CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Bose Augustine, President
Sri.K.N. Radhakrishnan, Member
CC No.229/11
Tuesday, the 30th day of April, 2013.
Petitioner : Cherian Zachariah,
Karunalayil Ashish Villa,
Mariappally PO,
Kottayam-686 023.
Vs.
Opposite Party : 1) Regional Provident Fund Commissioner,
Employees Provident Fund Organ.,
C.M.S. College Road, Kottayam.
2) M/s. Mangalam Publications India(P)Ltd.
S.H.Mount, Kottayam.
(Adv. M.K. Jose)
Sri.K.N. Radhakrishnan, Member
The case of the complainant is as follows. He had joined the Newspaper Establishment M/s. Mangalam Publication India (p) Limited, Kottayam on 1-1-1989 as Chief Sub-Editor. The said establishment is covered under employees Provident Fund Act and the P.F account number allotted to him was KR/5975/115. The employer has to remit PF contribution from the date of joining ie from 1-1-1989 as per EPF Scheme. But the employer M/s. Mangalam Publications did not remit the contribution of the petitioner inspite of repeated request made by him. Hence petitioner requested the 1st opposite party to conduct an enquiry under Section-7A of EPF Act read with Para-26B of EPF Scheme and recover the PF dues from the 2nd opposite party till date inspite of repeated request. The non-recovery and non-remittance of PF contribution from the date of joining is deficiency in service from the part of the 1st opposite party under the Consumer Protection Act. The 2nd opposite party has paid arrears of wages to all the employees including to the complainant on implementation of Bechawath Wage Board Award as per the Memorandum of Settlement with the Union on 25-1-1990. The arrears of wages paid to the petitioner was Rs.4800/- in 2 installments. But the employer Mangalam Publications did not remit the PF contribution on the amount of arrears of wages inspite of repeated request. The act of the 2nd opposite party amounts to deficiency in service on their part. The 2nd opposite party paying a sum of Rs. 4471/- per month towards wages with effect from 01-08-2008 as per the direction of the Hon’ble High Court of Kerala in order dtd 10-11-2008 in IA No.10730/2008. The 2nd opposite party have to remit PF contribution on the amount of his wages every month as per EPF Act and Scheme. Since the 2nd opposite party did not remit the PF contribution on his wages of Rs 4471/- from
1-8-2008, the petitioner requested the 1st opposite party to assess and recover the same under Section-7A of EPF Act. The 1st opposite party did not take any steps to recover the same and credit it to his PF A/c.No.KR/5975/115 till date. The act of the 1st opposite party also amounts to deficiency in service on their part. Hence this complaint.
The notices were served with the opposite parties. They appeared filed their version. The version of 1st opposite party is as follows. The eligibility of the petitioner can only be decided by conducting a quasi-judicial inquiry under Section 7A of EPF and Miscellaneous Provisions Act 1952. The complainant has a grievance that the 1st opposite party has not initiated the quasi-judicial inquiry despite his complaint. Initiation of a quasi-judicial inquiry is not a “service’ as defined under the Consumer Protection Act 1986. Hence the forum does not have the jurisdiction to adjudicate on the matter. Apart from that, as a matter of fact, an inquiry under Section 7A of the EPF and Miscellaneous Provisions Act, 1952 can definitely be conducted against the employer if sufficient evidences are there on record indicating evasion of payment, of any sort, by the employer. This is entirely a subjective decision beyond the scope of the Consumer Protection Act. The competent authority is expected and required to use his discretion. In any case, the complainant has not submitted any document in support of claims made by him. The 2nd opposite party has filed a writ petition bearing No.WP(C) No.19327/2008 in the Hon’ble High Court of Kerala against the decision of the Labour Court ID No.27/1996. Though certain relief was granted by the Hon’ble High Court in the IA filed by the petitioner WP(C) No.19327/2008 the court was silent whether the petitioner was eligible for any consequential benefit such as Provident Fund, Pension, Gratuity etc. to the relief allowed. The 1st opposite party will therefore, consider the matter of non recovery of Provident Fund and Pension contribution on the relief given to the petitioner subject to the decision of the Hon’ble High Court of Kerala in WP(C)No.19327/2008.
The version of the 2nd opposite party contending as follows. The complainant cannot be treated as a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. The relationship between the complainant and the 2nd opposite party was one of employer and employee and the same is outside the purview of the Act. The cause of action according to the complainant has arisen in 1989/1990. A complaint filed after over two decades is hence highly belated and hence liable to be dismissed. The 2nd opposite party had effected the necessary payments at the relevant point of time. The 1st opposite party had not initiated any action on the alleged complaints made by the complainant would go to show that there is no merit or basis in the alleged complaint as this opposite party had effect the necessary remittances at the relevant point of time. At any rate the complainant is not entitled either in law or on facts to raise the claim with respect to the alleged non-remittance of P.F. from 1989 onwards after over two decades. The complainant had been dismissed from service as early as on 8-8-1995. What is presently being paid to him pursuant to the interim order of the Hon’ble High Court of Kerala in WP(C) No. 19327 of 2008 is the amount payable under Section 17B of the Industrial Disputes Act. The 2nd opposite party is not liable to effect any contribution towards provident fund on the amount paid under Section 17B of the Industrial Disputes Act. Further more the complainant is not entitled either in law or on facts to seek payment of contribution on the amount received by him under Section 17B of the I.D.Act. There is no deficiency in service on the part of the 2nd opposite party. Hence the petition may be dismissed with costs.
The complainant filed proof affidavit and documents which are marked as Exts.A1 to A22. The opposite parties filed counter affidavit and one document which is marked as Ext.B1. The opposite parties have no oral evidence.
Heard both sides. We have gone through the complaint, version, and documents of both sides. The case of the complainant is that the 2nd opposite party has not remitted the P.F contribution to the 1st opposite part and the 1st opposite party has not take any steps regarding the P.F contribution of the petitioner even after made a complaint before the 1st opposite party. According to him the P.F. contribution was not remitted by the employer ie 2nd opposite party to the 1st opposite party ie P.F Department. The opposite parties contended that the complainant is not a consumer under the Consumer Protection Act 1986. According to them the petitioner is not entitled either in law or on facts to seek payment of contribution on the amount received by him under Section 17B of the Industrial Disputes Act. From the available documents and evidences it can be seen that what is presently being paid to the petitioner pursuant to the interim order of the Hon’ble High Court of Kerala in WP(C)No.19327/2008 is the amount payable under section 17B of the Industrial Disputes Act. Moreover from the documents it can be seen that the matter is pending before the Hon’ble High Court of Kerala. Hence we have not interfere the case of the complainant regarding the PF contribution. P.F. contribution can be decided only after the decision of the pending case before the Hon’ble High Court of Kerala. The complainant can very well submit this issue to the pending case before Hon’ble High Court of Kerala. So we are of the opinion that the case of the complainant is to be dismissed.
In the result the complaint is dismissed. Both parties will suffer their respective costs.
Sri.K.N. Radhakrishnan, Member Sd/-
Sri. Bose Augustine, President Sd/-
Appendix
Doruments of the petitioner
Ext.A1-True copy of letter dtd 6-5-1997 of Regional P.F.Commissioner
Ext.A2-Tue copy of 7A order dtd 12-10-1998
Ext.A3-Memorandum of settlement dtd 25-1-1990
Ext.A4-True copy of the order of Hon’ble High Court of Kerala dtd 10-11-2008
Ext.A5-True copy of letter dtd 2-12-2008
Ext.A6-Appointment order dtd12-12-1988
Ext.A7-True copy of the relevant pages of the Statement dtd 7-12-1996
Ext.A8-True copy of the relevant pages of the deposition of the truth dtd 7-12-02
Ext.A9-True copy of the extract of Chapter 10 para 80
Ext.A10-True copy of para 2 clause(E)
Ext.A11-True copy of the above mentioned Right to Information letter and its reply dtd
4-01-2012
Ext.A12-Four page correspondence is enclosed dtd 28-10-11,4-12-11,2-12-11
Ext.A13-True copy of extract of para 17B
Ext.A14-True copies of three cheques dtd 25-10-11, 15-11-11 and 17-12-11
Ext.A15-Right to Information letter & reply Thiruvananthapuram
Ext.A16-Right to Information letter &reply New Delhi
Ext.A17-True copy of the proceedings of the RPFC Ernakulam
Ext.A18-True copy of the order dtd 10-5-12 of Labour Court Ernakulam
Ext.A19-Deposition of oath of Mr.K.Salim, Chartered Accountant and Consultant of
Mangalam Publication
Ext.A20 –Request for action under section 14/14A of PFAct against Mr.K.Salim
Ext.A21-True copy of the Chalan and Award
Ext.A22-True copy of the order of CDRF Kottayam dtd 22/6/09
Documents of opposite paries
Ext.B1-is the copy of letter dtd 1-8-2011
By Order,
Senior Superintendent
