Chandigarh

DF-I

CC/578/2015

Gurpreet Singh - Complainant(s)

Versus

The Assistant Provident Fund Commissioner, Office of EPFO - Opp.Party(s)

In person

21 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

[1]

                               

Consumer Complaint No.	:	CC/578/2015
Date of Institution	:	28/08/2015
Date of Decision	:	21/07/2016

 

Gurpreet Singh s/o Shri Darshan Singh, Ward No.9, House No.88A, Street No.4, Barnala Road, Dhuri, Sangrur (Pb.).

…..Complainant

V E R S U S

1.     The Assistant Provident Fund Commissioner, Office of EPFO; SCO No.4 to 7, Sector 17, Chandigarh-160017.

2.     M/s Aman Security & Detective (Regd.), Aman Niwas, House No.3950, Sector 47D, Chandigarh (through Mr. J.S. Tanwar).

3.     The General Manager, M/s Food Corporation of India, SCO No.34 to 38, Sector 31A, Chandigarh

……Opposite Parties

[2]

                               

Consumer Complaint No.	:	CC/579/2015
Date of Institution	:	28/08/2015
Date of Decision	:	21/07/2016

 

Prem Singh s/o Sh. Keshar Singh, V&PO, Samundgarh/ Kandhargarh, Teh. Dhuri, Sangrur (Pb.).

…..Complainant

V E R S U S

1.     The Assistant Provident Fund Commissioner, Office of EPFO; SCO No.4 to 7, Sector 17, Chandigarh-160017.

2.     M/s Aman Security & Detective (Regd.), Aman Niwas, House No.3950, Sector 47D, Chandigarh (through Mr. J.S. Tanwar).

3.     The General Manager, M/s Food Corporation of India, SCO No.34 to 38, Sector 31A, Chandigarh.

……Opposite Parties

 

[3]

                               

Consumer Complaint No.	:	CC/580/2015
Date of Institution	:	28/08/2015
Date of Decision	:	21/07/2016

 

Sukhchain Singh s/o Shri Hari Singh V&PO Palasour, Dhuri, Sangrur (Pb.).

…..Complainant

V E R S U S

1.     The Assistant Provident Fund Commissioner, Office of EPFO; SCO No.4 to 7, Sector 17, Chandigarh-160017.

2.     M/s Aman Security & Detective (Regd.), Aman Niwas, House No.3950, Sector 47D, Chandigarh (through Mr. J.S. Tanwar).

3.     The General Manager, M/s Food Corporation of India, SCO No.34 to 38, Sector 31A, Chandigarh

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                       

                                                                       

ARGUED BY	:	Sh. M.G. Sharma, Authorised Representative of complainant
	:	Sh. Gaurav Tangri, Counsel for OP-1
	:	Sh. Abjit Singh Kang, Counsel for OP-2
	:	Sh. Anil Shukla, Counsel for OP-3

                                         

PER DR. MANJIT SINGH, PRESIDENT

1.         All the three consumer complaints captioned above have identical facts, evidence and law, as such, the same are being disposed of by this common order.
2.         The facts and evidence are being taken from Consumer Complaint No.578 of 2015-Gurpreet Singh Vs. The Assistant Provident Fund Commissioner and others.
3.         Sh. Gurpreet Singh, complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against The Assistant Provident Fund Commissioner and others, Opposite Parties (hereinafter called the OPs), for deficiency in service on the part of the OPs as they have failed to release the accumulation of the EPF of the complainant.

                As per the allegations of the complainant, he rendered contractual services from 1.7.1991 to 30.11.1997 through OP-2 and the beneficiary of the said services was OP-3 i.e. the Food Corporation of India.  On 14.3.2015, the complainant served a legal notice upon the OPs for ensuring the attestation of Form 19 and 10C, but, OP-1 failed to initiate stringent action against OPs 2 & 3 to ensure that the needful is done. It is alleged that the complainant provided services through the service provider for about 7 years and had been a member of the EPF by default and being not in the category of exempted limit of wage of the employee. As such, the complainant was entitled for the refund of the accumulations of EPF and the OPs are responsible to ensure the refund of the same, but, they failed to release the amount. It is alleged that OP-2 is covered under the statutory provisions of the EPF & MP Act, 1952 having been issued Employer Code No.12816 by EPFO and was required under the provisions of the law to receive EPF from OP-3 and further deposit the same with OP-1 towards social security of the member. It is alleged that
OP-2 collected ESIC & EPF in the bills of service charges from the principal employer OP-3 and the same as per the provisions of the Act must have been deposited with OP-1 by way of appropriate statutory challans during the period 1.7.1991 to 30.11.1997 to cover the social security of the member. It is further alleged that since the complainant has served notice dated 14.3.2015 to withdraw his lawful accumulation of EPF, as such, the matter is not hit by limitation under Section 24A of the Consumer Protection Act.  Thus, the complainant, alleging deficiency in service and unfair trade practice on the part of the OPs, has prayed for refund of his EPF accumulations for the period from 1.7.1991 to 30.11.1997 with adequate compensation etc.

4.         OP-1 resisted the claim of the complainant, inter alia, taking the preliminary objections that it has been wrongly impleaded as a party.  It has been alleged that the complainant has impleaded an officer only of the Employees Provident Fund Organization who is not the proper party for the adjudication of the dispute; that the instant complaint is barred by law of limitation as the complainant is raising the dispute of withdrawal of PF accumulations for the alleged period of service rendered with OPs 2 & 3 for the period from 1.7.1991 to 30.11.1997 and is claiming the withdrawal of financial benefits allegedly accrued to him during that period after more than 18 years; that the complaint filed through the alleged authorized representative is not maintainable.  It is pleaded that every employee enrolled as a member under the provisions of the Employees Provident Fund & MP Act, 1952 is allotted a Provident Fund Account to which the statutory contributions are credited. In the instant case, the complainant has not mentioned about his PF account number.  However, it is pleaded that on receipt of the notice dated 14.3.2015, the OP vide letter dated 27.3.2015 duly informed the complainant through his alleged authorized representative that no claim has been received by the office of the OP and the liability of the OP would arise only after the receipt of the claim.  However, the office of the OP issued a show cause notice for prosecution dated 24.9.2015 and also deputed the Area Enforcement Officer to verify the grievance of the complainant who, after visiting the establishment, collected the written statement vide letter dated 28.9.2015 from OP-2 to the effect that they have not received any withdrawal form from the Workman for verification. OP-1 thus prayed for dismissal of the complaint. 
5.         OP-2 also resisted the claim of the complainant by taking the preliminary objections that OP-2 has not provided any services or goods to the complainant for any consideration and thus the present complaint is liable to be dismissed being not maintainable.  It is alleged that OP-2 had deposited the EPF from 1.7.1991 to 30.11.1997 and even submitted the certificate issued by the Assistant Provident Fund Commissioner, Punjab and Haryana certifying the deposit of EPF.  It is further alleged that a false FIR has been registered against OP-2 and when the documents regarding deposit of EPF were submitted, the FIR was disposed of.  It also alleged that the complainant has not approached the Forum with clean hands. The complainant never approached OP-2 for attestation of the forms for withdrawal of PF accumulations.  OP-2 has never received any form sent by the complainant through registered post as stated in the complaint.  It is further alleged that the complaint is highly time barred as the same has been filed after more than 17 years of the accrual of the alleged benefit under the EPF Act to the complainant.  It is contended that OP-2 had contract OP-3 for providing security guards at the sites of OP-3 and thereby OP-2 employed many persons for carrying out the contract.  It is further contended that the record regarding the service of the complainant is not available now as under the Contract Labour (Regulation & Abolition) Act, 1970, the contractor or the employer was required to maintain the record and to preserve all the registers and other records in original for a period of three calendar years from the date of last entry therein. Thus, OP-2 also prayed for dismissal of the complaint.
6.         OP-3 also resisted the claim of the complainant alleging that OP-2 was engaged as a contractor for supply of security guards in the depots of District Sangrur from July, 1991 to October, 1997. OP-3 had made the payments of EPF and administrative charges of Rs.6,18,746/- to OP-2 for further deposit of the same with OP-1 and it was the duty of OP-2 to deposit the EPF and administrative charges @ 20% of the total amount with Provident Fund Commissioner and to submit the detailed statement mentioning the challan number and date alongwith names of individuals and acquaintance roll. It is alleged that OP-3 received complaint regarding the non-deposit of EPF by OP-2 and thus a complaint dated 18.10.1999 was made to SSP, Chandigarh. An FIR was also registered against OP-2. Even the Managing Director submitted an affidavit dated 8.3.2011 stating therein that the EPF for the period from May 1991 to November 1997 had been deposited.  OP-3 by taking similar pleas as were taken by the other OPs also prayed for dismissal of the complaint. 
7.         Rejoinder was filed by the complainants denying all the averments in the written statement of the OPs.
8.         The parties led evidence in support of their contentions. 
9.         We have gone through the record, including the written arguments, and heard the arguments addressed by the authorized representative of the complainant and learned Counsel for the OPs.
10.         The authorized representative of the complainant argued that the complainants in all the three complaints worked as security guards, being employed by OP-2, to provide services to OP-3 and OP-3 had entrusted the EPF amount to be deposited with OP-1 which was duly deposited by OP-2 with OP-1, but, OP-2 has failed to attest the form No.19 and 10C and the OP-1 has refused to return the accumulated EPF amount of the complainants. As such, there is deficiency in service on the part of the OPs and the same also amounts to unfair trade practice.  So, the OPs be directed to refund the said EPF amount of each of the complainant as the entire record is available with the OPs.
11.         The learned counsel for the OPs, on the other hand, argued that the complaints filed by the complainants are hopelessly time barred. After lapse of a period of 17-18 years, the complainants are left with no right to allege deficiency in service or unfair trade practice on the part of the OPs. They argued that no service record is available with OPs 2 & 3 and, as such, it is not possible to ascertain as to whether the complainants ever worked with the OPs and as to whether any EPF amount was deposited in their accounts?  They also argued that every employee is provided with a provident fund number, but, the complainants have failed to provide such a provident fund number and in the absence of the same, it is not possible to ascertain as to whether any EPF amount of the complainants is outstanding with OP-1 or as to whether the complainants are the same persons against whose accounts the EPF amount was deposited.  So, the complainants have no cause of action at this stage as the complaints filed by the complainants are hopelessly time barred.
12.         The complainants in their complaints have alleged that they served a notice dated 14.3.2015 to withdraw their lawful accumulations and as such the matter is not hit by limitation under Section 24A of the Consumer Protection Act. In the present case, the complaints filed by complainants are hopelessly time barred.  The dispute relates to the period 1.7.1991 to 30.11.1997. The cause of action, if any, has accrued to the complainants on 30.11.1997. The complainants could approach the OPs at least within a period of three years for withdrawal of their amount. The said limitation period is provided by the General Law. Under the Consumer Protection Act, a complaint can be brought within a period of two years, but, the complainants have a right to get the delay condoned.  In the present case, no application for condonation of delay has been filed.  Since November, 1997, the complainants did not come forward to claim their EPF amount.  They slept over the matter for more than 17 years.  In such a situation, the complaints filed by the complainants are barred by limitation.  Even the complainants have no right to get the delay condoned. 
13.         In Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, the Hon’ble Division Bench held that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention.
14.         In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors., AIR 1994 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

15.         In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, Hon’ble Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

16.         In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977 S.C. 2221, it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

17.         In the present cases, the complainants have approached the Forum after a period of more than 17 years.  There is no explanation on their part why they kept silent for so many years for their rights, if any. Since no explanation is coming forward, so the complaints filed by the complainants are hopelessly time barred and at this stage the complainants are left with no right even to allege that there is any deficiency in service on the part of the OPs.
18.         In a consumer complaint, the complainants could only succeed if they prove that there is any deficiency in service on the part of the OPs or that the OPs adopted unfair trade practice. In the present case, it is proved that OP-3 deposited the EPF of the relevant period with OP-2 and OP-2 also deposited the said amount of its employees with OP-1.  FIR was also registered on a complaint, but, nothing has come out against OP-2 to prove that they had failed to deposit the EPF amount of the relevant period from 1.7.1991 to 30.11.1997. Even in the complaints, there are no such allegations that OP-2 did not deposit the EPF amount collected from OP-3.
19.         It is pertinent to mention here that the complainants have failed to produce any authentic service record to prove that they ever worked for the period from 1.7.1991 to 30.11.1997 with OP-2 or were employed by
    OP-2.  Some photocopies have been placed on record to prove that once the complainants were employed by OP-2, but, these photocopies nowhere prove the period of their employment. Even if once the complainants were employed by OP-2, it would not prove that the employment continued from 1.7.1991 to 30.11.1997. The complainants have also placed on record some photocopies of the registers to prove their employment, but, these documents are not authentic documents and such type of documents can be created at any time.  As such, the complainants have failed to prove that they remained under employment from 1.7.1991 to 30.11.1997.  On this ground also, the complainants have no right to claim the EPF. 
20.         To get the refund of EPF/provident fund from
    OP-1, a procedure is provided. Duly filled Form 19 and 10C are to be first submitted to the employer, thereafter the employer is required to verify the same and then it is the duty of the Provident Fund Commissioner to release the provident fund amount of the particular employee. However, no such form 19 and 10C were submitted by the complainants with OP-2.  Presently no employment record of the period in question is available with OP-2.  OP-2 was not required to keep the record of employment for years together.  Rule 80(3) of the Contract Labour (Regulation & Abolition) Central Rules, 1971 reads as under :-

        “(3)   All the registers and other records shall be preserved in original for a period of three calendar years from the date of last entry therein.”

So, OPs 2 & 3 were not obliged to keep the records of their employees for 17-18 years with them. Since no employment record is available with OPs 2 & 3, so they are not in a position to admit or deny as to whether the complainants ever worked during the period from 1.7.1991 to 30.11.1997.  Except giving the period of employment, the complainants have nowhere mentioned as to what salary was paid to them and how much amount of PF was deducted from their salary or how much PF amount was paid by OP-3.  In absence of any particulars of employment, it is not possible to hold that the complainants ever worked during the period from 1.7.1991 to 30.11.1997.  No deficiency in service on the part of OPs 2 & 3 can be attributed as they were not required to keep the employment record of their employees for 17-18 years. 

21.         OP-1 is not in a position to release the EPF amount of any employee until and unless the particular provident fund number allotted to the employee is disclosed and even the period of employment is certified by the employer.  In the present case, the complainants have failed to provide their provident fund number and the authentic record of their employment. As such, OP-1 is not in a position to release the EPF amount to the complainants even if it is presumed that the said EPF amount was deposited by OP-2 against the accounts of the complainants.
22.         During the period from 1.7.1991 to 30.11.1997, OP-2 must have deposited the EPF amount of its employees. It is not possible to ascertain without the provident fund account number of the complainants as to whether any EPF amount of the complainants was deposited by OP-2 with
    OP-1. There can be many employees with OP-2 during the period of 1.7.1991 to 30.11.1997 with the same name and parentage e.g. there may be many employees with the name of Gurpeet Singh s/o Sh. Darshan Singh. So, from the record of OP-1 also it is not possible to ascertain as to whether any EPF amount in the name of the complainants was deposited with OP-1.  The complainants have failed to prove their employment with OP-2, during the period in question, by way of some authentic evidence.  No record is available with OPs 2 & 3.  As such OPs 2 & 3 are also not in a position to support the claim of the claimants.  OP-1 is also not in a position, in absence of PF account number, to ascertain as to whether any EPF amount was deposited in the name of the complainants.  As such, by any stretch of imagination or by any mode it is not possible to hold that the EPF amount of the complainants was deposited with
    OP-1. The complainant themselves remained negligent in approaching the OPs within the period of three years till when the record was to be maintained. As such, the complainants are estopped by their own act and conduct to allege that the OPs adopted unfair trade practice or that they have been deficient in services. 
23.         Taking into consideration all the facts and evidence of the case, we have no hesitation to hold that the complainants have failed to prove that the OPs adopted unfair trade practice or they remained deficient in services and the complainants have even failed to prove that their EPF amount is outstanding with OP-1. Thus, all the three consumer complaints are devoid of any merit and the same are hereby dismissed with no order as to costs.
24.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
21/07/2016	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Dr. Manjit Singh]
hg	Member	Member	President