DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Thursday the 27th day of October 2022
C.C. 173 / 2015
Complainant
T. O. Elias,
Thottumpuram House,
Eangapuzha,P.O. Kakkad,
Kozhikode – 9400535560.
(By Adv. Sri.K. Hemachandran)
Opposite Parties
- Regional Provident Fund Commissioner,
Bhavishyanidhi Bhavan, EPF organization,
Sub Regional Officer, P.O. Eranhipalam,
Calicut – 673006.
- The Managing Director,
Kozhikode District Co-operative
Rubber Marketing Society,
Cherooty Road, Calicut-01.
(By Adv. Sri.Z. P. Zachariah)
ORDER
By Smt. PRIYA. S - MEMBER
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
The complainant was an employee of M/s Malabar Crumb Rubber Factory from 01/11/1990 to 26/04/2011. The 1st opposite party is the Regional Provident Fund Commissioner of EPF Organisation. The 2nd opposite party is the Managing Director of Kozhikode District Co-operative Rubber Marketing Society.
3. The complainant joined the service of the society as Security Guard on 01/11/1990 and retired from service on 26/04/2011. The complainant retired from service on reaching the age of superannuation of 58 years. Proceedings were initiated for determining dues for the above said period. Assistant PF Commissioner as per the order dated 20/06/2008 directed the 2nd opposite party to deposit a total sum of Rs. 44,500/- as PF dues. Apart from this amount an arrears of Rs.11,000/- is also eligible for the complainant. Thus in total Rs.55,500/- is the PF dues payable to the complainant.
4. For claiming the arrears of PF dues to the credit of the complainant, Form No.19 application has to be the submitted duly countersigned by the 2nd opposite party. But the 2nd opposite party and other officials of the employer’s establishment declined to sign the Form. The complainant had sent Form No. 19 along with a covering letter dated 21/07/2014 informing the 1st opposite party about the reluctance of the employer to sign and forward the same to the department. Request was also made to the 1st opposite party to forward Form No.19 along with a notice to the employer directly for obtaining the signature of the employer. As per the direction of the 1st opposite party complainant was instructed to send Form No.19 attested by Gazetted Officer in lieu of obtaining the signature of the employer for getting the amount.
5. Accordingly the complainant submitted another Form No. 19 application to the 1st opposite party on 09/09/2014 duly counter signed by a Gazetted Officer. Evenafter submitting the Form No.19 application for the second time for getting the arrears of PF dues, it was not entertained by the 1st opposite party and payment effected.
6. There is wilful deficiency of service on the part of both the opposite parties in the matter of settling PF dues of the complaint resulting in great difficulties, hardship and financial loss to him. Therefore the complainant prays to pass an order directing the opposite parties to pay the arrears of PF amount due and payable to him till the date of retirement on 26/04/2011 with interest at 18% p.a. from the date of default till the date of payment; to direct the opposite parties to pay a sum of Rs.30,000/- to the complainant by way of damages for the loss and difficulties and suffering of the complainant; to direct the opposite parties to pay a sum of Rs. 10,000/- as costs of this proceedings and such other reliefs as the Forum deems fit to grant.
7. The first and the second opposite parties filed separate version.
8. According to the 1st opposite party, M/s Malabar Crumb Rubber Factory, Kozhikode is an establishment covered under EPF and MP Act with effect from 31/10/1986. The petitioner was an employee of the said establishment from 01/11/1990. A complaint dated 08/01/2007 was filed by an Advocate on behalf of the complainant stating that the complainant was enrolled in the Fund on a later date ie, with effect from 04/1994 instead of 01/1989. The Authority decided the eligibility date as 01/11/1990 and determined the amount of Rs. 44,500/- payable for the period from 01/11/1990 to 31/03/1994 and 01/05/2001 to 31/01/2006. Accordingly proceedings were issued to the Factory Manager on 25/06/2008 with a direction to remit Rs. 44,500/- within 15 days of receipt of the proceedings. Since the employer has not complied with the direction to remit the outstanding dues, the office initiated recovery action as per the provisions of EPF and MP Act, 1952 within the stipulated time to recover the dues. Aggrieved by the said order, the Employer of the establishment approached the Hon’ble High Court of Kerala in WPC No.27421 of 2008 and availed stay against all recovery proceedings. Further the Hon’ble High Court of Kerala directed the employer to approach Appellate Tribunal for further legal remedy. So the recovery action was kept in abeyance. At a later stage it was ascertained that no appeal has been filed by the employer in the Employees Provident Fund Appellate Tribunal. Since no appeal, the 1st opposite party’s office proceeded with recovery action against the 2nd opposite party, the employer. On repeated efforts, the employer remitted the outstanding dues in four instalments (Rs. 10,000/- on 13/01/2014; Rs.10,000/- on06/02/2014; Rs.10,000/- on 05/03/2014 and Rs.14,500/- on 16/04/2014). But the employer has failed to file its connected returns specifying its split up details which is inevitable for accounting the amount to the credit of the complainant. The petitioner had preferred his 1st refund application on 17/08/2011. Rs. 32,271/- was paid on 30/08/2011. Later, the complainant submitted incomplete refund application on 23/07/2014 and 05/09/2014. Counter signature of the employer is insisted in order to avoid fraudulent payment, since the officer is not keeping the specimen signature of each employee.
