BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.7/2015

Dated this the  6^th day of July 2017

(Date of Institution: 30.01.2015)

M. Jayaraman, son of Muthulinga Padayatchi

C/o K. Sellappan

No. 26, First Main Street,              

East Vasal Nagar                        

Nainarmandapam, Mudaliarpet

Puducherry – 605 004.

….     Complainant

vs

1. The Branch Manager                             

    State Express Transport Corporation (T.N.) Limited

    Opp. Swadeshi Mill                         

    Maraimalai Adigal Salai

    Puducherry – 605 001.

2. The Managing Director

    State Express Transport Corporation (T.N.) Limited

    Pallavan Salai,

    Chennai – 600 002.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru  R. Raja Prakash,  Advocate

FOR THE OPPOSITE PARTIES:  Thiru  R. Soupramanian, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 (1) of Consumer Protection Act for directing the Opposite Parties to pay a sum of Rs.1,75,000/- as compensation and for payment of interest at 15% from 01.07.2013 onwards for  settlement of Provident Fund amount of Rs.1,40,505/- to him and for costs. 

2.  The case of the complainant is as follows:

          The Complainant was working as Conductor in the opposite parties Transport Corporation and was superannuated on 30.06.2013 after serving for 27 years, 7 months and 5 days. He was a member of the Provident Fund under Opposite Parties.   He submitted an application to the Opposite Parties for settlement of the Employees Provident Fund and Family Provident Fund.  He again sent a registered post to them on 19.07.2014 for early settlement.  Till date of filing this complaint, the opposite parties have not settled his dues with interest.  The complainant further stated the State Express Transport Corporation Ltd., (Tamil Nadu) obtained exemption from the Provident Fund Office and has a Provident Fund Office at Chennai – 2 under the name and style of State Express Transport Corporation (Tamil Nadu Provident Fund Office for the workers assuring payment of more interest.  The OP office deducted from his office, the monthly contribution payable by him, but did not refund the provident fund accumulations which is inclusive of the share of the employer and due to him.  The non-settlement of dues under the Provident Fund Account to the complainant is a deficiency of service committed by the Opposite Parties, as they are under law liable to do.  Since the opposite parties have not settled the provident fund amounts due to him, the complainant had to incur expenditure  by raising loans at exorbitant interest and his children's education, marriage and health were affected.  The complainant estimated the loss and sufferings at Rs.1,25,000/- on this count.  Hence, the prayer for payment of Rs.50,000/-  as compensation for mental agony, pain and sufferings and for interest.    

3. The reply version filed by the first opposite party and adopted by second opposite party discloses the following:

The complaint filed by the complainant is not maintainable either in law or on facts.  The opposite parties deny all the allegations contained in the complaint as false, frivolous and vexatious.  It is stated by the opposite parties that the State Express Transport Corporation is a Government undertaking providing service of passenger transportation facilities to the public without any profit motive.  The corporation is facing severe financial crisis.  Inspite of such financial problem, the corporation had taken all possible steps on war footing to settle the amounts due to be paid to their employees.  It is further stated that the complainant himself has alleged in paragraph-4 of his complaint that the opposite parties are liable for prosecution under section 405 of the Indian Penal Code, 1860.  When such is the specific case of the complainant, the remedy available to him to take appropriate legal action against this opposite party is only under the penal law and not under the provisions of the Consumer Protection, Act 1986.  The complainant has worked as Conductor in the Corporation of the second opposite party and he has retired from the service on 30.06.13.  He is a member of the Employees Provident Fund and his provident Fund Account Number is 12403 and the same was administered and maintained by the State Express Transport Corporation, Provident Fund Trust, Chennai – 2 which is a separate entity, headed by an Administrative Officer, appointed by the Government of Tamil Nadu.  The opposite parties further submitted that the contributions paid by the complainant as well as the contribution made by this opposite party are duly credited in the Provident Fund Account of the complainant.  As on the date of retirement of the complainant i.e on 30.06.2013 an amount of Rs.1,51,204/- stands in his account.  The complainant ought to have impleaded the Administrative Officer, State Express Transport Corporation, Provident Fund Trust, as a necessary party to the proceedings.  In the absence of arraying the necessary party to the proceedings, the present complaint is not maintainable on the ground of non-joinder of necessary party to the proceedings.  Further, the relationship between the complainant and this opposite party is only that of employee and employer and hence the complainant cannot be construed as a consumer under the provision of the Consumer Protection Act,1986 and this Hon’ble Forum is not having jurisdiction to decide the dispute between an employee and employer.          The State Express Transport Corporation Employee Provident Trust has settled the provident fund amounts due to their members who have retired in the month of May 2012 and the Government is also taking steps to settle the amounts to the remaining members. There is absolutely no negligence or deficiency in service on the part of these opposite parties and hence the present complaint is devoid of merits and hence, prayed for dismissal of the complaint. 

4.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C6 were marked.  On the side of opposite parties, no witness was examined, Ex.R1 only marked.    

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any deficiency in service?
3. To what relief the complainant is entitled for?

          6. Point No.1:

As admitted by the Opposite Parties, the complainant is the Member of the Opposite Parties Employees Provident Fund Scheme.  In this regard, the Hon'ble State Commission and National Commission  also held in various judgments / orders that a member of EPF Scheme is a "Consumer".    The learned Counsel for the opposite parties stated that the dispute raised by the complainant does not come under the purview of "Consumers" and they are not rendering any service as defined in the Consumer Protection Act and the Provident Fund is government by statutory Act and Rules.  Hence, the complainant is not a Consumer.  To establish his case, the learned Counsel for the opposite parties placed a  judgment reported in "The Assistant Provident Fund Commissioner, Trichy and another vs
V. Kuppuswamy and another" [F.A. 283/2012] in which, the Hon'ble Tamil Nadu State Consumer Dispute Redressal Commission, Madurai Bench.  The above said judgment is with regard to payment from the funds accumulated in the account of the complainant.  Hence, the said citation is not applicable to the present case on hand.

          7. On the otherhand, the learned counsel appearing for the complainant submitted that as per Section 2 (1) (d) (ii) of the Consumer Protection Act 1986,  consumer means, a person who hires the "services" for consideration and also "beneficiary of the service".  Hence, as per Employees Provident Fund Scheme, employees should be treated as beneficiary.  In this case, the opposite parties Corporation has obtained exemption for depositing contribution from the Employees Provident Fund Organisation.  They have paid their contribution and employee's contribution in their internal office (Provident Fund Trust).  Hence, the opposite parties rendered services to the employees.  Hence, the Employees Provident Fund Trust under Provident Fund Scheme is a "Service" within the meaning of the Consumer Protection Act, 1986.   To fortify their contentions, the complainant cited a judgment of Hon'ble Supreme Court of India in [REGIONAL PROVIDENT FUND COMMISSIONER vs SHIV KUMAR JOSHI] (2000) 1 SCC 98 – AIR 2000 SC 331 wherein, it was held that "…..We are concerned with clause (ii) of Section 2 (1) (d).  In the said clause a consumer would mean a person who hires or avails of any services and includes any beneficiary of such services other than the person who hires or avails of the services….."The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such-services which beneficiary is other than the person who hires the services"……"A perusal of the scheme clearly and unambiguously indicate that it is a "service" within the meaning of Section 2 (1) (o) and the member a "consumer" within the meaning of Section 2 (1) (d) of the Act. "

          8. The learned Counsel for the complainant also relied upon the judgments reported in Civil appeal No. 6447 of 2001 [REGIONAL PROVIDENT FUND COMMISSIONER vs BHAVANI] and also relied a judgment of Hon'ble Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Appeal No. 2123 of 2004 [2007 (1) CPR 351] NAUBAT SINGH vs M/S DENA BANK.  It also clearly reiterated the same version that a member of Provident Fund is also a Consumer. 

          9. Moreover, this Forum also relied upon a judgment of Hon'ble National Consumer Disputes Redressal Commission which held the same point of view in THE DEPUTY GENERAL MANAGER cpf…. Vs KASHMIR SINGH AND OTHERS [Revision Petition No. 3317/2008) and Mumbai Metropolitan Region vs Avinash Ramchandra Gokhale on 21.01.2016.

          10. From the above, it is crystal clear that the complainant is a Consumer u/s 2 (1) (d) (ii) and 2 (1) (o) of the Consumer Protection Act 1986.  Therefore, in view of the above, this Forum has found that the complainant is termed as a Consumer and he can seek his relief through Consumer Protection Act having jurisdiction. 

          11.  Point No.2:

We have perused the complaint, evidence of CW1 and Exs.C1 to C6.  We have also perused the reply version of opposite parties and their document Ex.R1.  The complainant submitted that he was working as Conductor in the Opposite Parties Corporation and retired on 30.06.2013 and further alleged that soon after his retirement, his contribution to Provident Fund was not settled by the opposite parties.  It is also the allegation of the complainant that he had given a letter vide Ex.C4 to the first opposite party to disburse the retirement benefits, the same was acknowledged by them vide Ex.C5.  Even then, they have not settled his EPF amount.  Thus,  the opposite parties committed deficiency in service and they are liable to pay compensation.   

          12. On the other hand, the opposite parties alleged that since there is paucity of funds in the corporation, the disbursement of provident fund to the retired employees could not be made immediately, however, on seniority retirement basis, the provident fund amounts were settled to various employees,  accordingly the dues to the complainant were settled vide Ex.R1, therefore, there is no deficiency in service on the side of the opposite parties. 

13.     This forum has perused the materials available on record.  Admittedly, there is no dispute that the complainant is the employee of the opposite parties.  The only dispute that arose in this complaint is that the opposite parties have failed to settle the Provident Fund amount  to the complainant within the time.   It is pertinent to note that as per Section 72 (7) of the Employees Provident Fund Scheme, 1952 it is clearly stated that

"The claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within 30 days from the date of its receipt by the Commissioner.  If there is any deficiency in the claim, the same shall be recorded in writing and communicated to the applicant within 30 days from the date of receipt of such application.  In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner."

In this case, the State Express Transport Corporation Ltd., (Tamil Nadu),
Chennai-2, the OP2  obtained exemption from the Provident Fund Office to act as a Commissioner under the name and style of State Express Transport Corporation (Tamil Nadu) Provident Fund Trust, to assure the payment of more interest to the members.  The Managing Director of the Corporation is deemed to be the  Commissioner of the Trust.    Further, as per the Act, the Provident Fund amount to be settled within 30 days of retirement of an employee, but the opposite parties failed to do so for the reason that there was scarcity of funds in the Corporation, but they are settling the amount on seniority retirement basis.  Accordingly, the complainant was also settled the provident fund amount to a tune of Rs.1,54,718/- only on 24.05.2016 during the pendency of this case including interest to a tune of Rs.14,213/- for the EPF amount of Rs.1,40,505/- and the Counsel for the complainant also filed a memo for receipt of Rs.1,54,718/-.

          14.  Now the question that has to be decided by this Forum is whether the complainant is entitled for interest from 01.07.2013 to 24.05.2016 at 12% per annum and subsequent interest from 24.05.2016 to till date.  As per section 72 (7) of the Employees Provident Fund Scheme, 1952, if the settlement is not made within 30 days on receipt of application, the delayed period after 30 days carries penal interest at the rate of 12% per annum.  In the present case, the complainant retired on 30.06.2013, the opposite parties settled the Provident Fund benefits only on 24.05.2016.  The Act clearly envisages that the Provident Fund dues to be settled within 30 days from the date of his retirement.  Hence, the EPF amount must be settled on or before 30.07.2013.  But the opposite parties settled his dues only on 24.05.2016 i.e. 32 months and 24 days after his retirement.  Therefore,  the complainant is entitled for the penal interest as laid down in section 72 (7) of the Employees Provident Fund Scheme, 1952.  Hence, this Forum observed that the opposite parties have committed deficiency in service which might have definitely caused loss and mental agony and the complainant has to be compensated for the same by the Opposite Parties. 

          15. The opposite parties further contended that the complaint is bad for non-joinder of necessary party since the Employees Provident Fund is being maintained by an Administrative Officer, appointed by the Government of Tamil Nadu and he has to be added as a necessary party.  The learned Counsel for the Complainant submitted during his arguments that the General Manager is the Administrator of the Provident Fund Trust and all the powers are vested with him only and all the correspondences and communications were routed through first opposite party.  Hence, there is no need for impleading the Administrator as a party to this proceedings.  On perusal of Exs.C1 to C3, the complainant was working under the opposite parties and getting salary from them only.  On Perusal of Ex.C3, it shows that his PF amount was deducted from his salary by the opposite parties and they only remitted the same before the Employees Provident Fund Trust.  All the settlements made through opposite parties only.  Hence, it is not mandatory to implead the Administrator, Employees Provident Fund Trust, Chennai as a necessary party and also there is no privity of contract between the complainant and the said Trust. 

          16. The complainant was superannuated on 30.06.2013.  As per Employees Provident Fund Rules, the opposite parties should settle the EPF amount to the complainant on or before 30.07.2013.  As per Ex.R1 the EPF amount was settled only on 24.05.2016.  The amount that was accumulated in the PF account of the complainant till his retirement was Rs.1,40,505/-.  The opposite parties settled the claim on 24.05.2016 to a tune of Rs.1,54,718/- while the complainant was entitled for Rs.1,87,945/- along with interest at 12% p.a. from 01.08.2013 to 24.05.2016.  Hence, the complainant is entitled for a sum of Rs. 33,227/- being the balance amount of interest for his full and final settlement.  Therefore, the opposite parties are liable for deficiency in service attributed by them and the complainant is entitled for compensation. 

          17. On point No.3:

          In view of the discussions made supra, this complaint is hereby allowed and the opposite parties are directed to:

          1. pay  the complainant a sum of Rs.33,227/-  being the balance amount of interest @ 12% for the delayed payment of Provident Fund from 01.08.2013 to 24.05.2016 and the complainant is entitled for subsequent interest on Rs.33,227/- till realisation;

          2. pay  the complainant a sum of Rs.20,000/- being compensation for the loss and sufferings;

          3. pay  the complainant a sum of Rs.5000/- towards cost of this litigation.

Dated this the 6^th  day of July 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           18.08.2015           N. Jeyaraman     

OPPOSITE PARTY'S WITNESS: NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS MARKED THROUGH CW1:

Ex.R1                   24.05.2016           Photocopy of Provident Fund Settlement issued by

OP2 to OP1 with a copy to complainant. 

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER