BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 29^th June 2016

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

1. Complaint No.: 94 /2016
2. Complaint No.:109 /2016
3. Complaint No.:110 /2016
4. Complaint No.:111 /2016

Complainant/s:              Saleem M.Sayyed,

Age: 62 years, Occ: Pensioner, R/o.Doumble Plot, Gokak Road, Chikkodi, Tq. Chikkodi, Dist.Belgaum.

In C-94/2016

Prakash S/o.Sulochana Asode,

Age: 64 years, Occ: Pensioner, R/o.Near Syndicate Bank,  Chikkodi, Tq. Chikkodi, Dist.Belgaum.

In C-109/2016

Mohammad Hanif B.Peerjade,

Age: 61 years, Occ: Pensioner, R/o.Hirekumbi village, Tq. Saundatti, Dist.Belgaum.

In C-110/2016

Vishwanath Krishna Ashtekar,

Age: 62 years, Occ: Pensioner, R/o.CCB No.43, 4^th cross, Mahadwar Road, Belgaum.

In C-111/2016

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

v/s.

Respondent/s :         

1. The Assistant Provident Fund Commissioner, Sub Regional Office, Bhavishya Nidhi Bhavan, Behind Income Tax Office, Navanagar, Hubli.

(In person)

2. The Divisional Controller, NWKRTC, Chikodi Division, Chikodi

(By Sri.V.B.Dhavaleshwar, Adv.)

In C-94/2016

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. All these four 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. Complainants in these complaints contended that the complainants were employees of NWKSRTC, Chikodi division, Belgaum DCC Bank Ltd., Belgaum, NWKSRTC Belgaum, in different posts. The complainants were members of the Family Pension Scheme of 1971. Further, the complainants have opted Employee Pension Scheme 1995. Complainants 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 complainants having more than 20 years of pensionable service hence, complainants are entitled to 2 years weightage as per Para 10(2) of EPS 1995 & the same has not been provided to them 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 complainants have 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 June 2015, April 2016 & December 2015, the complainants got knowledge of the fact that the fixation of their pension has not been properly fixed and when the complainants got issued legal notice which has been duly served on the respondent but the respondent failed to comply with the demands of the complainants. Hence, complainants filed these complaints against the respondents.     
3. In the written version the respondent-1 has contended that the complainants were enrolled as members under the Employees Family Pension Scheme 1971 and thereafter become the members 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. Respondent further contended that the intention of the legislation was to consider entire service i.e. past service and pensionable service for the purpose of giving 2 years weightage  as per Para.10 (2) of EPS 1995 then it would not have defined the past service and also given past service pension as per Para.12(3)(b), 12(4)(b) and 12(5)(b) as the case may be. 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 Employees Provident Fund and Misc. Provisions Act 1952 is a social security legislation meant to provide benefits to the employees 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 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.   Hence no deficiency in service on the part of the    respondent-1.
4. In CC-94/2016 respondent.2 has appeared and filed his written version, respondent.2 is an employer, in his written version contended that complainant is a retired employee of NWKRTC from Chikodi division, who retired on 27.03.2010. This respondent.2 is a formal party. Respondent.2 has produced all the salary certificates of the complainant to the respondent.1 on 07.04.2011. It is the duty of respondent.1 to fix the pension of the complainant. The complainant has made a party of R2 unnecessarily to the proceedings. Respondent.1 is a proper party to fix the pension of the complainant, respondent.2 has already furnished all the records of the complainant to concerned authority. The respondent.2 has discharged its duties and forwarded all the service records of complainant to the respondent.1. It is dispute between the complainant and respondent.1. This respondent has no liability towards the complainant, it is not the duty of our corporation to rectify the mistake in conclusion of the pension amount. There is no deficiency on the part of this respondent. Hence R2 prays for claim against respondent.2 be dismissed.
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 respondent-1 is filed and both parties argued orally. 

Finding on points is as under:

1. In Affirmative, but in CC-94/16 & 110/16 -Negative
2. In Affirmative but accordingly  in CC-94/16 & 110/16 -Negative
3. As per order.

  Reasons

Points 1 and 2

Details of Service rendered by the Complainants are as below

5. 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.
6. 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.
7. Complainants have produced legal notices sent to the respondent, even after that their monthly pension has not been fixed as claimed by them.
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 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 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, they are entitled to added advantage of 2 years.
17. The contention of the respondent that, complainants have 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, except in CC 94/16 & 110/16.
18. In CC-94/16 in this case the complainant rendered past service was 16 years, actual service was 14 years, total eligible service was 31 years and 1383 NCP days deducted actual service was 10 years 6 months 28 days. At the time of retirement he was not attained 58 years, he attained 57 years, 8 months 20 days, date of retirement was 27.03.2010 and date of commencement of pension was 26.04.2011. Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009, considered that complainant rendered total eligible service was more than 20 years and he was not attained 58 years. As per amended Para 10(2) complainant not fulfilled both aspects hence complainant is not entitled to 2 years weightage  amount from the respondent-1.  In the complaint complainant calculated actual service was 14 years, but actual service was 11 years, because NCP days deducted actual service was 11 years. Complainant argued that there is no NCP days, complainant contributed subscription amount. But respondent.1 in his PPO mentioned that 1383 NCP days. In support of that respondent.2  has produced document i.e. list of details showing leaves, absent & suspension of the complainant. It shows complainant was on leave without taken leaves 1383 days, hence this period complainant not contributed subscription amount, but complainant not shown he paid the contribution amount. Hence in the absence of proof forum has considered complainant with loss of payment he taken leaves.  Hence employer has not contributed the subscription amount of complainant. Hence 1383 NCP days deducted, is proper.

PSB considered complainant calculated less than 16 years B factor is 4.381 but respondent calculated 3.926 is correct because Table B factor amended on 10.06.2008 complainant retired on 23.07.2010. Hence amended B factor is applicable considered that respondent calculated PSB is correct.  Hence no deficiency in service on the part of Respondent.1 in calculation of pension. Hence complaint is dismissed.

19. In CC-109/16 in this case the complainant rendered past service was 13 years, actual service was 15 years, total eligible service was 28 years. At the time of retirement he was attained 58 years, date of retirement was 09.11.2010 and date of commencement of pension was 10.11.2010. Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009, considered that complainant rendered total eligible service was more than 20 years and he was attained 58 years. As per amended Para 10(2) complainant fulfilled both aspects hence complainant is entitled to 2 years weightage  amount from the respondent-1.

PSB considered complainant & respondent calculated PSB of Rs.320/- is same hence no dispute.  

20. In CC-110/16 in this case the complainant rendered past service was 13 years 4 months 1 day, actual service was 14 years 11 months 19 days, total eligible service was 28 years. But 297 NCP days deducted actual service was 14 years 1 month 27 days, total eligible service was 27 years. At the time of retirement he was not attained 58 years, date of retirement was 03.11.2010 and date of commencement of pension was 01.08.2013.  Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009, considered that complainant rendered total eligible service was more than 20 years, but he was not attained 58 years. As per amended Para 10(2) complainant not fulfilled both aspects hence complainant is not entitled to 2 years weightage  amount from the respondent-1. But he received pension amount on 01.08.2013 that time he attained 58 years thereafter he received pension amount. Hence pension amount not reduced.

PSB considered complainant & respondent calculated PSB of Rs.404/- is same hence no dispute. 

21. In CC-111/16 in this case the complainant rendered past service was 19  years, actual service was 16 years, total eligible service was 35 years. Date of retirement was 06.03.2012 and date of commencement of pension was 01.08.2012.  Hence after amended para.10(2) is applicable. Para 10(2) amended on 24.07.2009, considered that complainant rendered total eligible service was more than 20 years, & he was attained 58 years. As per amended Para 10(2) complainant fulfilled both aspects hence complainant is entitled to 2 years weightage  amount from the respondent-1. 

PSB considered complainant & respondent calculated PSB of Rs.481/- is same hence no dispute.  

22. Respondent contended that complaints are barred by limitation but complainants contended that in the month of June 2015, April 2016, December 2015, it came to the knowledge of the complainants that there are errors in the calculation of 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 notices but, respondent not paid the revised pension amount. Hence, they have filed complaints against the respondent & also filed I.A. 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 complaints are maintainable.
23. 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 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. But complainants are not entitled interest @12% but failing to comply the order by respondent complainants are entitled to 9% interest from the date of order till realization. But complainants are entitle to Rs.1,000/- as cost of the proceeding  and Rs.1,000/-  as compensation for mental agony.
24. Respondent contended that the scheme provisions under para.12(3) (4) and (5) of the EPS 1995 has been amended vide GSR No.431(e) dtd.15.06.2007 wherein it is clearly mentioned that this provision is deemed to have came into force i.e. 16.11.1995 as such there is no ambiguity in implementation.

25. 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 and citations. But in Keshwanand Bharati 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.
26. 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. In CC-94/16 & 110/16 Complainant has produced citation 2015 CPJ 12 NC – The Hon’ble National Commission held that- employee pension scheme 1995 para.10(2) & 12(7)- pension reduced early pension -senior citizens conjoined reading of 2 provisions of 2 schemes 1995 clearly shows that there lies no rub in giving advantage of 2 years as laid down in para10(2) even to these pensioners who have availed benefit of para 12(7). This now here debars, such pensioners should not be given weightage of 2 years, OPs tried to harass pensioners who are senior citizens. But in the instant cases complainants retired after amended para 10(2). Hence date of amendment considered, not retrospective effect. Hence complainant after amendment of para 10(2) he  retired and commencement of pension also considered complainant is not entitled to 2 years weightage because not fulfilled both aspect. Hence in these 2 cases complainants are  not entitled 2 years weightage.
27. In view of the above said reasons the point.1 is answered in affirmative and point.2 in affirmative but accordingly but in C-94/16 & 110/16 negative).

28)Point:3: In view of the finding on points 1 and 2 proceeded to pass the following

O R D E R

Compt.No.94/16 and 110/16 are dismissed. No order as to costs.

CC-109/16 & 111/16 are allowed in part. Complainants are entitled to 2 years weightage 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),  R/w. Rule 10 (2) of Employees Pension Scheme 1995 apart from giving 2 years weightage from the date of retirement order and balance pension amount be paid to complainants within two months from the date of receipt of copy of this order, apart from paying Rs.1,000/- as cost of the litigation in each case 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 order till its realization.

Original order be kept in Compt.94/2016 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 29^th day of June 2016)

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

Member                                                      President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR