KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.738/2015

JUDGEMENT DATED: 15.02.2024

(Against the Order in C.C.No.08/2012 of CDRF, Kannur)

PRESENT:

APPELLANTS:

(by Adv. K.V. Karmachandran)

Vs.

RESPONDENTS:

JUDGEMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

           This is an appeal filed by the opposite parties 1 to 3 in C.C.No.08/2012 on the file of the Consumer Disputes Redressal Commission, Kannur (the District Commission for short).  On 17.07.2015, the District Commission had allowed the complaint and directed the opposite parties 1 to 3 to pay a sum of Rs.43,418/-(Rupees Forty Three Thousand Four Hundred and Eighteen only) along with Rs.3,000/-(Rupees Three Thousand only) as litigation costs with a default clause to pay interest @12% per annum.  aggrieved by the aforesaid order, this appeal has been filed.

          2.       The appellants are the Central Board of Employees Provident Fund represented by its Secretary, Central Provident Fund Commissioner, the Assistant Provident Fund Commissioner and the Regional Commissioner.

          3.       The complaint was filed before the District Commission by one P.T. Karunakaran, an employee of Kannur District Motor Workers Co-operative Society.  The above establishment was closed down and accordingly the complainant had left his employment on 10.01.1996.  He would claim an amount of Rs.77,334/-(Rupees Seventy Seven Thousand Three Hundred and Thirty Four only) from the opposite parties 1 to 3 as the arrears of wages.  The request of the complainant was declined by the opposite parties.  So the complainant had approached the Hon’ble High Court of Kerala and obtained an order directing the opposite parties to release an amount of Rs.25,000/-(Rupees Twenty Five Thousand only) to him .  But the said amount was not paid.  The complainant is an unemployed senior citizen who was declined from getting the Provident Fund benefits from his date of retirement.  He would attribute negligence, deficiency in service and unfair trade practice on the part of the opposite parties.

          4.       The opposite parties 1 to 3 entered appearance and filed version with the following contentions:

          As per the records available with the opposite parties there is no amount due to the complainant.  The order passed by the Hon’ble High Court was later reversed and at present there is no order against the opposite parties to pay any amount.  The Employees Provident Fund benefits due to the complainant was paid in 1996 itself.  So he is not entitled to get any additional amount.  There is no deficiency in service.  Hence, they would seek for dismissal of the complaint.

          5.       The 4^th opposite party had filed a version that the entire property owned by the establishment was put in auction by the opposite parties 1 to 3 and the said amount is with opposite parties 1 to 3.  The 4^th opposite party never handled any amount belonging tothe establishment under liquidation and he has no role in the transaction alleged. 

          6.       In the appeal memorandum the appellant would raise the following contentions:

          The District Commission has failed to appreciate the contentions raised by the appellant.  The District Commission ought to have found that the complainant had sought for a relief which was already declined by the Hon’ble High Court as per the judgement in O.P.No.19768/99.  The District Commission ought to have found that Exhibit A6, award is in respect of the wages due and other benefits of the employees and not about Employees Provident Fund.  The observation of the District Commission that the opposite parties have not preferred any appeal is wrong as the opposite parties were not parties in Exhibit A6.  The appellants would seek for setting aside the order passed by the District Commission.

          7.       The records from the District Commission were called for.  Notices issued were served on the 1^st and 2^nd opposite parties, complainant and 4^th opposite party in the C.C.  Both the respondents remained absent.

          8.       Heard the counsel for the appellants.  Perused the records.

          9.       Complainant had given evidence before the District Commission as PW1.  Exhibit A1 is the copy of the letter issued by the complainant to the 2^nd opposite party for compliance of the order of the Hon’ble High Court in O.P.No.19768/99.  Exhibit A2 is the claim form submitted by the complainant.  Exhibit A3 is the letter sent by the 2^nd opposite party to the complainant stating that his claim was already forwarded to the Regional Commissioner, Trivandrum.  Exhibit A4 is the copy of the order passed by the Hon’ble High Court in CMP No.32520/99 in O.P.No.19768/99(C) by which the opposite parties were directed to release an amount of Rs.25,000/-(Rupees Twenty Five Thousand only) to the complainant.  Since the opposite parties did not comply with the direction of the Hon’ble High Court, contempt action was initiated.  But later the above proceedings was closed by the Hon’ble High Court as seen from the order dated 07.01.2002 exhibited as A5 that a further order was passed by the Hon’ble High Court in O.P.No.1169/95 n O.P.No.17317/99 that no amount shall be disbursed.  In the light of the subsequent order, the contempt proceedings was closed by the Hon’ble High Court.  The complainant had caused production of an order passed by the Industrial Tribunal which is marked as Exhibit A6 directing the disbursement of the claims of the employees including the complainant. 

          11.     The appellants had examined a witness as DW1.  Exhibits B1 to B5 are the documents evidencing the disbursement of the amount to the complainant towards the benefit under the Employees Provident Fund Scheme.  Exhibit B7 is the judgement of the Hon’ble High Court in O.P.No.19768/99(C) dated 17.09.2008.  The Hon’ble High Court had passed an order that the Provident Fund Organisation is not liable to pay any amount realised from the sale proceeds of movable properties owned by the employer for recovery of the arrears of Employees Provident Fund.  Even the employees of the establishment are not entitled to get any amount since the sale was conducted for the realization of the amount due under the Employees Provident Fund and Miscellaneous Provisions Act.  Under the said Act, the Provident Fund Organisation has first charges on the assets.  The claim of the complainant was already rejected by the Hon’ble High Court.  Exhibit A6 is an order regarding the arrears of wages and other benefits.  The Hon’ble High Court in Exhibit B7 had observed in categorical terms that the complainant is not entitled to get any amount from the sale proceeds retained by the appellants.  If the complainant was aggrieved on account of the aforesaid judgement, the only option available to the complainant was to file an appeal against the judgement of the Hon’ble High Court.  As long as an adverse order has been passed declining the complainant from realizing any amount retained by the appellants, no order ought to have been passed against the appellants.  There is no evidence tendered by the complainant to prove his claim.  When a claim is raised, the initial burden is upon the complainant to establish the same.  Here no attempt is seen made by the complainant for proving his entitlement to get the aforesaid amount.  The complainant was attributing deficiency in service against the appellants on account of the reluctance on the part of the appellants in complying with the order of the Hon’ble High Court.  The contempt proceedings initiated by the Hon’ble High Court was closed for the reason that there was a subsequent order passed by the Hon’ble High Court to the effect that no amount need to be disbursed to the complainant.  The District Commission has miserably failed in considering the legal effect of the order passed by the Hon’ble High Court in Exhibit B7.  As long as the order in Exhibit B7 is not varied or set aside by an Appellate Forum, the complainant is not entitled to get any relief from the appellants.  Even without proving the entitlement of the amount, the District Commission was inclined to allow the complaint and directed the appellants to disburse the amount.  The District Commission has committed grave error in passing a direction to the appellants which is in fact contrary to the decision of the Hon’ble High Court .  The order passed by the District Commission is erroneous and is liable to be reversed.

          In the result, the appeal is allowed.  The order passed by the District Commission is set aside and the complaint is dismissed.  Parties shall bear their respective costs.

SL