BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

                                                     Date of filing :  74/2017  : 16.02.2017

                                     76/2017  : 16.02.2017                                      

                                                         77/2017  : 16.02.2017

                                                       78/2017  : 16.02.2017

                                                       826/2015  : 17.02.2015

                                                     827/2015  : 17.02.2015

                                                       829/2015  : 18.12.2015

                             Date of Common Order    :   23.06.2018       

PRESENT:

Shri. Cherian K. Kuriakose,                                    President.

Shri. Sheen Jose,                                                  Member

Smt. Beena Kumari V.K.                                        Member.

C.C.No.74/2017

                                      Between      

C.C.No.76/2017

C.C. No. 77/2017

C.C. No.78/2017

C.C. No.826/2015

                                                C.C.No.827/2015

C.C.829/2015

Opposite party in all these cases

COMMON ORDER

Beena Kumari V.K.   Member    

1)­     All these seven complaints are filed by the complainants alleging deficiency in service on the part of the opposite party – the Regional Provident Fund Commissioner, Employees Provident Fund Organization with the prayer to re-fix the pension of the complainants in accordance with para 12 (4) a & b r/w para 10 (2) of the Employee’s Pension scheme, 1995 (herein after referred to as EPS 1995) and to pay the differential of pension amount till date along with 18 % interest p.a and costs of the proceedings.  Since the facts and law involved in all these cases and prayers involved are the same, these cases are heard together and disposed of by this common order.

2)     A brief statement of facts of this complaint is as stated below:

        The complainants were the employees of the Fertilizers and Chemicals Travancore Ltd. (FACT Ltd.) and they were enrolled as members of Employees Provident Fund Scheme, 1952. The 1952 scheme was introduced to provide old age and post service financial support to the members on the basis of monthly contribution by the employer and employee at equal rate: The scheme lacked survivorship coverage on the death of a member or in the event of member becoming invalid during the service period.  Therefore, in the year 1971 the Government of India formulated Employees Family Pension Scheme 1971 (EFPS 1971) which came into force on 01.03.1971 and this scheme provided for Limited pension coverage to spouse and minor children in the event of subscriber’s death while in service.  The complainants were members of the Employees Family Pension Scheme since 1971 and had contributed to the Employees Provident Fund as contemplated under para 9 of the 1971 scheme.  The Government of India again formulated the Employee’s Pension scheme, 1995 with effect from 16.11.1995 (EPS 1995) and the complainants opted this scheme and the contributions made by them towards Employee’s Family Pension Scheme, 1971 were transferred to EPS 1995 from the date on which it came into force and the opposite party is the officer appointed under EPS 1995 to maintain the accounts of Family Pension Fund under the Employees Family Pension scheme 1971 as well as the Employee’s Pension scheme 1995 and also to receive the contributions and to give relief to the pensioners under both the schemes.  Thus the opposite party is a service provider to the complainants. The complainants contended that they are entitled to get weightage of 2 years to the pensionable service under para 10 (2) of EPS 1995 since they have more than 20 years’ service and are entitled for a bigger sum of monthly pension than that fixed by the opposite arty which is required to be calculated as per para 12 (4) (a) & (b) read with para 10 (2) of EPS 1995.  The complainants contended that the opposite party had not considered and granted the past minimum service benefit as provided under para 12 (4) of EPS 1995 and also not granted the weightage of 2 years to the pensionable service as provided under para 10 (2) of the EPS 1995, while fixing the monthly pension to the complainants.  The complainants prayed for a direction from this Forum to the opposite party to grant weightage of 2 years to pensionable service and also past minimum service benefit to the complainants while fixing the pension amount and to pay the pension along with 12% interest p.a. and to deduct only 6% from the pension amount when the retirement of the incumbent is without attaining super annuation. The complainants prayed also for the grant of compensation and costs to the complainants.

3)     A Joint trial of all these 7 complaints were allowed on 28.09.2017. C.C.No.826/2015 is considered as the leading case.  Therefore the original of this common order shall be filed in the file of C.C. No.826/15 and copies in the other cases.

4)     Notices were issued to the opposite party and the opposite party filed their version in response to the notices received by them.

5)     Version of the opposite parties

        It is submitted that the present complaints are filed after the lapse of more than 12 years.  Hence barred by the period of limitation as stipulated under Section 24 A of the Consumer Protection Act and no complaints so far raised by the complainants before the opposite party.   In the version filed on 24.02.2016 it is submitted that the new employee’s pension scheme (EPS 1995) came into force with effect from 16.11.1995 replacing the erstwhile Employees Family Pension scheme 1971 (EFPS 1971).  The complainants exercised option and became members of EPS 1995 by transferring the amount of contribution under the EFPS, 1971 to EPS 1995.

        The complainants availed pension in the year in which they retired and these complaints are not filed within 2 years from the year of retirement.  Therefore these complaints are barred by the period of limitation of 2 years as prescribed under Section 24 A of the Consumer Protection Act, 1986.  It is further contended that the complainants are not entitled to get the minimum past service benefit of Rs.800/- as per Paragraph 12 (3) (a) of EPS, 1995.  The Government of India had issued the notification GSR No. 431 dated 15.06.2007 recasting paragraph 12 of EPS 1995 inorder to clarify the ambiguity or confusion therein and substituted sub paragraphs 1 to 7 with a deeming provision giving effect to the above provisions from 16.11.1995.  It is contended that even according to the provisions existed prior to the amendment, what was legitimately due to the complainants was the aggregate of paragraphs 12 (3) (a) and 12 (3) (b) and the monthly pension sanctioned and paid to the complainants was more than the aggregate minimum. Therefore there is no irregularity or anomaly in the amount of monthly pension quantified by the opposite party and granted to the complainants.

6)     One of the grievances of the complainants is that they were not given the weightage of 2 years to the pensionable service as provided in para 10 (2) of the EPS 1995.  The opposite party contended that pensionable service benefit is the benefit payable in respect of the service rendered from 16.11.1995 or from the date of joining the EPS 1995 to the date of attainment of 58 years ie., if a member had rendered 20 years of pensionable service or more, from the date of joining the EPS 1995 till the date of his superannuation at the age of 58 years, he is eligible for the weightage of 2 years to the pensionable service as per paragraph 10 (2) of EPS 1995 and the past service is calculated under para 12 (3) of EPS 1995.  The opposite party contended that the averment of the complainants that they have got 33 years of pensionable service is not correct hence not admissible since the pensionable service is to be reckoned from the date of commencement of EPS 1995 ie., from 16.11.1995 or from the date of joining EPS 1995 to the date of exit from service or to the date of attainment of superannuation at the age of 58 years.  The past service represents the service rendered by a member under the Employees Family Pension scheme 1971 (EFPS 1971) the opposite party submitted that the employer is liable to contribute 8.33% of the wages which includes basic wages, DA & pertaining allowance on behalf of the employee under the EPS 1995, whereas the employers contribution under the EFPS 1971 is 1.16% of the salary of the employee and the employees PF Organization is under obligation to sanction and disburse various pensionary benefits without any delay to all the eligible employees, irrespective of whether or not the employer remitted the dues payable to the Pension Fund and the scale of benefits, calculation formula are different in EFPS 1971 AND EPS 1995.

7)     It is submitted that the decision of the National Commission in RP No.3970/2009 (Regional PF Commissioner Vs.Mallikarjun Devendrappa Verapur that a member who has 20 years of past service and 8 years of actual service would be entitled to weightage of 2 years in terms of para 10 (2) of EPS 1995, was challenged before the Hon’ble Supreme Court in SLP (C) No.30844/2010 and the SLP was dismissed leaving the question of law whether ‘pensionable service' can be equated to ‘eligible service’ is kept open to be decided in appropriate case.  Thus obviously there is an error in judgment of the Hon’ble National Commission and the employees PF organization is in the process of filing SLP before the Supreme Court against the orders of the National Commission in RP  No.1588/2014 and connected cases.  Further any increase of liability in excess of the scheme provisions will adversely affect the actuarial projection and the financial viability of the EPS scheme itself.  The opposite party contended that there is no deficiency in service on the part of the opposite party.  Hence it is prayed that these complaints may be dismissed with costs to the opposite party.

8)     The issues to be decided in these cases are as follows:

(i)      Whether these complaints are barred by limitation period as stated in Section 24 A of the Consumer Protection Act, 1986?

(ii)      If the complaints are maintainable, whether the complainants have proved deficiency in service or unfair trade practice on the part of the opposite party?

(iii)     Whether the complainants are entitled to get weightage of 2 years to the pensionable service under paragraph 10(2) of Employees Pension Scheme, 1995 (EPS 1995)?

(iv)     Whether the complainants are entitled to get minimum past service benefit as provided in Paragraph 12 (4) of EPS, 1995?

(v)     Whether the opposite party is liable to pay compensation and costs to the complainants?

9)       The evidence in these complaints consisted of documentary evidences only which were marked as stated below:

10)     Issue No. (i)

          All the complainants were employees of FACT Ltd. The date of voluntary retirement and the age completed as on the date of retirement are as follows:

Exbt.A1 filed in C.C.No.826/2015 is a copy of EPS, 1995.  During the year 2015 the opposite party informed the complainants that they are not eligible for weightage of 2 years under paragraph 10 (2) EPS 1995 since they all had retired prior to attaining superannuation at 58 years of age.  Aggrieved by the above decision of the opposite party these complaints were filed before this Forum after the elapse of 12 years from the date of Pension payment orders issued by the opposite party.  The opposite party contended that all the complaints are barred by the period of limitation under section 24 A of the Consumer Protection Act, 1986.  In these cases the cause of action is recurring and continuing, since the complainants are getting pension amount allegedly fixed wrongly by the opposite party.  The cause of action is recurring and still continuing. Hence we find that these complaints are not barred by the period of limitation of 2 years as envisaged in Section 24 A of the Consumer Protection Act, 1986 and all the complaints are maintainable before this Forum. Thus 1^st issue is decided in favour of the complainants. 

11)     Issue Nos. (ii), (iii) and (iv)

          One of the contentions raised by the complainants is that on getting the applications of the complainant – pensioners, through their employer- FACT Ltd., in Form IOD- the opposite party – Regional Provident Fund Commissioner had sanctioned the monthly pension amounts vide pension payment orders (PPO’s) on various dates as shown below:

The above complainants – Pensioners had retired voluntarily and they filed these complaints at the age of 67, 71, 68 68, 66, 69, 67 years respectively.  The complainants have raised a contention that the opposite party, to arrive at the average monthly salary, had divided the last 12 months salary prior to the date of retirement by 365, that the above calculation is wrong.  The above contention is accepted and we direct the opposite party to divide the 12 months’ salary amount with 12 (twelve) to arrive at the average monthly salary for the purpose of calculation of the pension amount.

Thus the calculation of pension amount in respect of all the complainants became wrong for the above mistake committed inter-alia by the opposite party – Regional Provident Fund Commissioner. The opposite party also went wrong in not granting weightage of 2 years to the pensionable service under para 10 (2) of the EPS 1995 while fixing the amount of monthly pension.  According to the opposite party in C.C.14, 31, 37, 41, 42, 45, 46, 47/2017 filed before the Consumer Disputes Redressal Forum, Shimoga (See Exbt.A11 in C.C.826/2015) none of the complainants had rendered 20 years or more of pensionable service from the date of coming into force of EPS 1995 on 16.11.1995 to the date of retirement of the complainants.  There the complainants had contributed to Employees Family Pension scheme 1971, since 1971 and then transferred the fund in EFPS 1971 to EPS 1995 which came into force on 16.11.1995.  The complainants contributed to EPS 1995 and retired after and before attaining the super annuation age of 58 years.  The complainants in the above complaints relied on the decision of the Hon’ble National Commission Hubli Vs Sri.Mallikarjun Veerapar (Exbt.A5 in C.C. 74/2017) bearing RP No.3970/2009 dated 29.06.2010 wherein the Hon’ble National Commission held that  para 6.2.13 of the Manual of Accounting procedure which provides that the weightage is due to be given only in the year November 2015 does not get any support from any provision in the EPs 1995.  Thus “Pensionable service includes past service ie., the service rendered before coming into force of EPS 1995 and the actual service rendered after the introduction of EPS 1995 ie., from 16.11.1995 to the date of retirement and the complainants are eligible for weightage of 2 years to pensionable service under para 10(2) of the EPS 1995. The above decision of the Hon’ble National Commission was challenged in Civil Appeal No.3174/2007 before the Hon’ble Supreme Court but was not adjudged wrong,   instead the Civil Appeal was dismissed and observed that the point of law is kept open.  The above decision of the Hon’ble National Commission is squarely applicable to the instant complaints.  Therefore we have no hesitation to hold that all the complainants are entitled to get weightage of 2 years while calculating the pensionable service under para 10 (2) of the EPS 1995.

12)     On dismissal of the Civil Appeal by the Hon’ble Supreme Court the legal position is settled and the above decision is practically accepted by the Government of India and the contention of the opposite party that the pensionable service does not include past service prior to EPS 1995 (ie prior to 16.11.1995) has no legs to stand in view of the decision of the Hon’ble Supreme Court confirming the decision of the Hon’ble National Commission. Moreover, in the additional version filed on 18.11.2016 Exbt.A7 in C.C.74/2017 it is submitted that Employees Provident Fund Organization, Head Office, New Delhi vide letter dated 25.07.2016 has now informed that as consented by the Ministry of Labour and Employment, Government of India “it has been decided that for granting benefit of two years weightage henceforth as well as for the cases settled, pensionable service will include service rendered under Employees’ Pension Scheme 1995 (EPS/1995) as well as erstwhile Employees Family Pension scheme 1971 (EFPS 1971)” to fulfil the condition of 20 years or more pensionable service.  The term pensionable service has achieved a new dimension by including the service before the period of the EPS scheme as pensionable service.  It is also stated in the additional version that in view of the above clarification issued by Head Office of Employees PF Organization, New Delhi it has been “decided to revise the pensionary benefits granted to the complainants by giving the benefit of two years weightage as provided under para 10 (2) of the EPS 1995 by the Head Office of Employees PF Organization ie., Head Office of the opposite party.   In the above circumstance the issue No. (iii) is decided in favour of the complainants in view of the decision of the Hon’ble Supreme Court confirming the decision of the Hon’ble National Commission discussed above as well as in view of the letter from the Head Office of the Opposite party dated 25.07.2016.  We also find that the complainants have sufficiently proved deficiency in service on the part of the opposite party since the opposite party has not safe guarded the genuine interests of the complainants and failed to give the benefit of the social security legislation in a speedy manner.   Thus the complainants have proved that there is inordinate delay in correctly fixing the pension due to the complainants after granting the weightage of 2 years and after deducting appropriate amount for earlier retirement to the all the complainants.  The complainant in C.C.829/2015 has submitted that the opposite party had deducted 9% on account of earlier retirement instead of 6%deduction from the pension amount under para 12 (7) of EPS 1995.  In his case two years fall short of 58 years.  Therefore we find that 6% alone can be deducted from the pension amount fixed in respect of Sri.Joy the complainant in C.C. No. 829/2015.  Another grievance pointed out by the complainants is that the opposite party had given lesser amount towards minimum past service benefit of Rs.800/- per month in terms of paragraph 12 (3) of EPS 1995.  The opposite party submitted that the Government of India have issued a Notification vide GSR No. 431 dated 15.06.2007 recasting paragraph 12 of EPS 1195 and sub paragraph (1) to (7) with a deeming provision giving effect to the above sub paragraph from 16.11.1995.  In view of the above provisions, the opposite party is directed to verify and re-compute the pension amount granting the minimum past service benefit to the eligible complainants.

13)     In the argument notes submitted by the complainant in C.C.826/2015 it is submitted that he had under the RTI Act got the information from the office of the opposite party vide their letter No. WSU/8(1) 2015-16/ RTI/151/1852 dated 08.03.2016, that the total available fund in EPS 1995 as on 31.03.2015 was 239,177.43 crores and out flow from the fund by way of pension during 2014-15 was only 7212.54 crores ie around 3% of the fund.  Therefore viability of the fund cannot be a concern at all.  Therefore the issues (ii) to (iv) are decided in favour of the complainants, since the complainants have proved inordinate delay in fixing the correct pension amount and deficient service was offered by the opposite party.

14)     Issue No. (v)

          The Government Notification recasting paragraph 12 of the EPS 1995 was issued early in 15.06.2007.  Even at the time of disposal of WP (C) No.28548/2009 dated 15.09.2015, the pension amount was not seen computed by the opposite party.  No convincing reason adduced by the opposite party for the above inordinate delay.  The complainants also have suffered a lot of mental agony and inconvenience in view of the delay so occurred in not correctly re-computing the pension amount due to the complainants in the light of the decision of the Hon’ble National Commission as discussed in the foregoing paragraphs.  The complainants are entitled to get compensation for the delay occurred and for costs.  We fix Rs.10,000/- each towards compensation for the delay occurred and towards costs.

15)     In the result all the seven complaints are allowed and we direct as follows:

          In view of the decision of the Hon’ble High Court of Kerala in WPC No.28548/2009 (K) dated 15.09.2015 and in view of the Government Notification GSR No.431 dated 15.06.2007 recasting para 12 of EPS 1995,   

1. We direct the opposite party to allow the weightage of two years to the pensionable service to all complainants as per paragraph 12 (4) a & b and para 10 (2) of the Employees’ Pension Scheme 1995 (EPS 1995) and re-compute the monthly pension amount in the lines as discussed above, and pay the pension amount from the due date along with 8.5% interest p.a to each of the complainants till the date of realization.  The above order shall be complied with 30 days for the date of receipt of this order.

2. We also direct the opposite party to allow the minimum past service benefit of Rs.550/- to the complainant in C.C. No.74/2017 and Rs.800/- per month to the complainant in C.C. No.826/2015 and Rs.600/- in to other 5 complainants.  In this case C.C. No. 829/2015, 2 years of servicefall short of 58 years.  Therefore 6% alone can be deducted from the pension of Sri. Joy, the complainant in C.C. No. 829/2015 under paragraph 12 (4) of the EPS 1995 and re-compute the monthly pension amount granting the minimum past service benefit to the complainant in C.C.829/2015 with the accrued interest thereon from the respective date of commencement of pension @ the rate of 8.5% p.a. The above order shall be complied with 30 days from the date of receipt of a copy of this common order.

3)       We also direct the opposite party to pay Rs.10,000/- each to the complainants in these complaints towards compensation for the deficiency in service, delay and inconvenience caused to the complainants and Rs.10,000/- each, towards costs, failing which the above amount except costs shall carry 8.5 % interest from the 31^st day of receipt of this order.  

Pronounced in the open Forum on this the 23^rd day of June 2018.

Sd/-Beena Kumari V.K., Member

Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose, Member

                                                                             Forwarded by Order

                                                                             Senior Superintendent

APPENDIX

Complainants Exhibits

C.C.74/2017

Opposite party's Exhibits:         

        C.C.No.76/2017

Complainants Exhibits

Opposite party's Exhibits

C.C. No.77/2018

Opposite party's Exhibits

C.C. No.78/2018

Opposite party's Exhibits

C.C. No.826/2015

Opposite party's Exhibits

C.C. No.827/2015

Opposite party's Exhibits

C.C. No.829/2015

Opposite party's Exhibits

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