BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  31^th March 2016

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

1. Complaint No.: 326/2015

Complainant/s:     

         Cc/326/2015

Vasantrao s/o.        Siddappa Pujar        , Age: 61 years, Occ: Pensioner, R/o.C/o: D.H.Savasuddi, Mathoshree Building, Kalyan Housing Colony, ExtnArea,Tq:Gokak, Dist.Belguam, Karnataka

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

v/s.

Respondent/s :         

1. The Assistant Provident Fund Commissioner, Sub Regional Office, Behind Income Tax Office, Navanagar, Hubli, Dist.Dharwad.

(In person)

2. The divisional Controller, NWKSRTC, Chikkodi Division, Tq:Chikkodi, Dist: Belguam.

    (V.B.Dhavaleshwar Adv)

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. The Complainant in this complaint contended that the complainant was member of the Family Pension Scheme of 1971. Further, the complainant has opted Employee Pension Scheme 1995. The employer had allotted a provident fund account and he was deducted his monthly subscription amount from his salary and same was remitted to the respondent 1. The complainant was retired on 06.03.2012. There after the employer of the complainant was sending his service records and relevant documents in respect of settlement of monthly pension by the respondent 1. During the course of employment under R2, the complainant was dismissed from service.   There after the complainant was challenged this dismissal order before the Hon’ble labour court Hubli. Then after hearing of the matter, the Hon’ble court was pleased to allowed the case with continuity of service, Full back wages and all other consequential benefits. Later on the R2 was reinstated into service with effect from 28.01.1985. Further at the date of rejoining the R2 was received all subscription amount of provident fund from the complainant. But at the time of settlement of pension of the complainant the R1 authority was wrongly shows that, NCP days of 906 days. So the complainant was fully paid the entire service subscription amount.   Complainant retired from service by way of superannuation i.e. 58 years. The respondent has fixation of the pension is quiet, improper and same is wrongly calculated. The complainant having more than 20 years of pensionable service hence, complainant is entitled to 2 years weightage as per Para 10(2) of EPS 1995 & the same has not been provided to him for the purpose of calculating the monthly member pension. Further more the respondent has not calculated the past service pension in accordance with the law. Due to the improper calculation & attitude of the respondent the complainant has been put to untold hardship. It is bound to be termed deficiency in service on the part of the respondent to pay 12% interest on the same amount. In the month of March 2015 it came to the knowledge of complainant through one his colleague that there were errors in the calculation of pension fixed by the respondent.   When the complainant got issued legal notice which has been duly served on the respondent but the respondent failed to comply with the demands of the complainant. Hence, complaint is filed these complaint against the respondent.  
2. In the written version the respondent has contended that the complainant was enrolled as member under the Employee Family Pension Scheme 1971 and thereafter become the member of the Employee 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 orders 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 member 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. Hence the entire service cannot be clubbed for the purpose of giving weightage of 2 years as per para.10.2 of EPS 1995. The Employee Provident Fund and Misc. Provisions Act 1952 is a social security legislation meant to provide benefits to the employee to the maximum extent. Any amendments made and published in the Gazette of India are justifiable. Accordingly amendments to Sec.10.2 of the EPS was made vide G.S.R.594 Dtd.23.07.2009 (w.e.f.24.07.2009). Similarly para.12 EPS 1995 was also amended vide GSR/431(E) dtd.15.06.2007 (deemed to have come into force from the date from which the EPS 1995 came into force 16.11.1995). In the light of above amendments the respondent has fixed the pension of applicant. There is no deficiency in service on the part of respondent 1 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 has barred by limitation.
3. Respondent 2 appeared and filed his written statement contended that this respondent against complaint is not maintainable. The complaint is barred by limitation and R2 admitted that complainant is retired employee of NWKSRTC from Chikkodi division on 06.03.2012. R1 is pension paying authority, R2 is a formal party. This respondent is produced all the necessary document to the R2. Further contented that there is non-joinder of necessary party. There is no deficiency in service. Hence respondent 2 prays  for dismissal of the complaint.
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 respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Sworn to affidavit of complainant and respondents are filed apart from producing documents. Written argument of respondent 1 is filed and both parties 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 member 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 their pension the respondent has not considered his past service and present service and 2 years weightage is not given. On that ground he has sought for re-fixation of his pension apart from arrears of pension amount, interest and cost of the litigation.
7. Complainant has produced legal notices sent to 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. Earlier to the amendment the para 10(2) 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. After amendment which is expressly stand with effect from 24.07.2009 para 10(2) of 1995 shall read as follows. 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 who has rendered 20years 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 is member of Employee Family Pension Scheme 1971 and Employee Pension Scheme 1995.
