Sri. Singaraju, S/o. Nateshan,
Aged about 50 years,
Opposite to Ganesha Temple,
The Asst. Provident Fund Commissioner,
Sub Regional Office, Yashoram -
Chambers, Rathnagiri Road,
- ::: 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
- ::: 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
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.