BEFORE THE DISTRICT CONSUMER      

       DISPUTES REDRESSAL FORUM, DHARWAD.

COMPLAINT NO.217/2016

Date: 8^th day of March- 2017

                         P r e  s e n t:                             

Smt.C.H.Samiunnisa Abrar, B.A., LLB   :  President

Sri.B.S.Keri, B.A., LLB (Spl)                  :   Member

Opposite Party      :-   The Assistant Provident Fund

   Commissioner, (Pension),    

   Employees Provident Fund

   Organization Bhavishya, Nidhi

   Bhavan, New Block  No.10,

   Behind Income Tax Office,

   Navanagar Hubli. 580025.

                                    (Rep. by Sri. G.B.Patil, Adv.)

JUDGMENT DELIVERED BY

Hon’ble SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

   The complainant has filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP.

2.      The brief fact of the case is that the Complainant was an Ex-employee of M/S Pistol Beedi Works Pvt Limited, Nippani. The complainant was enrolled as a member of OP’s-Organization under the provident fund scheme 1952. And Op allotted a PF account No: KN/6247/245. The Govt introduced the Pension Scheme known as Family Pension Scheme in 1971 with effect of 01.03.1971 with a same account number the contribution made by the Complainant was transferred towards the employees family pension scheme 1971 prior to the employee’s pension scheme 1995.  

3.     The OP himself maintained the account of both schemes under 1 account and Complainant was appointed for employment in the year 1977 and retired in 1999 on attaining the age of 58 years, the Op issued PPO No. KN/HBL/13058, the Complainant has rendered a past service of 18 years prior to 15.11.1995 after these he rendered 4 year service in total he has rendered 22 years of service and further Complainant submits that Complainant is entitled for reliefs accordance with Para 12 (5) (a) and (b) RW Para 10(2) of employee pension scheme and to pay a balance amount of Rs. 41610/- with interest along with other compensation. 

WRITTEN VERSION OF OP

4.     The sum and substance of the contentions of OP is as follows;

In the Written Version the OP has contended that the complainant was enrolled as a member under the Employees Family Pension Scheme 1971 and therefore become the member of the scheme 1995 till his retirement. Complainant left the service on 31.05.1999. The pension is regularly paid till today, after lapse of more than 17 years, the complainant has made a claim for the revision of pension along other things by allowing 2 years weightage and the pension payment order No: KN/HBN/13058 on 05.01.2001. Hence it is barred by limitation it is liable to be dismissed on this ground.

5.     The OP submits that the Forum has jurisdiction to try the complaint, but Op is already paying the pension amount. This sought for correct interpretation of provision of Para 12 of the P.F. Rules and submits that the Hon’ble Forum cannot interpret the act and rules and hence it cannot adjudicate the present types of disputes.   

6.     Accordingly amendment to the Sec. 5 (1) 7 of E.P.F. and M.P Act 1952 (19 of 1952) accordingly amendment to the section 10 (2) of employee pension scheme was made vide GSR 594 dated: 20.03.2007 with effect from 24.07.2009 similarly Para 12 of EPS 1995 came into force i.e. from 16.11.1995. Similarly Para 12 of EPS 1995 was also amended vide GSR 431 dated:15.06.2007.

7.     In the light of the above amendment, the OP has fixed the pension of the complainant, it is correct. It is pertinent to mention here that the amendment as cited above have been brought by way of amendment passed by the Parliament of India. The Supreme Court cannot challenge any amendment passed by the Parliament of India under the 42^nd Amendment, the supremacy of Parliament had been established. The Hon’ble Supreme Court gave his historical judgment in the case of C.Keshav Nanda Bharati V/s State of Kerala AIR 1973 (SC) 1461 upholding 24^th amendment of Constitution and gave back to the Parliament right to amend any part of the constitution including fundamental rights without affecting its basic structure. The Hon’ble National Commission, State Commission, High Court and Supreme Court cannot interpret the provision of EPF and Misc. Act, 1952. The purpose for which the amendment were passed with retrospective effect i.e. w.e.f. 16.11.1995.

8.      The complainant is an Ex-employee of the piston Beed workers private limited, Sakharwati, Nippani, Dist Belgaum. and the complainant was enrolled as a member under the EPS 1977 and thereafter to EPS 1995, and complainant left the service in 1999.

9.     The complainant was a member of EPF Scheme 1971 he come under the definition of existing Member as per 6 (b) of EPS 1995. The pension is calculated in two parts being past service, the period from joining the EPS 1971 till 15.11.1995 and pensionable service from 16.11.1995 till exist. As a member pension commence from 11.10.2003 his pension is required to be fixed as per 12 (4) of EPF Scheme 1995.

