MR LAXMI NARAYANA PADHI, PRESIDENT…..The facts in brief leading tot he present Complaint is that, the Complainant joined the office of the Chief Engineer,Upper Indravati Irrigiation project,Khatiguda of Water resources department of Govt of Odisha, i.e. the O.P.2 on Dt. 15.12.1980 as an Amin. First his work was attached to Indravati Dam Sub Division No. 1 till 01.07.1987 then transferred to U.I. Left Canal Sub-Division-III, under the O.P.3, and served there in different sub divisions, under different spells till 30.09.2007, i.e. till date of his super annuation. As long as he was in UI Dam Division, the employer was contributing to his EPF A/C No. OR/2954/35, but after his attachment to Left Canal Division, ie. The O.P.3 , he was deprived of the contribution one plea or the other by the Employer, i.e. the O.P.3, all his grievances were left in vein. He being inadvertent of the legal stand as to the EPF Contributions, simply succumbed to the denials of the employer who deliberately did not intend to bring the work charged employees like the present complainant under the organisation. That after his retirement he against the gross negligence of the employer in redressing his grievance, had approached the Orissa Administrative Tribunal vide O.A.No. 347/2009 which though disposed in favour fo the Complainant, the O.P.s did not care to comply the order of Honble Tribunal, hence a further contempt proceeding was initiated against the contemning employer and the present O.P.2 and O.P.3. The O.P.s against the order of Tribunal went to the Honble High Court of Orissa in WP(C) No.12057/14, which was dismissed. Against such dismissal again the O.P.s filed restoration petition, which is still res-subjudice before the Honble H.C.of Orissa and the Complainant declares that, the subject matter being different, shall not be construed as res judicata against the present complaint. It is for the deliberate omissions and commissions of the O.P.s to linger in settlement of the genuine claims of the Complainant, the Complainant with eight dependent family members including One divorcee daughter and her three children, has been running through great financial hardship and mental agony, beyond any cardinal calculation. But as he is now being advertent of his rights under the EPF & MP Act-1952, that he was entitled to the EPF contributions, and on super annuation pensions, he has approached this forum with prayers to condone the delay in filing the petition, along with prayers to allow the Complaint against all the O.P.s with directions to pay his epf contributions, pensions with arrears and interest along with compensation of Rs. 3,00,000/- and cost of Rs. 5,000/-.
02. The Complainant has filed a good volume of documents which includes the service particulars, Letters of O.P.1, Office orders of O.P.2 and O.P.3, copies of the Petitions and orders of Honble O.A.T. and Honble Highcourt of Orissa, in support of his contentions in the Complaint, with affidavit. Considered.
03. The O.P. No. 3 entered appearance on dt. 30.11.2015 to contend that, though Banabasi Panigrahi, i.e. the Complainant was appointed since 15.12.1980 under the O.P.2, he has rendered service under Executive Engineer, Left Canal Division, i.e. the O.P. 3 since 17.10.1990 to 30.09.2007, i..e. till his superannuation. He contended that, the minimum number of work charged employees including the Complainant was less than the required number of 20 as required by EPF & MP Act,1952, hence the Compainant could not be covered under the Act.That the organisation has attained the eligible criteria, it was covered under EPF vide establishment code 10526 during the year 2007,i.e. only after the retirement of the Complainant.Hence, there is no negligence on the part of them in dealing with the grievance of the Complainant, in the context they prayed for dismissal of complaint.
04. The O.P.3 filed some papers irrelevalent to his contention, hence not brought under consideration.
05. The O.P.2 choose to refrain from attending the forum or countering the Complaint, hence it is presumed that, he has nothing to reply against the Complainant, as thus, the case is heard exparte in his absence.
06. The O.P.1 entered his appearance on dt.30.01.2016 to contend that, the Complainant was a member of the EPF scheme with account No. OR/2954/35 to which contributions were made from dt. 01.12.1981 to 31.01.1987 and on receipt of the claim application in F-19 & F/10-C the accumulations in the account of Rs 8,874/- and Rs.156/- was disbursed to the Complainant on dt.24.03.1995 and under the establishment code OR/3439 the name of the Complainant does not appear.That about non extension of PF benefits from the date of joining the complainant never approached them. Further on receipt of the copy of the complaint in the present cosumer case, they had send the area E.O. to enquire into the matter , which was reported on dt.20.07.2015 by the E.O. stating that, the establishment of Executive Engineer, Gate Works Mechanical Division covered under establishment code OR/2954 is merged with establishment of Executive Engineer, Podagada Dam Division covered under establishment code of OR/3156. And to determine the dues of all categories in the establishment notice under 7A of the Act has been issued.Since the enquiry is going on, and as there is no negligence on the part of the O.P.s in regards to the complaint, they prayed for dismissal of the complaint against them.
07. The O.P. 1 has filed the report of the area E.O.dtd. 20.07.15 and the copy of notice issued against E.E.Podagada Dam Divn. Considered.
08. It is admitted by both the parties that, the Complainant had been serving the O.P.3 since Dt. 17.10.1990 to 30.09.2007, i..e. till his superannuation under the super authority of the O.P.1, i.e. the Chief Engineer,Upper Indravati Irrigation Project at Khatiguda, and that the O.P.2 & 3 organisation has not brought the Complainant into EFP fold and has not contributed their employers share during the period of service. Had they been contributing their share, bringing the Complainant to EPF Fold, as per the mandates of the EPF & MP Act-1952, the Complainant would have been now leading an improved life pattern, and without which now forced to lead in contrary, a degraded living.
09. The O.P.3 in his counter have contended that, the Complainant had filed similar case in the Court of the Honble SAT in O.A.No. 347/2009 and against the order of which they have filed Appeal petition before the Honble Highcourt of Odisha in CMAPL No. 17/2015.We have referred the application of the Complainant in the OAT , which referred to regularisation of his service, from workcharged establishment to Regular establishment, and it has no forbearance to the cause of action to the present complaint, hence the contention of O.P. is dismissed.
10. Further, the contention of the O.P. that, as the establishment had no 20 numbers of work charged employees, the minimum number which is stipulated in the EPF & MP Act1952, hence the was not in legal implications to bring forth the Complainant into EPF fold, spells of some idiotic verse, careless ness, and deliberate intention to deprieve their employees of their legitimate right to EPF contributions and no more.
11. The forum could not understand when the EPF & MP Act 1952 has in it’s clear words implied that every establishment covered under the Act shall bring each of it’s employees from the very date of joining, the version of OP.3, seems vogue and reckless, and the OP.1 refraining from acting as per the provisions of the statutes impounding upon these establishments running contrary to the provisions of statutes is quite hopeless & dissuading.
12. We refer to para 26 (2) of the EPF & M.P.Act 1952, which reads as thus-
26(2) : After this paragraph comes into force is a factory or other establishment every employee employed in or in connection with the work of that factory or establishment, other than an excluded employee, who has not become a member already shall also be entitled and required to became a member of the fund from the date of joining the factory or establishment".
13. It would be pertinent to refer D.O. letter no. OR/RPFC/AA/2/78/229 dt.21.7.1981 of Sri K.L.Jamba, the PFC addressed to J.S.Baijal Commissioner cum-Secretary to Irrigation & Power deptt. Of Odisha Govt which referring Govt of India notification No.4(3)/61/PF-11 dt.23.9.1980 on amendment of para 26 suggested that “all such Executive Engineers in Power & Irrigation department) establishments attract the provisions of above mentioned Act and are required to report compliance by depositing the provident fund contributions”.
14. Catena of Hob'ble Supreme Court judgment has observed that the employees should be covered under the Act since their date of joining.
15. Now it has became a matter of great concern that, the public bodies, instead of redressing or evolving procedures’ to redress the genuine and legal claims its subjects, they are relegating to unnecessary litigations, instead of imposing themselves as responsible litigants, but under assumption of a right to clash vested in them, and that all claims against them should be viewed as illegal and should be resisted and aught up to the highest court of the land. It is not for the reason that the claims are illegal but, to their instinctive tendency to protect themselves against their own wrongs, misfeasance, illegalities and incapacity of decision taking. Sometimes their plea in taking every claim passed unto them by lower forums to relegate to higher courts are more frivolous then genuine and the Hon’ble Supreme court heavily impounded on these practices of the Govt instrumentalities In Mr Ruby Chandra Dutta Vs United Insurance Co, Rajkumar urban improvement trust Vs Mohan lal (2010 CTJ-121) Madras Port Trust Vs Hymanshu International 1979 (4 Sec,176) and in many others.
16. It held it is high time that Govt & public authorities adopt the practice of not relying upon technical pleas for the purposes of defeating legitimate claims of citizens and do what is fair & just.
17. .It is to be seen from the Records that, by the order of General Manager, Upper Indravati project vide No. 597 dt. 06.01.1987, the Complainant was transferred from Indravati DAM Division to Upper Indravati Canal Division to work under Executive Enginer Deisigns Division, with Head Quarter at Mukhiguda. The UI Canal Division is covered 30.09.1981 vide Establishment P.F.Code OR/3439 and vide Order No. 17878 dtd.29.04.1987 of Chief Engineer(i.e the Chief Construction Engineer), the O.P.2 the Complainant against transferred to U.I.Right Canal Divison, which was brought into EPF fold since 06.03.1990 vide establishment Code OR/5156, and subsequently the Right Canal Division was merged into Left Canal Division, where the Complainant served from dt.29.04.1987 till his superannuation. It is the rule of the EPF & MP Act-1952 , once one establishment is covered under the EPF fold, each and every employees shall be entitled for EPF benefits with regards to both Employers and Employees contribution, and it is the duty of the EPFO that, each and every establishment is strictly guided by these rules.
18. With the foregoing discussions, we are of the view that, not only the OP.1 and 2 has tried best, deliberately & capriciously to deprive the legitimate contributions of employers share bringing all the workers like the present complainant to EPF fold since that, date of joining, but only to cover up their malice intentions and to misguide the enforcement authorities and courts with vogue spells and relegating these poor employees to unnecessary law suits as if a poor helpless man made hounded by wild dogs, which action of the employers like O.P.2 and O.P.3 hardly had any humanity, to reiterate that, they are not only depriving these poor indigent illiterate workers of present benefits of EPF scheme, but also, thrashing them to life time of their old age including their family in to deplete of despair, sufferings financial hardships which cannot be said to be approved by any humans or social law, leave along the C.P.Act-1986 or E.P.F.& M.P.Act-1952.
19. The OP.1, however, on receipt of the Complaint has already initiated proceeding and due enquiry against the establishment vide No. SRO/BAM/Enf/OR/3156/2701 dtd. 28.07.2015, and the proceeding before the O.P.1 under provisions of EPF & MP Act-1952 being a judicial proceeding and the authorities are judges, we expect the authorities act in the best interest of working class keeping in view of the objects of the legislative intention of the said act, and dispose the proceeding at the earliest possible.
With this the Complaint is allowed against OP.2 and OP.3, with costs.
O R D E R
i. The OP.2 and 3 severally and collaterally shall pay each of the complainant a sum of Rs.1,00,000/- (Rupees One Lakh) as compensation and Rs.5,000/-(Five thousand) towards cost of the litigation.
ii. The OP.1 shall complete their enquiry and initiate due proceedings against the OP.2 & 3 to enforce the EPF contributions of the complainants as above since his date of joining with the O.P.3 establishment i.e. since dt. 06.01.1987 as per rules of law with interest and damages within 30 days hence receipt of their order, all with due intimations to the complainant periodically.
iii. The above orders shall be complied with in 30 days of receipt this order, failing which, the total sum will carry 12% interest per annum till its realization.
Pronounced in the open forum on 30th day of December, 2016.
Sd/- 30.12.16 Sd/- 30.12.16 Sd/- 30.12.16
MEMBER MEMBER PRESIDENT, DCDRF,
NABARANGPUR
