This is an application u/s.12 of the C.P. Act, 1986.

          Complainant Sailendra Prasad Thakur by filing this complaint has alleged that he was an ex-employ of Indo-Japanese Industries Ltd. which was declared lock out on 01-12-1994 and this Company did not withdraw the lock out and observing that situation complainant decided to withdraw its full and final PF Amount.

          Ultimately, complainant applied on 11-11-1996 to PF Organization for payment of full and final dues against his PF Account and PF Commissioner paid complainant Rs.71,122/- vide cheque no.24796908 on 04-06-1987 vide PF Account No.WB/5917/439 and on receipt of the said cheque amount complainant found that PF Commissioner or Organization paid him a lower amount than that of the actual amount.

          Fact remains complainant worked for gain in the said company up to 31-01-1994 and the employer of the complainant deducted PF contribution up to 31-01-1994 and his company deposited the same to PF Organization up to February, 1994.

          So, the complainant made several complaints and reminders to the PF Organization and against that PF Organization informed vide their letter dated PGS/WB/5917/RB/295/409 dated 09-02-1999 that PF Organization paid the dues taking contribution up to month of February, 1990 and also reported that there was no return submitted for the subsequent period from the employer so the said PF Organization was not in a position to consider the case of the complainant for the subsequent period.

          Against that complainant made several correspondences informing about the said amount of the said period and also asked the PF Commissioner to take step against the authority of the company who deducted the sum but did not deposit the said account to the PF Organization and PF Organization reported that they have taken up the matter for investigation and subsequently reported that the Enforcement Officer of the PF Organization could not collect the required documents due to non availability of the records and also submitted that the letter of the complainant was sent to Enforcement Department for necessary action and also reported that the action should be taken after receipt of report of the Enforcement Branch of the Organization.

          Subsequently, OP1 informed that after verification of contribution card and subsequently reported that the organization searched out contribution cards up to 03/1990.

          Complainant further submitted that employer regularly submitted the return as well as challan in time and as because the company is under liquidation which was lying in the custody of the liquidator.

          On 06-03-2007 PF Organization informed that the Calcutta office reported that PF of the complainant settled at Rs.71,122/-

          Ultimately, complainant was confirmed that PF Organization is not willing to consider the subsequent PF deposit by the employer in respect of the present employee of that Company for the period from 1990-94 and it has been done deliberately by the OP PF Commissioner and for which complainant prays for necessary order directing the OP to pay Rs.2,13,975/- which includes the principle and interest thereon which is in the custody of the OP  PF Commissioner and as because the PF Commission did not discharge their duty and release the amount.  They practically performed their duties negligently and in deficent any manner for which complainant has prayed for relief.

          On the other hand, the PF Commissioner by filing written version submitted that in view of the application of the complainant the OP1 duly disbursed a sum of Rs.71,122/- against PF A/c. No.WB/5917/439 dated 04-06-1997.  Subsequently, OP received the complaint about non-payment of arrear dues for subsequent period i.e. from March, 1990 to January, 1994.  But fact remains no return was submitted by the employer for the subsequent period as such the OP1 is not in a position to consider any further claim of the complainant.

          Further it is submitted that the company went on liquidation and subsequently liquidator was appointed by the Hon’ble High Court unless and until official liquidator supply required document to settle the claim of the complainant OP1 is not in a position to settle the same.  In the above situation OP submitted that official liquidator should be necessary party for proper adjudication of the claim of the complainant and there was no deficiency on the part of the OP in rendering service to the complainant as such the question of compensation does not arise and at the same time the claim of the complainant cannot be adjudicated by the OP1 only for non-cooperation of the company and their present liquidator and in the circumstances, OP prayed for dismissal of the case.

Decision with Reasons

On an indepth study of the complaint and the written version and also considered the admitted position of the complainant as an ex-employer of the Indo Japanese Industries Ltd. and truth is that Indo Japanese Industries Ltd. is now under the control of the official liquidator as the said company was closed finally and also admitted position is that the present OP Employees’ Provident Fund Organization already settled the claim of the complainant in respect of his provident fund and ultimately released a sum of Rs.71,122/- on 04-06-1997 to the complainant in the Savings Bank Account No.615 of complainant Sailendra Prasad Thakur and complainant admitted that he had received it and no doubt his provident fund account number is WB5917/439 and that amount was released up to the period March, 1990.

          But whole grievances of the complainant is that he has not yet received the balance amount up to January, 1994 because he is no more in the service of the company when the company was declared closed and ultimately he resigned on 31-01-1994 and complainant has claimed PF account as accrued against his account up to 31-01-1994 starting from March 1990 and in this regard no doubt OP reported to the complainant on several occasions that full and final payment in respect of his claim amount other than the amount already paid by the PF Commissioner cannot be settled for non-availability of payment return in respect of the establishment which is not available since March, 1990 and it was reported by the EFP authority on 07-10-2005 thereafter, by several letters and ultimately it was reported that it is not available from the office of the official liquidator so, complainant and subsequently Sushmita Pal receiver of Indo Japanese Industries Ltd. were informed by official liquidator, High Court, Calcutta that the PF claim of the ex-employee of the Company in liquidation is under process for settlement for which proper verification of the books and records are necessary.  But Assistant Official Liquidator reported to the receiver Sushmita Pal that those records are kept under the custody of Sushmita Pal and she was requested to allow enforcement officer of the Provident Fund Organization to inspect the required books and records by fixing a suitable date as early as possible.  But practically, PF Commissioner did not act and they did not pay any heed to that and did not take any such step for verification of those documents regarding deposit of the Employees’ Provident Fund after taking it for employees salary per month for the period March, 1990 to February, 1994 but truth is that the complainant has produced triplicate challan copy of the deposit of the Employees’ Provident Fund in respect of the complainant’s account to the Bank in the name of the EFP Organization.  OPs have not deny that fact but their only plea is that they have failed to verify the same for which it is not possible but question is how long EPF Commissioner shall be sitting idle to verify the balance of PF Account which has been really deposited by Indo Japanese Industries Ltd. in the name of the complainant from March, 1990 to February, 1994 and thereafter.    Subsequently, from the letter dated 03-03-2004 it is found that complainant’s PF Account’s verification as intended has already been taken and stated that they get some records so enforcement officer of the Department submitted a part report and for which a further investigation is in progress and in so many action Assistant Provident Fund Commissioner reported to the complainant that full and final payment of the claim of the complainant for the PF Contribution period from 1991 to 1993-94 cannot be settled for want of document from official liquidator.  So, further payment cannot be made at present and considering the above fact it is clear EPF Organization is aware of the fact that amount has been deposited in their account for the period from March, 1990 to February, 1994 but only for non-verification of the same by EPF from Official Liquidator of the OP2’s Company it has not been settled, therefore, it is no doubt laches on the part of the OP and for the OP’s inaction and for not taking such positive steps and for negligent manner of service practically complainant has been suffering for long period.  Fact remains that the Company was closed and it was under the control of the official liquidator appointed by the Hon’ble High Court.  Receiver is also appointed i.e. by the Hon’ble High Court in respect of that Company then it is the duty of the EPF Commissioner to sent to official liquidator for verifying the documents and it was reported to the EFP Authority that Sushmita Pal shall have to provide all documents but OP EPF did not discharge their duties and practically no reason was shown by the EPF for what reason they have not settled the claim so, considering all the facts and circumstances, we are convinced to hold that the present EPF Organization is very much negligent and deficient in rendering service to ill-fated employee who lost his service for closure of the Company and for appointment of liquidator by the Hon’ble High Court.

          Now, question is whether the complaint is time barred.  In this regard we have gone through the entire document and also material, papers and it is found that it is not time barred because the official liquidator is the authority to give all such materials but OP did not meet with them and for which under any circumstances, the complainant cannot be treated as negligent in filing this complaint because the complainant cannot do anything with the official liquidator but official liquidator shall have to act as per requirement to the EPF Organization not as per request of the complainant and it is a continuous cause of action because EPF cannot grab money of ex-employees but it is their duty to hand over the amount with interest up to date from March, 1990 but that has not been done then it is always continuous in nature when laches on the part of the OP EPF Organization is well-proved for which we have gathered that the EPF has been harassing the complainant without any reason and practically on the part of the EPF Authority the complainant is being harassed and he has been suffering from mental agony, no doubt EPF Authority acted illegally and they did not take any such initiative for which the employees who are the present complainant who are the beneficiary of the PF Scheme is being suffered by the officer of the present OP EPF Organization and for which the complainant is entitled to entire PF Account along with interest 18% with effect from March, 1990 till full payment by the EPF Authority including damages and fact remains Op EPF Authority has failed to show their accountability though that it is a government organization and at the same time the delinquent act of the employees of the EPF Authority is well established by the complainant and no doubt the EPF Authority shall have to pay compensation to the complainant including litigation cost and also to return the entire cumulative PF Account along with 18% interest to the complainant till full payment of the same.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- (Rupees Ten thousand only) against the OP1 and same is also allowed against OP2 but without any cost.

          OP1 is hereby directed to refund and pay the entire cumulative PF Account of the complainant against PF Account No.WB 5917/439 along with 18% interest over the same with effect from March, 1990 and upto date till full payment of the same by the OP to the complainant.

          OP1 is also directed to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) as punitive damages as unfair practice, negligent act and also for delinquent attitude of the Department in releasing the said PF Amount to the complainant and for not taking any step with the regard the liquidator who has been appointed by the Hon’ble High Court in respect of the OP2 and if said amount is collected it shall be deposited to the Forum.

          OP1 is hereby directed to comply the order of this Forum very strictly and positively by 20^th February, 2014 failing which for non-compliance of the Forum’s order penal action shall be taken against them and for each days delay further penal interest @Rs.500/- shall be assessed against the OP1 and same shall be deposited by the OP1 in this Forum otherwise penal proceedings u/s.27 of the C.P. Act, shall be started for which OP1 shall be legally responsible.