Karnataka

Kolar

CC/98/2016

Sri.H.Hanumanthappa - Complainant(s)

Versus

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

Sri.D.V.Lakshminarayana

05 Jun 2017

ORDER

Date of Filing: 18/11/2016

Date of Order: 05/06/2017

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

 

Dated: 05TH DAY OF JUNE 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

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

 

CONSUMER COMPLAINT NO.98 OF 2016

Sri. H. Hanumanthappa,

Aged About 64 Years,

No.34, Kalahasthipura Village,

Kembodi Post,

Kolar Taluk & District.                                 ….  COMPLAINANT.

(Rep. by Sri.D.V.Laxminarayana, Advocate)

 

- V/s -

The Regional Provident Fund

Commissioner, (EPFO Sub Regional Office)

K.R. Puram, No.36, Lakshmi Complex,

Old Madras Road, K.R. Puram,

BANGALORE-36.

 

(Rep. by Sri. Jayaprakash, Enforcement Officer,

Employees Provident Fund Organization, Kolar.) …. OPPOSITE PARTY.

 

-: ORDERS:-

BY SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

01.   The complainant has filed this complaint against the OP Under Section 12 of the Consumer Protection Act, 1986 praying to direct the OP to re-fix the pension by taking consideration of 02 years weightage along with interest @ 10% and compensation of Rs.15,000/- for the mental agony as well as costs of Rs.5,000/-.

 

02.   The facts in brief:-

(a)    The complainant submitted that, he was an ‘D’ Group employee of PCA & RD Bank and the complainant had joined for service on 12.09.1977 in Kolar Taluk and after serving for 35 years of service in Kolar PCA & RD Bank he got retired from his service on 31.03.2012 (on completion of 60 years i.e., superannuation).  The complainant further submitted that, from 12.09.1977 the OP has deducted provident fund amount from the complainant’s monthly salary towards EPS.  The complainant further submitted that, as per PYKRP No.00021318 the OP had fixed Rs.1,661/- towards monthly pension of the complainant and the same was transferred to Kolar Syndicate Bank complainant’s SB Account bearing No.15012200109484.   

 

(b)    Further complainant submitted that, as per the Provident Fund Act, 1952, “a person who serves for more than 20 years is entitled for 02 years of weightage while calculating the pension benefits.  But without considering 02 years weightage and though the complainant has served 35 years of service the OP has calculated the pension amount only for Rs.1,661/-. 

 

(c)    Further submission of the complainant is that, as per the Provident Fund Act, 1952 there are 02 types of pension benefits one is as per the EFPS Act, 1971 the employer would deduct the PF amount for every month from the salary of its employee and shall deposits the same to PF Office.  Secondly as per EPS Act, 1995 the employer shall deduct the every months PF from the salary of its employee until his Superannuation and shall deposit the same in the employees PF account at PF Office. 

 

(d)    Further submits that, as per the order of EPF Organization, New Delhi, bearing No.Pension-1/3(4) 16/7915, dated: 25.07.2016, “Government of India benefit of two years weightage to the members under EPS 1995 with membership of 20 years or more under EPS 1995 combined with membership period under erst while employees family pension scheme 1971 should be taken in to account”. 

 

(e)    It is further contended that as per the findings of the Hon’ble State Commission in Appeal Nos. 415/2008 to 419/2008 it is held that such cause of action is recurring, hence the complaint is in time.

 

(f)     So contending the present complaint has been submitted seeking above set out reliefs.

 

(e)    Along with the complaint the complainant has submitted following documents:-

  1. Copy of the Gratuity Order copy.

 

 

03.   In response to the notice issued by this Forum, one Sri.D.Jayaprakash, an Enforcement Officer of the OP appeared and represented the case on behalf of the OP and submitted written version.

 

(a)    The OP contends that, the complainant was an employee of M/s. PCA & RD Bank Limited, Kolar and the said Bank was covered under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 with effect from 01.10.1996 and had been allotted the Code No.KN/19427.  The copy of the Return of employees who were entitled and required to become members of the Employees’ Provident Fund and Pension Fund furnished by the employer showing the date of coverage of the establishment and date for which employees pension scheme is applicable as 01.10.1996.  Thus it is evident that the complainant even though reportedly had been working with the above said Bank from 12.09.1977 had become the member of the following schemes framed under the EPF & MP Act, 1952 only with effect from 01.10.1996 consequent to the above application of the Act on the above said Bank.

 

(b) The complaint filed by the complainant is bad for non-joinder of necessary party of PCARD Bank who was the employer of the complainant and who is responsible for enrollment of the complainant as a PF member from the date she becomes eligible to become a member.    The complainant was not at all a member of the Family Pension Scheme, 1971, but only the member of the Employees Pension Scheme, 1995 with effect from 01.10.1996 which had replaced the above said Family Pension Scheme, 1971 with effect from 16.11.1995.  Therefore there was no past service, as such, rendered by the complainant as claimed by him.  The authority had issued Pension Payment Order (PPO) No.PY/KRP/00021318 sanctioning a monthly pension of Rs.1,661/- with effect from 26.03.2010.  On detailed verification of records it found that, the monthly pension had fixed erroneously.  Therefore, the authority has re-fixed the monthly pension of the complainant to Rs.1,138/- vide pension payment order [PPO] No.PY/KRP/00032219, dated: 31.01.2017 with effect from 26.03.2010 as per provisions of EPS, 1995.   The contributory service rendered under the EPS, 1995 is only 13 years 04 months 25 days.  The complainant had become the member to the schemes framed under the Act only from 01.10.1996 and attained the age of 58 years on 25.03.2010.

