BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, 10th day of November, 2016
FIRST APPPEAL No. 1/2016
Puduvai Pradesa Nugarvor Nala Munnani
Rep. by its President Mr.Durai Arumugam,
S/o Duraikannu, No.20, Cuddalore Road,
Puducherry. . ………….. Appellant
Vs.
The Regional Commissioner,
Sub Regional Office,
Employees Provident Fund Organisation,
No.101, 100 feet Road, Cholan Nagar,
Olandaikeerapalayam, Puducherry. …………….. Respondent
(On appeal against the order passed in C.C.No.10/2013, dt.15.07.2015 of the District Consumer Disputes Redressal Forum, Puducherry)
C.C.No.10/2013
Puduvai Pradesa Nugarvor Nala Munnani
Rep. by its President Mr.Durai Arumugam,
S/o Duraikannu, No.20, Cuddalore Road,
Puducherry. . ………….. Complainant
Vs.
The Regional Commissioner,
Sub Regional Office,
Employees Provident Fund Organisation,
No.101, 100 feet Road, Cholan Nagar,
Olandaikeerapalayam, Puducherry. …………….. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Pudhuvai Pradesa Nugarvor Munnai,
Rep. by its President,
Puducherry
FOR THE RESPONDENT:
Thiru B.Mohandass,
Advocate, Puducherry
O R D E R
(By Tmt.K.K.Ritha, M.A., M.H.R., B.L., Member)
This appeal is directed against the order of the District Forum in consumer complaint No.10/2013, dated 15.07.2015. The complainant is the appellant and the opposite party is the respondent in the appeal filed before this Commission.
2. The complainant has filed the complaint before the District Forum with a prayer to direct the opposite party to pay i) Rs. 11,13,018/- (upto December, 2012) to the 40 members of the Pondicherry Region Consumer Welfare Association, as pending pension, ii) to correct the pension payment order of 40 members of the complainant’s Association and to issue revised monthly pension to them iii) to pay the arrears along with interest as per the revised pension; iv) to pay Rs.10,000/- each to the 40 members of the Association for mental agony and deficiency in service and v) to pay Rs.5,000/- as cost of the proceedings.
3. The case of the complainant before the District Forum, in brief, is stated hereunder:
The complainant is the President Pudhuvai Pradhesa Nugarvor Nala Munnani. The 40 members of the Association are the members of Employees Provident Fund and receiving the pension under Employees Pension Scheme, 1995, which is not as per the provisions of the above said Scheme. As per the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952, certain amount was deducted from the employees’ wages/salaries and in addition to that the employer will contribute certain amount and the whole amount has to be remitted in the Employees Provident Fund Account. After attaining the superannuation, the employee will get the amount along with the interest. In case of death of an employee while in service, his family members will get the benefit. The Employees’ Pension Scheme, 1985 was introduced by the Government as welfare measure to them. These pension schemes are like other welfare measures, such as The Employees Provident Fund & Miscellaneous Provisions Act, 1952, Gratuity Act, Employees State Insurance Act, Employees Compensation Act. Though such schemes are available, the employees failed to reap their benefit due to the error committed by the officials of the Employees’ Provident Fund Organisation.
As per Section 11(1)(2) of Employees’ Pension Scheme, to calculate the pension of an employee, his last twelve months’ salary has to be divided by the number of working days of last twelve months and has to be multiplied by 30. Instead of following this method, the employees’ last month’s salary is taken for calculation of pension.
Moreover, for calculating the pensionable service, the opposite party’s organization has calculated the number of days per year as 365 instead of 308 days because there was no pay on week end holidays and public holidays. The error in the calculation has incurred loss to the employee in the pension amount. Further, they omitted to add two years as bonus service in the pensionable service while calculating the pension of the employees. As per the provisions of Employees’ Pension Scheme, if the employee is retired at the age of 58 years or completed 20 years of service, his pensionable service is calculated by adding two years bonus service with actual years of service, but, that was not added.
Only after approaching the Lok Akalat, the opposite party agreed to calculate the pensionable service by adding years bonus service if the completed year of service for 13 members, who were retired from service before the date of amendment on 24.07.2009. 17 out of 22 members were not given the benefit under para 10(2) of Employees’ Pension Scheme as they were in service on the date of amendment. 5 members retired before attaining the age of 58 years and two widow members are not eligible for the benefit under Para 10(2) of Employees’ Pension Scheme. Thus, the opposite party has not properly calculated the pension thereby giving less pension to its members. To redress their grievance, the filed the complaints.
4. The versions of the Opposite Party are as follows:
The opposite party denied all the allegations leveled against it. The original cause of action commences from the date of payment of pension to the individual pensioners which ranges from 3 to 10 years and not from the order of the Lok Adalat. The complaint is barred by limitation as per Section 24-A of C.P.Act. Moreover, the complainant has miserably failed to include the ex-employers of the pensioners as parties, but disputing their service particulars with them and as such, the complaint suffers non-joinder of necessary parties.
5. It is submitted that the maximum pensionable salary shall be limited to Rs.6,500/-but none of the complainant has contributed to the pension fund exceeding the salary limit of Rs.6,500, as required. Moreover, the claim of the complainant that the weekly off has to be deducted from the number of days in the year as the employers were not paying salary to the weekly off days is also not maintainable. If the weekly off and the casual leave are taken as non-contributory period, the pensionable service also shall correspondingly get reduced resulting in reduction of pension payable to the pensioners. As per Circular No.Pen(A&C)/RPNo.880/2012/NCDRC/KN-Kallurappa/10799, dt.26.11.2013 read with Corrigendum dated 06.12.2013 that the benefit of allowing bonus service of 2 years of pensionable service may be granted for the superannuation pension cases arising prior to the amendment of Para 10(2) of Employees Pension Scheme, 1995. Thus, the case is arising prior to 24.07.2009 may be accorded two years of bonus pensionable service. Thus, 14 out of the 40 pensioners in the present case become eligible for the benefit of two years of bonus pensionable service, as provided under Para 10(2) of the Employees’ Pension Scheme, 1995. The remaining 26 pensioners were not covered under the said clause. Thus, there is no deficiency in service on its part and prayed to dismiss the complaint.
6. Before the District Forum, on complainants’ side, one Mr. Selvaraj was examined as CW1 and Exs.C1 to C8 were marked and one Mr.Roubanraj, General Manager of Swadeshi Cotton Mills, Puducherry has been examined as CW2. On the side of opposite party, Exs.R1 to R12 were marked through RW1, Mr.Chandrasekar, Regional Provident Fund Commissioner-II, Puducherry.
7. The District Forum in its order, as already mentioned above, has dismissed the complaint and there is no deficiency in service on the part of the opposite party.
8. As already stated, the present appeal is directed challenging the above said order of the District Forum, Puducherry.
9. We have heard the appellant/complainant and the counsel for respondent/ opposite party and perused the written arguments filed both parties.
10. The District Forum had observed that the appellant/complainant is the consumer as defined under C.P.Act and we uphold the same view as they are the members of the Employees Provident Fund Organisation of the opposite party.
11. Regarding point No.2, the provisions of Employees Provident Fund Act, 1952 stipulates that certain amount has to be deducted from the employees’ wages/salaries, and in addition to that, the employer will contribute certain amount and the whole amount has to be remitted in the Employees’ Provident Fund Account of the employee. On attaining the superannuation, the employee will get the amount along with interest. In case of death of the employee while in service, his family members will get the benefit. The contention of the complainant is that instead of giving the actual benefit to the employees, the opposite parties’ officials have made the mistake in calculating the pension. Further, for calculating the pension of the employee as per Section 11(2) of the Scheme which states as:
“11. Determination of Pensionable Salary (1) Pensionable salary shall be the average monthly pay drawn (in any manner including on piece-rate basis) during the contributory period of service in the span of 12 months preceding the date of exit from the membership of the Employees’ Pension Fund.
2) If during the said span of 12 months there are non-contributory periods of service including cases where the member has drawn salary for a part of the month, the total wages during the 12 months span shall be divided by the actual number of days for which the salary has been drawn and the amount so derived shall be multiplied by 30 to work out the average monthly pay.
12. Thus, the employees last 12 months’ salary has to be divided by the number of working days of last 12 months and has to be multiplied by 30, but, in the present case, the employees last month’s salary is taken for calculation of pension and so the employee suffered the loss.
13. As per the Employees’ Pension Scheme, if the employee retired at the age of 58 years or completed 20 years of service his pensionable service is calculated by adding two years bonus with actual years of service. The opposite party organization failed to add bonus of two years of service with the actual service. Only after legal clarification, the opposite party has agreed to calculate the pensionable service by adding two years of service with the completed year of service for 13 members, who had retired from service before the amendment on 24.07.2009. 17 out of 22 members were denied the benefit under Para 10(2) of Employees’ Pension Scheme, since they were in service on the date of amendment. All these contributed deficiency in service on the part of opposite party.
14. Coming to the opposite party side, the plea regarding limitation and non-joinder of necessary party had been over-ruled by the District Forum and heard the merits of the case. According to the opposite party, the service rendered on or after 16.11.1995 shall stand covered under pensionable service. The service rendered under the Employees’ Family Pension Scheme, 1971 has been termed as ‘past service’ and the benefits for the past service had been calculated separately. One particular period of service cannot be taken into account for two different services which are bifurcated under the scheme. The minimum service required for monthly pension for the member is ten years of eligible service. For eligible service, the past service and the pensionable service are taken together as provided under Para 9 (b) of the Employees’ Pension Scheme, 1995. The claim of the complainant that the service rendered under Employees Pension Scheme, 1971 prior to 06.11.1995 to be treated as pensionable service is against the provisions of Employees Pension Scheme, 1995. As per Notification No.GSR 594(E), dt.23.07.2009, it becomes imperative that a member has to fulfill both the conditions, i.e. he has to superannuate on attaining the age of 58 years and rendered 20 years of pensionable service for eligibility of weightage of two years. The past service rendered under the Employee’s Pension Scheme, 1971, may not be accounted for pensionable service. As such, as per the amendment at Para 10(2), two years of weightage is applicable only to members who retires on superannuation and renders 20 years of pensionable service. From the records, it is seen that 24 members have not rendered 20 years of pensionable service and hence not entitled for two years of weightage. Under Employees’ Family Pension Scheme, 1971, the contribution payable for pension scheme is only 1.16% + 1.16% from employees’ share and employer’s share. Whereas under pensionable service, which is from 16.11.1995, the rate of contribution is 8.33% and hence the past service and pensionable service cannot be treated on par.
15. As discussed above, it is evident that 24 members have not complied with the conditions, i.e. superannuation on attaining the age of 58 years and should render 20 years of service. It is clear that the pensionable service will arise only after 16.11.1995. The opposite party, as per the existing rule, calculated the pension of 14 members as per the provisions of Employees’ Pension Scheme, 1995 and rejected the claim of 24 members. The complainant has filed the judgements of Hon’ble National Commission in R.P.No.2864/2014 , dt.28.07.2014 and R.P.No.2238 of 2014, dt.14.10.2014 had been taken into consideration while deciding the merits of the case. We find that there is no negligent or deficiency in service on the part of opposite party and the complaint is liable to be dismissed.
16. In fine, the appeal stands dismissed. The order of the District Forum made in C.C.No.10/2013, dated 15.07.2015 is hereby confirmed.
Dated this the 10th day of November, 2016
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
