BEFORE THE IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

PRESENT:

SRI. VASANTHKUMAR.H.Y.                                         PRESIDENT

SRI. SURESH.D.                                                           MEMBER

SMT. ROOPA.N.R.                                                         MEMBER

CC.No.2479/13, 2480/13, 2481/13, 2484/13, 2485/13, 2486/13, 2488/13, 2490/13, 2491/13, 2492/13, 2493/13, 2494/13, 2497/13, 2498/13, 2501/13, 2503/13, 2504/13, 2505/13, 2506/13, 2507/13 ,2508/13, 2509/13, 2510/13, 2511/13,2513/13, 2515/13, 2517/13, 2518/13, 2519/13

SRI. VASANTH KUMAR.H.Y,  PRESIDENT,

: COMMON ORDER :

(Under Section-14 of Consumer Protection Act-1986)

The deficiency in service, in not considering the two years of weightage period, even after completion of more than 20 years of their pensionable service, while re-fixing their pension, has been alleged by the Complainants of all these cases, seeking the direction against the opposite party to do so by re-fixing the pension, and also

b) for the direction to revise the monthly pension with minimum assured benefits from the date of their retirement

c) along with annual relief till this day with the litigation charges and compensation.

2. The limitation applications Under Section 24(A) of C.P.Act, in all the cases were also filed and they were resisted by the opposite party.

3. The allegations made in all the complaints and the defence taken by the contesting opposite party are common in nature.  Similar/common evidence were adduced by the both the parties.  Common arguments were also addressed. Hence, for the sake of convenience this common order is being passed.

4. The case of the complainants/ former employees, in common is that while re-fixing their pension under para 12(3) or 12(4) r/w para 10(2) of the Employees Pension scheme 1995, the opposite party officials committed deficiency in service in not considering their pensionable service of more than 20 years and refused to give the weightage period of 2 years in response to their requests also and hence being aggrieved they were constrained to file these complaints. They also prayed for the direction to revise the monthly pension with minimum assured benefits from the date of their retirement along with annual relief till this day with the litigation charges and compensation. Their respective pensionable services and the service considered by the opposite party are as shown in column No. 2 to 9/table shown below.

5. The opposite party officials have admitted the averments of the complainants as mentioned in column No. 2 to 4 and 7 to 9 of the table, earlier without admitting their alleged actual service claimed by them in column No.6.  The opposite party officials have taken the common contentions after filing the case that on re-examination of instant cases they noticed that the pension payment was made to the Complainants earlier to 24.07.2009 and hence 2 years of weightage was given re-considering their service. The enhanced pension along with arrears of pension has been sent to the banker with instruction for the credit of their respective bank accounts. The change in fixation of pension was owing to ambiguity in the interpretation of para No.10(2) of Employees pension scheme 1995 and it was not deliberate on their part. There is no separate minimum pension scheme applicable as alleged by them and hence, they are not entitled for re-fixation or revision of pension already fixed under Para-2(XV) of EPS-1995 scheme. Their respective pensions fixed are valid and in order. All the complaints are barred by limitation and become liable to be dismissed.

6. In all the cases the complainants filed their affidavit evidence, relying on their respective pension order and the notice served on the opposite party.  The officer of the opposite party commonly has been examined as DW-1 in all cases and he has relied on/produced copies of documents namely Revised pension payment order. Written arguments were filed by both the parties.  Arguments were heard.

7. The common consumer disputes that arise for consideration are as follows;

1. Whether the complaint is barred by law of limitation?
2. Whether there is deficiency in not considering the past service of 1971 scheme to the pensionable service of 1995 scheme to consider 2 years weightage period?
3. Whether there is deficiency in service with opposite party in not considering the alleged minimum assured benefit/pension of pensionable service to the complainants?
4. Whether there is deficiency in service with opposite party in not considering the annual relief to the Complainants ?
5. To what order or the parties are entitled?

    8. Answers to the above consumer disputes are as under:

1. Negative.
2. Do not survive for consideration - Negative
3. Negative.
4. Negative.
5. As per final order for the following

: R E A S O N S :

      9. Common Consumer Dispute No.1:  U/s 24(A) C.P.Act, this Forum has got right to condone the delay in filing the complaints, if sufficient cause is made out. Being satisfied with the causes shown by the complainants, all these complaints were admitted.  In their limitation applications, the complainants contended that they came to know about the alleged error committed by the opposite party, at the end of 2013, though they were receiving the pension from the date of retirement itself, without knowing the effect of amendment to the concerned Act in 2009 and later preferred all these complaints after issuing the legal notices.  Their evidence is supported by their respective legal notices sent in about February-2014 and also by the copies of the circulars of Central Govt. dtd:26-11-2013, 21-4-2014 about the implementation of para-10(2) of EPS 1995, addressed to all the zonal/all R.P.F.C.S.

          10. As observed in the decision of Hon’ble Karnataka State Commission in Appeal No.415-419/2008, the payment of pension continued is to be treated as recurrence cause of action and knowledge of the deficiency in service acquired by the complainants also to be considered to count the limitation.  It is observed in Civil Appeal No.5151-5152 of 2008 dtd:13-8-2008 that in so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply.  It is observed in (2015) SCCR 836, that Ordinary standards applicable to a litigant pursuing his own case, do not apply strict sense to action or inaction of State and thereby liberally has to be construed for the welfare of the public.

11. The above referred decisions are very much applicable to these cases. Thereby all these complaints have to be treated as filed within period of limitation.  Accordingly, the limitation applications filed by the complainants are allowed and the Consumer Dispute No.1 is answered in the Negative in favour of the complainants.

12. Common Consumer Disputes No.2:After the filing all these complaints, the Opposite party considered and re-fixed the pension in the light of the instruction of central office of EPFO wide letter dated 26.11.2013 and gave the 2 years weightage period under para No.10(2) of EPS 1995. It is also contended by the Opposite party that in view of the thrust upon them and keeping the view of the legal issues, the head office at New Delhi re-examined the issue raised by the number of employees including Complainants and thereafter issued the directions with guidelines on 26.11.2013 and thereby their act of re-fixation has to be viewed as their prompt efforts.

13. The Complainants in all these cases, though filed the affidavit evidence reiterating the averments made in their complaint did not produce any rebuttal evidence about the defence taken in the version and affidavit evidence of the Opposite party about the weightage period given to them. Later on 23.11.2016 all Complainants except Swamy & Suresh Babu filed the memo admitting that the Opposite party extended the benefit of the weightage period to them. Thereby the relief regarding the weightage period which was fulfilled as per the notification of November 2013 has to be treated as complied by the Opposite party in February 2014 itself.

14. The counsel for the Opposite Party filed the extract of the statements relating to the complainants S.N.Swami (CC.No.2484/13) and M.Suresh Babu (CC.No.2508/13) signed by Asst. Provident Fund Commissioner, Regional Office, Bengaluru to show that in February 2014 the calculation regarding the benefit of 2 years weightage along with the arrears of amounts under the said head were calculated and there after periodically the revised pension amount is being paid till now.  Both the account extracts show that 2 years weightage was given to S.N.Swami from 22.09.1998 and given to M.Suresh Babu from 28.08.1999. The said dates of 2 years weightage period starts from their respective retirement period.  S.N.Swami was retired on 30.09.1998 and M.Suresh babu was retired on 27.08.1999. The pension of S.N.Swami was enhanced from Rs.570/- to Rs.1000/-. The pension of M.Suresh Babu was enhanced from Rs.618/- to Rs.1000/-. Both the applicants are being paid through their accounts no.2512101001801 and 30169200095 respectively. The said statements are maintained by office of the Central Government signed by Asst. Provident Fund Commissioner starting from February 2014 and hence cannot be disbelieved. Hence, mere oral evidence of the said complainants that they are not provided with 2 years weightage benefit cannot be accepted in the absence of rebuttal evidence from their side. Thereby the relief regarding the main prayer does not survive for consideration.

15. The Opposite party further contended that owing to ambiguity in the interpretation of para 10(2) of EPS 1995, they became incapable to re-fix the pension and their act of re-fixation after the filing of these complaints were not deliberate on their part. All these complaints were filed on 13.11.2013 and the guidelines were issued by the head office at New Delhi subsequently on 26.11.2013. The receipt of the said order to subordinate officers were reached and thereafter they calculated the pension order afresh. Such new Pension payment order was prepared in all these cases on 12.02.2014 and thereafter they filed the version reporting the benefit given about of weightage period relief.

16. The Opposite party in these cases is Bengaluru office. It has no right to act independently against the statutory provisions and it has acted in accordance with the directions of higher authorities and thereby their compliance regarding the 2 years weightage period cannot be treated as deficiency in their service. Accordingly, common Consumer Dispute No.2 is answered in the Negative.

17. Common Consumer Disputes No.3:The difference amount shown in column No.4 and 5 of the above table are relating to old and new pension fixed by the Opposite party. The particulars of old pension in column No.4 were based on the availability of the same in the versions of the respective cases. The column No.4 shows the less amount and column No.5 shows higher amount. The difference amount clearly shows that it is by virtue of benefit of giving of 2 years weightage period and hence no materials were placed by the Complainants to show how the said calculation are incorrect. The Opposite party contends that there is no separate minimum pension for past and present service and the minimum pension is for aggregate of past and pensionable service and hence the aggregate of both the past and pensionable services are more than the minimum provided to the Complainants and hence there is no question to re-fixing of pension as claimed in the complaints.

18. The benefit of minimum assured pension cannot be given to the Complainants as contended by them, relying on their calculation the aggregate amount given by the Opposite party appears to be more than the minimum pension as per para 12(4) of the scheme 1995. The Complainants have taken the benefit of 2 years weightage period along with the arrears of amount as established in the account extract filed in two cases of S.N.Swami and M.Sureshbabu.

19. The counsel for the Complainants has relied on para number 12 of Employees Pension Scheme of 1995, especially relying the insertion of explanation in the 2007. Para number 4(b) came in to effect from the year 2007. Counsel for the Opposite party argued that whenever the amendment is carried out, its effect cannot be made applicable from retrospective effect. The Complainants have prayed for minimum assured pension benefits from the date of their retirement with 12% interest.  The retirement of Complainants in most of the cases are earlier to 2007 and hence the said benefits cannot be made applicable to the retirement period previous to 2007. The said benefits have been given subsequent to 2007. It is not the case that even after 2007 such benefits are not given to them. Hence the contention of the Complainants that the minimum assured pension has to be made applicable to their retirement period which comes earlier to 2007 cannot be accepted. In the result no deficiency can be attributed against the Opposite party. Accordingly, common consumer dispute number 3 is answered in the negative.

20. Common Consumer Disputes No.4: The Complainants have prayed for annual relief in their pension amount. The annual relief has to be provided by the employers and not by the others including Consumer Forum. Hence this forum has no right to interfere in to the said relief. Accordingly, common consumer dispute number 4 is answered in the negative.

                 21. Common Consumer Dispute No.5: In view of the findings of the consumer disputes No.1 & 4 all the Complainants are not entitled for the reliefs sought in their complaints and they deserve to get the following:

:: O R D E R ::

                 The Complaints No.CC.No.2479/13, 2480/13, 2481/13, 2484/13, 2485/13, 2486/13, 2488/13, 2490/13, 2491/13, 2492/13, 2493/13, 2494/13, 2497/13, 2498/13, 2501/13, 2503/13, 2504/13, 2505/13, 2506/13, 2507/13 ,2508/13, 2509/13, 2510/13, 2511/13, 2513/13, 2515/13, 2517/13, 2518/13, 2519/13 are hereby dismissed. No order as to costs.d. No or 

                     Supply free copy of this order to both the parties. 

This order shall form part of record in CC.No.2479/2013 and the copies of the same shall be kept in the remaining complaint records.

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 30th day of November 2016).

Documents produced on behalf of the Complainants

Documents produced on behalf of Opposite party