BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 290/2000 Filed on 30/5/2000

Dated: 30..01..2010

Complainant:

Ravindran, Deepthi, Porunthamon, Pulimath – P.O., Kilimanoor.

(By Adv. N.R. Suresh Kumar)

Opposite parties:

1. The Regional Provident Fund Commissioner, Office of the Regional Provident Fund Commissioner, Pattom, Thiruvananthapuram – 4.

   (By Adv. K. Ramachandran Nair)

Addl. 2^nd & 3^rd opp. Parties:

2. G. Mohandas, Kersten Road, Kowdiar, Thiruvananthapuram.

3. Rani Mohandas ...........do.............

(By Adv. Mahesh. N.G)

This O.P having been heard on 15..12..2009, the Forum on 30..01..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, the complainant is a member of Employees Provident Fund Scheme vide account No. KR/10739/3, that the complainant was working as an employee in Arrack shop No.42 (Group 4) Chirayinkeezhu range, and that the complainant joined the said establishment during 1986 - 87 and worked under different claimants viz. Salim, Mohandas, Rani Mohandas, Abdul Rahuman and Sunny Joseph during the period upto 31/12/1989. It is submitted by the complainant that his contribution to the said Scheme was being collected by his employers from time to time regularly and he paid his contribution to the said Scheme till 13/12/1989 and thereafter he discontinued as the State Government introduced the Abkari Welfare Fund from the year 1990 onwards. Complainant had lodged a claim during the year 1996 before the 1^st opposite party Regional Provident Fund Organisation Lok Adalath for getting back the contribution and accordingly he was issued with a cheque dated 27/1/1997 for an amount of Rs.3,624/- towards part settlement. It is submitted by the complainant that he was further informed that the final settlement can be made only on receipt of the balance due from the establishment. Opposite party had not initiated any effective steps to release the amounts from the claimants. Hence this complaint to direct opposite party to pay Rs. 23,229.84 with interest @ 12% per annum along with cost.

2. 1^st opposite party filed version contending that, the employer of the establishment is a necessary party to the proceedings, that complainant was an employee of Arrack Shop No. 42 (Group 4), that he joined the Employees Provident Fund Scheme with effect from 01/04/1986, that the employer had submitted the returns and remitted the dues from 4/86 to 3/87, that part payment to the extent of remittances received had already been paid to the complainant. The returns and remittances from 4/87 to 12/89 had not been received, that as per the communication dated 11/12/1991 from the Central Office, Arrack Establishments are not coverable as decided under Section 19 A of the Act. Hence 1^st opposite party prayed for dismissal of the complaint.

3. After filing the complaint additional opposite parties 2 & 3 were impleaded, who filed version contending that complainant had paid P.F contribution for the eligible period alone, that the 2^nd & 3^rd opposite parties never employed the complainant and was never covered under the EPF Act, that EPF Act was not made applicable to the establishments covered under the Kerala Abkari Welfare Fund Act functioning under the State Government. Complainant has not produced any documents to prove the employment with the opposite parties 2 & 3 and opposite parties 2 & 3 are not liable to pay any EPF contributions as alleged in the complaint. Hence opposite parties 2 & 3 prayed for dismissal of the complaint.

4. The points that arise for consideration are:

1. Whether complainant is entitled to get the amount claimed in the complaint from the 1^st opposite party?

2. Whether there is deficiency in service on the part of opposite parties?

3. Whether complainant is entitled to get compensation and cost?

In support of the claim, complainant has filed affidavit and Exts. P1 to P6 were marked. Complainant has been cross examined by opposite partis. One witness has been examined as PW2 and cross examined by opposite parties. In rebuttal, 1^st opposite party has filed affidavit and Exts. D1 to D4 were marked.

