FA.No.462/2009 against  C.C.No.32/2008, District Forum-I, EAST GODAVARI AT KAKINADA

Between:

1. The Employees’ Provident Fund Enforcement Officer,

     Employees’ Provident Fund Organization,

     Opp:Apollo Samudra Hospital,

     Main Road, Kakinda.

2. The Asst.Commissioner (Pension)

     Employees’ Provident Fund Organization

     Sub Regional Office, Sri Lakshmi Golden Plaza,

    Danawaipeta, Rajahmundry.

    Both rep. by its Asst.P.F.Commissioner,

    Mr.N.Kishore Kumar.                                                                    .Appellants/

Opp.parties 1 & 2

And

1. Pulugu Nookamma,

    W/o.late Appa Rao, aged about 55 years,

    Housewife, R/o.# 11-2-77, Veera Raghavapuram,

   Samalkota, East Godavari District.                                             Respondent/

                                                                                                            Complainant

2. Manam Durga Prasad, S/o.Kurma Rao

   Aged about 60 years, Managing Partner

   Sri Vigneswara Talkies, Samalkota,

   East Godavari District.                                                                  Respondent/ 

 Opp.party No.3.

Counsel for the Appellants:              :  Mr.K.Raghuram Reddy.

Counsel for the Respondents.                        Admission stage.

QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

SMT.M.SHREESHA, MEMBER.

            AND

                        SRI K.SATYANAND, MEMBER.

TUESDAY, THE NINTH DAY OF JUNE,

TWO THOUSAND NINE

ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Hon'ble Member.)

                                                                                                                                                                                                                        ***

            This is an appeal filed by opposite parties 1 and 2 who are officers in the hierarchy representing Employees’ Provident Fund Organisation, assailing the order of the District Forum.  Having heard the learned counsel for the appellants in detail and having perused the record, we are of the view that  the matter could be disposed of at the stage of admission itself.

        The facts of the case are briefly as follows:

        The complainant is the widow of a deceased workman by name, late Appa Rao, who appeared to have retired from service on 28-2-2004.  He was duly admitted to the benefits of Employees’ Provident Fund Scheme and Pension Scheme on the strength of various statutory forms including the declaration by the employer, opposite party No.3, certifying  his date of birth as being 1-7-1946 in form 10-D.  He died on 7-10-2006.  Subsequently his widow, the complainant herein, made an application claiming family pension and it was being continued for her quite for some time.  Subsequently opposite party No.3, the erstwhile employer of late Appa Rao turned round and sent a complaint to the E.P.F. Authorities stating that the said Appa Rao was aged 60 years even by the time he was appointed in the year 1971.  This appears to have incited the suspicion of opposite parties  1 and 2 and they swiftly embarked upon an enquiry associated with stern action against the widow including stoppage of payment etc.  Aggrieved by the said action taken by opposite parties 1 and 2 virtually at the behest of opposite party No.3 who changed versions to her detriment in as much as  and as the complainant’s rights came to be threatened by opposite parties 1 and 2 signifying deficiency in service, the complainant filed the present complaint for various reliefs including the continuation of payment of family pension and other benefits.

        Opposite parties resisted the complaint evenwhile admitting that they had paid pension not only to the deceased Appa Rao but also to the complainant on the basis of documents among which the certification by the employer, opposite party No.3, was critical to  confirming the date of birth of late Appa Rao as 1-7-1946.  They also admitted that they continued to pay pension till his death and also for  some time to the complainant as his widow.  But soon on coming to know otherwise from opposite party No.3 as per Ex.A10, they had to stop the disbursement of the benefits to the complainant as they were constrained to launch an enquiry in the whole issue including taking steps under the criminal law against the employer for giving wrong information to the public authorities as also under the special provisions of EPF etc.  They tried to justify withholding of payment to the complainant solely relying upon the information given by the employer, who himself was instrumental in making opposite parties believe and act upon the version of the pensioner’s date of birth being 1-7-1946.

        In support of her case, the complainant relied upon documents, Exs.A1 to A14.  On the other hand the opposite parties relied upon Exs.B1 to B21. 

        On a consideration of the evidence tendered by both sides, the District Forum came to the conclusion that the steps contemplated by opposite parties 1 and 2 calculated to deprive the complainant of her pension were untenable and liable to be quashed and accordingly granted the relief sought for by the complainant even while dismissing the complaint against opposite party No.3, whose role was at the root of this whole dispute.

        Aggrieved by the said order, opposite parties 1 and 2 filed this complaint reiterating the ground that the District Forum ought to have dismissed the complaint as it was well within their power to reopen the whole issue on the basis of the information given by the employer which according to them was contrary to the earlier version of the self same employer.  They generally questioned the jurisdiction of the District Forum.

        The point for consideration is whether there are any good grounds to interfere with the order of the District Forum?

          This is clearly a case in which the appellants seek to roll back their own orders that were passed mainly on the strength of the date of birth initially given by opposite party No.3 and again on the information given by the self same opposite party No.3 to the contrary.  This is rather dancing to the tunes of opposite party No.3, employer which is clearly antithetical to the rule of law as no result could be achieved that would effect the rights of the parties on the basis of information given by a person, who is unreliable  on their showing.  It is rather impossible at this stage to judge as to which of the two versions given by the employer is correct unless both the versions are subjected to a judicial scrutiny in an appropriate forum or by way of a trial against opposite party No.3, for which action appears to have been already initiated by the appellants as could be seen from Ex.B17, that is notice under Section 14(1) of EPF & MP Act, 1952 Read with Para 76(b) of Employees’ Provident Fund Scheme dated 5-2-2008.  This contradictory information given by the employer was responsible for delivering an adverse impact on the rights of the complainant in the hands of the appellants.  So it is but just and proper for the appellants to wait till the proceedings against the employer/opposite party no.3 culminated in a decision or in some finality. Till such time, the appellants have no jurisdiction to unsettle the rights of the complainant and the rights of her deceased husband that too when the deceased husband who alone could have edified the issue to a certain extent is no more.  But the action proposed by the appellants is rather hasty and unwarranted.  As a matter of fact, the counter affidavit by the appellants made everything clear and they did not mince words in admitting the letter of opposite party No.3 marked as Ex.B10 and the so called letter of appointment of late Appa Rao marked as Ex.B11 as being the source material for them to make an attempt to meddle with the rights of the complainant.  It is not forth coming from the record as to what was the source of Ex.B11 a copy as also to what had happened to the original of that Ex.B11 which is a most important document to unsettle the issue already settled long back during the life time of the deceased workman.  It is an admitted case of the appellants that both Exs.B10 and B11 were produced only by the employer, opposite party No.3.  It is therefore very heavily upon the employer to prove the genuineness of Ex.B11.  Apart from that a most important point of law is over looked by the appellants.  Even according to the appellants, the right of late Appa Rao and also his wife the present complainant have been well-settled and finalized creating vested rights in both of them.  Now this exercise, they embarked upon, intends to deprive them of those rights.  If such is the case, it is incumbent upon the appellants to show the provision of law under which they are entitled to reopen the whole matter.  In the absence of any provision of law, their meddling with the vested rights is strictly opposed not only to Rule of law but also the Constitutional guarantee of protection of law besides the principles of natural justice.  The appellants made a vain bid to rely upon para 26-B of the Employees’ Provident Fund Scheme 1952 which is totally  irrelevant for the obvious reason that it does not provide for any power of review or revision meant to be exercised against an employee/Member posthumously.  They have driven themselves into a very awkward situation wherein they wanted to deprive the rights that vested in a deceased person making it impossible to comply with the principles of natural justice of which notice to the effected party is essential in as much as the person whose rights were sought to be meddled with is no more.  By extension of this very same logic their endeavor to adversely effect the rights of the widow is equally untenable in law for the reason that she could not be saddled with any liability of providing proof of the date of birth of her husband.  The certificate of non-availability of registration of birth of the deceased Appa Rao was not available by the appellants for the reason that his birth was not registered and on the other hand it clearly shows how difficult it was for a widow to prove the birth of her husband.  Instead of reinforcing their efforts to track down the real culprit, the appellants took to the course of punishing the innocent giving a go bye to the basic tenets of justice as estopped and the rule against approbation and reprobation.

In these circumstances, we are firmly of the opinion that there are absolutely no merits in this appeal and accordingly this appeal is dismissed with costs in a sum of Rs.2,000/- payable to the complainant/respondent No.1.  Appellants are granted six weeks time from the date of receipt of this order to comply with the order of the District Forum.

                                                                            PRESIDENT

                                                                             MEMBER.                                                                     

                                                                             MEMBER

                                                                         Dated 09-6.2009