BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad B.A., LL.B., President
Sri R.Ramachandra Reddy B. Com., LL.B., Member
Friday the 12th day of August, 2005
CD No.124/2004
J.Sreenivasa Reddy,
S/o. J.Muneppa,
Secretary,
Largersized Co-Operative Credit Society
(L.S.C.C.S) Ltd., P.No. 996,
Devanakonda, Kurnool Dist,
Kurnool. . . . Complainant.
-Vs-
1. M. Lakshmi Narayana,
Chief Secretary,
Larger Sized Co-Operative Credit Society
Ltd, P.No. 996, Devanakonda,
Kurnool Dist.
2. M. Durga Prasad,
Enforcement Officer,
Employees Provident Funds,
Kurnool.
3. The Employees Provident Fund
Commissioner, E.P.F. Organization
Sub-Divisional Office, 1-30,
R.S. Road, Cuddapah 516 004, A.P. . . . Opposite parties
This complaint coming on 11.8.2005 for arguments in the presence of Sri G.Nagaraju, Advocate for complainant, Sri L. Viswanadham, Advocate for opposite party No.1 and opposite party 2 and 3 represented by Inperson, the Forum made the following.
O R D E R
1. This CD case of the complainant is filed under section 12 & 14 of CP Act seeking direction on the opposite parties for refund of contributions made to employee Provident fund from April 1996 till June 2002 amounting to Rs. 1,26,792.54 to the complainant along with interest at 18 percent per annum on said amount from August 2002 for delaying the payment, compensation of Rs. 50,000/- for mental agony suffered at the conduct of the opposite parties in delaying the payment, and Rs. 5,000/- as costs and other reliefs which the exigencies of the case demand, alleging deduction of EPF amount from the salary from the complainant by the opposite party No.1 and crediting it to EPF account regularly since April 1996 till June 2002 and the non payment of amount accumulated on account of contribution of complainant and his employer, when applied in August 2002 consequent to the termination of his services and on subsequent approaches and notice caused on 28.9.2004 except giving evasive reply and there by the deficiency of service of the opposite parties.
2. In pursuance of the receipt of notices of this case of the complainant, the opposite parties 1 to 3 caused their appearance and contested the matter denying of any of their liability to the claim of the complainant.
3. The written version of opposite party No.1 deny any of his status as Chief Secretary of said society and any authority to deal with the contributions to Employees Provident Fund, as the complainant enrolled to the Employees Provident Fund Member ship through Larger size Co-operative credit society limited, Devanakonda, and not though opposite party No.1 and the former (said society) is only responsible for any deduction, contribution and remittance of amounts to the Employees PF account. Hence the complaint against the opposite party No.1 was in suppression of real facts. It denies any alleged termination of services the of the complainant and there by any right to seek refund of the accumulated contribution of Employees Provident Fund as the complainant is still in service, attending duties and signing attendance register and received the salary from the collections made from members owing due to the society. The opposite party No.1 being neither employer nor anything to do with the disbursement of salary and contributions form the salary of the complainant, denies of any deficiency of service on its part and there its concerned to this case and any valid cause of action against him denying any status of “consumer” to the complainant.
4. The written version of the opposite party No.2 firstly questions the maintainability of the complainant’s case in person against him as he merely acts according to the direction of departmental superiors such as opposite party No.3 for administrating the EPF and Misalliances Provisions Act 1952, secondly questions the bonafidies of the alleged approach of the complainant seeking for refund for want of substantial cogent material, thirdly the society where the complainant is working prima-facie do not come under the statutory per view of EPF and Miscellaneous Provisions Act, 1952, unless it has the employment strength of 50 persons or said society applies for it and the said society as approached for coverage of EPF benefits to its employees only in May 2002 and as such the said establishment was covered under the said act with effect from 1.5.2002 only not earlier to it and hence necessary coverage intimation was sent to the employee of the said society accordingly and thus the opposite party No.2 is not aware of any deduction prior to 1.5.2002 and of any remittances of the amount and there by disowns of any liability for any early deductions and last by allege no deficiency of service on its part and seeks dismissal of the complaint.
5. The stand of the opposite party No.3 in addition to the pleading of opposite party No.2 is that the employer of said society submitted Annual return in Form No.3A for the year period commencing from 1.5.2002 and Rs. 10,574/- and Rs. 4,971/- were credited as contributions of employee’s share and employer’s respectively and its intimation was given to members under account slips issued in Form No.23 through employer vide its office letter No. AP/ 38924/AG-II-2 /CDP/2004/207 dt 30.8.2004. As the complainant has not submitted any claim form in Forum No. 19 and 10C for any final settlement of his EPF and pention fund accounts and the said cannot be settled without submission of said claim forms and hence submit that no deficiency of service could be attributed to him and so, for want of bonafidies in the complainant’s case seeks its dismissal with costs.
6. In substation of the contentions while the complainant’s side had relied upon the documentary record in Ex A.1 to A.34 and his sworn affidavit in-reiteration of the complaint avernemtns, the opposite parties has relied upon documentary record in Ex B.1 to B.7 and sworn affidavit in reiteration of its defence.
7. Hence, the point for consideration is whether the complainant has made out his status as consumer and the entitleness for the claim made?:-
8. The Ex A.1 is the statement of arrears pay bills pertaining to the complainant covering the period from April 1996 to July 1999, issued by President/ Secretary of the Devanakonda Larger sized Co. Operative credit society limited P. No. 996. From its heading it appears that it was prepared as per the revised pay scales in pursuance of interim orders of the High Court of Andhra Pradesh in WP No. 28444 dt 31.10.1997. The amounts in colum No. 8 while shows the amount to provident fund at 12.5percent salary shown in the colum No. 5, the amount of colum No. 12 indicates the total amount for provident fund including the contribution made by the society. Neither the said Ex A.1 is saying the credit of the amounts of Colum No.12 to any PF account pertaining to the complainant or said society. Nor any material is placed by the complainant side to the effect that the said amount of Colum No.12 was credited to any PF account No. pertaining to the said society or the complainant.
9. The entries of cash book in Ex A.4 to A.32 for the period commencing from 18.9.99 to 8.5.2002 envisages the PF adjustment. None of those entries say the account no of PF of the complainant or any adjustment of it with reference to any account No. Nor any material is placed by the complainant side to the effect that the said society wherein the complainant is working as employee was covered under the said employees PF fund and miscellanies Provision Act, 1952 from April 1996 itself extending its benefits to the employees of the said society, including the complainant. Hence the said entries in Ex A.1 and A.4 to A.32 as to adjustment to PF or unilateral entries without any binding force of them on the opposite party No.2 and 3 especially when the legal notice of the complainant in Ex A. 33 even takes any mention of the EPF account No. of the complainant/ or of the society to which the PF amounts including that of the complainant were credited to and when the contentions of the opposite parties and the material in Ex B.4 to B.7 say the commencement of the EPF privilege to the said society where complainant is working, is from 1.5.2002 and consequent to there on, the annual returns were submitted by the employer of the complainant as to the contributions to employees PF fund of its unit employees.
10. The Ex A.2 is a mere resolution of the employer society of the complainant. It dates to 20.6.2003 recommending the termination of complainant (J. Sreenivasa Reddy) from his post of society Secretary to the approval of the Registrar. No material is placed by the complainant’s side to the effect that the said resolution was approved by the Registrar and consequently the complainant was terminated from his post. In the absence of any such material, it is very hard to believe that the complainant was terminated of his services, especially when the attendance register entries for the month of August 2004, September 2004, October 2004, November 2004, December 2004 and January 2005 marked in Ex B.2 bearing his signatures in said register of attendance envisaging him still as employee of said society during the above said period also.
11. As the opposite party No.1, from the Ex B.3 certificate issued by the person incharge of said society envisages the complainant and as well as OP No.1 as mere secretary of said society and not as employee and employer and further all of them were working under the person incharge/ president (i.e the undersignee of it ) . Hence the description of OP No.1 as Chief Secretary of said society mentioned in the cause title of the complaint, appears to be a misnomer and in the absence of any cogent material, linking the opposite party No.1’s authority to make said provident fund adjustment, the case against the Op No.1 remains with out any merit and force. As the personal shown in Ex B.3 were said to be working under person incharge/ President, the accountability if at all for any PF adjustment made from the Salaries of its employees, shall lie with said employer and not the opposite party No.1. The said administrative authority being not sued by the complainant, there appears any liability, or any deficiency of service on the party of the opposite party No.1 who appears to have no concern to the grievance of the complainant from the very document record relied by the complainant.
