State Consumer Disputes Redressal Commission
Regional Provident Fund ... vs Bhimrao Shyamrao Kawate on 13 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/14/365 (Arisen out of Order Dated 21/08/2014 in Case No. CC/723/2011 of District Nagpur) 1. REGIONAL PROVIDENT FUND COMMISSIONER-2 UMRED ROAD,NEAR SHITLA MATA MANDIR CHOWK NAGPUR 2. REGIONAL PROVIDENT FUND COMMISSIONER-1 BHAVISHHYANIDHI BHAVAN,BANDRA MUMBAI 3. CHAIRMAN,CENTRAL BOARD OF TRUSTEES MAYUR BHAVAN NEW DELHI ...........Appellant(s) Versus 1. BHIMRAO SHYAMRAO KAWATE SANMARGA NAGAR,HUDKESHWAR ROAD NAGPUR 2. MAHAVITARAM PARARESHAN CO PVT LTD PRAKASHGAD,BANDRA MUMBAI 3. MAHAVITARAM PARARESHAN CO PVT LTD BANDRA MUMBAI 4. ACCOUNT OFFICER C.P.F.SECTION DHARVI ROAD,MAGUNGA MUMBAI ...........Respondent(s) First Appeal No. A/14/382 (Arisen out of Order Dated 21/08/2014 in Case No. CC/723/2011 of District Nagpur) 1. BHIMRAO SHAMRAO KEWATE R/O40,SANMARG NAGAR,HUDKESHWAR ROAD,NAGPUR NAGPUR ...........Appellant(s) Versus 1. REGIONAL ROVIDENT FUND COMMISSIONER-2 UMRED ROAD,NEAR SHITALA MATA MANDIR SQUARE,NAGPUR NAGPUR 2. REGIONAL ROVIDENT FUND COMMISSIONER-2 BHAVISHYA NIDHI BHAVAN,BANDRA MUMBAI 3. CHAIRMAN,CENTRAL BOARD OF TRUSTEES MAYUR BHAVAN,CANOT CIRCLE NEW DELHI 4. CHAIRMAN,M.S.E.D PRAKASHGARH,PLOT NO.G-9,BANDRA MUMBAI 5. MANAGING DIRECTOR,M.S.E.D PRAKASHGRAH,PLOT NO.G-9,BANDRA MUMBAI 6. ACCOUNT OFFICER EXTENSTION BUILDING,DHARVI ROAD MUMBAI ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: For the Respondent: Dated : 13 Mar 2018 Final Order / Judgement (Delivered on 13/03/2018) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. Both these appeals are being disposed of by this common order as they are filed against the same order dated 21/08/2014 passed by the District Consumer Forum, Nagpur in consumer complaint No. 723/2011, by which the said complaint has been partly allowed.
2. Appeal bearing No. A/14/365 is filed by the original opposite party (for short O.P.) Nos. 1,2&3. Appeal bearing No. A/14/382 is filed by the original complainant. Both the parties in both the appeals are hereinafter referred to as by their original status in the complaint as complainant and O.P. Nos. 1 to 6, for the sake of convenience.
3. The case of the complainant in brief as relevant for deciding both these appeals are as under.
a. The complainant was working with the establishment namely Maharashtra State Electricity Distribution Company Pvt. Ltd. (for short MSEDCL). The O.P. Nos. 4,5 & 6 were employers and functional heads of the said establishment. The complainant was also the member/ subscriber of the Employees Pension Scheme,1995 (for short EPS-95) formulated under Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (for short EPF & MPA-1952). The Provident Fund ( P.F.) Account No. MH/BAN/1496 was given to complainant for the purpose of pension payable after cessation of his service. The activities relating to the pension under EPS-95 are monitored by the O.P. Nos. 1 to 3 and also by O.P. Nos. 4 to 6.
b. The complainant was retired from the service of the O.P.Nos. 4 to 6 on 30/09/2004. He submitted duly filled in form No. 10-D through the Executive Engineer, Ballarshah for the purpose of receiving pension. He had also submitted documents along with said form. He also opted for computation of 33.33% pension facility as provided for under the EPS-95. After due audit of the pension claim submitted by the complainant as the required and appropriate levels in O.P.No. 4 to 6. The pension claim was then sent finally to the O.P.No. 2 by O.P.No. 6 for further audit and sanction. Thereafter, the O.P.No. 2 sent the said pension claim to the O.P.No. 1 for generating and issuing Pension Payment Order (PPO).
c. All the formalities were to be completed by the O.Ps so expeditiously that the payment of monthly pension could commence within a period of 90 days from the date of submission of pension claim. However, the Pension Payment Order (PPO) was issued by the O.P.No. 1 (on 01/09/2010) sanctioning pension of Rs. 1125/- with effect from 04/09/2004. There was long delay of six years (72 months) in the commencement of monthly pension of the complainant.
d. The O.P.Nos. 1 to 3 should have fixed the pension at Rs.1436/- per month in place of Rs. 1125/-.
e. The O. P. Nos. 1 to 3 ought to have commuted value of pension as follows.
1436 x1/3 = Rs. 478.66x10= Rs. 47,866/- as per option given by complainant. Said amount of Rs. 47,866/- ought to have been paid within 90 days to complainant. But less amount is paid that too after long delay of 72 months.
f. Therefore, the complainant issued notice to the O.Ps. The complainant got no positive response. Therefore, he filed the consumer complaint before the District Consumer Forum alleging deficiency in service on the part of the O.P.Nos. 1 to 6 and made following claims.
i. The O.P. Nos. 1 to 6 may be directed to pay to the complainant compensation of Rs. 2,90,000/- with interest at the rate of 18% p.a. towards loss sustained by him and also to pay him further compensation of Rs. 3,00,000/- for physical and mental harassment of which details are given in the complaint.
ii. The O.P.Nos. 1 to 3 may be directed to pay him monthly pension of Rs. 1436/- instead of monthly pension of Rs. 1125/- and to pay arrears of difference in the pension of last six years with interest at the rate of 18% p.a. iii. Moreover, the O.P.Nos. 1 to 6 be further directed to pay compensation of Rs. 5,00,000/- and litigation cost to the complainant.
4. The O.P.Nos. 1 to 3 appeared before the District Consumer Forum and resisted the complaint by filing their common reply. Their main submission in brief is as under, The O.P. Nos. 1 to 3 after receiving the pension claim papers from the employer of the complainant, immediately processed the same and within one month from the date of receiving the complete case paper along with relevant documents, the pension payment order was released and pension was duly paid to the complainant. Moreover, the computation of pension as made by the complainant is as per his own will and whim and same being not in consonance with the provisions of EPA Act and Scheme, is not sustainable and cannot be accepted. The commutation of the pension is made as per the provisions of EPF Act and Pension Scheme and as per the rules and regulations applicable thereto and the procedure laid down in that regard. Therefore, no question arises of any deficiency in service on the part of the O.P. Nos. 1 to 3 or negligence in their service. Therefore, O.P. Nos. 1 to 3 had prayed that the complaint as against them may be dismissed.
5. The O.P.Nos. 4 to 6 also filed their common reply and thereby resisted the complaint. They raised preliminary objection that as they are the employer of the complainant and as they have not provided any service for consideration to the complainant, there exists no relationship of service provider and consumer in between them and complainant. Therefore, the complaint as against them is not maintainable under Consumer Protection Act, 1986. They admitted that the complainant was retired from their employment on 04/09/2010. The O.P.No.6 had provide every help and assistance to the complainant for getting sanctioned his pension as early as possible. It is denied that due to inaction on the part of the O.P. Nos. 4 to 6 the delay was occurred in getting the pension order. Certain formalities were to be completed for submitting pension claim to the O.P. Nos. 1 to 3 as stated in detail in their reply filed by the O.P. Nos. 4 to 6. However, the complainant did not provide the documents as required for submitting the claim and hence, delay was occurred. The first pension claim submitted to the O.P.Nos.6 was not traced out and hence second pension claim was got prepared through complainant and then it was again sent to the O.P.Nos. 6. The O.P.No.6 then forwarded the pension claim to the O.P. No.2.
After removing all short comings in the pension form, vide letter No. 118867, dated 04/03/2010 the said pension claim was sanctioned by the O.P.No. 1 finally on 22/09/2010. Therefore, it is denied that the O.P. Nos. 4 to 6 are responsible for the delay in getting sanction of the pension. They also denied that they are liable to pay compensation to the complainant. Hence, they requested that the complaint as against them may be dismissed.
6. The District Consumer Forum after hearing both the parties and considering evidence brought on record came to the conclusion under impugned order that , the complaint as against the O.P.Nos. 4 to 6 is not maintainable in law as no relationship exists between them and the complainant as service provider and the consumer and that the actual relationship in between them is of employer and employee. Hence, the Forum below dismissed the complaint as against the O.P.Nos. 4 to 6 by passing impugned order.
However, the District Consumer Forum under impugned order accepted the case of the complainant as regards the less fixation of pension & held that complainant is entitled to pension at the rate of Rs. 1343/- per month . Moreover, the Forum also held that the complainant is entitled to difference in the pension amount with interest and also difference in the amount of commutation of pension with interest . Moreover, the Forum also held that the complainant is entitled to litigation cost of Rs. 3000/-. Hence, in consonance with the said finding the District Consumer Forum below directed the O.P. Nos. 1 to 3 as under.
i. The O.P. Nos. 1 to 3 shall fix the pension of the complainant at Rs. 743/- per month with effect from 04/09/2010 as per para No. 12(4)((a) of EPS-95 and at Rs. 600/- as per para No. 12(4)(b) of EPS-95, for the past service period of 24 years of the complainant. Thus, aggregate pension be fixed at Rs. 1343/- per month.
ii. The O.P.Nos. 1 to 3 shall fix the commuted value of pension at the rate of Rs. 448/- per month being 33.33% of commutation and accordingly fix it at Rs. 44,800/- towards said commutation of pension for 100 months and shall deduct Rs. 37,500/- from that amount already paid to the complainant and shall pay difference of Rs.7300/- with interest at the rate of 9% p.a. from 01/09/2010 till date of actual payment.
iii. Though the complainant was entitled to monthly pension of Rs. 895/- after deduction of commutation, but he was paid pension of Rs. 750/- only per month from 04/09/2004. Therefore, O.P. Nos. 1 to 3 shall pay to him difference of pension of Rs. 145/- per month with effect from 04/09/2004, with interest at the rate of 9% p.a. from 01/09/2010 i.e. from the date of sanction order of the pension till actual payment to him.
iv. The O.P.Nos. 1 to 3 shall also pay litigation cost of Rs. 3000/- to the complainant.
7. As observed above the appeal bearing No. A/14/365 is filed by the O.P.Nos. 1 to 3 and appeal bearing No. A/14/382 is filed by the original complainant, feeling aggrieved by the said order.
8. We have heard Mr. D.P. Thumale, the authorised representative of the complainant. We have also heard Advocate Mr. H.N. Verma appearing for the O.P.Nos. 1 to 3 and Advocate Mr. Rahate appearing for the O.P. Nos. 4 to 6. We have also perused the record and proceedings of both the appeals.
9. It is seen that after we heard both the parties at length, the learned advocate of the O.P.Nos. 1 to 3 filed pursis / memo on 06/07/2017, signed by him and Mr. Surendra V. Azad, Assistant Provident Fund Commissioner, EPFO, RO Nagpur, in which following submission is made.
"In the subject matter of dispute involved in appeal filed by the appellant (O. P. Nos. 1 to 3) bearing appeal No. A/14/365 and in counter appeal No. A/14/382 filed by the respondent No. 1(original complainant), as per the provision of paragraph 12 of Employees Pension Scheme,1995, as it stands on 04/09/2004, the pensioner i.e. respondent No. 1(complainant) in appeal No. A/14/365 and in appeal No. A/14/382 is entitled for past service benefits of Rs. 600/- with effect from 04/09/2004 instead of Rs. 382/- as mentioned in the computation sheet of P.P.O. dated 03/08/2010 filed on record. However, as the said modification needs to be done by making necessary changes in the system after approval from the Head Office of E.P.F.O. at Delhi, it will take minimum two months time to process the same and to pay the arrears to the pensioner."
The learned advocate of the O.P. Nos. 1 to 3 and complainant also admitted the contents of the said pursis/memo at the time of final hearing.
10. We find that as per paragraph 12 (4)(b) of Employees Pension Scheme,1995, as stood on 04/09/2004, the complainant is entitled to monthly pension of Rs. 600/- for past service period of 24 years but the O.P. Nos. 1 to 3 fixed only monthly pension of Rs. 382/- and therefore they fixed less pension by Rs. 218/- per month. There is no dispute about fixation of pension of Rs. 743/- per month vide para 12(4)(a) of EPS-95 for post service of 8 years of the complainant after 16/11/1995.
11. The District Consumer Forum below rightly came to the conclusion that the complainant is entitled to total monthly pension of Rs. 1343/- (Rs. 743+ Rs. 600) as per para No. 12(4)(a) and para 12(4)(b) of EPS-1995. Moreover, the District Consumer Forum below also rightly held that the complainant is entitled to commutation of 33.33% of pension as per his request which comes to Rs. 448/- out of total pension of Rs. 1343/- monthly. The District Forum, below rightly fixed commutation value of pension at Rs. 44,800/- for 100 months & righty deducted Rs. 37,000/- out of it as already paid to the complainant & rightly held that complainant is entitled to balance commutation value of Rs. 7,300/- from O.P. Nos. 1 to 3. Thus after deducting Rs. 448/- commutation value & paid out of total pension of from Rs. 1343/-, the monthly pension is rightly fixed by District Consumer Forum below at Rs. 895/- with effect from 04/09/2004 i.e. from the date of actual retirement of the complainant. The O.P. Nos. 1 to 3 fixed the said pension at Rs. 750/- only and therefore, the District Consumer Forum has rightly held that the complainant is entitled to difference of Rs. 145/- per month with interest.
12. However, the representative of the original complainant submitted that the Forum below ought to have been awarded interest at the rate of 12% p.a. over the arrears of pension and arrears of commutation of pension with effect from 04/09/2004 vide para No. 17-A of EPS-1995. The learned advocate of the O.P. Nos. 1 to 3 submitted that no such interest at the rate of 12% p.a. can be awarded since the action was taken by the O.P. Nos. 1 to 3 without any delay in fixation of the pension.
13. The para No. 17-A of EPS-1995 provides as under, "If the claims complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within 3 days from the date of its receipt by the Commissioner. It there is any deficiency in the claim, the same shall be recorded in writing and communicated to the applicant within 30 days from the date of receipt of such application. In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days , the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% p.a. may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner".
14. In the instant case we find that as per para No.17-A of the EPS-1995 the complainant is entitled to penal interest at the rate of 12% p.a. as his pension was not properly fixed by the O.P.Nos. 1 to 3 and there is long delay in proper fixation of the pension & there is non payment amount of difference as specified above . Hence, the appeal filed by the original complainant deserves to be partly allowed to modify the rate of interest and to enhance it from 9% p.a. to 12% p.a. However, rest of the enhancement of the claim made by the original complainant in his appeal cannot be allowed under the facts and circumstances of the present case discussed above.
15. So far as liability of the O.P.Nos. 4 to 6 is concerned, the learned advocate of the O.P.Nos. 4 to 6 supported the impugned order and relied on decision in the following cases.
i. Maharashtra State Electricity Board and Representatives Vs. Madhukar Vithal Kale through LRs, reported in I (2010) CPJ 20 (NC). The Hon'ble National Commission in the said case held that there was employer- employee dispute in the complaint and also the dispute is about retiral benefits. The Hon'ble National Commission held that no consumer dispute is involved in the said complaint as the complainant is not the consumer. Hence, the complaint was dismissed.
ii. Executive Engineer, investigation and planning (W.R.) Division & others Vs. Smt. Meena Pandey, reported in III (2002) CPJ 67. The learned U.P. State Commission, Lucknow held in the said case that services rendered by the appellant to the respondent were free of charge and hence, complaint before the Forum was not maintainable.
iii. Hari Vallabh Vijay Vs. Administrative Officer & other, reported in I (2001) CPJ 388. The learned M.P. State Commission held in the said case that the respondent did not render service for consideration to the appellant and no hiring of service was involved in the complaint and hence, the complaint is not maintainable.
iv. Principal, Government Ripudaman College, Nabha Vs. Mrs. Narender Pal Kaur Gill & others, reported in II (1998) CPJ 386. The learned Punjab State Commission observed in the said case that the complainant is not a consumer when the grievance is about non payment of gratuity to the complainant as services were not hired for consideration.
v. Accountant General Vs. District Consumer Forum and others, reported in II (1993) CPJ 905. The learned M.P. State Commission held in the said case that there is no question of hiring of service by the complainant from the O.P. and that there was contract of personal service in between both the parties and hence, complaint is not maintainable.
The learned advocate of the O.P.Nos. 4 to 6 therefore, submitted that both appeals filed against the O.P.Nos. 4 to 6 may be dismissed.
16. We also find that as admittedly there is relationship of employer and employee in between the O.P. Nos. 4 to 6 and complainant and complainant did not hire the services of the O.P.Nos. 4 to 6 by paying certain consideration, no relationship as service provider and consumer therefore exists in between the O.P.Nos. 4 to 6 and the complainant. Thus, the District Consumer Forum has rightly dismissed the complaint against the O.P.Nos. 4 to 6. In the result we hold that both the appeals filed against the O.P. Nos. 4 to 6 deserve to be dismissed.
17. Moreover, we also find that the appeal filed by the O.P.Nos. 1 to 3 also deserves to be dismissed since, they have rendered deficient service to the complainant by less fixation of his pension and by less commutation of his pension. The appeal filed the original complainant thus deserves to be partly allowed.
ORDER i. Appeal bearing No. A/14/365 filed by the original opposite party Nos. 1 to 3 is dismissed.
ii. Appeal bearing No. A/14/382 filed by the original complainant is partly allowed as under.
iii. The impugned order passed by the District Consumer Forum is maintained so far as the liability of the original opposite party Nos. 1 to 3 is concerned regarding fixation of total monthly pension at Rs. 1343/- as specified in clause No. 1 of the operative part of the impugned order.
iv. So far as the direction given in clause No. 2 of the operative part of the impugned order about fixation of commutation value of Rs. 448/- per month for 100 months, amounting to Rs. 44,800/- is maintained. Moreover, the direction given in clause No. 2 of the operative part of the impugned order as regards the payment of difference of Rs. 7300/- in commutation value (Rs. 44800/- - Rs. 37,500/-) is also maintained. However, the interest awarded at the rate of 9% p.a. over the said difference of amount is modified and enhanced to 12% p.a. Therefore, the O.P Nos. 1 to 3 shall pay Rs. 7300/- with interest at the rate of 12% p.a. from 01/09/2010 i.e. from date of sanction order of pension till its realization by the complainant.
v. So far as the direction given in clause No. 3 of the operative part of the impugned order about payment of difference of amount of Rs. 145/- in pension (Rs. 895/- - Rs. 750/-) with effect from 04/09/2004 is maintained. However, the interest awarded at the rate of 9% p.a. over that amount from 01/09/2010 is modified and enhanced to 12% p.a. The O.P.Nos. 1 to 3 thus shall pay the difference of Rs. 145/- per month with interest at the rate of 12% p.a. from 01/09/2010 i.e. from date of sanction of pension till its realization by the complainant.
vi. So far as direction given in clause No. 4 of the operative part of the impugned order about payment of litigation cost of Rs. 3,000/- is maintained.
vii. The order passed about dismissal of the complaint against the O.P.Nos. 4 to 6 is maintained.
viii. No order as to cost in both these appeals. ix. Copy of order be furnished to both the parties, free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER