PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

By this order we propose to dispose of above-noted revision petitions involving common question of law and fact.

2.       Briefly stated, facts relevant for the disposal of the revision petitions are that the respondents in the respective revision petitions are retired employees of Bharat Earth Movers Ltd. (BEML). Respondents filed separate consumer complaints alleging that by virtue of their employment with BEML, Mysore the respondents were enrolled as members of Employees Provident Fund Scheme, 1952 formulated by the Central Government under Section 6 of the Employees Provident Fund (Miscellaneous Provisions) Act, 1952.

3.       In the year 1971 the Government of India formulated Employees’ Pension Scheme, 1971 under Section 6-A of the Employees Provident Fund (Miscellaneous Provisions) Act, 1952 (for short, ‘Act’) which came into force w.e.f. 1.3.1971. The respondents joined Employees Family Pension Scheme, 1971 and they contributed to the employees’ pension fund as contemplated under para-9 of the above scheme since 1987.

4.       The Government of India again formulated Employees’ Pension Scheme, 1995 on 16.11.1995 under Section 5-A of the above-said Act. This scheme was adopted by the respondents/complainants since the date of its inception. The contribution made by the respondents/complainants towards the earlier pension scheme was, thus, transferred to the Employees’ Pension Scheme, 1995 under para-3 (iv) of the said Scheme.

5.       It is the case of the respective complainants that they retired on superannuation on attaining the age of 58 years after completing more than 20 years of the eligible service as determined under Section 9 (b) of the Employees’ Pension Scheme, 1995. Therefore, in view of para 10 (2) of the Employees’ Pension Scheme, 1995 the respective respondents were entitled to added weightage of two years over and above the pensionable service rendered for computation of the pension. The petitioner, however, while computing and fixing the pension of the respective complainants did not give benefit of two years in terms of the Scheme of 1995. Claiming this to be deficiency in service, respective complaints were filed seeking direction to the opposite party to re-fix the pension of the complainants w.e.f. the date of their superannuation in accordance with para 12 (3) r/w para 10 (2) of the Employees’ Pension Scheme, 1995 and to pay the difference between the revised pension and the pension already paid with 18% interest p.a. for the belated payment. The complainants also prayed for compensation and cost of litigation.

6.       The petitioner/opposite party in the written statement took the plea that the pension of the respective complainants has been fixed strictly in accordance with para 12 (3) and sub-para (a) and (c) of Employees’ Pension Scheme, 1995 to the respective complainants as per Rules. The petitioner/opposite party denied that the above-noted respondents/complainants have rendered 20 years of pensionable service or that they are entitled to additional weightage of two years in their pensionable service for computing the pension payable.

7.       Learned District Forum on consideration of pleadings and the evidence, partly allowed the complaint preferred by the respective respondents and directed thus: -

“The complaints filed by the complainants are allowed in part and the opponent is directed to refix the pension of all the complainants as per para 12(4) R/w para 10(2) of the Employees’ Pension Scheme 1995 by adding additional weightage of two years and to pay the pension accordingly from the respective dates of their retirement and the difference amount due to the complainants shall be paid to them along with costs of Rs.1,000/- to each of the complainants within a period of two months from the date of receipt of copy of this order.

In case of failure to comply with the aforesaid orders within the stipulated period of two months, the opponent is liable to pay the interest at the rate of 12% p.a. on the difference amount payable to the complainants from the date of default till the date of compliance.

Keep the original order in complaint No.525/2012 and copies of the same in the other connected complaint Nos.526 to 554/2012.”

8.       Being aggrieved of the order of the District Forum the petitioner preferred an appeal and the State Commission vide the impugned order dismissed the appeal preferred by the petitioner. This has led to filing of the revision petition.

9.       Learned Shri Rajesh Manchanda, Advocate for the petitioner has taken us through the definition clause of Employees’ Pension Scheme, 1995 as also the other relevant provisions, namely, para-9, para-10 of the Scheme and submitted that the order of the State Commission is not sustainable for the reason that State Commission has proceeded on the presumption, as if, that the Employees’ Pension Scheme, 1995 is the extension of Employees’ Pension Scheme, 1971 without appreciating that 1971 Scheme was not a pension scheme but was a Family Pension Scheme. It is contended that the pensionable service as per para-10 of the Employees’ Pension Scheme, 1995 has to be determined with reference to the contributions received or receivable on behalf of the employees in the employees’ pension fund. The State Commission has failed to appreciate that the employees’ pension fund is creation of the Employees’ Pension Scheme, 1995. Therefore, the period of pensionable service commenced from 16^th November, 1995. Thus, none of the respondents at the time of their superannuation had completed 20 years of pensionable service. As such they were not entitled to added advantage of two years for the purpose of computing the pension.

10.     Learned counsel for the respondents on the contrary has argued in support of the impugned order. Learned counsel has further submitted that the issue raised by the petitioner is no more res integra because the controversy has been set at rest by the judgment of the Co-ordinate Bench of this Commission in a bunch of revision petitions including Revision Petition No.765/2013 Assistant Provident Fund Commissioner, Raichur vs. Vasant Madhav Kerur as also the judgment in another bunch of revision petitions including Revision Petition     No.2864/2014 Regional Provident Fund Commissioner, Bellary vs. Mohd. Khasim.

11.     Para-12 of the Employees’ Pension Scheme, 1995 provides for the formula for fixing the pension of retired member of the Employees’ Pension Scheme, 1995. Para-12 (iv) of the Scheme deals with the formula for fixing the pension of an existing member in respect of whom the date of commencement of pension is between 16^th November, 2000 and 16^th November, 2005. Admittedly, all the respondents/complainants were existing members as they were members of Employees’ Pension Scheme, 1971. Therefore, we do not find any fault with the part of the orders of the Foras below which directs the petitioner to fix the pension of all the complainants in terms of para-12 (iv) fo the Employees’ Pension Scheme, 1995.

12.     Thus, the only controversy which needs determination in this case is whether the petitioners are entitled to added advantage of two years over and above the pensionable service rendered by them for the purpose of computing the pension? In order to answer to this question it is to be seen whether or not the past service rendered by the complainants before coming into force of Employees’ Pension Scheme, 1995 can be termed as pensionable service?

13.     The term “pensionable service” has been defined in para2 (xv) as under: -

“pensionable service” means the service rendered by the member for which contributions have been [received or are receivable]”

14.     Part-3 of the Employees’ Pension Scheme, 1995 deals with the employees’ pension fund which reads as under: -

“(1) From and out of the contributions payable by the employer in each month under Section 6 of the Act or under the rules of the Provident Fund of the establishment which is exempted either under clauses (a) and (b) of sub-section (1) of Section 17 of the Act or whose employees are exempted under either paragraph 27 or paragraph 27-A of the Employees' Provident Fund Scheme, 1952, a part of contribution representing 8.33 per cent of the Employee's pay shall be remitted by the employer to the Employees' Pension fund within 15 days of the close of every month by a separate bank draft or cheque on account of the Employees' Pension Fund contribution in such manner as may be specified in this behalf by the Commissioner. The cost of the remittance, if any, shall be borne by the employer.

(2) The Central Government shall also contribute at the rate of 1.16 per cent of the pay of the members of the Employees' Pension Scheme and credit the contribution to the Employees' Pension Fund: Provided that where the pay of the member exceeds 1[rupees six thousand and five hundred] per month the contribution payable by the employer and the Central Government be limited to the amount payable on his pay of [rupees six thousand and five hundred] only.

(3) Each contribution payable under sub-paragraphs (1) and (2) shall be calculated to the nearest rupee, fifty paise or more to be counted as the next higher rupee and fraction of a rupee less than fifty paise to be ignored.

(4) The net assets of the Family Pension Scheme, 1971 shall vest in and stand transferred to the Employees' Pension Fund.”

15.     On reading of part-3 (iv) of 1995 Scheme it is evident that under the scheme the assets of Family Pension Scheme, 1971 stood vested and transferred to the Employees’ Pension Fund, 1995. Undisputedly, the complainants had contributed to the Employees’ Pension Fund created under 1971 Scheme. Since the aforesaid amount got transferred to the Employees’ Pension Fund created under 1995 Scheme, the contributions of the complainants/employees for the period prior to November, 1995 were obviously received in the Pension Fund 1995. Therefore, the period of service rendered by the respective complainants while they were members of the 1971 Scheme falls within the definition of “pensionable service” quoted above. If the aforesaid period is taken into account, the pensionable service rendered by the respective complainants is more than 20 years, as such they are entitled to added advantage of two years in terms of para-10 (2) of the Scheme. Thus, the impugned orders of the Foras below cannot be faulted. In our aforesaid view, we find support from the above referred judgments of Co-ordinate Benches relied upon by the respondents.

16.     In view of the discussion above, we do not find any jurisdictional error or illegality in the impugned orders which may call for interference in exercise of the revisional jurisdiction.

17.     The revision petitions are hereby dismissed.