KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL Nos. 637/2018, 638/2018, 639/2018, 640/2018, 641/2018,
642/2018 and 643/2018
COMMON JUDGMENT DATED: 22.09.2020
(Against the Common Order in C.C. 826/2015, 77/2017, 76/2017 , 74/2017,
829/2015, 827/2015, 78/2017 of CDRF, Ernakulam )
PRESENT
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. RANJIT. R. : MEMBER
APPEAL No. 637/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent:
Sri.N.Ravindranathan, S/o.K.Narayana Menon, Vysakh House, No.379, Ward No.20, Palliparambukavu Road, Vyrelil Nagar, Tripunithura, Pin-682 301
(Party-in-person)
APPEAL No. 638/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent
Sri.B.Chandramony, W/o.N.A.Syama Prasad, Syam Nivas, Koothappily Lane, LBS Cross Road, Edappally P.O, Kochi, Pin-682 024
(Party-in-person)
APPEAL No. 639/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent
N.A.Syama Prasad, S/o.Late Velukkuty Menon, Syam Nivas, Koothappily Lane, Edappally P.O., Kochi, Pin-682 024
(Party-in-person)
APPEAL No. 640/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent
A.G.Unni, Sivam Valiya Veetil, Thamarakulangara, Tripunithura P.O.,
Kochi, Pin-682 301
(Party-in-person)
APPEAL No. 641/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent
T.C.Joy, S/o.TJ Cheeku, Thaiparambil House, Eloor Ferry Road, Udyogamandal P.O.
(Party-in-person)
APPEAL No. 642/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent
K.Govindan Nair, S/o.G Kunjan Pillai, Chappayil House, Near SNV (Skt) HSS, Nanthiattu Kunnam, North Parur, Pin-683 513
(Party-in-person)
APPEAL No. 643/2018
Appellant
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(Adv.Sajeev Kumar K.Gopal)
Vs.
Respondent
M.A. Varghese, S/o.Late M.K. Antony, aliakal, LBS RRA, Near Ponel Church,
Ponekkara P.O., Kochi-682 041
(Party-in-person)
COMMON JUDGMENT
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
These appeals are all directed against a common order dated 23.06.2018 passed by the Consumer Disputes Redressal Forum, Ernakulam (hereinafter referred to as the District Forum for short) finally disposing of a batch of cases, allowing all the seven complaints filed by different complainants. They had alleged deficiency in service against a common opposite party. The complaints were all allowed finding that there was deficiency in service and compensation has also been ordered by the District Forum. The aggrieved opposite party is the appellant before us in all these appeals. Since the issues involved are common, all the appeals were heard together and are being disposed of by this common judgment.
The complaints were filed in the following facts and circumstances. The complainants were all employees of the Fertilizers and Chemicals Travancore Ltd (FACT). They are the respondents in each of these appeals. They were members of the Employees’ Provident Fund Scheme of 1952. Accordingly, contributions were being made by them as well as their employer, under the provisions of the said scheme. In order to further provide support and succour to the employees in their old-age, a beneficial scheme was formulated by the Government of India, with the object granting pension to them. Accordingly, the Employees’ Family Pension Scheme, 1971 (Pension Scheme 1971 for short) was brought into force on 01.03.1971. This scheme provided for a limited pension coverage to the spouse and minor children of the subscriber in the event of his death while in service. The complainants were members of the Pension Scheme 1971 and had remitted their contributions as required by the said scheme. Since the said scheme was found to be inadequate in many respects, the Government of India introduced the “Employees’ Pension Scheme” in 1995 (Pension Scheme 1995 for short) with effect from 16.11.1995. Thereupon, the complainants were enrolled in the said scheme. The contributions made by them under the Pension Scheme of 1971 were transferred to the Pension Scheme of 1995. The opposite party (the appellant in all these appeals) is the authority empowered to maintain the accounts of the pension scheme mentioned above, it is the said authority who receives their contributions under both the schemes. The reliefs sought for by the pensioners are also to be granted by the said authority. In view of the above, the said authority is a service provider in respect of the complainants.
Though the complainants had all retired from service on different dates, their complaint was that they had not been granted all the benefits to which they were entitled as per law. They claimed that they were entitled to be granted the full benefits of the scheme since they had remitted their contributions under the provisions thereof. They pointed out that, under para 10 (2) of the Pension Scheme, 1995 they were entitled to be granted a weightage of two years over and above their pensionable service, since they had more than 20 years service, which had not been granted to them. Consequently, they claimed that they were entitled to be paid a larger sum of monthly pension than what was fixed by the opposite party. They sought for the issue of appropriate directions from the District Forum to the opposite party for having their pension calculated afresh in accordance with para 12 (4) (a) and (b) read with para 10 (2) of the Pension Scheme, 1995. They complained that they were not granted the past minimum service benefit and weightage of two years on their pensionable service under para 10 (2) of the Pension Scheme 1995 while fixing their monthly pension. They also contended that, in cases where an incumbent retired without attaining superannuation, only 6% shall be deducted from the pension amount. For the above reasons, they claimed payment of their arrears of pension with interest at the rate of 12% interest per annum.
The complaints were contested by the opposite party raising a number of contentions. In the first place, it was contended that the complainants were hopelessly barred by time, having been filed after a lapse of more than 12 years. In view of Section 24 -A of the Consumer Protection Act, 1986, the complainants alleged that the complaints were not maintainable. It was admitted that, the Pension Scheme 1995 came into force with effect from 16.11.1995 replacing the earlier Family Pension Scheme of 1971. The complainants had exercised their option to be governed by the provisions of the Pension Scheme 1995 and the contributions made by them under the earlier scheme were transferred to the present scheme. Since the complaints were not filed within a period of two years from the date on which each of the complainants superannuated, it was contended that the complaints were all barred by time.
According to the opposite party, the complainants were not entitled to get the minimum past service benefit of Rs.800/- under paragraph 12 (3) (a) of the Pension Scheme 1995. It was contended that, paragraph 12 of the Pension Scheme 1995 had been recast by the Government of India in the year 2007 and the provisions have been given effect from 16.11.1995. Even according to the provision as it stood prior to the said amendment, the monthly pension sanctioned and paid to the complainants was more than the aggregate minimum. Therefore, according to them, there has been no irregularity in the quantification or payment of monthly pension to the complainants.
With respect to the claim of the complainants that they were entitled to weightage of two years on their pensionable service, it was contended that, such weightage would be available only if a member had rendered 20 years of service or more from the date of joining the Pension Scheme of 1995. In other words, he ought to have had a service of 20 years from the date of joining the scheme as on the date of superannuation, in order to get the benefit of paragraph 10 (2) of the Pension Scheme 1995. The opposite party also contended that, the decision of the National Commission in RP No.3970/2009 (Regional PF Commissioner Vs. Mallikarjun Devendrappa Verapur) that a member who had 20 years of past service and 8 years of actual service would be entitled to the weightage of two years in terms of paragraph 10 (2) of the Pension Scheme 1995 was not applicable to the present case. This is for the reason that, the said decision had been challenged in SLP (C) No.30844/2010 and the SLP was dismissed leaving open the question as to whether “pensionable service” could be equated to “eligible service”, to be decided in an appropriate case. Since the Supreme Court had not made any pronouncement on the said aspect, it was contended that the decision of the National Commission was not applicable.
The District Forum considered the complaints in light of the above pleadings after letting in evidence. Both parties produced documents. No oral evidence was adduced by either of the parties. After the close of evidence, the matter was heard.
The District Forum found that since the complainants were entitled to receive their pension every month after their retirement, any dispute regarding the quantum of pension fixed gives them a recurring cause of action. Their complaint being that the amount payable to them had been wrongly fixed was a continuing one. A portion of what was legitimately due to them, having been denied, the cause of action in this case was found be continuing. Therefore, the District Forum found that the complaints were not barred by the period of limitation of two years stipulated by Section 24 -A of the Consumer Protection Act, 1986. The District Forum further pointed out that, the decision of the National Commission on the question of weightage was applicable to the present cases and that the complainants were entitled to get the benefit of paragraph 12(4) (a) and (b) and para 10 (2) of the Pension Scheme 1995. It also found that, there was deficiency in service on the part of the opposite party, that entitled the complainants to recover compensation, which has been fixed as Rs.10,000/- in favour of each complainant. It is aggrieved by the said order that the appellant has filed these appeals.
We have heard Adv. Sajeev Kumar K. Gopal who appears for the appellant in all the appeals, at length. The respondents, who appeared in person, were also heard. We have considered the contentions advanced before us anxiously.
According to Adv. Sajeev Kumar K. Gopal who appears for the appellant in all the appeals, the District Forum clearly went wrong in allowing the complaints and granting relief. According to the Counsel, all the respondents were employees of the Fertilizers and Chemicals Travancore Limited (FACT). They were members of the earlier Pension Scheme of 1971. When the Pension Scheme, 1995 was brought into force, they joined the said scheme. Their contributions under the Pension Scheme 1971 were also transferred to the Pension Scheme 1995. All of them retired in the year 2004 and the amounts due to them were all paid. They had no complaint regarding the fixation of their pension. It was only in the year 2015, that their representatives claimed weightage of 2 years under para 10 (2) of the Pension Scheme 1995 by submitting representations. The representations of the representatives were rejected after due consideration on 04.01.2016. It is only thereafter that the present complaints were filed. Since the accounts of the respondents were settled in the year 2004, the complaints filed in the year 2017 were belated and barred. Therefore, the District Forum ought to have dismissed all the complaints on the said ground.
It is further pointed out by the learned Counsel that, the respondents were all granted pension computed as per paragraph 12 of the Pension Scheme of 1995 as it stood at that time. The said paragraph has been amended and recast subsequently. The said provision after its amendment cannot be made applicable to the respondents. According to the learned Counsel, the computation and calculation of the pension of all the respondents was done correctly and in accordance with the provision of law that was applicable at the time of their retirement. Therefore, the findings of the District Forum that there was deficiency in service on the part of the appellant and awarding of compensation and costs was without any justification. On the above grounds, he sought for the issue of appropriate orders setting aside the common order of the District Forum.
The petitioners appeared in person and submitted that they were entitled to the weightage of two years under law which has been denied to them. As a result of the wrong computation of pension made by the appellant, losses are being caused to the respondents every month. Such financial losses are of a continuing and recurring nature. Therefore, it is contended that their complaints were within time and were rightly allowed by the District Forum. It is further contended that, instead of complying with the order of the District Forum and giving them the benefits that were rightfully due to them, the appellant has filed these appeals challenging the order and putting them to needless, trouble and expenses. The payments due to them have been delayed again and consequently denied, due to the pendency of these appeals. According to them, they are old and in view of their advancing age and failing health it is only appropriate that they are granted the reliefs sought for by them, expeditiously. Therefore, they sought for dismissal of the appeals with costs.
The first question vigorously put forward by the Counsel for the appellant was that the complaints were barred by limitation. It is contended that, since the present complaints were not raised at the time of fixation of pension in the year 2004, the claim of the complaints are barred. However, as rightly found by the District Forum, the entitlement of the respondents to receive pension is a continuing one and it occurs every month. Therefore, denial of the legitimate amount to the pensioner is an event, that occurs month after month entitling the said person to challenge such denial at any time as long as he is receiving pension. The fixation of pension in the year 2004 was only an event that recognized the right of the pensioner to receive a particular amount as pension each month, as long as he was alive. The quantum of pension if fixed wrongly would deny to the pensioner an amount to which he is entitled, every month. Therefore, his right to receive the proper amount to which he is entitled, would subsist, as long as he is a pensioner. In view of the above, we hold that the complaints are not barred by limitation.
The next question raised for consideration is whether the respondents are entitled to get the weightage of two years on their pensionable service under paragraph 10 (2) of the Pension Scheme 1995. The National Commission has in Revision Petition No.3970/2009 [Regional National Commission Vs. Mallikarjun Devendrappa Verapur), (evidenced by Exbt.A5 in C.C. No.74/17 against which appeal No.640/2018 is filed)] held that, a person who had rendered only 8 years service after the 1995 Pension Scheme came into force was entitled to get the weightage of 2 years under para 10 (2) since he had 24 years prior service. Though an SLP was filed by the appellant against the said judgment, the same was dismissed. Therefore, the judgment of the National Commission has become final. It is also binding on the appellant. In view of the above, the District Forum is right in finding that the respondents were entitled to get the benefit of paragraph 10 (2) of the Pension Scheme 1995. Apart from the above, it has been admitted by the appellant in the additional version filed in C.C.No.74/2017 (A.640/2018) that the Ministry of Labour and Employment, Government of India had decided that for granting two years weightage service rendered by an employee under the Pension Scheme of 1995 his service under the erstwhile Family Pension Scheme 1971 is also to be included. It is further stated in the additional version that the appellant had decided to revise the pension scheme benefits granted to the respondents also, by extending the benefit of 2 years weightage to them. Therefore, the District Forum was fully justified in granting reliefs to the respondents.
In the case of the complainant in C.C.No.829/2015 (A.641/2018) the respondent Sri. Joy had retired 2 years prior to his age of superannuation. However, instead of reducing 6% of his pension amount, 9% had been deducted and the District Forum has directed that the deduction be limited to 6% only. Their further complaint that the appellant had given them only a lesser amount of Rs.800/- per month in terms of paragraph 12 (3) (a) of the Pension Scheme 1995 was found to be justified since the Government of India had issued a notification, GSR No.431 dated 15.06.2007 recasting paragraph 12 of the Pension Scheme 1995 and sub paragraphs (1) to (7) with a deeming provision giving effect to the Pension Scheme 1995 from 16.11.1995. In view of the above, a direction to verify and re-compute the pension amount of each of the respondents and to grant them the minimum past service benefit has also been issued. We do not find any infirmity in the above directions. Therefore, the findings and directions of the District Forum are sustained.
The District Forum has considered the issues correctly and in the proper perspective. We bear in mind the fact that, the Employees’ Provident Funds and Miscellaneous Provisions Act 1952 is a beneficial legislation intended to provide some relief to the employees of the covered establishments, in their old age. The fund is constituted with contributions made by employers and employees. The Pension Scheme is intended to help the employees in their old age when they become weak, infirm and afflicted with various ailments. The respondents who have appeared before us in person are all aged and in distress. The appellant being the authority entrusted with the duty of implementing the Pension Scheme ought to have accepted the common order of the District Forum gracefully and given effect to the directions expeditiously. Instead, they have been pursuing these appeals, adding to the agony and miseries of the respondents and continuing to deny the legitimate benefits due to them. Without having the wherewithal to engage a lawyer they have been appearing in person, in these appeals. Therefore, they are entitled to the costs of this litigation which is fixed at Rs.5,000/- in the case of each of the respondents.
In the result, all the above appeals are dismissed with costs quantified and fixed at Rs.5,000/- in respect of each respondent. The common order of the District Forum is confirmed.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
RANJIT.R : MEMBER
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