BEFORE THE  DIST.CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  29^th April 2015

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

1. Complaint No.: 13/2015
2. Complaint No.: 14/2015
3. Complaint No.: 15/2015
4. Complaint No.: 16/2015 
5. Complaint No.: 17/2015 
6. Complaint No.: 18/2015
7. Complaint No.: 19/2015
8. Complaint No.: 20/2015
9. Complaint No.: 21/2015 
10. Complaint No.: 22/2015 
11. Complaint No.: 23/2015 
12. Complaint No.: 24/2015 
13. Complaint No.: 70/2015 
14. Complaint No.: 71/2015 
15. Complaint No.: 72/2015 
16. Complaint No.: 73/2015 
17. Complaint No.: 74/2015 
18. Complaint No.: 75/2015

Complainant/s:     

Kallappa s/o.Vithal Kilaskar,

Age: 70 years, R/o. Waghmode Chawl, Near Dr.Khatib’s House, Nagashettykoppa,  Hubli 580023.

In CC/13/2015

Jaganath s/o.Bhimappa Palkar,

Age: 68 years, R/o. Gokul Road, Near KEB Office, Hubli 580030.

In CC/14/2015

Parashuram s/o.Yallappa Meharawade,

Age: 60 years, R/o. Dajiban Peth, Meharwade Chawl, Old  Hubli, Hubli 580024.

In CC/15/2015

Rajesab s/o.Peersab Nadaf,

Age: 59 years, R/o. Gangadhara Nagar, Plot No.11, Gamanagatti Road, Navanagar, Hubli 580025.

In CC/16/2015

Mahadevappa s/o.Veerabhadrappa Pattar,

Age: 62 years, R/o. H.No.EWS 228, Manjunath Nagar, Gokul Road, Hubli 580030.

In CC/17/2015

Arun s/o.Pandit Rao Date,

Age: 70 years, R/o. No.13, Rajaji Nagar, Devangpeth, Hubli 580023.

In CC/18/2015

Sharanappa s/o.Channabasappa Pasarada,

Age: 70 years, R/o. Basaveshwar Nagar, 9^th Cross, Haveri.

In CC/19/2015

Mahalingappa s/o.Kalaveerappa Masur,

Age: 67 years, R/o. Basaveshwar Nagar, 3^rd Cross, Haveri 581110.

In CC/20/2015

Laxman s/o.Marthanda Rao Chinnamulagund,

Age: 66 years, R/o. Vidyanagar (West) Behind LIC office, Haveri.

In CC/21/2015

Shivayogayya s/o.Gadigeyya Kundalamath,

Age: 69 years, R/o. Basaveshwar Nagar, B Block, 7^th Cross, Haveri 581110.

In CC/22/2015

Channayya s/o.Girimallayya Hiremath,

Age: 64 years, R/o. C/o.Shivanna, d.No.136, 1^st Main, 6^th Cross, Metagalli, B.M.Shree Nagar, Mysore 570016.

In CC/23/2015

Channabasappa s/o.Siddappa Mellalli,

Age: 65 years, R/o. Basaveshwar Nagar, A Block, 11^th Cross, Haveri.

In CC/24/2015

Shripad S/o.Ashwath Bhat Rajpurohit,

Age: 65 years, R/o. C/o. Biradar Building, Plot No.32, 1^st Cross, Sanman Colony, Behind New Bus Stand, Old Hubli 580024.

In CC/70/2015

Venkatesh S/o.Seetaram Kulkarni,

Age: 65 years, R/o. C/o. D.B.Fernandis, Indraprasta Nagar, III Cross, Anand Nagar Road, Old Hubli 580024.

In CC/71/2015

Mallappa S/o.Basappa Mannapur,

Age: 72 years, R/o. Plot No.53, , Indraprasta Nagar, II Cross, Anand Nagar Road, Old Hubli 580024.

In CC/72/2015

Gopichand S/o.Venkatesh Savasher,

Age: 70 years, R/o. Gudi Oni, Channa Peth, Hubli 580024.

In CC/73/2015

Puttappa S/o.Ramappa Hanagi,

Age: 74 years, R/o. Kalammana Agasi, Hubli 580028.

In CC/74/2015

Shivalingappa S/o.Parappa Hoolikatti,

Age: 73 years, R/o.# 24, Nagashettykoppa, Dodda Oni, Keshwapur, Hubli.

In CC/75/2015

                                (By Smt.G.Geetabai, Adv.)

v/s.

Respondent/s :         

The Assistant Provident Fund Commissioner (Pension), Employees Provident Fund Organization, Bhavishya Nidhi Bhavan, New Block No.10, Behind Income Tax Office, Navanagar, Hubli-580025.

(In person)

O R D E R

By: Smt.M.Vijayalaxmi: Member

1. All these three 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. The complainants have filed these complaints 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 complainants and  by extending the weightage of 2 years and  to pay the arrears with interest @18% P.A. along with other reliefs.
3. Complainants joined service in Vishweshwarayya Iron & Steel Plant, Bhadravati, Dist.Shimogga, Vilas Bidi Factory, Nippani, Dist.Belgaum, Sambar Bidi Factory, Nippani, Dist. Belgaum, in different posts.  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 complainants became members of Employees Pension Scheme 1995 since 15/11/1995 and they claim to have paid contribution as per the stipulations laid down in both the schemes till they retired, as such complainants are entitled to pension from the date of retirement. After retirement of the complainants, the respondent has fixed pension of the complainants which is mentioned in their PPO but the respondent has not taken into account the entire period of service rendered by them in calculating the pension correctly. Their past service is not considered, even weightage of 2 years is not given to them though they have served for more than 20 years, as such the pension amount of complainants 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 they are also entitled to interest on the arrears of amount apart from cost of the litigation.
4. In the written version the respondent has contended that the complainants were enrolled as members under the Employees Family Pension Scheme 1971 and thereafter become the member 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. 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 complaints are liable to be dismissed with cost. Further contended that complaints are barred by limitation.
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 complainants and respondent are 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 Complainants are as below

6. 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.
7. 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.
8. Complainants have produced quite number of correspondence letters with the respondent , even after that their monthly pension has not been fixed as claimed by them.
9. 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:

10. “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.
11. “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.
12. “Pensionable Service” means, the service rendered by the member for which contributions have been received or are receivable.
13. 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.
14. 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.
15. 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.
16. On perusal of the documents all these cases, complainants were members of Employee Family Pension Scheme 1971 and Employee Pension Scheme 1995.
17. In Compl.No.205/2014 in this case complainant has rendered past service was 21 years, actual service is 8 years, the age of exit was 57 years, age at 16/11/1995 was 48 years. In this case complainant rendered total eligible service was 29 years & not attained superannuate i.e. 58 years. The complainant retired from service on 31.03.2004 and date of commencement of pension 01.04.2004. Hence before amended scheme of Para.10(2) applied complainant is rendered more than 20 years of eligible service hence complainant is entitled to 2 years weightage. But at the time of retirement age of complainant was 57 years, hence as per para.12.7 of EPS 1995 in the pension amount 3% is deducted. Complainant age at 1995, 48 years. Hence as per old scheme para.12.4 is applicable considering that as per Para.12.4b minimum of Rs.600/- per month for 24 years of past service. Reduced proportionately for 21 years i.e. Rs.525/-. The complainant past service calculated this type, but respondent calculated as per para.12.3c Table.B factor less than 10 years 2.473 x 170=420. But this scheme  provisions given options i.e. pension calculated para.12(2) or 12.3a, 12.4a, 12.5a & past service calculated as per para 12.3c or 12.3b, 12.4b or 12.5b respectively. Whichever is more that is applicable. The complainant rendered past service was 21 years. Hence, as per para.12.4b complainant is entitled to Rs.525/- per month.  
18. In Compl.No.206/2014 in this case complainant has rendered past service was 16 years, actual service is 8 years, the age of exit was 54 years, age at 16/11/1995 was 45 years. In this case complainant rendered total eligible service was 24 years but he is not attained superannuate i.e. 58 years. The complainant retired from service on 01.10.2003 and date of commencement of pension 09.12.2003. Hence before amended scheme of Para.10(2) is applied complainant was rendered more than 20 years of eligible service hence complainant is entitled to 2 years weightage. But at the time of retirement age of complainant was 54 years, hence as per para.12.7 of EPS 1995 in the pension amount 3% is deducted. Complainant age at 1995, 45 years. Hence as per old scheme para.12.3 is applicable. Complainant prays pension amount as per para.12.3a it comes Rs.635/-. But respondent calculated pension amount as per amended scheme para.12.3a it comes Rs.438/-. But complainant date of commencement of pension was 09.12.2003. Hence before amendment scheme considered complainant is entitled to pension amount Rs.635/- as per para.12.3a and past service benefit complainant and respondent calculated as per 12.3c less than 13 years B factor 3.292 is correct. Hence respondent calculated 3.292  x 120=395 is correct. Hence complainant is entitled past service benefit Rs.395/-
19. In Compl.No.207/2014 in this case complainant has rendered past service was 14 years, actual service is 8 years 4 months 15 days, NCP days 31 days deducted it comes actual service was 8 years. Hence total eligible service was 22 years. Complainant not attained superannuate i.e. 58 years. The age of exit was 51 years, age at 16/11/1995 was 42 years. In this case complainant rendered total eligible service was 22 years but he is not attained superannuate i.e. 58 years. The complainant retired from service on 31.10.2003 and date of commencement of pension 12.01.2004. Hence before amended scheme of Para.10(2) applied complainant is rendered more than 20 years of eligible service hence complainant is entitled to 2 years weightage. But at the time of retirement age of complainant was 51 years, hence as per para.12.7 of EPS 1995 in the pension amount 3% is deducted. Complainant age at 1995, 42 years. Hence as per old scheme para.12.3 is applicable. Hence pension amount complainant prays para.12.3a Rs.635/-. But respondent calculated pension amount as per para.12.3a Rs.438/-. But complainant pension date of commencement of pension 12.01.2004. Hence before amendment scheme considered complainant is entitled to pension Rs.635/-. Past service benefit complainant calculated less than 15 years but respondent calculated less than 16 years but on perusal of the documents age of complainant at 1995, 42 years. Considered that less than 16 years is correct. Respondent calculated past service Rs.416/- is correct. Hence complainant is entitled past service benefit Rs.416/-.
20. The contention of the respondent that, complainants 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 these cases the complainants are entitled to 2 years weightage.
21. Past service benefit as provided the past service is 24 years, if it is less than 24 years, the pension and the past service benefit taken together shall be proportionately less subject to the minimum. Hence in these cases complainants rendered service accordingly past service benefit payable.
22. Respondent contended that complaints are barred by limitation but complainants contended that in the month of July 2014, March 2014, it came to the knowledge of the complainants through one of the colleagues that there are errors in the calculation 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 notice but, respondent not paid the revised pension amount. Hence, they have filed these complaints against the respondent.  They have produced appeal copy of 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 complaint. Considering that decision the complaints are maintainable.
23. The complainants pray for 18% 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. 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. So paying interest on the said amount does not arise and complainants not entitle for interest as claimed. But complainant is entitle for cost of the proceedings Rs. 1000/- in each case. 
24. The counsel for complainant has produced citations RP/3970/2009 NC & Appeal No.1256/09, CC/745/2008 Appeal No.415/08 to 419/08, 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. 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 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. AIR 1983 SC 1143= 1983 All LJ 516- Hon’ble Supreme Court held that no retrospective effect should be given to any statutory provisions so as to impair or take away an existing rights.  Considering these decisions retrospective effect applying not proper.
25. In view of the above said reasons the point.1 is answered in affirmative  and point.2 in affirmative but accordingly.
26. Point:3: In view of the finding on points 1 and 2 proceeded to pass the following

O R D E R

CC/205/2014, 206/2014 and 207/2014 are allowed in part. In these cases complainants are entitled to 2 years weightage along with past service 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) (a, b & c),  Rule 12 (4) (a & b) and R/w. Rule 10 (2) of Employees Pension Scheme 1995 apart from giving past service benefit from the date of their retirement and balance pension amount be paid to each complainant within two months from the date of receipt of copy of this order, apart from paying Rs.1,000/- in each case as cost of the litigation 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.13/2015 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    day of March 2015)

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

Member                                                      President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR