Complaints filed on: 01-02-2019

                                                      Disposed on: 15-07-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

#201, 202, 1^st Floor, Indian Red Cross Building Complex,

Ashoka Road, Tumakuru-572 101. 

CC.No.14 to 17 / 2019

DATED THIS THE 15^th DAY OF July, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc (Agri). L.L.B, MBA, MEMBER

SMT.NIVEDITA RAVISH, B.A. L.L.B, LADY MEMBER

Complainants: -  CC 14/2019, 15/2019,  16/2019  &  CC 17/2019

M.N, Ramachandraiah,

S/o Late Nadukerappa,

Sri Lakshmi, 2^nd Cross,

3^rd Main, 3^rd Block,

Sri Guru Layout,Tumkur.

……C.C.No.14/2019

D.T. Chandrashekara,

S/o Late Thimegowda,Srinidhi,

KEB Layout, Near theatre Lakshmi,

Batawadi, Tumkur

……C.C.No.15/2019

Paramashivaiah,T.S.

Aged 58 years S/o Late Siddalingaiah,

Door No 474,llrd A Cross,

Sreekrishna Nagar, Baddihalli.

Kyathasandra post, Tumkur.

……C.C.No.16/2019

Lingaraju, T.V. S/o Venkateswara.

Aged about 55 Years,

Gokula Extension,

Lakshmivenkateswara  Nilaya, Tumkur.

……C.C.No.17/2019

(By Sri.T.R. Ramaiah, Advocate)

V/s

Sub – Regional Office, Peenya, Bangalore 560058.

HMT Watch factory lV, Tumkur.

O.P/s are same in all the cases.

(OP No.1 by T.K. Jayaram, Advocate,

OP No 2 Deleated)

:COMMON O R D E R:

BY SRI.KUMARA,N.  MEMBER

These complaints were filed by the complainants / Pensioners under Section 12 of the Consumer Protection Act, 1986 to direct the Opposite party (herein after called as OP1) to revise the monthly pension by extending minimum assured benefits in past and present services separately by giving weight age of two years from the date of retirement and to pay annual relief and arrears to the complainants with interest of 12 % from the date of retirement.

2.       In the above cases though the complainants / pensioners are different, but the Ops are same in all the four cases (hereinafter called as, OP -1 and OP -2) for brevity and convenience. The relief claimed by complainants / pensioners in all the cases against the OP -1 is similar as such to avoid repetition of facts and evidence this common order.

3. The complainants in all the cases worked in HMT watch Factory lV Tumkur and become the members of Family Pension scheme 1971, which was replaced by Employees pension scheme 1995, (w.e.f  16-11-1995)   and subscription amount was deducted from complainant’s salary monthly by the OP No 2 till the retirement and in turn transferred the same to the OP No 1 towards said pension scheme, accordingly before complainants retirements the required documents were send through OP No.2 to the OP No.1 to fix the retirement / pension amount of complainants and OP No 1 fixed pension amount and till today paying the same amount to the complainants and details as below.

4. Further complainants submitted that on May 2018, January and February 2019 Complainants in CC No 14/2019, 15 &16/2019 and 17/2019 respectively, came to know that OP No.1 fixed lesser pension without giving two years weightage and other benefits to the complainants according to the Employees pension scheme 1995 and complainants given representation to the OP No 1 to revise the pension and to give other benefits, but OP No 1 not responded, The act of OP No 1 leads to unfair trade practice and deficiency in service, hence these cases.

5.       The Complainants requested to consider the ratio of  Channakeshavulu case with reference to the para 12(4) of the Employees Pension Scheme 1995 and the judgment of Honorable High court Bangalore ILR 2004. Kar 2859 and Honorable State Consumer Disputes Readresal commission Bangalore decision in appeal No 415 – 419 / 2008 dated 14-07-2008 (Yamunappa Agssar & others V/S Assistant Provident Fund Commissioner) for the purpose of limitation.  

6.       After the complaints registered, Notice served to Ops, Sri MP Advocate filed power to OP No 1.

7.       On 08-02-2021 complainants counsel filed IA No 1 along with affidavit under order Vl rule 17 of CPC to change cause title of Assistant Provident fund commissioner Tumkur instead of Assistant Provident fund commissioner Peenya Bangalore, said IA allowed accordingly cause title changed by complainant counsel and deleted OP No 2 as Factory closed.

8. OP No 1 counsel filed IA No 2 along with affidavit to delete Assistant Provident fund commissioner Tumkur, and to impleed Assistant Provident fund commissioner Peenya, Bangalore as necessary party as peenya office having said records of complainants accordingly said IA allowed.

9.       On 28-10-2019, OP No 1 counsel filed IA along with affidavit, and version to take version on record, said IA allowed on cost of Rs 500=00 and version of OP No.1 taken on records. Later Sri T.K. Jaram filed vakalath for OP No 1 by taking NOC from Sri MP.

10.     OP No 1 in version contended that complainant’s pension and benefits were fixed after the superannuation / retirements as per the existing rules of Employees pension scheme 1995, which were prevailed at the time of retirement of complainants i.e. Para 12.3 and 12.7 of the Employees pension scheme 1995 and pension paying by the OP No 1 to the complainant’s bank account accordingly it’s not applicable to these complainants to consider Chennakeshavulu case which was with reference to the Para 12(4) of the Employees pension scheme 1995, and regarding annual relief which related to Government policy as such OP No 1 has no role, hence there was no deficiency on the part of OP No.1 and prayed to dismiss the complaints.

11. The complainant and OP No 1 counsels filed affidavit evidence along with Part 1 & 2 in CC No 15 to 17 / 2019 and Form No 4 in CC No 14/2019.

12.     Heard the arguments of the learned counsel for the complainant and OP No.1. On hearing the arguments of learned counsel for complainant, OP No 1 and perusal of the documents the points would arise for determination are as under;

1. Whether the complainant proves the deficiency of service on the part of OP No 1?

2. Is complainant entitled to the relief sought for?
13.      Our findings on aforesaid points are as under:

Point No.1: In the partly Affirmative  

Point No.2: In the partly Affirmative for the below           

:R E A S O N S:

14.     Point Nos.1 and 2: The learned counsel for the complainant argued that the OP No.1 paying lesser pension and failed to revise the pension and extend other benefits to the complainants as per Employees pension scheme 1995 and filed memo of calculation of complainants on past service, present service, and other benefits as per scheme.

15.     The OP No.1 counsel argued that complainants in their complains stated that they have given representation to OP No.1 to revise pension, which is false and none approached the OP No 1 and complainants not produced any evidence to prove the such representation given and there is no deficiency on the part of OP No 1 and pension and other benefits were fixed by OP No 1 as per the Employees pension scheme 1995, policy, rules prevailed at the time of complainants retirement / superannuation as such pension fixed and paying the same to the complainants and the OP No.1 in the affidavit evidence has reiterated the averments of Version / objection by submitting memo of calculation with supporting documents.

16.   The Provision of Law defines under the Employees Pension Scheme 1995 herein under:

Para 12 of the Employee’s Pension Scheme, 1995:

Para 2: Monthly Member's Pension-(i) a member shall be entitled to;

1. superannuation pension if he has rendered eligible service of 20 years or more and retires on attaining the age of 58 years;
2.  Retirement pension, if he has rendered eligible service of 20 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years.
3. Short service pension, if he has rendered eligible service of 10 years or more but less than 20 years.

Para 12 (2) is as under: In the case of a new entrant, the amount of monthly superannuation pension or early pension, as the case may be, shall be computed in accordance with the following factors, namely: -

Monthly member's pension = Pensionable salary X Pensionable service

                                                     70

Para 12 (3) (a) and (b) reads as under:  In the case of an employee [who was a member of the ceased family pension scheme, 1971] has who has not attained the age of 48 years on the 16^th November 1995: Superannuation/retirement/short service pension shall be equal to the aggregate of:- 

1. Pension as determined under sub-Paragraph(2) for the period of punishable service rendered from the 16^th November, 1995 or Rs.635/-per month whichever is more;

2. Past service pension benefit shall be as given below:-

The past service benefits payable on completion of 58 years of age on16.1195.

Subject to a minimum of Rs. 800/- per month provided the past service is 24 years. If the aggregate service of the member is less than 24 years, the pension and the benefits computed as above shall be reduced proportionally subject to a minimum of Rs.450/- per month.

(c) On completion of the age of 58 years after 16.11.1995 the benefit under column (2) or column (3) above, as the case may be, shall be multiplied by the factor given in Table ‘B’ - Corresponding to the period between 16.11.1995 and date of attainment of age 58 to arrive at past service pension payable.

Para 12(4) is as under:-

In the case of an employee [ who was a member of the ceased Family pension scheme, 1971] and has attained the age of 48 years but less than 53 years on the 16^th November, 1995, the superannuation/ retirement pension shall be equal to the aggregate of:-

Para 12 (4) (a) & (b) is as under:-

(a) Pension as determined under sub-paragraph (2) for the period of service rendered from 16^th November, 1995 or Rs.438/- per month whichever is more:

3. Past service benefit as provided in sub-paragraph (3) subject to a minimum of Rs.600/- per month provided the past service is 24 years. Provided further that if it is less than 24 years the pension payable and the past service benefits taken together shall be proportionately less subject to the minimum of Rs.325/- per month.

Para 12 (5) is as under:-

In the case of an employee [who was a member of the ceased Family Pension Scheme 1971 and who has attained the age of 53 years or more on the 16^th November 1995, the superannuation/retirement pension shall be equal to the aggregate of:

Para 12 (5) (a) (b) is as under:-

(a) Pension as determined under sub-paragraph (2) for the period of service rendered from the 16^th November, 1995 per month or Rs.335/- per month whichever is more.

(b) Past service benefits provided in sub-paragraph (3) subject to the minimum of Rs.500/- per month provided the past service is 24 years. Provided further that if it is less than 24 years the pension payable and the past service benefits shall be proportionately lesser but subject to the minimum of Rs.265/-per month.

17.     Section 12(3) to 12(5) of the Family Pension Scheme, 1995 made very clear that separate minimum assured pension for the past service and the present services considered separately and as per Sec.10 (2) the complainant is entitled two years of weight age periods who superannuates on attaining the age of 58 years and or/ who has rendered 20 years of pensionable service or more.

18.     Determination of Pensionable Service. - (1) The pensionable service of the member shall be determined with reference to the contributions received or are receivable on his behalf in the Employees' Pension Fund.

(2) In the case of the member who superannuates on attaining the age of 58 years, and who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years ( applicable to Employees who retired after 24-07-2009).

19.     Honorable Karnataka State Consumer Disputes Readresal Commission Bangalore in the order dated 21-02-2017 while disposing the appeal No 698 – 700 /2014 was taken note of plea of pensioners regarding grant of Annual relief held that, Thus by reading the said provisions it is seen that It is only Central Government which can grant such relief and not the OP, Hence same cannot be granted by OP.

20.     In the above discussions and by considering memo of calculations filed by the Complainants and the OP No 1, OP No 1 produced Part 1 and 2 of Complainants in CC 15 to 17 /2019 and Form No 4 of complainant in CC 14 / 2019, which were prepared by the OP No 1 as per the information’s furnished by the employers of the complainants, having the details of complainants Date of Birth, Date of Joining Service, Date of Exit, Wage at the time of retirement, and Non contributory period or absents. By using these details / data, the OP No 1, calculated the pension and other benefits fixed and given to the complainants. Its revels that OP No 1 calculated past service benefits by using Table B factor dated 9^th June 2008 which was correct, since complainants in CC No 16 to 17 / 2019 retired / superannuated on, 30-01-2016 ,30-01-2016 respectively, whereas in CC No 14 and 15 of 2019 complainants retired / superannuated on  31-03-2001 and 31-03-2003  respectively, and the OP 1 need to be calculated the past service benefits by using Table B factor dated 28^th Feb 1996 in both the cases, but  the OP No 1 in CC No 15/2019, calculated by using  Table B Factor dated 9^th June 2008, which is not acceptable.