9. The complainant’s contention that the 1st opposite party did not take any effective steps for realisation of the dues from the 2nd opposite party is not correct. After the receipt of the complaint on 08/01/2007, immediate action to assess the outstanding dues and followup action for recovering the amount. But the matter prolonged only due to the intervention of the court. Refund application received on 17/08/2011 was attended within 10 days and credited the available amount in the complainant’s Bank Account. Refund applications received on 23/07/2014 and 05/09/2014 were attended immediately, but the payment could not be made with details of wages and other corrected returns were not submitted by the employer. Immediately on receipt of the details required for settling account of the complaint, it has been settled. The 2nd opposite party has submitted the details required for crediting the amount to the account of the complainant. As such an amount of Rs. 83,949/- has been credited to the complainant’s bank account. Hence, the 1st opposite party’s submission is that there is no deficiency of service from their side. So the Forum may be pleased to dismiss the complaint with costs.
10. The 2nd opposite party in their version says that they are not at all a necessary party. The 2nd opposite party admitted that the complaint was an employee of M/s Malabar Crumb Rubber Factory, Kuppayakode. The complainant had retired from the service on superannuation and at that time the factory was closed down and was not functioning. As far as the PF contribution of the complainant is concerned the 2nd opposite party had submitted the entire contribution pending to be paid to the EPF department. The 2nd opposite party has nothing to do with the payment of EPF benefits to the complainant after his superannuation. The complainant had submitted Form No.19 application to the 1st opposite party duly signed by a gazetted officer. The complainant has to submit the application counter signed by a gazetted officer due to the fact that the factory was under closure. It is not known to the second opposite party why there is a delay in the payment of EPF dues to the complainant even after submitting Form No.19. It is only known to the 1st opposite party. There is no negligence, latches or deficiency of service on the part of the 2nd opposite party towards the complaint. The complaint is only to be dismissed.
11. The points that arise for determination in this case are;
1) Whether there was any deficiency of service from the opposite parties, as alleged?
2) Reliefs and costs.
12. Evidence in the case consists of the oral evidence of PW1 and Exts A1 to A4 on the side of the complainant and Exts B1 to B3 and oral evidence of RW1 on the side of the opposite party.
13. Heard. Complainant filed brief argument note.
14. Point No. 1: The complainant and opposite parties 1 & 2 unanimously agree that the complainant was an employee of Malabar Crumb Rubber Factory. They also have no difference of opinion that the complainant retired from service on reaching the age of superannuation of 58 years. The dispute is with regard to the delay in getting the PF emoluments.
15. The complainant was employee of Malabar Crumb Rubber Factory which was owned and managed by the 2nd opposite party. He joined the service as Security Guard on 01/11/1990 and his Provident Fund Account No. is KR/KK/11223/104/11. The complainant retired from service on 26/04/2011.
16. While under service complainant Provident Fund contribution amount (both employer’s and employee’s share) for the period from 01/11/1990 to 31/03/1994 and from 01/05/2001 to 31/01/2006 were not paid by the 2nd opposite party employer . So proceedings were initiated for determining the dues for the aforesaid period. The Assistant PF Commissioner as per his Order No. KR/KK/11223/7A/SRO/KKD/ENF 1(4) 2008/1706 dated 20/06/2008 (Ext A1 document) directed the 2nd opposite party to deposit a total sum of Rs. 44,500/- as PF dues payable in respect of the complainant for the period of 01/11/1990 and 31/03/1994 and from 01/05/2001 to 31/01/2006. Though the 2nd opposite party is legally bound to remit the aforesaid PF arrears with interest to EPF department, the amount was not paid even after the complainant retired from service on 26/04/2011. The 1st opposite party also did not take any effective steps for realizing the dues from the 2nd opposite party by invoking the recovery power vested under EPF and MP Act. After retirement from service only the available amount standing to the complainants credit in his PF account alone was paid to him by EPF department leaving the rest of the amount to be payable on realization. In addition to Rs.44,500/- ordered for remittance as PF dues by the EPF department, there was also arrears of PF dues by the EPF department, there was also arrears of PF dues for the subsequent period immediately prior to his retirement from service amounting to Rs.11,000/-. Thus collectively Rs. 55,500/- is the PF dues to be payable along with accumulated arrears of interest to the complainant.
17. For claiming back the arrears of PF dues standing to the credit of the complainant, form No.19 application (Ext A2 and A3 document) has to be submitted duly countersigned by the 2nd opposite party. After preparing the requisite application in form No.19, when the complainant approached the 2nd opposite party for getting his countersignature in the form, the 2nd opposite party and other officials of the employer’s establishment declined to sign the form as a result, form No.19 was sent to the PF department by the complainant along with a covering letter dated on 21/07/2014 informing the 1st opposite party about the reluctance of the employer to sign and forward the same to the department. Besides request was also made to the 1st opposite party to forward form No. 19 along with a notice to the emoployer directly for obtaining the signature of the employer. But there was no positive response from the side of the 1st opposite party. Therefore the complainant made enquiries in the office of the 1st opposite party. At that time he was told to send from No.19 application attested by gazetted officer in lieu of obtaining the signature of the employer for getting the amount. Accordingly the complainant submitted another form No.19 application to the 1st opposite party on 09/09/2014 duly counter signed by a gazetted officer. Even after submitting the form No.19 application for the second time for getting the arrears of PF dues, it was not entertained by the 1st opposite party insisted for contacting the 2nd opposite party for getting the signature of the employer. It is not fair on the part of the 1st opposite party to throw the applicant of the mercy of the employer for getting his PF amount due and payable to him. It is the duty and responsibility of the 1st opposite party to collect requisite information from the employer, if any, required for settling the PF claim. PF authorities are vested with power to take coercive steps against mischievous employers who stand in the way of ensuring him for getting the PF claim of the retired employee. Instead of exercising the statutory powers vested with the 1st opposite party, they are trying to protract and prolong the settlement of PF dues of the applicant in collision with the 2nd opposite party for reasons known to them. There is wilful deficiency of service on the part of both the opposite parties in the matter of settling the PF dues of the complainant resulting in great difficulties, hardship and financial loss to the complainant.
18. After going through the testimony of PW1 on 18/04/2017 it is clear that he got the PF arrears. But while perusing the ExtB3 document the picture becomes more clear that the complainant had received the amount on 18/05/2015 only. The fact that the complainant had joined the service of 2nd opposite party on 01/11/1990 and retired on 26/04/2011. So even after retirement there is nearly 4 years and month delay in releasing the arrear PF amount to the complainant by the opposite parties. The PF arrears was remitted to the complainants account only after filing the complaint ie, after 20/03/2015. After perusing the oral and documentary evidence of this case we are of the view that there is deficiency of service from the part of the opposite parties 1 & 2. The complainant is entitled for a compensation of Rs. 10,000/- from the opposite parties . Apart from that the complainant is entitled to get Rs. 5,000/- as cost of the proceedings from the opposite parties. Point found accordingly.
19. Point No. 2: In the light of the finding on the above point the complaint is disposed of as follows:
(a) CC 173/2015 is allowed in part.
(b) The 1st and the 2nd opposite parties are directed to pay a sum
of Rs.10,000/- as compensation to the complainant.
( c) The opposite parties are directed to pay Rs. 5,000/- as costs
of the proceedings to the complainant.
(d) The order shall be complied with within 30 days of the
receipt of the copy of this order.
Pronounced in the open Commission on this the 27th day of October, 2022.
Date of Filing: 20/03/2015.
Sd/-
PRESIDENT
Sd/-
MEMBER
Sd/-
MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of order of Assistant PF Commissioner dated on
23.06.2008
Ext. A2 – Copy of Form 19 application 08.08.2011 firstly submitted by
the complainant duly counter signed by the employer
Ext. A3- Copy of Fom 19 application duly counter signed by gazetted
officer Mohanan Kuniyil Government Ganapathy Girls Higher
Secondary School, Chalappuram.
Ext. A4 – Copy of legal notice sent on behalf of the applicant dated on
27.09.2014 to the 1st and 2nd respondents along with
acknowledgement receipts.
Exhibits for the opposite parties
Ext. B1- Original of the proceedings No.
KR/KK/11223/7A/SRO/KKD/Enf1(4)/2006/1706 dated
23.06.2008
Ext. B2- Original of 8F order No. KR/KK/11223/Enf 1(04)/2008/3189
dated 25.08.2008.
Ext. B3- Original of payment cash book dated 18/05/2015(A/c No.1)
consisting of 7 pages with 84 entries including summary
sheet.
Witnesses for the Complainant
PW 1 – T. O. Elias
Witnesses for the opposite parties
RW1- Benny Thomas
Sd/-
PRESIDENT
Sd/-
MEMBER
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MEMBER
Forwarded / By Order
Sd/-
Assistant Registrar
