Regional Provident Fund Commissioner & Anr. vs Subhash Chandra Banerjee & Anr.

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by the Regional Provident Fund Commissioner, Accounts Office, Park Street, Kolkata and its counterpart at Sait Lake City, Kolkata, Opposite Party Nos. 1 and 2 respectively in the Complaint, is to the order dated 19.1.2009, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short "the State Commission") in SC Case No. 14/A/2007. By the impugned order, the State Commission has overturned the order dated 19.12.2006, passed by the District Consumer Disputes Redressal Forum, Unit-1, Kolkata (for short "the District Forum") in Complaint Case No. 352 of 2003, whereby the District Forum had dismissed the Complaint preferred by Respondent No. 1/Complainant. Allowing the Appeal preferred by the Complainant, the State Commission has directed the Petitioners herein to calculate the monthly pension of the Complainant in accordance with the provisions of Employees'' Pension Scheme, 1995, within three months and to pay such assessed/calculated monthly pension to him w.e.f. 1.9.2002. Besides, while directing adjustment of the withdrawal benefit, amounting to Rs. 26,400, against the amount payable towards arrears, the balance amount of arrears has been directed to be paid to the Complainant within one month from the date of communication of the said order, together with penal interest as permissible under the existing law, i.e. @ 12% p.a. 2. Shorn of unnecessarily details, the facts material for adjudication of the present Revision Petition may be stated thus: The Complainant had joined the State Bank of India Staff Association Cooperative Society Ltd., on 1.2.1969. On 12.8.1987, the Society was converted into SBI Staff Association Cooperative Bank Ltd. (for short "the Bank"), Opposite Party No. 3 in the Complaint. After rendering more than 33 years of service in the Bank, the Complainant superannuated on 31.8.2002. vide letter dated 5.5.1995, the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "the 1952 Act") was made applicable to the Bank, retrospectively w.e.f. 1.7.1975. The Bank started complying with the Employees'' Family Pension Scheme, 1971 (for short "the 1971 Scheme"). On 16.11.1995, the 1971 Scheme was replaced by Employees Pension Scheme, 1995 (for short "the 1995 Scheme"). As per directions of Petitioner No. 1 herein, the past accumulations/contributions towards Provident Fund and Employees'' Family Pension Scheme from the salary and allowances of the Complainant and/interest accrued up-to-March, 1995, were transferred to Petitioner No. 1, for credit to his personal account. Subsequently, the contributions were systematically deducted by the Bank from the salary and allowances of the Complainant and were duly deposited with the Petitioners for credit to his account upto the date of his retirement. According to the Complainant, he was an Existing Member of the 1971 Scheme when the 1995 Scheme was introduced and, therefore, was required to be treated as such till the date of his retirement, i.e. 31.8.2002. Clause 9(b) of the 1995 Scheme stipulated that in case of "Existing Member" under the 1971 Scheme, the aggregate of the "actual service" and the "past service" shall be treated as "eligible service" for the purpose of "monthly pension" and pensionable service of the members shall be determined with reference to the contributions made in the fund on their behalf; the Provisions of Section 16(1)(d) of the 1952 Act and the 1971 Scheme, framed thereunder, were made applicable to the Bank w.e.f. 1.7.1975, which was duly communicated/confirmed by the Petitioners, who had asked the Bank to deposit all arrears, administrative and other charges, since July, 1975 at a time; and since he had joined the Bank on 1.2.1969 and had retired on 1.9.2002, he had rendered more than 20 years of service and was, therefore, eligible as a member of the 1971 Scheme, before commencement of the 1995 Scheme from 16.11.1995. In terms of the 1995 Scheme, none of 1 the pensionary benefits under the said Scheme could be denied to any member or beneficiary for want of compliance with the requirements by the employer and the employer could not be absolved of its liabilities under the Scheme. It was the say of the Complainant that the amendment of the 1971 Scheme, made applicable with retrospective effect from 1.4.1988, postulated that the interest of the employees would not be affected adversely and they would be entitled to the family pension as employees of any establishment to which the 1952 Act applied. Despite it all, at the time of final payment of provident fund, the Petitioners paid to the Complainant a sum of 26,400 as withdrawal benefit in lieu of monthly pension. Being aggrieved by the denial of monthly pension, the Complainant made representations to the Petitioners for considering his case for grant of monthly pension, which had been arbitrarily denied. 3. Having failed to elicit any positive response, alleging deficiency in service on the part of the Petitioners, the Complainant filed the Complaint before the District Forum, praying for a direction to the Petitioners to consider his case for grant of monthly pension in terms of the 1971 Scheme, as amended thereafter. 4. The complaint was contested by the Petitioners. In the common Written Version, it was, inter alia, pleaded that the Bank was brought under the 1952 Act vide coverage letter No. R-ENF/SPL/WB/C A/29941 /1463 dated 5.5.1995; as per the Rules and Regulations prevalent at that point of time, the Bank was asked to pay the arrears due under the 1952 Scheme; deposit the Linked Insurance Scheme, 1976 retrospectively from 1.7.1975; comply with the 1971 Scheme prospectively from 1.6.1995; and transfer the entire past accumulation as on date of coverage to the statutory fund; the Complainant, being an employee of the Bank, became the member of the 1952 Scheme; the Bank had deposited the past accumulation in respect of its employees and started depositing provident fund contribution under the 1952 Scheme and family pension fund contribution under the 1971 Scheme separately w.e.f. 1.6.1995 onwards in respect of its employees, the Complainant being one of them; on his retirement, on 31.8.2002, the Complainant had applied for provident fund withdrawal and withdrawal benefit in respect of his pension fund contribution, which he was entitled to receive as per the provisions of the 1952 Act and the Schemes framed thereunder; the provident fund claim of the Complainant was settled taking into account his provident fund contribution with interest in accordance with la w; since the Bankhad started depositing family pension fund contribution w.e.f. 1.6.1995. In respect of its employees, the actual membership of eligible service in family pension scheme in respect of the Complainant was counted from 1.6.1995 to 31.8.2002 (the date of retirement being 1.9.2002), which entitled him only for withdrawal benefit and not for monthly pension, as he had not completed the eligible service of 10 years. 5. On appreciation of the provisions of the afore noted schemes, the District Forum, while holding that there was no deficiency in service on the part of the Petitioners, dismissed the Complaint, observing thus: "In that circumstances, the complainant has no ground to claim relief in terms of the prayer since the establishment S.B.I. Staff Cooperative Bank Ltd. has been directed to comply Family Pension Scheme prospectively with effect from 1.6.95 and the said establishment started depositing Family Pension Fund contribution separately with effect from 1.6.95 in respect of its employees and eligible service in F.P. Scheme in respect of the complainant was counted from 1.6.95 to 31.8.02 in accordance with the provisions which entitled him for withdrawal benefit and not monthly'' pension as completion of 10 years service is one of the basic criteria for entitlement of monthly member pension as per para 12 of the F.P. Scheme, 1995 and complainant''s service was less than 10 years." 6. Aggrieved, the Complainant carried the matter further in Appeal to the State Commission. On reappraisal of the material on record and with copious reference to the provisions of the 1995 Scheme enacted in exercise of the powers conferred under the 1952 Act, particularly to paragraph 9(b) of the said Scheme, which provides that in order to determine the eligible service of the existing member for the purpose of computing the pension, the aggregate of "actual service" and "past service" shall be taken into consideration, the State Commission has come to the conclusion that the "pensionable service" of the Complainant, according to paragraph 2 (xv), being 27 years 2 months (from 1.7.1975 to 31.8.2002), and with further 2 years weightage in terms of para 10 (2) of the said Scheme (total 29 years 2 months), the Complainant was entitled to monthly pension w.e.f. 1.9.2002 observing thus: The Appellant/Complainant is the "existing member" under Paragraph 2(vi) and it says that it means an existing employee who is a "Member of the Employees Family Pension Scheme, 1971". We have already said and held that the Appellant/Complainant is a member of the Scheme, 1971. Past Service is defined in paragraph 2 (xii) which means the period of service rendered by an existing member from the date of joining till 15.11.1995. The "Pensionable Service" is determined under paragraph 10 of the Scheme 1995. It runs as hereunder: "10. Determination of Pensionable Service-(1) The pensionable service of the member shall be determined with reference to the contributions received or receivable on his behalf in the Employees'' Pension Fund. (2) In the case of the member who superannuates on attaining the age of 58 years and/or who has rendered 20 years of pensionable service or more his pensionable service shall be increased by adding a weightage of 2 years. Therefore, recovery of the contribution is the sole responsibility of the Employer i.e. Respondent/O.P. No. 3 of the said establishment The paragraph No. 6 of the Scheme 1995 provides for the membership of the Employees'' Pension Scheme and in terms of Sub-paragraph (b) of Paragraph 6, the Appellant/Complainant is a member for the entitlement of the monthly pensions as it is provided in Paragraph 12 of the Scheme, 1995. Clause (c) of Sub-paragraph (1) of Paragraph No. 12 provides the short service. Sub-paragraph No. (2) of paragraph 12 provides for new entrant. Thus, there is nothing there appearing to us that there is any case for deprivation of the monthly pension. Rather, it is provided short service pension and the manner of calculation of the amount of pension is case of a new entrant. But, there is nothing which the learned Advocate for the Respondent/O.P No. 1 (sic) could show that is case of short service and new entrant, a member will not get the monthly pension according to the Scheme of 1995. We have not found anything in support of the reason of the District Forum in this context." 7. Further observing that in the case of S.K. Abbasuddin, who was placed in a similar situation, as the Complainant, and had retired from service on 5.6.2003, his past service upto 15.11.1995 was taken into consideration and was granted monthly pension, the State Commission has issued the afore-noted directions. Hence, the Revision Petition. 8. The short question falling for consideration is whether the employees of the Bank, who were initially enrolled as members of the 1971 Scheme and had opted for the 1995 Scheme, would be entitled to count for the service rendered by them prior to the introduction of the 1995 Scheme for determining the "eligible service" for the purpose of monthly pension under the said Scheme? 9. In our opinion, in-so-far as this Commission is concerned, the issue is no longer resintegra. A similar controversy came up for resolution before the Commission in Revision Petition No. 2864/14, Regional Provident Fund Commissioner v. Shri Mohammad Khasim . Referring to the provisions in the afore-noted schemes, it was held as follows: "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" 10. In our view, fee ratio of fee said decision is on all fours to the facts at hand. Additionally, we are also of the view that any other interpretation of the provisions, noted above, would render Para 9(2) of the 1995 Scheme otiose, which would be repugnant to the basic principles of statutory interpretation. We are, therefore, in agreement with the view taken by the State Commission to the effect that since the establishment, viz, the Bank, in which the Complainant was working in the year 1971, was covered under the 1952 Act w.e.f. 1.7.1975 and he was enrolled as member in the 1971 Scheme, his past service could not be ignored for determining the eligible service for the purpose of monthly pension under the 1995 Scheme. 11. In that view of the matter, we do not find any jurisdictional error in the impugned order, warranting interference in our limited Revisionary Jurisdiction. 12. Before parting with the case, we are constrained to observe that having regard to the object and spirit of the 1952 Act; the quantum of the amount involved as also the fact that the technical issue sought to be raised in the present Petition may arise in a handful of cases, involving retired employees, the Provident Commissioner would have done well in graciously accepting the order passed by the State Commission, instead of driving the Complainant in litigation upto this Forum. We dare say that, in all probability, the cost of litigation incurred in the case would be more than the petty amount of monthly pension, the Complainant might ultimately receive. 13. Resultantly, the Revision Petition fails and is dismissed accordingly but with no order as to costs. 14. We place on record our appreciation for the valuable assistance rendered by the learned amicus curiae. Revision Petition Dismissed.