BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 15th February 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
COMMON ORDERS IN
C.C.No.157/2014 AND C.C.No.158/2014
(Admitted on 12.05.2014)
In C.C.No.157/2014
Mr. A Sadashiva Rao,
S/o Ganapayya,
R/at Sowra Nidhi ,
Opp: Nodu House,
Nodu Lane, Bejai,
Mangalore 575004.
IN C.C.No.158/2014
Mr. Santhosh Kumar,
S/o Sri Manjunatha Shetty,
R/at Ramakrishna Nilaya,
No.2/73/4.1, Bishop Compound,
Yeyyadi, Mangalore 575008.
….. COMPLAINANTS
(Advocate for the Complainants: Smt. LCH)
VERSUS
1. The Regional Provident
Fund Commissioner,
EPF Organisation,
H.No.12.1, First Floor,
Susheeram Complex,
Medak District, Patancheru,
Andra Pradesh 502319.
2. Area Manager,
MYK Laticrete India Pvt. Ltd.,
PFX Saldana Compound,
Highlands Coffee Works,
Falnir, Mangalore 575002.
3. The Senior Manager,
MYK Laticrete India Pvt. Ltd.,
Having its Registered Office
At # 8.2.703/A,
4th Floor, Leela Gopal,
Towers, Road No.12,
Banjara Hills, Hyderabad 500034.
….......OPPOSITE PARTIES
(Advocate for the Opposite party No.1: Sri JRN)
(Advocate for the Opposite party No.2 & No.3: Sri SFS)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
1. These complaints filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against opposite parties claiming certain reliefs in both cases to pay compensation amount of Rs.50,000/ and to pay Rs.5,000/ towards cost.
2. In support of the above CC No.157/2014 complainant Mr. A Sadashiva Rao filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked as Ex.C1 to C6 detailed in the annexure here below. On behalf of the opposite parties Mr. Ganesh Kumar (Rw1) Regional P.F. Commissioner-II, and Mr. Yashraj H.Y (RW2) Area Sales Manager also filed affidavit Evidence and answered the interrogatories served on them and produced documents got marked as Ex.R1 to R18 as detailed in the annexure here below.
3. In support of the above CC.No.158/2014 complainant Mr. Santhosh Kumar filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C.5 as detailed in the annexure here below. On behalf of the opposite parties Mr. Ganesh Kumar (Rw1) Regional P.F. Commissioner-II, and Mr. Yashraj H.Y (RW2) Area Sales Manager also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked as Ex.R1 to R18 as detailed in the annexure here below.
The brief facts of the case are as under
The above two complaints C.C. 157/2014 and C.C. 158/2014 have identical facts of disputes pertaining to two employees of the same employer and the opposite parties are also similar hence taken together for discussion and the adjudication.
FACTS IN BRIEF
We have perused the complaint and the version of the parties in both the cases. This dispute is with regard to not paying of the employees provident contribution on resignation from the job. The complainant alleges that the opposite parties have not paid the EMPLOYEE PROVIDENT FUND COUNTRIBUTION herein after called E.P.F.C on their resignation from the employment of the opposite party no 2 and 3 by the opposite party no 1. Hence alleges the deficiency in service against the Opposite parties. the opposite party no 1 denies the allegation and states that the complainant herein has not submitted required attested forms from their employer hence they are not in apposition to pay the complainant and there is no deficiency in service from their part. opposite party no 2& 3 contested on the ground that after admitting the resignation of the complainants, states that the complainants resignation is not accepted by them as there is breach of contract and criminal charges against them. Hence they are not relieved from the company. These are the key stone point of dispute in resolving it we consider the following
POINTS FOR ADJUDICATION
We have examined the evidence produced by the rival parties and studied the documents produced. The admitted facts are, the complainants are the employees of the opposite party no 2 & 3, the tendering of resignation by them and not issued the letter of acceptance of resignation to the complainants, the collection of E.P.F.C. by the opposite party no 2 & 3 and depositing with the opposite party no 1. It is also admitted that on tendering their resignation the complainants have stopped attending duties with the opposite party no 2 & 3. It is also admitted facts that the complainants have not paid with the E.P.F.C to their credit on the date of resignation with the opposite party no 1. It is denied that the complainants are now not the employees of the opposite party no 2 & 3, it is denied that the complainants have submitted the required forms no 19 and the 10 c as per procedure to claim the E.P.F.C from the opposite party no 1. And the deficiency in service from the part of the opposite parties also denied. By taking into consideration the admissions and the denials, in resolving this dispute we consider the following points to be adjudicated.
- Whether the complainants are consumers under Consumer Protection Act 1986?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainants are entitled for the relief prayed for?
- What order?
We have considered the evidence lead by the parties and the documents produced. On considering the note of arguments, we heard the party submissions and with due consideration of the point of law answered the above points as under:
- In the affirmative against the opposite party no 1.
- In the affirmative against opposite party no 1 only.
- In the affirmative.
- As per delivered order.
REASON
POINT NO 1: The complainant produced the EX-C 4. An attachment to this EX-C 4 subscribers annual statement of account for the year 2009.2010 the letter detailed about the complainants account with the opposite party no 1regarding the contribution and the balance amount with the opposite party no 1. In EX-C 1 also shows the complainants P.F. Account no as AP/SRO/PTC/39328/211 witch is admitted by the opposite party no 1 as the P.F. Account Number of the complainant. Hence it is established that the opposite party no 1 is the service provider and the complainant is the consumer. However the opposite party no 2 & 3is concern they are not the service provider but an employer of the complainant as per pleadings and the documents undisputedly. Hence we answered the point no 1 in the affirmative against the opposite party no 1 only.
POINT NO 2: On having decided the point no 1 now it is only to see is there any deficiency in service on the part of the opposite party no 1. The facts of the case is the complainant was working with the opposite party no 2 & 3and tendered his resignation on 03.03.2013 to his employer and submitted the claim forms No 10 and 19 c( EX C 1) for withdrawal of the E.P.F.C from the opposite party no 1. The opposite party no 1rejected the claim by the letter dated 25.07.2013 (EX-C 5) by a remark PL AFFIX1/- REVENUE STAMP & FORWARD TO EX EMPLOYER FOR ATTESTATION. The complainant sent the said forms to the ex-employer and later wrote a email reminder dated 12.11.2013(EX C 5 second sheet) to speed up the process of attestation and another email reminder on 22.02.2014(EX C 6) having not received the response from the employer as well as the opposite party no 1 the complainant filed this complaint on 12.05.2014.
2. The opposite party no 1 contends that since the opposite party no 2 & 3 not attested they are not liable to pay the complainant his E.P.F.C. As per procedure an attestation shall be made from the employer. This is the only contention raised by the opposite party no 1. The opposite party no produced the EX-R 9 a letter addressed to the opposite party no 1 written by the opposite party no 2 & 3 in which it is stated that the resignation letter of the complainant has not been accepted and they have not been relieved from the service. The letter continue to state that the complainant had defrauded the company and they have registered a FIR 99.2013 and instituted a suit OS 43.2013. Therefore since the relation of employer-employee is not severed, the complainants are not entitled to withdraw the P.F. accumulations. Only on the force of this documents the opposite party no 1 withhold the E.P.F.C of the complainant.
3. On observing the facts as above we felt to consider the provisions in EMPLOYEES PROVIDENT ACT AND THE SCHEME 1952. Some of the features of the scheme which ate related in our opinion are engrossed here below.
4. As per EPF Act 1952 section. 10. Protection against attachment. (1) Amount standing to the credit of any member in Fund or of any exempted employee in a provident fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the member or the exempted employee, and neither the official assignee appointed under the Presidency Towns Insolvency Act, 1909 (3 of 1909) nor any receiver appointed under the Provincial Insolvency Act, 1920 (5 of 1920), shall be entitled to have any claim on, any such amount even EPF Rules 2014 Rule27 Protection against attachment reveals the same effect.
5. EPF SCHEME 1952 Paragraph 72(b) 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 (e) of subparagraph (1), and in sub paragraph (2) of paragraph 69, duly filled in and attested, and to give the said application to the member, for submission, on completion of the period specified in sub paragraph (2) of paragraph 69, [provided the member continues to remain unemployed in a factory or other establishment to which the Act applies] either through post or in person with proper identification, to the Commissioner or any other officer authorised by him in this behalf.
6. Paragraph 69 (2) In cases other than those specified in sub-paragraph (1), the Central Board, or where so authorised by the Central Board, the Commissioner, or where so authorised by the Commissioner, any officer subordinate to him, may permit a member to withdraw the full amount standing to his credit in the fund on ceasing to be an employee in any establishment to which the Act applies provided that he has not been employed in any factory or other establishment to which the Act applies for a continuous period of not less than two months immediately preceding the date on which he makes an application for withdrawal.
7. 32 A. Recovery of damages for default in payment of any contribution (1) Where an employer makes default in the payment of any contribution to the fund, or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 or sub section (5) of section 17 of the Act or in the payment of any charges payable under any other provisions of the Act or Scheme or under any of the conditions specified under section 17 of the Act, the Central Provident Fund Commissioner or such officer as may be authorised by the Central Government by notification in the Official Gazette, in this behalf, may recover from the employer by way of penalty, damages at the rates given below: Period of default Rate of damages (% of arrears per annum) (a) Less than two months 17 (b) Two months and above but less than four months 22 (c) Four months and above but less than six months 27 (d) Six months and above 37 Paragraph.38. He shall within fifteen days of the close of every month pay the same to the fund by separate bank drafts or cheques on account of contributions and administrative charge]. Provided that if the payment is made by a cheque, it should be drawn only.
8. On combined reading of the above provision emanates that the contribution accumulated in the E.P.F.C. cannot be attached on for any debt or decree of any court.
9. The opposite party no 2 &3 cannot stop payment of the contribution to the complainant even if he succeeds in his suit or criminal proceedings filed against the complainants.( As per EPF Act 1952 section. 10. Protection against attachment.)
10. Again the EPF SCHEME 1952 imposes a duty on the employer and states that Every employer shall, at the time when a member of the Fund leaves the service, be required to get the claim application… the word ‘shall’ means it is employers duty to get settled the claim of the complainant for accumulations in the EPF. The Act do not say on relieving from service but it says when a member of the fund leaves the service.(Paragraph 72 b) In the instant case the complainant had left the service by tendering his resignation and as per documents it is admitted facts the complainant is not serving the opposite party no 2 & 3, also the opposite party no 1 is not receiving any contributions on account of the complainants.
11. The commissioner may permit a member to withdraw the full amount standing to his credit in the fund on ceasing to be an employee in any establishment (Paragraph 69(2) of the EPF SCHEME 1952). In the instant case the complainant ceased to be a member since the complainant is not in service and the contribution is not being deducted and deposited with the opposite party no 1.
12. 32A. Recovery of damages for default in payment of any contribution: This provision empowers the EPF commissioner to recover if the contribution is not received. In the case on hand the commissioner not initiated any proceedings against employer in spite the contribution not received on behalf of the complainant. It is to pertinent to note that the employer of the complainant had written a letter stating that the complainant is still in service.
13. Paragraph 38 insists employer shall deposit contribution within 15 days of close of every month of each employee. But the provident fund authority not taken any step to recover the contributions.
14. We have made it an occasion to lay our hand on the service papers of the complainant. The appointment letter(EX R 2) in para no 12 says in the event of your leaving the service at any time during your you shall serve two month notice and similarly the management has its option to terminate your service by serving you two months’ notice which means the complainant may leave the job by giving two month notice. The complainant has given two months through the resignation letter. The appointment letter is silent about the acceptance of the resignation required. Completion of two months presumes the termination of service it not rejected by assigning a valid ground which is not done in these cases What is important is the notice period and if this satisfied the employee discharged from the service.
15. As far as the attestation by the employer is concern the Act or scheme nowhere depicts it as mandatory provision. Rather it insists on the employer to get claim form on behalf of the employee to get the E.P.F.C. refund by sending attested Form No 10 and 19 C as we seen in proceeding paras.(Paragraph 72 of EPS 1952) It is also seen from the pleadings and submissions that the complainant had got attested the Forms by a gazette officer who is authorized to attest. After all the attestation is only for the identification of the person and it will be convenient if the employer attests since he knows the employee better.
16. It is also to be noted that now the fund may be disposed without attesting by the employer. The notification No WSU/10(1)2011/2011 CHANGE IN MAP/31406 dated 01.12.2015 reads: It is because the employers who were in dominant position and misuse the provision and using it as bondage hence notification brought to the EPS 1952 and adopted to save the employees from the erring employers.
17. In summary of the above discussion it is emanated that the complainant had resigned as per his appointment terms, the employer has no rights whatever to stop the payment of the E.P.F.C and attach the same in the result of any criminal or civil proceedings, the opposite party no 1 has not appreciated the law with regard to the payment of the E.P.F.C when a member of the fund applies on his leaving the service, the complainant is ceased to be in service as soon as the two months over from the date of resignation. On the base of the letter from the employer of the complainant stating that the complainant is still in service is acted upon in holding back the E.P.F.C without enquiring into the authority of the employer to write such letter. Hence we hold the opposite party no 1 liable for deficiency in service and answered the point no 2 in the affirmative.
POINT NO 3: As per above discussion we hold the opposite party no 1 in spite of law prohibiting the charge on the E.P.F.C., not appreciated properly and made the complainant fund on hold for the flimsy reason given by the employer that there is criminal proceedings and the suits is liable for deficiency in service and the complainant is entitled for the relief. The complainant sought for the relief of direction to the opposite parties to release the amount due to the complainant for which he is entitled with an interest at the rate 12 % per annum from the date of rejection of claim till the date of payment. Even though there is negligence on the part of the opposite party no 1 in appreciating the provision of law we do not see grave negligence on the part of them. Hence the interest awarded will be treated the compensation and no separate compensation awarded. The rate of interest is based on Section 7Q in The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 as per which the interest can be charged at 12 % on the arrears of contribution to be received by the employer. The complainant is also entitled for an amount of ₹ 5000/ towards litigation expenses. The opposite party no 2 & 3 are concern the dispute is between the employee and the employer and the consumer forum have no jurisdiction hence the complainant is dismissed against opposite party no 2 & 3. However the opposite party no 1 is at liberty to collect the interest part from the opposite party no 2 & 3 as there is contributory fault from the opposite party no 2 & 3 by refusing in attesting the Form No 10 & 19C and delayed the refund of the EPF accumulated contributions. The point no 3 answered in the affirmative.
POINT NO 4: in the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint no C.C.157/2014 AND C.C 158/2014 both are allowed against opposite party No 1. The opposite party no 1 hereby directed to release the EPF contribution amount due to the complainant with an interest of 12 % per annum from the date of rejection till the payment within 15 days from the date of order copy received and shall pay an amount of ₹ 5000/ towards litigation expenses. The complaint against the opposite party no 2 & 3 is dismissed.
Keep original order in CC.157/2014 and a true copy of in CC.158/2014.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 15 directly typed by member, revised and pronounced in the open court on this the 15th February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE OF C.C.No.157/2014
Witnesses examined on behalf of the Complainant:
CW1 Mr. A Sadashiva Rao
Documents marked on behalf of the Complainant:
Ex.C1: Copy of the letter dated 27.6.2013 forwarded by the Complainant to opposite party No.1
Ex.C2: Copy of the legal notice dated 4.3.2014 issued to Opposite party No.3
Ex.C3: Copy of the reply dated 14.4.2014 to the legal notice Issued on behalf of the complainant
Ex.C4: Copy of the resignation letter dated 3.3.2013
Ex.C5: Copy of the letter dated 25.07.2013
Ex.C6: Copy of the E mail
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Ganesh Kumar, Regional P.F. Commissioner-II,
RW2: Mr. Yashraj H.Y, Area Sales Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: 03.11.2014: Letter of authorization
Ex.R2: 27.05.2006: True copy of letter of appointment of complainant
Ex.R3: 04.03.2014: Notarized copy of lawyers notice issued on behalf Of the complainant
Ex.R4: 14.04.2014: True copy of reply to advocate’s notice issued on Behalf of the OP2 & OP3
Ex.R5: 07.03.2013: Attested Copy of FIR in Cr.No.99/2013 of Patancheru Police Station along with complaint
Ex.R6: 25.03.2013: Certified copy of Plaint in O.S. 43/2013 before The Family Court cum VII Addl District and Session Judge, Medak, Sangareddy
Ex.R7: 25.03.2013: Copy of Injunction order granted by the aforesaid court in the above case
Ex.R8: : HR Rules
Ex.R9: : Copy of letter addressed to OP1 by OP3
Ex.R10: : True copy of letter issued to the complainant by OP3 With enclosures
Ex.R11: 23.12.2014: Copy of reply by complainant to the above letter
Ex.R12: 12.03.2015: True copy of Show Cause Notice cum Charge Sheet Issued to the complainant
Ex.R13: 31.03.2015: Copy of reply by complainant to the show Cause Notice Cum Charge sheet
Ex.R14: 24.04.2015: True copy of Notice of Enquiry issued to the Complainant
Ex.R15: 30.04.2015: Copy of Reply by the complainant to the Notice of Enquiry
Ex.R16:27.05.2015: True copy of Notice Re-scheduling the DE Issued to the complainant
Ex.R17: : True copy of Wage Slip of the complainant for The month of March 2013 and April 2013
Ex.R18: : True copy of attendance register from January 2013 To May 2015
ANNEXURE OF C.C.No.158/2014
Witnesses examined on behalf of the Complainant:
CW1 Mr. Santhosh Kumar
Documents marked on behalf of the Complainant:
Ex.C1: Copy of the letter dated 27.06.2013 forwarded by the complainant to opposite party No.1
Ex.C2: Copy of the legal Notice dated 4.03.2014 issued to opposite party No.3
Ex.C3: Copy of the reply dated 14.04.2014 to the legal notice issued on Behalf of the complainant
Ex.C4: Copy of the resignation letter dated 4.03.2013
Ex.C5: Copy of 10 Ca application.
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Ganesh Kumar, Regional P.F. Commissioner-II,
RW2: Mr. Yashraj H.Y, Area Sales Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: 03.11.2014: Copy of letter of authorization
Ex.R2: 15.09.2006: True copy of letter of appointment of complainant
Ex.R3: 04.03.2014: Copy of lawyers notice issued on behalf Of the complainant
Ex.R4: 14.04.2014: Copy of reply to advocate’s notice issued on Behalf of the OP2 & OP3
Ex.R5: 07.03.2013: Copy of FIR in Cr.No.99/2013 of Patancheru Police Station along with complaint
Ex.R6: 25.03.2013: Copy of Plaint in O.S. 43/2013 before the Family Court cum VII Addl District and Session Judge, Medak, Sangareddy
Ex.R7: 25.03.2013: Copy of Injunction granted by the aforesaid court in the above case
Ex.R8: : Copy of the HR Rules extract termination of Employment
Ex.R9: 06.06.2014 : Copy of letter addressed to OP1 by OP3
Ex.R10: 12.12.2004: Copy of letter issued to the complainant by OP3 with enclosures
Ex.R11: 23.12.2014: Copy of reply by complainant to the above letter
Ex.R12: 12.03.2015: True copy of Show Cause Notice cum Charge Sheet Issued to the complainant
Ex.R13: 31.03.2015: Copy of reply by complainant to the Show Cause Notice Cum Charge sheet
Ex.R14: 24.04.2015: Copy of Notice of Enquiry issued to the Complainant
Ex.R15: 30.04.2015: Copy of Reply by the complainant to the Notice of Enquiry
Ex.R16:27.05.2015: True copy of Notice Re scheduling the DE issued to the complainant
Ex.R17: : True copy of Wage Slip of the complainant for The month of March 2013 and April 2013
Ex.R18: : True copy of attendance register from January 2013 to May 2015
Dated: 15.2.2017 MEMBER
