Karnataka

Kolar

CC/9/2016

Smt.Vijayamma - Complainant(s)

Versus

The Regional Provident Fund Cmmissioner - Opp.Party(s)

D.V.Lakshminarayan

01 Jun 2016

ORDER

Date of Filing: 16/03/2016 & 29.03.2016

Date of Order: 01/06/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 01^st DAY OF JUNE 2016

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

C.C. NO. 09 OF 2016 CLUBBED WITH C.C.NO.12 OF 2016

C.C.NO.09 OF 2016

Smt. N. Vijayamma,

W/o. G.M. Lakshminarayana

Reddy, Kalpatharu,

Anjaneya Extension,

Chintamani Town.                                       ….  COMPLAINANT.

C.C.NO.12 OF 2016

Sri. N. Krishnappa,

S/o. No. Ramanna,

Vinayaka Nagar, Kolar Cross,

Chintamani Town,

Chikkaballapur District.

 

(In both cases the complainants are

Rep. by Sri.D.V.Laxminarayana, Advocate)                   ….  COMPLAINANT.

 

 V/s 

The Regional Provident Fund

Commissioner,

Old Madras Road, K.R. Puram,

BANGALORE.

(OP in both cases)

 

(Rep. by Sri. Jayaprakash, Enforcement Officer,

Employees Provident Fund Organization, Kolar.) …. OPPOSITE PARTY.

 

:COMMON ORDERS:

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant in C.C. No.09 of 2016 having submitted the complaint as contemplated Under Section 12 of the Consumer Protection Act, 1986 has sought relief of adding a weightage of 02 years by re.considering the pension order bearing PPO No.PY/KRP/00019271 and hence to re.fix the monthly pension by the OP and to recover compensation of Rs.15,000/ for the mental sufferings together with litigation costs of Rs.5,000/..

 

02.   The complainant in C.C. No.12/2016 having submitted the complaint under the very same provision has also sought the very same reliefs, i.e., for adding a weightage of 02 years by re considering the pension order bearing PPO No.KN/KRP/14992 and hence to refix the monthly pension from the date of voluntary retirement by the OP and for recovery of compensation of Rs.15,000/ for the mental sufferings and Rs.5,000/ towards litigation costs.

 

03.   The facts in brief :

(a)    The complainant in C.C. No.09/2016 contended that, she joined service in PCA & RD Bank at Chintamani on 01.01.1990 and served without break for 23 years and retired on 31.03.2013 while serving in the same bank but at Srinivasapura Branch on attaining superannuation.  Further it is contended that, on 31.03.2013 after retirement the OP passed the impugned pension order, fixing monthly pension of Rs.1,350/., which amount she has been receiving.

 

(b)    It is contended that, she had registered for EFPS scheme of 1971 and from January 1990 till August 1996 every month there was deduction and thus the past accumulation came to sum of Ra.10,155/.  And that on 29.03.1997 vide provident fund code No. KN.19380 as per challan No (12) as issued by SBM Branch, Chintamani, there is a credit.

 

(c)    Further she has contended that, she got registered for EP Scheme 1995 on 01.09.1996 vide PF code No.19380/5 and got retired on account of superannuation thus had unbroken service.  And that accordingly there was credit towards EP Scheme 1995.  And that from January 1990 till August 1996 she had unbroken service of 06 years 08 months for the purpose of EPF scheme 1971 and from 01.09.1996 till 31.03.2011 the day on which she retired on account of superannuation had served for 14 years and 07 months.  And that thus for the total period of 21 years and 03 months there was monthly contribution as per EPF scheme of 1971 and thereafter EP Scheme of 1995.

 

(d)    Further she has contended that, accordingly as per the relevant provisions of the Employee’s Provident Funds and Miscellaneous Provisions Act, 1952 she was entitled to advantage of adding a weightage of 02 years for pensionable service.  And that this very Forum in C.C. No.55/2015 had upheld such contention in the order passed therein.

 

(e)    Further the complainant has contended that the Hon’ble State Commission in Appeal Nos. 415/2008 to 419/2008 repeatedly held that, as such claims would come under financial facilities the cause of action would be recurring and hence the claim is in time.  So contending the complainant has come up with the complaint on hand to seek the above set out reliefs.

 

(f)     Along with the complaint the complainant has submitted list with following copies of 4 documents:

(i)    Xerox copy of the monthly pension order issued by the OP.

(ii)   Xerox copy of the post accumulation remittance to the P.F. Commissioners Office.

(iii)  Certified copy of the detail abstract relating to post accumulation.

(iv)   P.F. Statement of Accounts.

 

04.   The complainant in C.C. No.12/2016 is to contend that, on 31.01.1981 he joined service on temporary basis in PCA & RD Bank branch Chintamani and got permanent post on 31.01.1991 and took voluntary retirement on 31.12.2008.  And that thus he had served for 27 years 11 months.  And that such a retirement was voluntary, from his post as an Attender.

 

(a)    It is also contended that, on 31.12.2008 after retirement the OP passed pension order vide No. PPO/KN/KRP/14992 (PF No. KN/19380/21).  And that as per this order his monthly pension was fixed at Rs.946/ only.  And that he has been receiving the same every month vide savings bank account No.30219515679 as issued by SBI of Chintamani Branch. 

 

(b)    Further he has contended that, under the EPF scheme of 1971 in which he had registered there was deduction of contribution and the past accumulation has been credited vide challan No(12) as issued by SBI, Chintamani Branch, vide provident code No.KN 19380.  And that he also got registered subsequently for the EP Scheme 1995 and from 01.09.1996 there was contribution to the PF vide code No. KN/19380/21.  And that such a contribution was regular without any break throughout his service till the said date of retirement.

 

(c)    Further he has contended that as per the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act 1952 the pensioner should not be granted pension less than Rs.1,000/.  And that, as he has been paid such monthly pension of Rs.946/ he has suffered loss.  And that as he has unbroken service of 27 years 11 months for which period he had contributed under the said both schemes he is entitled to the advantage of adding a weightage of 02 years while remaining pensionable service.

 

(d)    So contending, the complainant has come up with this complaint on hand seeking the above set out reliefs.

 

(e)    Along with the complaint with a list dated: 29.03.2016 the complainant has submitted copies of following 05 documents:

(i)       Xerox copy of the pension sanction order

(ii)      Xerox copy of the provident fund account extract.

(iii)    Job confirmation executive committee proceedings Xerox copy

(iv)     Xerox copy of the salary fitment order

(v)      Xerox copy of the PF post accumulation remittance Bank challan.

 

05.   In both these cases the OP being common, having put in appearance through the said officer has put in written version in both these cases independently, but with identical versions.

 

(a)    It is contention of the OP that the complainant in C.C. No.09/2016 became a member of the PF and Pension fund Scheme at his age of 43 till at the age of 58 years, i.e., from 01.09.1996 to 18.03.2011.  And that accordingly the pension fixed by the said order is justified.  And that the said scheme came in to effect under the said provisions with effect from 01.09.1996 only.  And that the complaint is bad for non joinder of PCARD Bank being a necessary party.  The method of fixing pension which has been pleaded is reproduced for the sake of ready reference which is as hereunder:

“Monthly Member’s Pension = Pensionable Salary X Pensionable Service

 

                                                                                      70

 

                                      = 6500  X  14,542

                                      …..........................

                                                70

                                      = 1350.32

 

                             Monthly Pension = Rs.1,350/.

And it is also contended that, advantage of adding weightage of 02 years would be applicable on completion of 20 years of pensionable service or more and not otherwise as per paragraph 10 of EP Scheme, 1995.  And that as the complainant rendered only 14 years and 06 months of pensionable service being less than 20 years she was not entitled to the said advantage of adding a weightage of 02 years.  So contending, dismissal of the complaint with costs has been sought.

 

(b)    Along with the written version Xerox copy of EPFS 1952 and EPS 1995 (Para 20(1)) Return of Employees’ who are entitled and required to become members of EPF and PF has been annexed.

 

(c)    Coming to C.C. No.12/2016 having taken up the very similar contention the OP has pleaded as to how impugned orders fixing monthly pension of Rs.946/  has been arrived at.  For the sake of ready reference the same being re produced reads as hereunder:

“Monthly Member’s Pension = Pensionable Salary X Pensionable Service

 

                                                                                      70

The calculation statement of the pension being to the complainant Sh. N. Krishnappa is furnished below for reference:

 

                                      = 6500  X  12

                                      

                                                70

                                      = 1114.28

 

                             Monthly Pension = Rs.1,114/.

 

          The OP further submitted that, the complainant’s age at the time of retirement/cessation is 54 years.  Age fall short to attain the superannuation i.e. 58 years is 4 years.

 

          Para 12(7) of Employee’s Pension Scheme, 1995 says that,

 

          “(7) A member if he so desires, may be allowed to draw an early pension from a date earlier than 58 years of age but not earlier than 50 years of age.  In such cases, the amount of pension shall be reduced at the rate of four per cent.  For every year the age falls short of 58 years”.

 

          The calculation of early pension of Sh. N. Krishnappa under Para 12(7) of EPS, 1995 is furnished below:

          The complainant’s Age falls short to attain the superannuation i.e. 58 years is 4 years.

 

1.     For 1^st year         114 X 4%  = 44.56

1114 – 45 = 1,069/

          2.      For 2^nd year        1069 X 4% = 42.76

                                                1069 – 43 = 1,026/

          3.      For 3^rd year         1026 x 4% = 41.04

                                                1026 – 41 = 985/

 

          4.      For 4^th year         985 X 4% = 39.40

                                                985 – 39  =  946/

 

Hence Pension payable to the complainant is Rs.946/

 

(d)    Further it is contended that, as the complainant had rendered service of 12 years and 04 months being less than 20 years the said order fixing monthly pension as noted above is justified one.  So contending, dismissal of the complaint with costs has been sought.

 

(e)    Along with the written version Xerox copy of EPFS 1952 and EPS 1995 (Para 20(1)) Return of Employees’ who are entitled and required to become members of EPF and PF has been annexed.

 

06.   In both the cases both the parties have submitted their respective affidavit evidence.

 

07.   Both the parties have submitted their written arguments through their learned counsel.  The OP along with the written arguments has submitted the copy of the common order dated: 15.03.2012 passed by the learned DCDRF, Chikmagalur, in C.C. Nos.221 to 244/2011, 274/2011, 293 to 300, 309 to 311, 318 to 321/2011 that resulted in dismissal of complaints while similar claims were preferred therein.

08.   On 30.05.2016 the learned counsel appearing for the complainants in both these cases with Memo has submitted copy of the common orders dated: 18.08.2015, passed by the learned DCDRF, Chikmagalur, in C.C. Nos. 51 to 61, 63 & 64/2014 which reveals allowing of the complaints wherein similar reliefs were claimed.

 

09.   On 30.05.2016 itself heard the common arguments as advanced by the learned counsel appearing for the complainants in both these cases and the said learned representative for the OP in both these cases.

 

10.   In view of the striking similarities in both these cases and the most common points involved for consideration the same have been clubbed and thus we are passing the common orders in both these cases.

 

11.   Therefore the points that do arise for consideration in both these cases are:

1. Whether provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 are applicable to both of these cases?

2. Whether the complaints in both these cases are in time?

3. Whether these complaints are bad for non joinder of PCARD Bank being a necessary party?

4.   Whether the OP is guilty of deficiency in service in both these cases?

5.   To what reliefs the complainants in both these cases are entitled?

6.   What order?

 

12.   Our findings on the above stated points are:

POINT 1:     In the Affirmative.

 

POINT 2:     In the Affirmative

POINT 3:     In the Negative

POINT 4:     In the Affirmative so for as C.C. No.09/2016 is concerned and Negative so for as C.C. No.12 of 2016 is concerned.

 

POINT 5:     In the Affirmative so for as C.C. No.09/2016 is concerned and Negative so for as C.C. No.12 of 2016 is concerned.

 

POINT 6:     As per final order for the following:

 

REASONS

13    Before entering in to merits of the case we feel it reasonable and justified, to observe as to what are the scopes and objectives, available as per provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.

 

(a)    As per the said provisions (1) Employees’ Provident Fund Scheme, 1952, (2) Employees’ Pension Scheme, 1995 (earlier there were schemes in 1971 and 1952) and (3) Employees’ Deposit Linked Insurance Scheme, 1976.  In both these cases we are concerned with regard to Employees’ Pension Scheme, 1995 (earlier there were schemes of 1971 and 1952).

 

POINT 1:

14.   In both these C.C. Nos. 09/2016 and 12/2016 the learned representative of the OP vehemently maintained that, the scheme under the said enactment is open only when the particular establishment consists of employees being 20 or more and as in both these cases the strength of the employees being less than 20 the provisions of the said enactment and hence benefit under the said scheme cannot be invoked. 

 

(a)    As against the said submissions the learned counsel appearing for the complainants in both these cases is to contend that, the main establishment being at state level and the branches of PCARD have spread throughout the state by covering each of the taluks and necessarily the strength of employees would be more than the statutory requirement.  Further he maintained that, as the very OP accepted the contributions as per the EP Scheme of 1971 and thereafter EP Scheme of 1995 the OP is legally estopped from raising such contention. 

 

(b)    We should agree with the contention of the learned counsel appearing for the complainants in both these cases and consequently we should firmly disagree with untenable contention raised by the learned representative of the OP in both these cases.  As rightly argued by the learned counsel appearing for the complainant it is the common cadre committee which recruits the employees to the various posts of the establishment of the PCARD at state headquarters level that has branches covering each of the taluks in the state.  Therefore Section 1(3)(a) of the enactment is applicable, consequently the said schemes of 1971 and thereafter 1995 are applicable to both these cases on hand.  Hence the finding.

 

POINT 2 :

15.   True, in C.C. No.09/2016 the OP passed the impugned order on 31.03.2013, whereas, in C.C. No.12/2016 the OP passed the impugned order on 31.12.2008; whereas the complaints in these cases came to be submitted on 16.03.2016 and 29.03.2016 respectively. 

 

(a)    The learned counsel appearing for both these cases vehemently argued that, these complainants being pensioners continue to have cause of action as long as they remain pensioners.  Therefore, we hold that, these complaints are well within time, for, at no point of time the limitation has been commenced to come in the way of the legitimate claim of these complainants.  Hence the finding.

 

POINT 3:

16.   It is claim of the complainants in both these cases that, the employer did deduct in their monthly salaries towards contribution under both the said schemes.  And it is not the case of the OP that, the employer did not comply in remitting the contribution.  Besides the contention of the OP in both these cases is that, EP Scheme of 1971 is in applicable but, EP scheme of 1995 alone is applicable.  To decide this issue absolutely there is no need of presence and participation of the PCARD Bank.  Hence absolutely this bank is not at all a necessary party.  As such, the said finding on this point.

 

POINT NO.4 IN C.C. NOS.09/2016 & 12/2016:

17.   The plane reading of provisions of paragraphs 9 and 10 of the EP Scheme 1995 would make it amply clear that, the contribution made by the employee for EP Scheme 1971 would enure to his benefit when he to continue the membership as per EP scheme 1995.  This is the legal position.  The OP is prevented to contend contrary to this established legal position.  Besides we are being supported by the common order dated: 18.08.2015 passed by the learned DCDRF, Chickmagalur, in C.C. No.51 to 61, 63 & 64/2014.  We know that for the eligible service for the purpose of Paragraph 10 of the said Scheme, one is bound to take in to account the guidelines in Para 9 of the said Scheme.  For, both these complainants were members for EP Scheme of 1971 and thereafter continued to become members as per EP scheme of 1995 without any break. 

 

(a)    The past service in C.C. No.09/2016 is to be reckoned from 01.01.1990 for the purpose of PF Scheme of 1971 till 31.08.1996 as thereafter such membership stood continued with effect from 01.09.1996 till date of retirement being 31.03.2013 vide E.P. Scheme 1995, and hence qualified service for the purpose of paragraph 10 of the EP Scheme 1995 shall be 21 years 03 months.  Consequently there is legal obligation on the part of the OP to provide advantage of adding a weightage of 02 years to assess the pension.  Since it has not been done, there is certainly deficiency in service on the part of the OP.

 

(b)    However coming to the case of the complainant in C.C. No.12/2016 undoubtedly from 31.01.1981 he become a member of the then prevailing scheme of 1971 and thereafter from 01.09.1996 he became a member of the EP scheme of 1995 till he took voluntary retirement on 31.12.2008.  Though seemingly he had lengthy service of 27 years 11 months which would fulfill the requirement of paragraph.10 of the EP Scheme 1995 there is legal embargo of the very same paragraph which is to indicate compulsorily that, there should be superannuation on attainment of age of 58 years.  In this case seemingly there was voluntary retirement on the part of the complainant and as such retirement was at the age of 54 years he cannot even dream to avail statutory benefit of paragraph 10(2) of the EP Scheme, 1995.  Hence the findings on this point. 

 

POINT. 5 IN C.C. NOS.09/2016 & 12/2016:

18.   For foregoing reasons as the complainant in C.C. No.12/2016 took voluntary retirement at the age of 54 years we have made our emphatic observation in the preceding paragraph that, there was no deficiency in service on the part of the OP as against this complainant.  Hence he is not entitled to any reliefs.

 

(a)    Coming to the fixation of monthly pension at the rate of Rs.946/, we are to observe that, it is not that the complainant got retired on attaining superannuation, contrary, he took voluntary retirement from service on 31.12.2008.  As his age on that day was 54 years the OP justifiably invoking provisions of paragraph 12(7) of the E.P. Scheme 1995, determined the monthly pension after deducting statutory sums in sum of Rs.1,114/, which monthly pension ought to have been granted to him if to retire on attainment of superannuation.  So we find no error.  Hence the finding on this point.

 

(b)    However the case of the complainant in C.C. No.09/2016 is altogether on different footings.  Though we did not agree with the contention of the learned counsel appearing for the complainant that services of the complainant should be reckoned from 02.04.1979 till 01.01.1990 on which date EP Scheme 1971 was invoked, so as to consider 11 years as qualifying service to be added, we certainly hold that, right from 01.01.1990 till 31.08.1996 under EP Scheme of 1971 the complainant had rendered 06 years 08 months service being past service, whereas, from 01.09.1996 till 31.03.2013 the date of retirement on account of superannuation we should consider this period of 14 years 07 months as qualifying service and thus under both these Schemes for the purpose of paragraphs 10(1)(2) of EP Scheme, 1995 the total length of service to determine pensionable service shall be 21 years 03 months which would be in excess of the ceiling limit of 20 years prescribed in Paragraph10(2) of EP Scheme, 1995.

(c)    Before parting we also make an observation that the common order dated: 15.03.2012 as passed by the learned DCDRF at Chickmagalur in C.C.Nos.221 to 244 of 2011, 274/2011, 293 to 300, 309 to 311, 318, 321/2011 that resulted in dismissal of complaints for similar claims came to be disagreed by the very learned Forum vide its common order dated: 18.08.2015 in C.C. Nos.51 to 61, 63 and 64 OF 2014.  So, there is no escape from holding that the said earlier common order dated: 15.03.2012 is totally in.applicable to the case on hand.

 

(d)    We have rejected claim of 11 years for being included from 02.04.1979 being the date of entering of service till 01.01.1990 till the date of invoking EP Scheme of 1971 only because as per paragraph.9(a)(b) of the EP Scheme 1995 the complainant ought to have paid contribution towards employees’ pension fund if not towards family pension scheme, 1971.  It is an admitted fact that contribution to EP Scheme, 1971 commenced by this complainant only from 01.01.1990.

 

(e)    As the complainant had qualifying service of 21 years 03 months being member under both schemes of 1971 and thereafter 1995, he was entitled to advantage of adding of a weightage of 02 years while calculating the pension.  Admittedly this has not been done by the OP.  Hence the OP is guilty of deficiency in service.  Therefore, we give emphatic direction to the OP to reconsider case of the complainant so as to re.fix the monthly pension after giving him the advantage of addition of a weightage of 02 years.  And we further direct the OP to release the arrears of this pension after adjusting the pension as already granted together with the interest at the rate of 8% per annum from the due date till realization.

(f)     As the complainant was made to suffer mentally for no fault of him, and as the mindful fault was of the OP, the complainant is held entitled to compensation which we quantify for sum of Rs.10,000/., which to carry interest at the rate of 9% per annum from 16.03.2016 being the date of the complaint till realization.

 

POINT 6:.

(f)     We proceed to pass the following:

 

ORDER

01.   For foregoing reasons, the complaint in C.C. No.09/2016 stands allowed with costs of Rs.2,500/ as hereunder, whereas, the complaint in C.C. No.12/2016 stands dismissed with a direction for both the parties to bear their own costs.

 

(a)    The OP is directed to reconsider and re.fix pension of the complainant by taking in to consideration advantage of addition of a weightage of 02 years while determining pensionable service in agreement that paragraph.10(2) of the EP Scheme, 1995 and after adjusting pension already paid for the arrears that would remain, the OP shall pay interest at the rate of 8% per annum from the due date till realization. 

(b)    Besides the OP shall pay compensation of Rs.10,000/ to the complainant together with interest at the rate of 9% per annum from 16.03.2016 being the date of the complaint till realization.

(c)    We direct to keep original of these common orders in C.C. No.09/2016, whereas, the copy thereto in C.C. No.12/2016.

 

(02)  Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 01^st DAY OF JUNE 2016)

 

 

 

 

MEMBER                                         PRESIDENT