16. The net asset 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 till retirement. Hence past service and actual service both considered in fixing the pension amount as per the scheme. IV (2014) CPJ 470 NC & RP/2864/2014. In these decisions Hon’ble National Commission held that, complainant while he was member 1971 Scheme & 1995 scheme, hence falls within definition of pensionable service. Hence, He is entitled to added advantage of 2 years.
17. The contention of the respondent that, complainant has 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. Complainant is 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.
18. In this case the complainant rendered past service was 12 years, actual service was 16 years. Total eligible service was 28 years and 906 NCP days deducted actual service was 13 years 9 months and 26 days. At the time of retirement he attained 58 years, date of retirement was 06.03.2012 and date of commencement of pension was 07.03.2012. Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009, considered that complainant fulfilled both aspects i.e he rendered total eligible service was more than 20 years and he attained 58 years. Hence complainant is entitled to 2 years weightage amount from the respondent. The complainant contended that respondent wrongly deducted 906 NCP days . But on perusal of documents produced by the R2  i.e.  certificate issued by the NWKSRTC it shows that he is worked from 21.11.1979 to 30.05.1981 and 31.05.1981 to 27.01.1985 he was dismissed in the service and he rejoined the service 28.01.01985 to till retired. Another documents that attendance  register and service register shows that , these period respondent not contributed PF amount but he entitled to service benefit. On perusal of PPO it shows that 906 NCP days. Hence these period deducted is proper. Because complainant in these period not contributed the PF amount, hence these period deducted is correct. R1 contended that complainant is not continually served 20 years of pensionable service. But on perusal of documents he rendered more than 20 years of service in under same employer.  But complainant rendered more than 20 years of eligible service and he attended 58 years hence complainant is entitled to 2 years weightage. Complainant in his complaint actual service mentioned 16 years is not correct. Actual service was 14 years is correct. Because 906 NCP days deducted it comes 13 years 9 months 26 days, it rounded actual service was 14 years is correct. The Past Service benefit considered, complainant and respondent calculated Rs 374 is not disputed. Hence complainant is entitled to only 2 years weightage benefit.
19. Respondent contended that complaint is  barred by limitation but complainant contended that in the month of March 2015, it came to the knowledge of the complainant that there are errors in the calculation of 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 notices but, respondent not paid the revised pension amount. Hence, he has filed this complaint against the respondent & also filed U/s.24(A) of CP Act for delay condonation application. Considering the 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 complaints. Considering that decision the complaint is maintainable and delay condonation application is allowed.  
20. Complainant prays for 12% interest from the date of retirement till realization. But on perusal of the documents earlier the respondent was not paying two years weightage benefit to the employees who have fulfilled twenty years of pensionable 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 weightage 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. But complainant is not entitled interest @12% but failing to comply the order by respondent complainant is entitled to 9% interest from the date of order till realization. But complainant is entitle to Rs.1,000/- as cost of the proceeding  and Rs.1,000/-  as compensation for mental agony.  

21. Respondent has relied on citations Keshavanand Bharati vs. State of Kerala.  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. On perusal of the both the parties produced by the documents. Respondent argued that Keshwanand Bharati case Hon’ble 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 Hon’ble Supreme Court held that without effecting its basic structure amendment was justifiable. But preamble contains the basic structure of our constitution, which cannot be amended. Respondent has produced Keshwanand Bharati case year of judgment was 1973 but Hon’ble Supreme Court in the year 1983 observed that, 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.
22. 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 held that, since the said service is more than 20 years member would be entitled to weightage of 2 years in terms of Rule.10(2) of the said rules.  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 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.
23. Respondent 2 is a necessary party in this case. The  R2 was  

   sending the all the service documents of complainant to R1. 

   Hence no deficiency in service of R2. Therefore claim against  

   R2 is dismissed.

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

O R D E R

CC No.326/2015 is allowed in part.

  The  complainant is  entitled to 2 years weightage 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 their 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 retirement till its realization.

         Claim against R2 is dismissed.

Original order be kept in Compt.326/2015.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^thMarch 2016)

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

Member                                                      President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR