DATE OF DISPOSAL: 09.04.2021.
Dr. Aswini Kumar Mohapatra,President:
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he was employed by the O.Ps at Girisola check gate w.e.f. 02.02.2012. The O.P.No.1 and O.P.No.2 are the agents of the O.P.No.3 and O.P.No.4 and the O.P.No.3 and O.P.No.4 are the principal employers. The O.P.No.1 has obtained EPF code No. OR/15852 while O.P.No.2 obtained EPF code No. OR/6307 from the O.P.No.5. Under the provisions of the EPF and MP Act, 1952 the O.P.No.1 and O.P.No.2 are required to deduct the EPF monthly contributions from the complainant and deposit the same with the O.P.No.5. Hence the O.P. No.5 is the custodian of the EPF amounts of the complainant who earns profit out of the same. Under Section 73 read with Section 75 of the EPF and M.P.Act, 1952, the O.P.No.5 is required to communicate the annual statement of members account. On availability of the provisions in the Act, 1952, the complainant was kept in dark with regard to statement of accounts of EPF since the O.P.No.5 failed to furnish the same through the employer establishment i.e. O.P.No.1 and 2. The O.P.No.,1 and 2 have similarly kept silent all along while the complainant was in service. The complainant requested the O.P.No.2 through advocate to furnish the details of annual statement of accounts on 09.10.2017. On receipt of the letter dated 09.10.2017 the O.P.No.3 through Sri S.N.Bhuyan, Asst. Provident Fund Commissioner, (compliance) in his office letter No.3166 dated 13.11.2017 advised to go to the EPFO website as no hard copy of accounts are issued to the members. The aforesaid letter contravenes the provisions of the EPF and M.P.Act, 1952 as stated herein above. The complainant alongwith his advocate went to the Office of the O.P.No.3 on 25.01.2018 met with its P.R.O for necessary ascertaining the EPF account number, balance etc. but was harassed totally without any assistance. The complainant alongwith three other such employees requested the O.Ps in letter dated 01.02.2018 for communication of individual account number including the balance of EPF money stating in EPF and EPS within 15 days. The O.P.No.3 without communicating the details as required requested to contact the employer for ascertaining the P.F. Account Nos/UAN numbers in letter No. 4922 dated 16.02.2018 which violates the provisions of Act, 1952. The O.P.No.1 in his office letter No. 56 dated 15.02.2018 required the presence of the complainant in his office. It may be stated that the complainant is an unemployed having no money for expenses to move to Bhubaneswar and the O.P.No.1 is lawfully liable to intimate the details of EPF/FPF etc. as per the provisions of the EPF and M.P.Act, 1952. For non-communication of the E.P.F/E.P.S in course of the employment w.e.f. 02.02.2012, the complainant has suffered from harassments causing mental agony. The O.P.No.4 and 5 being the Principal employers have failed to exercise authority in communicating the details of EPF/ EPS etc. to the complainant and hence liable to make exemplary compensation. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps for communicating the detail annual statement of accounts of the EPF under EPF code No. OR/15852 and OR/6307, communicating the EPF number alongwith UNA number, compensation of Rs.30,000/- for harassments and mental agony and Rs.5000/- towards cost of litigation in the best interest of justice.
3. Notices were issued to the Opposite Parties. The O.P.Nos. 1, 2, 4 & 5 neither appeared nor filed any written version. Hence the O.P.No.1, 2, 4&5 declared exparte on dated 13.06.2019. Only the O.P.No.3 & 5 appeared through his advocate and filed written version.
4. The O.P.No.3 filed written version through his advocate. It is stated in status of code No. OR/6307 that the complainant has joined in the establishment on 01.06.2015 having P.F. Account No. OR/6307/1652 and the date of exit is 28.02.2017. The UAN number of the member/complainant is 100879090778 allotted but not activated by the employer i.e. O.P.No.2. The annual accounts of the establishment bearing PF code No. OR/6307 (OP No.2 ) has been approved up to the year 2016-2017. Contribution in respect of the complainant not received for the period from 04/2016to 01/2017 for which the employer has been advised vide letter No. PR/OR/BBS/CC-1/6307/137 dated 05.04.2019 to deposit the dues for the said period and to furnish a copy of ECR which is not yet received.
Further status of code No. OR/15852 the employer of OR/15852 has not allotted PF account number in favour of the complainant and also not deposited any dues till date for which the employer i.e. O.P.No.1 has been asked to clarify why the complainant has not been provided with benefits under EPF & MP Act, 1952 vide letter No. PR/OR/BBS/CC-1/15852/125 dated 04.04.2019 and to confirm this office to provide social security benefit to the complainant with other left out employees by depositing dues to his favour which is not yet confirmed. As O.P. No.3 has taken steps for giving benefits to the complainant under the Act by depositing the employers to deposit the EPF dues as admissible, this office has no fault in this case. The employers i.e. O.P. No.1 & 2 may please be asked to comply in respect of the complainant so that this office will be able to settle his case as per the provision of the Act. Hence the present dispute as brought out against O.P.No.3 should not be maintained in the eye of law and may please be dropped.
5. The O.P.No.5 filed written version through his advocate. It is stated that the aforesaid complaint case is not maintainable at all from the very fact of it, as the complainant has no cause of action against the O.P. and as such the aforesaid complaint case was not to be entertained. The complaint petition was to be dismissed at initial stage. The admission of the same is ab initio, bad, illegal and void. The respondent is a creature of statute and discharging quasi-judicial functions as a regulator under the M.V.Act, 1988 and Rules made there under which are special statutes. Any order passed by the respondent is appealable under the aforesaid statutes and can not be adjudicated under the CP Act, 1986. The Hon’ble Supreme Court in a case reported in AIR 1995 SC 1384 held that “Moreover provisions of M.V.Act which is special law would prevail over Consumer Protection Act”. The aforesaid ratio of decision laid down by the Hon’ble Supreme court is squarely applicable to the present case for which it is liable to be dismissed. The averments made in the complaint petition which has not been specifically denied shall be treated as denied. For the foregoing submissions, the consumer disputes are not maintainable against the O.P. and liable to be dismissed.
6. On the date of hearing of the case, we heard learned counsel for the complainant, O.P.Nos. 2,3 &5 and perused the case record and the materials placed on it. Law is very 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 provident fund organization for maintaining the accounts in an account number allotted to the employee. In case such deductions are not made and the amount is not deposited by the employer, it is equally the responsibility of the Provident Fund Organization to collect the same from the employer and in case of failure, there is deficiency in service on the part of the O.Ps. This Commission by relying upon a citation passed by National Commission, New Delhi in Pranaya Kumar padhi versus M/s Ballarpur Industries ltd. and ors 2006 (1) CPR 194 allowed the complainant’s case.
In the result the complainant is instructed to submit calculation sheet duly filled in before the O.P.No.1 & 2 within 15 days from receipt of this order. The O.P.No.1 is directed to allot the P.F account number OR/15852 in favour of the complainant and deposit all the dues of the complainant. The O.P. No.2 is directed to activate the UAN No. 100879090778 which was allotted to the complainant and to deposit the dues of employees contribution for the period i.e. from 4/2016 to 1/2017 and to furnish the copy of the ECR to O.P.No.3. After receipt of the same the O.P.No.3 is also directed to ensure payment of the dues of the complainant within 30 days. This case is disposed of accordingly. No order as to costs and compensation.
The order is pronounced on this day of 9th April 2021 under the signature and seal of this Forum. The office is directed to supply copy of order to the concerned parties free of cost and a copy of same is to be sent to the server of