12. A “consumer “is defined under section 2 (d) of Consumer protection Act as any person hugs goods for consideration or who hires or avails any services for consideration. Section 2 (o) of the said act exclude from the scope of the act, the service rendered free of charge. The complainant he as not made out either in the complaint or in the material he relied in this day, as to consideration from himself to the opposite party No.1 for the services he expects from him and there by to asses the deficiency of service in that regard. Hence the complainant is not satisfying the requirement’s of ‘consumer’ for considering his dispute against OP No.1 under consumer protection act.
13. While such is so it is submitted in reference to section 61 (1) of Co-Operative society act 1969 that the disputes touching the constitution, management and business of the society of the past, present and any employee has to be decided by the Registrar and not by any other. In reference to decision of Andhra Pradesh High court reported in 2003 (7) ALT Pg 897 in S. Anjaiah Vs General Manager Mandamarri Division Singareni Colleries Company Ltd and others it is further submitted that the matters relating to the deductions made form the salary of employee falls within the business of the society and thereby ousts the Jurisdiction of the Forum to entertain such matter as the Registrar is proper authority. Ever as per the minutes book and cash book entry, they appear to be business of the society, the disputes regarding with as to be decided only by the Registrar under Section 61 of supra stated Co- operative society act. In reference to the decision of the Hon’ble Supreme Court reported in Gajiabad development authority Vs Balbir sing reported in AIR 2004 S.C page 2141 it is submitted that the misfeasance in public office amounts to deficiency of service of said public authority and so vests jurisdiction in consumer Forum for entertaining it. But in the present case any such misfeasance was alleged against said society. Nor it does specifically alleged the amounts deducted form the salary of complainant along with the contribution of said employer society was with held malafidely by the opposite party No.1 for said society. Hence any misfeasance could be inferred against the op No.1 to attract the applicability of the rationale of the supra stated decision.
14. The decision of Hon’ble S.C in Secretary Thirumurgan co-operative agricultural credit society Vs M. Lalitha (dead ) through L.R.S and others reported in I (2004) CPJ pg 1 (SC) holds the maintainability of the complaint in Forum in reference to section 90, 156 of Tamilanadu Co-Operative Society Act as to disputes between member and management not accepting the contention that the jurisdiction of all Courts including consumer Forum is Ousted by Tamilanadu Co-Operative Society act 1983- As the remedy under the Consumer Protection Act,1986 is in addition to and not in derogation of other remedies available. The Complainant here in is not a member of the society but his a employee of the said society and there by his privy with that society is employee and the society as is employer. As the dispute of the complainant with the opposite party No.1 being not a dispute as a member with management but as employee against a co-employee of the society the case of the complainant consequently folls sequearely out of the scope of supra stated decision and so, the said case is not of any avail to the complainant for its adoptability to the circumstances of this case.
15. The decision of Hon’ble State Commission of India in Regional Provident Fund Commissioner Vs Shivakumar Joshi reported in 2000 (1) Loss summary Pg 29 as been placed to say member of employees PF scheme under PF act is a consumer within the meaning of consumer protection act as payment of administrative charge is the consideration for the service to the member of said scheme and hence the PF scheme is a service within the meaning of section 2 (1) (o) of CP Act and so provisions of CP act can be invoked against the PF commissioner by a member of employees provided fund scheme.
16. From the Ex B.4 and B.5 of the society to which the complainant is a employee, it appears that a requision was made to Asst PF commissioner sub reasonal office, RS road, Cuddapah to give coverage of benefits of said employees PF scheme form 1.5.2002 on wards and vide Ex B.6 in exercise of powers under section 1 (4) of said act the coverage of said scheme to the employees of said society was given from 1.5.2002 and it was acted upon from thereon wards by submission of annual return in Ex B.6 in Form No. 6A by the said society. Hence, what follows form the above is that the coverage benefits of the PF scheme was given to the society where the complainant is working, with effect from 1.5.2002 on wards and by that it goes without any further say that prior to that the employees of said society were not under coverage of said EPF scheme Therefore the liability of the PF authorities if any commences form the contributions made with effect from 1.5.2002 on wards and not earlier to it as the accountability for any earlier so called PF adjustments of the complainant in said circumstances lie with the said society with must have caused such adjustments. Hence, no deficiency of service could be attributable to the opposite party 2 and 3 for not complying the request for payment demanded in Ex A.33 especially when the amounts payable to the complainant were not applied by the complainant in Form 19 and 10 (c) and when there is assurance in Ex A. 34 reply of the PF authorities, to settle the account on receipt of claim Forms.
- In the absence of any material that the complainant has made an appropriate approach to the PF authorities for seeking refund of the amounts which he legally entitled, no dispute can be inferred and there by any deficiency of service of PF authorities to attract the rational of supra stated decision on the opposite party No. 2 and 3.
18. As per Prevision No. 69 of the EPF scheme 1952, a member of EPF scheme can with draw full amount, standing to his credit on retirement from service after attaining the age of 55 years or in termination of service earlier to the age of 55 years on attaining the age of 55 years on in case of mass termination or individual retrenchment or an voluntary retirement etc.
19. In the present case the complainant alleges himself as was terminated by his employer. Under prevision No.5 of employees PF scheme, 1952 every employer shall, at the time when a member of fund leaves the service, be required to get the claim application for payment of PF in cases specified in clause A to D of Subparagraph one (1) of Paragraph No. 69 duly filed in and attested and to forward the said application, within 5 days of its receipt to the commissioner or any officer authorized by him in this behalf. By reading of the above, it appears obligatory both on the employee to duly fill the application for refund of the amount and there on the employer to attest the same and forward it within the stipulated period therein. In the absence of any such material as to compliance of the requirement of supra stated Proviso by the complainant and his employer no deficiency of service could be found on opposite party 2 and 3 for not settling the account due to the complainant. When the complainant is at short of certain wantings on his part and his employer to sum extent to get the claim settled the opposite parties 2&3 cannot be blamed of any deficiency of service as the mere coverage of the scheme does not fetch the benefits but his application for it under contingencies entitling to the required fund. Hence even if the obligation of PF authorities to the member of said scheme is taken as service for consideration and there by jurisdiction to the Forum to entertain it, for want of compliance of certain statutory requirements by the complainant and his employer there arises any matter for settlement by opposite parties and there by to workout any deficiency of service on their part.
20. Further the opposite party No.2 is not a sanctioning authority. He is placed for administration and enforcement of the PF Act at Kurnool under the instructions of Op No.3 and his superior. Hence suing him in his personal capacity for any imaginary deficiency even is improper.
21. Further from Ex B.1 dated 20.9.2003 it appears that all the present grievances of the complainant were decided by the Divisional Co-operative officer dropping further action as the amount alleged there were received by the complainant by adjustment under “Due By “ for which the complainant has not issued any receipt. Hence in the light of the Ex B.1 it appears that the complainant has set up this case in suppression of same material facts which were concerned in this case were already decided and hence there by casting a shadow of doubt on the very bonafidies of the complainant’s case itself and there by his any entitleness for the claim made.
22. In sum of the above discussion as there is no liability for OP No. 2&3 for accounting any deductions earlier to 1.5.2002 and the OP No.1 being not employer of the complainant for holding any of his liability for show called deductions made for PF earlier to 1.5.2002 and the status of the complainant against opposite party No.1 being not a consumer and the complainant as has not complied with statutory requirements for with drawing the PF amounts form OP No.3, there appears any deficiency of service on the part of the opposite parties and so the case of the complainant fails for want of bonafidies and proper cause of action and proceeding against right person in a right manner.
23. Consequently, the case of the complainant being vexatious litigation against in proper parties without justifiable circumstances, the case of the complainant is dismissed with costs, awarding Rs.2,000/- as exemplary costs to each of the opposite parties and granting time of one month to the complainant for payment of the awarded costs to the opposite parties.
Dictation to the Stenographer, typed to the dictation corrected by us Pronounced in the Open Court this the 12th day of August, 2005
PRESIDENT
MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite parties
-Nil- -Nil-
List of Exhibits Marked for the complainant:-
Ex A.1 Arrears pay bill of EPF deductions from 1.4.1996 to
31.7.1999 (True copy).
Ex A.2 Meeting book P.NO. 93 dt 20.6.2003.
Ex A.3 Xerox copy of letter dt 3.7.2002 of Op NO.3 addressed to OP,
Receipt of Rs.6,080/-.
Ex A.4 Adjustment to deduction of PF of Rs.1921.80/- at page
No. 141, dt 18.9.1999 under SL. No. 235.
Ex A.5 Cash book entry page No. 171 dt 1.10.1999.
Ex A.6 Cash book entry page No. 229 dt 10.11.1999.
Ex A.7 Cash book entry page No. 257 dt 1.12.1999.
Ex A.8 Cash book entry page No. 317,dt 3.1.2000.
Ex A.9 Cash book entry page No. 407, dt 13.2.2000.
Ex A.10 Cash book entry page No.471, dt 16.3.2000.
Ex A.11 Cash book entry page No.7, dt 4.4.2000.
Ex A.12 Cash book entry page No.47, dt 4.5.2000.
Ex A.13 Cash book entry page No. 167, dt 7.6.2000.
Ex A.14 Cash book entry page No. 385, dt 11.7.2000.
Ex A.15 Cash book entry page No 447, dt 4.8.2000.
Ex A.16 Cash book entry Page No. 571, dt 4.10.2000.
Ex A.17 Cash book entry page No. 695, dt 14.11.2000.
Ex A.18 Cash book entry page No. 741, dt 16.12.2000.
Ex A.19 Cash book entry page No. 29, dt 5.1.2001.
Ex A.20 Cash book entry page No. 173, dt 17.3.2001.
Ex A.21 Cash book entry page No.39, dt 20.4.2001.
Ex A.22 Cash book entry page No. 67, dt 8.5.2001.
Ex A.23 Cash book entry page No.225, dt 11.6.2001.
Ex A.24 Cash book entry page No.361, dt 11.7.2001.
Ex A.25 Cash book entry page No.407, dt 1.09.2001.
Ex A.26 Cash book entry page No. 427, dt 18.8.2001.
Ex A.27 Cash book entry page No. 455, dt 16.11.2001.
Ex A.28 Cash book entry page No. 491, dt 11.12.2001.
Ex A.29 Cash book entry page No.533, dt 08.01.2002.
Ex A.30 Cash book entry page No.665, dt 11.3.2002.
Ex A.31 Cash book entry page No.09, dt 8.4.2002.
Ex A.32 Cash book entry page No.67, dt 8.5.2002.
Ex A.33 issued legal notice dated 28.9.2004.
Ex A.34 Reply letter of opposite party No.3 to complainant dated 5.10.2004.
List of Exhibits marked for the opposite parties:-
Ex B.1 Enquiry report addressed to Joint Register/ Dist Co-OP. Office, Kurnool
Rc No. 1729/2003-A, dated 20.9.2003.
Ex B.2 Xerox copy of Register of Attendance and Fees for the month of
August, 2004. Name of the institute L.S.C.S, Devanakonda.
Ex B.3 Certificate issued person-in-charge, dt 19.3.2005.
Ex B.4 Xerox copy of letter Extension of employees PF and voluntary basis
With effect from dated 1.5.2002.
Ex B.5 Xerox copy of letter employees EPF and Miscellaneious Provisions with
effect from 01.5.2002.
Ex B.6 Intimation letter dt 19.6.2002 addressed to President, M/s. The
Devanakanda Larger Sized Co-Op Credit Society Ltd, Devanakonda Post
& (M), Kurnool.
Ex B.7 Form 6A, Employees PF Scheme and employees permission scheme
Period from 1.4.2002 to March, 2003.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri G. Nagaraju, Advocate, Kurnool for the complainant.
2. Sri L. Viswanadham, Advocate, Kurnool for the opposite party No.1
3. M.Durga Prasad, Enforcement Officer, Employees Provident Funds, Kurnool.
4. The Employees Provident Fund Commissioner, E.P.F. Organization Sub-
Divisional Office, 1/30, R. S. Road, Cuddapah 516 004, A.P.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
