BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NOS.441 to 455-2015

DATED ON THIS THE 4^th March 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT  

    2) Smt. M.V.Bharathi                   

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

COMMON ORDER IN CC Nos. 441 to 455/2015

1. These are the complaints filed by the members of Employees Pension Scheme of 1995, with a request to direct the opposite party to refix the pension and to pay the arrears from the date of retirement till the same is refixed with interest and also to pay the refixed rate of pension in future, for damages and costs of the proceedings.
2. The opposite party appeared and filed the detailed objections though admitted that the complainants in different complaint numbers are the members of their organization, there is no deficiency of service.  Thereby sought for dismissal of all the complaint.
3. Since, the reliefs sought for by all the complainants in these complaints are similar and the opposite party is one establishment, thereby all these matters are clubbed together for disposal.
4. In all the cases, the complainants filed their respective affidavit evidence, likewise the opposite party also filed its affidavit.  After hearing both sides, these matters are set down for orders.
5. The points that arise for consideration of this Forum are as follows:-

1. Whether the complainants establishes that the opposite party failed to fix the pension properly in accordance with para 12(3), 12(4) and 12(5)(a)&(b) R/w para 10(2) of Employees Pension Scheme of 1995, thereby there is deficiency of service on the part of the opposite party and as such the complainants are entitled for the reliefs?
2. What order?

6. Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7. Point No.1:- It is the case of the complainants in general that they are the members of Employees Family Pension Scheme 1971 and contributed to the said fund as per section 6 A of the said scheme.  Subsequently, the Government has formulated Employees Pension Scheme 1995 w.e.f. 01.04.1993.  The said scheme has been opted by the complainants from the inception.  The contribution made towards Employees Family Pension Scheme 1971, has been transferred to Employees Pension Fund under the New Scheme.  All the complainants have contributed to the Employees Fund from 1971 till the date of their respective retirement.  The opposite party is the officer appointed under the scheme becomes the service provider to the complainants and the complainants become Consumers as per section 2(d) of C.P.Act.  As per the new scheme, those who have completed more than 20 years of service and retired on attaining age of superannuation at the age of 58 years are eligible for additional weightage of 2 years service.  Thereby the opposite party while fixing the pension ought to have taken into consideration, the two years weightage provided under the scheme. In some cases minimum pension not fixed as per para 12(3) and past service benefits in para 12(5)(a) and (b) of the scheme. The opposite party without looking into these aspects fixed the pension, thereby there is difference in the pension fixed to the present respective complainants.  Thereby, it is necessary to direct the opposite party to refix the pension as per paras 12(3), 12(4) and past service benefits as per para 12(5)(a) and (b) R/w 10(2) and to pay arrears from the respective date of retirement and also to add the difference to the future pension with interest and also for payment of damages and costs of these complaints.
8. With this pleadings of complainant what exactly the pleadings of opposite party is to be taken into consideration and apart from denial of the liability, the opposite party intends to interpret the scheme in the different manner and sought for dismissal of all the complaints.      
9. The Forum has to see the past service and the actual service of each complainant.  The table shown below reveals the said fact:-

• Y – Years, M – Months, D – Days

10. The above table discloses the past service as well as actual service rendered by each complainants who served for more than 20 years and retired on attaining the age of superannuation at 58 years.  Thereby there is no short fall of past service or actual service, as such the authorities that is opposite party ought to have fixed the pension by giving 2 years weightage to each complainant as per the provisions of para 12 (3) and (4) R/w section para 10(2) of Employees Pension Scheme of 1995, and not fixed the minimum pension in some cases as per para 12(3) and past service benefits in para 12(5)(a) and (b) of the scheme, that is absent while fixing the pension of each complainant in these cases and there is deficiency in service on the part of the opposite party.  Further, the counsel representing the complainants relied on several judgements of the Hon’ble National Commission as well as by the Hon’ble Supreme Court of India.

1. The Revision Petition No.2238/2014 – Regional Provident Fund Commissioner – Vs – H.G.Vijaykumar and another.
2. The Revision Petition No.3970/2009 – Regional Provident Fund Commissioner – Vs – Sri Mallikarjun Devendrappa Verapur.  The said judgement of National Commission has been challenged by the Provident Fund Authorities in Special Leave Petition to Appeal No.30844/2010 which was dismissed by the Supreme Court at the admission stage itself.
3. ILR 2004 KAR 2859 – K.Chennakesavalu –Vs- Employees Provident Fund Organisation by its Commissioner.
4. Revision Petition No.1328/2013 – National Commission – Asst. Provident Fund Commissioner – Vs – Rangarao.

11. Based on these judgements, the counsel representing the complainants submits that the calculation of the pension by the opposite party is not correct and while calculating the pension under the Employees Pension Scheme of 1995, the weightage of 2 years ought to have been given to each complainant while fixing the pension on retirement, that has not been done in these cases.  Thereby there is deficiency of service.  The said arguments of complainants’ side is supported by the latest judgement of the Hon’ble National Commission reported in III (2015) CPJ 3 (NC) (RPF, Commissioner –vs- C.Raghavendrachar and others).
12. In view of the discussions made above and in view of several judgements referred by the complainant’s advocate, this Forum finds that the opposite party has not properly calculated the pension with reference to para 12(4) R/w para 10(2) of Employees Pension Scheme of 1995 and in some cases minimum pension not fixed as per para 12(3) and past service benefits in para 12(5)(a) and (b) of the scheme. Thereby, now the opposite party is to be directed to correct the mistake committed while fixing the pension of each complainant.  Hence, the point No.1 is answered partly in affirmative.
13. Point No.2:- In view of the above findings recorded on Point No.1, all the complainants are entitled to succeed in these complaints. Hence, we pass the following

:: COMMON ORDER IN CC 441 to 455/2015 ::

1. The complaints filed by the complainants under section 12 of the C.P.Act are allowed in part.
2. The opposite party is directed to refix the pension as per para 12(4) R/w para 10(2) of Employees Pension Scheme of 1995 by adding 2 years weightage to the service of each complainant from the date of respective retirement within 2 months from the date of this order.
3. The opposite party is directed to fix minimum pension as per para 12(3) and past service benefits as per para 12(5)(a) and (b) of the scheme wherever required.
4. Further, the opposite party is directed to pay the arrears with interest at 9% p.a. from the date of these complaints till payment is made.
5. Further, the opposite party is directed to pay Rs.2,000/- to each complainant towards the litigation expenses.
6. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
7. Keep original order in C.C.441/2015 and Xerox copies of the order in C.C.442 to 455/2015.
8. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 4^th March 2015)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                    (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER