| ORDER | This case is coming for final hearing on 09-09-2014 in the presence of complainant in person and Sri U.Satyanarayana, Advocate for 1 & 2 Opposite parties and 3rd Opposite Party appeared in person and having stood over till this date, the Forum delivered the following. : O R D E R : (As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench) The complainant who is practicing as Advocate filed the present complaint (in person) under Sec.12 of C.P.Act on 29.10.2012 against the Opposite Parties 1 to 3 and requested the Forum (1) to direct the Opposite Parties 1 to 3 to pay his pension of Rs.5,869/- p.m. from October 2012 (2) to direct the Opposite Parties 1 to 3 to pay an amount of Rs.59,700/- towards arrears of pension from July 2011 to September, 2012 @ Rs.3,980/- p.m. difference (3) to grant any other relief or reliefs as this Forum deems fit and proper. The Complainant’s version is, he has joined in APSRTC on 9.6.1980 and retired from service on 30.06.2011 as Dy.Supdt.(Finance) at Visakhapatnam district and his last drawn salary is Rs.28,390/-. The 2nd Opposite Party is deducting some amounts from his salary every month towards P.F., Pension. The statement of the year 2010-11 shows that the balance amount is Rs.56,457/- as on 3.3.2011. The Opposite Parties 1 & 2 in the statement of P.F. mentioned the contribution of Rs.6,492/- as per year 2010-2011. The Complainant’s basic pay is Rs.19,105/- and Dearness Allowance is Rs.4,623/-. The pension payable is required to be calculated basing upon the formula by multiplying (+) D.A. multiplied by 16 and the said amount will be divided by 70. As per that formula with regarding to complainant’s case it is Rs.23,728/- x 16 = Rs.3,79,648/-. The said amount is divided by 70 comes to Rs.5,423.54 ps and for the past service benefit of Rs.445/ has to be added and then the amount of Rs.5,869/- will be derived. This process is done as per the rules of 1971 Pension Rules. On 01.11.2011 Opposite Parties issued Notification to the Depot Office, Vizianagaram on retirement of the Complainant vide Employee No.051754. The papers and the forms are filled and complainant signed and were taken by the R.M. Office and then it was sent to the office of the 2nd Opposite Party, wherein P.F. Trust Office of APSRTC is also working. The Sr.Asst (P), Depot Manager office, APSRTC, Vizianagaram asked to deliver the papers for higher option to the Head Office of Hyderabad, who asks for higher pension. In the similar manner the complainant’s papers were delivered to the Head Office through Sri T.V.Ramanaiah and the said T.V.Ramanaiah has addressed a letter to the Complainant on 17.10.2012. The 3rd Opposite Party, Assistant P.F. Commissioner is paying Rs.1889/- p.m. pension to the complainant. The said amount is inclusive of Rs.445/- for past service as per 1971 Pension Rules. As per the P.F. Office Wagesas on 15.11.1995 is Rs.4,110/- and wages are there as on the date of exit is Rs.6,500/-. Pension paid as per formula of Rs.1,444/- pm + past service benefit is Rs.445/-, the total amount being paid to the complainant is Rs.1,889/- only. Thereby as the Complainant is getting lesser pension i.e. Rs.1,889/- he got issued Legal Notice to the Opposite Parties to refix his pension as Rs.5,869/- p.m. and to pay the arrears of Rs.69,700/- that falls due in the part payment of Rs.3980/- pm. Hence as there is no reply by the Opposite Parties, the Complainant was forced to file the present Complaint seeking reliefs as sought for. Notices served to Opposite Parties 1 to 3. - The Personnel Officer of the Opposite Parties 1 & 2 filed counter on behalf of 1st Opposite Party and 2nd Opposite Party filed adoption memo to treat the Counter of the 2nd Opposite Party. The 3rd Opposite Party was initially set exparte on 11.03.2013 and thereupon as the 3rd Opposite Party has filed set-aside petition vide I.A. 95, it was allowed on 9.10.2013.
On behalf of 3rd Opposite Party Smt.T.Mariamma, Asst P.F.Commissioner filed Counter and stated as follows: As per the records, the Complainant was an employee of APSRTC. The Pension amount of APSRTC is maintained at Regional Office, Hyderabad and the member account number as per this office records is AP/HYD/295/51754. On retirement of the member from APSRTC as per the in-put Data Sheet dt. 26.08.2011 and basing upon the data available in the in-put data the pension of the complainant is sanctioned for Rs.1,889/- vide MPPO No.GR/VSP/47905, dt.01.07.2011. The monthly salary considered for pension benefit scheme 1995. The maximum salary considered for pension benefit scheme as Rs.6,500/- as per employees pension scheme 1995. The maximum salary shall be limited to Rs.6,500/- p.a. The maximum salary shall be limited to Rs.6,500/- p.a. provided that if at the option of the employer and employee, contribution paid on salary exceeding Rs.6500/- p.m. from the date of commencement of this Scheme or from the date salary exceeds Rs.6500/- whichever is later and 8.33 per cent of the share of the employers thereof is remitted into the Pension fund. Pensionable salary shall be based on such higher salary. As per the records of the complainant, the pension was fixed for Rs.1,889/- and there is no fault on part of 3rd Opposite Party for fixing the Complainant’s family pension as Rs.1,889/-. Hence as there is no fault of 3rd Opposite Party, the complaint is liable to be dismissed. Observing the pleadings of the Complainant and the Opposite Parties 1 to 3 along with the documentary evidence, we have framed the following points for consideration. Whether there is any deficiency of service on the part of Opposite parties 1 to 3; To what relief.
The present complaint is filed by the complainant in person and he is the complainant in the present complainant who is practicing as Advocate at present. The complainant filed his Evidence Affidavit and on his behalf Ex.A1 to A11 were marked. - The Complainant has filed 3rd party affidavit i.e. Affidavit of PW-2 Sri T.V.Ramanayya. PW-2 version is as follows: He was deputed by DMS office to bring all the higher option pension payment papers and accordingly in the year 2004 he has taken all employees papers along with his higher option pension payment papers to deliver at Head Office. He does not remember about when he went to Hyderabad from Vizianagaram to handover the said papers but he has handedover the said papers at Hyderabad Head Office. As the Complainant has requested him for giving a letter stating that the highest option proposal for higher pension was handover to Opposite party’s authorities at Hyderabad. PW-2 has given letter dt. 17.10.2012 to the Complainant to that extent. Along with the Affidavit, PW-2 has filed two documents i.e. Letter dt. 17.12.2012 marked as Ex.A12 and served cover of Ex.A12 was marked as Ex.A13. In toto on behalf of complainant Ex.A1 to A13 were marked.
