Per Shri Dhanraj Khamatkar, Hon’ble Member
1. This appeal takes an exception to an order dated 28/08/2008 passed by Addl. District Consumer Disputes Redressal Forum, Thane in consumer complaint No.161/2007.
2. The facts leading to this appeal can be summerised as under :-
3. The complainant was appointed as a ‘Senior Executive’ in Reliance Communication Ltd. vide order dated 29/11/2001 by opponent No.1. His Provident Fund number was MH-46459/20001787 and opponent No.2 is a Regional Provident Fund Commissioner, who monitored the Provident Fund account of the employee. Service of the complainant was terminated on 31/10/2006 by opponent No.1 on account of unsatisfactory work. It is the contention of the org. complainant/appellant herein that opponent has not given him the correct amount of his provident fund and unauthorisedly deducted an amount of `2,69,643/- as TDS. Similarly, opponent No.1 has not paid him an amount of `1,35,208/- which was due to him. Hence, he filed consumer complaint praying following reliefs:-
“A) This Hon’ble Forum be pleased to hold and declare that the complainant is a ‘Consumer’ and his complaint is maintainable under the provisions of the Consumer Protection Act, 1986.
B) This Hon’ble Forum be pleased to hold and declare that the Opposite Party No.1 had shown negligence to the requests of the complainant.
C) This Hon’ble Forum be pleased to hold and declare that the Opposite Party No.1 had made deficiency in service to the complainant.
D) This Hon’ble Forum be pleased to hold and declare that the Opposite Party No.1 had engaged in unfair trade practices against the complainant.
E) This Hon’ble Forum be pleased to direct the Opposite Party No.1 to deposit the amount of `1,35,208/- (Rupees One Lac Thirty Five Thousand Two Hundred and Eight only) in its office with 18% interest from the year 2007 till the payment of the amount to the complainant.
F) This Hon’ble Forum be pleased to direct the Opposite Party No.1 to deposit the amount of `2,69,643/- in its office with 18% interest from the year 2007 till the payment of the amount to the complainant.
G) This Hon’ble Forum be pleased to direct the Opposite party No.1 to pay `3,00,000/- (Three Lac only) to the complainant for causing him to suffer mentally, physically and monetarily.
H) This Hon’ble Forum be pleased to direct the Opposite Party No.1 to pay `3,00,000/- (Rupees Three Lac only) to the complainant for engaging in unfair trade practices against the complainant and for less payment of his legitimate amount of Provident Fund.
I) This Hon’ble Forum be pleased to direct the Opposite Party No.1 to pay `3,00,000/- (Rupees Three Lac only) to the complainant for rendering him deficiency in service by the Opposite Party No.1.
J) This Hon’ble Forum be pleased to direct the Opposite Party No.1 to pay `3,00,000/- (Rupees Three Lac only) to the complainant for showing scant regards and negligence to his correspondence such as oral, Fax, e-mail, Registered A/D Post etc.
K) This Hon’ble Forum be pleased to direct the Opposite Party No.2 to pay compensation to the complainant as it deems fit for not taking appropriate action in the matter and creating mental agony and suffering financial losses to complainant by Opposite Party No.1.
L) The legal expenses amounting for `25,000/- (Rupees Twenty Five Thousand only) be awarded.
M) Any other relief as this Hon’ble Forum may deems fit and proper be granted.”
4. The District Consumer Disputes Redressal Forum after hearing both the parties partially allowed the complaint directing the opponent No.1 to pay to the complainant `10,000/- for mental agony and `5,000/- as costs within a period of 45 days. Failing which the amount will carry interest of 12% p.a. till realisation of the amount. Being aggrieved by this order, present appeal is filed.
5. We have heard appellant in person.
6. Admittedly, the appellant was appointed by the org. opponent No.1/respondent herein as a ‘Senior Executive’ vide order dated 29/11/2001 and accordingly, the complainant/appellant joined on 16/02/2002. The services of the appellant have been terminated by opponent No.1/respondent on 31/10/2006. Hence, he was in the service of opponent No.1/respondent for period less than five years. First contention of the appellant is that opponent No.1/respondent had illegally merged the amount of cost of living in his salary and accordingly, has deducted the provident fund amount. Perusal of the appointment order shows that in appointment order, at Para No.(9(f) there is a mention that, “Your compensation structure can be restructured at any time protecting the gross salary” and accordingly, opponent No.1/respondent had restructured the salary and we do not find there is any illegality in restructuring the salary.
7. Services of the appellant/complainant have been terminated vide letter dated 31/10/2006. In the said letter, there is a mention that, “We note from your past performance that you have performed at very low grades of performance ratings despite repeated advices and the rating for the year 2005-06 has been ‘Poor’. Hence, it has been decided to terminate your services with immediate effect i.e. close of office hours today i.e. Tuesday 31, October 2006.”
8. It is the contention of the complainant/appellant that he has informed to opponent No.1/respondent that TDS amount on the payment of `8,13,537/- should not be deducted. According to opponent No.1/respondent that amount is deducted as per ‘Schedule IV, Part-A of the Income Tax Act, 1961’. Para 8 of Schedule IV is as under :-
“8. The accumulated balance due and becoming payable to an employee participating in a recognized provident fund shall be excluded from the computation of his total income –
(i) if he has rendered continuous service with his employer for a period of five years or more, or
(ii) if, though he has not rendered such continuous service, the service has been terminated by reason of the employee’s ill-health, or by the contraction or discontinuance of the employer’s business or other cause beyond the control of the employee, or
(iii) if, on the cessation of his employment, the employee obtains employment with any other employer, to the extent the accumulated balance due and becoming payable to him is transferred to his individual account in any recognized provident fund maintained by such other employer.”
9. It is the contention of the opponent/respondent that as the period of service of complainant/appellant is less than five years, TDS is deducted. The Learned Forum in its order has observed that the services of the complainant/appellant is terminated for the poor performance and hence, he has no control on the termination of his services and hence, deduction of the amount of TDS is not correct and hence, deduction of the amount, amounts to deficiency in service on the part of opponent No.1 and further observed that complainant/appellant can claim the amount of TDS from the Income Tax Authority. This observation of the Forum is erroneous. We are not here to decide whether termination is proper or not. From perusal of the record, it is seen that against the termination of the services, complainant/appellant had approached the High Court. However, subsequently, he withdrawn his petition. In any way, termination of the services does not come within the ambit of Consumer Fora. We observe that opponent No.1/respondent had acted as per the provisions of the Income Tax Act. Holding the opponent No.1/respondent responsible for the deficiency in services, the Forum had ordered opponent No.1 to pay an amount of `10,000/- for mental agony and `5,000/- as costs. As the respondent/opponent No.1 has not filed any appeal, question of setting aside this order does not arise. As regards, prayer of paying an amount of `1,35,208/-, the appellant has not filed any evidence before the District Consumer Disputes Redressal Forum.
10. We do not find any substance in the appeal filed by the appellant. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal is dismissed. The order of the Forum is confirmed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced on
Dated 29th July, 2011.
