BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM, BAGALKOT. 

COMPLAINT NO.21/2018
 

DATE OF FILING: 24/01/2018

DATE OF DISPOSAL : 10^th day of May, 2019

P r e  s e n t:    

01) Smt.Sharada.K.                                   President…

     B.A.LL.B. (Spl)  

02) Smt. Sumangala.C.Hadli.                     Lady   Member…

                            B.A (Music)

                                                                       V/s.      

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

      This case is filed by the above complainant U/Sec. 12 of the Consumer Protection Act 1986 (Herein after referred to as the “Act”) against the Opposite parties (in Short the Ops) for directing the Op No.1 to revise the 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  12% 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 and other relief as the Forum deems fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant was working in NWKRTC, Bagalkot and he was voluntary retired from the service on 03/02/2012. The complainant join the service of the opponent in the year 1982. In the year of 1971 the department of Opponent No.1 introduced the pension scheme namely Family Pension Scheme 1971 w.e.f. 01.06.1971. That the membership to the Family Scheme was optional and the complainant was opted to join the Family Pension Scheme introduced by the Opponent No.1’s department. The membership to the said scheme was accepted by the opponent No.1 and the family pension account number was allotted to him. Thereafter the opponent No.2 deducted the monthly subscription of the said scheme from the monthly salary of the complainant and so deducted amount was remitted to the office of the opponent No.1 and It is further contended that the Complainant’s counsel stated in the year 2017, it came to the knowledge of the complainant’s through one of his colleagues that there are errors in the calculation of pension fixed to him. It also came to his knowledge that pension paid to him is lesser one that the complainant is entitled. Immediately, the complainant has given representations to the Opposite party for the revision of the monthly pension, but the Opposite party failed to comply the same.

It is further stated that, Complainant was working as employee under Op No.2 from different dates and while he was in service he was the member of “The Employees of Family Pension Scheme 1971” (for short 1971 Scheme)and making contribution towards the Scheme and later on “The Employees Pension Scheme 1995” (for Short”1995 Scheme”) was introduced and brought into force with effect from 16^th day November of 1995 which was compulsory one and after commencement of the said 1995 scheme the complainant continued to be the member of the scheme by making monthly contribution and subsequently he retired from service. Op No.1 in this case is functioning under the “Employees provident Fund and Miscellaneous Act 1952 and fixed the monthly pension of the complainant. But however now the complainant has came to know that the fixation of his pension is not in accordance with the scheme and he has not been given two years of weightage as per the 1995 scheme in spite of his repeated request and issuance of the notice and this amounts to deficiency in service and further it is also alleged that the Op No1 has not given the Annual Relief which is to be given under Paragraph 32 the 1995 scheme etc., and hence complainant has prayed for giving necessary direction to the Op No1 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 complainant 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 complainant and to pay arrears with interest at the rate of 12% p.a.

c) To pay the arrears of Rs.88,856/- accumulated till Nov-2017 with interest at the rate of 12%p.a.

d) To give annual relief from 2012 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 complainant as per the scheme in revised scale and also claimed such other and further reliefs.

f) The Hon’ble court be please to award the compensation amount of Rs.40,000/- towards the mental agony and harassment.

g) Pass the order to pay cost of Rs 10,000/- and also to award the compensation towards mental agony.

            2) For the purpose of convenience we would like to incorporate the memo of calculation supplied by the complainant which is part of the complaint under Annexure –“A” which are as under;

Memo of Calculation in C.C.No. 21/2018

1. Calculation of the Pension for the Period from 15-11-1995 till the date of retirement (as per the paragraph No.10 R/w 10(2):-

       Rs.6,500/- X 16 years of Present Service+2 years weightage= Rs.1671/-

2. Calculation of Pension for the past service (as per paragraph 12(5) (b) and Table B shown in the Employees’ pension scheme:-

Age of the complainant as on 15-11-1995 was 35 years.

58 years – 35 years = 23 years.

Therefore factor shown in the Table B at the column “less than 23 years 8.537 is applicable. Since the past service of the complainant is 10 years, multiplier 85 is applicable.

8.537 x 85 = Rs.726/-.

Rs. 1671+ 726 = 2,397/-

Entitle pension amount is Rs.2,397/-

Paid amount is Rs.1,488/-

Difference Amt. Rs. 909/-

Rs. 909 x 69 months (From 03/02/2012 to 03/11/2017)

= Rs. 62,721/+12% p.a. interest i.e. Rs.5,227/-

Rs. 5,227/- X 05 years = Rs.26,135/-

Rs. 22,721+26,135 = Rs.88,856/-

Total Arrears=Rs.88,856/-

3)  After receipt of Notice, O.P.No.1 appeared through his counsel and filed Objection alongwith documents. After receipt of Notice O.P.2 filed vakalat and objection.

 The Objection of OP.1 is as follows:

Op No.1 is the main contesting party in this case, Op No 1 Counsel filed Vakalat and objection. O.P. contended that the complainant was an ex-employee of NWKRTC, Bagalkot. The complainant was enrolled as member under the Employees Family Pension scheme 1971 with effect from 07.04.1985 with an account No.GB/RCH/989/W/245 and thereafter became the member of the Employees’ Pension scheme with effect from 16.11.1995 in terms of para 6 (b) of the Employees’ Pension scheme 1995 and complainant left the service on 03.02.2012. The pension is regularly paid from 03.02.2012 till date. After a lapse of more than 04 years the complainant has made claim for revision of pension by allowing 2 years weightage. The pension payment order in respect of the complainant was prepared vide PPO No.GB/GLB/21283 from 03.02.2012. complainant case is unjustified and hopelessly barred by time limitation and is liable to be dismissed on this ground.  O.P. further contended that complainant is trying to interpret the law to suit his interest without any substantive basis.  There has been no deliberate attempt by O.P.1 withheld any benefits. O.P. No.1 is an authority working under statute and has made no attempts to withhold the benefits deliberately to the complainant. It is humbly prayed the Hon’ble Forum to dismiss the prayer of the complainant as there is no provision in Employees’ Pension Scheme, 1995 is meant for settlement of claims, complete in all respects submitted along with the requisite documents received from the beneficiaries and complainant’s claim in Form No.10D has been settled and he has been issued with Pension Payment Order bearing No.GB/GLB/21283 by sanctioning the monthly member pension at the rate of Rs.1488/- p.m. from 03.02.2012. Therefore, the question of paying 12% interest per annum does not arise. O.P. No.1 is not the competent authority to give annual relief to the complainant. The competent authority to declare annual relief is Government of India and no annual relief has been declared since 31.03.2000.  The complainant is drawing pension under Employees’ Pension Scheme, 1995 since 03.02.2012. Hence there is no question of paying any annual relief after 31.03.2000. Hence there is no question of paying any annual relief to the complainant. O.P.1 further contended that this Hon’ble Forum is having Jurisdiction to try the complaints regarding the deficiency of the service as defined under consumer protection Act. However in the present case the respondent Provident Fund Authority has already given service to the present complainant. However the complainant is seeking interpretation of the provisions of the provident fund Act. They have sought for correct interpretation of provisions of para 12 of the Provident Fund rules. It is humbly submitted that this Hon’ble Forum cannot interpret the Act and rules and hence adjudicate the present type of disputes.

         O.P.No.1 further contended that the respondent has fixed the pension of the applicants and it is correct. It is pertinent to mention here that the amendments as cited amended vide GSR 431 (E) dated 15.06.2007 have been brought by way of amendment passed by parliament of India. The Supreme Court cannot challenge any amendment passed by parliament of India. Under the 42^nd Amendment the supremacy of the parliament has been established. The Hon’ble Supreme Court gave this historic judgment in the case of Shri. Kesava Nanda Bharti Case Vs. State of Kerala (AIR 1973 SC 1461) upholding 24^th 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. Thus when the law is so clear this Hon’ble Forum, the State Commission, the National Commission and even the High Court and Supreme Court cannot interpret the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the schemes framed there under and pass orders which are not justifiable and aimed at defeating the purpose for which the amendments were passed with retrospective effect i.e. w.e.f. 16-11-1995. Hence has prayed for the complaint against this Opponent may kindly be dismissed with cost.

         4. Op No.2 state that the undisputed fact are that the complainant was the employees of Op No.2 and during his employment he became the members of 1971 scheme and making contribution and after enforcement of 1995 scheme he continued to be the members by making the monthly contribution and now he has retired from service and Op No.1 has determined the pension payable to him. That after the voluntary retirement of the complainant from the service, the Op No.2 has submitted all necessary service particular of the complainant to the office of the Op No.1. Hence has prayed for the complaint against this Opponent may kindly be dismissed with cost.

         5.       Complainant has filed affidavit in lien of evidence and he has 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.

6.      Heard arguments of both the sides.

7.      Now the points that arise for our consideration are;

1. Whether the complainant is entitled to the relief as is sought for?

2. What Order?

8.      Answers to the above Points:-

1. Affirmative.

2. As per final order.

: R E A S O N S :

9. Point No. 1:-   That the Op No.1 has submitted the complainant was an ex-employee of NWKRTC, Bagalkot. The complainant was enrolled as member under the Employees Family Pension scheme 1971 with effect from 07.04.1985 with an account No.GB/RCH/989/W/245 and thereafter became the member of the Employees’ Pension scheme with effect from 16.11.1995 in terms of para 6 (b) of the Employees’ Pension scheme 1995 and complainant left the service on 03.02.2012. The pension is regularly paid from 03.02.2012 till date. After a lapse of more than 04 years the complainant has made claim for revision of pension by allowing 2 years weightage. The pension payment order in respect of the complainant was prepared vide PPO No.GB/GLB/21283 from 03.02.2012. complainant case is unjustified and hopelessly barred by time limitation and is liable to be dismissed on this ground. There has been no deliberate attempt by O.P.1 withheld any benefits. O.P. No.1 is an authority working under statute and has made no attempts to withhold the benefits deliberately to the complainant. It is humbly prayed the Hon’ble Forum to dismiss the prayer of the complainant as there is no provision in Employees’ Pension Scheme, 1995 is meant for settlement of claims, complete in all respects submitted along with the requisite documents received from the beneficiaries and complainant’s claim in Form No.10D has been settled and he has been issued with Pension Payment Order bearing No.GB/GLB/21283 by sanctioning the monthly member pension at the rate of Rs.1488/- p.m. from 03.02.2012. Therefore, the question of paying 12% interest per annum does not arise. O.P. No.1 is not the competent authority to give annual relief to the complainant. The competent authority to declare annual relief is Government of India and no annual relief has been declared since 31.03.2000.  The complainant is drawing pension under Employees’ Pension Scheme, 1995 since 03.02.2012. Hence there is no question of paying any annual relief after 31.03.2000. Hence there is no question of paying any annual relief to the complainant.

           First of all we have to consider as to whether the service given by op No.1 is a service as is defined U/sec 2(1)(o) of the Act and as to whether the complainant is 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, the complainant is the Consumer U/Sec 2(1)(d)(ii) of the Act and the service given by the Op No 1 is a service U/Sec2(1)(o) of the C.P. Act.

         Further observed that, the period of limitation starts from the date on which the pensioner came to know that the pension is being fixed/paid by the Op No.1 is erroneous. That means, when there is continuing wrong/recurring wrong, in this case the cause of action starts from the date of knowledge not otherwise. When there is continuing wrong/recurring wrong, in this cases the cause of action starts from the date of knowledge.

          No doubt the Complainant in this case, he is former employees of KSRTC, Bagalkot, and after serving the above for a good number of years who retired from the service on attaining their age of superannuation. While he is in service, provident fund amount was being deducted out of the salary of the complainant.

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.”

    As per the Paragraph No.10(2) of Employees Pension Scheme 1995 , it is necessary to give two years of weightage to the members who supernature on attaining the age of 58 years and who has rendered more than 20 pensionable service or more.

   Further we noticed that, complainant in this case have put in more than 20 years of service and they are entitled for weightage of two years and the same not considered by the opposite party No.1.

          On scrutiny of the material evidence available on record, we find that, admittedly the complainant was the employees of the KSRTC and now complainant is 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 No.1 despite of holding many number of judgments in their hand forced these senior citizens i.e., National Consumer Disputes Redressal  commission New Delhi 2010 (3) CPR page No 45, Supreme court page 3828,AIR 2008 Supreme court page 2957, III 2013 CPJ 244 (NC), copy of State Commission judgments, New Delhi II (2014) CPJ Page No 570 (NC). I (2008) CPJ Page 306 (NC) Provident Fund Commissioner V/s Sulekha National Consumer Disputes Redressal Commission, for that the op No 1 shall pay adequate compensation by way of interest. The Complainant is entitled for the interest on arrears at the rate of 12% p.a. in this case the Hon’ble National Commission held that under the provision of the Employees pension Scheme 1995 it is mandatory to impose interest at the rate of 12% p.a. By considering the age of the Complainant and also the inconvenience caused to him for all these years, we hereby directed the Op No 1 as follows:-

The Op No.1 i.e. Asst. Provident fund commissioner, Regional office, Raichur is hereby directed to recalculate the pension payable to the complainant and complaint is 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 complainant along with arrears of pension with interest at the rate 12% per annum and also directed to the Op No.1 to give annual reliefs as per paragraph 32 of the scheme 1995 to the complainant from the respective due date along with the interest at 12 % per annum. Apart from the above the Op No 1 is hereby directed to pay Rs. 2,000/- to the Complainant towards cost of the litigation expenses payment shall be made within 60 days from the receipt of this order.  With this we answer point No.1 Affirmative

10)  As per as Op No.2 is concerned in this case, there is no deficiency in service. Hence the complaint against Op No.2 is hereby dismissed.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

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

ORDER

      Complainant’s complaint is allowed in part as follows;

I) The Op No.1 i.e., Asst. Provident Fund Commissioner, Regional office, Raichur is hereby directed to recalculate the pension payable to the complainant and give 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 complainant along with arrears of pension with interest at the rate of 12% per annum.

II) And also directed to the Op No.1 to give annual relief as per paragraph 32 of the scheme 1995 to the complainant from the respective due date along with interest at 12% per annum.

III) Apart from the Op No.1 is hereby directed to pay
Rs.2,000/- to the complainant towards cost of the litigation expenses, and mental agony. Payment shall be made within 2 months from the receipts of this order.

IV) Complaint against O.P. No 2 is hereby dismissed.

(Dictated to the Stenographer directly on computer corrected by me and then pronounced in the open Forum on this 10^th day of May 2019)

ANNEXURE

Witnesses Examined on behalf of the complainant:-

1) Basappa S/o. Pawadeppa Ijeri,

Documents produced on behalf of the complainant in complaint .

1) Ex. C1:- Zerox true copy of pension payment order part-I

2) Ex. C2:- Zerox true copy of pension payment order part-II

3) Ex.C3:- Representation letter dated 01/12/2017.        

3) Ex.C4:- Postal Receipt.