Date of Filing:06/04/2015
Date of Order:31/03/2016
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 31ST DAY OF MARCH 2016
PRESENT
SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT
SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER
SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER
COMPLAINT NO.618/2015
Sri H.Jaya Prakash,
Aged about 60 years,
Residing at: 38, 9th Cross,
Swimming Pool Extension,
Malleshwaram,
Bangalore-560 003. Complainant
V/s
1. The Regional Provident Fund
Commissioner (Pension),
No.13, Post Box No.25146,
“Bhavishya Nidhi Bhavan”
Raja Ram Mohan Roy Road,
Bangalore.560 025.
2. The Managing Director,
Karnataka Agro Industries
Corporation Ltd.,
Post Box No.2478,
Bellary Road, Hebbal,
Bangalore-560 024. Opposite Parties
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.P) alleging deficiency in service on the part of the O.P and prays for direction to the O.P to fix the pension by taking into account two years of weightage in terms of the EPS Act 1995. Further to apply correct factors for past service and post 16.11.1995 service as per the table under EPS and allow to withdraw pension as per the annexure past service and post 16.11.95 service as per EPS 1995 and to pay arrears of pension from the date of retirement i.e. from 22.10.2003 along with the interest at the rate of 12% per annum from the date of revision of pension till the date of realization with compensation of Rs.50,000/- for causing mental agony.
2. The brief facts of the complaint is that, the complainant was employed in O.P.No.2 since 1976 and also he was a member of the Employees Provident Fund Scheme under the Employees Provident Fund and miscellaneous provision Act 1952. The PF account bearing No.KN/3853/2676 and the complainant become the member of the said scheme with effect from 16.11.1995. The Karnataka Agro Industries Corporation Ltd was established jointly by the Government of Karnataka and Government of India in the year 1967. However, the Government of Karnataka being of the view that it was loss making Corporation and thereby by its order dated 3.9.2003 permitted the Corporation to close down with immediate effect and further order that all the 656 employees would be provided with a scheme of voluntarily retirement and the service of those who did not opt for the voluntary retirement scheme would be terminated. The complainant having no other option was constrained to seek voluntary retirement with effect from 22.10.2003 and opted to receive pensions from 22.10.2003. The complainant states that at the time of his retirement whose age is 50 years as on 22.10.2003. The O.P.No.1 determined his retirement pension at Rs.1,093/- per month and whose PPO number is KN/DNG/30251. The complainant had put in 19 years of past service i.e. from 26.4.19 76 to 15.11.1995 and 8 years (rounded off) service from 16.11.1995 to 22.10.2003. Hence complainant states that in total he was rendered 27 years of pensionable service and thus the complainant was claiming weightage of two years in terms of Employees Pension Scheme 1995. The complainant further states that Regional Provident Fund Commissioner (Pension), Ministry of Labour and Employment, Government of India New Delhi issued Circular bearing No.Pen(A&C)/RP No.867-880/2012/NCDRC/ KN Kallurappa dated 26.11.2003 has advised all the concerned officers of the O.P. establishments that the weightage of two years have to be given where retirement has taken place prior to 24.2.2009. Inspite of the directions the O.P not revised the pension of the complainant and his pension was determined at Rs.1093/- on the basis of 27 years of service and without granting weightage of two years. Hence this complaint.
3. Upon issuance of notice, O.P No.1 and 2 appeared through their counsel and filed their versions.
4. In the version of O.P.No.1 it is contended that the complaint is not maintainable in the eye of law or on facts. It is also contended that the claimants have already been granted pension as per the Employees Pension scheme 1995 and if there is any variation the same can be adjudicated by the O.P. under the provisions of Employees Pension Scheme 1995 which provides for necessary machinery to adjudication of the dispute. The O.P.No.1 admitted in its version that the complainant was enrolled has member under family pension fund 1971 and served for 19 years and thereafter he was enrolled as member under the Employers Pension Scheme 1995 with effect from 16.11.1995. Further O.P.No.1 submits that the complainant left the service on 22.10.2003 and has opted for reduced pension with effect from 16.12.2003 through application Form 10D by opting early pension before attaining the age of 58 years. Thereafter the O.P.No.1 issued pension payment order No.30251 by sanctioning the monthly pension for an amount of Rs.1093/- per month from 16.12.2003 to the complainant. 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 parties being past service i.e. period from joining the Employees Family Pension Scheme 1971 till 15.11.1995 and pensionable service from 16.11.1995 till superannuation i.e. attaining the age of 58 years. The past service benefit under Employees Family Pension Scheme 1971 was computed as per para 12(3) (b) of Employees Pension Scheme 1995. By taking service rendered from 1.4.1971 to 15.11.1995. The formula pension under Employees pension scheme 1995 was computed as per para 12(3)(a) of Employee Pension Scheme 1995 by taking service rendered from 16.11.1995 to the date of exit i.e. 22.10.2003. The complainant has requested to revise the pension payment order by allowing the weightage of 2 years as provided under para 10(2) of the Employees Pension Scheme 1995. The O.P.No.1 contended that para 10(2) of the Act was amended by Government of India on 24.7.2009, para 10(2) before this amendment reads as:
“In case of the member who superannuates on attaining 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 2 years”.
