This complaint coming up before us for hearing on                      16-03-12 in the presence of Sri.K.U.Janaki Raju, advocate for complainant and of Sri. A.Anjaneya Prasad, advocate for 1^st opposite party, 2^nd opposite party representing in person , upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed u/s 12 of Consumer Protection Act praying to direct both opposite parties for payment of Provident Fund Amount of Rs.9,05,810/- due to the complainant with interest @12% p.a. and for subsequent interest thereon  till realization and for costs.

2.   The averments of the complaint in brief are as follows:

          Complainant worked as a head cook in Vikas Mahila Residential Hostel.  One of the Organizations of M/s Vikas Educational Institutions, Guntur (OP1) from 23-12-88 to 21-05-2007.  1^st opposite party did not pay the P.F. Amount after termination of his service on                    21-05-2007. 1^stopposite party as an employer paid Provident Fund Contributions relating to the complainant.  1^st opposite party has not filed application to draw the P.F. Amount.  Without filing an application 2^nd opposite party cannot grant the P.F. Amount.  2^nd opposite party has not taken legitimate action against 1^st opposite party which amounts to deficiency of service on the part of opposite parties.  The consumer dispute/cause of action arose on 21-05-07 on which day the termination of complainant took place, and failed to pay the Provident Fund Amount.  The 2^nd opposite party shall implement the Provident fund Scheme and provide benefits of the scheme to the employees.  If the employer failed to pay the provident fund amount the 2^nd opposite party shall recover the Provident Fund amount.  The last wage of the complainant is Rs.4,400/- p.m. and it may be taken for calculating provident fund amount for the entire service of the complainant.  The employees share of provident fund is Rs.4,52,905/- while employer’s share is Rs.4,52,905/-, totaling to Rs.9,05,810/-  is due to complainant.  Hence the complaint. 

3.      1^st opposite party filed its version which is in brief is as follows:

          Most of the material allegations made in the complaint are false, incorrect, and the complaint is not maintainable.  1^st opposite party ran residential college for Intermediate classes in the name and style of Vikas. At that time this opposite party maintained hostels to the students.  The complainant is a worker in the 1^st opposite party institution.  Later he voluntarily resigned from the service of 1^st opposite party on 01-05-07.  1^st opposite party paid all amounts due to the complainant including statutory amounts payable to all concerned departments.  Later the 1^st opposite party closed its institution and the hostels in the year 2008 with prior intimation to its employees.  At the time of closing its organization, this 1^st opposite party settled all benefits of its employees to Provident fund department and other departments.  This opposite party regularly paid provident fund to its employees upto its closing of his institution, intimated the same to its employees and settled their accounts with 2^nd opposite party upto date.  An authorized person of this opposite party signed on all relevant papers of its employees.  There are no complaints from any body regarding the payments and signing of papers by 1^st opposite party.  The complainant filed I.A.390/2009 before this Forum for condonation of delay.  This opposite party filed an Affidavit on 27-11-2009 before this Forum stating that when the complainant approached the office of 1^st opposite party the concern Director of 1^st opposite party was sick and he was advised to approach again after a few days.  But the complainant did not come to the office of 1^st opposite party again with his application for the purpose of forwarding the same to the Provident Fund department and also expressed the ready and willingness of 1^st opposite party to forward the application of complainant, if the complainant approaches the office of 1^st opposite party with provident fund claim. Even though 1^st opposite party  expressed his ready and willingness to perform its part regarding the provident fund claim of complainant, complainant failed to approach to 1^st opposite party with any application for provident fund claim.  Thus there is no deficiency of service on the part of 1^st  opposite party at any point of time in any respect.   If the complainant approaches the 1^st opposite party even now with any application for provident fund claim, this opposite party is still ready and willing to forward the same.  Hence this complaint may be dismissed with costs.

4.      2^nd opposite party filed its version which is in brief as follows : 

        The complainant has failed to furnish the details of provident fund account Number in the petition, if he was already enrolled and resigned.  As such 2^nd opposite party could not verify the details and  he is unable to put forth the facts before this Forum due to lack of details.  If the complainant had not been enrolled so far under the Act and schemes framed there under by the 1^st opposite party, he could have freely approached the authorities of 2^nd opposite party with all documentary evidence to redress his grievance and to take appropriate action against 1^st opposite party as per the provisions of the Act, for evasion of membership   in respect of complainant if he was enrolled.  Therefore complaint may be dismissed with a direction to the complainant to submit the details of provident fund account number if any or to furnish relevant documentary evidence establishing, contributions that were deducted from his wages, but failed to credit to the employees provident fund organization by 1^st opposite party.  In case of non enrollment, complainant has to submit the documentary evidence establishing that he had worked with the 1^st opposite party from 23-03-88 to 21-05-07 along with pay slips proving his rendering of service in 1^st opposite party establishment.  Then the 2^nd opposite party can conduct an enquiry with regard to the eligibility of membership under the Act and schemes and accordingly will cause for providing the social security benefits depending upon his eligibility.  In the instant case the cause of action has arisen before 21-05-07 i.e., before the resignation of the complainant. The complaint was filed after a gap of more than 4years and is liable to be dismissed on the ground of limitation.  As such there is no deficiency of service on the part of 2^nd opposite party.

5.     Complainant and opposite parties 1 & 2 filed their respective affidavits in support of their versions.

6.      On behalf of complainant Ex.A-1 to A-8 are marked.  No documents are marked on behalf of opposite parties.

7.     NOW THE POINTS THAT ARISE FOR CONSIDERATION ARE:

1. Whether is complainant is barred by law of limitation?
2. Whether there is a deficiency of service on the part of   opposite parties 1&2?
3. To what relief the complainant is entitled to?

8.      POINT NO-1   The case of the Complainant is that  he worked as head cook in Vikas Mahila Residential Hostel which is one of the organizations of 1^st opposite party from 23-12-88 to 21-05-07, during the tenure of his service he made provident fund contributions, that after termination of his service 1^st opposite party has not filed application  to draw provident fund amount from 2^nd opposite party and that 2^nd opposite party has not taken legitimate action against 1^st opposite party and that he was not paid the provident fund contributions and that there is deficiency of service on the part of opposite parties 1 & 2.

9.     The case of 1^st opposite party is that complainant voluntarily resigned from service on 01-05-07, that 1^st opposite party paid all amounts due to the complainant, but later 1^st opposite party closed his institution and hostels in the year 2008, but at the time of closing its organizations 1^st opposite party settled all benefits of its employees with provident fund department and other departments, when the complainant approached the office of 1^st opposite party he was advised to approach again after few days since the Director of opposite party was on sick, but the complainant did not come to the office of 1^st opposite party again with his application for forwarding the same to provident fund department. Therefore there is no deficiency of service on the part of 1^st opposite party.

10.   The case of 2^nd opposite party is that complainant has not submitted the details of provident fund account number and also not furnished relevant documentary evidence establishing his contributions, and that he worked with the 1^st opposite party from       23-03-88 to 21-05-07 as stated in the complaint, that if the complainant furnished the said relevant documentary evidence along with pay slips then the 2^nd opposite party can conduct a enquiry and take necessary action, that the cause of action of the complaint arose on 21-05-07, that the complaint is barred by law of limitation U/S. 24A of Consumer Protection Act since the complaint was filed after a gap of more than 4 years and that there is no deficiency of service on the part of 2^nd opposite party.

11.    POINT NO. 1  The allegation of the 2^nd opposite party is that the cause of action in this case arose before 21-05-07 and the complaint was filed after a gap of more than 4 years, thus the complaint is barred by law of limitation.

12.   Complainant filed IA390/09 along with the complaint for condonation of delay of 111 days U/S.24-A of Consumer Protection Act.   The said IA was allowed on 06-07-2011, and it has become final.  Therefore it cannot be said that the complaint is barred by law of limitation.  Accordingly this point is answered.

13.    POINT NO. 2      Complainant has not filed any evidence establishing that he worked as head cook from 23-12-88 onwards till 21-05-07 in the Vikas Mahila Residential Hostel i.e., one of the organizations of 1^st opposite party.  The complainant got issued a registered notice to opposite parties under Ex.A-1, wherein he has mentioned that he worked as head cook from 23-12-88 till 01-05-07 and that he is entitled to the provident fund benefits from 23-12-88 to 30-04-07.  1^st opposite party admitted in its version that complainant worked in the 1^st opposite party’s institution, and stated that the complainant voluntarily resigned from the service on 01-05-07.  It is the case of 1^st opposite party that it has paid all the benefits to the complainant, that complainant has not submitted his application for the purpose of forwarding the same to the provident fund department, and that there is no deficiency of service on the part of 1^st opposite party since complainant has not submitted his application claiming provident fund benefits.    Complainant has not filed any document establishing that he has submitted any claim application for provident fund to the 1^st opposite party to forward the same to the 2^nd opposite party. It is also the case of the 2^nd opposite party that complainant failed to furnish the details of provident fund account number and also failed to furnish relevant documentary evidence establishing that he made contributions from his wages and that he worked in the 1^st opposite party organization as alleged.  Complainant filed Exs.A-3 to A-8 copies of statements of accounts of employees provident fund scheme issued by 2^nd opposite party.  Out of the said statements      Ex.A-6 is the last statement for the year 2005-06 which shows employees contribution of closing balance of Rs.55,333/-  and employers  contribution of closing balance is Rs.23,747/- i.e., totaling to Rs.79,080/-.  Complainant has not filed subsequent statements relating to his provident fund account. 2^nd opposite party filed a memo along with details of provident fund account of the complainant which shows a total balance of Rs.1,20,949/- in the provident fund account of the complainant.  Contrary to the said statement complainant has not filed any evidence to show that he has got more amount in his provident fund account.  Complainant claimed provident fund amount of Rs.9,05,810/- in his complaint and filed an Annexure along with the written arguments showing the details of provident fund account for the period from 1988 to 2007 & 2012.  According to the said annexure filed by complainant an amount of Rs.2,22,093/- is in the provident fund account of the complainant.  But the said annexure is only a self serving statement.  In the said circumstances we are left with no option except to relay upon statement of details of provident fund filed by the 2^nd opposite party, which shows a total balance provident fund amount of  Rs.1,20,949/- in the provident fund account of the complainant.

14.    Rule 10.17 of Manual of accounting procedure Part II-A of employee’s Provident Fund Scheme, 1952 is as follows.

          “Attestation and forwarding of the claim

          a). Every employer shall, at the time when a member of the Fund leaves the service, be required to get the claim application for payment of provident fund in cases specified in clause(a) to (dd) of sub-paragraph(1) of paragraph 69, duly filled in and attested, and to forward the said application within five days of his leaving service to the  commissioner or any other officer authorized by him in this behalf;

Therefore as per the above rule the employer shall, at the time when a member of the fund leaves the service be required to get the claim application from employee for payment of provident fund.  Thus the responsibility casts upon the employer to get the claim application from the employee.  But according to the version of 1^st opposite party when complainant approached the office of 1^st opposite party, the concern Director was sick and he was advised to approach again after a few days, but the complainant did not come to the office of 1^st opposite party again with his application for forwarding the same to the provident fund department.   Even though the duty of obtaining application is on the employer, the employer 1^st opposite party herein failed to get the claim application from the complainant and failed to forward the same to the provident fund authorities.  Thus, we find the deficiency of service on the part of 1^st opposite party. Since 1^st opposite party failed to get the claim application and forward the same to the 2^nd opposite party, we cannot find any deficiency of service on the part of 2^nd opposite party. Accordingly this point is answered.

15.    POINT NO. 3      In view of the foregoing discussion on point No. 2, the complainant is entitled to get an amount of Rs.1,20,949/- from 2^nd opposite party as on 01-04-2010 as per the details of account furnished by 2^nd opposite party, together with admissible interest thereon from 01-04-2010 till the date of realization.   As the 1^st opposite party failed to get claim application from the complainant and failed to forward the same to the 2^nd opposite party, the 1^st opposite party is liable to pay compensation to the complainant.  Therefore we feel that an amount of Rs.5,000/- is awarded towards compensation in favour of complainant and against 1^st opposite party would meet ends of justice, besides the awarding costs of Rs.2,000/- towards the costs of the complaint.    Accordingly this point is answered.

16.    In the result, the complaint is allowed in part as indicated below:

1. 2^nd Opposite party is hereby directed to pay an amount of Rs.1,20,949/- to the complainant towards the provident fund amount due to the complainant, together with admissible interest thereon from 01-04-2010 till realization.

1. 1^st opposite party is hereby directed to pay an amount of          Rs.5,000/- to the complainant towards compensation.

1. 1^st opposite party is further directed to pay an amount of Rs.2,000/- to the complainant towards the costs of the complaint.

        The above order shall be complied within a period of six weeks, failing which the amount awarded in Item 2 shall carry interest @9%p.a. till the date of payment.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 6^th day of March, 2012.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party: NIL

                                                                             PRESIDENT