2) is applicable. Para 10(2) is amended on 24/07/2009. Considering that complainant rendered more than 20 years of eligible service. Hence complainant is entitled to 2 years weightage. But in this case complainant claimed as per para 12.3(a) of Rs 635. But respondent paid minimum of Rs 438, but scheme is given option whichever is more complainant is entitled. Hence complainant is entitled to of Rs 635 as per para 12.3(a)

     Respondent calculated past service benefit (PSB) is Rs 677 as per B-Factor, but complainant claimed as per para 12.3(b) of Rs 700. Para 12.3(b):- says that as provided in subject to a minimum of Rs 800 per month provided the  past service was 24 years, if it is less than 24 years the pension and past service benefit shall be proportionately less subject to the minimum of Rs 325 per month. Complainant is entitled to Rs 700. Because he rendered Past service was 21 years. At the time of retirement he attained age of 48 years. But Complainant in his complaint

Contended that at the time of retirement the age of complainant was 51 years. But on perusal of the date of birth and date of retirement was considered that at the time of retirement age of complainant was 48 years. But date of commencement of pension i.e 17-01-2002 considered age of complainant was 50 years completed. Hence. As per para.12.7 the amount of pension shall be reduced @ 3% every year the age falls short of 58 years.

22. In C- 288/15 In this case complainant rendered past service was 14 years. Actual service was 19 years. Eligible service was 33 years. 53 NCP days deducted actual service was 18 years 4 months 12 days .  Complainant at the time of retirement he attained 58 years. Retired from service on 19.05.2014 and date of commencement of pension on 20.05.2014. Hence after amended para 10(2) is applicable. Para 10(2) is amended on 24/07/2009. Considering that complainant fulfilled both aspects he attained 58 years and he rendered more than 20 years of eligible service. Hence complainant is entitled to 2 years weightage.

Respondent and complainant calculated past service benefit (PSB) of Rs 436 is not disputed.

23. In C- 289/15 In this case complainant rendered past service was 20 years. Actual service was 15 years. Eligible service was 35 years. Complainant at the time of retirement he attained 58 years. Retired from service on 31.12.2010 and date of commencement of pension on 01.01.2011. Hence after amended para 10(2) is applicable. Para 10(2) is amended on 24/07/2009. Considering that complainant fulfilled both aspects he attained 58 years and he rendered more than 20 years of eligible service. Hence complainant is entitled to 2 years weightage.

Respondent and complainant calculated past service benefit of Rs 560/- (PSB) is not disputed.

24. 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.
25. 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.
26. Respondent contended that complaints are barred by limitation but complainants contended that in the month of February 2015, July 2015, June 2015 & April 2015 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 have issued letter and legal notice but, respondent not paid the revised pension amount. Hence, they have filed these complaints against the respondent.  They have produced appeal copy of Hon’ble. Karnataka State Consumer Disputes Redressal Commission Appeal No.415/2008 to 419/2008 it was held that period of limitation starts from the date on which the pensioners came to know that the pension that is paid to them is not properly fixed is the date of cause of action so as to maintain the complaint. Further, payment of pension is a recurring cause of action. Considering that decision the complaints are maintainable. Hence complainant are well within the period of limitation.
27. The complainants pray for 18% 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 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. So paying interest on the said amount does not arise and complainants not entitle for interest as claimed. But complainant is entitle for cost of the proceedings Rs. 1000/- & Rs.1000/- as compensation for mental agony in each case. 

28. Respondent has relied on citations RP/4392/14 to 4443/14, RP/3822/14, RP/3826/14 & Keshavanand Bharati vs. State of Kerala. In these cases respondent argued that 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.
29. In support of cases complainant has produced citations Part 4 (2014) CPJ 417 NC, RP/2864/14 National Commission, 2014 CJ 702 NC; RP/2238 – 2272/14, RP/765/13, RP/3970/09 and ILR 2004 Karnataka 2859. In these cases complainant argued that in their citation held that, complainants rendered (past and actual service) total service falls with pensionable service and respondent stated that 2 years weightage is to be given only in the year November 2015 does not get any support from any provisions in the EPS 1995 and clarification issued by respondent cannot run against the existing provisions and that too when it is concerning social welfare legislation.
30. On perusal of the both the parties produced by the documents and citations. Respondent argued that Keshwanand Bharati case 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. On perusal of the document in this case also Supreme Court held that without effecting its basic structure amendment was justifiable. Preamble also contains the basic structure of our constitution, which cannot be amended. Where the object of the statute is to affect the vested rights or to impure new burden to impair existing of obligations. The intension of the legislature to effect exit rights it is seemed to be prospective only. Provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively.    Respondent has produced Keshwanand Bharati case year of judgment was 1973 but Supreme Court in the year 1983 observation made 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.
31. 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 it is held that, since the members (employees) have rendered service more than 20 years member would be entitled to weightage of 2 years in terms of Rule.10(2) of the said rules. ILR 2004 Karnataka 2859 & 2004 Law Suit KAR 307. 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 of 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.

32. In view of the above said reasons the point.1 is answered in affirmative and point.2 in affirmative but accordingly.
33. Point:3: In view of the finding on points 1 and 2 proceeded to pass the following

O R D E R

CC/285/2015, CC/286/2015, CC/287/2015, CC/288/2015  & CC/289/2015 are allowed in part. In these cases complainants are entitled to 2 years weightage along with past service benefit 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) (a) & (b),  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.285/2015 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 31^st day of December 2015)

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

Member                                                      President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR