BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                   Dated this the 20^th March 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT. LAVANYA M. RAI                    : HON’BLE MEMBER

ORDERS IN

C.C.No.18/2016

(Admitted on 12.01.2016)

Mr. H. Mohammed,

S/o Late Hasanabba,

Aged about 65 years,

R/at Kadabettu House,

& Village, Vogga Post,

Bantwal Taluk.

                                                         ….. COMPLAINANT 

(Advocate for the Complainant: Sri NBPR)

VERSUS

1. The Asst. Provident Fund Commissioner,

    Office of the Employees Provident

    Fund Organization,

    Sub Regional Office,

    Bhavishyanidhi Bhavan,

    P.B. No. 572, Silva Road,

    Highlands, Mangalore  2.

                                          …......OPPOSITE PARTY

(Advocate for the Opposite Party: Sri JRN)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

     The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant was a Beedi Roller as per P.F. Account had in Southern India Beedi Works Pvt Ltd and had an EPF 1995 account retired from service on 01.10.2008 his ill health and date of birth is 01.10.1950. The claim for granting pension under EPS 1995 was rejected as his service was less than 10 years.  He ought to have been given necessary benefits.  The claim made by complainant with opposite party was repudiated.  Hence seeks relief claimed in the complaint.

II.     Opposite party in the written version mentions the service rendered by complainant being less than 10 years.  The representation for monthly pension was replied in the negative.  Issue of certificate for benefit was in error.  The scheme certificate was issued on 24.09.2009 after complainant attained the age of 58 years, under para 14 (1) if the member has not rendered eligible service for pension in para 9 on the date of exists on or before 58 years would be entitled as per table (b) may be issued scheme certificate.  By referring to para 9 (b) of scheme of 1995 opposite party claims complainant is not entitled for the benefits claimed for.

2.     In support of the above complainants Mr. H Mohammed filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C5 as detailed in the annexure here below.   On behalf of the opposite party Mr. V Husenappa (RW1) Assistant P.F. Commissioner (Pension), also filed affidavit evidence and answered the interrogatories served him and produced documents got marked Ex.R1 as detailed in the annexure here below.

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

       The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by the parties and notes arguments of the parties.   Our findings on the points are as under follows

               Point No.  (i): Affirmative

              Point No.  (ii): Affirmative

              Point No. (iii): As per the final order

REASONS

IV.   POINTS No. (i):    The complainant was a member of the Employees Pension Scheme 1995 is not in dispute.  Opposite party being the Employees Pension Scheme authority is the service provider the claim of complainant for pension was rejected by opposite party.  As such there is live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

POINTS No. (ii):    The total service rendered by the complainant as calculated by opposite party in the written version is past service 1 year 3 month and 14 days and eligible service 8 years 6 months and 15 days total 9 years 9 months and 29 days only which is less than 10 years. 

2.     Opposite party referring to para 9 of the Employee’s Pension Scheme 1995 mentions that he is not eligible for benefits.   Para 9 (a) and (b) reads thus:

9. Determination of eligible service:

(a) In the case of new entrant the actual service shall be treated as eligible service.  The total actual service shall be rounded off to the nearest year.  The fraction of service for six months or more shall be treated as one year and the service less than six months shall be ignored.

Explanation.

In the case of employees employed seasonally in any establishment the period of actual service in any year, notwithstanding that such service is less than a year shall be treated as a full year.

(b) In the case of the existing member the aggregate of actual service and the past service shall be treated as eligible service.  Provided that if there is any period in the past service for which the contributions towards the Family Pension Scheme, 1971 has not been received, the said period shall count as eligible service only if the contributions thereof have been received in the Employees Pension Fund.

Explanation: For the purpose of this sub-paragraph the total past service for less than six months shall be ignored and the total past service for six months and above shall be rounded to a year.   

As seen from the explanation to para 9 (b) in respect of consideration the total past service for less than 6 months aggregate and the total past service for 6 months and above shall be rounded to nearest year.   Thus out of past service of 1 year 3 months 14 days the fraction of less than as to be excluded and it should be added to the actual service of 8 year 6 months and 15 days.  Hence the total service comes to, considering the entire past and actual service to 9 year 6 months and 15 days and it is less than 10 years service. 

3.     In the written version opposite party by referring to notification of 21.8.2009 once the Forum to give up the past service which is less than 6 months under rule 9 (b) and to round off to the nearest year in the total service in excess of 6 months.

4.     However the learned counsel for complainant pointed out under the para 9 (b) if the service is more than 6 month to be round up to a year.  That is considering his total service comes to 10 years.  It was point out by learned counsel for complainant this provision of Employees Pension Scheme 1995 cannot be undone by way of Government Notification as per Ex.R1. 

5.     Reference was made by learned counsel for complainant to a reported judgment K.B. Lokesh & Others v/s The State of Karnataka ILR 2014 KAR

1608 wherein it is held that no direction can be issued based on the circular and any excluding instruction or the Government Order cannot be prevailed over this statutory rule.

6.      As seen from para 12 of the scheme reads:

Monthly Members Pension 

1. A member shall be entitled to:                                                                                                                                                    (a)Superannuation pension if he has rendered eligible service of 10 years or more and attaining the age of 58 years​                          (b)early pension, if he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years;
2. In the case of a new entrant the amount of monthly superannuation pension or early pension, as the case may be, shall be computed in accordance with the following factors, namely:

Monthly members pension = Pensionable salary X Pensionable service

                                           .........................................................................                                                            

                                                                    70

3. In the case of an existing member in respect of whom the date of commencement of pension is after 16^th November 2005:        (i)Superannuation/early pension shall be equal to the aggregate of:                                                                                        (a)Pension as determined under sub paragraph (2) for the period of Pensionable service rendered from the 16^th November, 1995 or Rs. 635/  per month whichever is more;                                                                                                                                                  (b) Past service pension shall be as given below:

The past service pension payable on completion of 58 years of age on 16.11.95

The amount under column (2) or column (3) above, as the case may be shall be multiplied by the factor given in table B corresponding to the period between 16.11.95 and the date of exit to arrive at past service pension payable.

2. The aggregate of (a) and (b) calculated as above 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
4. In the case of an existing member and in respect of whom the date of commencement of pension is between 16^th November, 2000 and 16^th November, 2005
5. the superannuation/early pension shall be equal to the aggregate of:
6.      pension as determined under sub paragraph (2) for the period of service rendered from the 16^th November, 1995 or Rs.438/ per month whichever is more;
2.     Past service pension as provided in sub paragraph (3)
2. The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.600/ per month provided the eligible service is 24 years.  Provided further that if it is less than 24 years the pension shall be proportionately less subject to the minimum of Rs.325/ per month.

7.     However as to what should be the eligible service is to be considered as stated at para 9 is already mentioned.  Considering the explanation to para 9 (a) and (b) as pointed out for complainant the claim of complainant that he has completed the 10 years of service and as such entitled for pensionary benefits is liable to be upheld as actual service of 8 years 6 months 16 days and past service of 1 year comes to 9 years 6 months 16 days.  As this is 9 year 6 months plus, it shall be construed as 10 years service as per explanation to para 9 (b).

8.     In the circumstance we are of the view that opposite party shall be directed to pay the admissible pension of the complainant and by calculating the same and also towards mental agony, harassment, loss and inconvenience a sum of Rs.10,000 as compensation.  Advocate fee fixed at Rs.3,000/   Hence we answer point No.2 in the affirmative.

POINTS No. (iii): Wherefore the following

ORDER

     The complaint is allowed with cost.  Opposite party is directed to pay pension to complainant by determining the pension due to the complainant by reckoning the year of service as 10 year as mentioned in the para 9 of the Employees’ Pension Scheme 1995.

2.    Opposite party is further directed to pay interest at the rate of 12% per annum to complainant as contemplated under para 17A of Employees Pension Scheme 1995.

3.     Opposite party is also directed to pay Rs.10,000/ (Rupees Ten thousand only) as compensation to complainant.

4.     Advocate fee fixed at Rs.3,000 (Rupees Three thousand only).

5.      The above amounts shall be paid within 30 days from the date of receipt of copy of this order.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 9 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 20^th March 2017)

              MEMBER                                                    PRESIDENT

      (LAVANYA M. RAI)                           (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                  D.K. District Consumer Forum

             Mangalore.                                               Mangalore.

ANNEXURE 

Witnesses examined on behalf of the Complainant:

CW1  Mr. H Mohammed

Documents marked on behalf of the Complainant:

Ex.C1: The copy of the Scheme Certificate

Ex.C2: The office copy of the Legal Notice dated 12.11.2015

Ex.C3: The Postal Receipt

Ex.C4: The Postal Acknowledgement

Ex.C5: The Reply Notice dated 30.11.2015 issued by the Opposite party to the complainant.

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. V Husenappa, Assistant P.F. Commissioner (Pension)

Documents marked on behalf of the Opposite Party:

Ex.R1: Copy of the circular dated 05.11.2009 issued by Additional Central PF Commissioner (Pension).

Dated: 20.3.2017                                          PRESIDENT