5. The O.P. No.1 submitted that , after amendment it read 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 2 years. The O.P No 1 contended that, after amendment of para 10 (2) even in superannuation cases completion of 20 years pensionable service under employees pension scheme 1995 is a must. As the pensionable scheme 1995 came in to force on 16-11-1995, the 20 years pensionable service can completed by any member only after 16-11-2015.
6. The O.P.No.1 relied on the circular issued by the Employees Provident Fund Organization and stated that circular dated 26.11.2013 and Corrigendum No.Pen (A&C) RP No.867-880/2012 NCDRC/K.N.Kallurappa/11827 dated 5.12.2013 two years bonus can be given where superannuation pension i.e. pension at the age of 58 years had commenced prior to 24.7.2009. The complainant opted for reduced pension before superannuation i.e. before the age of 58 years. The complainant had left the service on 22.10.2003 and opted for reduced pension from 16.12.2003 accordingly pension is being paid to the complainant. Hence O.P. contended that the complainant is not eligible for two years weightage. On other grounds O.P.No.1 prays for dismissal of the complaint.
7. In the version of the O.P.No.2 contended that, the complaint is not maintainable either in the eye of law or on facts. Also submitted that, the O.P.No.2 is a Corporation, Government of Karnataka undertaking which was engaged in promotion of agricultural activities of the state. In view of having suffered heavy losses to the tune of Rs.200 crores, over a period, the Govt. of Karnataka by its order No.DEPER/55/ARU/2003 dated 3.9.2003 order for closure of all its activities and to relieve all the regular employees with immediate effect under Voluntary Retirement Scheme 2003 (VRS in short). Design by it, accordingly O.P.No.2 closed all its activities and offered VRS 2003 all its 656 employees who were then on its rules. All the 656 employees opted for VRS and got themselves relieved and received benefits as provided under the scheme. The complainant also one the employee of O.P.No.2 corporation and he got himself relieved under VRS 2003 on 22.10.2003 as such the employer and employee relationship between the O.P No.2 seized as on the said date. The complaint is filed obviously more than 11 years after his retirement which is behind the limitation of time and contended that the complaint is not sustainable. The O.P.No.2 contended that if at all the complainant aggrieved by the pension fixed by the O.P.No.1, he can always filed the appeal before the appellate authority and also seek remedy before the Hon’ble Civil Court. Further contended that the O.P.No.1 is the one and only authority to settle the EPF , PF settlement claims in respect of the O.PNo.2’s employees who have retired, resigned, dismissed, VRS opted employees etc sanctioning PF non-refundable PF advances. The O.P.No.2 is only implementing the statutory duties of PF recoveries, PF remittances, Submission of PF returns to the O.P.No.1 and it has no further role or part in it thereafter. All the PF accounts were centralized in the Head Office at Bangalore. Further contended that there is no deficiency in service on the part of the O.P.No.2. On other grounds O.P.No.2 prays for dismissal of the complaint.
8. To substantiate the above case, the complainant and both O.P No 1 and 2 have filed their respective affidavit evidence along with documents. We have heard the arguments.
9. On the basis of pleadings of the complainant, the following points will arise for our considerations are:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to the
relief prayed for in the complaint?
(C) What order?
10. Our answers to the above points are:-
POINT (A) & (B): Affirmative .
POINT (C): As per the final order
for the following:
REASONS
POINT (A) & (B):-
11. On perusal of the pleading of the parties it is not in dispute that the complainant was employed in O.P No 2 since 1976. Also he was the member of The Employees Provident Fund Scheme under the Employees Provident Fund and Miscellaneous Provision Act 1952. He was also member of the Family Pension Scheme 1971 and having PF No KN/3853/2676. The complainant submits that with introduction of The Employees Provident Fund Scheme 1995, he became the member of the said scheme with effect from 16-11-1995. It is also not in dispute that O.P No 2 was established jointly by the Government of Karnataka and Government of India in the year 1967, when the Government of Karnataka being of the view that, it was a loss making Corporation vide its order date 03-09-2003 permitted the corporation to close down with immediate effect and further ordered that all the 656 employees would be provided with Scheme of Voluntary retirement and the service of those who did not apt for the Voluntary Retirement Scheme (VRS) would be terminated. Hence the O.P No 2 introduced the Voluntary Retirement Scheme (VRS) vide Circular dated 5-09-2003, hence the complainant having no other option was constrained to seek voluntary retirement with effect from 22-10-2003. The complainant opted to receive pension from 22-10-2003, as he was attended the age of 50 years as on date of voluntary retirement i.e. 22-10-2003. The O.P No 1 determined his retirement pension at Rs 1093/- per month. The complainant’s PPO No KN/BNG/30251. The complainant had put in 19 years of past service i.e. from 26-04-1976 to 15-11-1995 and 8 years service from 16-11-1995 to 22-10-2003. Hence the complainant had rendered 27 years of pensionable service and thus contended he was entitled to the weightage of 2 years in terms 10(2) of The Employees Pension Scheme 1995. Per contra O.P No 2 contended that, the complaint is filed more than 11 years after his retirement and same is barred by limitation. Further submitted that if at all the complainant is aggrieved by the pension fixed by the O.P No 1 he can always file appeal before the competent civil court also contended that the O.P No 1 is only authority to settle the EPF, PF, Pension claims in respect of its employees who have retired, resigned, VRS opted employees etc.
12. It is worth to note that the O.P No 2, in its version admitted that the complainant is the former employee of its corporation and also admitted that the complainant rendered 27 years of service and voluntarily retired on 22-10-2003. On perusal of the entire pleading, we are of the opinion that, though O.P No 2 merely acting as an agent to collect the PF amount from salary of its employees and remitted to the O.P No 1. Hence O.P No 2 rightly contended that the O.P No 1 is the authority to settle the EPF, PF, Pension claims in respect of its employees who have retired, resigned, VRS opted employees etc. in these back drop of facts we find no deficiency in service on the Part of O.P No 2. However when the complainant contributed towards the P.F scheme, the matter will come under the domain of the Consumer Protection Act and hence the very contention of O.P No 2 regarding to approach the competent Civil Courts holds no water. When the authority misconstrued the law and denies to fix the pension as per the letter and spirit of the then existing law and the cause of action continuously runs and hence the question of limitation to file the complaint will not come in the way.
13. The crux of the matter is to consider whether the complainant is entitled for 2 years weightage relating to his service.
14. In order to substantiate the case, the complainant and O.Ps filed their affidavit evidence. It is the specific contention of O.P No1, is that, the complainant was a member of Employees Pension Fund 1971. The pension is calculated in 2 parts being past service i.e. period from joining the Employees Family Scheme 1971 till 15-11-1995 and pensionable service from 16-11-1995 till superannuation i.e. attainting age of 58 years. As per Para 12(3) (a)of the Employees Pension Scheme 1995, by taking the service rendered from 1-4-1974 to 15-11-1995. As per 12(3)(b) by taking service from 16-11-1995 to the date of exit i.e. from 22-10-2003. Though the complainant requested to revise the pension by allowing the weightage of 2 years provided under 10(2) of the Employees Pension Scheme 1995, but same was amended by Government of India on 24-07-2009.
15. Before the amendment of the said scheme, it reads thus:-
“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 2 years”.
After the amendment the Act reads thus:-
“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 weightage of 2 years”.
16. On going through The Employees Provident Fund and Miscellaneous Provisions Act 1952, para 10(2) was given affect from 23-07-2009. Whereas the complainant retired from the service on 22-10-2003, and hence for the case of complainant prior to amendment of the Section 10(2) of Employees Pension Scheme 1995 aptly applicable. It is worth to note that the O.P No 1 misconstrued the law and denying the legitimate right of the complainant by taking the shelter of the newly amended Act. It is also note worthy to mention that, any Act or law is amended by the Government and it prospectively applicable only. Hence the O.P No 1 cannot exonerate its liability. The non honouring of the claim of the complainant by the O.P No.1 and it leads to deficiency in service on the part of the O.P No.1.
17. The complainant also relied on the decision of the Hon’ble National Commission reported in IV (2010) CPJ 150 NC wherein the ratio of the above decision aptly applicable to the present case on hand.
18. It is not in dispute that, the complainant had put in 19 years of past service from 26-04-1976 to 15-11-1995 and 8 years of service 16-11-1995 to 22-10-2003. Hence the totality of the service of the complainant is 27 years. The then scheme of the Act also given clear indication to 2 years of weightage to be given to the beneficiaries like the complainant. The Act reads thus:-
“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 2 years”.
19. Hence there is no force in the contention of the O.P No 1 and the complainant is entitled for 2 years of weightage as the relief sought in the complaint. Further the complainant has not produced any cogent evidence in order to compensate the complainant. In light of above discussion, we reach to conclusion that the complainant proved deficiency in service on the part of O.P No 1 and the complaint against O.P No 2 is dismissed. The complainant is entitled for 2 years weightage as sought in the complaint. Accordingly we answered these points in the Affirmative.
POINT (C):
20. Based on the findings given above on points No A and B and in the result we proceed to pass the following:
ORDER
- The complaint is allowed in part.
- O.P No 1. is hereby directed to re-fix the pension of the complainant by calculating superannuation pension by giving weightage of 2 years and past service benefit as per para 10(2) of un-amended EPS 1995 to the complainant from the date of retirement i.e. from 22-10-2003 and O.P No 1 is directed to pay interest at the rate of 9% per annum on arrears of pension for the belated payment to be made to the complainant on account of refixation of the respective pension amount from the date it has fallen due.
- The complaint is dismissed against O.P No 2.
- Further O.P No 1. is directed to pay Rs.1,000/- towards cost of the proceedings.
- The O.P No 1 is hereby directed to comply the order of this Forum within 60 days from the date of receipt of this order and submit the compliance report to this forum within 75 days from the date of receipt of this order.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 31th Day of March 2016)
MEMBER MEMBER PRESIDENT
*Rak
