Karnataka

Chitradurga

CC/101/2015

H.Veeraiah S/o. Horakerappa - Complainant(s)

Versus

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

In Person

05 Aug 2016

ORDER

COMPLAINT FILED ON : 07/12/2015

     DISPOSED ON: 05/08/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 101/2015 DATED:  5th August 2016

 

PRESENT :-         SRI. T.N. SREENIVASAIAH : PRESIDENT                                             B.A., LL.B.,

                             SRI. N.THIPPESWAMY        : MEMBER                                         B.A., LL.B.,                  

                                     

COMPLAINANT	H. Veeraiah, S/o Horakerappa, R/o Near DRCS Office, B.L. Gowda Layout, Chitradurga.   (In Person)
OPPOSITE PARTY	The Regional Provident Fund Commissioner, Sub-Regional Officer, III Floor, SVL Towers, Parvathi Nagara, Bellary-583 103   (In Person)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the Opposite Party (herein called OP) for direction to the OP to re-fix pension of the complainant by calculating superannuation pension by giving weightage of two years with interest at 10% p.a for the belated payment from the date it has fallen due, Rs.10,000/-  towards mental agony, Rs.5,000/- towards costs and such other reliefs.

2.      The brief facts of the case of the complainant are that, he joined into service on 03.10.1975 at Primary Agriculture and Rural Development Bank Ltd., Challakere as a Supervisor and retired from service on superannuation on 28.02.2011 at Primary Agriculture and Rural Development Bank Ltd., Kolar without any break.  It is further submits that, after his retirement pension was sanctioned under PPO No.GB/BLR/00011241 and its PF Account No.PY/KRP/0019427/000/0000034 and his original pension was Rs.1,153/- and monthly pension was fixed at Rs.1,153/- as on 07.06.2013 vide Sanction No.GB/BLR/Pension/2013 by the OP and the date of commencement of pension was 02.03.2009, at that time he was working at PCARD Bank Ltd., Chitradurga as Accountant Officer.  He served for more than 20 years and during his service he has contributed PF amount including Past Accumulation to the OP without any break.  During his employment he was enrolled as members of the employees family pension scheme(EPS) 1971 and after formulation of EPS, he opted the said scheme from the date of its inception.  The complainant retired from service after attaining superannuation.  It is further submitted that, the pension fixed by the OP to him was not in accordance with the scheme.  So, the complainant approached the OP and requested to furnish information with regard to less fixation of pension by comparing Sri. H. Hanumanthappa, as he is lower cadre i.e, Group-D and his pension was fixed at Rs.1,661/- as per PP No.PY/KRP/000213118 dated 16.11.2012, who was drawing lesser salary and the service was also lesser comparing to the complainant.  The complainant approached and requested the OP to re-fix the pension but, it went in vain.  The act of the OP in wrong calculation of the pension caused the complainant both mental agony and financial loss and etc., and prayed for allow the complaint.

 

          3. On service of notice, OP has appeared in person through its Assistant P.F Commissioner and filed version stating that, the complainant was a member of Employees Family Pension Fund 1971 and he came under the definition of existing member.  The pension is calculated in two parts being past service i.e., period from joining the EPS Scheme 1971 till 15.11.1995 and pensionable service from 16.11.1995 till superannuation i.e., attaining age of 58 years.  The formula pension under EPS, 1995 was computed as per para 12(3)(a) of EPS, 1995 by taking service rendered from 16.11.1995 to the date of exit i.e., 02.02.2009.   It is further submitted that, complainant requested to revise the pension payment order by allowing the weightage  two years as provided under para 10(2) of EPS, 1995, which was amended by Government of India on 24.07.2009 which reads as "In 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 weightage of two years.  Hence, para 10(2) was amended by Government of India on 24.07.2009 by substituting the words and/or with and para (2) after amendment reads as "In case of the member who superannuates on attaining the age of 58 years, and who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of two years". In this case, the superannuation pension i.e., pension at the age of 58 years commenced to the complainant prior to 24.07.2009 and he left the service on 02.02.2009 and accordingly, an amount of Rs.1,339/- is being paid to the complainant after giving two years weightage, which is in accordance with the EPS, 1995.  Though the complainant has worked for more than 20 years, the complainant has enrolled to EPS 1995 w.e.f., 01.09.1996 so, the past accumulation service benefit cannot be taken as it is against the provision of the Act. 

It is further submitted that, the past accumulation service cannot be taken into FPF Scheme 1971/EPS 1995 i.e., the period from 20.04.1980 to 31.08.1996.  The complainant has contributed to the EPS 1995 only from 01.09.2006 to 02.02.2009 so, the past accumulation benefit has not been taken.  The pension has been fixed in accordance with the scheme which is strictly compliance with the provisions of para 10 and 12 of EPS, 1995 and there is no discrepancy or grievance in fixing the pension to the complainant.   In view of the above stated facts prayed for dismissal of the complaint.

 

          4. Complainant himself examined as PW-1 by filing affidavit evidence and Ex.A-1 to A-7 documents have been marked. 

 

          5. OP has examined one Sri. M. Ravi, Assistant P.F. Commissioner of OP as DW-1 by filing affidavit evidence and Ex.B-1 to B-4 documents have been marked. 

 

          6. Both the sides have filed written arguments and oral arguments also heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, OP has committed deficiency of service in fixing the pension and entitled for the relief as prayed in the complaint?

 

Point No.2:- What order?

 

          8. Our findings on the above points are as follows:

 

          Point No.1:- Partly Affirmative.

          Point No.2:- As per the final order.

                                                ::REASONS::

 

9. Point No. 1:- It is not in dispute that the complainant joined into service on 03.10.1975 as a Supervisor and retired from service on superannuation dated 28.02.2011 as Accountant Officer without any break.  His pension was sanctioned under PPO No.GB/BLR/00011241 and its PF Account No.PY/KRP/0019427/000/0000034 and his original pension was Rs.1,153/- by fixing at Rs.1,153/- as on 07.06.2013 vide Sanction No.GB/BLR/Pension/2013 by the OP and the date of commencement of pension was 02.03.2009.  He served for more than 20 years and during his service he has contributed PF amount including Past Accumulation to the OP without any break and he was enrolled as member of the employees family pension scheme(EPS) 1971. The complainant retired from service after attaining superannuation and the pension fixed by the OP to him was not in accordance with the scheme.  The complainant approached and requested the OP to re-fix the pension but, it went in vain so, this complaint has been filed.

 

10.    In support of his contention,  complainant has relied on his affidavit evidence, in which it has reiterated the contents of complainant and also riled on documents like certified copy of judgment in C.C. No.66/2013 connected with other cases passed by the District Forum, Shimoga dated 31.08.2013 marked as Ex.A-1, letter dated 09.12.2015 by the OP wherein it has been stated that, past accumulations services cannot be taken into EPF Scheme 1971/EPS 1995.  Further two years weightage benefit has been given and monthly pension has been revised from Rs.1,153/- to Rs. 1,339/- and arrears pension calculated an amount of Rs.15,240/- w.e.f., 03.02.2009 to 30.11.2015 marked as Ex.A-2, letter written by the Asst. Provident Fund Commissioner, Shimoga to one Sri. C. Dandapani is marked as Ex.A-3, particulars of pensioner in respect of Sri. C. Dandapani marked as Ex.A-4, Details of pensioner in respect of complainant marked as Ex.A-5, PPO order belongs to complainant marked as Ex.A-6 and particulars of pensioner and letter by the OP with regard to the preparation of PPO are marked as Ex.A-7.     

 

11.    On the other hand, it is argued by the OP that, the complainant was a member of Employees Family Pension Fund 1971 and he came under the definition of existing member and he retired from service on 28.02.2011.  His pension has been fixed at Rs.1,153/- vide PPO No.GB/BLR/11241.  Later as per circular dated 26.11.2013 and Corrigendum No.Pen (A & C)/RP No.867-880/2012/NCDRC/KN-Kallurappa/11827 dated 05.12.2013, an amount of Rss.1,339/- as original pension is being paid to the complainant after two years weightage.  Though the complainant has worked for more than 20 years, the complainant has enrolled to EPS 1995 w.e.f., 01.09.1996 so, the past accumulation service benefit cannot be taken as it is against the provision of the Act.  In this case, the superannuation pension i.e., pension at the age of 58 years commenced to the complainant prior to 24.07.2009 and he left the service on 02.02.2009 and accordingly, an amount of Rs.1,339/- is being paid to the complainant after giving two years weightage, which is in accordance with the EPS, 1995. 

12.    It is further argued that, the past accumulation service cannot be taken into FPF Scheme 1971/EPS 1995 i.e., the period from 20.04.1980 to 31.08.1996.  The complainant has contributed to the EPS 1995 only from 01.09.2006 to 02.02.2009 so, the past accumulation benefit has not been taken.  The pension has been fixed in accordance with the scheme which is strictly compliance with the provisions of para 10 and 12 of EPS, 1995 and there is no discrepancy or grievance in fixing the pension to the complainant.  

          13.    In support of its contentions,  OP has relied on affidavit evidence of its Assistant Manager, in which it has reiterated the contents of version.  OP has also riled on documents like copy of calculation of pension before 2 years of weightage marked as Ex.B-1, copy of calculation of pension after 2 years of weightage marked as Ex.B-2, letter dated 26.11.2013 and Corrigendum by the Regional Provident Fund Commissioner-I (Pension), New Delhi marked as Ex.B-3, Note dated 05.01.2016 and authority letter dated 05.01.2016 by the Assistant Provident Fund Commissioner marked as Ex.B-4.      

 

14.    The complainant has argued that, the calculation made by the Regional Provident Fund Commissioner, Bellary to arrive at pension figure, is wrong.  It was submitted that weightage of two years, for which complainant is entitled under para 10(2) of 1995 scheme, was not taken into account to calculate monthly members pension and secondly, it was argued that, complainant is entitled for past service pension benefit under para 12(3) or 12(5) on the basis of his pensionable service.  Per contra, it was argued on behalf of the OP that, complainant who did not render 20 years of service subsequent to 16.11.2015 is not entitled for weightage of two years and that past service pension has been canculated as per amended para 12.  

 

15.    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 scheme were named under Section 6 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. 

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:

1. 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.
2. 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 two years."

 

 

16.    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."

      

17.    It is undisputed that the complainant has contributed under EFPS 1971.  It is argued by the complainant that, as the contribution was made by him under both schemes and as he has superannuated at the age of 58 years and rendered 20 years or more pensionable service, he is entitled for weightage of two years.  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."

 

          18.    This clearly shows that contribution made by the complainant to EFPS 1971 cannot be ignored on the ground that the contribution was meager or less compared to the contribution made under EPS 1995.  If the intention of the author 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. 

 

          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. 

 

1. Retirement on attaining 58 years of age and
2. Must have rendered 20 years of pensionable service.

 

20.    Complainant in this case has rendered past service and actual service. Complainant has rendered more than 20 years of pensionable service and also retired at the age of 58 years and therefore, he is entitled for weightage of two years.  So, without giving the benefit of weightage of two years OP has wrongly fixed the pension of the complainant which is a deficiency of service.

 

21.    Coming to the aspect of past service benefit under para 12(3) to 12(5), it is an admitted fact that OP has calculated the same as per the amended para 12 of EPS 1995. 
Amendment was made in 2009 and it was given retrospective effect from 16.11.1995.  It is argued by the complainant that, amendment made with retrospective effect cannot take away the accrued right of the complainant who had retired before amendment of para 10(2) on 24.07.2009.  In the decisions reported in,

1. AIR 1979 SC 592, 2. AIR 1983 SC 1143
2. 1984 Law Suit (SC) Page 122
3. AIR 1997 (SC) Pag 3828

22.    It has been held that by making amendment or enacting law with retrospective effect, accrued right of a person cannot be away.  If the provision of para 10(2) as it was before amendment or after amendment is applied, it is clear that the past pension benefit given is not in accordance with law.  Failure to give benefit as per un-amended para 10(2) is deficiency in service on the part of OP. 

 

23.    It is in evident that the anomalies in fixing the pension were brought to the notice of the OP in writing.  Despite the same, the OP did not care to refix the pension of the complainant by calculating and giving weightage of two years and permissible past service benefit under para 10(2) whichever is applicable.  It is important to note that OP has stepped into the shoes who has fixed the pension of the complainant.  The contention taken by the OP that, though the complainant has worked for more than 20 years, the complainant has enrolled to EPS 1995 w.e.f., 01.09.1996 so, the past accumulation service benefit cannot be taken as it is against the provision of the Act, cannot be accepted and the same is deficiency of service on the part of OP.  It is the OP who has authority to re-fix the pension of the complainant by adding two years weightage.  In view of the above, we come to the conclusion that, the OP has committed deficiency of service in fixing the pension of the complainant by calculating the superannuation pension by giving weightage of two years, the complainant is eligible for the same.  For the above said reason, Point No.1 is held as partly affirmative to the complainant.

24.    For the foregoing reasons, we pass the following.

 

ORDER

          The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that, the OP is directed to re-fix the pension of the complainant by calculating superannuation pension by giving weightage of two years to complainant who is eligible for the same along with interest at 6% p.a for the belated payment to be made to the complainant on account of re-fixation of his respective pension amount, from the date it has fallen due.

 

It is further ordered that, the OP is directed to pay Rs.5,000/-  to the complainant towards mental agony.

 

It is further ordered that, the OP is to pay a sum of  Rs.5,000/- towards the costs of this to the complainant.

 

It is further ordered that, the OP is directed to comply the above said order within two months. 

 

          (This order is made with the consent of Member after the correction of the draft on 05/08/2016 and it is pronounced in the open Court after our signatures.)

 

 

MEMBER                                                   PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of complainant:

                                                          -Nil-

OP by filing affidavit evidence of Sri. Ravi. M, Assistant PF Commissioner as DW-1:

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Copy of judgment in C.C. No.66/2013 connected with other cases passed by the District Forum, Shimoga dated 31.08.2013
02	Ex-A-2:-	Letter dated 09.12.2015 by the OP
03	Ex-A-3:-	Letter written by the Asst. Provident Fund Commissioner, Shimoga to one Sri. C. Dandapani
04	Ex-A-4:-	Particulars of pensioner in respect of Sri. C. Dandapani
05	Ex.A-5:-	Details of pensioner in respect of complainant
06	Ex.A-6:-	PPO order belongs to complainant
07	Ex.A-7:-	Letter by the OP with regard to the preparation of PPO

 

Documents marked on behalf of Opponent:

01	Ex-B-1:-	Copy of calculation of pension before 2 years of weightage
02	Ex-B-2:-	Copy of calculation of pension after 2 years of weightage
03	Ex-B-3:-	Letter dated 26.11.2013 and Corrigendum by the Regional Provident Fund Commissioner-I (Pension), New Delhi
04	Ex-B-4:-	Note dated 05.01.2016 and Authority letter dated 05.01.2016 by the Assistant Provident Fund Commissioner

 

 

MEMBER                                                   PRESIDENT

Rhr.