JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

1)        All these cases are filed by the above complainants U/Sec 12 of the Consumer Protection Act 1986 (Herein after referred to as the “Act”) against the Opposite party (in Short the Op) for directing the Op to revise their monthly pension by extending the minimum assured benefit both in respect of past and present service with effect from the date of the retirement and to pay the arrears with interest and also to give two years of weightage and also to give annual relief from Retirement till today and to pay the regular Monthly pension continuously etc., all these cases involved a common question of law and fact these cases are taken together for disposal by passing a common order.

2)        That the Complainants’ Counsel stated that in the year 2016, it came to the knowledge of the complainant’s through one of their colleagues that there are errors in the calculation of pension fixed to them. It also came to their knowledge that pension paid to them are lesser one that the Complainants are entitled. Immediately the Complainants have given representations to the Opposite party for the revision of the monthly pension but the Opposite party failed to comply the same.

3)        It is further stated that, all the Complainants were working as employee in different organisations from different dates and while they were in service they were the members of “The Employees of Family Pension Scheme 1971” (in short1971 Scheme)and making contribution towards the Scheme and later on “The Employees Pension Scheme 1995”(in Short”1995 Scheme”) was introduced and brought into force with effect from 16 of day November 1995 which was compulsory one and after commencement of the said 1995 scheme all the complainants continued to be the members of the scheme by making monthly contribution and subsequently they retired from services. Op who is common in all these cases is functioning under the “Employees provident Fund and Miscellaneous Act 1952 and fixed the monthly pension of all the complainants. But however now the complainants have come to know that the fixation of their pension is not in accordance with the scheme and they have not been given two years of weightage as per the 1995 scheme in spite of their repeated request and issuance of the notice, this amounts to deficiency in service and further it is also alleged that the Op has not given the Annual Relief which is to be given under Paragraph 32 the 1995 scheme etc., and hence complainants have prayed for giving necessary direction to the Op to pay the following reliefs : a) To revise the monthly pension by extending the minimum assured benefits both in respect of past and present service with effect from the date of the retirement of the complainants and to pay arrears with interest at the rate of 12% p.a. b) To revise the monthly pension by extending the weightage of two years with effect from the date of the retirement of the complainants and to pay arrears with interest at the rate of 12% p.a. c) To pay the arrears accumulated by the complainants till the date of filing the complaints including interest at the rate of 12%p.a. -11- d) To give annual relief from 2001 to till this financial year and to pay the arrears as per the memo of calculation with interest at 12% p.a. e) Pass the order to continue to pay the monthly pension to the complainants as per the scheme in revised scale and also claimed such other and further reliefs. f) Pass the order to pay cost of Rs 10,000/- and also to award the compensation towards mental Agony. 5) For the purpose of convenience we would like to incorporate the memo of calculation supplied by the complainants which is part of the complaint under Annexure –“A” which are as under;

CC-157-2016

ANNEXURE-A

MEMO OF CALCULATION

1. Calculation of monthly pension in present service benefits, under para 12(3)(a)

MMP = pensionable salary x pensionable service + 2 years Weightage period

                                                            70

=  5438 x 8 + 2 = Rs.777/-

                        70

But as per scheme minimum assured pension given Rs.635/- so the complainant entitled whichever is more.

2. Calculation of monthly pension is past service benefits,

Under Para 12(3)(b)

Age of the complainant as on 15-11-1995 was 45 years

SO 58 years – 5 years = 13 years

Hence which is less than 13 years table B, Col.No.13 factors shows that 3.292 and multiplied by 170=Rs.560/-

1. Present service pension               Rs.777-00

2. Past Service pension                     Rs.560-00

Original pension:    Rs.1337-00

     Less 3% pension for five years       Rs.188-00

                                                                      Rs.1149-00

     Less 10% ROC                                     Rs.115-00

     Payable monthly pension                 Rs.1034-00

     Paid monthly pension                         Rs.927-00

     Arrears of monthly pension              Rs.107-00

            From 11-10-2003 to 11-6-2016 i.e. 152 months x Rs.107/-

                                                                        = Rs.16, 264-00

Add 12% interest                                       = Rs.24, 121-00

Total Arrears                                               = Rs.40, 985-0

                        CC-158-2016

ANNEXURE-A

                        MEMO OF CALCULATION

3. Calculation of monthly pension in present service benefits,

Under Para 12(3)(a)

MMP  = pensionable salary x pensionable service + 2 years Weightage period

                                                       70

= 6048 x 14 + 2 = Rs.1382/-

           70

 But as per scheme minimum assured pension given Rs.635/- so the complainant entitled whichever is more.

4. Calculation of monthly pension is past service benefits,

Under Para 12(3)(b)

Age of the complainant as on 15-11-1995 was 39 years

SO 58 years – 39 years = 19 years

Hence which is less than 19 years table B, Col.No.19 factors shows that 4.152 and multiplied by 85=Rs.353/-

3. Present service pension               Rs.       1382-00
4. Past Service pension                                 Rs.353-00

               Original pension :                       Rs.1735-00

     Less 4% for 3 years early                    Rs.199-00

     Actual Pension                                       Rs.1536-00

    Paid monthly pension                           Rs.1310-00

    Arrears of monthly pension                Rs.226-00

            From 3-8-2010 to 3-8-2016 i.e. 72 months = Rs.16, 272/-

                                                                        = Rs.16, 272-00

Add 12% interest                                       = Rs.11, 716-00

Total Arrears                                               = Rs.27, 988-00

CC-159-2016

ANNEXURE-A

MEMO OF CALCULATION

1. Calculation of monthly pension in present service benefits,

Under Para 12(3)(a)

MMP = pensionable salary x pensionable service + 2 years Weightage period

                                                            70

           = 6500 x 17 + 2 = Rs.1764/-

                     70

But as per scheme minimum assured pension given Rs.635/- so the complainant entitled whichever is more.

2. Calculation of monthly pension is past service benefits,

Under Para 12(3)(b)

Age of the complainant as on 15-11-1995 was 41 years

SO 58 years – 41 years = 17 years

Hence which is less than 17 years table B, Col.No.17 factors shows that 3.560 and multiplied by 105=Rs.374/-

1. Present service pension               Rs.1764-00
2. Past Service pension                     Rs.374-00

Actual pension:       Rs.2138-00

     Less already monthly pension           Rs.1946-00

     Settled by the respondent.                 ___________________

     Arrears of monthly pension               Rs.192-00

            From 12-10-2012 to 12-5-2016 i.e. 43 months x Rs.192/-

                                                                        = Rs.8, 256-00

Add 12% interest                                       = Rs.3, 550-00

Total Arrears                                               = Rs.11, 806-00

CC-160-2016

ANNEXURE-A

MEMO OF CALCULATION

3. Calculation of monthly pension in present service benefits,

Under Para 12(3)(a)

MMP = pensionable salary x pensionable service + 2 years Weightage period

                                                            70

          = 6500 x 16 + 2 = Rs.1671/-

                      70

But as per scheme minimum assured pension given Rs.635/- so the complainant entitled whichever is more.

4. Calculation of monthly pension is past service benefits,

Under Para 12(3)(b)

Age of the complainant as on 15-11-1995 was 41 years

SO 58 years – 41 years = 17 years

Hence which is less than 17 years table B, Col.No.17 factors shows that 5.810 and multiplied by 95=Rs.552/-

3. Present service pension               Rs.       1671-00
4. Past Service pension                                 Rs.552-00

Original pension:    Rs.        2223-00

     Paid monthly pension                          Rs.       1866-00

    Arrears of monthly pension                Rs.       357-00

            From 30-4-2012 to 30-6-2016 i.e. 50 months x Rs.17, 850/-

                                                                        = Rs.   17, 850-00

Add 12% interest                                       = Rs.   8, 925-00

Total Arrears                                               = Rs.   26, 775-00

CC-161/2016

ANNEXURE-A

MEMO OF CALCULATION

5. Calculation of monthly pension in present service benefits,

Under Para 12(3)(a)

MMP = pensionable salary x pensionable service + 2 years Weightage period

                                                            70

            = 6055 x 14 + 2 = Rs.1384/-

                      70

But as per scheme minimum assured pension given Rs.635/- so the complainant entitled whichever is more.

6. Calculation of monthly pension is past service benefits,

Under Para 12(3)(b)

Age of the complainant as on 15-11-1995 was 39 years

SO 58 years – 39 years = 19 years

Hence which is less than 19 years table B, Col.No.19 factors shows that 4.152 and multiplied by 80=Rs.332/-

5. Present service pension               Rs.       1384-00
6. Past Service pension                                 Rs. 332-00

Original pension :   Rs.        1716-00

     Less 8% for 2 years early                    Rs.       137-00

     Actual Pension                                       Rs.        1579-00

    Paid monthly pension                           Rs.       1276-00

    Arrears of monthly pension                Rs.       303-00

            From 28-4-2011 to 28-6-2016 i.e. 62 months = Rs.18, 786/-

                                                                        = Rs.18, 786-00

Add 12% interest                                       = Rs.11, 647-00

Total Arrears                                               = Rs.30, 433-00

4)        Op is the main contesting party in all the cases has filed detailed written version contending that the fixation of the monthly pension of the complainants is as per the scheme and they have not rendered 20 years of service after coming into force of the 1995 scheme and therefore they are not entitled to two years of weightage,para10(2) was amended by Government of India on 24-07-2009.para10(2) before this amendment read as “In case of the 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 adding a weightage of 2 years”. Para 10(2) after amendment read as “in case of the member who superannuates on attaining the age of 58 years, and who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years”. After amendment of Para 10(2), even in superannuation cases completion of 20 years pensionable service under Employees pension scheme 1995 is a must. As the Employees pension scheme, 1995 came into force on 16-11-1995; the 20 years pensionable service can be completed by any member only after 16-11-2015. That the  Op further states that “As per para 12(3)(ii),the aggregate of (a) and (b) calculated shall be subject to a minimum of Rs 800/-per month, provided the eligible service is 24 years. Provided further, if it is less than 24 years, the pension as computed above shall be reduced proportionately subject to a minimum of Rs 450/- per month.” That the Op further states that Para 10 is related to the service rendered by a member and the contributions thereon are received or receivable for the period after 16-11-1995 and not for the earlier period. Para 10 (2) of Employees pension Scheme,1995 is for the purpose of giving weightage of 2 years to the members who have rendered the required number of years of service after16-11-1995 and not by clubbing both the past service prior to 16-11-1995 and the service rendered after 16-11-1995.

5)         Op further states that as per the Employees provident Fund Organization, Head office, New Delhi circular dated 26-11-2013 and Corrigendum No Pen(A&C)/RPNo:867-880/2012/NCDRC/KN Kallurappa /11827 dated 05-12-2013 two years bonus can be given where superannuation pension i.e., pension at the age of 58 years had commenced prior to 24-07-2009 when Para 10(2) was amended substituting the words “and/or” with “and” Than Op No 1 has submitted Eligible for 2 years weightage in C.C.Nos.17, 18, 21, 22, 23, 32 of 2015, 143,145,147, and 148 of 2014 and Not Eligible for 2 years weightage list in C.C.Nos.14,16,19,20,33,34,35,and 36 of 2015 and in C.C No 144,146, and 149 of 2014 all the complaints are barred by time etc., and hence has prayed for dismissal of the complaints.

6)        Op state that the undisputed fact are that all the complainants were the employees of Op and during their employment they became the members of 1971 scheme and making contribution and after enforcement of 1995 scheme they continued to be the members by making the monthly contribution and now they have retired from service and Op has determined the pension payable to them. That after the retirement of the complainants from the services, the respective employers has submitted all necessary service particular of the complainant to the office of the Op. Hence has prayed for the complaints against this Opponent may kindly be dismissed with cost. Both the parties have filed affidavits in lien of evidence and they have also produced some documents as per Annexure which are common and undisputed one therefore there is no need to go in-detail about the documents. Heard arguments of both the sides.

Now the points that arise for our consideration are:

1. Whether the complainants are entitled to the relief as is Sought for?

2. What Order?

Answers to the above Points:-

1. Affirmative.
2.  As per final order.

Point No 1:-

In all the cases the opposite party is one and the same though the complainants are different from one case to the other. The subject matter, the question of law and facts involved are one and the same. In order to avoid repetition of the facts and reasons and also to save the time we have taken up all the complaints together for passing common order as follows:-

That the Op had argued that as per para 10 (2) Employees’ pension Scheme 1995 the member has to Superannuates on attaining the age of 58 years and who has rendered service will be increased by adding a weightage of two years so as to determine the quantum of pension, as the Scheme stands weightage is to be given only from the year November 2015. Further argued that Para 32 of Employees pension Scheme 1995 the Central Government decides the revision in the quantum of pension if any under the scheme. The Government not released any further relief into effect from 01-04-2000 onwards. Therefore, the Complainants are not entitled to the above benefit and stated that there is no deficiency.

First of all we have to consider as to whether the service given by op is a service as is defined U/sec 2(1)(o) of the Act and as to whether the complainants are the Consumers U/sec 2(1) (d) (ii) of the Act. In this regard we would like to refer the decision of the Hon’ble Supreme Court of India reported in 2008 CTJ 563 (Between Regional Provident Fund Commissioner V/s Bhavani, wherein it has been held as under;

“The Regional Provident Fund Commissioner, who has been made responsible for working of the Employees Pension Scheme,1995 is a Service giver within the meaning of section 2 (1)(o) of the consumer Protection Act and the Pensioner availing his services comes squarely under the definition of “consumer” under its Section 2(1)(d)(ii)”. Therefore, we have no hesitation to hold that all the complainants are the Consumers U/Sec 2(1)(d)(ii) of the Act and the service given by the Op is a service U/Sec2(1)(o) of the Act. Further observed that, the period of limitation starts from the date on which the pensioners came to know that the pension that is being fixed/paid by the Op is erroneous. That means, when there is continuing wrong/recurring wrong, in such cases the cause of action starts from the date of knowledge not otherwise. In this regard Complainant counsel submits Hon’ble State consumer judgment in Appeal No 415 to 419 of 2008 dated 14/07/2008. When there is continuing wrong/recurring wrong, in such cases the cause of action starts from the date of knowledge. Therefore, the I.A. filed by the complainants in all the cases hereby allowed and we hold that there is no delay and question of limitation does not arise. No doubt those, the Complainants in all these cases are the former employees of  and after serving the above for a good number of years who retired from the service on attaining their age of superannuation. While they are in service, provident fund amount was being deducted out of the salary of the Complainants.

That the Op submitted one circular, as per circular dated 26-11-2013 and Corrigendum No Pen (A&C)/RP No: 867-880/2012/NCDRC/KN-Kallurappa/11827 dated 05-12-2013 two years bonus can be given where superannuation pension i.e., pension at the age of 58 years had commenced prior to 24-07-2009. Para 10(2) before this amendment read as “In case of the 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 adding a weightage of 2 years”. Para 10(2) after amendment read as “in case of the member who superannuates on attaining the age of 58 years, and who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years”. After amendment of Para 10(2), even in superannuation cases completion of 20 years pensionable service under Employees pension scheme 1995 is a must. As the Employees pension scheme, 1995 came into force on 16-11-1995; the 20 years pensionable service can be completed by any member only after 16-11-2015.

“The said amendment is not applicable to these Complainants, at the time of accepting his membership to the pension scheme, no such provision was there. This amendment is against to the objects of the scheme. These amendments are applicable only to the members who have taken members after amendment and who have already taken membership of the Pension scheme and paid the monthly contributions, these Circular is not applicable.”

It was argued by the Op undisputed fact are that all the complainants were the employees of their respective employers and during their employment they became the members of 1971 scheme and making contribution and after enforcement of 1995 scheme they continued to be the members by making the monthly contribution and now they have retired from service and Op has determined the pension payable to them which is under challenge in all these cases.

            The interpretation of Para 12(4) (a) and (b) and Para 12(4) of 1971 scheme was considered by Hon’ble High Court of Karnataka in a case of K. Chennakesavalu V/s The Employee Provident Fund organization, Rep by its Commissioner, New Delhi and others in a case reported in ILR 2004 KAR 2859 and the Hon’ble High Court of Karnataka has held as under;

 “In so for as past service in terms of Para 12 (4) (b) it provides for a minimum of Rs.600/- per month. It cannot be forgotten that Para 12 (4) (b) has to be read in the light of the main provision i.e.12 (4) itself. Para 12(4) provides for retirement benefits being equal to an aggregate of pension.”

Further we noticed that, complainants in all the cases have put in more than 20 years of service and they are entitled for weightage of two years and the same had not considered by the opposite party. But the counsel for the opposite party vehemently contended that, as per Para 10 of the Employees Pension Scheme 1995 those members who have put in 20 years of service or more from 16-11-1995 the fact of weightage is applicable, the pension has been calculated/fixed according to the paragraph 12 of the Employees pension scheme 1995 and stated that as per Para 10(2) of the Employees pension scheme 1995 the member has to superannuates on attaining the age of 58 years and who has rendered 20 years pensionable service or more his pensionable service will be increased by adding a weightage of two years so as to determine the quantum of pension. As the scheme stands, weightage is to be given only from November 2015 and vehemently contended that the complainants are not entitled to the above benefits. That the Complaint in on scrutiny of the material evidence available on record, we find that, admittedly the complaints were the employees of their respective employers and all are retired from service either on superannuation or voluntarily. In view of the above discussion, we hold that, the scheme 1995 is very clear and the law laid by the Hon’ble National commission and The Hon’ble state commission, Hon’ble District forum judgments, at the same time the Hon’ble Supreme court of India also considered the same issue. However, we find that, the Op despite of holding many number of judgments in their hand forced these senior citizens i.e., Complainants counsel submitted copy of judgments By considering the age of the Complainants and also the inconvenience caused to them for all these years, we hereby directed the Op as follows:-

The Op i.e. Asst. Provident fund commissioner, Regional office, Hubballi is hereby directed to recalculate the pension payable to the complainants in complaint are entitled for the benefit of minimum pension calculated with reference to para 12 and Table-B shown in the Employees’ pension Scheme 1995. The Hon'ble high court considered the similar facts of an employee directed the provident fund commissioner to correct the error. The above observation supported by the observation made by the Hon,ble High court of Karnataka in case K.Channakesavalu Versus the Employees provident Fund Organization represented by its commissioner, New Delhi and Others (ILR 2004 Kar 2859), wherein held that the pensioner are entitled for two years weightage under 10 (2) each complaint giving weightage of two years and also extend minimum assured benefits both in respect of past and present service with effect from the date of retirement of the each Complainant along with arrears of pension with interest at the rate 12% per annum and also directed to the Op to give annual reliefs as per paragraph 32 of the scheme 1995 to all the Complainants from the respective due date along with the interest at 12 % per annum. Apart from the above the Op is hereby directed to pay Rs 2000/- each to the Complainant in all the cases towards cost of the litigation expenses payment shall be made within 45 days from the receipt of this order. With this we answer point No 1 Affirmative.

Point No 2:- In the result, we proceed to pass the following:-

ORDER

C.C.Nos. 157to 161 of 2016  are allowed.

1. The Op i.e., Asst. Provident Fund Commissioner, Regional office, Hubballi is hereby directed to recalculate the pension payable to the complainants in each complaint giving weightage of two years and also extend minimum assured benefits both in respect of past and present service with effect from the date of retirement of the each complainants along with arrears of pension with interest at the rate of 12% per annum.
2. If Op have paid Arrears of pension in some cases without interest. That the Op is hereby directed to pay interest at the rate of 12% per annum in the above said cases with effect from the date of retirement of the Complainants.
3. And also directed to the Op to give annual relief as per paragraph 32 of the scheme 1995to all the complainants from the respective due date along with interest at 12% per annum.

IV.     Apart from the above Op is hereby directed to pay Rs 2,000/-(Rupees Two Thousand Only) each to the     complainant in all the cases towards cost of the litigation expenses, and mental agony. Payment shall be made within 45 days from the receipts of this order.

V.     Keep the original orders in complaint No 157/2016 and copies in other connected cases No.158 to 161 of 2016   and Opposite Party in all the cases are common. Since the complaints are 5 in Nos., both the counsels are directed to receive the certified copies instead of free copies in order to save time.