The Regional Provident Fund Commissioner V/S D.V.Lakshminarayana - Consumer Court Case

Karnataka

Kolar

CC/55/2015

D.V.Lakshminarayana - Complainant(s)

Versus

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

01 Mar 2016

ORDER

Date of Filing: 04/12/2015

Date of Order: 01/03/2016

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

Dated: 01^st DAY OF MARCH 2016

PRESENT

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

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

SMT. A.C. LALITHA, BAL., LLB …… LADY MEMBER

CONSUMER COMPLAINT NO :: 55 OF 2015

Sri. C.V. Lakshminarayana,

S/o. Venkatashamappa,

Aged About 64 Years,

R/at: No.456, Behind District

Court, ‘SANTOSH KRUPA’,

KOLAR-563 101.

(In-person) …. Complainant.

- V/s -

The Regional Provident Fund

Commissioner, Old Madras Road,

K.R.Puram, Bangalore.

(Rep. through the Enforcement Officer) …. Opposite Party.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01. The complainant having submitted the complaint Under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred in short as “the Act” if necessary) has sought relief of issuance of directions to the OP, to re-fix the pension by taking in to account weightage of two years, to pay interest on it at the rate of 10% per annum and Rs.5,000/- towards litigation expenses.

02. The facts in brief:-

The complainant contends that, he joined service on 01.09.1974 at the Primary Agricultural and Rural Development Bank Limited, Gudibande as FDA and retired from service on superannuation on 30.04.2011 while serving at Primary Agricultural and Rural Development Bank Limited, Bangarpet, with continuity of service without break (As Manager vide records).

(a) Further it is contended that, he has been given monthly pension of Rs.1,092/- under P.P.O. No. PY/KRP/00019787 and his P.F. Account was bearing No.PY/KRP/0019540/000/0000016. And that, such a sanction was made on 16.05.2012 vide No.PF/KRP/PENSION/2012 as issued by the OP.

(b) He has contended that, he served for more than 20 years and was given such a pension. And that, during his employment he was enrolled as Member of Employees Family Pension Scheme 1971 (EFPS 1971 in short hereinafter). And that, after formation of Employees Pension Scheme 1995, he opted the said scheme from the date of its inception, i.e., from the date of joining to duty on 01.09.1974.

(c) Further he has contended that, the pension sanctioned to him was less when compared to Sri. H. Hanumanthappa, Sri. H. Veeraiah and Sri. P. Sanjeevappa, though they were lower in cadre than him, which aspect he could realize by obtaining the information under the RTI Act, 2005. And that, such information furnished on 11.02.2014 and 18.03.2014 were not even as per the information requested.

(d) Further it is contended that, Sri. H. Hanumanthappa has been given monthly pension of Rs.1,661/- by the OP vide P.P. No.PY/KRP/00021318, dated: 16.11.2012. And that, Sri. H. Veeraiah who was working as “Accounts Officer” has been given monthly pension of Rs.1,153/- by the very OP on 03.02.2009. And that, Sri. P. Sanjeevappa who was working as Manager has been given monthly pension of Rs.1,674/- by the OP vide P.P.O. No.PY/KRP/00019610, Dated: 09.04.2012. And that, these officials were lower in cadre, but getting higher pension, in spite of the fact that, the duration of service of them was less when compared to with the duration of his service while fixing the pension.

(e) Further it is contended that, as per the order of Hon’ble State Commission in Appeal No.415 to 419 OF 2008 the cause of action is recurring and hence no limitation runs.

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

03. On 04.12.2015 with a list the complainant has submitted following Xerox copies of the eight documents:-

(i) P.F. Pension order of the complainant.

(ii) P.F. contribution letter & Certificate,

(iii) H. Hanumanthappa, P.F. Pension order,

(iv) H. Veeraiah, P.F. pension order,

(v) P. Sanjeevappa P.F. pension order.

(vi) RTI form No.6(1) & 7(1)

(vii) RTI Section 18(1) form.

(viii) Shivamogga Consumer Forum Disputes Judgment order.

04. On submission of the complaint and registration of the case in response to the notice issued, the OP has put in appearance being represented by the said Enforcement Officer. The OP has submitted written version resisting claim of the complainant in toto.

Specifically it is contended that, the complaint is bad for non-joinder of PCARD Bank being the necessary party. Further it is contended that, the scheme framed vide EPF and MP Act, 1952 was with effect from 01.01.1997 vide EPF Code No. KN/19672. And that, hence service rendered prior to the applicability cannot be considered. It is specifically contended that, the complainant had attained age of 58 years on 04.04.2009. And that after the age of 58 years the complainant was not entitled to benefits under the scheme. Following is the equation relied by the OP in ascertaining the said monthly pension:-

Monthly pension of the member

= Pensionable Salary x Pensionable Service

i.e., 6,500 x 11,758 = 1091.81

And hence Rs.1,092/-.

(b) The OP has furnished even the table with regard to the pension so arrived at of the complainant and of the said three persons referred by the complainant in the complaint. The same reads thus:-

Sl. No.	PPO No.	Name of Member	Date of Birth	Date of Membership under EPF & MP Act	Date of Super annuation	Pension able Service	Pension able Salary	Amount of Pension
1	PY/KRP/19787	D V LAKSHMINARAYANA	05.04.1951	01.01.1997	04.04.2009	11 Years	6,500/-	1,092/-
2	PY/KRP/21318	H Hanumanthappa	26.03.1952	12.09.1977	25.03.2010	33 Years	6,500/-	1,661/-
3	PY/KRP/19610	P Sanjeevappa	03.05.1951	05.06.1975	02.05.2009	33 Years	6,500/-	1,674/-

05. By way of additional version dated: 26.02.2016 this Op to contend that, for non-enrollment as a PF member from 1974 to December-1996 the complainant ought to have raised a dispute to claim eligibility for such enrollment by preferring complaint against the employer before the RPFC. And that Regional Provident Fund Commissioner could have conducted a statutory enquiry Under Section 7A of the EPF and MP Act, 1952 read with Para-26B of the Employees Provident Fund Scheme, 1952. And that, instead the complainant has preferred this complaint before this Forum which lacks jurisdiction to enquire into a dispute regarding eligibility of PF membership.

06. The OP has submitted along with the written version following two documents:-

(i) Copy of Employees Provident Fund Organization,

(ii) Xerox copy of the letter dated: 19.03.2013 issued by the complainant.

07. The very complainant has submitted his affidavit evidence, whereas, Sri. Kaushal Singh, the Assistant Provident Fund Commissioner, K.R. Puram, Bangalore, has submitted his affidavit evidence. The complainant and the OP have submitted written arguments, whereas on 26.02.2016 the said Enforcement Officer representing the OP has submitted additional version.

08. The complainant along with the written arguments has submitted following documents:-

(i) Xerox copy of application dated: 11.02.2014 seeking information Under Sections 6 & 7 of the Right to Information Act, 2005.

(ii) Xerox copy of Gratuity particulars dated: 17.12.2011 pertaining to the said Sri. Sanjeevappa as issued by Secretary Office of the Common Cadre Committee, Bangalore.

(iii) Certified copy of the Common Order in C.C. Nos. 158 to 182 OF 2014, dated: 30.12.2015 as passed by the District Consumer Disputes Redressal Forum, Shimoga.

(iv) Certified copy of the common order dated: 28.03.2013 as passed by the District Consumer Disputes Redressal Forum, Shimoga, in C.C. Nos. 482 to 502 OF 2012.

(v) Besides the complainant has placed reliance on superannuation of Sections 2 to 12 of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952.

09. On 16.02.2016 the complainant has submitted additional written arguments with Xerox copies of following documents:-

Application Under Section 6 & 7 of the RTI Act, dated: 11.02.2014,
Certificate dated: 12.02.2016 issued in favour of the complainant by the Manager, the Karnataka State Agricultural Co-operative and Rural development Bank, Kolar Branch.
The Gratuity particulars dated: 20.11.2012 of the complainant.
The Gratuity particulars dated: 17.12.2011 of the said Sri. Sanjeevappa.
Annexure-1 giving details of deductions made towards Gratuity by the Branches of the Bank wherein said Sri. Sanjeevappa served.
PF contribution particulars as mentioned in the Syndicate Bank pass-book pertaining to the complainant.

10. Therefore the points that do arise for our consideration in this case are:-

1. Whether the complaint is in time?

2. Whether this Forum has jurisdiction to entertain the complaint?

3. Whether the complaint is bad for non-joinder of PCARD Bank being the necessary party as contended by the OP?

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

5. Whether the complainant is entitled to the reliefs as sought for?

6. What order?

11. Findings of this District Forum on the above stated points for the following reasons are:-

POINT 1: In the Affirmative.

POINT 2: In the Affirmative.

POINT 3: In the Negative.

POINT 4: In the Affirmative.

POINT 5: In the Affirmative.

POINT 6: As per final order for the following:-

REASONS

POINT 1:-

12. Though aspect of limitation is not at all a point in issue, we are considering this aspect by way of abundant caution. The complainant retired on 30.04.2011 on account of superannuation. Necessarily retirement benefits should be given to him within reasonable time. The complainant before us contends that as long as he is the pensioner the cause for dispute continues as such at no point of time the limitation has run against his interest. In this context as noted above, the very complainant in Para-9 of the complaint has pleaded, inter alia contending that the Hon’ble State Commission in Appeal No.415 to 419 of 2008 has made such a binding observation. It is worth to note that the OP has not at all contested this aspect. In the said common order dated: 31.08.2013 as passed by the learned District Consumer Disputes Redressal Forum, Shimoga, in C.C. Nos. 66, 72, 75 to 81, 83 to 94 of 2013 while considering the aspect of the limitation in Para-8 the reasons have been assigned for the sake of ready reference we deem it fit to reproduce the relevant portion which reads thus:-

“08) …………………………………………. Because less pension is being paid every month, complainants have continuing cause of action and therefore, these complaints are not bared by limitation. In a similar situation his lordship Chandrashekaraiah.J. in the Appeals 415 to 419/2008 has clearly observed that:-

“In our view dismissing the complaints on the ground of delay is not correct because the date on which the pensioners came to know that the pension that is being paid to them is not properly fixed is the date of cause of action so as to maintain the complaint”. Further, payment of pension is a recurring cause of action. In the instant case, the complainants have filed the complaints when they came to know on the advice of some person that they are being paid less pension than to which they are entitled. Therefore there was no reason for the District Forum to dismiss the complaints as barred by time”.

Above observations aptly apply to these cases. So, we do not find merit in the contention of opponent regarding limitation. Hence this point is answered in the negative.”

Besides the very learned District Consumer Disputes Redressal Forum, Shimoga, in common order dated: 30.12.2015 in C.C. Nos. 158 to 182 OF 2014 and common order dated: 28.03.2013 in C.C. No.482 to 502 OF 2012 has dealt with limitation aspect to come to the conclusion that, in such a case the cause is recurring, as such, no limitation would run.

Therefore, as the complaint is very well in time we proceed to decide the rest of the points that have arisen for consideration.

POINT NO.2:-

13. The said common order as noted above as passed by the very Learned District Consumer Redressal Forum, Shimoga, would make it clear that, this Forum has every jurisdiction to entertain the complaint on hand so as to consider the same on merits. So, we are to observe that the contention raised in the additional version dated: 26.02.2016 by the OP to the effect that, the complainant ought to have lodged the complaint before the RPFC Under Section 7A of the Employees Provident Funds And Miscellaneous Provisions Act, 1952 Read with Para-26B of the Employees Provident Funds Scheme, 1952 as against the employer for contended re-fixation of pension and hence this Forum has no jurisdiction is seemingly an untenable contention.

14. Moreover at this juncture itself we make an emphatic observation that, the aspect of jurisdiction has been dealt in detail in the said common orders and the relevant portion shall be reproduced by us hereafter at appropriate stage while considering the point No.4 for consideration.

POINT 3:-

15. It is a specific contention of the OP that, the compliant is bad for non-joinder of necessary party being PCARD Bank who was employer of the complainant. On any stretch of imagination no such necessity would arise. It is a definite case of the present complainant that right from 01.09.1974 till 30.04.2011 the date of retirement the employer Bank was deducting from monthly salary towards contribution, for provident fund. However, the OP is to contend that, 01.01.1997 was the relevant date indicated by the very complainant on which date EPF Code No. KN/19672 came to be assigned, therefore earlier period cannot be reckoned for the purpose of contended re-fixation of such a pension by giving weightage of two years. As such, the dispute on hand is without involvement of the employer being PCARD Bank, and unnecessarily the OP only to come in the way of legitimate claim of the complainant has raised this issue, thus we can take notice of ulterior purpose of this OP in this specific context. Besides, we are backed by the said common orders as noted above as passed by the learned District Consumer Disputes Redressal Forum, Shimoga, wherein only the Regional Provident Funds Commissioner in C.C. No.66, etc., so also was the sole OP in C.C. Nos. 158 to 182 OF 2014, whereas in the said C.C. Nos. 482 to 502 OF 2012 only the Assistant Provident Funds Commissioner of Sub-regional Office was the sole OP. This would make it further clear that the said PCARD Bank being the employer was/is not even to be a formal party.

POINTS 4 & 5:-

16. To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time.

(a) The OP has enigmatically developed apathy in the legitimate cause of the present complainant affording to show disparity in fixation of the pension of this complainant on comparison with a junior colleague by name Sri. Sanjeevappa who has been drawing monthly pension on higher side.

(b) This complainant by applying under RTI Act 2005 has collected self-information and that of said Sri. Sanjeevappa among others in order to bring to our notice the disparity this Op maintained in fixing the monthly pension of him (the complainant).

(c) Since not resisted on the part of the OP the pleadings maintained by the complainant in Para-6 of the complaint should prevail. For the sake of ready reference we reproduce this para which reads thus:-

“The complainant most humbly bring to the Hon’ble Forum that one Sri. H.Hanumanthappa was working as “D” Group official and his pension was fixed a sum of Rs.1,661/- as per opponent P.P. No.PY/KRP/00021318, Dated: 16.11.2012, one Sri.H.Veeraiah who was working as “Accounts Officer” and his pension was fixed a sum of Rs.1,153/- as per opponent dated: 03.02.2009 and Sri.P.Sanjeevappa who was working as Manager and his pension was fixed a sum of Rs.1,674/- vide P.P.O. No.PY/KRP/00019610, dated: 09.04.2012, the aforesaid officials are lower cadre, drawing lower salary and getting higher pension, service is also lesser when comparing to the complainant including while fixation of his pension.”

It is worth to note that, the present complainant indisputably joined service on 01.09.1974 and got retired on 30.04.2011. It is equally indisputable that the said Sri.P.Sanjeevappa being a junior who entered in service on 01.12.1975 got retired on 30.05.2011. In spite of the identical situations we are at loss to know how come the said Sri.Sanjeevappa is to receive monthly pension of Rs.1,674/- as against monthly pension of Rs.1,092/- granted by the very OP to this complainant?

(d) We cannot agree to the contention of this OP that, 01.01.1997 must be the date of fixation of pension under the said scheme in as much as on this date only EPF Code No. KN/19672 came to be assigned to the complainant which aspect the very complainant affirmed while giving the application in form No.10D for grant of monthly pension. The OP has unnecessarily strained under the shield of technicality only to prevent this complainant from getting his legitimate claim realized by advantage of weightage period of two years.

(e) When such a situation did arise in huge number which led to passing of the said three common orders by the learned Consumer Disputes Redressal Forum, Shimoga, unhesitatingly the relief came to be granted to them. Since the principles relied by the learned District Consumer Disputes Redressal Forum, Shimoga, in the said three cases that led to assign reasonings in support of the findings given, we are bound to apply the same to the case on hand as the present complainant is a victim akin to the complaints in the said cases.

(f) So we find it essential to reproduce the reasonings maintained by the learned District Consumer Disputes Redressal Forum, Shimoga, in C.C. Nos. 66, etc., the relevant paragraphs read thus:-

“09) Point No.2:- Sri.G.A.Ekalavya and Smt.G.Geetha Bai learned counsel for the complainants have advanced two fold arguments to canvass that calculation made by the Regional Provident Fund Commissioner, Hubli to arrive at pension figure, is wrong. Firstly, it was submitted that weightage of two years, for which complainants are entitled under para 10(2) of 1995 scheme, was not taken into account to calculate monthly members pension and secondly, it was argued that complainants are entitled for higher past service pension benefit under para 12(3) or 12(5) on the basis of their pensionable service. Per contra, it was argued on behalf of the opponent that complainants who did not render 20 years of service subsequent to 16.11.95 are not entitled for weightage of two years and that past service pension has been calculated as per amended para 12 which is just and proper.

10) Before proceeding to examine the correctness of rival contentions, it is necessary to bear in mind that Employees Provident Fund (Misc provisions) Act 1952 is a beneficial piece of legislation, that for the welfare of employees schemes were framed under section 6A of the said Act and that the provisions of the Act and the Schemes should be liberally construed, keeping in view the benevolent object and purpose of the Act and the scheme, so as to benefit the employees.

11) In this back ground we have to examine and consider the materials on record.

Para-10 of EPS 1995 reads as under:-

“10. Determination of pensionable service:-

The pensionable service of the member shall be determined with reference to the contributions (received or receivable) on his behalf in the Employees Pension Fund.
In the case of the 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 adding a weightage of 2 years”.

12) The term “Pensionable Service” is defined under para-2(XV) of EPS 1995 which reads as under:-

“Pensionable service means the service rendered by the member for which contributions have been received or receivable”.

13) It is undisputed that all the complainants have contributed under EFPS 1971. It was argued on behalf of the complainants that as the contributions were made by the complainants under both schemes and as they have superannuated at the age of 58 years or rendered 20 years or more ‘Pensionable Service’, they are entitled for weightage of two years it was submitted on behalf of opponent that the contribution made under EFPS 1971 was hardly 1.1/6^th % (2.32% including contribution of employer) which was negligible and the contribution under EPS 1995 was 8.33% and therefore “pensionable service” in para-10 of the scheme refers only to the service rendered from 16.11.1995 (on which date EPS 1995 came into force) and not earlier. This argument is devoid of merit for the simple reason that percentage of contribution is not relevant to determine “Pensionable Service” under EPS 1995. In other words, difference in percentage of contribution to the pension fund does not make any difference in “Pensionable Service”. Opponent has not cited any authority to support his contention that “Pensionable Service” mentioned in para-10(2) applies only to service rendered by an employee subsequent to 16.11.1995 or contribution made to the fund under EPS 1995. It is important to note that para-3(4) of EPS 1995 provides that:-

“The net assets of the Family Pension Scheme 1971 shall vest in and stand transferred to the Employees’ Pension Fund”

This clearly shows that the contribution made by the complainants to EFPS 1971 cannot be ignored on the ground that the percentage of contribution was meager or less compared to the contribution made under EPS 1995. If the intention of the authors of EPS 1995 was only to consider the contribution made to EPS 1995 or service rendered from 16.11.1995 to give two years weightage, they would have used the word “Actual Service” instead of “Pensionable Service” in para 10(2) of EPS 1995. The language employed in para 10(2) suggest that service rendered under EFPS 1971 and EPS 1995 shall be considered to give benefit of two years weightage to the eligible employees.

14) Exactly the similar question was considered by our State Commission in Appeal No.1256/2009 (The Regional P.F. Commissioner V/s M.D.Veerapur) which was decided on 21.08.2009. It was a case in which the complainant M.D.Veerapur had rendered 24 years of past service (under EFPS 1971) and 8 years of actual service after opted to EPS 1995. His pension was fixed without giving benefit of weightage of two years and the same was challenged before District Forum in C.C.No.745/2008 which was allowed on 4/2/2009. The Regional Provident Fund Commissioner questioned the correctness of the said order in the above Appeal (No.1256/2009). In that appeal it was argued on behalf of appellant (Opponent) that the pensionable service referred in para 10(2) of EPS 1995 refers to the service rendered after 16/1/1/1995 on which date EPS 1995 came in to force. Said contention was rejected by the State Commission and it was held that “Pensionable Service” of complainant was from 01/03/1972 on that date he had become member of EFPS 1971. Accordingly, it was held that complainant M.D.Veerapur was entitled for weightage of two years. Feeling aggrieved by the dismissal of appeal Regional Provident Fund Commissioner, Hubli preferred Revision before National Commission in R.P. No.3970/2009 which was decided on 29.06.2010. Contention of Regional Provident Fund Commissioner, Hubli, that Veerapur had rendered only 8 years of pensionable service and not 20 years or more as required under para 10(2) and therefore he was not entitled for weightage of two years was rejected by the National Commission. It was clearly held by the National Commission that “Pensionable Service” of M.D. Veerapur was more than 20 years and that he was entitled for weightage of two years. This decision aptly applies to the facts of all these cases.

15) However, it was argued that the decision in Veerapur’s case was challenged before the Apex Court in Special Leave to Appeal No.3084/10 which was dismissed with an observation that “the question of law kept open.” It was further argued that law laid down by National Commission did not get the seal of Hon’ble Supreme Court and the same cannot be blindly followed. However, it was not pointed out as to which question of law was kept open by the Hon’ble Apex Court. Opponent has not disclosed before us the grounds urged or the question of law raised before the Apex Court in Special leave to Appeal No.3084/2010. Therefore, the observation made by the Apex court that “the question of law kept open” does not take away binding nature of decision of National Commission in Veerapur’s case.

16) It was further submitted on behalf of opponent that the judgment in Veerapur’s case is “per in curium” and this forum is not bound to follow the same and this forum has to independently decide applicability of para 10(2) of E.P.S. 1995 to the complainants. A plain reading of judgment in Veerapur’s case shows that the National Commission has considered in depth the scope of para 10(2) of the scheme and also the definitions of the terms “actual service” “existing member” “past service”, and “pensionable service”. Opponent has failed to demonstrate as to which provision of 1995 scheme was not considered by National Commission and that if that provision was considered National Commission could have come to a different conclusion and consequently dismissed the complaint of M.D.Veerapur. When the National Commission has considered relevant provisions and the argument advanced on behalf of Regional – Provident Fund commissioner that only the service rendered after 16.11.1995 shall be considered for the purpose of para 10(2) and rejected the same by giving reasons, the contention of the opponent that judgment of National Commission is “per-in-curium” and does not find this forum holds no water.

17) Subsequent to the decision of National Commission in Veerapur’s case, number of appeals touching the same point have been decided by our State Commission in Appeal numbers 2449 to 3458, 1134 to 1140/2010 and Appeal No. 6662705/12. In all these decisions the State Commission has held that the service rendered prior to 15.11.1995 and subsequent to 16.11.1995 shall be taken in to account for the purpose of para-10(2) of E.P.S.1995. It was not argued that the decisions in the above said appeals have been challenged before National Commission.

18) It was vehemently submitted that pension was calculated as per “Manual of Accounting Procedure” in which it is clearly provided that employees who have put in 20 years of service after 16.11.1995 are entitled for weightage and that combined reading of “Manual” and Para 10(2) of EPS 1995 leave no room to doubt that employees who have rendered 20 years of service after EPS 1995 came in to force are entitled for weightage, of two years. Similar contention was raised before National Commission in Veerapur’s case which was negative by observing,

“Paragraph 6.2.13 of the Manual of Accounting Procedure which provides that the weightage is due to be given only in the year November 2015 does not get any support from any provision in the Employees’ Pension Scheme, 1995 and the said paragraphs of 6.2.13 in the Manual Accounting Procedure is not in accordance with the provisions in the Employees’ Pension Scheme 1995”

In the following decisions:-

2004 lawsuit Kar 307
2009(5) SSC 24
AIR 2004 S.C. 1657

It has been held that circular, hand book and manual cannot over ride or run against provisions of law. So, “Manual of Accounting procedure” relied on by the opponent cannot be a feather in the cap of opponent.

19) Para 10(2) of EPS 1995 was amended w.e.f. 24.07.2009. As per the amended provision an employee has to fulfill following two requirements to claim weightage of two years.

Retirement on attaining 58 years of age and
Must have rendered 20 years of Pensionable service.

Complainants in all these cases have retired prior to amendment of para 10(2) of EPS 1995. They are entitled for weightage of two years if they had rendered 20 years or more service or retired on attaining age of 58 years. Undisputedly complainants have rendered past service and actual service as

*Sl.* *No.*	*C.C. No.*	*Past Service*	*Actual service*	*Pensionable Service*
1	2	3	4	5
1	*66/13*	22	10	32
2	*72/13*	24	3	27
3	*73/13*	24	6	30
4	*75/12*	21	7	28
5	*76/12*	23	12	35
6	*77/12*	24	0	24
7	*79/12*	24	1	25
8	*80/12*	22	5	27
9	*81/12*	17	13	30
10	*83/12*	24	4	28
11	*84/12*	7	13	20
12	*85/12*	20	0	20
13	*86/12*	23	11	34
14	*87/12*	24	2	26
15	*88/12*	20	12	32
16	*89/12*	21	13	34
17	*90/12*	23	10	33
18	*91/12*	20	11	31
19	*92/12*	20	9	29
20	*93/12*	24	1	25
21	*94/12*	16	9	25

From the above, it is clear that all the complainants have rendered more than 20 years of pensionable service and therefore all of them are entitled for weightage of two years. Without giving the benefit of weightage of two years R.P.F. Commissioner has wrongly fixed the pension of all these complainants which is nothing short of grave deficiency in service.

20) Coming to the second limb of argument namely past service benefit under para 12(3), to 12(5), it is an admitted fact that R.P.F. Commissioner has calculated the same as per amended para12 of EPS 1995. Amendment was made in 2007 and it was given retrospective effect from 16.11.1995. It was argued by the counsel for complainants that amendment made with retrospective effect cannot take away accrued right of the complainants who had retired before amendment of para-12 on 15.06.2007. In the decisions reported in

AIR 1979 SC 592, 2. AIR 1983 SC 1143
1984 Law Suit (Supreme Court) Page 122
AIR 1997 (Supreme Court) Page 3828

It has been held that by making amendment or enacting law with retrospective effect, accrued right of a person cannot be away. Suffice it to refer to the full bench decision reported in 1984 Law Suit SC 122 in which their Lordships following the decisions of Apex Court in AIR 1984 (SC) 161 and AIR 1973 (SC) 1146, have held that the accrued right cannot be taken away by making amendment retrospectively. In these cases on hand except the complainants in CC Nos. 76/13, 81/13, 84/13, 88/13 and 89/13 others complainants retired before amendment and right had accrued in their favour to receive past service pension as per un-amended provision. Past service pension fixed to those who retired after amendment (CC Nos.76/13, 81/13, 84/13, 88/13 and 89/13) is also not in accordance with amended para 12 of EPS 1995. If the provision of para 12 as it was before amendment and after amendment is applied, it is clear that the past pension benefit given is not in accordance with law in all the cases. Failure to give benefit as per un-amended para-12(3) to (5) is another deficiency in service on the part of R.P.F. Commissioner.

21) It is in evidence that the anomalies in fixing the pension were brought to the notice of the opponent in writing. Despite the same, the opponent did not care to refix the pension of the complainants by giving weightage of two years and permissible past service benefit under para-12(3) to 12(5) whichever is applicable. It is important to note opponent (The Regional Provident Fund Commissioner, Shimoga) has stepped into the shoes of R.P.F. Commissioner, Hubli who had fixed pension of these complainants and therefore notice was given to opponent. It is the opponent who has authority to refix the pension of complainants. For the above reasons, this point is answered in favour of the complainants holding that opponent has committed deficiency in service.

22) Point No.3:- Some of the complainants have claimed damages of Rs.50,000/- for the mental agony, inconvenience, stress, turmoil and suffering an account of deficiency in service by the opponent and some of the complainants have not quantified the amount of compensation. General damage is awarded when there is actual loss. Though the complainants have been denied part of pension amount, general damages cannot be awarded because the relief prayed by them is for re-fixation of pension, which relief we are going to grant. It is true that the complainants are deprived of the benefit of portion of pension amount for all these days. Because we are going to award interest for belated payment, the same will take care of monitory loss and inconvenience of complainants. It is natural that complainants have suffered some sort of mental agony as the pension was fixed at much lower rate and the same was not re-fixed in-spite of their request, for which they are entitled for compensation. We are of the view the complainants are entitled for compensation of Rs.5,000/- each.

23) Since the opponent has not taken weightage period of two years into consideration while fixing monthly pension and not taken the minimum prescribed under para-12(4)(b) of 12(5)(b), it is inevitable to direct the opponent to refix the pension taking into consideration the observations made in the body of this order. We are of the opinion that complainants are entitled for Interest 6% p.a. on belated payment to be made by the opponent. Complainants in CC/66/13, 72/13, 73/13 and 94/13 are the widows of deceased employees. When the pension fixed in favour of their husbands is to be refixed, it goes without saying that widow pension payable to them changes. Therefore, it is necessary to direct the opponent to refix widow pension of the complainants in CC/66/13, 72/13, 73/13 and 94/13. Accordingly this point is answered partly in the affirmative. In the result, we proceed to pass the following order.”

(g) Since similar are the guidelines in rest of the two said common orders we refrain from reproducing the said guidelines and the reasonings in as much as above quoted guidelines and reasonings are almost one and the same.

(h) Therefore we direct the OP to re-fix the pension of this complainant by calculating superannuation pension by necessarily giving weightage of two years by bearing in mind that, this complainant entered the service on 01.09.1974 and retired on 30.04.2011 on attaining superannuation, as well, without forgetting the facts that right from day one of service till retirement the employer had dedicated the contributions towards PF and this complainant was member of Employees Family Pension Scheme 1971 and thereafter Employees Pension Scheme, 1995, which aspects would make him eligible for such a weightage of two years.

(i) Since the OP has been deficient in service in a very gross manner we award interest @ 8% per annum as against claim preferred at the rate of 10% per annum for the beleated payment from the due date till realization, on difference amount.

(j) For no fault the complainant has suffered humiliation for all these years and hence we award compensation of Rs.10,000/- together with interest @ 9% per annum from 04.12.2015 being the date of the complaint till realization.

POINT 6:-

17. We proceed to pass the following:-

ORDER

01. For foregoing reasons this complaint stands allowed with costs of Rs.2,500/- as against the OP as hereunder:-

(a) The OP shall re-fix the pension of this complainant by taking in to consideration weightage of two years by bearing in mind that the complainant from 01.09.1974 till retirement on account of superannuation on 30.04.2011 rendered unbroken service and was a member of the Employees Family Pension Scheme, 1971 and thereafter continued to be member of Employees Pension Scheme 1995 for which every month there was contribution from the employer also towards the provident fund. And this revised pension shall be paid to the complainant after adjusting the pension he has already been given with interest @ 8% pa from the due date till realization.

(b) Further the OP shall pay compensation of Rs.10,000/- to this complainant together with interest @ 9% pa from 04.12.2015 being the date of the complaint till realization.

(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 MARCH 2016)

MEMBER MEMBER PRESIDENT