5. Points (i) to (iii): Admittedly, complainant was a member of the EPF Scheme vide account No. KR/10739/3. The specific case of the complainant is that he joined the establishment during 1986 - 87 and had worked under different claimants upto 31/12/1989. It is argued by the complainant that his contribution to the said Scheme was collected by his employers from time to time and it is the duty cast upon the 1^st opposite party to collect the complainant's subscription along with employer's contribution and credit the same in the account of the complainant. 1^st opposite party resisted the complaint by submitting that he joined the EPF Scheme with effect from 01/04/86 to 3/87 and from 4/87 no returns and remittances received from the employer of the complainant. It is further argued by 1^st opposite party that the matter has already been settled for an amount of Rs. 3,624/- which includes the contribution for the period 87- 88 amounting to Rs. 1,208/- together with interest amounting to Rs. 2,416/- upto 96 – 97. Ext. P1 is the letter dated 25^th November, 1998 addressed to the complainant by the 1^st opposite party. In the said letter it is seen mentioned that the amount had already been settled partly during 1/97 on the basis of the remittance received from the employer. Final payment can be made only on receipt of the balance due from the establishment. Ext. P2 is the copy of advocate notice with postal receipts and acknowledgment cards stating that the amounts due to the complainant which includes the contribution made by the claimant are still with the claimants and that no effective steps has been made by the 1^st opposte party for realising the same even after the lapse of 10 years. Ext. P3 is the reply notice issued by 1^st opposite party. As per Ext. P3, it is stated that part payment to the extent of remittance received had already been paid to the member, that employer has submitted the returns and remitted the respective dues from 4/86 to 3/87. It is further stated in Ext. P3 that the Legal Advisor, Ministry of Labour under Section 19 A of the Act had held that the Arrack establishments are not coverable under the Employees' Provident Fund and Miscellaneous Provisions Act vide the order dated 31/12/1986 and accordingly the said establishments were excluded from the Provisions of the Act and Scheme. Ext. P4 is a letter issued by 1^st opposite party to the complainant informing him a cheque for an amount of Rs. 3,624/- towards part settlement of Provident Fund. Ext. P5 is the copy of Form No. 23 in which it is seen stated that contribution stated in the year 1986 – 87 from employee and employer is Rs. 1,208/-. Ext. P6 is the certificate issued by Kerala Toddy & Abkari Workers Congress dated 20/01/2009 stating that Shri. R. Ravindran was working under licencees Mohandas and Rani Mohandas during the period 87 – 88. Ext. D1 is the copy of Subscriber's Ledger Card (Form No. 21 A) maintained on the annual system of posting to the complainant. As per Ext. D1 the amount of contribution by employer and employee comes to Rs. 1,208/-. Ext. D2 is the copy of account No. KR/10739/3. On a perusal of Ext. D2 the account has been settled for Rs. 3,624/-. Ext. D4 is the copy of the order of the Central Government. On going through Exts. P1 to P6 and D1 to D4 it is evident that the amount received by the 1^st opposite party is seen settled by 1^st opposite party. Complainant has never produced any document to show that his contribution to the said Scheme was collected by his employers from time to time. It is pertinent to note that complainant himself stated in the complaint that he had been working under different claimants viz. Salim, Mohandas, Rani Mohandas, Abdul Rahuman and Sunny Joseph during the period upto 31/12/1989. After filing the complaint, Mohandas and Rani Mohandas were impleaded as additional opposite parties, who filed version stating that 2^nd & 3^rd opposite parties never employed the complainant as alleged in the complaint. It is further stated by opposite parties 2 & 3 that EPF Act was not applicable to the establishment covered under the Kerala Abkari Welfare Fund Act. The onus of proving the employment of the complainant with 2^nd & 3^rd opposite parties and contribution of the said Scheme was collected by his employers would rest on the complainant. There is no material to show that amount was collected by opposite parties 2 & 3 from the complainant and the same was remitted to 1^st opposite party. Complainant has not produced any details of payment from 4/87 onwards. In view of the foregoing discussions and in the light of evidence available on records we are of the considered opinion that complainant has totally failed to establish his complaint. There is no material to show that 1^st opposite party has received contributions from any employers from 4/87 onwards. Though PW2 has deposed that complainant was working under licencees Mohandas & Rani Mohandas during 87 – 89, there is nothing to substantiate that any amount was received by the 1^st opposite party towards the contribution from the employee. In view of the above we do not see anything to attribute deficiency on the part of the opposite parties. Deficiency in service not proved. Complaint has no merits which deserves to be dismissed.

In the result complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of January 2010.

G. SIVAPRASAD. PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No. 290/2000

APPENDIX

I. Complainant's witness:

PW1: Raveendran

PW2: Ajith Kumar. V.S

II. Complainant's documents:

P1 : Photocopy of letter dated 25/11/1998

P2 : " advocate notice with postal receipts and acknowledgment cards

P3 : Letter dated 23/7/1999

P4 : Photocopy of letter issued by 1^st opp. Party.

P5 : Photocopy of Form No. 23.

P6 : Certificate issued by Kerala Toddy & Abkari Workers Congress dated 20/1/2009

III. Opposite parties witness:

DW1: N. Remani

IV. Opposite parties' documents:

D1 : Photocopy of Subscriber's ledger card maintained on the annual system of posting.

D2 : " account No. KR/10739/03.

D3 : " of letter dated 11/12/1991

D4 : " order of the Central Govt.

PRESIDENT