SRI.R. VIJAYAKUMAR, MEMBER.

            This complaint is filed U/s. 12 of the Consumer Protection Act seeking direction to the opp.party to pay monthly pension at the rate of Rs.1000/- and dearness  allowance  along  with interest at the rate of 12%  and 12% penal interest as per para 12A of EPS 1995and for return of excess amount  realized from the complainant’s, PF account  along with interest at the rate of 18%  per annum.   The complainant further prayed compensation of Rs.1000/- and cost Rs.5000/-

          Briefly stated facts of the complaint is that the complainant was a Cashew Factory worker and  retired from service on 31.12.2002 as  superannuated.  As a member in the PF Scheme and   an account holder as per Account No.KR/1172/348 she applied for pension under the  provision of EPS 1995.   The opp.party realized an exorbitant  amount in order to regularize  the service of the complainant.   All the accumulated amount was merged into the monthly pension scheme but pension  allowed in a reduced rate without any basis.   The opp.party is liable to pay pension to the complainant as per section 12  of the Scheme.   The illegal act of realization of Rs,38,851/- done by the opp.party caused much mental pain and agony to the complainant and it amounts to deficiency in service from the part of opp.party.   The complainant is entitled to get back  the balance amount from the opp.party after deducting Employers contribution and interest for the balance amount .   The complainant is also entitled to get monthly pension at the rate of Rs.1000/- and Dearness allowance along with 12% interest and 12% pensal interest as per Section 12 [A] .  Hence the complainant filed this complaint.

          The opp.party filed version contenting the allegations contained in the complaint.   The complainant has been contributing to the Employees Provident Fund with effect from 1.4.1963 bearing account No.KR/1172/348.  She remains as a non optee to the Erstwhile  Employees Family Pension Scheme 1971 and Employees Pension Scheme 1995 until 1.4.1997.  She filed an option to join the Employees Pension Scheme 1995 as under the prescribed format No.1 duly signed by the complainant and certified by the Employer.   The complainant’s membership come under para 6 [d] of Employees Pension Scheme.   The complainant had exercised option and comes under the category specified by para 7 [3] .   As per para 7 [3] referred to  in Sub paragraph [d] of Para 6 shall have the option to join the scheme as per the provisions of paragraph 17 from 16^th November 1995.   The payment on exercise of option is stipulated by para 17 of Employees Pension Scheme 1995.   This complainant comes under the category specified by paragraph 17 [3] .  As per paragraph 17 [3]members referred to in Sub-paragraph [3] of paragraph 7 shall be deemed to have joined the Employees Family Pension Scheme 1971 with effect from 1.3.1971 on remittance of past period contribution with interest there on.   This complainant never contributed to the Family Pension Scheme 1971.  On receipt of pension application along  with the application for settlement of Employees Provident Fund account without remitting the pension fund contribution due from 1..3..1971 to 15.11.1995 an amount of Rs.38857 has been diverted to the pension account NO.X from and out of the Employees Provident Fund credit.   This only enabled the complainant to get monthly pension of Rs.717/- with effect from 1.7.2002.  ROC amounting to Rs.47800/- to her nominee Sivaprasad in the event of death and commutation amounting to Rs.23,900/- to the complainant.   After surrender of 1/3 for contribution  is Rs.239/- and 10% to Return of Capital  the pensioner is entitled for monthly pension of Rs.406/-

          The complainant is liable to pay  both shares contribution pertains to Employee and Employer with interest thereon as specified by para 17[3] of Employees Pension Scheme 1995.  The complainant had already gave an undertaking in option Form No.1  to pay contribution due to the Fund.   The diversion only enabled to the complainant to acquire  eligibility to pension.   The prayer for pension without paying pension Fund contribution by the complainant and monthly pension for Rs.1000/- interest, compensation, cost etc is unsustainable.   There is no deficiency in service from the part of opp.party.   The complaint is liable to be dismissed.

          The complainant filed affidavit, PW.1 and 2 examined.   Exts. P1 series  and X1 series marked.  DW.1 examined.   Exts D1 to D5 marked

          In the  meantime, Ext. X1 series reported missing.   The document could not  traced out .   As wrote to the CDRC for reconstruction and the report was received from the Consumer Disputes Redressal Commission  the Forum directed for the production of copy of Ext. X1.  It is reported by the complainant that Ext. X1  series is not necessary in this case.  Opp.party also have no objection to the memo filed by the complainant’s counsel.

          Heard both sides.

The points that would arise for consideration are:

1.     Whether there is any deficiency in service from the part of opp.parties?

2.     Whether the recovery of contribution for the period of non receipt of wages is can be justified?

 3. Whether the complainant is entitled to get monthly pension in a enhanced rate?

4. Compensation and cost.

Points 1 to 4

          Admittedly the complainant was  Cashew Factory Worker in South Kerala Cashew Exporters, Oyoor.  She was retired from service as superannuated.  She was the holder of A/c.No.1172/348 as per the provisions of Provident Fund Act.

  The main contention raised by the complainant in this case is that the amount  realized by the opp.party  towards regularization of past service is an exorbitant amount.   According to the complainant all the required contributions were deducted from her wages by the employer and remitted to the fund as per her account No.KR/1171/348 for all  scheme covered till her retirement and it is evident  from her oral testimony and it is also evident from Ext. P1.

According to the opp.parties the complainant was not a member of EPS 1971 and FPS 1995  until 1.7.1997.   She never contributed to the EPS 1971.  She filed option to join the EPS on 25.3.1997.  For enabling her to get the monthly pension, the pension fund contribution from 1971 to 15.11.1995 an amount of Rs.38857/- has been diverted  to pension account from and out of the EPF credit

We have perused Ext.P1 .   the document shows that contributions were recovered from the complainant as per the Employees Provident Fund Scheme.   Ext.P1  series contains  the Subscribers Annual Statements of Accounts for various years..  No other document produced by the complainant to prove that the complainant  was a member and contributory of EFPS 1971.  Hence,  the argument of the complainant that all the required contributions were deducted from her wages  and the diversion of amount from the PF account to pension fund is illegal and it will not sustain.   The complainant is bound to remit 1.16% of wages as her share from 1971 along with interest at the rate of 8.33% enabling her to get monthly pension as per EPS 1995.

          The learned counsel for the opp.party would argue that the complainant remained  non optee in family pension scheme until 1.4.1997.  She had filed option to join EPS 1995 on 25.3.1997 but not remitted  till 3.8.2003.  Ext D1 clearly proves the same Ext. D4  copy of worksheet shows the calculation of the amount converted.   The break of service is arrived on the basis of EPF contribution remitted by the member from 1.3.1971 to 16..11..1995 and  thus the amount was arrived at Rs.38857/-.  Ext. D6 also reveals the said fact.   The membership of the Employees Pension Scheme is defined in para [6] of the pension scheme 1995.  Since the complainant was not a member of 1971 scheme, she comes under the category of para 6 [d]   Para 7 [3] deals with the position of those  who comes under para 6 [d] .   They have option as per para 17 [3] .  It reads “Members referred to  in sub para [3] of paragraph 7 shall be deemed to  have joined the ceased Employees Family Pension Scheme 1971 with effect from 1.3.1971 on remittance of Past period contribution with interest thereon.  Past period denotes the contribution of the complainant total past period.  Pension is calculated  on the basis of her total past service and hence she is required to contribute the share for her total service which includes the period of break in service when no wages have received by her. . In support  of his arguments the learned counsel for opp.parties produced the decision of Kerala State Consumer Disputes Redressal Commission  in appeal NO.503/03 in which it is held that the remittance of past period contribution is necessary to enable  a member to get the benefit of EPS 1995.

The counsel for the complainant also admitted that in case of non-optees  in the Family Pension Scheme .  1971 under para 6 [d] , 7[3] and 17[3] of the 1995 pension scheme, shall be liable to remit the past  period  contribution with interest there on from 1971 to 15..11..1995. Under para 2 [c] contribution means a contribution payable in respect of a member under a scheme and contributory service means the period of actual service  rendered by a member for which the contribution to the fund have been received  or receivable.   So the contribution recoverable shall be at a required rate from the wages earned by the  complainant from 1.3.1971 to 15..11.1995 and the rate as per the above scheme is only 1.16% from the total wages of the complainant and paid by the employer equally and as per Ext. D4.  So the total contribution of the complainant will  be less than Rs.4000/- for  the entire period of her past service from 71 to 95.   there is no provision to realize the break in service contribution and hence the contribution realized in excess towards break in service shall required  to be returned with interest to the complainant.

Regarding this aspect, we are of the considered opinion that as a non optee of 71 scheme the complainant is liable to deposit  past  service  contribution in order to enable the member  for getting monthly pension as per the provisions in para [6] 6[d] 7[3] and 17 [3] of EPS 1995.  But we differ with the argument of the opp.parties that the past period denotes the contribution of the complainant  for the full days of the past period.   We are not prepared to accept  the assertion of opp.party that the complainant is required to contribute the share for her total service which includes the period of break in service, when no wages  received by her.  It is against natural justice and against the provisions in the EPS 95.   As argued by the learned counsel for the complainant that the opp.parties have no right to go to beyond the provisions under the scheme.  If she was an  optee and was  a member of 71 scheme earlier, the contribution would have been collected only when wages have been received by her.  Hence the complainant is not liable to give contribution and interest there on for the period when no wages have been received.  Contribution can be collected only from the wages earned by the complainant and it cannot be collected for  non working days such as holidays and other eligible leave dates etc.         As argued by the learned counsel for opp.party,  Kerala State Consumer Disputes Redressal Commission in its decision in Appeal No.503/03 it is held that remittance of past period contribution is necessary to enable the complainant for getting the benefit of monthly pension.  But the Hon’ble Consumer Disputes Redressal Commission has not held that  the complainant is liable to remit contribution for the entire days of the past service years.   So we could not find considerable   merit in the agreement  of the opp.parties.   We also differ with the argument  that the complainant is liable to pay the contribution to be paid by the employer along with  its interest.

          According to the complainant the pension and other benefits under the above scheme are applicable to the complainant shall be granted only as per paragraph 12 [4] a and [b] and para 13 ]1] and the opp.party provided pension as per Ext. D3  is against the spirit and soul of para 12 [4] and violated the scheme.   The calculation of pension shall be done after taking past service from 1.3.1971 to 15..11.1998 and actual service from 16.11.95 to 3.12.2002 along with weightage of two years of service under para 10 [a] .  Hence the total pensionable service of the complaint shall be 34 years. [Past service 25 years  + actual service+ weightage 2 years and the complainant entitled for total pension at the rate of Rs.1258/- [past service pension Rs.600/- + Actual service pension Rs.438/- +weightage benefits Rs.33/-+interim  relief at the rate of 17.5% Rs.187/-]

It is argued by the learned counsel for opp.party that past service pension benefit up  to 16.11.1995 is  governed  by para 12 [3]  b and separate  table is  provided for that purpose.  Actual service pension after 16.11.1995 are governed by para 12[2] .  Separate  methods of calculation are also provided

          Pensionable salary and pensionable service are taken a criteria, for determining actual pension.  On the other hand salary and past service are taken as criteria for determining past service pension.   Separate table is provided for that and it depends on the years of past service and salary upto Rs.2500/- and salary more than Rs.2500/-

          Para 12 [3]  reads  as“in the case of the existing member  in respect of whom the date of commencement of pension is after the 16^th November 2005  para 12 [3] b  is related to past service  benefit  payable on completion  of 58 years of age on 16.11.1995.   The amount under column [2] or column [3] above as the case  may be shall be multiplied by the factor given in the table 136 corresponding to the period between the 16^th November 1995 and the date of exit to arrive at past service pension payable.

Para 12 [4] is related to the pension payable in the case of an existing member and in respect of whom the date of commencement of pension is between the 16^th November 2000 and the 16^th November 2005

          As per para 12 [4] [p] a Superannuation or early pension shall be equal to the aggregate of

a.      Pension as determined under sub paragraph [2]

    for the period of service rendered from 16^th November 1995 or      Rs.438/- per month whichever is more.

c.     Past service pension as provided in Sub paragraph [3]

As per document adduced by both parties, the complainant is super annuated in the year 2002.  Hence  in our view  the provision under para 12 [2] and 12 [3]  is not applicable  in this case.   The complainant  was not  a member of 1971 scheme  and opted the scheme as per para 6 [4] 7 [3]  and 17 [3] she had become a member with effect from 1.3.1971 on remittance  of past period contribution and interest there on and she  can be considered as an  existing member.   The superannuation or early pension of an existing member in respect of whom the date of commencement of  pension is between 16^th November 2000 and 16^th November 2005 shall be equal to the aggregate of  pension as determined under  sub paragraph [2] for the period of service rendered from 16^th November, 1995 or Rs.438/- per month.    The opp.party has allowed Rs.438/- for the period of service after 1995 November 16^th.  There is no dispute regarding the pension allowed by the  opp.party for the period of service rendered by the complainant from 16^th November 1995 till the date of superannuation

The complainant is entitled to get past service pension as per the provision under para 12 [3] .  As argued by the learned counsel for the opp.party separate table is provided for the purpose of calculating past service pension.   The complainant is entitled to get  past service pension as per the provisions and calculation methods provided in the scheme  Even though the complainant had stated that she was superannuated on 31.12.2002  and has rendered more than 7years service after 1995 November 16^th  till her exit no document was produced to prove that she  had attained 58 years of age only on 31.12.2002.  No contention was raised regarding the date of birth[12.5.44] and date of superannuation  [12.5.2002]stated in the pension payment order.   As the date of  birth and superannuation date was

unchallenged the complainant had rendered service less than 7 years service after 1995 November 16^th  till her exit from EPS Scheme.  Hence the complainant is entitled to get past service pension as per para 12 [3] b:- Rs.170 multiplied by 1.649 =Rs. 280  The aggregate of 12 [4] a and b comes to 438+280=Rs.718/-  The opp.party allowed monthly pension of Rs.717/- only ,and there is a difference of Rs.1/-.  After the deduction of commutation Rs.239.33 rounded to Rs.239/- and ROC 71.80 rounded to Rs.72 the complainant is entitled to get monthly pension at the rate of Rs.407/-

Based on the above discussed points and on verification of entire evidence before us,  we are of  the considered  opinion  that there is deficiency in service from the part of opp.party in collecting an exorbitant amount for regularization of eligible service and error committed  in the calculation of pension payable to the complainant.   The points found accordingly.

In the result, the complaint is allowed in part.   The opp.party is directed to pay monthly pension at the rate of Rs.407/- and to pay arrears from the date of pension order.   The opp.party is further directed to return the excess amount realized from the complainants PF account for regularization of break in service and as per para 17 [3] after deducting 1.16% amount  of total wages of the complainant from 1971 to 16.11.1995 + interest as per provisions in the scheme The opp.party is also directed to pay interest at the rate of 12% per annum for the balance amount payable and compensation Rs.5000/- along with cost Rs.1500/-  to the complainant .   The order is to be complied with within one month from the date of receipt of the order.

Dated this the 31^st day of  October, 2012.

I N D E X

List of witnesses for the complainant:

PW.1. – Saraswathyamma

PW.2. - Sanosh

List of documents for the complainant

P1. -  Form No.23 [Contributory slip]

List of witnesses for the opp.party

DW.1. – K.P. Balagopalan

List of documents for the opp.party

D1. – Form.1 [option]

D2. – Form 3 A

D3. – Pension payment order

D4. – Consent letter

D5 - Break-in service certificate