DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.160/7.10.2008 Decided on : 5.6.2009 Sh. Sham Lal, employee of FCI T.A.II, son of Sh. Ram Parkash, resident of Sant Ram Advocate Street, Mansa. ..... Complainant. VERSUS 1.FCI Department, through its Managing Director, Food Corporation of India FCI Headquarters, 16-20, Bara Khamba Lane, New Delhi-110001. 2.The Executive Director(NZ), Zonal Office (North) Food Corporation of India, Khadya purna Sadan, Sector 24, A2A, A2B, Noida (UP). 3.The General Manager, Food Corporation of India,28-B, JDA Commercial Complex, R.H. Jammu (J&K). 4.The Area Manager, Food Corporation of India, 17C/D, Gandhi Nagar, District Office Jammu (J&K). ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. Ram Parkash, Authorized Agent for the complainant. Sh. N.K. Sharma, Advocate counsel for Opposite Parties. Quorum: Sh. Pritam Singh Dhanoa, President. Sh. Sarat Chander, Member. Smt. Neena Rani Gupta, Member. ORDER:- Sh.Sarat Chander, Member 1. Sh. Sham Lal Jindal, son of Sh. Ram Parkash, resident of Mansa who had been serving, with Food Corporation of India on the post of TA II, retired from service, on 16.2.2005. The opposite parties allotted him, Contributory Fund Account No. 06529. The said account is maintained, by OP-2, as per the provisions of Employees Provident Fund Scheme, 1952. The opposite parties, failed to supply, the copies of statement, of account to the complainant, with effect from 1.4.2004, despite his repeated requests. However, the complainant ultimately received the requisite statement, on 24.10.2008. The amount credited to his GPF Contd..2... : 2 : Account was payable, to the complainant on 17.2.2005. He made representation, dated 18.11.2005, to the office of the OP-2 and endorsed, the copy thereof, to OP-3, for payment at his permanent address at Mansa, but the opposite parties, did not take any action, on the representation. The amount deducted from the salary of employees alongwith share of employer is credited to the account, every month. As such the complainant is Consumer, under the opposite parties. On 5.1.2006, the OP-2 released, a sum of Rs. 6,40,000/- on account of part payment of, Contributory Provident Fund, in the name of the complainant, through OP-3 but the complainant received, a sum of Rs. 6,38,720/- on 21.2.2006, through bank draft No. 303965 dated 7.2.2006, issued by SBI, Jammu, drawn on its Mansa branch. The opposite parties deducted, a sum of Rs. 1280/-, on account of bank charges from the amount payable to the complainant for remittance of amount through bank draft, which is unfair trade practice on their part. The final payment was received by the complainant in the sum of Rs. 2,22,034/- on 21.9.2007, through cheque no. 690494, which was credited, to his account, maintained with SBI, Mansa. 2. The complainant sent, representations on 28.1.2008 and 26.8.2008, to the opposite parties, for payment of Rs. 1,280/-, deducted on account of bank charges and for payment of interest @ 18% p.a. due to delay in release of payment, but they failed, to pay the total sum claimed, by him, on that score in the sum of Rs. 59,000/-. The OP-4, vide his office letter No. Estt-S-06529 CPF-082 dated 28.1.2008, sent unsatisfactory reply and information relying upon letter dated 29.11.2006, issued by the Zonal Office, of the opposite parties, regarding release of amount, of Rs. 2,22,034/- on account of final payment. The complainant has denied, contents thereof, in his representation, dated 21.5.2008. The opposite parties have allotted, to the complainant, towards Contributory Provident Fund Scheme vide their letter No. 3472 dated 17.9.2008. The OP-2 released the amount, of Rs. 2,28,295/- on 29.11.2006 minus, a sum of Rs. 6,261/-, deducted on account of income tax deducted at source. The complainant Contd...3.... : 3 : could not claim refund of said amount, in the income tax return, for the financial year ending, due to non receipt of TDS certificates from the opposite parties. He is entitled to, refund of the said amount, due to negligence on their part, to despatch in TDS certificates. As per details, submitted in the paragraph no. 11, of the complaint, has claimed, a sum of Rs. 2,61,092/-, including compound interest on amount paid, by the opposite parties, from time to time, of different amounts upto, date of payment. At the end, a prayer has been made, to give direction, to the opposite parties, to pay him, a sum of Rs. 2,62,291/-, on account of illegal deductions and compound interest and a sum of Rs. 10,000/-, on account of penalty, a sum of Rs. 40,000/-, for mental and physical harassment, a sum of Rs. 5000/- spent on service of notice and equal sum, on account of filing of amended complaint. Hence the complaint. On being put to notice, the opposite parties, filed written version, resisting the complaint, by taking preliminary objections; that this Forum has no territorial jurisdiction, to entertain and try this complaint; that the complaint is, barred by limitation; that the complainant, is not consumer under them, as such the complaint, is not maintainable, in the Consumer Fora; that parties need to lead, collaborate evidence, to prove their respective pleas, as such complaint cannot be decided, in summary manner, by this Forum, as such complaint be relegated, to Civil Court; that complainant was compulsorily retired, from service and he submitted, the requisite comings and after resubmission thereof, his case was sent, to higher authorities, for approval; that the complainant is not entitled, to payment of interest more than 8% per annum; that he did not personally approach, the opposite parties, for receiving the cheque because of which validity period of cheque issued by them expired and in lieu of which fresh cheque, has been issued, on 15.9.2008. As such delay in release of payment, is not attributed, to the opposite parties; that FCI Contributory Fund Trust, is separate entity from FCI, but said organization has not been impleaded, as a party to the complaint, as such complaint is bad for non joinder of said necessary party. Contd...4..... : 4 : On merits, it is admitted, that complainant had been serving, on the post of TA-2, with the opposite parties and has retired, from service on 16.2.2005, but it is denied, that he is consumer, under the opposite parties and there is deficiency in service, on their part, because of delay in making payment of amount, of CPF. It is also submitted, that bank charges are deducted, as per the banking rules, as such he is not entitled, to refund of said amount and payment of interest. It is submitted, that opposite parties, are ready, to submit TDS certificates, to the complainant, if he has not received the same, but he is not entitled to payment, of compound interest, as demanded by him. Rest of the averments made in the complaint, have denied and a prayer for dismissal of the complainant, was made with costs. 4. Both the parties, have led their evidence, in the shape of affidavits and copies of documents. The complainant has also submitted, written arguments. 5. We have heard the authorised, agent of the complainant, Sh. Ram Parkash and learned counsel, for the opposite parties and have gone through, the case file, carefully. 6. As per undisputed facts, available on record, the complainant had been serving, on the post of TA-II, with Food Corporation of India and he has retired, from service on 16.2.2005. It is also not disputed, that during his service period, complainant was member of Contributory Provident Fund Scheme, to which amount, was credited, after deduction of amount, from his salary, alongwith share of employer, by the opposite parties. 7. Sh. N.K. Sharma, Advocate, counsel for the opposite parties, has argued, that complainant has not availed, service of the opposite parties, for consideration, as such he is not their consumer, as defined in the Act and complaint is not maintainable, in the Consumer Fora. 8. The complainant has relied upon, judgment dated 14.12.1999, passed by Hon'ble Apex Court in Civil Appeal No. 411 of 1997 titled as Regional Provident Fund Commissioner Versus Shiv Kumar Joshi, it has been held, that an employee, who is member of Employee Provident Contd...5.... : 5 : Fund Scheme is 'Consumer' in view of terms, the 'Consumer and Service, defined in Section 2(1)(d) and 2(1)(o) of the Act because he is user of services, rendered under the scheme and for which charges are paid, by his employer. It is further held, that user of any service is 'Consumer' and any other meaning, given to these terms, would defeat, the very object of the Act. 9. In view of the law laid down, in the authority referred above, by the Apex Court, we express our inability, to accede to submissions made, by the learned counsel, for the opposite parties, that the complainant does not fall, in the ambit of definition of Consumer, given in the Act. As such, the complaint in the Consumer Fora, in case of non payment of Employee Provident Fund or for awarding of interest, due to delay in payment, thereof on the part of the employer, is maintainable. 10. Learned counsel for the opposite parties, has further argued, that complainant, has been retired from service on 16.2.2005 and the instant complaint, has been filed by him, on 7.10.2008. Learned counsel has argued, that as per provisions of Section 24-A of the Act, complaint before the Consumer Fora, can be filed, by the person aggrieved, within a period of 2 years, from the date on which, cause of action has been accrued, to him, as such complaint filed by him after expiry of said period is barred by limitation. We are not convinced, by the argument advanced by the learned counsel, for the opposite parties, because as per copy of Inter Office Note, dated 11.11.2008, Ext. OP-6, final payment of contributory provident fund, in the sum of Rs. 2,22,034/-, has been made, to the complainant vide cheque no. 752296 dated 27.12.2006. As such cause of action has been accrued, to the complainant on 27.12.2006, who filed the instant complaint on 7.10.2008. As such, the complaint, is well within the period of limitation. 11. Learned counsel has further argued, that account of provident funds of the employees of the opposite parties, are maintained, by the Regional Fund Commissioner but complainant has not impleaded, the said authority, as a party, although he was necessary party, for providing him Contd....6.... : 6 : reliefs, prayed for, in the complaint. As such complaint is bad, for non joinder of said necessary party and is liable to be dismissed, on that ground. 12. The employer of the complainant, was responsible, for the deduction of the amount, from his salary and for payment of the amount due, on his retirement, from service, alongwith share of employer and interest payable, at statutory rate. The statutory body for management of the fund, has been created, for the maintenance of the account and implementation of the scheme. Therefore, in our opinion Regional Fund Commissioner, may be proper party, but not necessary party, for deciding the controversy, raised by the complainant, in the complaint. Therefore, relief cannot be denied, to the complainant, on the ground of non joinder of the Regional Provident Fund Commissioner, as a party, to the complaint. 13. At this stage, learned counsel for the opposite parties has further argued, that the complainant, has been compulsorily retired, from service, as such some delay, in release of the payment of, amount payable on account of Contributory Provident Fund, was natural. Learned counsel has further submitted, that delay in release of 90% of the amount due, has taken place, because of delay in submission of requisite papers, by the complainant who also failed to visit the office, of his employer, for the purpose, because of which amount, was remitted to him, through bank draft payable, at his permanent address, conveyed by him and an amount of Rs. 1,280/-, has been deducted, for issuance of draft charged by the bank concerned. Learned counsel has further submitted, that it is statutory duty of the employer, to deduct TDS at the existing rate and delay in release of final payment, in the sum of Rs. 2,22,034/-, has taken place because the complainant did not, encash the cheque within period of its validity. The learned counsel has also took us through the documents, tendered in evidence, by the opposite parties. 14. The plea of the complainant, as projected in the complaint and written arguments is that his employer, was under obligation, to make payment of, amount of CPF, next day of his retirement, but he has failed to Contd...7.... : 7 : do so and has illegally deducted, the amount of Rs. 1,280/-, on account of bank charges, for issuance of bank draft and due to their failure, to submit TDS certificates, he could not claim refund deducted on account of income tax. The complainant has sought recovery of Rs. 6,261/-, deducted by the opposite parties on account of income tax by the opposite parties and recovery of Rs. 1,280/-, paid by the opposite parties for issuance of bank draft alongwith compound interest, for delay in making payment of amount paid on account of Contributory Provident Fund and amount by way of penalty, harassment, because of notice served upon opposite parties and litigation costs, of filing of amended complaint, as mentioned above. 13. Before proceeding further on the merit of the case, we deem it proper, to mention here, that complainant, has not disclosed, in his complaint, whether he retired, from service, on superannuation or he was compulsorily retired, from service. However, in the head note of representation, dated 18.11.2005, made by him to Zonal Office (North), Foor Corporation of India, Noida(U.P), Ext. C-3, he has mentioned for the first time, that he was compulsorily retired, from service. In the ordinary course, employer is duty bound to initiate process for release of pensionery benefits six month before his retirement, provided, if an employee retires on superannuation, but in the present case, as stated above, complainant has been compulsorily retired, from service. Therefore, some delay was bound to occur, in release of contributory provident fund amount. However, the payment of 90% of the amount due, on account of Contributory Provident Fund, as per the admitted facts, has been made, by the opposite parties, in the sum of Rs. 6,40,000/-, through cheque No. 424472 dated 6.2.2006 and final payment has been made, on 27.12.2006. As such delay, in release of payment, due on account of Contributory Provident Fund on the part of the opposite parties is substantial and explanation given by them for the same is not supported by any documentary proof. Even if the complainant, has been compulsorily retired, from service and he failed to visit their office, for release of amount, the opposite parties were supposed, to remit the amount Contd...8.... : 8 : of initial payment at his permanent postal address, within a period of six months from the date of retirement i.e. upto 16.8.2005 and final payment, within a period of 3 months thereafter i.e. upto 16.11.2005. It is not disputed, that from the amount payable to the complainant, through bank draft, a sum of Rs. 1,280/- has been deducted for remittance of initial payment through bank draft. The amount charged by the bankers, cannot be said to have been retained, by the opposite parties, who have no option, but to deduct the said from the amount payable to the complainant. In our opinion complainant is not entitled, to the refund, of the said amount. 14. The opposite parties have not taken plea, in their written version, that TDS certificates, were sent to the complainant, through post, at his permanent address. Therefore there is deficiency in service, on their part. We find merit, in the stand of the complainant, that he has suffered loss, because he could not claim, refund of amount, deducted by the opposite parties, in the sum of Rs. 6,261/-, in his income tax return, furnished by him in the relevant financial year. Therefore, the opposite parties, cannot escape, from liability, to refund him, the said amount alongwith interest from the date of filing of complaint. 15. We are not convinced, with the submissions, of the complainant made in his complaint, that he is entitled to, payment of compound interest, for delay in release of payment. Since the complainant has been awarded interest, before the date of his retirement, on the amount credited to his contributory provident fund account at the rate of 8% per month, therefore, interest of justice demands, that he be paid, same rate of interest, on account of delay, in making of payment or loss suffered by him. There is no provision, in the Act, for award of amount, on account of penalty in a complaint filed under Section 12. The complainant has sought amendment himself due to his own omission to claim the relief which he considers adequate at initial stag. As such he is not entitled, to payment of any amount, from the opposite parties, for filing of amended complaint. He cannot be granted any benefit of his own omission. Since he is being Contd...9... : 9 : awarded interest till the date of payment, therefore no amount be awarded, on account of compensation simultaneously to him. The cost of litigation also includes the cost of service of notice upon the opposite parties before filing of complaint. The opposite parties have made the payment of amount of Rs. 10154/-, to the complainant vide Cheque No. 002794 dated 14.10.2008, on account of difference in rate of interest. As such they cannot be burdened, with the liability, to make payment of interest on the said amount. 16. For the aforesaid reasons, we partly accept the complaint and direct the opposite parties, to pay him, simple interest at the rate of 8% per annum, with further direction to pay him, interest at the same rate, on initial payment of contributory provident fund made, in the sum of Rs. 6,40,000/-, with effect from 17.8.2005 till the date of payment and on amount of Rs. 2,22,034/- from 18.11.2005 till date of payment i.e. 15.9.2008. The compliance of this order be made within, a period of two months, from the date of receipt of the, copy of this order. 16. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 05.06.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
