B. Narayana Kulal,

S/o. Late Gangayya Mulia @ Gangadhara,

Aged about 60 years,

R/A. Kuthar Padav,

Subash Nagar Post Munnur,

Mangalore. …….. COMPLAINANT



(Advocate: Sri.Naveen Banninthaya P.R.)



VERSUS



The Assistant Provident Fund Commissioner,

Office of the Employee’s Provident Fund

Organization,

Sub-Regional Office,

Bhavishya Nidhi Bhavan,

P.B. No.572, Silva Road,

Highlands, Mangalore -2. ……. OPPOSITE PARTY



1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

The Complainant submits that, he is a member of Provident Fund and his Account No.KN-MNG-2300/49. It is submitted that, the Complainant’s correct date of birth as per the transfer certificate issued by the Head Master, Government Higher Primary School is 6.4.1948 and the NSSN form is also 6.4.1948 issued by the Opposite Party. It is submitted that due to inadvertence and lack of education, he has stated his date of birth as 1.10.1955 in the scheme certificate and other relevant document pertaining to the provident fund. The Opposite Party is aware about the same and the Complainant has wrote several letters to the Opposite Party with regard to the correct date of birth and to grant the benefit of pension to the Complainant. That the Complainant has given application to pay pension and other benefits as per his correct date of birth but the Opposite Party refused vide endorsement dated 19.02.2007. Thereafter the Complainant sent a registered notice dated 3.4.2007 calling upon the Opposite Party to pay pension and other benefits but the Opposite Parties neither complied the demand nor replied the same. Hence the service rendered by the Opposite Party amounts to deficiency and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay pension amount and all other benefits to the Complainant as per the correct date of birth i.e., 6.4.1948 and to pay compensation of Rs.1,00,000/- and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD.

Opposite Party appeared through their counsel filed version admitted that the Complainant is a member of Provident Fund and his account number is KN-MNG-2300 but it is denied that the correct date of birth of the Complainant as per transfer certificate is 6.4.1948. It is submitted that the age of the Complainant at the time of joining the service was given by his employer as 35 years as on 1.10.1990. Further the Complainant himself submitted his age as 35 years in the statutory declaration and nomination prescribed under the Employees Provident Fund Scheme 1952 and the same was signed by him and attested by the employer. The revised nomination form was received by this Opposite Party on 17.2.1998 and the year of birth given as 1956 but later after receiving the scheme certificate the Complainant disputed the age stating that his date of birth 6.4.1948 and the same was rejected as it was found that there was no sufficient ground for the change and submitted that the pension was sanctioned vide payment order 78480 and contended that there is no deficiency in service and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Party has committed deficiency in service?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?



(iii) What order?



4. In support of the complaint, Sri.B.Narayana Kulal (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Sri.Poornachandra Gupta (RW1), Assistant Provident Fund Commissioner of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.
Reasons



5. Point No. (i) to (iii):

In the present case, the Opposite Party admitted that the Complainant is a member of provident fund and his account Number is KN-MNG-2300/49.

Now the point in dispute is with regard to the date of birth. The Opposite Party admitted that the date of birth of the Complainant as per NSSN form acknowledgement slip is 6.4.1948 but it is contended that Complainant at the time of joining the service was given to his employer as 35 years as on 1.10.1990 and it is stated that the Complainant himself has submitted his age as 35 years in the statutory declaration and nomination prescribed under the Employees Provident Fund Scheme which has signed by him. And further it is contended that the Complainant had submitted revised nomination form, wherein also he has stated his year of birth as 1956, after receiving the claim certificate the Complainant disputed the age which is not correct and they contended that he was 35 years old during 1990-91 and his pension in form No.10D was processed and eligible pension was sanctioned vide payment order No.78480.

That the Complainant in the instant case, specifically contended that the correct date of birth of the Complainant as per the transfer certificate issued by the Government Higher Primary School (i.e., Ex C1) is 6.4.1948 and as per the NSSN form acknowledgement slip issued by the Opposite Party is also 6.4.1948 (i.e., Ex C2). Due to lack of education and inadvertence, his date of birth is wrongly mentioned in the scheme certificate and other relevant documents. The Complainant has given the application before the Opposite Party to rectify the date of birth but the Opposite Party refused to consider the same.

In order to prove the case of the Complainant, the Complainant produced Ex C1 to C10 before this Hon'ble Forum. Ex C1 is the original transfer certificate issued by the Government Higher Primary School, Mangalore and Ex C2 is the original NSSN form acknowledgement slip issued by the Opposite Party and Ex C3 i.e., a letter dated 19.12.2006 issued by the Complainant to the Opposite Party.

The above three documents clearly reveals that the correct date of birth of the Complainant is 6.4.1948 and even in the original NSSN form acknowledgement slip issued by the Opposite Party dated 3.11.2003. That the Opposite Party admitted that the Complainant’s date of birth is 6.4.1948. The Ex C3 is the letter issued by the Complainant dated 19.12.2006 reveals that the above said letter was made by the Complainant to the Opposite Party stating that there was a clerical error in form No.2 submitted in the beginning by the Complainant requested to correct the date of birth given by him earlier which was not correct.

From the above documents, it is proved that the Complainant is a member of provident fund and his account number is KN -MNG-2300/49 and his correct date of birth as per the transfer certificate issued by the Government Higher Primary School, Mangalore is 6.4.1948 and not 1.10.1955. And further it is proved that while joining the pension scheme, the Complainant mentioned his date of birth as 1.10.1955 instead of 6.4.1948. According to the Complainant, due to inadvertence and lack of education, it was wrongly informed in the scheme certificate and other relevant documents pertaining to Provident Fund Account.

It is important to see that, the Ex C8 is the circular issued by the Employees’ Provident Fund Organization, Ministry of Labour, Government of India dated 12.12.2006 and also 27.7.2007. As per the circular, the record of the employer does not support the date of birth as claimed by the member but employer has considered the date of birth in his records for providing all benefits to the member including preliminary benefits. The date of birth as per employer record will be considered for pensionery benefits even if the date of birth is differently recorded in office record. And further it is clear that the request for change of date of birth is supported by documentary evidence as per annexure-1 accepted. And further it has been clear that the list of documents is only illustrative and not exhaustive and in normal circumstances no age proof of member is insisted and date of birth already available in Form No.9 (R)/Form No.2(R) is relied upon unless there is a dispute. And further under the said circular it has stated that date of birth as contained in Form No.9 submitted by the employer under Para 20 of the EPS – 1995 after the EPS – 1995 had come in to force should be accepted even if it is at variance with the earlier Form 9 under Para 36(1) of EPF 1952.

In the present case, the circular issued by the additional Central Provident Fund Commission is made us clear that the request for change of date of birth can be preferred any time when the wrong date of birth comes to the notice of employee/employer and further the pensionery scheme is not necessarily based on date of birth at the time of exist. The request for change of date of birth can be entertained by the Opposite Party at any time. Similarly in the present case, the Complainant made correspondences before the Opposite Party with regard to the change of date of birth. As per Ex C1 his correct date of birth is 6.4.1948 and not 1.10.1955. However, after he came to know the change of date of birth he had made correspondences to the Opposite Party but the Opposite Party failed to consider his genuine claim amounts to deficiency in service.

In view of the aforesaid discussions, we hold that the Opposite Party is hereby directed to pay the pension amount and all other benefits pertaining to the Complainant as per the correct date of birth i.e., 6.4.1948 and not 1.10.1955. And further we direct the Opposite Party to pay Rs.2,000/- to the Complainant as compensation for the inconvenience and Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.


6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party is hereby directed to pay the pension amount and all other benefits to the Complainant as per the correct date of birth i.e., 6.4.1948 and further Rs.2,000/- as compensation and Rs.1,000/- as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.

COMPLAINANT:

Sri. Singaraju, S/o. Nateshan,

Aged about 50 years,

Opposite to Ganesha Temple,

Indavara Post,

CHIKMAGALUR TALUK.






V/s



OPPONENT:

The Asst. Provident Fund Commissioner,

Sub Regional Office, Yashoram -

Chambers, Rathnagiri Road,

CHIKMAGALUR.





- ::: O R D E R ::: -



1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponent for the deficiency of service in not settling the Provident Fund Amount with the direction to award Rs.50,000/- as compensation along with other benefits as detailed in the complaint.

2. The gist of the complaint in nutshell and the averments are as below:

The complainant has alleged that he has been enrolled as a member to the Provident Fund and working since 1982 under the employer by name M/s Sanehadlu Estate, Hirekolale Post, Chikmagalur District and paying the contribution towards the Provident Fund regularly vide his account No.590:306. He has further alleged that he has left the job in the year 2005 and after quitting the service requested the above opponent to pay the dues accumulated in the above said account. On furnishing the relevant documents to the opponent, the opponent has paid Rs.10,000/- and Rs.21,693/- on 14.07.2005 and on 15.02.2006 respectively.


The opponent has paid very meager amount inspite of rendering about 23 years of service. Consequently, the opponent addressed a letter on 14.06.2007 to the employer of the estate with the request to send the details of the complainant in Form No.3A towards the contribution made. But no satisfactory reply has been received inspite of number of requests and hence the opponent has rendered deficiency of service. Hence is the complaint.

3. After the service of the notice, the opponent has appeared through their counsel and submitted their version, wherein they have admitted regarding the enrolment of the complainant to the Provident Fund since 01.08.1995. They have further contended that the complainant has resigned from the post on 31.07.2005 and an amount of Rs.22,129/- has been settled towards Provident Fund on 10.02.2006 and also the complainant availed an advance of Rs.10,200/- on 11.07.2005 for the purpose of his daughter’s marriage, thus a total amount of Rs.32,329/- was paid to the complainant. He has further contended that a P.F. amount will be paid basing on the remittances made by the employer and the employer has not submitted Form No.3A (Contribution Card) for the period from March 2005 to July 2005 and the P.F. amount for the above period alone could not be paid.


As the complainant has joined the scheme with effect from 01.08.1985 and contributed upto 31.07.2005, at the time of membership his age was 26 years and at the time of living his age was 46 years and hence he is entitled to get a scheme certificate and pensionary benefits are payable only on attaining the age of 50 years and the member is out of employment. Further, he has contended that the employer on request made, has now filed Form No.3A for the year 2005-06, wherein the member Sri Singaraju had contributed for P.F. for one month only i.e., April 2005 and an amount of Rs.36+6=42 is due to be paid to the member along with interest, if the member submits an application with details of bank account number along with Form No.10C with non-contributory details for issue of scheme certificate.


It is further stated that since the required amount has already been paid in full to the member, only a smallest amount is pending to be paid besides the issue of scheme certificate, which would confirm him the right to pension on attaining the age of 58 years or for reduced pension on attaining the age of 50 years and being the out of employment. As such there is no due to be paid and not rendered any deficiency of service. Therefore, the opponent requested the Forum to dismiss the case.

4. The complainant has filed his affidavit evidence as PW.1 and sworn before this Forum and produced the documents, which have been marked as Exs.P1 to P4.

5. The opponent has also filed affidavit evidence as RW.1 and sworn before this Forum and produced the documents, which have been marked as Exs.R1 to R3.

6. Heard the arguments on behalf of both the parties.

7. In the proceedings, the following points do arise for our consideration and decision:



i) Whether there is any deficiency in service on the part of the opponents?

ii) Whether the complainant establishes her claim alleging deficiency of service?

iii) What Order?

8. Our findings on the above points are as follows:-



i) Point No.1: Yes.



ii) Point No.2: Yes.



iii) Point No.3: See the operative portion of

the order.



- ::: R E A S O N S ::: -

9. Point No.1(a): There is no dispute with regard to the enrolment of the complainant to the Provident Fund. The main grouse of the complaint is that inspite of serving for more than 23 years, the opponent has paid a meager sum and not repaid the entire eligible amount, whereas the opponent has taken the contention that as per the records maintained by him eligible amount was paid in full. Now the point for our consideration is as to whether the complainant is right in his approach or the opponent, which are to be determined basing on the records submitted by both the parties.

(b) In support of the claim of the complainant, he has submitted couple of documents, which have been taken on record and also considered the deposition statement. The complainant has admitted in dock box that he is contributing since the date of his employment and he has joined the employment in the year 1982, whereas the detailed scrutiny of the documents submitted by the opponent, which has been taken on record and marked as Ex.R1 will illustrate the true fact that the complainant has joined the Employees’ Provident Fund Scheme on 01.08.1985 with date of birth is 18.04.1961 and resigned from the said post on 31.07.2005. In view of the above observation we hold that the complainant has started contributing to the Provident Fund only with effect from 01.08.1985.

(c) The complainant has issued a legal notice to the opponent on 17.09.2008, which has been taken on record and marked as Ex.P1 will discloses the fact that he has made a prompt request to the opponent to repay the amount that has been accumulated in his account No.590/306. We have noticed from the reply to the legal notice submitted by the opponent on 29.09.2008, which is marked as Ex.P3, wherein the opponent has categorically stated that issuance of scheme certificate to the complainant is pending for want of non-contributory provident fund. Therefore, the opponent has sent a letter on 14.06.2007 to the employer under whom the complainant has worked, which is marked as Ex.P4. It is pertinent to note that the reply sent to the complainant, which has no relevance with that of the request made by the complainant and we are of the opinion that the opponent has conveyed an evasive reply to the complainant instead of settling the dues.


The complainant has never approached in the aforesaid notice demanding for issuance of scheme certificate but he has requested to settle the dues. Instead of settling the claim, the opponent has twisted the request of the complainant and conveyed information, which is nothing to do with the request of the complainant as a result the opponent has committed a culpa-lata (gross negligence) in not settling the eligible amount to the complainant, which has been considered by us that the opponent is deficient in rendering service.

(d) The advocate representing the opponent has submitted A fortiori (strong argument) that the complainant has not earned his wages for the period from March 2005 to July 2005 and therefore, the opponent has contended that only a small amount of Rs.42/- is in due to be paid to the complainant along with interest. The document, which has been taken on record and marked as Ex.R2 will disclose the true factum that the employer has submitted a detail in Form No.3A Revised wherein it is noticed that the complainant is due to get Rs.42/- for the month of May 2005.


If we make a comprehensive observation, we will arrive at a conclusion that the opponent has played with the accounts of innocent labour and not initiated any action against the employer as per the provisions 4 and 5 of the Act vested with him and the opponent has observed silence for a long period. Therefore, we cannot believe the above argument on the grounds that there is no iota of truth in their contention and arguments and therefore, the above argument made by the opponent do not hold water.

(e) As per the requisitory norms after completion of ledger entry the opponent has to obtain the signature of the complainant to confirm the correctness of the postings every year. The RW.1 in his cross examination in the dock box has also admitted the above procedure but virtually the opponent has failed to follow the procedure and not produced any document to this effect before the Forum. Had the opponent has followed the procedure then and there the problem of non-settling the claim would not have been arisen at all. We cannot subscribe to the above vehement argument that there is no amount is due to the complainant in the absence of any documents to establish their claim.

12. Point No.2(a): The advocate representing the opponent has relied upon couple of documents submitted by them, which are marked as Exs.R1 to R4, wherein he has submitted extract of the ledger accounts maintained in Form No.21A in respect of the complainant for the kind perusal of the Forum, which are marked as Ex.R3. Inter alia, the opponent has further submitted the details of the contribution made by the complainant in his account No.590/306 in Form No.3A sent by the employer of the complainant for the period from 1992 to 2005 instead of 1985 to 2005 to show that the opponent has made prompt settlement, which are not marked. After careful scrutiny of the above documents, we found that the opponent has maintained two ledgers showing variation in amount towards contribution and other details for the same complainant. We quote all the details submitted by the opponent as well as employer as under for comparative study.



The Extract of the Ledger maintained in Form No.21A







The details of contribution submitted by Employer in Form No.3A

Ledger

No.







Ledger

No.

04651


85-86


210


-


-


-

“


86-87


564


-


-


-

“


87-88


978


-


-


-

“


88-89


1482


-


-


-

“


89-90


2142


-


-


-

“


90-91


2924


-


-


-

0407004341


91-92


3616


-


-


-

“


92-93


4704


-


-


4593-16

“


93-94


5870


040700152


6468


5,594-30

“


94-95


6574


“


8202


6,376-69

“


95-96


7362


“


10091


6962-66

“


96-97


8666


“


12048


8,542-46

“


97-98


10752


“


14540


8,880-00

“


98-99


12297


“


17243


7,840-00

“


99-00


14951


“


20595


10,456-00

“


00-01


17768


“


24047


9,360-00

0407004342


01-02


20584


“


27460


9,308-00

“


02-03


23603


“


30069


8,736-00

“


03-04


26947


0407001953


32925


Not visible

“


04-05


30662


“


32925


9,464-00

“


05-06


10200


“


10200*

Withdrawal


-

If we ponder over on the above statement, we will come to know that the opponent has deliberately played a game on the innocent labour and maintained an account in a haphazard manner and the less amount has been credited towards the share of the employer, which clearly indicates the callous approach and the negligent attitude shown towards the complainant and concealed the true fact before the Forum. It may be recalled here that when the opponent has accepted that the complainant has started contributing to the Provident Fund with effect from 01.08.1985, why the employer has submitted the details in Form No.3A from the year 1992 to 2005. What has happened to the details from 1985 to 1991, for which the opponent is silent on this issue.


The Forum has taken the above dispute with the opponent and quizzed him to substantiate the reason for maintaining two ledgers in the same office for the same person for the same year showing discrepancies for which the advocate for opponent has vehemently argued and submitted written arguments contending that the records pertaining to Chikmagalur District were maintained at Regional Office, Bangalore till May 1999 and during June 1999, the records for the same were shifted to Regional Office, Mangalore and during September 2002 the Sub-Regional Office has been opened at Chikmagalur and the records pertaining to Chikmagalur District have been shifted to Chikmagalur.


It is very interesting to observe here that no doubt we concur with the above view of the opponent in transferring the documents from one office to another office, but the entries maintained in the records and the statistics pertaining to the complainant shown in the concerned ledgers will not be changed at all and will remain the same as they were before. It is certainly a laughable submission and the recalcitrant attitude towards the complainant shown is nothing but an act of escaping from the liability on unfounded reasons and the same cannot be subscribed by us. From the above observation, it is very crystal clear that the opponent has concealed the material fact before the Forum and has failed to justify their action in maintaining in duplicate ledgers showing discrepancies in the accounts, which has been viewed by us very seriously of the above complainant.


We also observed that number of columns in the ledger are left vacant and not filled in properly. In view of the above observation, it is a fit case to be investigated by the High Ranking Officer of the opponent, so as to know the truth and if this is done the similar set of cases maintained by the opponent in respect of thousands of members will emerge on the scene for awarding justice to the innocent workers. What we have observed in the instant case is only a drop of water in the ocean and therefore it needs thorough enquiry, otherwise, this is a fit case to be looked into by independent investigation agencies.

(b) If we glean the information from the documents submitted by the opponent, which has been taken on record and marked as Ex.R1 will certainly revealed the fact that the complainant has joined the scheme with effect from 01.08.1985 and left the scheme with effect from 31.07.2005, whereas the document marked as Ex.R3 will disclose the fact that the opponent has opened the account of the complainant in one ledger from the year 1985 onwards, while the 2nd ledger contain the entries from the year 1993 onwards.


When the complainant has joined the scheme as early as 1985 what made the opponent to maintain the account ledger in form No.21A commencing only for the period from 1993 onwards in the 2nd ledger and therefore, we hold that the entries in both the registers do not tally with each other and what has happened to the entries from 1985 to 1992. As per the provision of Para No.5 of the Employees’ Pension Scheme 1995 the opponent is vested with the powers of recovery of damages from the employer for default in payment of any contribution by imposing penalty as per the table mentioned therein. We have observed in the instant case on hand, the opponent has not exercised his plenary powers vested with him on the employer calling him to submit the relevant information in Form No.3A and Form No.10 right from the year of joining of the complainant i.e., from 01.08.1985. The opponent has failed to establish the fact that they have made any correspondence with the employer of the complainant for default in payment and not enclosed any piece of evidence in this regard to establish their case.


Only after addressing so many letters by the complainant to the opponent, the opponent has come out from his great slumber and opened his eyes and addressed a letter very casually to the employer only on 14.06.2007, which is marked as Ex.P4. From the above, it is very clear that the opponent has not taken timely action in settling the claim and made the complainant to suffer, for which we record our opinion that the opponent is personally responsible and has rendered deficiency in service.

(c) The opponent is supposed to issue 19. Scheme Certificate as per (para 12(8) & 14), the intention of the provision is that where an employee exits before his 58 years age and thereby is not eligible for the maximum possible pensionary benefit, in the present, but is desirous to avail of the better and enhance benefit in future – either by increasing his EPS-membership through future service, or by getting older in age later on-such employee, if he so wishes, could in present, obtain a Certificate from the PF Office regarding his present entitlement under the Scheme, and on its basis, avail his benefit later at appropriate time.

It is pertaining to observe here that the opponent has addressed to the employer only one letter, which is explained above in para (b), which is marked as Ex.P4, wherein the opponent has failed to exercise their powers on the employer as envisaged in the Act, calling for the details of non-contributory period in days in which wages were not earned and contribution not paid towards the pension fund for which we hold that the opponent is personally liable in not collecting the required information from the employer in Form No.3A, for which the complainant in no way is at fault. If the opponent had collected the information in Form No.10 very frequently as required by law, this problem would not have been arisen at all. Therefore, the opponent is compelled to issue Scheme Certificate to the complainant forthwith.

(d) It may be recalled here that after hearing both the parties, the dispute was posted for orders on 09.07.2009. While scrutinizing the claim of the complainant, we have observed certain lacunas in the ledger card maintained by the opponent and we sought further more information from him and finally on 28.07.2009 the opponent has filed a memo along with a cheque of Rs.12,741/- to be paid to the complainant, which is much against to the version filed and argument submitted by the advocate of the opponent earlier, wherein they have contended that the opponent is due to be paid only Rs.42/- on the condition that the complainant should submit certain information.


It is worthwhile to mention here that the opponent has failed to settle the claim of the complainant and slept over the matter for a number of years and after the receipt of the court notice and also objection raised by the Forum, the opponent has opened his eyes. Had it been set right or communicated the correct position immediately on receipt of the complaint, the complainant would not have taken the pain of knocking the door steps and kneeling before the Forum for seeking justice.


Therefore, we are of the opinion that the act of misfeasance and malfeasance like inordinate delay, non-responding to the timely requests failure to update the accounts abusing and violations of the provisions of Employees’ Pension Scheme 1995 will suffice to hold that they have rendered deficiency in service coupled with unfair trade practice and deliberately ignored the bonafide request of the complainant. The scheme formulated by the Government is a social legislation and the Employees’ Pension Scheme 1995 is considered as a security organization and the opponent should show the paramount interest in uplifting the downtrodden and unprivileged class by settling their legitimate claim in time and not supplant the interest of the labour.

(e) The advocate representing the opponent has raised his banner of argument and submitted that the Form No.10 will be submitted only at the time of quitting the service, which is incorrect submission. As per the provisions of the scheme, the return is to be submitted every month, as an annexure to monthly return in Form No.12A.


In it are mentioned names of outgoing P.F. Members – i.e., those whose name had gone off from the establishment’s roll in the previous month. For example, if employee, “P” left service in May, his name will be reported in Form 10 for the month of June. If in any month none has left service, Form 10 marked as Nil return, is to be submitted. In the instant case on hand, the complainant has left the service on 31.07.2005 and also non-contributory period for which the opponent has failed to submit the concerned form and the same ought to have been submitted by the employer, which has not been placed on record before the Forum for adjudicating the case.


Be that as it may, when the non contributory period was noticed by the opponent, while posting the wages in the ledger, the action should have been initiated on the employer for which the opponent is surely held responsible in not taking the correct steps to update the ledgers and records for which in our opinion the opponent is deficient in rendering prompt service as required under law. The complainant is not borne with a silver spoon and after all that too he is a low paid employee and his rightful claim has to be settled in time. Due to the official apathy and scanty attitude shown has resulted in scathing effect and the complainant is now like a fish out of water due to negligent attitude of the opponent.

(f) It is pertinent to observe that the complainant has not impleaded the employer in the present complaint and therefore, he will become a non-joinder to this dispute and hence the Forum cannot pass any orders against him in his absence without affording him an opportunity and getting his version filed before this Forum for adjudicating the case. Therefore, no relief can be awarded against the employer at this juncture of time.

13. Point No.3: In view of the thread bare discussions recorded in the forgoing paragraphs, the complainant is entitled to get suitable relief like issuance of Scheme Certificate, recasting the entire ledger account maintained by the opponent right from 01.08.1985 to 31.07.2005 and accrued arrears to be paid along with the interest at 9% P.A. He is also further entitled to get compensation of Rs.10,000/- out of which Rs.5,000/- to be remitted to the Consumer Legal Aid Account of this Forum for the welfare of the consumers and Rs.1,000/- as litigation expenditure. Accordingly, we adjudicate the case in favour of the complainant.

14. As discussed above, we inclined to pass the following order:

- :::O R D E R::: -

1. The complaint filed by the complainant is partly allowed.

2. The opponent is hereby directed to issue Scheme Certificate as per the provisions of the Employees’ Pension Scheme, 1995 to the complainant forthwith.

3. The opponent is hereby further directed to recast the entire ledger account for the period from 01.08.1985 to 31.07.2005 and accrued arrears to be paid along with interest @ 9% P.A. within a period of three months.

4. The opponent is also directed to pay a compensation of Rs.5,000/- towards the deficiency of service in not rendering prompt service and denying the rightful claim of the complainant and causing mental agony and sufferings along with court costs of Rs.1,000/- towards the litigation expenses to the complainant.

5. The opponent shall also remit a sum of Rs.5,000/- to the Consumer Legal Aid Account of this Forum for the welfare of the consumers.

6. The above order shall comply within one month from the date of this order (except the operative order No.3, which is given for three months time), failing which the awarded amount shall carry interest @ 9% P.A. from the date of default till realisation.

7. Send the copies of this order to the parties.

Kuldeep Raj Sood son of Shri Sri Ram, resident of House No.1454, Street No.5, Guru Nanak Colony-A, Canal Road, Near Gill Canal Bridge, Ludhiana.

(Complainant)

Vs.



1. Employees’ Provident Fund Organization, Sub Regional Office, Bhabhishya Nidhi Bhawan, Sham Nagar, Ludhiana -1410001 through its Regional Commissioner.



2. M/s Expo Industries (Regd.) India, C-201, Mayapuri, Industrial Area, Phase-II, New Delhi-110027, through its Managing Partner.

(Opposite parties)






O R D E R




1. When complainant worked with M/s Expo Industries Ludhiana (OP No.2), he was allotted by opposite party no.1 Provident Fund Account No. PN/3128/14. The complainant subsequently left service of opposite party no.2. Subsequently, firm of opposite party no.2 also shifted its business to Delhi. Complainant applied for withdrawal of provident fund on prescribed form no.19, received by opposite party no.1 vide receipt no.3128/14. But heard nothing, nor received fund amount till 10.11.1989. Then complaint on 27.9.1989 was lodged with opposite party no.1 and his case was disposed as not traceable, because factory closed since 1973-74. Opposite party no.1 thereafter wrote letter dated 1.12.1989 to Provident Fund Inspector Ludhiana for verification of form no.19 and 10-B of the complainant.


Thereafter opposite party no.1 wrote letter dated 14.2.1990 to opposite party no.2 directing to submit form no.3-A and 6A for the year 1973-74 and 1974-75 qua the complainant who had left the service of opposite party no.2 on 24.3.1974 and worked with them from 24.11.1971 to 24.3.1974. He then awaited for settlement of provident fund account till 4.11.1990 and qua it wrote letter dated 5.11.1990. But opposite party no.1 received no response from opposite party no.2 despite reminder dated 18.12.1990. Ultimately on 24.2.1997, complainant wrote letter to Regional Commissioner, Provident Fund, Ludhiana making a complaint qua non collection of contribution from opposite party no.2, though service charges were collected by opposite party no.1 through opposite party no.2 who used to deduct the provident fund contribution from wages of the complainant.


This complaint of the complainant was taken by opposite party no.1 to Lok Adalat where direction was passed for transferring the amount of provident fund qua establishment of opposite party to his present establishment of Hero Cycles Limited, Ludhiana having code no.196. Subsequently on 24.2.1999 opposite party no.1 intimated the complainant that a sum of Rs.3063/- had already been transferred on 1.4.1998 to the account of the complainant being maintained with Hero Cycles Ltd, but it was not full and final amount of his contribution to provident fund. Hence, took up the matter vide letter dated 10.3.1999 with opposite party no.1 for transfer of remaining amount of his contribution for the year 1972-73 and repeatedly took up the matter and also wrote letter dated 27.9.2005. Then contacted opposite party no.1 vide letter dated 21.12.2005, 24.3.2006.


Then vide letter dated 1.5.2006 intimated that Rs.3063/- have been transferred to his new account number PN196/1444 and that the establishment seems to be closed in 1973-74 and the record is not easily available. Complainant then vide his letter dated 31.12.2007 supplied to opposite party no.1, documents available with him. He claimed that since last 33 years is running from pillar to post qua his contribution of 1973-74 and 1974-75 but to no effect and the same has not been released inspite of service of legal notice dated 8.8.2008. Such act on the part of opposite party is claimed deficiency in service and by filing the present complaint under section 12 of the Consumer Protection Act, 1986, the complainant has sought compensation of Rs.20,000/- and Rs.11,000/- as litigation costs.

2. Opposite party no.1 initially put in appearance to contest the complaint but subsequently allowed itself to be proceeded against ex-parte. Opposite party no.2 from the inception is being proceeded ex-parte.

3. In ex-parte evidence, complainant tendered his own affidavit Ex.CW1/A as well as many documents in support of his case.

4. We have heard the arguments addressed by the ld. counsel for the complainant and have gone through the file and scanned the documents and other material on the record.

5. In this ex-parte evidence, we need not refer to all the letters brought on record by the complainant. We consequently would confined to relevant letters having nexus with the controversial matter.

6. Ex.C.1 is letter dated 11.11.1989 of opposite party no.1 to the complainant stating that case is not traceable as the factory closed in 1973-74. Opposite party no.1 sent letter dated 14.2.1990 Ex.C.5 to opposite party no.2 employer of the complainant. It was conveyed that the complainant worked in their establishment from 24.11.1971 till 24.3.1974 but his contribution of provident fund of 1972-73 has not been paid by them and required them to pay the same to settle the claim of the complainant. Then vide letter Ex.C.6 dated 19.4.1990 and Ex.C.8 dated 18.12.1990 opposite party no.1 reiterated their plea of the letter Ex.C5. When nothing happened, complainant addressed letter Ex.C.7 dated 5.11.1990 to Commissioner, Employees Provident Fund, Ludhiana.


Then he took up the matter with the Regional Commissioner, Employees Provident Fund, by writing letter Ex.C.9 dated 26.2.1997. He even took his case to Lok Adalat as apparent from order Ex.C.10. Vide letter Ex.C.13 dated 10.3.1999, complainant conveyed to the Commissioner, Employees Provident Fund that his deposit for the year 1972-73 is Rs.286.25p as per three receipts. Along therewith he submitted statement of account issued by Regional Provident Fund Commissioner, qua his account no. PN3128/14 showing closing balance of Rs.286.25p.

7. Therefore, it is proved that a sum of Rs.286.25p in the year 1972-73 was realized from the complainant and the same has not yet been released in his favour. For this petty amount, complainant had to suffer a long, forcing him to take up the matter repeatedly and time and again with the opposite party no.1. Though he had proved that this amount of Rs.286.25p was realized as employees provident fund contribution from him in the year 1972-73. Consequently, opposite party no.1 should have paid that amount to the complainant with statutory simple interest @12%per annum but they failed to do so. Such inaction on their part consequently would amount to deficiency in service on the part of opposite party no.1.

8. Therefore, on account of aforesaid deficiency of opposite party no.1, we allow this complaint and resultantly order them to pay Rs.286.25p to the complainant along with interest @12% per annum from 1.4.1973 till payment and for causing harassment for 33 years by not releasing the amount despite his repeated requests and issuance of letters, they are ordered to pay compensation of Rs.3000/-(Rs. Three Thousands only) and litigation cost of Rs.1000/-(Rs. One Thousand only). Compliance of the order be made within 45 days of the receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

B. Ramulu S/o Pentaiah, Aged about 50 years,

Occ: Retired Al-Kabeer Employee,

R/o Byathol (V), Sangareddy Mandal,

Dist. Medak.



….. Complainant



And



1. The Commissioner,

Regional Provident Fund Office,

Barkathpura, Hyderabad.