10.      As such the past service computed as per Para 12 (4) (i) (b) of EPS 1995 by taking the service rendered from 01.06.1975 to 15.11.1985 and from 16.11.1995 to date of cessation i.e.10.10.2003. Pension is computed is as per Formula. The complainant has not understood the provision of EPS 1995. The complainant has been wrongly calculated the pension mention for his advantage. Hence, complaint has to be dismissed with costs.

11.      As per Para 2 (1) (xii) of Employees Pension Scheme 1995, the Past Service means, the period of service rendered by an existing member from the date of joining the Employee Family Pension fund till 15.11.1995. As per Para 2 (1) (ii) “Actual Service” means the aggregate of period of service rendered from the 16^th November 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.

12.      There is no minimum pension for past service benefit but minimum pension is provided for aggregate of past service and pensionable service together.  In this case, the minimum pension for past service and pensionable service together is Rs.600/-. Since the applicable pension is more than the minimum provided, Rs.1241/- sanctioned is as per Scheme provision.

13.     The Complainants has claimed pension contrary to Para-12 of the Employees’ Pension Scheme, 1995 by applying Table-B of the Employees’ Pension Scheme. As can be seen from Para-12 of the Scheme a member is entitled for past service benefit corresponding to the period between 16^th November, 1995 and the date of exit. In the present case, the OP has claimed past service benefit wrongly.

14.     No pension relief is announced by the Central Government from 01.04.2000 onwards.

15.     On the combined reading of the pensionable service as defined under Paragraphs 2 (xv) of the Employees Pension Scheme and Paragraphs 6.2.9 to 6.2.13, of the Manual of Accounting Procedure (cited in the Written Version) it is evident that a Member is not entitled for counting of service rendered prior to enactment of Employees Pension Scheme, 1995 for the purpose of adding benefit of 2 years weightage while calculating the pension. That mechanism for calculation of pension is provided in the Manual of Accounting Procedure. The Appellant is under mandate to calculate and pay pension only as per the procedure prescribed by the Central Government. Therefore, the Complaint of the Complainants is liable to be dismissed in limine.

16.       Further OP submits that, The Judgement in ILR 2004 Kar. 2859 referred in the Complainants was passed prior to the amendment to Para 12 (4) whereas the notification to the amendment to Para 12 is effective retrospectively from 16.11.1995 (Copy Enclosed at “A”) (the date from which Employees’ Pension Scheme 1995 came into force) and as such is not applicable to this case. Further, the Hon’ble Supreme Court while disposing the Civil Appeal No.3174 of 2007 relating to the case have order that “Delay Condoned” “The Civil Appeals and the Special Leave Petition are dismissed. However, the question of law is kept open”.     

17.     In the background of the above said pleadings, the Complainant filed his affidavit and produced the documents. They are:

1. Pension Payment Order,

2. Particulars of Pension,

3. Notice,

4. Postal acknowledgment

18.      On the other hand, Op filed the Written Version one Sri. Mohammad Majaz S/o T.M.Mytheenkutty the Manager, Asst. Provident Fund Commissioner (Legal), Employee Provident Fund Organization, Bhavishya Nidhi Bhavan, New Block No.10, Behind Income Tax Office, Navanagar, Hubballi filed Chief Affidavit by way evidence and filed documents, Circular from EPFO three in number.

19.     on perusal of above documents and arguments heard on both the sides, the points arises before us for adjudication are as follows:

Our Answer to the above Points are:-

Point No.1 – Negative,

Point No.2 –  Affirmative,

Point No.3 – Partly Affirmative,

Point No.4 - As per the final order.

20.       On consideration of pleading, objection, evidence, documents and arguments of the parties, we answer the above points as under:

DECISION AND REASONS

21.  POINT NO.1: The Complainant filed this complaint against the OP for seeking order for re-fixation of pension as per 12 (5) (a) and (b) R/W Para 10(2) of the employees’ pension scheme 1995 and to pay the difference of pension between the pension revised and pension already paid till the date of the revision of pension and also continued to pay the revised pension and other relief as balanced pension amount and Rs.10,000/- towards costs of the litigation and Rs.20,000/- towards the damages. Hence, OP strongly objected that the complaint filed by the complainant is barred by limitation and submits that it is filed after a lapse of more than 17 years. While filing the complaint, advocate filed I.A. for condoning the delay. This is the first and foremost important point to decide this Forum about the limitation point. We relies on Judgement of Hon’ble Karnataka State Consumer Disputes Redressal Forum, Appeal No.415/2008 to 419/2008 held that as under.  “In our view dismissing the complaint on the ground of delay is not correct because the date on which the pensioners came to know that the pension that is being paid to them is not properly fixed is the date of cause of action so as to maintain the complaint.” As such the period of limitation start from the date on which the complainant came to know that the pension i.e. paid to him is not properly fixed from the date of cause of action, so as to maintain the complaint considering the decision the complaint is maintainable. Hence, we answer the Point No.1 in negative.   

22.  POINT NO.2 AND 3: Since point No 2 and 3 are identical and interlink we-proceed both the points together to avoid the repetition of the fact.

        In this complaint as stated supra the Op has not fixed the pension properly these are the contention of the complainant the Op Opposed the same on going through the documents on record C1 PPO are as follows:

PENSION PAYMENT ORDER

(PENSIONER’S PORTION)

PART-1

P.P.O. No: KN/HBL/13058

Particulars of member of the Employee Pension Scheme, 1995

23.         The case of the complainant is that, the OP has not paid him the revised pension, applying appropriate paras as per the employees’ pension scheme 1995. But there is no dispute on present benefits. Here as per 12 (5) (a) and (b) it says that, In the case of an employee who was a member of the ceased family pension scheme, 1971 and who has attained the age of 53 years or who has rendered 16 years pensionable service or more, on 16^th November- 1995, the superannuation/retirement pension shall be equal to the aggregate of ;

1. Pension as determined under sub-paragraph (2) for the period of service tendered from the 16^th November- 1995 per month or Rs.335/- per month whichever is more.
2. Past service benefits provided in sub-paragraph- (3) subject to the minimum of Rs.500/- per month, provided the past service is 24 years, provided further that if it is less than 24 years the pension payable and the past service benefits shall be proportionately lesser but subject to the minimum of Rs.265/- per month.

 Here have to look after that, the complainant filed this complaint for revised pension and re-fixation of the pension before proceeding to discuss, it is necessary to say the importance of the pension, pension is not a charity nor it is a bonus. It is a valuable right which an employee’s earns for his retirement. In a decision reported in AIR 1971 Supreme Court page-1409 in Deokinandan Prasad V/s. State of Bihar it has been held in respect of a Government Servant as under.  Pension is not a bounty payable on the sweet will and pleasure of the Government and that on the other hand, the right to pension is a valuable right vesting on a Government Servant.

24.        The Complainant here is also had contributed a portion of his wages towards pension fund. Thus with his sweat and hard work. In this context it may also be useful to refer yet another decision of the Hon’ble Supreme Court reported in (2011) Vol-10, Supreme Court Cases page-727 in EPF Provident Fund Commissioner vs. Official Liquidator. In that reported decision the Hon’ble Supreme Court referring to the scope of EPF Act held as under.

25.        EPF Act is a Social Welfare Legislation intend to protect the interest of the weaker section of the society i.e. the workers employed in factories and other establishments who have made significant contribution to the economic growth of the country. The workers and other employees provide services of different kinds and ensure continuous production of goods, which are made available to the Society at large. Therefore, a legislation made for their benefit must receive liberal and purposive interpretation keeping in view the Directive Principles of the State Policy contending article 38 and 43 of the constitution of India.”

26.                The above said decision of the Hon’ble Supreme Court shows that a liberal approach has to be adopted while interpreting the legislations keeping in mind the purpose is to benefit the workers. Thus, keeping in view the principles laid down in the afore said decision of the Supreme Court and also the meaning and scope of pension as stated above, now we have to examine the entitlement or other wise of the complainants for the reliefs sought in the complaint.

27.        For the purpose deciding whether the pension fix is proper or not, after filing this OP filed that, he have already revised the pension of the complainant and also paid the 2 years waitage to complaint. Complainant was retired in the year- 1995 on attaining the age of 58 years. And also he had rendered the service more than. 20 years. The Hon’ble Apex court case aroura, EX-caption. Vs. State of Haryana said that the Government did not taken accorded rights of such person that bringing the amendment after rules the retrospective. It is clear that the complainant. Retrospective effect to be given while fixing the P.F. in respect of the employees who had retired prior to 15.16.2011 that is prior to the date of amendment. To put in other way the law or the rules which was reviling as the date of retired of employees concerned will be the guiding factor to the pension. In this context it is not to be out of context referred to decision of the Hon’ble Supreme Court with regard to the retrospectivity in application of an enactment. Decision  reported in AIR 1984 Supreme Court-161 in State of Gujarat V/s. Ramanlal Keshavalal Soni Wherein the Hon’ble Supreme Court has observed para 52 as under.

28.        The legislation is pure and simple, Self-deceptive, if we may use such an expression with reference to legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and don’ts of the constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today’s rights and not yesterday’s a legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the much of events and the constitutional rights accrued in the course of the twenty years. That would be more arbitrary, unreasonable and a negation of history. Today’s equals cannot be made unequal’s by saying that they were unequal’s about 20 years ago and we will restore that position by making law today and making it retrospective, constitutional, rights, Constitutional duties and constitutional obligations cannot be tampered with that way.’’

29.     The above said judgment of the Hon’ble Supreme Court has been referred to in AIR 1987 Supreme Court page- 1858 referred to in the above paragraph. It may not be out of place to refer to another important decision of the Constitutional Bench reported in AIR Supreme Court page-3828 on the same point in Chairman, Railway Board and others v/s C.R.Rangadamaih and others.

30.     It is needless to say that as per article 142 of the Constitution of Indian the law declared by the Supreme Court is binding on all courts and tribunals throughout the country. Thus in all the above said decisions of the Hon’ble Supreme Court the “Law declared’’ is that no retrospective effect could be given to a statue so as to take away rights or benefits already accrued under the un-amendment statute. This is the ratio decided and it is binding on all of us. Therefore the conclusion would be that, in a case of an employee the pension will have to be fixed according to the rules in force on the date of his retirement. All rights accrued to him on the date of his retirement will have to be taken into consideration. This principle has also been laid down in the decision of the Hon’ble Supreme Court a AIR 1984 Supreme Court page-1905 in Salabuddin Mohammed Yunus vs State of AP in which a reference has been made to AIR 1971 Supreme Court, page-1409 i.e. Deokinandan Prasad’s case and held as under.

31.     The Fundamental right, to receive pension according to the rules in force on the date of his retirement accrued to the appellant when he retired from is service. By making a retrospective amendment to the said rule 299(1) (b) more than 15 years after right had accrued to him, what was done was to take away the appellant right to receive pension according to the rules in force at the date of his retirement or in any event to curtail and abridge that right. To that extent the said amendment was void.’’

32.     Thus the perusal of the above referred reported judgments of the Supreme Court which includes the Judgment of the Constitutional Bench also clearly shows that an amendment cannot be effected to a statute including the rule or a notification by giving a retrospective effect so as to take away the right already accrued or available to the employee as on the date on which he retires. The above said ruling of the Hon’ble Supreme Court AIR 1971 (SC) page-1409 is a clear declaration to effect that an employee is entitled to the pension and other retrial benefits as per the rules prevailing as on the date of his retirement from service and such a right cannot be taken away on a later date by giving a retrospective operation. If this principle is applied to the case hand it can easily be said that the deemed retrospectively of the application of the substituted para-12 of the EPS Scheme 1995 with effect from 16.11.1995 is not proper and therefore as rightly contended by the learned advocate, the retrospective operation of the substituted para-12 cannot be given to those complainant who have retired prior to 15.06.2007 i.e. the date on which para-12 came to be substituted. Hence the contention taken by the opponent with regard to the retrospective application of amendment para-12 of Scheme cannot be accepted.

33.     Taking in to consideration all aspects 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 by adding provision. The considering these decisions retrospective effect applying not proper because which affects the constitutional rights of the citizen and object and name of the scheme is beneficial to the workers. The time of entering in to 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.

34.     Taking all these aspect in to in consideration we are of the view that the complainant way entitled for relief as sought in the complaint partially.  Hence we answer the point No 2 is affirmative and point No3 is in partially affirmative.

POINT NO.:4. In the view of above discussion we are in the considered view that the complaint filed by the complainant is to be allowed, of course in part. In the result, we pass the following final order.

  -:ORDERS:-

      1. The complaint filed by the complainant is partly allowed.

1A)   The OP is hereby directed to re-fix the  pension of the complainant calculating  the past benefit as per the EPS -1995 keeping in mind the observation made in the body of this order and following the law/rules as applicable Governing the fixation of the pension and issue revised  pension payment order to the complaint.

2.       The OP is hereby direct to pay to him arrears of payment payable on account of re-fixation of pension, together with interest calculating at the rate of 10% per annum from the date on which the complainant his eligible till of payment.  

3.       Further op is directed to pay a sum of Rs.2000 towards litigation expenses.

4.     The op is hereby directed to comply the above directions within 3 months from the date of this order failing which the opponent shall be liable to pay a further additional interest of 2% p.a.

5.    Send a copy of this Order to both parties free of cost.