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2003 DIGILAW 288 (KER)

K. N. Rajasekharan Nair v. Union of India

2003-04-08

M.R.HARIHARAN NAIR

body2003
Judgment :- The two petitioners herein retired from service of the Hindustan News Print at a time when they were working as Senior Managers in the Civil and ENNT departments respectively. It was the Employees’ Family Pension Scheme 1971 that was applicable to the petitioners until the new Pension Scheme of 1995 came into vogue with effect from 16/11/1995. The two petitioners had put in only less than 17 and 18 years’ service respectively at the time of retirement in 1999 and 2002 respectively. They are aggrieved that their pensionable service was taken as only 4 years and 5 years respectively and that the pension sanctioned to them are too inadequate. 2. Mr. B. Gopakumar who appeared for the petitioners, submitted that the orders sanctioning pension served on the petitioners do not disclose the manner in which the pension amounts were arrived at and that there is obvious error committed by the authority in calculating the pension due to the petitioners. Reference was also made during arguments to the definitions given in the Pension Scheme with regard to ‘Pensionable service’ and also to the manner in which pension should be calculated as envisaged in paras-11 and 12 of the Employees’ Pension Scheme, 1995. The sum and substance of his arguments is that instead of para 12 (5), Para 12 (1) and 12 (2) should be applied for fixing pension. Note XI, XV and grounds F, J, K etc of the O.P. refers to a third petitioner. The original petition actually is filed by only two petitioners and there is no plea in the Original Petition with regard to the exact amount of pension allowed to petitioners 1 and 2. As regards the 1st petitioner reliance is placed on Ext.P1. That is an incomplete document and it contains no mention of the pension allowed to that petitioner. Thus the pleadings and Exhibits available keeps the court in the dark as to the exact pension amount allowed to the first petitioner. As regards the 2nd petitioner also there is no plea regarding the pension allowed, but Ext.P2 shows that the monthly pension allowed is Rs.1,698/- and the reduced monthly pension itself is Rs.1,528/-. Thus the original petition does not contain any plea with regard to the precise amount claimed as admissible to either of the petitioners. As regards the 2nd petitioner also there is no plea regarding the pension allowed, but Ext.P2 shows that the monthly pension allowed is Rs.1,698/- and the reduced monthly pension itself is Rs.1,528/-. Thus the original petition does not contain any plea with regard to the precise amount claimed as admissible to either of the petitioners. The available dissatisfied with the amounts arrived at based on para 12(5) and they want para 12 (1) and 12 (2) to be applied instead. 3. The learned Standing counsel for the respondents Mr. Gopakumaran Nair submitted that since the Scheme of 1995 substituted the earlier Scheme of 1971 separate provisions are available in the new scheme with regard to the persons who have joined service after 16/11/1995 and with regard to the persons who were already serving as on the said date. According to him para 12 (5) alone applies to the petitioners herein and the pension allowed to them is based on correct calculation. What arises for consideration, in the circumstances, is whether the petitioners are entitled to have a recalculation of pension applying paras 12 (1) and 12 (2). 4. Paras 12 (1), 12 (2) and 12 (4) of the scheme reads as follows 12. Monthly Member’s Pension :- (1) A member shall be entitled to- a) superannuation pension, if he has rendered eligible service of 20 years or more and retires on attaining the age of 58 years; b) retirement pension, if he has rendered eligible service of 20 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years; c) short service pension, if he has rendered eligible service of 10 years or more but less than 20 years. (2) In the case of a new entrant the amount of monthly superannuation pension or retiring pension, as the case may be, shall be computed in accordance with the following factors, namely; Monthly member’s pension = Pensionable salary x Pensionable service --------------------------------------- 70 (* * *) 14 (3). Xxxxxxxxxx (4). (2) In the case of a new entrant the amount of monthly superannuation pension or retiring pension, as the case may be, shall be computed in accordance with the following factors, namely; Monthly member’s pension = Pensionable salary x Pensionable service --------------------------------------- 70 (* * *) 14 (3). Xxxxxxxxxx (4). In the case of employee (who was a member of the ceased Family Pension Scheme, 1971) and has attained the age of 48 years but less than 53 years on the 16th November, 1995, the superannuation/retirement 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 benefit as provided in sub-paragraph (3) subject to a minimum of Rs.600 per month provided the past service is 24 years. Provided further that if it is less than 24 years the pension payable and the past service benefits taken together shall be proportionately less subject to the minimum of Rs.325 per month. 4. The present petitioners, admittedly put in only less than 20 years of total service as at the time of retirement and hence they do not come under sub-clauses (a) and (b) of para-12 of the Scheme, 1995. There is a controversy between the parties with regard to the scope of the word ‘new entrant’ used in para-12(2). According to the petitioners, that only means that the existing employees like the petitioners would be treated as new entrants to the Scheme with effect from 16/11/1995, whereas according to the respondents, it would apply only to persons who joined the scheme after 16/111995. The petitiner’s contention in this regard has to fail because ‘existing members” is defined in Para 2 (VI) of the Scheme and the ‘new entrants,’ obviously are those not coming within the purview of the definition of ‘existing member’. The petitioners, admittedly were existing members as in 16.11.1995 when the new scheme came into force in so far as they were members of EPF Scheme of 1971. New entrants are those who do not fall under the discription ‘existing members’. The petitioners, admittedly were existing members as in 16.11.1995 when the new scheme came into force in so far as they were members of EPF Scheme of 1971. New entrants are those who do not fall under the discription ‘existing members’. This is clear from a perusal of para 9 of the scheme also which provides that in the case of new entrant actual service alone shall be treated as eligible service for fixing pension whereas with regard to existing members the aggregate of actual service and past service shall be treated as eligible service. Under para 2 (ii) actual service is only from 16.11.1995 in contra distinction to pensionable service defined in para 2 (xv) which would taken in the entire period of service for which EPF contribution were received or receivable. The petitioners who have made EPF subscriptions under the erstwhile scheme of 1971 are not ‘new entrants’ and hence para 12 (2) cannot apply to them. 5. Para 12(3) applies to existing employees ; but that covers only persons who had not attained the age of 53 years on 16/11/1995. Admittedly, the 1st petitioner does not come in the above category in so far as he had passed that age as on the relevant date. 6. Para 12(4) applies to persons who were aged between 48 and 53 as on 16.11.1995. It would appear that the 2nd petitioner falls in this category. The first petitioner was aged 54 years as on 16.11.1995 and hence cannot be treated as one coming under Para 12(4). If so, the minimum Pension due to the 2nd petitioner in the aggregate of the pension for the service after 16.11.1995 calculated applying the formula prescribed in para 12(2) (subject to a minimum of Rs.438/-) and pension for past service applying para 12(3) which is subject to separate minimum of Rs.325/- p.m. As such the pension due to the second petitioner cannot be below Rs.438/- + 325 = 763/-; but can go up. If Ext.P2 is relied on the Pension allowed to him is much more than the minimum of Rs.763/- p.m. 7. If Ext.P2 is relied on the Pension allowed to him is much more than the minimum of Rs.763/- p.m. 7. As far as the 1st petitioner who was aged above 53 years as on 16.11.1995 is concerned, it would appear that his case would fall under para-12(5) only which provides as follows : (5) In the case of an employee who was a member of the ceased Family Pension Scheme, 1971 and who has attained the age of 53 years or more on the 16th November, 1995, the superannuation/retirement pension shall be equal to the aggregate of: (a) Pension as determined under sub-paragraph 92) for the period of service rendered from the 16th November, 1995 per month or Rs.335/- per month whichever is more; (b) past service benefits provided in sub-paragraph (3) subject to the minimum of Rs.500/- per month provided the past service is 24 years. Provided further that if it is less than 24 years the pension payable and the past service benefits shall be proportionately lesser but subject to minimum of Rs.265/- per month’. 8. Having heard both sides, I find that the 1st petitioner’s pension has to be fixed applying Para 12(5) in so far as he had passed the age of 53 years on 16.11.1995 and was still in service as on that day. He is entitled to the aggregate of the amounts mentioned in subclauses (a) and (b) of para 12 (5). It is further clear on a reading of the entire para 12 (5) that each of the two parts as in the case of Para 12 (4), contemplates separate minimum. Under clause (a) the pension for the period of service rendered after 16th November, 1995 by the 1st petitioner entitles him to get minimum pension of Rs.335/- per mensum. Under subclause (b), again, for past services, it being for less than 24 years he is entitled to get a minimum of Rs.265/- per month. What is due to the petitioners as minimum being the aggregate of these two amounts, the 1st petitioner is entitled to get atleast at Rs.600/- per month which is the aggregate of the two minimum amounts under sub clause (a) and (b). 9. The petitioners’ demand is for a still higher amount applying factor 3.292 under ‘Table B’ considering the 13 years’ past service. 9. The petitioners’ demand is for a still higher amount applying factor 3.292 under ‘Table B’ considering the 13 years’ past service. Since Ext.P1 is an incomplete document and it does not throw light on the manner of calculation or for that matter, even the precise amount of Pension allowed and since the Respondents also have failed to place before court relevant documents it appears necessary that the matter is considered afresh bearing in mind the relevant legal principles mentioned above. As regards Ext. P2 also the manner of calculation is not clear. Accordingly, the matter is remitted to the 4th Respondent with a direction to give further opportunity to the petitioners to be heard in support of their contentions regarding calculation of pension and to pass revised orders giving the manner of calculation within a period of two months from the date of receipt of the copy of this judgment by him. If the existing pension is found justified, reasons for rejecting the petitioner’s contention shall be stated in the prospective order. In the meantime status quo as regards the pension payable shall remain in force. It is made clear that there is no merit in the contention of the petitioners that the pension amount should be higher than the last monthly subscription paid because that stand is unsupported by any provision of law or judicial precedent, and as the pension has to come out of a fund wherein the petitioners had been paying very small amounts as subscription during earlier periods.