That the petitioner joined as a worker (Lathe-man) in the Opposite Party No. 1 and his appointment was effected from the date 01.09.1969 on permanent basis. 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. 73,385.00. It is to be noted here that the notice was issued on the basis of the calculation upto 2004. The Establishment Code No. WB/23662 of the Opposite Party No. 1 and the member Account No. 8 of the Petitioner.
That as per the terms of letter of Appointment the petitioner on normal course would retire from service on 07.12.2009 and would be Pension Holder from the month of January, 2010 at the tune of approx Rs. 800/- per month.
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 29.03.2010 through his Ld. Advocate and the same was duly received.
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. 73,385/- and Pension Rs. 800/- 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.
After filing the instant complaint petition the petitioner died on 16.6.2010 then the complainant was substituted by his legal heirs vide order no.9 dated 13.9.2010.
The OP by filing written version denied the allegations 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 petitioner is not a consumer as against opposite party no. 1 or any of its legal representatives within the meaning of the Consumer Protection Act, 1986.
That there is no existence of any contractual or legal obligation on the part of the present opposite party for the petitioner.
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 strict proof thereof.
That the statement made in para-5 of the said petition are incorrect, imaginary and baseless, hence denied and disputed by the present opposite party. It is categorically denied that “during the tenure of service the opposite party nos. (i), (ii) and (iii) being the partners 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 they find accumulated for gratuity upto 2009 amounting to approximately Rs. 73,385/-“ and/or “establishment code no. WB/23662 of the opposite party no. 1” and/or “the member account no. 8 of the petitioner” or at all. Thus the petitioner is put to strict proof thereof.
That the statements and averments made in para-8 are again wrong and imaginary. The present opposite party had no contract 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.
The facts remains 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 advice to the Unit and his status was of a technical partners 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 line 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.
That the instant case is otherwise not maintainable in law and at equity.
The OP No. 2 filed written version denying the allegations leveled against him and averred that the petitioner Sarat Chandra Das being PF A/c No. WB/23622/08 an employee of M/s Mastergrind Abrasives and a member of Employees’ Provident Fund & Employees’ Pension Fund with effect from 01.04.1983.
The annual Statement of accounts in respect of the 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 i.e. 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 Officer of E.P.F. Organization dated 23.09.2009 it reveals that the establishment is closed since 2004.
That Claim in F/19 of the petitioner Sri Sarat Chandra Das has been settled on 15.12.2009 for Rs. 123336/- and released to bank A/c. No. 0153010325585 of UBI, Chandannagore Branch. The claim F/19 settled taking contributions upto 2000-2001.
That the claim in F/10D and IDS for pension was approved by Regional Office, Kolkata on 18.01.10 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/45041 on 12.05.10 and entitled for monthly pension Rs. 925/- w.e.f. 08.12.2009. Arrear pension calculated upto 30.04.2010 for Rs. 4409.00. The arrear pension amount along with monthly pension upto 31.07.2010 have already been sent to A/c. No. 0153010325585 of United Bank of India, Chandannagar Branch.
That as per the petition this office of the O.P. No. 2 E.P.F. organization 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 there under and as per claim of the petition 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.
That the O.P. No. 2 is not a necessary party to this case, hence the case is bad for mis-joinder of parties.
That for the above reasons the petitioner has/had no claim against the O.P. No. 2 as such no claim is maintainable against the O.P. No. 2.
The complainant No. 1(b) filed affidavit in chief in which he stated that his father was joined as a worker in the O.P. No. 1 and his appointment was effected since the date on 01.09.1969. Problem cropped up in the said M/s. Mastergrind Abrasives from the month of November, 2004. His father drawn his last salary for the month of 2004 which was more or less Rs. 3,180/-. During the tenure of service of the father of this complainant the O.P. No. 1, 2 & 3 being the partners of M/s. Mastergrind Abrasives started to deduct certain amount from the salary on account of gratuity. As per calculation of his father the fund accumulated to Rs.73,385/-. Retirement of his father was due on 07.12.2009 on normal course and would be pension holder from the month of January 2010 at the tune of approximately Rs. 800/- per month. After November 2004 his father knocked the O.P. No. 1 to 3 repeatedly for getting gratuity as well as pension as the financial position of them became bad to worse. But his father did not get any positive reply from the O.P.
The OP filed affidavit in chief which is also the replica of the written version so it is needless to discuss.
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 ComplainantsShikha Das, Shashi Kanta Das, Sukanta Das and Suchanda Das are ‘Consumers’ 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 Complainants Shikha Das, Shashi Kanta Das, Sukanta Das and Suchanda Das are ‘Consumers’ of the opposite party?
From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainants being the legal heirs of deceased employee Sarat Chandra Das of OP No.1(i), (ii) & (iii) and OP No.2 is the person responsible for sanctioning the provident fund and pension. So the OP No. 1(i), (ii) & (iii) and 2 are the service provider of the complainant Sarat Chandra Das and who was substituted by his legal heirs the complainants herein.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainants 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 complainants is that their father 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 father of the petitioners was not getting regular work. For such he used to pass his days in a precarious condition. As per the payment of Gratuity Act,1972 the calculation of the petitioners the total gratuity amount upto 2009 amounting to Rs. 73,385/- for service period of 40 years. As per the terms of the appointment letter the normal course of retirement from service on 07.12.2009 and the father of petitioners were to be pension holder from January, 2010. Since 2004 the father of the petitioners knocked the O.P. No.1 for his claim but O.P. intentionally avoided the legitimate claim of the deceased complainant. The answering O.P. No. (ii) 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 petitioners till 2010 and intentionally harassed the father of the petitioners from his legitimate claim. The act and attitude of the opposite party regarding the payment of P.F. and gratuity money tantamount to deficiency of service for which they are entitled to pay compensation to these complainants.
The opposite party No. (i) and (ii) in his written argument assailed that complainant does not come within the purview of Section 12 of Consumer Protection Act,1986. The unit of opposite party just after starting due to loss and labour dispute it was closed and there was bank loan for which it was not possible to continue the unit of the Opposite Parties. The said Opposite party cleared the dues of the Department of Labour, Govt. of India and there is no other case at all in anywhere and the complainant is also getting pension. The complainant filed the instant case against the senior citizen opposite party with an evil motive to grab the loan money and the present case is not maintainable against the opposite party No.(i) and (ii). 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 of 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 made upto 2002 to 2001 in respect to F/19. The claim in respect of F/10B and I.D.S. for pension was also approved by the Regional Office 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 Disputes 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 complainants claimed in this complaint case before this Forum that they are entitled to get 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) (ii) 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. 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 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 Sarat Chandra Das is a consumer of the OP No.1 (i), (ii) & (iii) and the substituted complainants are being the beneficiary of the deceased complainant who was an employee of the OP No.1 concern are 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.64,212/- for service period upto 2004 to these complainants along with interest thereupon.
4). Whether the complainant proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants have abled to prove their case and the Opposite Party No.1 is liable to pay the ordered amount.
ORDER
Hence, it is ordered that the compliant case No. 64/2010 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 amounting to Rs.64,212/- alongwith interest @ 9% since the date of filing the instant complaint petition till realization.
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 this 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.
