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Judgment
The present Revision Petition has been filed against the order of the State Consumer Disputes Redressal Commission, Bangalore, Karanataka (for short "the State Commission") dated 25.06.2018 in Appeal No.587 of 2017 whereby the Petitioner had challenged the order dated 31.01.2017 of the District Consumer Disputes Redressal Forum, Kolar (for short "the District Forum") in Complaint No.60 of 2016.
The brief facts of the case are that the Complaint was filed by the Respondent alleging that he was the employee of Primary Agricultural And Rural Development Bank Limited, Kolar (for short "PARDBL"); he joined the services on 02.11.1974 and retired on 30.06.2014 on attaining the age of 60 years. These facts are undisputed facts. The Respondent has contended in para (3) of his Complaint that from the date of his joining the services with PARDBL the Petitioner had been deducting PF contribution under EFPS Past Accumulation from the monthly salary. The Complainant has further stated in his Complaint that since by the date of his retirement, he had completed 58 years of services, he was entitled for the benefit of additional two years of services while calculating his pension under the Employees Pension Scheme 1995. Since the same had not been done, the Complaint was filed.
In their Written Version, the Petitioner has not denied the contention of the Complainant/Respondent that the Petitioner had been deducting from his salary his PF contribution since the date of joining his services with PARDBL. In their Written Version, the Petitioner has not disputed that PARDBL was covered under the provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952 but it is stated that they were covered w.e.f. 01.10.1996 and had been allotted the Code no.KN/19427. The Petitioner furnished the copy of the return of the employees who were entitled and required to become members of the Scheme showing the date of their eligibility w.e.f. 01.10.1996 and accordingly, the Petitioner made the entry. Their contention was that since he had rendered services only of 15 years 8 months and 13 days, the pension of ₹1,457/- was sanctioned w.e.f. 14.06.2012 according to Employees Pension Scheme 1995 and that he was not entitled for weightage of two years as per para 10(2) of the said Scheme. It is submitted that there was no deficiency in service on their part.
Parties led their evidences before the District Forum. The District Forum on the basis of the evidence led before it held as under:
Admittedly, the complainant had retired from service on 13.06.2012 after completion of 58 years that is on superannuation basis. Therefore, the complainant had completed total service of 35 years. Admittedly, complainant entered in to EPS Scheme in the year 1996 at the time of entering in to the Scheme. The Employee's Pension Scheme, 1995 Para-10(2) reads as under:
"10. Determination of Pensionable Service.
(2) In the case of the member who superannuates on attaining the age of 58 years, and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by addition a weightage of 02 years."
According to Para-10(2) of the Employee's Pension Scheme, 1995 those who render 20 years of service or those who superannuation on attaining the age of 58 years were eligible for 02 years weightage. Here the complainant superannuation on attaining the age of 58 years. Hence he is eligible for 02 years weightage according to the 10(2) of the Employee's Pension Scheme, 1995 was emended and those who are attaining the age of 58 years and those who rendered 20 years of pensionable service are eligible for 02 years weightage. This argument is not justifiable. Because at the time of entering in to the service no such provisions exist and there is no material evidence available on record to show that the same is application retrospectively.
Further, the OP has submitted that, as per the circular of the EPFO, Head Office, New Delhi, the complainant is not eligible for weightage of 02 years. The circular issued by the EPFO, Head Office, New Delhi, cannot be considered as an amendment to the Act. Hence, it is not applicable to the case on hand.
Further the Hon'ble National Commission, New Delhi, held in the case of Assistant PF Commissioner, Hubli vs. Mallikarjuna Devendrappa Veerapura, reported in 2010(3) CPR 45, dated 29.06.2010. Wherein it is held that granting of 02 years weightage under the Employee's Pension Scheme, 1995. In view of the discussions held in the above, we hold that the Scheme 1995 is very clear and by apply the law laid down by the Hon'ble National Commission, New Delhi, we hold that there is a deficiency in service on the part of the OP."
This order was impugned before the State Commission and vide the order under challenge, the State Commission dismissed the Appeal and also all the contentions raised by the Petitioner before it regarding non-entitlement of the benefit of two years. It has held as under:
"8. Thus the complainant sought refixation of pension by giving weightage of 2 years. With regard to the question of 2 years it is seen that para 10(2) of Employees' Pension Scheme 1995 the emplo7yee is entitled for additional weightage of 2 years in the circumstances detailed there under. For the sake of convenience the said para 10(2) is excerpted hereunder:
"In the case of the member who superannuates on attaining the age of 58 years and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years" (Emphasis supplied)
However, the said para 10(2) was subsequently amended with effect from 24.07.2009 and the amended provision is excerpted hereunder:
"In the case of the member who superannuates on attaining the age of 58years and who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years." (Emphasis supplied)
Thus if an employee retires on or before 24.07.2009 on attaining the age of superannuation suffice it if he fulfils any one of the condition of either the age of superannuation or pensionable service of 20 years, they need not fulfil both the conditions the age of superannuation and pensionable service of 20 years.
If an employee retires after 24.07.2009, then he is entitled for weightage of 2 years provided the employee complies with both the conditions of age and pensionable service, i.e., he must have retired after attaining the age of 58 years and he must also have put in pensionable service of 20 years to get the additional weightage of 2 years.
At this juncture, it is also necessary to refer to the notification dated 24.11.2013 issued by the Ministry of Labour and Employment, Government of India and the same reads as here under:
"depending upon the facts of the case RPFCs can give 2 years bonus in cases where superannuation pension i.e. pension at the age of 58 years had commenced prior to 24.07.2009 when para 10(2) was amended substituting the words 'and/or' with "and".
No doubt, as submitted by the Learned Counsel for the appellant under Pension Scheme of 1971 question of granting of weightage of 2 years never existed and the same was introduced only under Employees' Pension Scheme 1995; to calculate the pensionable service it is necessary to look in the definition of Pensionable Service as defined under the scheme and para 2 of Employees' Pension Scheme 1995 states that "the pensionable service rendered by the member for which the contributions have been received or receivable" (emphasis supplied). Thus, the period for which one makes contribution is considered as pensionable service and when the contribution is made under the earlier scheme i.e. towards past service and the same contribution is continued to actual service or present service; both put together will have to be considered as 'pensionable service'.
Thus in this case the complainant retired subsequent to 24.07.2009 and as such he is required to fulfil both the condition the age of 58 years and completion of pensionable service of 20 years as on the date of retirement. It is seen that he is put in pensionable service of more than 20 years and retired on attaining the age of superannuation of 58 years. Hence, he is entitled for weightage of two years.
For the foregoing circumstances, impugned order directing the OP to fix the pension by giving weightage of two years is proper and same does not call for any interference. Hence the following:
Similar contention has been raised before us that since the Respondent was covered under the Scheme of Employees Pension Scheme 1995 w.e.f. 01.10.1996 and since then till the date of retirement, he had not completed the services of period of twenty years, he is not entitled for the benefit claimed by him.
There is a concurrent finding of fact on the issue that the Petitioner had pensionable services from the date he joined the services with PARDBL. There is specific contention on the part of the Respondent in his Complaint that the Petitioner had been deducting the PF contribution from his monthly salary. There is no specific denial of this fact. It is argued that the burden was upon the Respondent to produce the documents to prove that PF contribution was deducted from his salary and since he had not produced any document, it cannot be said that he has succeeded in proving the fact that deduction towards PF contribution was made under EPFS Scheme from the date of his joining i.e. 02.11.1974. This argument of learned Counsel is not tenable in view of the settled proposition of law that where any specific fact is pleaded and there is no specific denial to the said fact, the fact is considered to have been admitted as true by the opposite party who had the opportunity to deny it. Since there was no denial by Petitioner in the written version of this specific contention of the Respondent, there was no need for the Respondent to produce any evidence to prove it. Besides that it is also not disputed that PARDBL was covered under the old Schemes. Therefore, it is clear that under those Schemes the contribution was deducted from the salary of the Respondent which continued after he was covered under the Scheme of 1995. The findings of the State Commission are thus based on the evidence on record. The jurisdiction of the Commission under Section 21(b) of the Act has been discussed by the Hon'ble Supreme Court in "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269". The Hon'ble Supreme Court has laid down the directions to be kept in mind by this Commission while dealing with the Revision Petitions. The Hon'ble Supreme Court has held as under:
"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".
In view of the above settled proposition of law and in view of the law rightly applied on the facts of this case we found no illegality or irregularity in the impugned order, we have no reason to interfere with the concurrent findings of facts. The Revision Petition is dismissed.