 

(c)    The OP submit that, Para-10(2) of the Employees’ Pension Scheme, 1995 which reads as below:

10. Determination of Pensionable Service.

(2) In the 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 2 years.

 

        In the instant case the complainant has rendered only 13 years 4 months 25 days of pensionable service i.e., less than 20 years of pensionable service from 16.11.1995 under the EPS, 1995.  The Para 10(2) of EPS, 1995 was amended substituting the words “and/or” with “and” with effect from 24.07.2009.  The complainant has completed 58 years on 25.03.2010 which is after amendment i.e., 24.07.2009 to Para 10(2).  Hence the complainant had to complete both conditions of attaining 58 years as well as putting 20 years of pensionable service.   Therefore the complainant is not eligible for the weightage of two years under Para 10(2) of the Employees’ Pension Scheme, 1995 as per the EPFO, Head Office, New Delhi letter No. Pension-I/3(4)16/7915, dated: 25.07.2016.  So contending the OP has prayed for dismissal of the complaint, sought for costs.

 

(d)    Along with the written version the OP had submitted a return of employee who are entitled and required to become members of the EPF and pension Fund.

 

04.   On 27.02.2017 the counsel appearing for complainant has submitted complainant’s affidavit evidence and on 13.03.2017 counsel appearing for OP has submitted affidavit evidence of one Mr.Amiya Bhaskar, S/o. Ashok Kumar Jha, Assistant Provident Fund Commissioner of OP.

 

05.   On 28.03.2017 counsel appearing for complainant has submitted written arguments and on 18.04.2017 counsel appearing for OP has submitted written arguments of OP.

 

06.   On 02.05.2017 we have heard the oral arguments as advanced by the learned counsels appearing for both sides.

 

07.   Therefore the points that do arise for consideration in the above case are:-

(A)  Whether the complainant has proved deficiency in service against the OP?

(B) Whether the complainant is entitled for the reliefs sought for ?

(C)  What order?

 

08.   Our findings on the above stated points are:-

POINT (A) & (B):      In the Affirmative

 

POINT (C):               As per final order for

the following:-

 

REASONS

POINT (A) & (B):-

 

09.   It is an admitted fact that, complainant was an “D” Group employee of PCA & RD Bank and retired from service on 31.03.2012.  It is the contention of the complainant that, the complainant served for 35 years in PCA & RD Bank.  As per Provident Fund Act, 1952, Employees Family Pension Scheme, 1971 and as per the Employees Pension Scheme, 1995 the complainant is eligible for 02 years of weightage benefits, but the Ops have not given 02 years weghtage to the complainant.  The OP has taken a contention stating that, the complainant was not a member of this Family Pension Scheme, 1971, but the complainant is only the member of the Employees Pension Scheme, 1995.  The complainant has not made PCA & RD Bank as a party to this complaint.  On perusal of the documents produced by the complainant, the complainant has not produced any document to show that, he was a member of Employees Family Pension Scheme, 1971.  Hence in the absence of documentary evidence oral evidence cannot be accepted.  Moreover the complainant has not made PCA & RD Bank as a party to this complaint.

10.   Admittedly the complainant joined Employees Pension Scheme, 1995 as per the PPO No.PY/KRP/00032219.   Further it is also admitted fact that, at the time of entering in the Employees’ Pension Scheme, 1995 Para-10(2) of the Employees Pension Scheme 1995 reads as hereunder:-

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 02 years.”

 

From the above it is clear that, those who superannuates on attaining the age of 58 years or those who render 20 years of pensionable service or more, are eligible for weightage of 02 years.  Admittedly the complainant had retired/superannuated at the age of 60 years.  Hence as per Para-10(2) of the Employees Pension Scheme, 1995 the complainant is eligible for 02 years of weightage. 

 

11.   The OP has taken a contention stating that, the complainant has rendered only 13 years 04 months 25 days of pensionable service i.e., less than 20 years of pensionable service.  As per Para-10(2) of the Employees Pension Scheme, 1995 was amended substituting the words “and/or” with “and” w.e.f. 24.07.2009.  Though the complainant has completed 60 years on 31.03.2012 which is after amendment i.e., 24.07.2009.  Hence complainant had to complete both condition of attaining 58 years as well as putting 20 years of pensionable service.  Since complainant has not completed 20 years of eligible service.  Hence complainant is not entitled for the weightage of 02 years under Para-10(2) of the EPS scheme 1995 and as per the EPFO Head Office Circular dated: 25.07.2016.  This argument is not justifiable because at the time of entering in to the scheme by the complainant no such provision were existing and there is no material evidence available on record to show that, the same is applicable retrospectively.

 

12.   Further the Circular issued by the EPFO Head Office cannot be considered as an amendment to the Employees Pension Scheme, 1995.  As per Para-10(2) of the Employees Pension Scheme the complainant has retired/superannuated at the age of 58 years, hence complainant is entitled for 02 years of weightage.  Hence it is just and proper to direct the OP to recalculate the pension of the complainant by adding 02 years of weightage and to pay the arrears along with 12% interest from the date of retirement of the complainant and accordingly we answered point (A) & (B) in the affirmative.

 

POINT (C)

13.   We proceed to pass the following:-

ORDER

01.   The complaint is allowed with costs of Rs.2,000/-.

 

02.   The OP is directed to re-fix the pension amount of the complainant by adding 02 years of weightage and also to pay the arrears along with 12% interest from the date of retirement of the complainant till realization.

 

03    The OP is further directed to comply the above order within 30 days from the date of receipt/knowledge of this order.

 

04.   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 05th DAY OF JUNE 2017)

 

 

LADY MEMBER                                PRESIDENT

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