Opposite Parties 1 & 2 not filed Evidence Affidavit. The 3rd Opposite Party filed Evidence Affidavit and on behalf of 3rd Opposite Party. Ex.B1 to B3 were marked. The Complainant and Opposite Parties 1 to 3 filed Written Arguments and both sides submitted their oral Arguments. Point No: The present complaint was filed by the complainant for refixing his pension basing upon his records as Rs.5,869/- p.m. in the place of Rs.1889/- which was fixed by the 3rd Opposite Party basing upon the records submitted by the Opposite Parties 1 & 2. The Opposite Party in their counter stated that the last drawn salary is Rs.19,105/- + Rs.4,623/- only but the Complainant has wrongly stated that his last drawn salary is Rs.28,319/-. As the complainant has not opted for the highest i.e. higher pension scheme is pension is fixed for Rs.1,889/- basing upon the formula in calculating the pension i.e. Rs.1,444/- pm + past service benefit Rs.445/- which amounts to Rs.1889/- only. The complainant never approached the personnel officer or requested verbally or orally with regarding to the highest options for taking the higher pension so that is the reason, the Opposite Parties has not given reply for the Legal Notice dt. 1.10.20.12 vide Ex.A3, when he has not submitted any option for the higher pension, the Opposite Parties 1 & 2 cannot fix the pension for Rs.5,869/- i.e. Rs.5,424/- + past service benefit Rs.445/- p.m. The Pension which was fixed for the complainant is in accordance to the rules of 1971 Pension rules. There is no fault on part of Opposite Parties. The 3rd Opposite Party stated that basing upon the records furnished by the Opposite Parties 1 & 2 they have fixed the pension of the complainant as Rs.1889/- and in the argument, the 3rd Opposite Party legal officer stated that unless and until they receive the proper record or any information in written from the Opposite Parties 1 & 2, the 3rd Opposite Party cannot decide the pension as Rs.5,889/- for the Complainant. So the 3rd Opposite Party states that there is no fault on his part. - The case law filed by the complainant i.e. Revision Petition No.3970/2009 decided on 29.06.2010 by the Hon’ble National Commission between Regional Provident Fund Commissioner, Hubli, Karnataka Vs Sri Mallikarjun Devendrappa Verapur (vide Ex.A4) which is related to refixing of the pension of the respondent in Revision Petition, observing the service rules of the pension, the Hon’ble National Commission held that “the complainant is entitled to 2 years weightage under Rule 10(2) of the Employees’ Pension Scheme, 1995. His pension has been rightly ordered to be fixed by the Fora below in terms of Rule 12(4) r/w Rule 10(2) of the Employees Pension Scheme, 1995. The Orders of the Fora below, therefore, do not call for any interference. The revision is without any merit and is dismissed with costs of Rs.10,000/- to be paid by the Petitioner with the respondent. The respondent is entitled for arrears of the pension which has to be paid within 3 months @ 9% interest from the date of the same are due”. As per Hon’ble Supreme Court Judgement in 27 Revision Petitions filed by the Asst. P.F. Commissioner, Raichur challenging the jurisdiction, the Hon’ble Supreme Court observing the 2001 SCC Regional P.F. Commissioner Vs. Shiv Shakti Kumar Joshi case and the definition of the service under Sec.2(1)(o) of the Act along with Spring Medows Hosital Vs. Harjoth Alhuwalia VII (1998) (4) SC cases it was held the respondents in 27 Revision Petitions falls under the definition of the consumer and vide dismissing the Revision Petitions costs of Rs.2,000/- has been awarded to the each Respondent/Complainants to be paid in 3 months from the date of the Order i.e. 9.4.2013 failing which it will carry interest @ 10% p.a.
13(a) Observing the principle of the case law in R.P.No.3970/2009 and decision in common Order of 27 Revision Petitions dt. 9.4.2013 by Hon’ble Supreme Court, we hold that the Consumer Fora is having jurisdiction to entertain the matters related to the Provident Fund. - Ex.A1 reveals that Complainant has retired from the service on 3006.2011 and his last drawn pay was Rs.28,390/- and net amount received by him was Rs.17,098/- only as per Ex.A2. The Ex.A3, Legal notice dt.1.10.2012 was served to Opposite Parties 1 to 3 for refixing his pension as Rs.5,889/-. Ex.A10 Financial year 2010-2011 for Complainant salary account as on 31.03.2011 reveals that the E.P.S. contribution is Rs.6,492/- and the balance amount from the employer account is Rs.56,457/-. Ex.A11 reveals that the complainant has joined in the APSRTC as Junior Assistant (Fin) from 9.6.1980 and till 28.01.2010 to 25.01.2011 he has been elevated as Dy. Supdt(F). Ex.A12 dt. 17.10.2012 furnished by the PW2 reveals that the Complainant’s highest option form for higher pension along with others has been handedover to the P.F. Trust Head Office by the PW-2 vide Employment No.094-229 Sr. Asst (P). Ex.B2 furnished by the P.F. authorities i.e. 3rd Opposite Party shows that his pension wages from August 2010 to July 2011 is at Rs.6,500/- only. In the counter and Evidence Affidavit, 3rd Opposite Party stated that as the Complainant’s wages pay is Rs.6,500/-. The Pension is calculated for Rs.1889/-. Ex.B4 also reveals the same. In the document dt. 3.8.2011 in the space of date of option for commencement for pension option for return of capital it was NIL. As seen from the Ex.A12 & A2 last pay slip of Complainant and the receipt dt.3.8.2011 furnished by the 3rd Opposite Party it seems that the complainant has furnished the highest option i.e. higher pension scheme which was confronted by PW-2 vide Ex.A12, Opposite Party 1 & 2 has not deducted the said amount from the salary of the complainant. Thereby the pension of the complainant is fixed as Rs.1889/- inspite of Rs.5889/-.
Hence observing the Ex.A1, A2 and B1 to B3, we hold that the 3rd Opposite Party has acted upon with due care basing upon records furnished by Opposite Parties 1 and 2, we opine that there is no fault on part of 3rd Opposite Party. As per the para 16 above we already came to conclusion that there is no fault on part of the 3rd Opposite Party. Now the point to be decided whether there is deficiency on the part of Opposite Parties 1 & 2. - In the present complaint, the 1st Opposite Party filed counter and the same was adopted by 2nd Opposite Party vide Adoption Memo dt.26.07.2013. In the Para No.2 of the counter filed by the Opposite Parties it was stated that “the opposite parties humbly submits that the allegations made in para III (a) of Complaint the complainant has joined the APSRTC on 9.6.1980 and retired on 30.6.2011 may be true and his last salary is Rs.28,319.00 is false, as per the records his last pay + D.A. is Rs.19,105 + 4,623”. The complainant stated in the evidence Affidavit (vide para No.3) “I joined the Corporation on 9.6.1980 and retired on 30.6.2011 on superannuation in the capacity of Dy.Supdt (Finance) at Visakhapatnam and my salary at the time of retirement is Rs.28,319/-”. The PW-2 Sri T.V.Ramanayya, Employee No.094229, Sr Asst (P) stated in his Affidavit that along with the other employees option form for higher pension, the PW-1 (Complainant’s) higher option claim form is also handedover to the P.F. Trust Head Office along with the Option form of the PW-2. The Ex.A12 reveals that PW-2 has submitted the option form to the PF Trust HO i.e. located at M.D. Office, Hyderabad. The Opposite Parties states that the complainant came with a wrong calculation he has not submitted any request for any higher option. As per the P.F. Wages on 15.11.1994, the wages, the complainant is Rs.4,110/- on the date of exit Rs.6500/- was basing upon the formula for granting pension he has been paid Rs.1889/- i.e. Rs.1444/- + past service benefit of Rs.445/-. Ex.A2, Last drawn salary statement of the Complainant reveals that he is getting Rs.28,319/- Gross Salary and net amount of Rs.17,098/-. Ex.A11, Notification shows that Complainant worked in Vizianagaram District, Simhachalam Depot, Gajuwaka Depot and Anakapally Depot of Visakhapatnam District.
With regarding to relief No.1: Observing the Ex.A11, Ex.A12 and Para 2 of the counter of Opposite Parties 1 & 2 and denial of the complainant has not submitted any request for highest option/higher pension we hold that there is deficiency of service on the part of Opposite Parties 1 & 2 for not fixing the pension, even after receiving the higher pension/higher option as stated by the PW-2. The Opposite Parties 1 & 2 are directed to refix the pension of the complainant viewing the Ex.A2 Receipt and after receiving the entire record the 3rd Opposite Party has to pay pension basing upon his last drawn salary vide Ex.A2 from Oct.2012. As seen from the Ex.A11, on the Complainant has worked in various places at Vizianagaram and Visakhapatnam and the Complainant’s Higher pension option has been sent to M.D. office at Hyderabad vide Ex.A12 (i.e. in present Telangana State) we conclude that some time has to be given to Opposite Parties 1 and 2 to gather the entire record for fixation of revised/enhanced pension to the Complainant. With regarding to Relief No.2: The Opposite Parties are directed to pay the arrears of the enhanced pension to the Complainant from July 2011 to September 2012 basing upon the new calculation of the enhanced pension. With regarding to Relief No.3: To grant any other reliefs or reliefs which the Forum deems fit and proper and as the complainant has not claimed any cost and compensation. As per case law I (2009) CPJ 129 NC in the case of Santosh Meghna Vs M.P.Housing Board it was held while deciding the matter all the reliefs sought by the complainant has to be answered. So the matter was remanded back to the Forum for proper adjudication of all the reliefs sought by the Complainant. Here in this case on hand observing relief No.3 and the principle of 27 Revision Petitions decided by Hon’ble Supreme Court on 9.4.2013 along with case law I (2009) CPJ 129 NC related to Pension case, we are of opinion that the complainant is entitled for the legal expenditure for an amount of Rs.5,000/- to be paid by Opposite Parties 1 & 2. Time for compliance of this order 60 days from the date of receipt of this Order. In the result the complaint is allowed in part. (1) The Opposite parties 1 & 2 are directed to refix the pension of the Complainant basing upon the Ex.A2 Last drawn salary statement of the Complainant and after the correct calculation was prepared which has to be sent to the 3rd Opposite Party, so that 3rd Opposite Party can pay the enhanced pension to the complainant from October, 2012. The Opposite Parties 1 & 2 are directed to pay the arrears of the enhanced pension from July 2011 to September 2012 as per the new calculation for the enhanced pension. (2) After receiving the documents/record pertaining to the enhanced pension of the Complainant from Opposite Parties 1 & 2, the 3rd Opposite Party has to pay the pension of the Complainant. (3) The Opposite Parties 1 & 2 are jointly and severally liable to pay costs of Rs.5,000/- towards legal expenses to the complainant. Time for compliance is 60 days from the date of receipt of this Order. Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 29th day of September, 2014. Sd/- Sd/- President (FAC) Member District Consumer Forum-I Visakhapatnam APPENDIX OF EVIDENCE Exhibits Marked for the Complainant: Ex.A1 | 30.06.2011 | Retirement Letter | Original | Ex.A2 | | Salary slip for the month of May | Original | Ex.A3 | 01.10.2012 | Legal Notices to all the three Opp. Parties | Photostat copy | Ex.A4 | | National Consumer Disputes Redressal Commission, New Delhi Award copy of R.P.No.3970/2009 as R.K.Batta | True copy | Ex.A5 | 28.10.2012 | O/o E.P.F. Organization, Regional Office, Visakhapatnam in PPO No.GR/VSP/00047905 of T.Jagannadham | Original | Ex.A6 | 01.01.2011 | APSRTC, VZM Notification | Photostat copy | Ex.A7 | 2010-2011 | P.F. Balance Account statement | Original | Ex.A8 | 17.10.2012 | T.V.Ramanayya Letter to Complainant | Original | Ex.A9 | -10-2012 | Acknowledgement Due from R.M.office | Original | Ex.A10 | -10-2012 | Acknowledgement due signed by M.D. Office, Hyderabad | Original | Ex.A11 | 01.10.2012 | Asst.P.F.Commissioner Postal receipt | Original | Ex.A12 | 17.12.2012 | Letter addressed by T.V.Ramanaiah | Original | Ex.A13 | | Served Cover of Ex.A12 | Original |
Exhibits Marked for the Opposite Parties: Ex.B1 | 26.08.2011 | In-put data sheet | Original | Ex.B2 | | In-put data sheet | Original | Ex.B3 | | In-put data sheet | Original | Ex.B4 | | In-put data sheet | Original |
Sd/- Sd/- President (FAC) Member District Consumer Forum-I Visakhapatnam
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