The brief facts of the case is that the complainant joined as a worker of the OP No.1 and his appointment was effected from the date 14.10.1969 on permanent basis. That as some problem cropped up in the said M/s. Mastergrind Abrasives from the Month of November, 2004. Since then the petitioner has not been getting regular work and as such the petitioner has been passing his days in a precarious condition.

That during the tenure of service the Opposite Party No. (i), (ii) and (iii) being the Partners of M/s. Mastergrind Abrasives as per rules started to deduct certain amount from the Salary on account of Gratuity and as per the calculation of the petitioner the Fund accumulated for gratuity upto 2009 amounting approximately Rs. 70,615.00. The Establishment Case No. WB/23662 of the Opposite Party No. 1 and the member account No. 11 of the Petitioner.

 That since November, 2004 the Petitioner knocked the Opposite Party No. (i), (ii) and (iii) repeatedly to obtain the amount of Gratuity and as well as Pension as the financial position of the petitioner has become bad to worse.

That the petitioner only received negative response from the Opposite Party No. (i), (ii) and (iii) and at last being perplexed, the petitioner again made contact with the Opposite parties but no fruitful result was yielded and finding no other alternatives the petitioner made contact with his Ld. Advocate and sent a notice to the Opposite Parties on 30.03.2010 through his Ld. Advocate.

That the aforesaid intentional and motivated attempt of the Opposite parties to deprive the Petitioner from his legitimate claim and also the Opposite parties delayed and made deficient in service for which the petitioner is entitled to get compensation towards loss, damage, mental pain, sufferings harassment, cost etc. from the Opposite parties.

He prayed for a direction upon the OP to pay the gratuity amount of Rs. 70,615/- and Pension Rs. 900/- per month from November, 2004 and to continue the payment of the Pension till the last breath of the complainant, an order allowing a sum of Rs.10,000/- for damage, loss of service, Rs. 5,000/- for mental pain and harassment, Rs.10,000/- litigation cost and any other relief or reliefs the complainant is entitled to in law and equity.

Kumud Ranjan Bhar being Op No.1(ii) by filing Written Version denied the allegation as leveled  and averred that  the present opposite party Sri Kumud Ranjan Bhar has been made a party in this case by the petitioner without any basis of doing so and also out of wrong information and conception but with a dishonest motive.

That the statements and averments which have been by the petitioner in his petition of complaint are all baseless, bogus, misconceived and frivolous hence denied and disputed by the present opposite party and the petitioner is put t strict proof thereof.

That the statements made in paragraph nos. 1 to 4 of the petition under objection are the matters very much within the personal knowledge of the petitioner as such the petitioner is required to prove the same.

 Answering OP categorically denied that “during the tenure of service the opposite party nos. (i), (ii) and (iii) being the partner of M/s. Mastergrind Abrasives as per rules started to deduct certain amount from the salary on the account of gratuity” and/or “as per the calculation of the petitioner the final accumulated for gratuity upto 2009 amounting approximately Rs.70,615/- and/or establishment code no. WB/23662 of the opposite party no. 1 and/or “the member account no.11 of the petitioner” or at all.

 OP also categorically denied that “since November, 2004 the petitioner knocked the opposite party no (i) & (ii) repeatedly to obtain the amount of gratuity and as well as pension” or at all.

That the statements and averments made in para-8 are again wrong and imaginary. The present opposite party had no contact with the petitioner neither the present opposite party have any knowledge of his claim as alleged in the instant case. The present opposite party was surprised to receive the alleged notice of the Advocate of the petitioner and as such the present opposite party sent a reply to the said notice through his Advocate Sri Radhakanta Mukherjee dated 28.04.2010 which was received by the Advocate of the petitioner Sri Rajkumar Maji on 18.05.2010 but the said reply was kept in suppression by the petitioner with some dishonest motive.That the present opposite party has committed no intentional and motivated act to deprive the petitioner from his legitimate claim as falsely alleged. There is no deficiency of service on the part of the present opposite party.That the petitioner has not suffered any loss or damages, whatsoever, out of any negligent or deficient act of the present opposite party as falsely alleged.

The facts remain that the present opposite party Sri Kumud Ranjan Bhar is one of the sons of Manoranjan Bhar, since deceased, who was the original founder and sole proprietor of the small industrial unit namely ‘Mastergrind Abrasives’. The present opposite party never had any involvement in the state of affairs of the said unit of his father and he being a qualified mechanical engineer used to earn his livelihood by doing service with other companies and concerns.

 With the ripe age of said proprietor Late Monoranjan Bhar the condition of the said unit turned to a bad shape financially and also administratively. The concern had many creditors in one hand but no business opportunity on the other and it was at the verge of closure when said Monoranjan Bhar died in the month of May, 2001. In such situation the 3 sons including the present opposite party and two outsiders namely Sri Ashish Kumar Guin and Sri Samar Kumar Das collectively took an attempt to save the unit from its early death. As a matter of formality to execute and perform their respective jobs to run the unit they formally made a partnership in which the present opposite party was assigned with the job of providing technical assistance and advised to the Unit and his status was of a technical partner and he never received any partnership salary/remuneration or share of profit from the said unit as the unit was incurring loss in each and every year till its final closure in the month of October, 2004 and this closure was inevitable and unavoidable as the few workers who were simply attending the workshop but doing no job for days, months and years however received wages or salaries as long as it was possible for the said partners of the unit. Even though they started to agitate, called strike etc. and made the total scenario highly complicated and beyond capacity of the partners to manage such complicated industrial disputes and acute financial crisis. Even though as a last resort the partners took financial assistance from Bank of India to overcome the crisis. But all efforts failed for want of business order and non co-operation of workmen who were still there.

Therefore, from the above facts and circumstances the instant cause of the petitioner is nothing but a mischievous attempt to extort money from a dead small industrial unit and from its symbolic and so called partners who have never earned any profit but always suffered loss and now passing days with the liabilities of huge creditors and bank loan. The present opposite party himself is the worst victim of the whole show at his fag end of life he has been forced to live in starvation with his ailing wife and there is none to rehabilitate them, no law, no forum, no government. Therefore, the instant case is to be adjudicated in the proper perspectives of law and also from the angle of natural and social justice.

O.P. No. 1(i) files written version and denied the allegations leveled against him and averred that as per terms of the letter of appointment the petitioner on normal course would retire from service on 22.2.2011 is correct and rest portion of the same para regarding his pension is cock and bull story.

He also stated that M/s. Mastergrind Abrasives is a partnership firm having five partners manufactured grinding wheels in a small factory at Chandannagar.

The said factory started its function on and from 1962 and thereafter in the month of September, 2004 the petitioner along with his co-workers illegally made strike then the partners of the said company requested to called off the strike but the workers did not withdraw the strike as a result the factory is totally stopped since then.

The O.P. No. 1(i) had retired from the partnership and informed other partners regarding his retirement as per terms and conditions of the partnership deed.

O.P. No.1(iii) filed written version and denied the allegation and averred that from the month of October 2004 the workers including the complainant struck work/ceased working illegally by the call of the union without any prior notice. The employees did not join to work after several requests of the partners.

The answering OP also averred that there is no provision in the Gratuity Act for deduction of any amount by the employers from the salary of the workers of the firm. So the figure of the accumulated gratuity amount is arbitrary and imaginary. So this O.P. has no liability to compensate the complainant for any loss suffered by him on any head of accounts and the arbitrary figure of total amount is hereby strongly denied by this OP.

OP No. 2 files written version denying the allegations as leveled against and averred that the petitioner Nil Kanta Das having PF Account No WB/23622/11 is an employee of M/s. Mastergrind Abrasives and a member of employees provident fund and employees pension fund with effect from 01.04.1983. That the annual statements of accounts in respect of OP No. 1 establishment has been passed upto 2000 – 01 with contributions and for the year 2001-02 to 2008-09 passed without contribution. The establishment is in default regarding submission of yearly returns that is Form-3A® and Form-6A® since 2001-02 onwards and monthly return in Form-12A ® since 2/02 onwards.

That the establishment is in default in depositing employer share of P.F. contribution and other allied dues since 3/2000 to 2/2002 and both shares of P.F. contribution and other allied dues since 3/2002 onwards.

That as per report of Enforcement Office of Organisation of the O.P. No. 2 dated 23.09.2009 it reveals that the establishment is closed since 2004.

That Claim in F/19 in respect of Sri Nil Kanta Das has been settled on 15.12.2009 for Rs. 1,43,551/- and released to Bank A/c. No. 0412010252980 of UBI, Chandannagore Branch. The claim F/19 settled taking contributions upto 2000-2001.

That claim in F/10D and IDS for pension was approved by Regional Office, Kolkata on 14.01.2010 and sent to Sub-Regional office, Howrah for issuance of P.P.O. The Pension claim in respect of the petitioner has been released/settled by the Sub-Regional Office, Howrah vide PPO No. WB/HWR/45073 on 12.05.2010 and entitled for monthly pension Rs. 874/- w.e.f. 27.11.2009. Affear pension calculated upto 30.04.2010 for Rs. 4487/-. The arrear pension amount along with monthly pension upto 31.07.2010 have already been sent to A/c No. 0412010252980 of United Bank of India, Chandannagar Branch.

That as per the petition of the petitioner of the O.P. No. 2 has nothing to say about the matter of gratuity payment to the member by his employer, which is beyond the jurisdiction of the EPF & MP Act, 1952 and scheme framed hereunder and as per claim of the petitioner in b) and c) this O.P. No. 2 has nothing to submit because it does not come under the ambit of the E.P.F Organization.

The complainant filed evidence on affidavit in which he stated that he was an employee of M/s. Mastergrind Abrasives and problem cropped up in the said firm on November, 2004. Since then he has not getting regular work. As such he is passing his days in precarious condition. During the tenure of his service the O.P. No. 1(i), (ii) &(iii) being the partners of M/s. Mastergrind Abrasives started to deduct certain amount from the salary on account of gratuity and the accumulated gratuity upto 2009 amounting to Rs. 70,615/- and his member account is 11. As per term he would retire from service on 22.02.2011 and would be pension holder from the March, 2011 at the tune of Rs. 900/- per month. He has no knowledge that the O.P. No. 1(i) had retired from partnership firm M/s. Mastergrind Abrasives and informed other partners regarding his retirement.

O.P. No. 1(ii) filed evidence in which he averred that the case is not maintainable before this Forum and the petition is barred by law of limitation and it is crystal clear that the alleged organization stopped its functioning due to strike of the workers and after a lapse of six years the aforesaid case has been filed before this Forum without filing any petition U/s. 5 of Limitation Act. The aforesaid firm was not registered according to Partnership Registration Act before the Registrar Office under West Bengal Society Registration Act as such there is no question of deduction of amount from the salary on account of gratuity does not arise. So the petitioner is not entitled to get any gratuity amounting to Rs. 70,615/- and pension of Rs. 900/- per month from November 2004 to continue the payment of pension till the last breath of the complainant.

Both sides filed affidavit in chief and written notes of arguments which are taken into consideration during passing of final order.

The argument as advanced by the advocates of the parties heard in full.

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Nil Kanta Das is a ‘Consumer’ of the Opposite Party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service   towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Nil Kanta Das is a ‘Consumer’ of the opposite party?

     From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being the employee of O.P. No. 1(i), (ii) & (iii) and OP No.2 is the person responsible for sanctioning the provident fund and pension.  So the O.P. No. 1(i), (ii) & (iii) and 2 are the service provider of the complainant Nil Kanta Das.  

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case? 

     Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

       Case of the complainant is that he joined as a worker of O.P. No. 1 since the date of his appointment as permanent basis. In the month of November, 2004 due to some problem the petitioner was not getting regular work so he was passing his days in a precarious condition. As per the calculation of the petitioner he is entitled to get gratuity upto 2009 amounting to Rs. 70,615/-. As per the terms of the appointment letter the normal course of retirement from service is on 22.02.2011 and the petitioner was to be pension holder from March, 2011. Since 2004 the petitioner knocked the O.P. No.1 for his claim but opposite party intentionally avoided the legitimate claim of the complainant. The answering opposite party denied the allegations and stated that they have no involvement in the state of affairs of the said unit of his father. He being a qualified mechanical engineer used to earn his livelihood by doing service with other companies and concerns. The said concern had many creditors in one hand but no business opportunity on the other hand. So it was on the verge of closure when the said Manoranajan Bhar died on May, 2001. And after his death three sons and two outsiders collectively took an attempt to prevent the early death of the unit. The unit was incurring loss in each and every year till its final closure in the month of October, 2004. The closure was inevitable and unavoidable as a few workers who were simply attending the workshop but doing no jobs for days, months and years. However, received wages and salaries as long as it was possible for the said partners of the unit. Even though they started to agitate, calls strike etc. and total scenario highly complicated and beyond the capacity of the partners as last resort they have taken bank loan to overcome the crisis.  It appears from the case record that the opposite party never took any positive action for refunding the benefit of the petitioner till 2010 and intentionally harassed the petitioner from his legitimate claim. The act and attitude of the opposite party regarding the refund of P.F. and gratuity money tantamount to deficiency of service for which they are entitled to pay compensation to this complainant.

      The O.P. No. 1(i) and (ii) in his written argument assailed that complainant does not come within the purview of Section 12 of Consumer Protection Act, 1986 and they have cleared the dues of the Department of Labour, Govt. of India and there is no other case at all in anywhere and the complainant also getting pension. The complainant has no right to claim gratuity before the Ld. Forum. O.P. No. 2 in his written argument assailed that provident fund authority being the statutory organization for the service of workers and employees deposit of amount for their future benefit after retirement. It is the duty of every employer to deposit the amount up to the share by the employee himself. OP No. 2 is the custodian of amount deposited by the employer and the employee according to their share. It has been found that the employer has not deposited the employer’s contribution since in 2002 etc. as such the liability of the provident fund organization has been seized. The claim of the petitioner has been settled on 15.12.2009 and the settlement of contribution amounting to Rs. 1,43,551/- and released to the bank account of the complainant upto 2000 to 2001. The claim in respect of F/10D and I.D.S. for pension was also approved by the Regional Office, Kolkata on 14.01.2010 has also been settled and paid by the Provident Fund organization as such the claim in respect of other account is not within the jurisdiction of this Forum. The answering O.P. No. 2 is not at all liable for non-payment of the amount claimed by the Petitioner. The Provident Fund Authority is/was ready and willing to pay the amount with interest to the employee if the contributions of both the parties are paid in the Provident Fund Authority as such this O.P. No. 2 is to be relieved from the proceeding. 

 The short but most important question involved in this complaint case is whether under the provisions of the Consumer Protection Act a consumer redressal Forum has the jurisdiction to decide the question as to entitlement and /or payment of the gratuity amount by the employer to the employee.  As per provision of the payment of Gratuity Act, 1972 and the rules framed there under it is the duty of the employer to pay gratuity to his employees and nonpayment of the same would attract a simple interest @10% per annum on the amount of gratuity payable. Even in absence of any gratuity scheme in an establishment its employees are entitled to gratuity under the Act- The Sweep of section 14 clearly provides that the right to claim provisions of this Act is not based on any contract but a right which arises out of the provisions of the statute itself. The provisions made under the Act are in addition to the rights conferred on the employee under the conditions of service contained in any contract or any Act. Therefore where there was no provision under the conditions of service for grant of gratuity an employee is entitled to claim gratuity under the provisions of the Act- United India Assurance Co. Ltd .V. H.K. Khatau 1984 Lab.I.C.33(Bom.).

 So the complainant claimed in this complaint case before this Forum that they are entitled to the gratuity amount. 

 Upon careful reading of the definition of consumer it does not appear that in a relationship of employer and employee there is any element of buying or selling of any goods for a consideration either by the employer or by the employee from the other.  Certainly employer hires the services of an employee for a consideration. Again if such service by the employee to the employer for a consideration is not by way of a contract of personal service in between the employer and the employee but evidently such service has been availed of by the employer from the employee for its commercial purposes in which the employer is engaged. It is, therefore, difficult to conclude that in a public and/or private relationship in between the employer and the employee there is any ingredient of a consumer as defined in Section 2(1)(d) of the said Act.

Again the definition of service as given in Section 2(1)(o) of the said Act is an inclusive definition and includes any kind of service which is made available to potential users excepting services rendered free of charge or under a contract of personal service. It is no doubt true that where service of the employee is hired by the employer, there the employer is the potential user of the service which is made available to the employer by its employee. It is not that employer is rendering any service to the employee by hiring him for a consideration, although in a broader sense he may be doing some service to the nation and the unemployed mass by providing employment.

Thus, in a relationship of employer and employee it cannot be said in any manner whatsoever that an employee is a potential user of the services rendered by his employer during the period of his employment.

In view of the ruling of the Apex Court in Bhavanis case, learned Amicus submitted that nature of the dispute and the particular subject to which the dispute is related assume importance and have necessarily to be looked into for arriving at a conclusion as to whether the employees complaint is maintainable under the Consumer Protection Act, 1986 or not. In view of Bhavanis judgement and similar view taken in a number of other cases, it is clear that matters pertaining to the employees PF schemes as also the pension schemes for which the employees are required to contribute have been regarded as being covered by the definition of consumer dispute with reference to their maintainability under the Consumer Protection Act, 1986. This being the well settled legal position, the cases where such matters, namely, the employees PF schemes, pension schemes or family pension schemes or similar other matters are administered by the employers themselves rather than through a separate designated authority like Provident Fund Commissioner/ Pension Authority etc. then the employer itself assumes the role of service giver and complaints in respect of such matters made by the employees can be maintained before the consumer Fora qua such employers. This, however, does not come in conflict with the general proposition which lays down that an employee is not a consumer qua his employer with reference to his service matters as such. Applying the ratio of Bhavanis case, learned Amicus argued that the Fora below were right in holding the dispute as a consumer dispute maintainable before them and there is no force in the submissions made by counsel for the opposite parties.

The features of the pension scheme in question clearly indicate that there is element of contribution by the employee and hence any action of the administering authority, be it a separately designated authority or the employer itself, can be challenged with reference to the criteria of deficiency in service or unfair trade practice since the contribution by the employee would constitute the requisite consideration and the same makes disputes pertaining to the operation of such a scheme as maintainable before the consumer Fora .

In fact, the same proposition has been explained in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi [2000 (1) SCC 98], wherein in relation to the operation of the Consumer Protection Act to the Employees' Provident Fund Schemes it was held as follows:

"A perusal of the Scheme clearly and unambiguously indicates that it is a 'service' within the meaning of Section 2(1)(o) and the member a 'consumer' within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the Scheme are rendered free of charge and, therefore, the Scheme is not a 'service' under the Act. Both the State as well as the National Commission have dealt with this aspect in detail and rightly come to the conclusion that the Act was applicable in the case of the Scheme on the ground that its member was a 'consumer' under Section 2(1)(d) and the Scheme was a 'service' under Section 2(1)(o)."

 Hon’ble Supreme court in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, 2000 SCC 98, hold that the matter was a consumer dispute. Hon’ble National Commission in State Bank of Mysore vs. S.K.Vidya & Anr, 2012 (3) CPR 406 (NC) held that the issue relating to the non- release of provident fund dues was a consumer dispute.

 From the above observation it is clear that the complainant Nil Kanta Das is a consumer of the OP No.1 (i), (ii) & (iii) who was an employee of the OP No.1 concern is entitled to get the gratuity amount from the OP No.1. The OP No.2 in his written statements stated that the annual statement for the year 2001-02 to 2008-09 passed without contribution and also stated that the OP No.1 establishment is in default in depositing employer share of P.F contribution and other dues since 3/2000 to 2/2002 and both shares of P.F contribution and other allied dues since 3/2002 onwards. As the OP No.1 failed to deposit the dues of the complainants before the OP No.2 so they cannot evade their responsibilities as to payment of gratuity to the complainants herein. Hence we may safely conclude that the OP No.1 (i), (ii) & (iii) are jointly and/or severally liable to pay the gratuity amount of Rs.61,788/-  for a period of 35 years to this complainant.   

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

 The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case beyond any reasonable doubt and the Opposite Party No.1 is liable to pay the ordered amount.

ORDER

Hence, it is ordered that the compliant case No. 65/2010 is allowed on contest        against the opposite party No.1 (i), (ii) & (iii) with a litigation cost amounting to Rs.10,000/-.

The OP no.1 (i), (ii) & (iii) are jointly and/or severally directed to pay the gratuity amount accumulated upto 2004 to Rs.61,788/- alongwith interest @ 9% since the date of filing the instant complaint petition till realization to this complainant.

All the payments are to made by the OP No.1 (i), (ii) & (iii) jointly and/or severally within 45 days from the date of order.

OP No.2 is exonerated from this proceeding.

At the event of failure to comply with the order  the Opposite Party No. 1 (i), (ii) & (iii)   shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their                            Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.