 21.  (A), The Hon’ble State Consumer Commission, Bangalore while disposing Appeal No.1318-1322/2016 dated: 21.02.2017 in Para No.29 of order page No.14 held that:

In this regard it is the case of the complainant that the right which accrued earlier in their favour cannot be taken away or modified by way of amendment with retrospective effect and the same is not proper and they are governed by the provision as it stood as on the date of their retirement. 

 (B)  The Hon’ble Supreme court of India, New Delhi in the case of Maganbhai Bhariya V/S District Development Officer, on 25 -04-2022,  in Para 13 of page No 4, held  that,

           When Social security legislations are being interpreted, it always has to be interpreted liberally with a beneficial interpretation and has to be given the widest possible meaning which the language permits, known as beneficial interpretation. When statue is meant for the benefit of a particular class and if a word in the statue is capable of two meaning, i.e. one which would preserve the benefits and which would not, then the former to be adopted.

C)  The Hon’ble Supreme court of India, New Delhi in the case of Dr.G.Sadasivan Nair V/S Cochin University of Science and Technology, Rep by its Registrar and ors, on 01-12 -2021,  in Para 32 of held  that,

          The law as recognized by this court in Deoki Nandan Prasad and syed Yousuddin  Ahamad (Supra) unequivocally states that the pension payable to an employee shall be determined on the rules existing at the time of retirement.

22. In CC No 15 of 2019, the complainant opted the reduced pension and retired / superannuated on 31-03-2001 and the pension commencement date was .01-06-2010. The OP No.1 calculated the past service benefits by using the complainant pension commencement date i.e. .01-06-2010, by using table B Factor dated 9^th June 2008, as a result complainant suffered due to reduction in benefits. The complainant retired on 31-03-2001 and that time, table B factor dated 28^th Feb 1996 was in force to calculate past service benefits. In the above discussion, and by considering Para 21(A), (B) and (C) of the above, we are in the opinion of, since complainant retired on 31-03-2001 and rendered 22 years of service, hence it’s appropriate that OP No 1, to calculate past service benefits by using table B factor dated 28^th Feb 1996, by giving two years of weightage.

23. Two years of weightage along with arrears of Rs 19884=00 given to the Complainant in CC 14/2019,  w.e.f,  August 2017, since the complainant exit from the service on 31-03-2003 and rendered 20 years of service. In CC 16 to 17 / 2019 complainants retired after 24-07-2009, as per new amendment weightage of two years granted only if fulfill the both the conditions of (1) retired at the age of 58 years and (2)rendered 20 years of service, as complainants not fulfilled the said terms and conditions, hence OP No 1 not liable.

24.     The OP No 1 sanctioned pension under Para 1(3) and 12(7) of Employees pension scheme 1995, accordingly in CC No.14/2019, 16/2019  & 17 /2019 the complainants opted reduced pension at the age of 50,and, 55, 53 years, 3 %, (CC 14/2019) and 4 %  (CC 16 to 17) p.a was reduced for short of 58, Years (8 Years, 5 Years, and 5 years), and Rs 983.00, , Rs2225=00 and Rs 2024=00 respectively pension fixed by OP No.1 as per the policies and Rules of EPF 1995 prevailed at the time of Complainants retirements.

25.     Regarding annual relief as per the Para 19 of this order, the OP No.1 is not liable to pay at this time, as and when government sanctioned such reliefs should pass on to the complainants.

26.     For the forgoing reasons, the complaint in CC No 15/2019 deserves to be allowed with cost and Complaints in CC No 14/2019.16/2019 and 17/2019 are liable to be dismissed. In the result, we proceed to pass the following;

:O R D E R:

The complaint in CC No 15/2019 allowed with Cost of Rs.3000=00 and the OP No 1 is directed to revise the past and present service of the complainant by giving two years weightage under Para 12(3) and 12(7) of Employees pension scheme 1995 within 45 days from the date of this order, otherwise it carry interest @ 12% from the date of this order.

Complaints against OP No.2 are dismissed as not pressed.

Complaints Nos.14/2019, 16/2019 and 17/2019 are dismissed with no costs.

The original of this order shall be kept in Complaint No.14/2019 and a copy thereof shall be kept in other connected complaints.

Furnish the copy of order to the complainants and opposite parties at free of cost.