Order-13.
Date-24/01/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the Complainant in short is that the Complainant was a bonafide employee under OP No. 1 Company since 1976 as a Turner / Leathseman and he worked till 2012 under OP No. 1 Company. OP No. 1 is a partnership Company / Firm and OP No. 2 to 4 are principal partner of the OP No. 1 controlling the affairs and management of the OP No. 1 Firm and Proforma OP No. 5 is Employee Provident Fund Organization.
OP No. 1 Company as per contract and appointment as worker of the Company used to pay monthly salary and other benefits to all the workers of the Company including the Complainant, like ESI, PF, Gratuity facility etc. as per the provisions of law. Accordingly, on account of the Employees’ Provident Fund Scheme, there must be deposited all amount in the account of the Complainant during his service tenure like other workers as per the provision of Employees’ Provident Fund Scheme by the OP Company. It is also stated that OP No. 1 to 4 without any reason arbitrarily removed the Complainant from the service on 07.02.1986 for which he filed an application under section 10 read with section 2(A) of the Industrial Disputes Act, 1947 on 26.04.1988 before the Ld. Labour Court and after contesting hearing, Ld. Labour Court passed an award in favour of the Complainant on 29.01.1996.
OP No. 1 to 4 subsequently filed a Writ Application before the Hon’ble High Court challenging the said order and the order was set aside. But in the Appeal filed by the Division Bench against order of Writ Application, order of the Ld. Labour Court was upheld by the Division Bench and thereafter the Complainant filed two compensation cases being No. 31/2011 for claiming back wages for the period from 1996 to 3012 and another case being no. 49/2011 claiming salary for the period from 1986 to 1996. Ld. Labour Court was pleased to accept the said case and directed the OP No. 1 to 4 to back wages of Rs.2,86,865/-. But then OP No. 1 did not pay the same for which the Complainant filed a case before the Ld. Chief Metropolitan Magistrate Court at Calcutta for necessary relief. It is alleged that OP No. 1 to 4 in spite of repeated requests neither did give any information about the deposit money on account of Provident Fund in favour of the Complainant. OP No. 1 to 4 also did not submit their proper documents to the office of the Proforma OP. The Complainant as such could not withdraw or collect the deposited amountlying in his account in the Employees’ Provident Fund. Complainant requested OP No. 1 to 4 for providing necessary documents and information as regards his deposit in EPF. OPs 1 to 4 kept silent. The Complainant wrote a letter dated 11.01.2016 and 18.02.2016, but OP No. 1 to 4 did not care to reply, moreover, OP No. 1 to 4 did not also submit the documents as claimed by the Office of Proforma dependent. It is alleged that OP No. 1 to 4 are deficient in rendering service to the Complainant and exhibited illegal and wrongful act. Hence this case.
OP No. 1, 2 and 5 entered into appearance by filing vakalatnama. Subsequently OP No. 1 and 2 did not contest the case. OP No. 3 and 4 did not appear in this case nor they contested the case. The case has proceeded ex parte against the OP No. 1,2,3 and 4.
OP No. 5, however, has entered into appearance by filing w.v., contending inter alia that the instant case is not maintainable in its present form and prayer against this OP.
It is stated that there is no relation between the Complainant and the proforma OP No. 5 as the Consumer and Service holder. It is stated that the Complainant did not furnish break up of service, including copy of pay statement Accounts slips pertaining to the period in question. It is also stated that the Complainant has furnished incomplete data. This OP has prayed for dismissal of the case.
Point for Decision
1) Whether the OPs have been deficient in rendering service to the Complainant?
2) Whether the Complainant is entitled to get relief as prayed for?
Decision with Reasons
We have perused the documents on record namely, photocopy of legal notice dated 11.01.2016 addressed to the Employees’ Provident Fund Commissioner, photocopy of legal notice dated 18.02.2016 addressed to OP No. 1, photocopy of letter dated 11.12.2015 from D.B.Dolui, Accounts Officer, EPF to OP No. 1 Company, photocopy of Claim Receipt of EPF, photocopy of Identity Card of the Complainant, photocopy of the Statement of Accounts of EPF in the name of the Complainant, photocopy of the letter dated 25.07.2015 to Regional Provident Fund Commissioner from the end of the Complainant and other documents on record.
It appears that Complainant was an employee of M/s. R.K.Engineering Corporation, a partnership firm having its partners Sri R.K.Gandhi, Sri L.K.Gahdhi, Smt. Premlata Gandhi (OP No. 1 to 4). It also appears that the Complainant joined in the factory of the said Company in the post of Turner/ Leathsman on 19th April, 1976. It also appears that he was terminated from service on 07.02.1986 and thereafter Court proceedings were started from Labour Court, West Bengal, Honble High Court and ultimately as per order of the Hon’ble High Court the Complainant was reinstated in service on 15th October,2009. However, it appears that the Complainant was again suspended on 24th October, 2010 till his date of superannuation. But,as it appears the Company did not take any steps or any intimation to settle his EPF dues apart from retirement benefits till date. It also appears that the Complainant wrote to OP Company for payment of PF dues, but no reply was given. It appears that the Complainants served legal notice upon OP Company to inform for the deposited amount vide letter dated 11.01.2016, but OP Company did not inform the deposited amount to the Complainant as yet. It also appears that the Complainant also wrote a letter to the office of Employees’ Provident Fund Organization, Ministry of Labour and Employment, Govt. of India for withdrawal of the PF amount and the concerned office asked the OP Company to produce some document which were lying in the office of the OPs of the OP No. 1. We find that the Accounts Officer, EPF asked the OP Company to provide contribution card for the last 5 contributory years, year-wise breakup since joining, in F-10C Format, age-proof card of the member or age proof card of the children (if any), and other documents. But, we find that OP Company also failed and neglected to furnish those documents to the Office of the Employees’ Provident Fund Organization. We find that the OP Company being an employer did not do which is required for disbursement of Provident Fund amount in favour of the Complainant. We find that OP Company has put up a gesture of deficiency of service and unfair trade practice in not complying with all the formalities as per the rules and provisions of Employees’ Provident Fund Organization. It is observed that OP Company being a partnership firm and OP No2 to 4 being member partnership of OP No.1, they did not render proper service to the Complainant according to the provisions of law for which the Complainant has been running pillar to post to get the legitimate and hard earned money. It appears that the Complainant was the employee and service recipient for the account of benefit of Employees’ Provident Fund Scheme under the OPs.
None came from the side of the OP No. 1 to 4 to challenge or to contradict the version of the Complainant. We think that the Complainant is entitled to get the relief and redressal for the wrongful and illegal act of OP No. 1 to 4 under the provisions of Consumer Protection Act, 1986.
Perused the decision reported in 1999 CPJ (Vol-III) SC. 36 dtd. 14.12.1999 and 1(2009) CPJ 77 (NC), Appeal Civil No.6447 of 2001 of Supreme Court, date of delivery of judgment 22.nd April, 2008.
In result, the case succeeds.
Hence,
Ordered
The instant case be and the same is decreed ex parte but on merit as against OP No. 1 to 4 with cost of Rs.10,000/-.
OP No. 1 to 4 are directed to pay the entire EPF Savings amount along with delayed interest at the rate of 12 percent p.a. from the date of filing this case till payment within one month from the date of this order.
OP No. 1 to 4 are also directed to pay a compensation of Rs.25,000/- to the Complainant for causing harassment, mental agony and trauma within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that event OP Nos. 1 to 4 will be liable to pay penal damage at the rate of Rs.3,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
We make no cost to OP No. 5 being ProformaOP.
