Haryana

Ambala

CC/246/2020

Gulshan Kumar - Complainant(s)

Versus

M/s Eagle Hunter Solution Ltd - Opp.Party(s)

Anil Kumar

01 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	246 of 2020
Date of Institution	:	23/10/2020
Date of decision	:	01.03.2023

 

Gulshan Kumar son of Shri Mohinder Singh, resident of VPO Jalbera, Tehsil & Distt Ambala.

          ……. Complainant.

                                                Versus

1. M/s Eagle Hunter Solution Ltd. through its Managing Director, Situated at 61- C, Eagle House, Kalu Sarai, New Delhi-110017.
2. The Employees Provident Fund through its Regional Officer, Regional Office, 28, Community Centre, Wazirpur Industrial Area, New Delhi-110052.

                                                                                   ….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Anil Kumar Punia, Advocate, counsel for the complainant.

                    None for the OP No.1.            

                   Ms. Jyoti Kaushal, Advocate, counsel for the OP No.2.              

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To settle the Employees Provident Fund of the complainant from 1-12-2014 to 20-2-2018.

2. To make payment of Rs.1,00,000/-, as compensation on account of deficiency in service and loss caused to the complainant on account of non-availability of EPF.
3. To pay Rs.10,000/- as costs of litigation

OR

Grant any relief which this Hon’ble Commission may deem fit.

 

2.             Brief facts of the case are that OP No.1 is doing business under the name and the style M/s Eagle Hunter Solution Ltd. and its head office is situated at New Delhi, which provides security guards to the offices, banks and ATM etc. for security purpose. On 01-12-2014, the complainant was appointed as security guard in the Axis Bank, Dhurkra, Ambala under the management of OP No.1 and before appointment the complainant completed all the formalities and paper work as per the instruction of the OP No.1. At the time of appointment the salary of the complainant was fixed for Rs.13,156/-, per month and a sum of Rs.1579/-, per month was contributed by the complainant to OP No.2 as Employees Provident Fund from his salary, for which he was provided PF No. DL/11810/61761 and ESI No.2416475667. However, on 20-2-2018, due to some unavoidable circumstances the complainant could not continue his job at Axis Bank, Dhurkra and as such resigned.  In the month of March-2018, the complainant contacted the OPs and claimed his Employees Provident Funds, which was deducted from his salary during his job at Axis Bank, Dhurkra Ambala but they failed to pay the same. Ultimately, the complainant through his counsel issued a legal notice dated 29.1.2020 upon the OPs. Resultantly, the OPs contacted the complainant telephonically in the second week of Feb-2020 and asked him to visit their office for receiving the Provident Fund. In the month of March-2020, the complainant alongwith his relative visited at the office of the OPs but of no avail and ultimately the OPs refused to pay the amount. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections to the effect that the complainant is not a consumer as defined under the Consumer Protection Act. On merits, it has been stated that the complainant has already settled all his dues from OP No.1 after he had resigned from services and there after due to his own failure of not processing the claim properly with EPF Department he cannot blame the OP No.1 for the same. There is no deficiency of services at the part of OP No.1 1 as it had timely deposited all the contribution of employees' provident fund with concerned Government EPF Department. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that this complaint is not maintainable;  the complainant has got no cause of action against OP No. 2; the real dispute, if any, is between the complainant and OP No.1; the complaint is bad for mis-joinder of the parties etc. On merits, it has been stated that OP No.2 has not received any contribution on behalf complainant from OP No.1. As per EPFO records, PF No. DL/11810/61761 is allotted to Sh. Gulshan Kumar S/o Sh. Krishan Nandan Ray who joined PF membership of M/s Eagle Hunter Solutions Ltd. (DS/NHP/11810) on 01/01/2015 and left his service on 18/09/2018. The said PF member has already withdrawn his provident and employee pension fund accumulation and there is no balance remaining in his PF account. On receipt of notice of this Consumer Complaint, the establishment M/S Eagle Hunter Solutions Ltd. was approached for submitting its clarification on the issue. OP No.1. vide its letter dated 09/12/2020 has submitted its clarification as under:

"Dear Sir,

This refers to your letter No. DL (S)/A/C-04/DSNHP/11810/4847 dated 02/12/2020 on the above caption subject.

In this regard it is submitted that management will deposit the detected contribution amount in his account and documents will be submitted before the consumer court to close the proceedings and details will also be supplied to work man and on that basis, he will submit his withdrawal form at EPFO office to release his funds and PF settlement. AR of Eagle Hunter solutions limited will attend and materialise the issue on that date only and EPFO will be appraised about the settlement of case.

In view of above facts and circumstances, it is requested to close the proceedings because management of Eagle Hunter solutions limited is already serious to close the issue on merits or any other solution from EPFO authorities to resolve the matter". A copy of the same is annexed as Annexure 1.

Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with costs.

5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-4 and closed the evidence on behalf of the complainant. OP No.1 failed to tender evidence despite availing number of opportunities, therefore, its evidence was closed vide order dated 30.01.2023. Learned counsel for the OP No.2 tendered affidavit of Pankajakshy Nallat, Assistant Provident Fund Commissioner (Legal), at Regional Office, Delhi (South), EPFO Complex, Plot No.23, Sector 23, Dwarka, New Delhi-110077 as Annexure OP-2/A alongwith documents Annexure OP-2/1 to OP-2/3 and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the complainant and learned counsel for the OP No.2 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that despite the fact that an amount of Rs.1579/- per month was contributed by the complainant to OP No.2 as Employees Provident Fund from his salary, through OP No.1, yet, when he resigned from his job on 20-2-2018 and contacted the OPs number of times for payment of amount accrued in his PPF account, they failed to pay the same, which act amounts to deficiency in rendering service on the part of the OPs.
8.           On the other hand, learned counsel for OP No.1 submitted that the complainant has already settled all his dues with the OP No.1 after he had resigned from services and there after due to his own failure of not processing the claim properly with EPF Department he cannot blame the OP No.1 for the same.
9.           Learned counsel for OP No.2 submitted that OP No.2 has not received any contribution on behalf complainant from OP No.1. She further submitted that as per EPFO records, PF No. DL/11810/61761 is allotted to Sh. Gulshan Kumar S/o Sh. Krishan Nandan Ray who joined PF membership of M/s Eagle Hunter Solutions Ltd. (DS/NHP/11810) on 01/01/2015 and left his services on 18/09/2018 and the said PF member has already withdrawn his provident and employee pension fund accumulation and there is no balance remaining in his PF account. She further submitted that on receipt of notice of this Consumer Complaint, OP No.1 was approached, who submitted letter dated 09/12/2020 admitting that management will deposit the deducted contribution amount in the account of the complainant and documents will be submitted before this Commission to close the proceedings
10.           It is not in dispute that on 01-12-2014, the complainant was appointed as security guard in the Axis Bank, Dhurkra, Ambala under the management of OP No.1 on monthly salary of Rs.13,156/-, out of which an amount of Rs.1579/- per month was deduced by OP No.1 for contribution to OP No.2 as Employees Provident Fund till 20-2-2018 i.e. the date when he resigned from the office of OP No.1. However, when complainant approached OP No.2, for getting his EPF contribution, then OP No.2 told him that there is no such EPF account in his name. Under these circumstances, the moot question which falls for consideration is, as to whether it is OP No.1 or OP No.2 which is at fault, as a result of which, the complainant was deprived of his EPF contribution made by him through OP No.1 from his salary by way of monthly deductions. It is significant to mention here that since the complainant was registered employee of OP No.1 for the period from 01-12-2014 to 20-2-2018, as such, OP No.1 was under legal obligation to deposit the monthly contribution of EPF deducted from the salary of the complainant, in the PF account to be maintained with OP No.2. However, not even an iota of evidence has been placed on record by OP No.1 to prove that it had opened PF account of the complainant with OP No.2 and deposited monthly contribution of EPF deducted from the salary of the complainant, in the PF account to be maintained with OP No.2. On the other hand, it is the definite case of OP No.2 that no such PF account in the name of Gulshan Kumar son of Shri Mohinder Singh was ever got opened through OP No.1 nor any contribution in respect of Gulshan Kumar son of Shri Mohinder Singh in any account stood deposited by OP No.1. At the same time, OP No.2 has also placed on record the copy of letter 09/12/2020, Annexure OP-2/2 (reproduced above) having been written by OP No.1 contents of which to the effect that management will deposit the detected contribution amount in his account and documents will be submitted before the consumer court to close the proceedings and details will also be supplied to work man and on that basis, he will submit his withdrawal form at EPFO office to release his funds and PF settlement. AR of Eagle Hunter solutions limited will attend and materialise the issue on that date only and EPFO will be appraised about the settlement of case, are  sufficient to prove that the amount so deducted by OP No.1 from the salary of the complainant during the period he worked in its company i.e. 01-12-2014 to 20-2-2018, was never  deposited with OP No.2 nor there is any evidence that any PF number was allocated in  favour of the complainant because OP No.1 has never informed OP No.2 about the complainant who was working in its company.  Thus, it has been proved that deficiency in rendering service on the part of OP No.1 is writ large. The complainant is therefore held entitled to the entire amount deducted by OP No.1 from his salary alongwith interest and compensation.
11.           Since no deficiency in service is proved on the part of OP No.2, therefore the complaint filed against it is liable to be dismissed.
12.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP No.1 and direct it, in the following manner:-

1. To refund the entire amount of Provident Fund deducted from the salary of the complainant on monthly basis, for the period from 01-12-2014 to 20-2-2018, alongwith interest @ 4% per annum, from the date of filing of this complaint i.e 23.10.2020, till realization. 
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation charges.

 

                   The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which these amounts shall entail interest @6% p.a. from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 01.03.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President