BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  31^th May 2016

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

Complaint No.: 93/2016

Complainant/s:     

Shri Usmangani S.Desai,

Age: 62 years, Occ: Pensioner, C/o. Saheb Desai,Mehaboob Nagar,Chikodi, Belagavi.

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

v/s.

Respondent/s :         

The Assistant Provident Fund Commissioner, Sub Regional Office, Near Cancer Hospital, Navanagar, Hubli. Dist.Dharwad.

(In person)

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. The complainant has filed this complaint 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 complainant and by extending the weightage of 2 years and  to pay the arrears with interest @12% P.A. and give  annual relief upto date along with other reliefs.
2. Complainant was employee of NWKSRTC in Chikkodi.    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 complainant became member of Employees Pension Scheme 1995 since 15/11/1995 and he has paid contribution as per the stipulations laid down in both the schemes till he retired, as such complainant is entitled to pension from the date of retirement. After retirement of the complainant, the respondent has fixed pension of the complainant which is mentioned in his PPO but the respondent has not taken into account the entire period of service rendered by him in calculating the pension correctly. His past service is not considered, even weightage of 2 years is not given to him though  he  has served for more than 20 years, as such the pension amount of complainant 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 he is also entitled to interest on the arrears of amount apart from cost of the litigation.
3. In the written version the respondent has contended that the complainant was enrolled as member under the Employees Family Pension Scheme 1971 and thereafter become the member of the Employees Pension Scheme 1995 till he retired. Subsequently the complainant has claimed pension through application in form 10D, on receipt of the same respondent office has issued pension payment order by sanctioning pension per month to the complainant. Aggrieved by such fixation of pension now the complainant has 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 complainant 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 complaint is liable to be dismissed with cost. Further contended that complaint is 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.
4. On the said pleadings the following points have arisen for consideration:

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

Sworn to affidavit of complainant and respondent are filed apart from producing documents and citations. Written argument of respondent is 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 Complainant is as below

5. On perusal of the documents that, the complainant was member of Employees Family Pension Scheme 1971 from the date of joining his 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 his membership even under Employees Pension Scheme 1995. These facts are not in much dispute.
6. The grievance of the complainant is that, while fixing his pension the respondent has not considered their past service and present service and 2 years weightage is not given. On that ground they have sought for re-fixation of their pension apart from arrears of pension amount, interest and cost of the litigation.
7. Complainant has produced correspondence letter with the respondent, even after that his monthly pension has not been fixed as claimed by him.
8. The method of calculation for fixing the pension shall be computed in accordance with the following factors, viz.,

Monthly members pension = pensionable salary x pensionable service

70

 Some definitions are thus:

9. “Actual Service” means, the aggregate of period of service rendered from the 16/11/1995 or from the date of joining any establishment whichever is later to the date of exit from the employment of the establishment covered under the Act.
10. “Past Service” means, the period of service rendered by an existing member from the date of joining Employees Family Pension Fund till the 15/11/1995.
11. “Pensionable Service” means, the service rendered by the member for which contributions have been received or are receivable.
12. Rule 9 determination of eligible service, Rule 9 (B) in the case of “existing member” the aggregate of actual service and the “past service” shall be treated as eligible service.
13. 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.
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 complainant has not completed 20 years of pensionable service, as such weightage of 2 years is not given and his previous service cannot be considered in fixing the pension amount.
15. On perusal of the documents in this case, complainant was member 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 complainant has contributed to the EPF 1971 scheme since the aforesaid amount got transferred to EPF 1995 scheme. The complainant has 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 has rendered 20years pensionable service or more , his pensionable service shall be increased by a weightage of 2 years.

19. In this  case complainant has rendered more than 20 years of eligible service and he attained 58 years. Complainant retired on 31.05.2011 and date of commencement of pension is 01.06.2011. Hence after amended Para 10(2) is applicable. Para 10(2) amended on 24.07.2009. Considering that complainant fulfilled both aspects i.e. he has rendered more than 20 years of eligible service and he has attained 58 years. Hence complainant is entitled to 2 years weightage benefit.  Hence only complainant is entitled 2 years weightage benefit.

20. The contention of the respondent that, complainant 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 this case the complainant is entitled to 2 years weightage.
21. Past service benefit considered complainant & respondent calculated Rs.313/- is same. Hence no dispute in the past service benefit.
22. Respondent contended that complaint is barred by limitation but complainant contended that, in the month of February 2016, it came to the knowledge of the complainant through one of the colleagues that there are errors in the calculation pension fixed to him and it also came to his knowledge the pension now paid to him from the office of respondent is lesser. Hence, after knowing the matter complainant has issued letter and legal notice but, respondent not paid the revised pension amount. Hence, he has filed this complaint against the respondent. He has filed application of 24A of CP act for condonation of delay. IA is allowed. This forum relies on the judgment of Hon’ble. Karnataka State Consumer Disputes Redressal Commission Appeal No.415/2008 to 419/2008 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 complaint is maintainable.
23. The complainant 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. Since there was no amendment at that time, 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 complainant is not entitle for interest as claimed but respondent failing which the complainant is entitled to interest @9% P.A. from the date of commencement of pension till its realization because complainant invested the said amount in bank he would has earned interest hence complainant is entitled to interest @9% P.A from the date of commencement of pension till its realization and also complainant is entitled to cost of the proceedings Rs. 1000/- & Rs.1000/- as compensation for mental agony. 

24. 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 24^th 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.
25. In Part 3 (2013) CPJ 244 NC. Hon’ble National commission held that the aggregate of past service plus the period from 16.11.1995 onwards- complainants have joined service before 1971 and rendered more than 20 years of service. They have entitled for 2 years weightage.  
26. 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. But 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. 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.
27. 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 because which affects the constitutional rights of the citizens and object and aim of the scheme is beneficial to the workers. The time of entering into the scheme by the complainant no such provisions were existing and there is no material evidence available on record to show that the same is applicable retrospectively. The circular issued by the government cannot be treated as amendment to the Act.
28. Complainant argued that respondent not given annual report every year but respondent is no authority to give annual report. This authority is only central government, respondent is only agent of central government. Hence no deficiency in service on the part of the respondent.

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

O R D E R

Complaint No.93/2016 is allowed in part. In this case complainant is entitled to only 2 years weightage amount  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 R/w. Rule 10 (2) of Employees Pension Scheme 1995 from the date of his retirement and balance pension amount be paid to complainant within two months from the date of receipt of copy of this order, apart from paying Rs.1,000/- as cost of the litigation and Rs.1,000/- as compensation for mental agony. Failing which the balance pension amount shall carry interest @9% p.a from the date of commencement of pension till its realization.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of May 2015)

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

Member                                                      President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR