PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as they did not pay the amount of provident fund accumulated with Opposite Party No.1.
2) The facts of the complaint as stated by the Complainant are that the Complainant was an employee of Opposite Party No.2. Opposite Party No.1 is the trust managing the affairs of provident funds of the employees of Opposite Party No.2. The Complainant is covered under Employees Provident Fund & Misc. Provisions Act, 1952. as per the provisions of the said Act, he is having a Provident Fund Account with Opposite Party No.1 bearing No.GJ/1060E/1928.
3) The Complainant states that his services were terminated by Opposite Party No.2 since, 14/08/01. On termination of his employment, he submitted an application forms for withdrawal of his provident fund amount on 09/10/01. However, he could not get his provident fund amount inspite of several reminders to Opposite Party No.1 & 2. The Opposite Parties took the stand that the Complainant’s provident fund will be settled only on withdrawal of Court matter pending before City Civil Court as the termination of the services of the Complainant was challenged by him in the said Court (Suit No.3091/2001). This suit was filed by the Complainant in May, 2001 against Opposite Party No.2 as he has challenged his transfer to Gujarat by Opposite Party No.2.
4) It is further stated by the Complainant that he made a complaint to the Employees Provident Fund Organization, Rajkot. This organization directed the Opposite Parties to pay the provident fund dues to the Complainant, but Opposite Parties failed to pay the said dues. Again the Complainant sent several reminders to Opposite Party but in vain. So the Complainant lastly has filed this complaint in order to get his provident fund dues form the Opposite Parties.
5) The Complainant has also given the reasons as to why he had not filed the complaint within stipulated time limit as he was continuously corresponding with the Opposite Parties in a hope that he would get his hardly earned dues. He has filed a separate application for condonation of delay. This delay has been condoned by this Forum vide its order dtd.-Nil- which has been duly received by the Opposite Party No.1 on 27/07/06.
6) The Complainant has further submitted that he is the member of the Opposite Parties provident fund. It is their duty to pay the entire Public Provident Fund accumulated with them, after his termination of employment. As they refuse to pay the dues, this shows their callous attitude and gross indifference towards to Opposite Party No.1. So the non payment of the PPF amount of the Complainant is a deficiency in service on the par of Opposite Parties. Therefore, the Opposite Parties be directed to return the amount of Rs.1,75,000 with interest thereon as per Provident Fund Rules and a compensation of Rs.50,000/- for mental agony to the Complainant and the cost of this complaint.
7) The Complainant has attached the xerox copies of the following documents alongwith the complaint, Complainant’s termination letter dtd.13/08/01 issued by Opposite Party No.2, PPF withdrawal form dtd.10/10/01 from Dhragadhra Chemical Works Employee’s Provident Fund, letter dtd.24/01/02, 05/03/02, 30/04/02, 28/08/02, 11/02/03, 26/06/04, 16/05/05 & l4/11/02.
8) The complaint was admitted and notices were served on the Opposite Parties who appeared before this Forum through their Ld.Advocate and filed their written statement wherein they denied the allegations and specifically stated that the Complainant is not a ‘Consumer’ and the dispute is not a consumer dispute. It is further submitted that the Complainant had taken housing loan of Rs.4,50,000/- from Opposite Party No.2 as per sanction letter dtd.22/02/1996. He had undertaken to repay and authorized Opposite Party No.2 and Opposite Party No.1 to recover the same from gratuity, provident fund, leave salary, LTA and other legal dues. But the Complainant has failed to pay the said housing loan.
9) The employment of the Complainant was terminated vide letter dtd.13/08/01 by the Opposite Party No.1. The order of terminating his service was challenged by the Complainant by filing a suit against Opposite Party No.2 in Bombay City Civil Court (Suit No.3091/2001). It is the contention of the Opposite Party that the matter being subjudiced before the Civil Court, this Forum cannot entertain this complaint. Therefore, it is the contention of the Opposite Parties that there is no deficiency in service on their part.
10) The Opposite Party No.2 has admitted that Opposite Party No.1 is “Employee Provident Fund Trust” established for administration and implementation of provident fund of its employees under Employees Provident Fund and Miscellaneous Provisions Act, 1952.
11) The Opposite Parties have further submitted that the Complainant had by letter, authorized Opposite Party No.2 to recover the housing loan granted to him from the legal dues such as gratuity, provident fund, leave salary, etc. The Complainant has also executed the Promissory Note in favour of Opposite Party No.2.
12) The Opposite Parties have further submitted that in the year 2001 the Complainant was working as a Manager Personnel at Mumbai. Vide order dtd.18/05/2001 he was transferred to Kuda salt work (Gujarat) but he did not join the new posting. Inspite of giving opportunity to join he did not resume the duties. Therefore, by letter dtd.13/08/01 his services were terminated. At this time the Complainant was required to pay the housing loan of Rs.3,02,000/- and interest as on 31/07/2001.
13) It is further stated by Opposite Parties that the suit challenging order of transfer and termination of the Complainant is pending before Bombay City Civil Court.
14) Opposite Parties have further submitted that, the Complainant has applied for withdrawal of provident fund but his claim could not be settled and paid as the Complainant had not accepted the termination order and challenged the order of his termination. Opposite Party No.2 vide its letter dtd.18/10/01 and 16/09/02 called upon the Complainant to pay the balance amount of housing loan of Rs.3,02,000/- and interest but Complainant did not comply with the said letter.
15) The Opposite Parties have also submitted the facts regarding the payment of gratuity under the relevant Act, in para 33 to 38.
16) The Opposite Parties have further clarified in para 69 of the written statement that Regional Provident Fund Commissioner, Ahemdabad vide his order dtd.06/09/02, 14/06/04 has ruled that the Complainant is not entitled to withdraw the Provident Fund accumulation since he had not accepted the termination and demanded reinstatement.
17) Opposite Parties further stated that there is no question of payment and settlement of Provident Fund dues till the final judgement of Bombay City Civil Court in Suit No.3091/01 in which issue of termination of employment of the Complainant is subjudiced and the Opposite Party No.2 is entitled for the repayment of housing loan of Rs.4,50,000/- and interest thereon.
18) Finally the Opposite Parties have stated that there is no deficiency in the services on their part and the Complainant is not entitled to any relief prayed by him. Therefore, the complaint can be dismissed with cost. The Opposite Parties have attached the xerox copies of following documents alongwith their written statement. Letter of the Complainant dtd.19/09/95, 05/10/95, power of attorney dtd.13/10/95, letter of Opposite Party No.2 dtd.22/02/96, undertaking by the Complainant, dtd.22/02/96, letter dtd.22/02/96, 18/10/01, 25/10/01, 19/12/01, 06/09/02, 16/09/02, 10/10/01, 18/10/02, 25/04/03, order dtd.24/01/03, 26/02/02, letter dtd.30/04/04, order dtd.21/03/05, order dtd.20/04/06.
19) Thereafter the Complainant has filed his affidavit in evidence & a written argument wherein he reiterated the facts mentioned in his complaint. The Opposite Parties also filed their written argument wherein they reiterated the facts mentioned and points raised in their written statement.
20) We heard the Ld.Advocates for both the parties and perused all the papers submitted by the parties and our findings are as follows –
The Complainant was the employee of Opposite Party No.2 since, 1990 to 2001. In May, 2001 he was transferred from Mumbai to Kuda Gujarath. When the Complainant did not resume his duties at the new transferred place at Kuda in Gujarat, the Opposite Party No.2 terminated his services by a letter dtd.13/08/01. The Complainant has filed a Suit No.3091/01 in Bombay City Civil Court at Bombay in May, 2001 challenging his transfer from Mumbai to Kuda (Gujarath). After filing this suit, the Opposite Party No.2 terminated the services of the Complainant vide its order dtd.13/08/01. Thereafter, the Complainant also challenged the termination order of Opposite Party No.2 by making amendment as per the order of the City Civil Court dtd.26/02/02. Thus, the Complainant has challenged the transfer order as well as the termination order of the Opposite Party No.2 by filling a Suit No.3091/01 pending in Bombay City Civil Court.
21) It is the contention of the Complainant that Opposite Parties are not paying the provident fund of the Complainant and they (Opposite Parties) have taken the stand that the payment of provident fund amount of the Complainant would be settled on the withdrawal of the suit before the Bombay City Civil Court. This is the wrong contention of the Complainant. The Opposite Parties have not taken the above said stand. We carefully scrutinized the papers submitted by the Complainant and the Opposite Parties. “It is the stand of the Opposite Parties that a Civil Case No.3091/01 is pending before the Bombay City Civil Court for the transfer of the Complainant and his termination order dtd.13/08/01. The Complainant has challenged both the orders of the Opposite Party No.2 in this suit and pending that suit, the payment and settlement of provident fund dues is not possible till the final judgement of the said City Civil Court.”
22) Even the Regional Provident Fund Commissioner, vide his letter dtd.25/04/03 informed to the Complainant that, as per para 68 H (1A) of the Employees Provident Fund Scheme, 1952, in case a provident fund member is discharged/dismissed/ retrenched by the employer, and if such discharge or dismissal or retrenchment is challenged by the member and the cases are pending in the Court of law, an officer not below the rank of Asst. Provident Fund Commissioner, on an application from the member in such form as may be prescribed, authorize payment to him of one or more than one recoverable advance from his Provident Fund Account not exceeding 50 % of his own share contribution with interest thereon standing to his credit in the fund on the date of such authorization. In view of the above provision the Regional Provident Fund Commissioner I, Employee’s Provident Fund Organization (Ministry of Labour Government of India) Regional Office, Gujarat, has advised the Complainant accordingly.
23) We also examined the provision of Sec.10 of Provident Fund Act and concerned provisions of CPC regarding Provident Fund. These provisions are regarding the attachment of the provident fund amount of an employee accumulated in his provident fund account. In the instant case there is no question whatsoever regarding the attachment of the provident fund amount of the Complainant by any authority. The prayer of the Complainant in this complaint is to make payment of the provident fund amount of Rs.1,75,000/- to the Complainant. Even the Complainant has not produced any document to show that the amount of Rs.1,75,000/- stands in his name in the said provident fund account.
24) Under the above circumstances, when a suit is pending before the City Civil Court (Suit No.3091/01) for adjudication on the transfer order and termination order of Opposite Party No.2, it would not be proper to allow this complaint and direct the Opposite Parties to pay Rs.1,75,000/- to the Complainant and allow the other prayers of the Complainant made in this complaint.
25) In view of the above observations, we pas the following order -
O R D E R
i)Complaint No.342/2006 is hereby dismissed for want of merits.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties.
