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 for compensation 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 she was superannuated. As a member in the PF Scheme and an account holder as per Account No.KR/1172/217 applied for pension under the provisions of EPS 1995. The opp.party realized an amount of Rs.39316/- 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,39,316/- 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 Employer’s 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% penal 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/1172/217. She remains as a non optee to the Erstwhile Employees Family Pension Scheme 1971 and Employees Pension Scheme 1995 until 24..3...1997. She had filed a nomination cum declaration in Form NO.2 dated 1.4.1963 declaring the date of birth as 12.5.44 and nominating her mother to receive EPF amount on her death. She left service on 30.4.2003 and had attained the age of 58 years on 12.5.2002.. The complainant’s membership come under para 6 [d] of Employees Pension Scheme. The complainant’s option under para 7 [3] read with 6 [d] and 17 [3] will make clear the position 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.39171/- 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/-. 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 return of capital payable to the nominee in the event of the death of the pensioner commutation amount Rs. 23900/- along with pension arrears Rs.6347/- has already been sent to the Bank account NO.SB.961, Canara Bank, Kottarakkara. The complainant had already gave an undertaking in option Form No.1 to pay contribution due to the Fund vide option dated 24.3.1997. 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 marked . X1 series marked in OP 268/2005
In the meantime, Exts. D6, D7 and 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 missed documents, Opp.party produced the copy of Exts. D6 and D7 and marked the documents 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 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.1172/217 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/1171/217 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 24..3..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.39171/- 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 argued that the complainant remained non optee in family pension scheme until 24..3..97. She had filed option to join EPS 1995 on 1..4...1997 vide option dated 24.3.97 but did not remitted the dues 3.4.2003. Ext D1 clearly proves the same . 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.39171/-. . 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 decisions 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-optee 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 period by the employer equally 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 the 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 to liable to remit contribution for the entire days of the past service years. So we could not find considerable merit in the argueement 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 16th 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 B6 corresponding to the period between the 16th November 1995 and the date of exit to arrive at past service pension payable.
As per parea 12 [2] in the case of new entrant , the amount of monthly superannuation pension or early pension, as the case may be shall be computed in accordance with the following factors namely
Monthly members pension = Pensionable salary x pensionable service
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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 16th November 2000 and the 16th November 2005
As per para 12 [4] [i] 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 16th 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 superannuated 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 16th November 2000 and 16th November 2005 shall be equal to the aggregate of pension as determined under sub paragraph [2] for the period of service rendered from 16th November, 1995 or Rs.438/- per month. The opp.party has allowed Rs.438/- for the period of service after 1995 November 16th. There is no dispute regarding the pension allowed by the opp.party for the period of service rendered by the complainant from 16th November 1995 till the date of superannuation
The complainant is entitled to get past service pension as per the provisions 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 16th 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 16th 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 discussions 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 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 31st day of October, 2012.
I N D E X
List of witnesses for the complainant:
PW.1. – Sarojiniamma
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. – Consent letter
D3. – Pension payment order
D4. Form No.2 [
D5. – worksheet
D6. – Form 10-D
D7. – Form 3 A
