COMPLAINT FILED: 25-03-2009 <br /> DISPOSED ON: 17-11-2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 17TH NOVEMBER 2009<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.700/2009 & 701/2009<br /> <br /> <br /> COMPLAINANT IN COMPLAINT NO.700/2009<br /> <br /> <br /> <br /> <br /> COMPLAINANT IN COMPLAINT NO.701/2009<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTIES<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri.Philips ,<br /> Sapthagiri Layout, <br /> Opp H.M.S College, <br /> Shetty Hally Road,<br /> Tumkur - 572101<br /> <br /> Mr.Greory,<br /> R/at No.39/11, <br /> 6th Main Road,<br /> Appareddy Palyma,<br /> Indiranagar<br /> Bangalore -560038.<br /> <br /> V/s.<br /> <br /> 1.The Regional Provident Fund Commissioner,<br /> Dicken Road, Bangalore-42<br /> Represented by its Manager.<br /> <br /> 2. The Regional Provident Fund Commissioner-II,<br /> 341, Bhavishya Nidhi Bhavan, Bandra (East).<br /> Mumbai – 400 051.<br /> <br /> 3. Carona Limited,<br /> Regd. Office at New Udyog Mandir Compound <br /> Mogul lane, Mahim, <br /> Mumbai – 400 016.<br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> Both these complaints u/s. 12 of the C.P. Act of 1986 are filed by the respective complainants seeking direction to Opposite Parties (herein after called as OPs) to pay an amount of Rs.4,50,190/- with interest at 18%p.a. in Complaint No.700/2009 and to pay an amount of Rs.1,71,000/- with interest at 18% p.a in Complaint No.701/2009 on an allegations of deficiency of service on the part of the OPs.<br /> <br /> 2. Since the common question of law and facts are involved in both the cases, hence by this common order both the complaints are disposed of.<br /> <br /> 3. The complainant in Complaint No.700/2009 working in OP No.3 as a salesman from 01-10-1967 resigned from the service on 31-08-2007, applied for the Provident Fund dues. OP No.1 settled the Provident Fund account to the tune of Rs.90,820/- by issuing cheque dated 21-04-2008, the amount was calculated up to July’1996. The complainant claims that he is entitled to the Provident Fund amount deducted from his salary till 31-08-2007 amounting to Rs.3,89,190/-. He has claimed an amount of Rs.21,000/- towards the travel expenses to visit the office of the OP No.1 at Mumbai and compensation of Rs.50,000/- towards mental agony.<br /> <br /> 4. The complainant in Complaint No.701/2009 working in OP No.3 as a salesman from 01-02-1960 he has retired from his service on 31-05-2003. Provident Fund is deducted from his salary regularly till his retirement, his application for refund of Provident Fund amount was considered by OP No.1 and partly refunded an amount of Rs.3,39,413/- on 13-10-2003 by issuing cheque by calculating amount up to Ju;y’1996. Since the Provident Fund contribution was deducted regularly from his salary till 31-05-2003, hence the complainant claims that an amount of Rs.1,00,000/- balance amount of Provident Fund has to be paid up to 31-05-2003. In addition to that he has claimed an amount of Rs.21,000/- towards travel expenses to visit the office of the OP No.1 and an amount of Rs.50,000/- as compensation towards mental agony. <br /> <br /> 5. OP No.3 remained exparte, OP 1 & 2 filed version in both the cases contending that the Provident Fund account of both of these complainants was settled till the end of Ju;y’1996. Op No.3 failed to make remittance of Provident Fund dues for the subsequent period as such OP No.1 could not settle the Provident Fund amount due for the subsequent period. As on the date of settlement entire amount standing to the credit of these complainants released and no amount is lying with the OP 1& 2. Recovery proceeding against OP No.3 is under progress; immediately after recovery, amount will be released in favour complainants. As per clause 72 of Employment Provident Fund scheme of 1952 the commissioner is required to pay the amount standing to the credit of the member in the Provident Fund account as held by Honorable High Court of Bombay in 1991 LAB IC 1572 Rashtriya Mill Mazdoor Sangh & others Vs. RPFC Bombay & Others. The liability of OP 1 & 2 was limited to amount received. Hence, there is no deficiency in service on the part of the OP 1 & 2, the complaint may be dismissed.<br /> <br /> 6. The complainants filed affidavits by way of evidence, the official of OP 1 & 2 filed affidavit in support of the defence version. The written arguments filed by the OP 1 & 2. <br /> <br /> 7. After perusing the pleadings and affidavit evidence and the documents produced and considering the written arguments and hearing on both the sides following points arise for our consideration are:-<br /> <br /> Point No. 1 :- Whether the complainants Proved <br /> deficiency in service on the part of <br /> the OP 1,2 & 3 ?<br /> <br /> Point No. 2 :- If so, whether the complainants are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 8. We record our findings on the above points as:-<br /> <br /> Point No.1:- Affirmative in part<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N <br /> <br /> 9. It is not in dispute that both the complainants were working in OP No.3 Company as salesman and the Provident Fund contribution amount was regularly deducted from their salary. OP No.1 has settled the accounts of the Provident Fund of both these complainants till the end of July’1996. For the remaining period the defence version is since OP No.3 has not deposited the contribution deducted from the salary of complainants with its share in the account of these complainants; as a result, the OPs are not liable to answer the claim of the complainants. Recovery proceedings already initiated against the OP No.3; whatever the amount found in the credit of these complainants has been paid. Thus there is no deficiency in service on the part of the OP 1 & 2.<br /> <br /> 10. It may be noted that in Complaint No.700/2009 OP No.1 has settled the Provident Fund amount of Rs.90,820/- which was in credit in the account of to the complainant up to July’1996. Subsequent to that OP No.3 failed to make remittance of Provident Fund dues within the due dates and defaulted in its payment; as such OP 1 & 2 are not liable to pay the amount claimed. It appears that OP No.3 being employer has remitted the Provident Fund, deducting from the salary of the complainant with its share of contribution till the end of July’1996, as a result OP 1& 2 have settled the amount at the credit till that date. Similarly in Complainant No.701/2009 the total amount at the credit of the complainant till the end of July’1996 Rs.3,39,413/- has been settled by issuing cheque dated 09-10-2003. For the subsequent period Op No.3 failed to make remittance of Provident Fund dues within the due dates and defaulted in its payment as such OP 1 & 2 are not liable to pay the amount claimed. The recovery proceedings already initiated against OP No.3 as per Sec.8 of the Employers Provident Fund and Miscellaneous Provident Fund Act 1952 against OP No.3. In case if the amount is recovered, OP 1 & 2 are prepared to settle the account of these complainants for the remaining period. The Honorable High Court of Mumbai in 1991 LAB IC 1572 Rashtriya Mill Mazdoor Sangh & others Vs. RPFC Bombay & Others held that “Taking into consideration the phraseology used in clause 72 of Employees Provident Fund scheme 1952 it appears that the intention of the legislature is that the commissioner should pay the amount standing to the credit of the member in the Provident Fund account. That means as per the said clause, the liability of the commissioner to pay the amount towards Provident Fund of the employee is to the extent of the amount credited in the account of the Provident fund.”<br /> <br /> <br /> 11. OP 1 is maintaining the Provident Fund account of these complainants and settled the claim till end of July’1996. It is the legal obligation on the part of OP No.3 to contribute employer’s portion of the Provident Fund along with employee’s portion of Provident Fund in the Employees Provident Fund account regularly maintained by OP No.1. It is the statutory duty and responsibility of OP No.3 to deduct the Provident fund from the salary of the employees and remittance of the same to Op No.1 along with its contribution. Under these circumstances we are of the view that there is no any deficiency in services on the part of the OP 1 & 2. So far, as OP No.3 is concerned there is deficiency in service on its part for the reasons that OP No.3 failed to make remittance of Provident Fund dues from the month of August’1996. As a result OP No.3 is to be directed to remit the Provident Fund contribution to the complainant’s account with interest at 10% p.a from the respective due dates. The complaint against OP 1 & 2 is liable to be dismissed. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaints filed by the complainants in both the cases allowed in part. <br /> <br /> In complaint No.700/2009 Op No.3 is directed to remit the Provident fund contribution to the complainant’s account maintained by OP No.1 with interest 10% p.a. from respective due dates from August’ 2006 to end of August 2007.<br /> <br /> In complaint No.701/2009 Op No.3 is directed to remit the Provident fund contribution to the complainant’s account maintained by OP No.1 with interest 10% p.a. from respective due dates from August’ 2006 to end of May 2003.<br /> <br /> The complaint filed against OP 1 & 2 is dismissed.<br /> <br /> Further Op No.3 is directed to pay Rs.1,000/- in each complaint towards the cost of litigation to the complainants. After recovery of the amount as ordered OP No.1 shall settle the claim of the complainants by refunding of their Provident Fund amount for the remaining period. <br /> <br /> This original order shall be kept in the file of the complaint No.700/2009 and a copy of it shall be placed in the file of the complaint No.701/2009.<br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 17th day of November 2009.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> NRS<br /> <br />