Complainant : Adv. Shri. Shekdar
For Opponent : Adv. Shri. Waghchoure
***********************************************************
Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
The facts giving rise to the complaint briefly stated are as under:-
[1] It is the case of the Complainant that the Complainant was the employee of the Opponent No.2 at Pimpri, and retired from the service on 31/8/2007. Thereafter he submitted the claim forms on 4/9/2007 for final withdrawal of the contributory provident fund to the Opponent through office of the MSEDCL, Pimpri. According to the Complainant it appears that the Opponent has settled his C.P.F. claim not on the basis of his claim forms dtd.4/9/2007 but wrongly treating it as dtd.29/2/2008 thereby he got relief of withdrawal of C.P.F. on 19/11/2008. The Complainant further stated that the Opponent being the sanctioning authority is liable to pay the amount of C.P.F. in time and if not paid in time, pay delayed interest and the amount of compensation towards damages, however the Opposite Party merely settled his C.P.F. amount standing to his credit as per the C.P.F. slip dtd.15/7/2008 which he received on 15/9/2008. The Complainant also further states that he is also covered by the scheme of Employees Family Pension Scheme (E.F.P.S.). The said amount of Rs.1,00,000/- still remained unpaid to him without any cause and reasons. Therefore according to the Complainant, the Opponent has caused unreasonable and inordinate delay in violation of the principles of natural justice and also violated the provisions of Employees Provident Fund and Misc. provisions Act, 1952 and also the provisions of Employees Family Pension Scheme but not paying the C.P.F. amount to him in time and withholding the E.F.P.S. amount without any reasons and notice to him. The Complainant has approached the Opponent to settle the amount of EFPS and delayed interest alongwith compensation who failed to respond. This has resulted in gross injustice, physical and mental stress and strain to him due to no fault of his own. On all these grounds and as stated in the complaint application, the Complainant has prayed to pay Rs.2,00,000/- as compensation towards damages to the Complainant alongwith interest @ 21% p.a. on Rs.11,54,094/- from 31/8/2007 to 19/11/2008 i.e. the date of actual payment. As also to pay the amount of Employees Family Pension Scheme (EFPS) alongwith delayed interest @18% p.a. when it became due till its payment and costs of Rs.5,000/- . Therefore the Complainant has prayed that the application be kindly allowed and the Opposite Party be directed to pay the Complainant the amount as described in paras 8 (a), (b), ( c ) of the complaint. The complaint application itself is supported with the affidavit of the Complainant. Alongwith the complaint application, the Complainant has also filed documents such as, C.P.F. slip issued by the Opponent No. 1 addressed to the Complainant dtd. 15/7/2008, the letter issued by the Executive Engineer, Pimpri Division, MSEDCL, Pimpri Division to MSEDCL, Ganeshikhind City Mandal, Pune - 16 dtd. 28/9/2007, the letter issued by Ganeshkhind Shahar Mandal to Executive Engineer, MSEDCL, Pimpri Division, Pune dtd.7/11/2011, docket voucher form, posting details of CPF subscriptions CPF Schedule Supplementary etc.. On 21/5/2010, the Complainant has filed the Rules and Regulations of the Employees Pension Scheme 1995.
[2] In pursuance of the notice of appearance issued by this Forum, the Opponent No.2 has appeared through his Advocate and filed its written statement. In their written statement the Opponent No. 2 denied the complaint. According to the Opponent No.2 the complaint is not true and correct. It is also further stated that the Complainant has unnecessarily implead to the Opponent No.1 as a party and therefore the present complaint is not tenable on the ground of mis-joinder of necessary party. It is also the case of the Opponent that before filing the present complaint, the present Complainant has also filed complaint No. APDF/36/2008 before this Hon’ble Forum and this Forum has passed ex-parte judgment on 27/8/2008. Thereafter for execution of the same order, the Complainant has filed Execution Application bearing No. E/23/2008, in which the Opponent has appeared through Advocate and has also filed its say and affidavit. After hearing the contentions of both the parties, this Hon’ble Forum has disposed off the same matter on 8/6/2009. Again on the same grounds the Complainant has filed the complaint bearing No. : APDF/99/2009 which was also dismissed on 30/12/2009. In this way, the Complainant has filed the same complaint on the same grounds against the same Opponent in this Forum. It is the contention of the Opponent that the Complainant was there with the Opponent No.2 till he retired. The relation in between the Complainant and the Opponent was employer and employee. Therefore this Forum has no jurisdiction to entertain the present complaint. It is admitted by the Opponent that on 31/8/2007 the Complainant was retired from the service. It is also admitted by the Opponent that the Complainant is eligible to take benefit under the employees pension scheme. However it is denied that without the fault of the Complainant, the amount of Rs.1,00,000/- had not been paid to the Complainant. It is also denied that the Opponent had withhold the amount of the Complainant without any reason. It is further stated that on 20/10/2008 the Opponent sent letter to the Complainant alongwith the prescribed form. In this letter, the Opponent intimated to the Complainant that within (7) days the Complainant has to comply as per the letter. Thereafter the Complainant sent a form to the Opponent on 7/11/2008. But after perusal of form submitted by the Complainant, the Opponent found that the Complainant has not complied as per their requirement. Therefore the Opponent sent registered letter to the Complainant for compliance on 19/11/2008. However the Complainant has not submitted the required compliance as demanded by the Opponent till today. Therefore the negligence on the part of the Complainant is only responsible for non payment of amount by the Opponent to the Complainant.
Hence there is no deficiency in service on the part of the Opponent. Therefore the complaint is liable to be dismissed with cost. The written statement is supported with affidavit of Mr. Pramod Harishchandra More. As also the Opponent has also filed documents such as, execution application bearing No. 23/08 dtd. 24/10/2008, judgment in complaint No. APDF/99/2009 dtd. 30/12/2009, letter sent by the Opponent to the Complainant dtd. 20/10/2008, form No. 13-D alongwith annextures, letter sent by the Opponent to the Complainant dtd.19/11/2008 alongwith postal acknowledgment slip etc..
[3] In pursuance of the notice of appearance, the Opponent No. 1 has filed purshis dtd. 12/12/2011 stating therein that the written statement and the written argument filed by the Opponent No. 2 to be read as w.s. and written argument of the Opponent No.1. As also filed document i.e. authority letter and the letter issued by the Opponent No. 1 to the Opponent No.2 dtd. 8/12/2011. Therefore the written statement and the written arguments filed by the Opponent No.2 is read as w.s. and written arguments of the Opponent No.1 also.
[4] After filing of the written statement by the Opponent, the Complainant has filed rejoinder. Both the parties have filed their written notes of arguments as also advanced their oral submissions.
[5] On perusal of the entire proceedings, pleadings, documentary evidence, written and oral arguments, the following points arouse for our consideration.
Points Answers
1. Whether the Complainant is a
“consumer” of the Opponent ? … Yes.
2. Whether the Opponent has rendered
deficiency in service to the Complainant? … No.
3. What order ? … As per final order.
REASONS :-
[6] On going through the entire record it is clear that the Complainant is an employee of the Opponent No.2, which fact is also not denied by the Opponent No. 2 in their written statement. However the Opponent has stated that there is relationship between the Complainant and the Opponent as employer and employee and therefore this Forum has no jurisdiction to entertain this complaint. The ratio laid down by the Hon’ble Supreme Court in the civil appeal No. 411/1997 dtd. 14/12/1999 Regional Provident Fund Commissioner V/s. Shivkumar Joshi AIR 2000 Supreme Court 331 (1) it is clear that Employee member of Employees Provident Fund Scheme is a “Consumer” And facilities provided by Provident Fund Scheme are “Services” Consumer Protection Act is applicable in the case of the Scheme is perfectly applicable to the present case. Therefore in our opinion relying on the aforesaid judgment, the Complainant is a “consumer” of the Opponent. Hence we answer the point No.1 in the affirmative.
[7] {i} The Complainant came with the case that the Opponent should be directed to pay Rs.2,00,000/- for compensation towards damage to the Complainant, interest @21% on Rs.11,54,094/- from 31/8/2007 to 19/11/2008 i.e. the date of actual payment. As also prayed to pay the amount of Employees Family Pension Scheme (EFPS) alongwith delayed interest @18% p.a. when it became due till its payment. As against this it is the contention of the Opponent that before filing the present complaint, the present Complainant has also filed complaint No. APDF/36/2008 before this Hon’ble Forum and this Hon’ble Forum has passed ex-parte judgment on 27/8/2008. Thereafter for execution of the same order, the Complainant has filed Execution Application bearing No. E/23/2008, in which the Opponent has appeared through Advocate and has also filed its say and affidavit. After hearing the contentions of both the parties, this Hon’ble Forum has disposed off the same matter on 8/6/2009. Again on the same grounds the Complainant has filed the complaint bearing No. : APDF/99/2009 which was also dismissed on 30/12/2009. In this way, the Complainant has filed the same complaint on the same grounds against the same Opponent in this Forum. From the entire proceedings it is clear that the Complainant has suppressed all above material facts from this Hon’ble Forum. On perusal of the record it appears that the Hon’ble Forum decided the matter bearing No. APDF/99/2009 on 30/12/2009 on the ground of res-judicata. It reveals that that the present complaint is also filed by the Complainant on the same cause of action.
{ii} After perusal of the entire complaint, there is no any specific contention of the Complainant as to how the Complainant received the amount of Rs.11,54,094/- from the Opponent and at that time the reason as to why the Complainant accepted the said amount without any interest. In addition to that there is no any detail statement made by the Complainant under which particulars the Complainant received the amount of Rs.11,54,094/-. Moreover there is no any case of the Complainant that the Complainant has accepted the amount of Rs.11,54,094/- from the Opponent under protest. As also there is no any case made out by the Complainant that the amount received by the Complainant forcefully from the Opponent. On the contrary the Complainant has received the amount of Rs.11,54,094/- on 7/11/2008 in Execution petition bearing No. E/23/08 as per compromise between the Complainant and the Opponent as mentioned in the judgment dtd. 30/12/2009. The Opponent stated in their written statement that the Complainant has failed to comply as per requirement prescribed by the Opponent for the C.P.F. and therefore the Complainant himself is liable for delay for receipt of amount. In this context there is no any documentary evidence putforth by the Complainant on the record, which shows that the Complainant has complied necessarily within stipulated period as per requirement for C.P.F.. It means that the Complainant has failed to prove his complaint that the Complainant has received the amount from the Opponent on 19/11/2008 due to negligent act on the part of the Opponent. Hence we opined that there is no any deficiency in service on the part of the Opponent. Therefore the answer of the point No.2 is in negative.
[8] The Opponent has filed citations on the record in the present matter but the facts of the present case are different from the citations. Therefore not applicable to the present matter.
[9] With the aforesaid discussion, we proceed to pass the following order :-
// ORDER //
(i) The complaint stands dismissed.
(ii) No order as to costs.
(ii) Certified copies of this order be
supplied to all the parties free of
costs.
