Consumer Protection Council, Rourkela
Employees are entitled to benefit of two years weightage under the Employees Pension Scheme (EPS), if they had contributed for a total of 20 years under the 1971 as well as 1995 Schemes
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
REVISION PETITION NO. 4221 OF 2014(Against the Order dated 28/02/2014 in Appeal No. 51/2014 of the State Commission Karnataka)
1. REGIONAL PROVEDENT FUND COMMISSIONER
SUB REGIONAL OFFICE, 3RD FLOOR, SLV TOWERS,
PARVATHI NAGAR, ,
THROUGH SH.RAJU, APFC(LEGAL),
DELHI (NORTH) ...........Petitioner(s)
1. C. RAGHAVENDRACHAR
S/O VENKAIAH, R/O H.NO.328, MADHAV NILAYA, II CROSS TEACHERS COLONY, M.P PRAKASH NAGAR,
& Other similar cases
HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
HON'BLE MR. DR. B.C. GUPTA, MEMBER
Dated : 16 Feb 2015
ORDERJUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The respondents/complainants were the employees of Tungabhadra Steel Products Ltd. As employees of the said Company, they were enrolled as members of the Employees Family Pension Scheme, 1971 and they started making contributions to the said scheme. On coming into force of the Employees Pension Scheme, 1995, they opted for the said scheme. The contributions which they had made towards the 1971 scheme was transferred to the 1995 scheme. Thereafter, the complainant continued to make contributions to the Employees Provident Fund till they superannuated. The total eligible service rendered by them, according to the complainants was more than 20 years at the time they retired. They claimed that in terms of para 9 (b) of the 1995 Scheme, they were entitled to pension calculated in para 12 (3)(4) of 1995 Scheme. As per the aforesaid provision, an employee superannuating on attaining the age of 58 years and/or rendering pensionable service of 20 years or more was entitled to the benefit of weightage of two years, while calculating the pension. However, the aforesaid weightage was not given to the complainants.
2. Being aggrieved, they approached the concerned District Forum for grant of pension calculating in the aforesaid manner. The complaint was resisted by the petitioner primarily on the ground that in the 1971 Scheme, there was no provision for payment of pension to the employees and only in the event of his death, his family members were entitled to pension. It was further stated in the reply filed by the petitioner that in terms of para 10 of 1995 Scheme, the pensionable service was restricted to the service rendered under the Pension Scheme of 1995. In other words, the case of the petitioner was that the service rendered at the time the complainants were contributing to 1971 Scheme was not applicable to the present case. Though, it is not denied that the 1995 Scheme provides for giving weightage of two years to the employees to put in pensionable service of 20 years, the case of the petitioner is that it is only the pensionable service rendered after opting for 1995 Scheme which is to be counted for the purpose of deciding whether a particular employee is entitled to the said weightage or not.
3. The District Forum vide its order dated 22.10.2013, directed the petitioner to re-fix the pension of all the complainants as per para 12(3)/12(4) R/w para 10(2) of the Employees Pension Scheme, 1995, by giving weightage of two years to each of the complainants and pay pension accordingly to them from the applicable date alongwith interest at the rate of 6% per annum. The petitioner was also directed to pay Rs. 1,000/- each as costs to the complainant.
4. Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. Vide impugned order dated 28.02.2014, the State Commission, relying upon the decision of this Commission dated 09.04.2013 in Revision Petition No. 784/2013, Assistant Provident Fund Commission, Raichur Vs. Vasant Madhav Kerur, dismissed the said appeals. Being aggrieved from the dismissal of its appeals, the petitioner is before us by way of these revision petitions.
5. This issue came up for consideration of this Bench in Revision Petition No. 2864/2014, Regional Provident Fund Commissioner vs. Shri Mohammad Khasim and connected matters. In this case also, the complainants were employees of Tungabhadara Steel Products Ltd. and were initially enrolled as members of 1971 Scheme. Coming into force of 1995 Scheme, they opted for the said Scheme. Contributions which they had made in 1971 Scheme were transferred to 1995 Scheme. On their retirement from services, weightage of two years in terms of Sub-Para (2) of para 10 of 1995 Scheme was not granted to them. Being aggrieved, they approached the concerned District Forum for the redressal of their grievance. The District Forum as well as the State Commission having ruled in their favour, the Regional Provident Fund Commissioner approached this Commission by way of several revision petitions. Rejecting the revision petition, this Commission, inter-alia, observed and held as under:-
“7. A bare perusal of the Sub Para (2) of Para 10 of the 1995 Scheme would show that it applies to every member who had rendered 20 years or more of pensionable service. Sub Para (1) of Para 10 leaves no doubt that the pensionable service is to be determined with reference to the contributions received or receivable on behalf of the concerned employee in the ‘Employees Pension Fund’. Therefore, the answer to the question as to whether the services rendered by the complainants, before they were enrolled as the members of the 1995 Scheme would be counted for the purpose of determining their pensionable service or not would depend upon whether they had made contributions to Employees Pension Fund, for 20 years or more, before their superannuation or not.
8. Admittedly, they had not made contribution under the 1995 Scheme for 20 years or more, by the time they superannuated. But, it is not in dispute that if the contributions which they had made under the 1971 Scheme are considered, they had made contributions for 20 years or more. Therefore, the real question which arises for our consideration is whether the contributions made by them under the 1971 Scheme can be said to be contributions received or receivable on their behalf in the Employees Pension Fund or not. Para 2 (xiv) of the 1995 Scheme defines ‘Pension Fund’ to mean to Employees’ Pension Fund set up under Sub Section (2) of Section 6(A) of the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952. The Scheme does not define the pension fund to mean a fund set up under the provisions of the 1995 Scheme. Therefore, the contributions made to every pension fund which had been set up under the provision of Sub-Section (2) of Section 6(A) of the Act, would qualify for the purpose of determining the pensionable service in terms of Sub Para (1) of Para 10. It can hardly be disputed and has not been disputed that the fund to which the complainants were contributing before they opted for the 1995 Scheme was also a fund set up under the provisions of Sub-Section (2) of Section 6(A) of the Act. It is also an admitted case of the parties that the contributions, which the complainants had made to the said fund under the 1971 Scheme were transferred to the fund which was set up under the 1995 Scheme. Therefore, considering the provisions of the scheme, it is evident that the contributions which the complainants had made under the 1971 Scheme will have to be taken into consideration for the purpose of determining their pensionable service in terms of Para 10 of the scheme. As a necessary corollary they would also be entitled to the weightage of two years, in terms of Sub Para (2) of Para 10, provided they had either put in 20 years of service or they had turned 58 years of age at the relevant time. Therefore, we cannot find any fault with the order of the District Forum which has been maintained by the State Commission, in directing the petitioner to give weightage of two years to the complainants, while determining their pensionable service in terms of the Para 10 of the 1995 Scheme.
9. The learned counsel for the petitioner has drawn our attention to the Para 12 (3) & (4) of the Scheme, which read as under:
“(3) In the case of an existing member in respect of whom the date of commencement of pension is after the 16th November, 2005,-
(i) superannuation or early pension shall be equal to the aggregate
a. pension as determined under sub-paragraph (2) for the period of pensionable service rendered from the 16th November, 1995 or Rs.635 per month whichever is more;
b. past service pension shall be as given below:
The past service pension payable on completion of 58 years of age on the 16th November, 1995.
S. No. Years of past service Salary upto Salary more
Rs.2,500/- than Rs.2,500/-
Per month per month
(1) (2) (3)
(i) Upto 11 years 80 85
(ii) More than 11 years but upto
15 years 95 105
(iii) More than 15 years but less
than 20 years 120 135
(iv) Beyond 20 years 150 170
The amount 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 the 16th November, 1995 and the date of exit to arrive at past service pension payable.
(ii) The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.800/- per month, provided the eligible service is 24 years.
Provided further, if it is less than 24 years, the pension as computed above shall be reduced proportionately subject to a minimum of Rs.450/- per month.
(4) In the case of an existing member and in respect of whom the date of commencement of pension is between the 16th November, 2000 and the 16th November, 2005, -
(i) superannuation or early pension shall be equal to the aggregate of –
(a) pension as determined under sub-paragraph (2) for the period of service rendered from the 16th November, 1995 or Rs.438 per month whichever is more;
(b) past service pension is provided in sub-paragraph (3).
(ii) The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.600 per month, provided the eligible service is 24 years:
Provided further, if it is less than 24 years the pension shall be proportionately less subject to the minimum of Rs.325 per month.”
10. The contention of the learned counsel is that since they are also required to give pension for the past service, it would amount to giving double benefit to the employees in case weightage of two years in computing the pensionable service is also given to them. We, however, find no merit in this contention. In terms of the Sub-Para (2) of Para 12, the pension is to be calculated by multiplying the pensionable salary with pensionable service and dividing it by 70. Since the pensionable service would be calculated in terms of Para 10, the weightage of two years would have to be given to the complainants for the purpose of calculating the pension in terms of Sub Para (2) of Para 12. The provisions of the Scheme being such, we are unable to take a contrary view of the matter. Even otherwise if two interpretations of the provisions of the Scheme are possible, we must necessarily lean in favour of the interpretation which is favourable to a pensioner, though, in the case before us we are quite clear that Para 10 of the Scheme is not capable of more than one interpretations.
11. Sub Para (3) of Para 12 which deals with the case of the employees who exit after 16-11-2005 provides for payment of superannuation or early pension which is to be calculated in terms of clause i (a) of the said Sub-Paragraph and past service pension which is to be calculated as per table given in the said Paragraph. The aforesaid table deals only with those cases where the past service pension is payable on completion of 50 years of age on 16-11-1995. None of the complainants before us had completed 50 years of age on 16-11-1995.
Sub Para (4) of Para 12 of the 1995 Scheme deals with the case of those employees in respect of whom the date of commencement of pension is between the 16-11-2000 and 16-11-2005. In their case also pension has to be determined in terms of Sub Para (2) of Para 12 and their past service pension has to be determined in terms of Sub-Paragraph (3). As noted earlier, the table given in Sub-Para (3) of Para 12 refers to those cases where past service pension became payable on completion of 50 years of age on 16-11-1995. Therefore, reliance upon the aforesaid Sub-Paragraphs is misplaced.”
6. In view of the aforesaid decision on the subject taking a view that in such cases, the employees are entitled to benefit of two years weightage, the revision petitions are liable to be dismissed. The said petitions are dismissed accordingly. No order as to costs.
DR. B.C. GUPTA