This Complaint coming up before us for hearing on 06-03-12 in the presence of Sri U. Janaki Raju, advocate for complainant and of Sri A.A. Prasad, advocate for 1st opposite party, Sri K. Sivaram Prasad, advocate for 2nd opposite party, 3rd opposite party representing in person, upon perusing the material on record and after hearing both sides and having stood over till this day for consideration this Forum made the following:-
O R D E R
Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint under section 12 of the Consumer Protection Act seeking a direction to the opposite parties to pay Rs.1,44,971/- being the amount due under provident fund account together with interest @12% p.a., and for costs.
2. In brief the averments of the complaint are hereunder:
The complainant worked as a warden from 01-07-96 to 30-06-08 in Vikas Mahila Residential by The weDownload Manager">hostel
, Guntur, one of the institutions run by 1st opposite party. The 1st opposite party did not pay the provident fund amount to the complainant after terminating him from service on 30-06-08. The 1st opposite party being an employer did not implement the provident fund scheme in respect of the complainant. The 3rd opposite party also failed to get the provident fund scheme enforced by the 1st opposite party. The 2nd opposite party had taken over M/s Vikas Educational Institutions, Guntur in June, 2008 under a commercial agreement. The 1st opposite party did not inform about such transfer to its employees. The 1st opposite party did not settle the service benefit dues of its employees. The complainant is entitled to get terminal benefits as per the applicable industrial laws including provident fund. The opposite parties are responsible for payment of provident fund benefit amount to the complainant. The complainant has drawn Rs.4,600/- per month prior to his illegal termination. The complainant calculated the contribution of provident fund for his entire service on the last pay drawn. The complaint therefore be allowed.
3. The 1st opposite party resisted the claim of the complainant contending that it never engaged or appointed the complainant in any one of its organizations and as such the question of sending or not sending the name of the complainant or paying the contribution of provident fund did not arise.
4. The contention of the 2nd opposite party in brief is hereunder:
This Forum has no jurisdiction to entertain the matter as per the provisions of Consumer Protection Act. Jurisdiction of this Forum is ousted when separate tribunal is established under Provident Fund Acts. The 2nd opposite party has nothing to do with the complainants alleged employment with the 1st opposite party. As there is no transfer of by The weDownload Manager">business the question of responsibility towards the complainants alleged dues did not arise. The complainant is an utter stranger to the 2nd opposite party. The 2nd opposite party gave a suitable reply to the notice issued by the complainant. The 2nd opposite party requested the complainant to furnish authenticated proof of his employment with it from June, 2008 or any date. Rest of the allegations contra mentioned in the complaint are all false and are by The weDownload Manager">invented by the complainant to suit his claim.
5. The contention of the 3rd opposite party in brief is hereunder:
The employees provident fund organization is meant for providing social security benefits to the poor workers of establishments/factories. The 3rd opposite party could not verify the details and is unable to put forth the facts before the Forum due to lack of details of provident fund account number of the complainant. If the complainant produces documentary evidence regarding his employment with the 1st opposite party from 01-07-96 to 30-06-08 along with pay slips/any other evidence and transferring to the 2nd opposite party, the 3rd opposite party can conduct enquiry u/s 7 (A)/7 (c) of the EPF and MP Act, 1952 so as to verify the veracity of the documents with regard to the eligibility of the membership under the said Act and schemes. The 3rd opposite party did not commit any deficiency of service. Claim against the 3rd opposite party may be dismissed.
6. No exhibits were marked on either side. The 1st opposite party produced certain documents in pursuance of the memo issued by the complainant.
7. Now the points that arose for consideration in this complaint are:
1. Whether the complainant is a consumer?
2. Whether this Forum has jurisdiction to entertain the complaint?
3. Whether any of the opposite parties committed deficiency of service?
4. Whether the complainant is entitled to the amount claimed?
5. To what relief?
8. POINT No.2:- The registry took an objection regarding maintainability of the complaint before this Forum. While resubmitting his complaint the complainant relied on the decision reported in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi (AIR 2000 SC 331) it was held that
In this decision the point arose for consideration before the Supreme Court was whether an employee-member of Employees Provident Fund Scheme was a consumer under section 21(1)(d) of the afore-said Act. While dealing with that point it was held in para No.10 of the judgement:
“The contribution of the employee has to be equal to the contribution payable by the employer in respect of such employee. The words ‘in respect of’ are significant as they indicate the liability of the employer to pay his part of the contribution in consideration of the employee working with him. But for the employment of the employee there is no obligation upon the employer to pay his part of the contribution to the scheme. The administrative charges, as required to be paid under para 30 of the scheme are also paid for consideration of the employee being the member of the scheme. It is immaterial as to whether such charges are deducted actually from the wages of the employee or paid by his employer in respect of the employee-member of the scheme working for such employer. The administrative charges are further required to be determined having regard to the basic wages, the dearness allowance, retaining allowance, if any, and cash value of food concessions admissible thereon for the time being payable to the employee. If the contention of the appellant is accepted that as no part of the administrative charges are deducted from the actual wages of the employee, he cannot be deemed to be hiring the services of the scheme, the consequences of such an interpretation shall frustrate the object of the Act and the scheme as in that event no obligation can be cast upon the employer to pay contributions which are equal to the contribution payable by the employee along with the administrative charges are in lieu of the membership of the employee and for the services rendered under the scheme.”
9. The provisions of the Employees Provident Funds and Miscellaneous Provisions Act 1952 has to be liberally interpreted being a beneficial piece of social welfare legislation as rightly contended by the learned counsel for the complainant. This Forum prima facie considered the allegations made in the complaint and numbered the complaint as proof is not required at that stage. That does not prevent this Forum from going into the merits of the case after enquiry as rightly contended by the opposite parties.
10. The 3rd opposite party on 17-02-12 filed copy of list showing members that were shown by M/s Vikas Mahila Residential hostel to the benefits Employees Provident Funds and Miscellaneous Provisions Act 1952. It can therefore be inferred that the provisions of Employees Provident Funds and Miscellaneous Provisions Act 1952 became applicable to M/s Vikas Mahila Residential hostel from 01-08-92 as seen from the above document. In view of the above said document we opine that this Forum has got jurisdiction to entertain this case which has arisen under the provisions of Employees Provident Funds and Miscellaneous Provisions Act 1952 and answer this point in favour of the complainant.
11. POINT No.1:- Burden is on the complainant to prove that he was an employee of M/s Vikas Mahila Residental hostel during 1/7/96 – 30/06/08. The complainant in his complaint as well as affidavit mentioned that he worked as warden in M/s Vikas Mahila Residential hostel, Guntur from 01-07-96 to 30-06-2008. The complainant in his complaint mentioned that M/s Vikas Mahila Residential hostel belonged to the 1st opposite party i.e., M/s Vikas Educational Institutions, Guntur. The complainant for the reasons best known to him did not make M/s Vikas Mahila Residential hostel as a party to the complaint. The complainant did not file any document to show that he worked in M/s Vikas Mahila Residential hostel.
12. The complainant on the other hand to prove his case filed IA 266 of 2011 seeking the opposite parties for producing 1. Wages register from 1996 to 2008, 2. Attendance registers from 1996 to 2008, 3. Register establishment certificate of Vikas Educational Institutions and its renewals for the entire period, 4. Register establishment certificate of Sri Chaitanya Educational Institutions and its renewals for the entire period 5. Concerned commercial agreement between Vikas Educational Institutions and Sri Chaitanya Educational Institutions and 6.Three years balance sheet of the Vikas Educational Institutions for the years 2005-06 2006-07 and 2007-08. This Forum allowed IA 266 of 2011 on 01-12-11 and the above order became final.
13. The 2nd opposite party in pursuance of the above order filed memo along with copy of certificate of its registration contending that there was no commercial agreement between it and the 1st opposite party. The 1st opposite party filed acquittance registers for the months of April, May and June for the years 2005, 2006 and 2007. The complainant required this Forum to draw an adverse inference against the opposite parties 1 and 2 for not producing the documents sought by him before this Forum.
14. It is the specific case of the complainant that he worked from 01-07-96 to 30-06-08 in Vikas Mahila Residential hostel belonging to the 1st opposite party. The complainant for the reasons best known to him did not file affidavits of the employees who worked along with him during that relevant period to prove his contentions. The list filed by the 3rd opposite party on 17-02-12 revealed that one D. Uma c/o Ranga Rao, V. Ramana c/o Veerappa, Satyavathi d/o G. Govindu, T. Srilatha w/o Rammohan Rao, P. Survarnakumari c/o P. Balasubrahmanyam, B. Lakshmikumari c/o Chandrasekhar Reddy, K. Ram Mohan Rao c/o Muraharirao, M. Ravichandra c/o Narsimha, T.H. Vijaya, Ch. Rama Rao c/o Murthaiah, Sk. Rahim s/o Khasim, Subrahmanyam worked in M/s Vikas Mahila Residential hostel from 01-08-92 in the least. The list filed by the third opposite party did not contain the name of the complainant. Except the self interested testimony of the complainant no other corroborating evidence is available before this Forum to draw adverse inference against the opposite parties. Under those circumstances, the contention of the complainant to draw adverse inference against the opposite parties is devoid of merit. The complainant in our considered opinion failed to prove that he is an employee of the 1st opposite party by adducing acceptable evidence. Therefore we answer this point against the complainant.
15. POINTS 3 & 4:- The contention of the 1st opposite party is that it leased out its buildings to the 2nd opposite party. The 2nd opposite party categorically in its memo mentioned that there was no commercial agreement between it and the 1st opposite party. The 2nd opposite party in no way is answerable to the claim of the complainant in the absence of any agreement showing the transfer of business. This Forum already observed that the complainant failed to prove that he is an employee of M/s Vikas Mahila Residential hostel belonging to the 1st opposite party. Therefore we opine that the opposite parties 1 and 3 are also not liable to answer the claim of the complainant and answer these points against the complainant.
16. POINT No.4:- In view of above findings, in the result, the complaint is dismissed without costs.
Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 19th day of March, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant: NIL
For opposite parties: NIL
PRESIDENT
