Karnataka

StateCommission

A/811/2018

The Asst. Provident Fund Commissioner - Complainant(s)

Versus

Smt.Nirmala - Opp.Party(s)

B.V.Vidyulatha

17 Apr 2023

ORDER

                                                                    Date of Filing :29.05.2018

Date of Disposal :17.04.2023

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

 

DATED:17.04.2023

 

PRESENT

 

HON’BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT

 

 

APPEAL Nos.804/2018 to 815/2018

 

The Asst. Provident Fund Commissioner (Pension),

Employees Provident Fund Organization,

Bhavishya Nidhi Bhavan,

New Block No.10,

Behind Income Tax office,

Navanagar, Hubli – 580025.
(By Mrs B V Vidyulatha, Advocate)                                      Appellant

(Appellant is same in all the Appeals)

 

                                  -Versus-

 

1. Appeal No.804/2018

    Mr.Suresh
    S/o Mr.Basavaraj,

    Aged about 65 years,

    R/at H.No.03,

    Cross No.1, Near NTTF,

    Ram Nagar, (Municipal Colony),

    Dharwad-580001
    (By Miss.G.Geeta Bai, Advocate)                               Respondent

 

2. Appeal No.805/2018

    Mr.Virupaxi .
    S/o Mr.Siddappa Chinnadakai,

    Aged about 67 years,

    R/o H.No.21, Ramakrishna Nagar,

    Gokul Road, Hubballi-580030

    (By Miss.G.Geeta Bai, Advocate)                                 Respondent   

                                                                            

3. Appeal No.806/2018

    Mr Parappa .
    S/o Mr Yallappa,

    Belageri Alias Belagavi,

    Aged 65 years,

    R/at Ranadamma Colony,

    B-4th Cross, Near Nekar Nagar,

    Hubli-580024                                                           Respondent

    (By Miss.G.Geeta Bai, Advocate)

 

4. Appeal No.807/2018

    Mr.Chandrakanth
    S/o Mr.Rajaram Bankapur,

    Aged 60 years,

    R/at H.No.51/A,

    Hariwan Building, Gandhinagar,

    Gokul Road, Hubballi-580030                                   Respondent 

    (By Miss.G.Geeta Bai, Advocate)

 

5. Appeal No.808/2018

    Mr.Prakash
    S/o Mr.Babu Rao Kulkarni,

    Aged 73 years,

    R/at ‘Sri Renuka Nivas’

    Plot No.05-Acres Shakti Colony,

    Vishweshwara Nagar,

    Hubballi-580032                                                        Respondent 

   (By Miss.G.Geeta Bai, Advocate)

 

6. Appeal No.809/2018

    Mr.Sudheendra
    S/o Mr.Madhava Rao Huigol,

    Aged 63 years,

    R/at Ramachandra Nivas,

    Vidyanagar, Hubballi-580021                                    Respondent 

    (By Miss.G.Geeta Bai, Advocate)

 

7. Appeal No.810/2018                                     

    Mr.Basavaraj
    S/o Mr.Ningappa Talikoti,

    Aged 72 years,

    R/at 2^nd Main Road,

    Pragati Colony, Vidyanagar,

    Hubblli-580031                                                         Respondent

    (By Miss.G.Geeta Bai, Advocate)

                                               

 8. Appeal No.811/2018

    Smt.Nirmala
    W/o Late Shivappa Halakatti,

    Aged 61 years,

    R/o Malapur Last Bus Stand,

    Yettinagudda Road,

    Sanapur 1^st Cross,

      Dharwad-580008                                                 Respondent 

      (By Miss.G.Geeta Bai, Advocate)

 

9. Appeal No.812/2018

    Mr.Laxamappa
    S/o Mr.Yallappa Bhusare,

    Aged 70 years,

    R/at Friends Circle Road,

    Ashwininagar, 2^nd Cross,

    Haveri-581110                                                            Respondent 

    (By Miss.G.Geeta Bai, Advocate)

 

10. Appeal No.813/2018

     Mr Narayana
     S/o Mr Murugappa Murkhandi,

     Aged about 72 years,

     R/o C/o S.M.Murkhandi,

     H.No.11, Vikas Nagar,

     Hosur, Hubli-580021                                                Respondent 

     (By Miss.G.Geeta Bai, Advocate)

 

11. Appeal No.814/2018

      Mr Panchaksharappa
      S/o Mr.Murugappa Murkhandi,

      Aged about 73 years,

      R/o C/o S.M.Murkhandi,

      H.No.11, Vikas Nagar,

      Hosur, Bubli-580021                                               Respondent 

      (By Miss.G.Geeta Bai, Advocate)

 

12. Appeal No.815/2018

      Mr Veerappa
      S/o Mr.Rudrappa Maleppanavar,

      Aged 68 years,

      R/o No.35, Manjunath Nagar,

      Gokul Road, Hubballi-580030                                 Respondent 

      (By Miss.G.Geeta Bai, Advocate)

 

:COMMON ORDER:

 

Mr JUSTICE HULUVADI G RAMESH : PRESIDENT

 

01.     These Appeals are filed under Section 15 of Consumer Protection Act 1986 by the OP, aggrieved by the Order dated 24.04.2018, 22.02.2018 and 24.04.2018 passed in Consumer Complaint Nos.203/2017 to 211/2017, 148/2017, 128/2017 and 218/2017 respectively on the file of District Consumer Disputes Redressal Forum, Dharwad (for short, the District Forum). Since the facts and law involved in all these cases are one and the same, they have been taken up together for consideration.

 

 

 

02.     Perused the Impugned Order, grounds of Appeal and heard the arguments of the Learned Counsel for the Respondent. Since none appeared on behalf of the Appellant, the arguments of Appellant is taken as heard.

03.     The District Forum after enquiring into the matter, deemed it fit to allow the Complaints in part and directed the OP to revise the Monthly Pension of all the Complainants taking into consideration the date of their retirement, as per  Para 12 (3) (a) & (b) and 12 4(a) and (b) R/W Para 10 (2) in all the cases, in which weightage of 2 years shall be given as per Para 10(2) of EPS 1995 and pay the arrears with interest at the rate of 10% p.a as and when the arrears has become due and payable at the revised rate, according to the rules as on the date of their retirement and to pay cost of Rs.2,000/- to the each of the Complainants etc.,                                                                                     

04.     Being aggrieved by this order, OP is in Appeal interalia contending amongst other that District Forum failed to appreciate that Appellant had fixed the pension as per Para 12 (4) of EPS 1995 which is correct and direction of the District Forum to re-fix the pension of the Respondents as per Para 12 (3) (a) and (b) R/w Para 10 (2) of EPS is erroneous. Further contended that District Forum erred in considering that the Complaints are filed within time, inspite of the plea raised by Appellant that the Complaints are filed in the year 2017, complaining about deficiency of service in respect of monthly pension fixed in the year 2003, which is more than 15 years old, from the date of Cause of Action is erroneous.  District Forum has not considered the fact that Appellant has to pay out of the public funds and hence, great care and caution is to be adopted in deciding that certain arrears along with 10% interest per annum has to be paid by the Organisation that too from 09.07.2022, which would cause great loss to the public exchequer.  Hence, seeks to set aside the Impugned Order by allowing the Appeals.

05.     The observation of the District Forum in Para 13 of its Orders, it is stated that the for lodging of the Complaint, the limitation starts from the date on which the complainants came to know about the erroneous calculation and the complainants in these cases came to know of the wrong calculation of the pension during 2017 and hence, complaints are filed in time. Thus, this Commission is of the considered opinion that the Complaints filed before the District forum well within the period of Limitation.

06.     The main grievance of the Complainants is that OP has wrongly calculated the assured benefit, on knowing the same, they gave representations to OP to rectify the mistake, but OP has not complied with the request. Per contra, OP pleaded that the Complainants have not completed the required period of service and as such there is no question of revision of the Pension.   Further OP denied the error in fixation and payment of the pension.

07.     The learned counsel for the Respondents/Complainants in all these cases submitted that all the Respondents are eligible for weightage of two years, though they opted for Reduced Pension, as there is a provision under Para 12 (7) to reduce a pension @ 3% for every year of shortfall to the extent of the age that falls short of 58 years.  Further, she submitted that the Complainants in each of the cases are eligible for past service benefit, as per the un-amended Para 12(3), 12(4) and 12(5) (a & b) of EPS 95 and while calculating the age, Appellant has to round off the years of service to next higher year,  if it is more than 6 months. 

The learned counsel for Respondent, in support of her submission, referred the decision of Hon’ble Supreme Court of India decided on 28.09.1984 in the case of Salabuddin Mohamed Yunus Vs State of Andhra Pradesh, reported in 1984 Law Suit (SC) 270 and submitted that in the said decision, it was clearly stated that, as on the date of retirement of the pensioner, the prevailing pension rules will be applicable and that may be taken into consideration in all these cases.

08.     On perusal of the Impugned Order, it reveals that the Complainants have joined the Employee Provident Fund Scheme, they contributed to the Employees Family Pension Scheme of 1971 and subsequently, they continued to contribute to the Employees Pension Scheme of 1995. After they retired from their services, they came to know that there are errors in calculation of their entitled pension and gave representations to the OP to rectify the same, but, OP did not rectify the mistakes committed in sanction of pension and hence, they filed their respective complaints before the District Forum, alleging deficiency in service on the part of OP.   On the contrary, OP denied error in fixation and payment of pension to the respective Complainants.

09.     Let us examine the details of service particulars of each of the Complainant, from the documents as per Memo filed by the Learned Counsel for Respondents in all these cases which is as under:

Appeal No.	Complaint No.	Date of Birth	Date of entry into service	Date of retirement	Past service	Actual service	Age as on retirement
804/ 2018	203/ 2017	01.10.1953	1974	09.07.2002 and opted for pension from 01.10.2003	21	07	50
805/ 2018	204/ 2017	23.10.1951	1971	20.12.1999 and opted for pension from 23.10.2001	24	04	50
806/ 2018	205/ 2017	01.04.1953	1977	28.11.1998 and opted for pension from  01.04.2003	18	03	51
807/ 2018	206/ 2017	14.05.1958	1980	01.04.2004 and opted for pension from 15.05.2008	15	09	50
808/ 2018	207/ 2017	05.10.1945	1974	18.01.2002 and opted for pension from 06.10.2002	21	06	57
809/ 2018	208/2017	14.02.1954	1977	27.12.1999 and opted for pension from 14.02.2004	18	04	50
810/ 2018	209/ 2017	01.03.1945	1971	20.12.1999 and opted for pension from 11.04.2000	24	04	55
811/ 2018	210/ 2017	14.02.1947	1982	13.02.2005	13	09	58
812/ 2018	211/ 2017	04.05.1948	1977	03.05.2006	18	10	58
813/ 2018	148/ 2017	05.06.1947	1972	10.11.2002 and opted for pension from 05.09.2003	23	07	56
814/ 2018	128/ 2017	03.01.1945	1971	15.04.2002	24	06	57
815/ 2018	218/ 2017	01.05.1950	1971	20.12.1999 And opted for pension from 02.05.2000	24	04	50

 

Thus, it is observed from the contents of the above table, the complainants in Appeal Nos.811/2018 and 812/2018 retired on attaining the age of 58 years by rendering pensionable service of more than 20 years and they have complied with the condition as per Para 10(2) of EPS 1995, hence, they are eligible for weightage of two years.

The Complainants in Appeal Nos.804 to 810/2018, 813/2018 to 815/2018 have retired before superannuation by rendering pensionable service of more than 20 years and complied with the condition as per Para 10(2) of EPS 1995 as it stood before 24.07.2009and hence, they are also eligible for weightage of two years.

10.     With regard to the eligibility of Monthly Pension for all these Complainants, it is seen that all the Complainants have retired earlier to 15.06.2007 and hence, their Monthly Pension will have to be re-calculated as per Para 12 of EPS 1995, as it stood before 15.06.2007. 

11.     Thus taking into consideration of the fact that in view of decision of the Hon’ble Supreme Court of India decided on 28.09.1984 in the case of Salabuddin Mohamed Yunus Vs State of Andhra Pradesh reported in 1984 Law Suit (SC) 270, wherein, it was held that “Retrospective amendment of the Rule curtailing amount of pension so payable : Pension: Hyderabad General Clauses Act 1308 F Section 2(22) : States Reorganisation Act, 1956 (37 of 1945) Section 115 (7) proviso: Labour and services: Constitution of India Articles 19(1) (f) and 31(1) (as stood prior to their omission on June 20, 1979) should be payable under the Rules as in force at the time of retirement: Although, previous sanction of Central Government under Section 115 of States Reorganisation Act for retrospective amendment of Rule 299(1) (b) of Hyderabad Civil  Service Rules not required where the person affected retiring prior to the appointed day stipulated under the Act”. 

And also the decision of Hon’ble National Commission in the case of Asst. Provident Fund Commissioner, Raichur Vs Vasanth Madhav Kerur and others in Revision Petition No.765/2013 wherein, it was held that “the aggregated past service and actual service (period of service form 16.11.1995 onwards) has to be considered for the purpose of calculation of weightage of two years”.

 

12.     Thus, with the above observations, this Commission is of the considered view that all the above Complainants are entitled for their revised monthly pension after applying 2 years weightage. Further, the facts remain that the Complainants in Appeal Nos.804 to 810/2018, 813/2018 to 815/2018 have not been superannuated, the Appellant is honour bound to follow his own Rules & Regulations and should have subjected these Members to their entitlement for Reduced monthly Pension at reduction rate of 3% or 4% for every year of short fall in their service, as the age of the Members qualifying for benefits under the PF scheme, falls short of 58 years, as per Para 12.7 of EPS 1995.  In such view of the matter, the act of OP in not revising the Pension of the Complainants/Pensioners amounts to deficiency in service. It is relevant to make mention of a fact that one of the ground taken by the Appellant in the Memorandum of Appeal is that the amounts being disputed are of ex-chequers and Public Funds, when, it is an universally known fact that the Provident Fund is Employees/ Members contributions, which EPFO only manages. Further, when EPFO is ready & willing to deposit considerable amounts regularly as statutory deposit for contesting even meagre amounts, besides, filing hundreds of Appeals, in the circumstances, the ground taken by the Appellant cannot be accepted.        

13.     Under the above circumstances, this Commission is of the considered opinion that the impugned order passed by the District Forum is just and proper.  However, we are of the considered opinion that awarding of interest @ 10% p.a is slightly on the higher side and reducing the same to 8.25% p.a would meet the ends of justice. Accordingly, Appeals are allowed in part and consequently, the Impugned Order dated 24.04.2018, 22.02.2018 and 24.04.2018 passed in Complaint Nos.203/2017 to 211/2017, 148/2017, 128/2017 and 218/2017 respectively on the file of District Consumer Disputes Redressal Forum, Dharwad is hereby modified only to the extent of interest awarded by the District Forum is concerned.  The cost and compensation of Rs.2,000/- awarded to each of the complainant awarded by the District Forum shall also remains un-disturbed and the Appellant is directed to comply with this Order within 60 days from the date of this Order.

14. The statutory deposit in all these Appeals is directed to be transferred to the District Commission for further needful.

15.     Keep the Original of this Order in Appeal No.804/2015 and copy thereof, in rest of the Appeals.

 

 

16.     Send a copy of this Order to the District Commission as well as to the parties concerned, immediately.

 

 

 

 

                                                         

                                                                          President

*s