2. The Asst. Commissioner,

Sub-Regional Office,

Employees Provident Funds Organization,

Susheeram Complex, Mail Road,

Patancheru Town & Mandal,

District Medak.

….Opposite parties





O R D E R


This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct the opposite parties to pay Rs.53,987/- with interest at 18% p.a. and to award Rs.50,000/ for deficiency in service.



The averments in the complaint in brief are as follows:

1. The complainant worked as skilled labour in Al-Kaber Exports Limited, Rudraram village, Patancheru Mandal. During that period he has contributed amounts towards provident fund which was deducted from his salary every month. Employer also contributed equal amount. The opposite party No. 2 allotted P.F. No. AP 261/39/429. on 04.02.2006 the complainant applied for withdrawal of amount but till the filing of the complaint he has not received the provident fund amount. On 27.09.2000 the opposite parties sent a letter to the complainant stating that his claim was settled and a cheque was sent to him but the complainant has not received the cheque and the same was informed to the opposite party Nos. 1 and 2. There is neither reply nor they have arranged for payment of the PF amount.


The complainant is badly in need of money. He has visited the offices of opposite party Nos. 1 and 2 number of times for his claim amount but in vair so having no alternative, the complainant issued a legal notice to both the opposite parties who have received it on 07.04.2007 for which there is neither any reply nor compliance. From the year 2000 the complainant has been waiting for the provident fund amount. The opposite parties intentionally not setting the claim an it amounts to deficiency in service, therefore they are bound to settle the claim of the complainant. Hence the complaint.



2. The claim is resisted by the opposite parties by filing a counter of opposite party No. 2, on behalf of both the opposite parties. The contents of the counter in brief are as follows:



3. The provident fund account number of the complainant mentioned in the complaint is not correct. The correct Number is AP/26139/429. It is false that on 04.02.2006 the complainant submitted EPF withdrawal application form. As per the office records provident fund application form –19 of the complainant has been received on 21.12.1999 and the claim was settled on 29.09.1999 for a sum of Rs.526/ and the same has been sent to him through postal money order to his H.No. 1-13/27, Post: Chiadurpa, Village: byathol, Mandal Sangareddy, by opposite party No. 1 vide office payment item No. 2174/5100 and which was included in the cheque No. 721680, dated. 13.01.2000 along with other members’ amounts and the said cheque was sent to post master, Kachiguda, Hyderabad. In this case cheque Number and date does not arise as claimed by the complainant. The cheque was issued in the name of post master which comprises the amounts in respect of number of other claimants also who have opted for refund of their PF money through M.O. and the complainant hearin was one among them. The legal notice of the complainant was received several years after settlement of his EPF account, which as no effect has it is null and void.



4. It is pertinent to note that the complainant worked as labourer in M/s AlKabeer Exports Limited, Rudraram for a period of five months only from 01.04.1997 to 31.08.1997 with a meager wage of RS.690/- per month (approximately) and the employees contribution to EPF was at 10% of the total wage which works out to Rs.69/- per month hence the complainant’s claim for Rs.53,978/- is baseless and absurd . The complainant’s allegation that he has visited the offices of opposite parties No. 1 and 2 several times is not true. He never approached the competent authorities for redressal of his grievance / doubt. The complainant is misleading this forum and further wasting its precious time and that of the opposite parties with ulterior motive. The complaint may therefore be dismissed with costs, as the claim of the complainant has already been settled and the amount was also sent through money order.



5. To prove the respective contentions in the pleadings of both parties, evidence affidavits are filed. Even though complainant’s advocate filed six documents along with the complaint and another document subsequently, none of them is marked an Exhibit, inspite of granting several adjournments for the purpose. Ex.B1 to B6 are marked on behalf of the opposite parties. Written arguments are not filed on behalf of the complainant. On behalf of the opposite parties written arguments are filed. Oral arguments are not advanced on either side. After affording due opportunity by granting nine adjournments from 09.04.2009 to 21.07.2009 it was deemed that there were no arguments on either side to advance. Perused the record.



6. The point for consideration is whether the complainant is entitled for the amounts claimed in the complaint?

Point:

The complainant’s case is that he worked as labourer in AlKabeer Exports Limited, Rudraram and during that period he has contributed to provident fund and equal amount was contributed by employer also and opposite party No. 2 has allotted PF. No. Ap26139/429 and when the complainant applied for withdrawal of the amount the opposite parties have not paid. It is his further case that on 27.09.2000 the opposite parties sent a letter to him stating that his claim was settled and cheque was issued to him, but he has not received any cheque. According to the complainant when he got a legal notice issued there is no response from the opposite parties and his going round the offices of the opposite parties, number of times proved futile; hence the complaint to direct the opposite parties to pay Rs.53,987/- with interest at 18% p.a. from the date of issue of intimation and to award Rs.50,000/- for deficiency in service.


The opposite parties admitted that the complainant was a member in the provident fund scheme when he worked in M/s AlKabeer Exports Limited for a period of five months only from 01.04.1997 to 31.08.1997 with a meager wage of Rs.690/- per month and the employee’s contribution to EPF was 10% on the total wage which works out to Rs.69/- per month, hence he was entitled to receive Rs.526/- and the same was sent through postal money order to his residential address which amount was included in the consolidated cheque payable to all employees who applied for refund of their amounts. According to the opposite parties the application for refund of the amount was received by their office on 21.12.1999 but not on 04.02.2006 as stated in the complaint and it was settled on 21.12.1999 for a sum of Rs.526/-. According to the opposite parties the complainant’s claim for Rs.53987/- is baseless and absurd.



7. As already stated above even though the complainant has filed various documents along with the complaint and another document subsequently, to prove his contentions, he has not marked any of them as exhibits to consider his case. However Xerox copies of all of them are marked on behalf of the opposite parties as exhibits B1 to B5. Ex. B1, which is also filed by the complainant as first document, shows that it is claim form for refund of the amount of the complainant and it contains the receive date stamp in the office of opposite party No. 1 on 21.12.1999 as stated by the opposite parties in their counter. Ex. B6 marked on behalf of the opposite parties shows the amount payable to the complainant is Rs.526/- and cheque bearing No.. 721680, dated. 13.01.2000 was sent for a total amount of Rs. 56584/- payable to various employees, including the complainant.



8. Even though nine adjournments were granted, the complainant or his advocate not turned up to prosecute the matter from 09.04.2009 to 21.07.2009. Therefore in the circumstances stated supra the claim of the complainant does not sustain and there are no merits for the complainant to succeed in the case. In the circumstances, because the claim is made in a matter which is already settled, the complaint must be mulcted with costs. But as the complainant is a labourer and not educated, it appears he was not properly advised therefore a lenient view is being taken in this regard. It is therefore held that the complainant is not entitled to any relief much less for the amounts claimed in the complaint. The point is answered against the complainant.



9. In the result the complaint is dismissed. No costs.

E. V. Rajan
...........Appellant(s)

Vs.

The State of Kerala

The Ex . Officio President

The Secretary

The Regional Provident Fund Commissioner
...........Respondent(s)




ORDER





The case of complainant is that the complainant has been an employee of 3rd respondent since 8th March 1985. The disbursing officer when it comes to payment of salary, D.A. and other benefits to the employees is the Secretary, Priyadarsini Transport. The complainant has been the receipts issued by the Secretary. Being an employee and also being a member of the scheduled caste, it never struck to the complainant that they must be kept in tact. The complainant could ascertain that they never regular in the upkeep of records particularly in the collection of Employees Provident Fund.


The 4th respondent is duty bound to inform the arrear and current position of any employee whose name and address find a place in the registers kept by him. The Employee Contributory Provident Fund is the only thing upon which the complainant could reasonably depend in his old age. The post of an employee is not a pensionery post and no gratuity is also allowed. The respondents failed in their duties to discharge their legal obligation. Hence this complaint.

2. The counter of respondents-1 and 2 is as follows. As per the Board decision dated 19.4.2000 the complainant who was a conductor under the society was suspended from work with effect from 22.4.2000. He has not submitted proper explanation to the show cause notice issued to him. Subsequently he was instructed to appear before the R.D.O. for a personal enquiry, but he was not turned up. The Provident Fund contribution of all employees including the complainant up to 30.6.99 was remitted.


Subsequently due to sudden hike in the diesel price, tax and spare parts and also due to strikes of the employees the activities became stand still for a period of 14.5.2001 to 3.9.2003 and due to financial stringency the contribution could not be remitted. The Provident Fund contribution of complainant was remitted till 30.6.99. He abstained from any work with effect from 26.11.2000. Hence dismiss the complaint.

3. The averments in the counter of 3rd respondent contained the same as in the counter of respondents-1 and 2.

4. The counter of 4th respondent is that the Society is fully owned and controlled by the Government of Kerala and the Revenue Divisional Officer Thrissur is the Ex. Officio President of the Society. The members of the Director Board are also Government Officials. The establishment defaulted in payment of various dues under the Act from the date of coverage itself and this respondent and his subordinate officers have initiated all possible measures to secure compliance from the establishment. Even after all possible efforts taken by this respondent, the 3rd respondent remitted the statutory dues only up to 1988-99. Annual statement of account in respect of the individual members have been completed only up to 1998-99 since the establishment has defaulted the EPF dues for further period.


Though the establishment has defaulted and is still in default, this respondent is not in a position to launch all out coercive action against the establishment. In the present case the complainant has joined the scheme on 31.8.1993 with EPF account No.KR/13717/13. Based on the amount of contribution remitted by the 3rd respondent the complainant has got an amount of Rs.28,549/- as on 1.4.2003. Hence dismiss the complaint.

5. The points for consideration are:
(1) Is the complaint maintainable?
(2) Is there any deficiency in service?

6. The evidence consists of Exts. P1 to P8.

7. The points: The complaint is filed to get a direction against the respondents-1 to 3 to make contribution to the Employees Contributory Provident Fund current and complete. According to the complainant, he was an employee in the Priyadarsini Transport Ayyanthole since 8.3.1985. The disbursing officer when it comes to payment of salary, D.A. and other benefits to the employees is the 3rd respondent.


Some receipts were issued by the 3rd respondent. According to the complainant, the respondents were never regular in the upkeep of records particularly in the collection of Employees Provident Fund from the employees and the 4th respondent is duty bound to inform from time to time to the respondents1 to 3 the arrears and current position of any employee. He states that owing to the omission and commission of the respondents he has been in the wilderness.

8. In the counter the respondents-1 to 3 stated that the complainant who was a conductor under the society was suspended from work with effect from 22.4.2000 for misappropriation of funds and indecent behaviour to superiors and he has not even submitted proper explanation to the show cause notice issued. He also abstained from personal appearance before R.D.O. According to them, the Provident Fund Contribution of all employees including the complainant up to 30.6.99 was remitted and the complainant abstained from work with effect from 26.11.2000.

9. In the counter 4th respondent stated that the establishment defaulted in payment of various dues under the Act from the date of coverage itself and this respondent and his subordinate officers have initiated all possible measures to secure compliance from the establishment. Even after all possible efforts taken by this respondent, the 3rd respondent remitted the statutory dues only up to 1988-99. Though the establishment has defaulted and is still in default, this respondent is not in a position to launch any coercive action.


So the 4th respondent is admitted inefficient functioning of the 4th respondent. Before discussing the deficiency in service the first question to be decided is the maintainability of the complaint before the Forum. The reliefs sought by the complainant is giving direction to the respondents-1 to 3 to make the contribution to the Employees Contributory Provident Fund current and complete and also to address the respondents as the total amounts remitted by the respondents and the accumulated amount that could be reasonably expected by the complainant.


Thus the dispute is with regard to collection of Employees Provident Fund and maintenance of the accounts. In the counter the respondent did not challenge the maintainability of the complaint. But according to them, this is not a complaint contemplated under Section 2(1)( c) of the Consumer Protection Act. The scope of complaint elaborately discussed in the Section. There is no unfair trade practice or restrictive trade practice alleged to be adopted by the respondents.


There is no question of rendering service at all. Collection of Employees Provident Fund and maintenance of accounts are not services expected to be done by the respondents. Those are statutory duties cast upon the respondents and they bound to do it. If the complainant finds anything to challenge the remedy is not Consumer Forum. There is no consumer relationship and there is no availing of any service for consideration. So without going into the merits of the case we are inclined to dismiss the complaint only on this ground.

19. In the result, complaint is dismissed.

COMPLAINANT:

Smt. Hamsa,

W/o Sri. Singaraju,

Aged about 45 years,

Opposite to Ganesha Temple,

Indavara Post,

CHIKMAGALUR TALUK.


V/s

OPPONENT:

The Asst. Provident Fund Commissioner,

Sub Regional Office, Yashoram -

Chambers, Rathnagiri Road,

CHIKMAGALUR.






- ::: O R D E R ::: -



1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponent for the deficiency of service in not settling the Provident Fund Amount with the direction to award Rs.50,000/- as compensation along with other benefits as detailed in the complaint.

2. The gist of the complaint in nutshell and the averments are as below:

The complainant has alleged that she has been enrolled as a member to the Provident Fund and working since 1982 under the employer by name M/s Sanehadlu Estate, Hirekolale Post, Chikmagalur District and paying the contribution towards the Provident Fund regularly vide his account No.590:309. She has further alleged that she has left the job in the year 2005 and after quitting the service requested the above opponent to pay the dues accumulated in the above said account.


On furnishing the relevant documents to the opponent, the opponent has paid Rs.10,200/- and Rs.22,129/- on 14.07.2005 and on 15.02.2006 respectively. The opponent has paid very meager amount inspite of rendering about 23 years of service. Consequently, the opponent addressed a letter on 14.06.2007 to the employer of the estate with the request to send the details of the complainant in Form No.3A towards the contribution made. But no satisfactory reply has been received inspite of number of requests and hence the opponent has rendered deficiency of service. Hence is the complaint.

3. After the service of the notice, the opponent has appeared through their counsel and submitted their version, wherein they have admitted regarding the enrolment of the complainant to the Provident Fund since 01.08.1995. They have further contended that the complainant has resigned from the post on 31.07.2005 and an amount of Rs.21,693/- has been settled towards Provident Fund on 10.02.2006 and also the complainant availed an advance of Rs.10,000/- on 11.07.2005 for the purpose of his daughter’s marriage, thus a total amount of Rs.31,693/- was paid to the complainant. He has further contended that a P.F. amount will be paid basing on the remittances made by the employer and the employer has not submitted Form No.3A (Contribution Card) for the period from March 2005 to July 2005 and the P.F. amount for the above period alone could not be paid. As the complainant has joined the scheme with effect from 01.08.1985 and contributed upto 31.07.2005, at the time of membership her age was 18 years and at the time of living her age was 38 years and hence she is entitled to get a scheme certificate and pensionary benefits are payable only on attaining the age of 50 years and the member is out of employment.


Further, he has contended that the employer on request made, has now filed Form No.3A for the year 2005-06, wherein the member Smt. Hamsa had contributed for P.F. for one month only i.e., April 2005 and an amount of Rs.10+2=12 is due to be paid to the member along with interest, if the member submits an application with details of bank account number along with Form No.10C with non-contributory details for issue of scheme certificate. It is further stated that since the required amount has already been paid in full to the member, only a smallest amount is pending to be paid besides the issue of scheme certificate, which would confirm her right to pension on attaining the age of 58 years or for reduced pension on attaining the age of 50 years and being the out of employment. As such there is no due to be paid and not rendered any deficiency of service. Therefore, the opponent requested the Forum to dismiss the case.

4. The complainant has filed her affidavit evidence as PW.1 and sworn before this Forum and produced one document, which has been marked as Exs.P1.

5. The opponent has also filed affidavit evidence as RW.1 and sworn before this Forum and produced the documents, which have been marked as Exs.R1 to R3.

6. Heard the arguments on behalf of both the parties.

7. In the proceedings, the following points do arise for our consideration and decision:



i) Whether there is any deficiency in service on the part of the opponents?

ii) Whether the complainant establishes her claim alleging deficiency of service?

iii) What Order?

8. Our findings on the above points are as follows:-



i) Point No.1: Yes.



ii) Point No.2: Yes.



iii) Point No.3: See the operative portion of

the order.



- ::: R E A S O N S ::: -

9. Point No.1(a): There is no dispute with regard to the enrolment of the complainant to the Provident Fund. The main grouse of the complaint is that inspite of serving for more than 23 years, the opponent has paid a meager sum and not repaid the entire eligible amount, whereas the opponent has taken the contention that as per the records maintained by her eligible amount was paid in full. Now the point for our consideration is as to whether the complainant is right in her approach or the opponent, which are to be determined basing on the records submitted by both the parties.

(b) In support of the claim of the complainant, she has submitted one document, which has been taken on record and also considered her deposition statement. The complainant has admitted in dock box that she is contributing since the date of her employment and she has joined the employment in the year 1982, whereas the detailed scrutiny of the documents submitted by the opponent, which has been taken on record and marked as Ex.R1 will illustrate the true fact that the complainant has joined the Employees’ Provident Fund Scheme on 01.08.1985 with date of birth is 31.12.1966 and resigned from the said post on 31.07.2005. In view of the above observation we hold that the complainant has started contributing to the Provident Fund only with effect from 01.08.1985.

(c) The advocate representing the opponent has submitted A fortiori (strong argument) that the complainant has not earned her wages for the period from March 2005 to July 2005 and therefore, the opponent has contended that only a small amount of Rs.12/- is in due to be paid to the complainant along with interest. The document, which has been taken on record and marked as Ex.R2 will disclose the true factum that the employer has submitted a detail in Form No.3A Revised wherein it is noticed that the complainant is due to get Rs.12/- for the month of May 2005. If we make a comprehensive observation, we will arrive at a conclusion that the opponent has played with the accounts of innocent labour and not initiated any action against the employer as per the provisions 4 and 5 of the Act vested with him and the opponent has observed silence for a long period. Therefore, we cannot believe the above argument on the grounds that there is no iota of truth in their contention and arguments and therefore, the above argument made by the opponent do not hold water.

(e) As per the requisitory norms after completion of ledger entry the opponent has to obtain the signature of the complainant to confirm the correctness of the postings every year. The RW.1 in his cross examination in the dock box has also admitted the above procedure but virtually the opponent has failed to follow the procedure and not produced any document to this effect before the Forum. Had the opponent has followed the procedure then and there the problem of non-settling the claim would not have been arisen at all. We cannot subscribe to the above vehement argument that there is no amount is due to the complainant in the absence of any documents to establish their claim.

12. Point No.2(a): The advocate representing the opponent has relied upon couple of documents submitted by them, which are marked as Exs.R1 to R3, wherein he has submitted extract of the ledger accounts maintained in Form No.21A in respect of the complainant for the kind perusal of the Forum, which are marked as Ex.R3. Inter alia, the opponent has further submitted the details of the contribution made by the complainant in her account No.590/309 in Form No.3A sent by the employer of the complainant for the period from 1992 to 2005 instead of 1985 to 2005 to show that the opponent has made prompt settlement, which are not marked. After careful scrutiny of the above documents, we found that the opponent has maintained two ledgers showing variation in amount towards contribution and other details for the same complainant. We quote all the details submitted by the opponent as well as employer as under for comparative study.

The Extract of the Ledger maintained in Form No.21A







The details of contribution submitted by Employer in Form No.3A

Ledger

No.







Ledger

No.

0407004343


85-86


202


-


-


-

“


86-87


574


-


-


-

“


87-88


1022


-


-


-

“


88-89


1428


-


-


-

“


89-90


2064


-


-


-

“


90-91


2798


-


-


-

0407004343


91-92


3484


-


-


-

“


92-93


4492


-


-


4144=62

“


93-94


5912


0407001954


6242


5850=90

“


94-95


6622


“


8006


6732=38

“


95-96


7416


“


9919


7199=38

“


96-97


8717


“


11805


7961=94

“


97-98


10733


“


14193


8240=00

“


98-99


12301


“


16895


8160=00

“


99-00


14962


“


20210


10548=00

“


00-01


17831


“


23669


9724=00

0407004314


01-02


20646


“


20040


9256=00

“


02-03


23697


“


29608


8996=00

“


03-04


27210


“


32421


10400=00

“


04-05


30059


0407001955


32421


2132=00

“


05-06


21693


“


10000*

Withdrawal




If we ponder over on the above statement, we will come to know that the opponent has deliberately played a game on the innocent labour and maintained an account in a haphazard manner and the less amount has been credited towards the share of the employer, which clearly indicates the callous approach and the negligent attitude shown towards the complainant and concealed the true fact before the Forum. It may be recalled here that when the opponent has accepted that the complainant has started contributing to the Provident Fund with effect from 01.08.1985, why the employer has submitted the details in Form No.3A from the year 1992 to 2005. What has happened to the details from 1985 to 1992, for which the opponent is silent on this issue. The Forum has taken the above dispute with the opponent and quizzed him to substantiate the reason for maintaining two ledgers in the same office for the same person for the same year showing discrepancies for which the advocate for opponent has vehemently argued and submitted written arguments contending that the records pertaining to Chikmagalur District were maintained at Regional Office, Bangalore till May 1999 and during June 1999, the records for the same were shifted to Regional Office, Mangalore and during September 2002 the Sub-Regional Office has been opened at Chikmagalur and the records pertaining to Chikmagalur District have been shifted to Chikmagalur.


It is very interesting to observe here that no doubt we concur with the above view of the opponent in transferring the documents from one office to another office, but the entries maintained in the records and the statistics pertaining to the complainant shown in the concerned ledgers will not be changed at all and will remain the same as they were before. It is certainly a laughable submission and the recalcitrant attitude towards the complainant shown is nothing but an act of escaping from the liability on unfounded reasons and the same cannot be subscribed by us.


From the above observation, it is very crystal clear that the opponent has concealed the material fact before the Forum and has failed to justify their action in maintaining in duplicate ledgers showing discrepancies in the accounts, which has been viewed by us very seriously of the above complainant. We also observed that number of columns in the ledger are left vacant and not filled in properly. In view of the above observation, it is a fit case to be investigated by the High Ranking Officer of the opponent, so as to know the truth and if this is done the similar set of cases maintained by the opponent in respect of thousands of members will emerge on the scene for awarding justice to the innocent workers. What we have observed in the instant case is only a drop of water in the ocean and therefore it needs thorough enquiry, otherwise, this is a fit case to be looked into by independent investigation agencies.

(b) If we glean the information from the documents submitted by the opponent, which has been taken on record and marked as Ex.R1 will certainly revealed the fact that the complainant has joined the scheme with effect from 01.08.1985 and left the scheme with effect from 31.07.2005, whereas the document marked as Ex.R3 will disclose the fact that the opponent has opened the account of the complainant in one ledger from the year 1985 onwards, while the 2nd ledger contain the entries from the year 1993 onwards. When the complainant has joined the scheme as early as 1985 what made the opponent to maintain the account ledger in form No.21A commencing only for the period from 1993 onwards in the 2nd ledger and therefore, we hold that the entries in both the registers do not tally with each other and what has happened to the entries from 1985 to 1992. As per the provision of Para No.5 of the Employees’ Pension Scheme 1995 the opponent is vested with the powers of recovery of damages from the employer for default in payment of any contribution by imposing penalty as per the table mentioned therein.


We have observed in the instant case on hand, the opponent has not exercised his plenary powers vested with him on the employer calling him to submit the relevant information in Form No.3A and Form No.10 right from the year of joining of the complainant i.e., from 01.08.1985. The opponent has failed to establish the fact that they have made any correspondence with the employer of the complainant for default in payment and not enclosed any piece of evidence in this regard to establish their case. Only after addressing so many letters by the complainant to the opponent, the opponent has come out from his great slumber and opened his eyes and addressed a letter very casually to the employer only on 14.06.2007. From the above, it is very clear that the opponent has not taken timely action in settling the claim and made the complainant to suffer, for which we record our opinion that the opponent is personally responsible and has rendered deficiency in service.

(c) The opponent is supposed to issue 19. Scheme Certificate as per (para 12(8) & 14), the intention of the provision is that where an employee exits before his 58 years age and thereby is not eligible for the maximum possible pensionary benefit, in the present, but is desirous to avail of the better and enhance benefit in future – either by increasing his EPS-membership through future service, or by getting older in age later on-such employee, if he so wishes, could in present, obtain a Certificate from the PF Office regarding his present entitlement under the Scheme, and on its basis, avail his benefit later at appropriate time.

The opponent has failed to exercise their powers on the employer as envisaged in the Act, calling for the details of non-contributory period in days in which wages were not earned and contribution not paid towards the pension fund for which we hold that the opponent is personally liable in not collecting the required information from the employer in Form No.3A, for which the complainant in no way is at fault. If the opponent had collected the information in Form No.10 very frequently as required by law, this problem would not have been arisen at all. Therefore, the opponent is compelled to issue Scheme Certificate to the complainant forthwith.

(d) It may be recalled here that after hearing both the parties, the dispute was posted for orders on 09.07.2009. While scrutinizing the claim of the complainant, we have observed certain lacunas in the ledger card maintained by the opponent and we sought further more information from him and finally on 28.07.2009 the opponent has filed a memo along with a cheque of Rs.11,876/- to be paid to the complainant, which is much against to the version filed and argument submitted by the advocate of the opponent earlier, wherein they have contended that the opponent is due to be paid only Rs.12/- on the condition that the complainant should submit certain information. It is worthwhile to mention here that the opponent has failed to settle the claim of the complainant and slept over the matter for a number of years and after the receipt of the court notice and also objection raised by the Forum, the opponent has opened his eyes. Had it been set right or communicated the correct position immediately on receipt of the complaint, the complainant would not have taken the pain of knocking the door steps and kneeling before the Forum for seeking justice.


Therefore, we are of the opinion that the act of misfeasance and malfeasance like inordinate delay, non-responding to the timely requests failure to update the accounts abusing and violations of the provisions of Employees’ Pension Scheme 1995 will suffice to hold that they have rendered deficiency in service coupled with unfair trade practice and deliberately ignored the bonafide request of the complainant. The scheme formulated by the Government is a social legislation and the Employees’ Pension Scheme 1995 is considered as a security organization and the opponent should show the paramount interest in uplifting the downtrodden and unprivileged class by settling their legitimate claim in time and not supplant the interest of the labour.

(e) The advocate representing the opponent has raised his banner of argument and submitted that the Form No.10 will be submitted only at the time of quitting the service, which is incorrect submission. As per the provisions of the scheme, the return is to be submitted every month, as an annexure to monthly return in Form No.12A.


In it are mentioned names of outgoing P.F. Members – i.e., those whose name had gone off from the establishment’s roll in the previous month. For example, if employee, “P” left service in May, his name will be reported in Form 10 for the month of June. If in any month none has left service, Form 10 marked as Nil return, is to be submitted. In the instant case on hand, the complainant has left the service on 31.07.2005 and also non-contributory period for which the opponent has failed to submit the concerned form and the same ought to have been submitted by the employer, which has not been placed on record before the Forum for adjudicating the case.


Be that as it may, when the non contributory period was noticed by the opponent, while posting the wages in the ledger, the action should have been initiated on the employer for which the opponent is surely held responsible in not taking the correct steps to update the ledgers and records for which in our opinion the opponent is deficient in rendering prompt service as required under law. The complainant is not borne with a silver spoon and after all that too he is a low paid employee and his rightful claim has to be settled in time. Due to the official apathy and scanty attitude shown has resulted in scathing effect and the complainant is now like a fish out of water due to negligent attitude of the opponent.

(f) It is pertinent to observe that the complainant has not impleaded the employer in the present complaint and therefore, he will become a non-joinder to this dispute and hence the Forum cannot pass any orders against him in his absence without affording him an opportunity and getting his version filed before this Forum for adjudicating the case. Therefore, no relief can be awarded against the employer at this juncture of time.

13. Point No.3: In view of the thread bare discussions recorded in the forgoing paragraphs, the complainant is entitled to get suitable relief like issuance of Scheme Certificate, recasting the entire ledger account maintained by the opponent right from 01.08.1985 to 31.07.2005 and accrued arrears to be paid along with the interest at 9% P.A. She is also further entitled to get compensation of Rs.10,000/- out of which Rs.5,000/- to be remitted to the Consumer Legal Aid Account of this Forum for the welfare of the consumers and Rs.1,000/- as litigation expenditure. Accordingly, we adjudicate the case in favour of the complainant.

14. As discussed above, we inclined to pass the following order:

- :::O R D E R::: -

1. The complaint filed by the complainant is partly allowed.

2. The opponent is hereby directed to issue Scheme Certificate as per the provisions of the Employees’ Pension Scheme, 1995 to the complainant forthwith.

3. The opponent is hereby further directed to recast the entire ledger account for the period from 01.08.1985 to 31.07.2005 and accrued arrears to be paid along with interest @ 9% P.A. within a period of three months.

4. The opponent is also directed to pay a compensation of Rs.5,000/- towards the deficiency of service in not rendering prompt service and denying the rightful claim of the complainant and causing mental agony and sufferings along with court costs of Rs.1,000/- towards the litigation expenses to the complainant.

5. The opponent shall also remit a sum of Rs.5,000/- to the Consumer Legal Aid Account of this Forum for the welfare of the consumers.

6. The above order shall comply within one month from the date of this order (except the operative order No.3, which is given for three months time), failing which the awarded amount shall carry interest @ 9% P.A. from the date of default till realisation.

7. Send the copies of this order to the parties.

Dear Sir,
i have not recd any confermation from hr side and i had alredy send to this letter to hr.
so pls guide us - - - - -
I regret to inform you that I am resigning from my position as Location Head for the Accer Financial Advisary Services Ltd Company. My last day of employment will be oct 13.

Thank you for the support and the opportunities that you have provided me during the last several . I have enjoyed my tenure with the company and sir Kindly clear my Last 2 month Salary and including all full & Final settelment ASAP. I appreciate the opportunities I have been given at Acme and your professional guidance and support. I wish you and the company success in the future.



Sincerely,



Pawan Kumar

9899997835

Dear Sir,

With due respect I want to state that my name is Vikas Sarin and I had worked in
Company named :- ACRO PAINTS LIMITED from 2005 to 2008.

I had applied for PF refund on 12/08/2009 . My PF account details are :- DL/12797/389.

But till date my PF refund is not been credited to my HDFC Bank A/c No:-
03631050002106.

I request the concerned authorities to kindly look into the matter and do the
needfull at the earliest.

Thanks & Regards,
Vikas Sarin
PF ACCOUNT NO:DL/12797/389.
MOBILE NO:9560187888

Sir,
Name: James Charles HNO 4/1/545/1 Alampally Road Vikarabad 501101 RR Dist AP
Account Number 52128133699 @ State Bank Of Hyderabad Branch : Vikarabad Code 094, I have submitted the application to my former company Jai Balaji Security and House Keeping Services for further processing.
(b) The agency has forward to the PF Office for further scruting and the PF office Kadapa have issued to check (a) cheque no 363811 for Rs2985 and Cheque No 279316 for Rs6926/-
they have despatched to the vikarabad by speedpost on 16.10.09 but till now it has not remitted to my account nor do the PF office kadapa have the proper whereabout the cheques lying. I requested to them to understand my problems and requested to issue another cheques.
(c) I have worked for 27 month in that agency and they are paying very less amount of PF kindly look into this matter and do the needful help.

Thanks

james charles

From : James Charles
H No 4.1.545/1
alampally road
Vikarabad RR Dist AP 501101
Cell No 9989232527
Sir,

For your kind and information and necessary action.Just come to conclusion that i have not received the mentioned cheques from the PF Office kadapa they post to the concernd bank through speed post:State Bank of Hyderabad Branch Virakabad Code No 094.

Cheque No 363811 for Rs 2985/- and Cheque No 279316 for Rs 6926/- to my account No 52128133699 Name : James Charless @ State Bank of Hyderad Branch Virakabad Code No 094 on 16.10.09 and till date there is positive reply from the PF Office Kadapa.

please advise to the PF kadapa to reissue the cheques at the earliest.

Thanks and regards,

James Charles

duplicate cheques can be issued by the bank but for that consistent written follow up is required so that their higher ups could come into the picture and solve your issue

Hello
I was working for the indian branch of an american software company called Storagetek in Pune in 2005
I left the company and ame to Pune.Idid not plan to withdraw my PF for 5 years

The PF account was with the govt of India

In between the company got taken over by Sun Microsystems.The Pune office was closed down. Their head office in india is in Bangalore.
After i came to know, I tried to initriate the withdraw3l. I got the form with all my details in it, i.e. the PF account number and monthwise amount deducted

Thereafter it took some time to initate a transfer due to some other issues at my end. However the person has left. I visited the Sun microsystems office on 3rd of Feb '09 . They said they donot know who is responsible kept the form and promised to get back to me.
However no one is responding even by email

Now I have the xerox of the formwith my details in it,i.e. PF no amount for each month
Whaty can I do