IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Date of filing : 11/03/2019
Date of order : 18/01/2023
PRESENT:
Shri.D.B.Binu President
Shri. V.Ramachandran Member
Smt. Sreevidhia T.N Member
C.C.No.113/2019
COMPLAINANT
P S Gopalakrishnan, Ammus Bunglow Lane Ponekkara Edappally,
Kochi-682 041
(Party-in-person)
Vs.
OPPOSITE PARTIES
The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Bhavishya Nidhi Bhavan, P.B.No.1895, Kaloor, Kochi-682 017
(O.p. rep. by Adv.S.Prasanth, Attorneys’ Alliance, Law Firm, II nd Floor, Chundanal Monarch, KK Padmanabhan Road, Ernakulam, Pin-682 018)
F I N A L O R D E R
V.Ramachandran, Member
1) A brief history of the complaint is as stated below:
The complaint is filed P.S Gopalakrishnan against the Employees Provident Fund Organization seeking for issuing direction to the opposite party for recomputing the beneficiary account in respect of the complainant.
The complainant states that he was an employee of the Fertilizers and Chemicals Travancore Ltd. (F.A.C.T. Ltd.) and was also a member of Employees Pension Scheme 1995. On attainment of age of 58 years, the complainant was retired from the service of FACT and Employees Provident Fund organization with statutory authority administering the Employees Pension Scheme 1995 (EPS 1995). The opposite party is the Head of the Regional Office of EPFO at Kochi and Pension payment Order No.KR/KCH/PENSION/41497 dated 17.03.2006 was issued by the opposite party to the complainant.
Accordingly, the complainant is getting pension of Rs.3494/-per month. On getting the pension payment order eventhough the complainant checked the accuracy of the pension amount sanctioned to him, no discrepancy was seen by him at that time.
During December 2018 the complainant came to know from the colleagues in FACT that they had obtained orders from the Consumer Commission regarding wrong computation and its rectification issued by the Consumer Commission. On the strength of this information the complainant filed an application under Right to Information Act, 2005 requesting to recompute the pension account of the complainant and on verification of the details from the office, the complainant came to know that there was some serious mistakes in the computation of pension account of the complainant.
The computation of the complainant’s pensionable salary is based on a wrong calculation upon which the pension is being calculated. As per the rules EPS 1995 as it existed on the date of complainant’s retirement, pensionable salary is the average salary of a member for a period of one year prior to his/her retirement dated. It has to be calculated by dividing total salary for the last one year prior to retirement by 12. Unfortunately, Ex.No.1 do not divulge the method by which pensionable salary of the complainant was arrived into. It is submitted that the complainant came to know from his colleagues that the opposite party’s office was following a different method of arriving the Pensionable salary, with sole intention of reducing the pensionable salary amount to the maximum extent possible. The practice followed by them was dividing last one years salary by 365 and multiplying the quotient by 30. This practice was adjudged wrong by this Honorable Forum in the common order issued dated 23.06.2018 in respect identical complaints referred earlier in this letter. In EX.No.3 at one place the opposite party has stated that his pensionable salary is Rs.22,800/- but at another place in the same document while making computation of his pension the pensionable salary has been taken as Rs.22,030/-. When the complainant sought for clarification from the opposite party they are not answering the question of the complainant.
The second mistake committed was with regard to the past service benefit which is one of the ingredients of pension. Since EPS 1995 was an extension of erstwhile Family Pension Scheme 1971, pas service benefit is the pension amount pertaining to the period from 01.03.1971 to 15.11.1995 (period before the commencement of EPS 1995).Para 12 of EPS 1995 has mentioned a particular procedure for calculating past service benefit. Moreover para 12 (4) (b) has also fixed a minimum amount of Rs.600/- per month as past service benefit for those category of members whose age was between 48 and 53 as on 16.11.1995. The complainant’s date of birth is 07.12.1946, the complainant belonged to the above age group as on 16.11.1995. Hence if the amount arrived at by the procedure of calculation is less than the minimum amount of Rs.600/- the member concerned is entitled for the minimum stipulated amount. But as per Exbt.No.3 the past service benefit sanctioned to me is only Rs.420/- ie., Rs.180/short of his eligible amount.
Hence the complainant addressed the opposite party highlighted the mistakes of the opposite party and requested the opposite party to rectify the same by issuing a revised pension payment order and requested the opposite party to pay pension arrears due to the complainant. The opposite party has responded to the claim of the complainant vide Ex.No.4 through their letter No.Kr/KCH/PPO/41497/Pen.Cell II (2)/2019/8082 dated 05.02.2019. Unfortunately Ex.No.5 was not answering any of the points the complainant had raised with regard to mistakes in the pension computation. It simply discloses certain calculations for arriving at the present pension amount of Rs.3494/- per month. The said letter simply ignores the difference of opinion raised by the complainant without assignating any reasons for the same. The complainant stated that such a response is definitely arbitrary, arrogant and a most unfair practice resorted by a statutory agency in charge of administering a social security scheme of EPS 1995, enacted by the Parliament of our country. This is a grave deficiency in service. As a result under the head of past service benefit alone the loss of the complainant is around Rs.40,000/-. The complainant also claimed interest @8.5% since that was the rate of interest levied from the complainant during the year 2000, for complainant's contribution arrears towards erstwhile Family Pension Scheme 1971, for securing the membership of EPS 1995. Moreover the opposite party has to convince the complainant regarding the accuracy of the computation of complainant’s pensionable salary. If the opposite party has committed the mistake as attributed by the complainant under the head of his pensionable salary, the same will further enhance the complainant’s pension arrears.
Aggrieved by the non compliance from the side of the opposite party the complainant approached this Commission seeking to issue direction to the opposite party for recomputing the pension payment of the complainant by rectifying the mistakes and also to issue reliefs of compensation and costs.
2) Notice
Upon notice the opposite party appeared before the Commission and filed vakkalath.
3) Version of the opposite party
The opposite party averred in their version that the complaint filed by the complainant is barred by limitation and the complaint was to be filed within 2 years. Further the calculation of pension made in the case of the complainant is correct as per the calculation done by Employees Provident Fund Organization. Moreover, the complainant has not challenged the legal validity of notification dated 15.06.2007 in G.S.R.431. Above all the complainant has not produced any methodology of calculation adopted by the Employees Provident Fund Organization and the calculation is fully computerized, and raised other allegations like any chance for recalculation of pension shall result shall upset the financial validity of the scheme etc are the main allegations raised by the opposite party in their version.
4) Evidence
The complainant has produced Exbt.A1 to A13 documents which are marked and there is no oral evidence from the side of the opposite party. No oral or other evidences from the side of the opposite party.
On verification of the above documents and upon considering the details furnished by the complainant in the above complaint we have reached into the following observations.
The complainant was an employee of the Fertilizers and Chemicals Travancore Ltd. (F.A.C.T. Ltd.) as is proved from the documents produced by the complainant. The complainant was a member 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 which was provided to 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 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 complainant was a member of the pension scheme and had remitted his contribution as required by the said scheme. Though the complainant had retired from service he had not been granted all the benefits to which he is entitled as per the law. This is the main arguments put forth by the complainant in his complaint and prayer of the complainant is that the Commission may issue direction to the opposite party to recalculate the pension passed on the averments shown by the complainant. The opposite party took the contention that the decision of the National Commission in RP No.3970/2009 (Regional National Commission 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, of the case. It is contended that the decision of the National Commission is not applicable in this case. As regards to the allegations of the opposite party that the present complaint is not raised at the time of fixation of pension and therefore the complaint is barred by time is not correct. The entitlement of the complainant to receive pension is a continuous action which occurs in every month and therefore there is no limitation since there is a continuous cause of action enabling the complainant to challenge such denial at any time as long as he is receiving pension. It is presumed by the complainant that the quantum of pension fixed gives them a recurring cause of action. This complaint being that the amount payable to them had been wrongly fixed was a continuing one. Therefore, the right to receive proper amount for which he is entitled to subsists as his right even now.
The complainant is legitimately eligible to get the amount of pension for which he is entitled to get. The complainant reasonably apprehended that there had occurred the some mistakes while computing his pensionary benefits and that the complaint filed by the complainant before the opposite party was which was not properly considered. Denial of legitimate benefits for getting deserving pension at the old age shall add agony and miseries to the complainant. Therefore the opposite party is directed to recompute the beneficiary account of the complainant within 30 days from the date of receipt of a copy of this order to ascertain whether there is any veracity in calculation and to intimate the complainant the out come of such calculation to the complainant. With this direction the complaint is decided as closed.
Pronounced in the open Commission this the 18th day of January 2023.
Sd/-
V.Ramachandran, Member
Sd/-
D.B.Binu, President
Sd/-
Sreevidhia T.N., Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exbt.A1 ::copy of letter sent by the opposite party to the complainant dated 21.03.2006
Exbt.A2 :;copy of RTI letter dated 31.10.2018
Exbt.A3 ::copy of reply to the RTI letter sent by the opposite party to the complainant dated 16.11.2018
Exbt.A4 ::copy of letter sent by the complainant to the opposite party.
Exbt.A5 :: copy of details of pension calculation.
Exbt.A6 ::copy of orders from Supreme Court
Exbt.A7 ::Copy of complaint filed by the Shashidar A. before the opposite party.
Exbt.A8 :;Copy of extract of Act of PF scheme 1995 Act.
Exbt.A9 :: copy of letter sent by the employees’ provident fund organization dated 28.12.2018.
Exbt.A10 :: copy of letter dated 01.03.2019
Exbt.A11 ::copy of proceedings dated 29.03.2019
Exbt.A12 :Copy of complaint filed by the Shashidar A. before the opposite party.
Exbt.A13 ::copy of revision petition filed before the National Consumer Disputes Redressal Commission.
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Assistant Regi
