Date of Institution:04.09.2015

Date of Final Hearing:20.01.2023

Date of Pronouncement:20.01.2023

PRESENT:    SHRI P. SURYA RAO, PRESIDENT

SHRI SATISH KUMAR PANIGRAHI, MEMBER

JUDGMENT

Shri P.Surya Rao, President:

The fact of the case in brief is that the complainant has filed this Consumer complaint under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice by the Opposite Parties (in short O,.Ps) and for redressal of his grievance before this Commission.

1. The fact of the case as averred by the complainant is that, he is a Senior Citizen and retired from the Orissa Forest Development Corporation Ltd. The O.P.No.1 is the last employer of the complainant. The complainant and O.P.No.1 have jointly invested and deposited with OP.No.2. The O.P. No.4 is the banker of the complainant and after retirement, the complainant got some amount from the O.P.No.2 through O.P.No.4 and then deposited the same at O.P.No.3.  Since after retirement in the year 1999, the complainant settled the claim with O.P. No.2 and O.P.No.2 sent the deposit to the complainant in shape of cheque through the O.P.No.4 and after encashment of said cheque by O.P.No.4 the amount are deposited in complainant’s account through the O.P.No.3.  While on inquiring about the release of entire amount of Rs.4,81,629/- , it came to light that there was only release of amount of Rs.4,27,621. Out of Rs.4,81,629.00 (approximately) , a sum of Rs. 48,396.00 vide cheque No.265585 dated 20.01.2000 (1^st part) has been issued by the O.P.No.2 to the O.P.No.4 to credit into the bank account of the complainant but the same has not been credited till date. For which the complainant inquired into the matter by sending Registered Notice filing of RTI applications and online grievance and duly acknowledging the same and replied evasively by Opposite Party no. 2 & 4. From replies received from the EPF India and O.P.No.2 are showing two different date of issue of above cheque i.e. 17.01.2000 and 20.01.2000 respectively.  While redressing the grievance, O.P.No.2 admitted in a email dated 09.11.2011 that “there is another amount of Rs.41,578.00 (as on 2009-10) towards PF balance of complainant is pending with them and requested to submit a Form-19 and as per instruction the complainant submitted the duly filled up Form but the said amount also has not been released in favour of the complainant as yet. By these act of the O.P.No.2, the complainant is suffering irreparably mentally, physically and financially towards losing the interest, physically harassed by visiting the post to pillar of the O.Ps in this old age from time to time and issuing of notices through advocates. Alleging deficiency in service on the part of the O.Ps the complainant prayed to pay the rest of the EPF amount of Rs.95,586/-  pending with the O.P.No.2 with interests @18% per annum , compensation of Rs.50,000/- and litigation cost of Rs.29,000/- in the best interests of justice.
2. Admitting the case this Commission has issued notice to the Opposite Parties and duly acknowledging the same.  The O.P.No.1 is set exparte on dated 08.06.2016.
3. The O.P.No.2 filed written version through his advocate. It is stated that a sum of Rs.48,396/- has not been credited in his saving bank account is false and baseless, hence denied. In this connection it is submitted that the above mentioned amount has already been encashed by the banker on 07.02.2000 from our account. If the same is not credited in the member’s account then it is the fault of O.P.No.3 & 4. Further the complainant did not provide any proof regarding non-credit of the above mentioned amount in this saving bank account.  Regarding showing of two different date of issue of cheque it is submitted that 17.01.2000 is date of preparation of cheque. As such it is clarified that only one cheque has been issued in respects of the above mentioned amount i.e. against Rs.48,396/- and the cheque number is 265585.  Also a sum of Rs.41,578/- is still pending in the Account No.: OR/2617/378 but on later it is found that one withdrawal amount not shown at that time. After reconciliation it is found that only a sum of Rs.8.988/- is still pending in this account number and on receipt of the claim application in F-19 along with required documents the said amount will be released year wise. The PF dues as when the claim application received by the complainant and O.P.No.2 submitted in para No.7 that a sum of Rs.8,988/- is yet to be released for which the complainant has to apply in proper claim application.  The O.P. No.2 has already merged the post accumulation as and when received from different account number and released the dues as and when claim application by the complainant. The O.P.No.2 also provide the required information as and when sought by the complainant. Hence there is no deficiency of service on the part of the O.P.No.2.  The O.P.No.2 has already released the amount as claimed by the complainant and if the same is not credited in the saving bank account of the complainant then it is the fault of the O.P.No.3 &4. The O.P.No.2 also assures that on receipt of the claim application in F-19 the balance PF amount will be released. Hence the petition of the complainant may please be dismissed in the interest of justice.
4. The O.P.No.3 & 4 filed version through their advocate. It is stated that the case is not at all maintainable against this O.Ps. as the claim is hopelessly barred by limitation. The cause of action arose in the year 2001 and the claim is of 2015 which is hopelessly barred by limitation. There is no continuous cause of action against the Bank because payment is not to be made by the Bank. Unless and until the cheque is being deposited how the money could be realized.  The allegation of deposits of cheque in the Bank by O.P.No.2 there is no such proof of deposit. Merely writing in their official papers of such presentation is not itself a proof of acknowledgement by the Bank of receipt of cheque.  As it relates to the year of 2001, 15 years has been elapsed. There is no voucher available to verify the particulars of year 2001. Because as per the guide lines of Reserve Bank of India more than 10 years vouchers have been destroyed as per Annexure 1 & 2 filed by the Bank. To verify the transaction in the account No.2 is also not possible at the branch level due long elapse of time. Those are being controlled by the Central Corporate office, Mumbai. It cannot be obtained from that office without furnishing the detail particulars such as cheque details and proof of acknowledging the cheque by the branch.  The statement furnished by the OP.No.2 is not sufficient to prove to show the presentation of cheque for realization or payment. Unless and until there is proof of acknowledgment of receipt of cheque by the Bank, the responsibility could not be foisted against the Bank. Moreover as there is nonspecific allegation or any specific relief has been sought from this O.P. i.e. Banks and thus the case is very much bad for mis-joinder of parties as per Banks are concerned. As per para 7 is concerned regarding the balance of Rs.41,578/- is with O.P.No.2, this O.P. is no way concerned. It is up to the complainant for compliance. This O.P. is in no way responsible for the pending EPF account with O.P.No.2. As such this O.P. is not at all liable for compensation, costs or interest as claimed. From the prayer portion para 1 clearly speaks that a sum of Rs.95,586/- is pending with O.P.No.2.  As such this O.P.No.3 is in no way responsible for the suffering and mental agony of the complainant. The para 1 of the prayer portion is quite contradictory and confusing. In prayer the complainant alleges that a sum of Rs.95,586/- is pending with OP.No.2 while in para 7 of the complaint it is stated the O.P.No.2 admitted of Rs.41,578/-is still pending with them for non compliance.  Thus the entire picture is quite confusing which does not have a clear cut claim. Thus it is in ambiguity. Thus the O.P.No.3 & 4 prays to dismiss the case as the claim is barred by limitation and no claim is made out against this O.Ps in the best interest of justice.
5. On the date of hearing of the consumer complaint learned counsel for the complainant and O.P.No.2 & 4 were present. We heard argument from all the parties present at length.  We perused the complaint petition, written version, written arguments and documents placed on the case record. The Advocate for O.P.No.2 files a statement of Bank Account No.0100/050389. Further the advocate for the complainant files a certified copy of order W.P.(C) No.30434 of 2022of Hon’ble High Court of Odisha, Cuttack wherein Hon’ble High Court has directed to dispose of the case within a period of two months.  Law is clear that the employee has to contribute his share from the monthly salary and it is for the employer to deduct the same and remit it to the P.F. Organization for maintaining the accounts in an account number allotted to the employee.  The claim of the complainant is that the EPFO i.e., Opposite Party no.2 has not paid the all the benefits under the provident funds out of the total deposits received from the employer towards provident fund. In case such the amount is not transferred by the EPF infavour of the beneficiary, it shall amount to deficiency in service. It is equally the responsibility of the P.F. Organization to amount has been deposited in the account of the beneficiary and in case of failure as O.Ps thereby encroaching upon the Fundamental Rights of Citizens who is already retired. The officer entrusted with the statutory duty does not do the same or do it arbitrarily causing much hardship to the citizens and in order to prevent such arbitrariness, the Hon’ble Supreme Court of India has issued specific directions to all the Government Authorities stating that violation of laws and repeated to dereliction of duty misfeasance for extraneous reasons by officers/officials leading to subversion of the law. Accordingly, the State Government issued the Notification No. 2316 (210) dated 10.08.2009.

On foregoing discussion and in view of the clear position of law we hold that there is deficiency in service on the part of O.P nos.:2, 3 & 4.

In the result the complainant’s case is allowed on contest against O.P.No.2, 3 and 4 and on exparte against O.P.No.1. The O.P.No.2, 3 and 4 are jointly and severally liable as such the O.P.No.2 is directed to submit payment particulars regarding Rs.48,396/- bearing cheque number 265585 of the complainant to O.P.No.4 and O.P.No.4 is also directed to collect the payment particulars from the O.P.No.2 and to disburse the said amount along with prevailing savings bank interest @7% per annum to the complainant’s account operated in the Opposite Party no.3 bank within 45 days from receipt of this order. Further the opposite parties nos.: 2 & 4 are directed to pay the Compensation of Rs.11500/- and litigation cost of Rs.5000/- failing which all the dues shall carry 12% interest per annum till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the consumer protection Act for realization of all dues. This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission. A copy of this order be also sent to the Secretary, State Consumer Disputes Rederssal Commission, Odisha, Cuttack for information.

The file is to be consigned to the record room along with a copy of this Judgment.