Per Sri A. Hazarath Rao, President:-

          The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking arrears of pension amounting to Rs.15792/- and Rs.2842/- as interest @18% p.a., on Rs.15,792/- due to wrong fixation of pensionary benefits and Rs.10,000/- towards mental agony and for costs.    

2.  In brief the averments of the complaint are hereunder:

          The complainant worked as a black smith in APSRTC, Repalle Depot, Guntur district and opted Employees Pension Scheme-1995.  The complainant had put up 19 years of past service up to 15-11-95 and thereafter 11 years actual service totaling to 30 years.  The wage of the complainant on 15-11-95 was Rs.3950/- and pensionable salary was Rs.11698/-.   The complainant is entitled to weightage of two years and past service benefit as per Employees’ Pension Scheme, 1995. The opposite parties wrongly fixed monthly pension of the complainant at Rs.2242/- in stead of Rs.2973/- under both counts.   The opposite parties have to pay the arrears with interest from 01-04-10 onwards.   The representations of Retired Employees Association and personal requests of the complainant did not fructify.   The said conduct of the opposite party amounted to deficiency of service and caused mental agony.  The complaint therefore be allowed.

3.   The contention of the opposite parties in nutshell is hereunder:

          The complainant is not entitled for weightage of two years over and above his pensionable service i.e., the service rendered from  16-11-95 to the date of retirement as per EPS scheme, 1995.   Under the Family Pension Scheme-1971 the employee and the employer used to contribute.   Under the present scheme of 1995 the employee is not at all contributing.   The employer alone is contributing @8.33% of the wages.   The complainant already enjoyed the benefit under the old scheme and as such cannot have the advantage of double benefit.   Eligible service means the aggregate of actual service and past service.  But pensionable service is not eligible service.   The complainant completed fifteen years of service after the advent of EPS scheme, 1995.   New entrants into job after 16-11-95 are only entitled to weightage.   The authorities fixed the pension correctly and need not be corrected and did not commit any deficiency of service.  Rest of the allegations contra mentioned in the complaint are all false and were invented to suit their case.  The complaint therefore be dismissed.

4.    Exs.A-1 to A4 were marked on behalf of complainant.   No documents were marked on behalf of the opposite parties.

5.   Now the points that arose for consideration in this complaint are:

1. Whether the opposite parties did not fix the pension as per rules and thereby committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

6.  POINT No.1:-   The deficiency of service alleged by the complainant is that the opposite parties did not fix the pension properly and failed to give the weightage of two years under paragraph 2 of the Employees’ Pension Scheme, 1995.    On the other hand, the opposite parties contended that they fixed the pension correctly as per rules in vogue. 

7.      The complainant relied on the decision of National Consumer Disputes Redressal Commission, New Delhi, reported in the Regional Provident Fund Commissioner, Karnataka vs. Mallikharjuna Devendrappa, Verapur (RP No.3970 of 2009) decided on 21-08-09 (Ex.A-4).  In the said case the complainant therein had put up 24 years service as on 15-11-95 and thereafter 8 years after 15-11-95 prior to his retirement. The Hon’ble National Consumer Disputes Redressal Commission considered the aspect of actual service, existing member, past service as defined under rule 2(ii), (vi), (xii), eligible service as defined under the manual of accounting procedure and rules 10(2) and 12(3) and (4) of the Employees’ Pension Scheme, 1995 and held that the complainant therein was entitled to two years weightage under rule 10(2) of the Employees’ Pension Scheme, 1995.    

8.  Rule 9 (b) of the Employees’ Pension Scheme, 1995 says that past service also shall be treated as eligible service if the employee contributed towards Employees’ pension fund.  It is not the case of the opposite parties that the complainant did not contribute towards Family Pension Scheme, 1971.   The above decision is therefore squarely applicable to the facts of this case.

9.  This Forum on 08-10-12 in IA 269 of 2012 filed under Section 24(A) of the Consumer Protection Act passed the following:

                    “The petition is allowed partly holding that questioning of fixation of pension wrongly is in time; but the claim of the petitioners beyond two years prior to filing the complaint in barred by time.”

          The above order became final as both parties did not carry the matter before the appellate Forum.

10.  The service particulars of the complainant as mentioned in Ex.A-1 are not disputed.  The complainant had put up 19 years of past service and 11 years of pensionable service.  As seen from Ex.A-1 the opposite parties did not add two years of weightage to pensionable service.  

11.   Rule 12 (3) of the Employees’ Pension Scheme as substituted by                    G.S.R. 431 (E) dated the 15^th June, 2007 was given retrospective affect from 16-11-95 and it reads as follows (43^rd Edition – February, 2012 published by M/s Madras Book Agency):

           “(3) In the case of an existing member in respect of whom the          date of commencement of pension is after 16^th November,         2005:

(i) Superannuation or early pension shall be equal to the                                       aggregate of: -

          (a) Pension as determined under sub-paragraph (2) for the                period of Pensionable service rendered from the 16^th            November, 1995 or Rs 635/- per month whichever is more;

          (b) Past service pension shall be as given below: -

          The past service pension payable on completion of 58 years of age on                   the 16^th November, 1995.

(ii) The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.800/- per month, provided the eligible service is 24 years. Provided, further if it is less than 24 years, the pension as computed above shall be reduced proportionately subject to a minimum of Rs. 450/- per month”.

12.  The amount under column (2) or (3) above, as the case may be, shall be multiplied by the factor given in Table ‘B’ corresponding to the period between the 16^th November, 1995 and the date of exit to arrive at past service pension payable (emphasis supplied).

13.  As per rule 12 (3) (ii) the past service has to be calculated by deducting the date of retirement/exit from service from 16-11-95.   After that the past service benefit has to be calculated with the amount shown in 12(3)(i) table and a factor mentioned in table-B.   The complainant is entitled to past service benefit in our considered opinion and comes under the purview of rule 12(3) of Employees’ Pension Scheme, 1995 as retired after 16-11-05.    The complainant claimed past service benefit at Rs.800/-.  The opposite parties contended that they calculated pension correctly.   

14.  The learned counsel for the complainant contended that under Rule 12(3)(ii) the complainant is entitled to the minimum of Rs.800/- pm as past service benefit and Rs.335/- towards pensionable service.   The phrase ‘the aggregate of (a) and (b) calculated as above’ used in clauses 12(3)(ii) has to be read together but not disjunctively.  In view of the above discussion the said contention of the complainant is devoid of merit.

15.    Past service benefit/pension payable u/s 12(3)(i)(b) of the Employees’ Pension Scheme, 1995:  The period between 16-11-95 and the date of exit has to be taken into consideration to arrive past service benefit payable.  The complainant was drawing Rs.3950/- pm as on 15-11-95.  As the complainant rendered 11 years 5 months and 25 days (less than 12 years) of past service and was drawing more than Rs.2,500/- he is entitled to Rs.105/- pm multiplied by 2.423 as per table ‘B’ and it comes to 105x2.423=Rs.254 as past service benefit. 

16.  Superannuation or early pension u/s 12(3)(i)(a) of the Employees’ Pension Scheme, 1995: pensionable salary was Rs.11698/- and actual pensionable service according to the opposite parties is 11 years.  It was already observed that the complainant is entitled to weightage of two years. On calculation the complainant is entitled to Rs.11698x13/70=2172/-.  

17.    In view of the above discussion, we opine that the complainant is entitled to Rs.2172/- actual service benefit (+) Rs.254/- past service benefit totaling to Rs.2426/-.  The opposite parties fixed the complainant’s pension at   Rs.2242/-.  We therefore opine that the complainant is entitled to the difference of Rs.2426 - Rs.2242=Rs.184 pm and answer this point accordingly in favour of the complainant.

18.    POINT No.2:-      The complainant claimed Rs.10,000/- as compensation. It is not the case of the complainant that the opposite parties acted maliciously.  Under those circumstances, the complainant is not entitled to any compensation.   We therefore answer this point against the complainant

19.  POINT No.3:-    In view of above findings in the result the complaint is partly allowed as indicated below:

1.  The opposite parties are directed to fix the pension of the                                 complainant at Rs.2426/- p.m., raising from Rs.2242/-                                (earlier fixed) with effect from 01-07-13.

2. The opposite parties are directed to pay arrears @Rs.184/- pm                          (Rupees one hundred and eighty four only) till fixation of pension                   at Rs.2426/- pm together with interest @12% p.a., from

          due date.

3.  There is no order as to costs.        

4.  The above order shall be complied within a period of six                                    weeks from the date of receipt of the copy of the order.                               

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 22^nd of May, 2013.

MEMBER                                  MEMBER                             PRESIDENT

APPENDIX OF EVIDENCE

                                                                                                                                          DOCUMENTS MARKED

For Complainant :

For Opposite Parties:    NIL 

                                                                                      PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.