DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No: 831 of 2010] Date of Institution : 31.12.2010 Date of Decision : 29.05.2012 ----------------------------------------- Jain Parkash, Senior Manager (Retired), Punjab Agro Industries Corporation, r/o H.No. 3162, Sector 27-D, Chandigarh. ---Complainant VERSUS[1] The Employees Provident Fund Organization, through its Regional Provident Fund Commissioner, SCO No. 4-7, Sector 17-D, Chandigarh. [2] The Regional Provident Fund Commissioner, SCO No. 4-7, Sector 17-D, Chandigarh. ---Opposite Parties.BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Shri Raj Kaushik, Adv. for the Complainant. Sh. S.S. Parmar, Advocate for Opposite Parties. PER JASWINDER SINGH SIDHU, MEMBER. Complainant has filed the present complaint against the Opposite Parties on the grounds that the complainant was an employee of Punjab Agro Industries Corporation (herein after referred as Corporation), having joined its service on 16.09.1970 as Assistant and served till 31.07.2004 when he attain the age of superannuation, thus retiring on the post of Senior Manager. That during this tenure his services were terminated between the period 25.01.1979 to 29.03.1984, when he was reinstated by the order of the Labour Court, but without back wages. 2. This aforesaid award was challenged by the complainant, while allowing the appeal of the complainant Hon’ble High Court later on, in the letters patent appeal, a consent was accorded to a sum of Rs.40,000/- which were later on paid by the Corporation in February, 1999, copy of the order of the Hon’ble High Court is Annexure C-1. 3. The complainant claims that it was incumbent upon the Corporation to deposit its share of EPF with Provident Fund Office for the period 25.01.1979 to 29.03.1984 on wages of Rs.40,000/- allowed by Hon’ble Punjab and Haryana High Court, which was not done. Therefore, the complainant filed an application under Section 7-A of the EPF Act, copy of which is annexed as Annexure C-2. This application dated 03.04.2006 was contested by the Corporation. The Assistant Provident Fund Commissioner vide its order dated 28.08.2006 decided the application in the favour of the complainant, copy of the same is annexed as Annexure C-3. This order of the APFC was not appealed against and thus has attained finality. The complainant has specifically stated that the PF Department did not take care to implement the second part of the order dated 28.08.2006. As such the complainant claimed his entitlement to the extent for the period for which the Corporation had deposited the amount of Rs.10042/- and upto date interest for the period thereafter. 4. The complainant made repeated representations through letters dated 02.01.2010 and 06.03.2010, which were replied by the PF Department through their letter dated 17.03.2010, copies of the same are annexed as Annexure C-4 to C-6 respectively. Besides these letters complainant made repeated representations through his communications Annexure C-7 to C-9 and thereafter served a legal notice dated 06.05.2010, copies of the same are annexed as C-10 and C-11 respectively. 5. The complainant claims that he is entitled to a sum of Rs.108925/- due towards interest calculated upto 31.03.2010. A calculation sheet explaining the details of his claim is annexed as Annexure C-12. 6. Thus alleging deficiency in service on the part of the OPs, the complainant has sought relief of directions against the OPs for:- i) Release of an amount of Rs.108925/- as on 31.03.2010 along with an interest @18% P.A. thereon; ii) Payment of costs of Rs.50,000/- on account of mental agony, harassment caused to him. iii) Litigation expenses to tune of Rs.5500/-. The complaint of the complainant is supported by a detailed affidavit of the complainant. 7. Opposite parties have contested the claim of the complainant by filing their reply, taking Preliminary Legal Objections to the effect that 1) the complainant has already availed the remedy before the RPFC at Chandigarh , the same remedy cannot be availed again through this Forum. 2) The complainant had the next remedy available in the shape of appeal against the order dated 28.08.2006 of the APFC under section 7-A, but the complainant failed to do the same hence he is Estopped by his own act. For this purpose a citation Sneh Lata Gupta &ors V. Administrator HUDA &ors CLT 2010(4) Page 10 is mentioned. 3) That the Complainant having chosen a remedy under a statute then under those circumstances, he cannot approach the District Forum, as held by the Hon’ble Punjab State Consumer Disputes Redressal Commission, in Appeal No. 418 of 2001, decided on 20.7.2005. 4) Furthermore, the case titled G.M. Telecom Vs. M. Krishnan, decided by the Hon’ble Supreme Court in Civil Appeal No. 7687 of 2004, decided on 1.9.2009, wherein it is held that if a special remedy is provided in the Act, regarding the settlement of the dispute, then the remedy under Consumer Protection Act, 1986 is by implication barred. 8. On merits, the Opposite Parties have para-wise contested the claim of the Complainant on the ground that the Consumer Fora has no jurisdiction to sit over the issues as an appellate authority of Opposite Party No.2 and further, in reply to the claim that Opposite Party is not complying with its own orders, it is contested that the Fora does not have the Appellate Jurisdiction on the issue. The fact with regard to the application under Section 7A of PF Act is admitted. However, the allegations of the Complainant that Opposite Party No. 2 is not complying with its own orders is stated to be wrong and denied. The contents of para 2 & 3 are also denied but the contents of para 4 are stated to be matter of record, and claimed to deserve no reply. 9. In response to para 5, the fact about the filing of application under Section 7A of PF Act is admitted and rest of the para is replied as per the orders of APFC dated 28.8.2006. Para 6 being the matter of record is not replied. 10. In reply to para 7 the Opposite Parties have stated that the Corporation has deposited the amount as per the orders of the APFC dated 28.8.2006. Rest of the matter is claimed to be between the PF Department, and the Corporation, and is further stated that the Complainant has no concern whatsoever with the 2nd part of the order, and the Complainant is not entitled for any interest for any period. In reply to para 8, Opposite Parties have stated that they have done as per the provisions of the Act, and even if after this the Complainant is at liberty to seek remedy by filing an appeal under the provisions of the Act. The contents of para 9 are claimed to be wrong and mentions that the Complainant is not entitled for interest as claimed by him. 11. In reply to the rest of the averments the Opposite Parties have claimed no deficiency in service on their part. Having done everything as envisaged in the PF Act, the claim of interest from the Opposite Parties is denied, as well as the jurisdiction of this forum to go into this matter is contested. Claiming that the Complainant has not suffered any mental agony, harassment, or litigation expenses, at the hands of the Opposite Parties, thus, praying for the dismissal of the present complaint, with costs. 12. The reply of the Opposite Parties is supported by a short affidavit of one Subhash Arora, Assistant Provident Fund Commissioner. 13. Parties led their respective evidences. 14. Having gone through the entire complaint, version of the Opposite Parties, the evidence and with the able assistance of the learned counsels for the parties, we have come to the following conclusions. 15. The legal objections taken by the Opposite Parties about the Complainant not having filed any appeal against the orders dated 28.8.2006, is totally out of context, as no person in whose favour a judgment has been delivered would go in for appeal against it. The stand taken by the Opposite Parties about the qualification of the Complainant being a consumer qua them too is weak in the light of the judgment of the Hon’ble National Commission in case titled: Venkatesh and Ors. Versus Vishwanath & Ors., I (2008) CPJ 219 (NC), wherein the Complainant’s right to avail an additional remedy under the Consumer Protection Act, 1986 is held justified. 16. The stand of the Opposite Parties with regard to their not being covered under the ambit of “service” as per the Consumer Protection Act, is clearly addressed by the judgment of the Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission, in the case titled: Regional Provident Fund Commissioner & Anr. Versus Feroza Bee & Ors., IV (2008) CPJ 375, wherein it is held that the employees PF Scheme, which levies administrative charges for service rendered, covered within the ambit of ‘service’ under the Consumer Protection Act, 1986, and the Complainant against them is maintainable. Thus, all the defence taken by the Opposite Parties in their favour stand demolished, and the present complaint of the complainant deserves to be addressed in that manner. 17. To begin with, it is important to quote here that the Complainant having succeeded in getting himself qualified as “Workman” with out back wages, by the Labour Court. He had also succeeded in getting his “Back Wages” for the period between 25.01.1979 to 31.03.1984 through the orders of the Hon’ble Pb & Hry High Court dated 06.09.2005. As these two orders were not challenged by the Corporation, hence, these orders have attained finality against it. . 18. Armed with these orders, the complainant moved an application under section 7-A of the P F Act, against the Corporation, laying claim to the PF dues that became payable to him against the amount of Rs 40,000/- by the Corporation, for the period for which, the Back Wages were allowed by the Hon’ble High Court. This application too was decided in his favour vide the orders of the APFC (Quasi Judicial Authority) dated 28.8.2006, has been making repeated representations with the Opposite Parties to get his rightful dues as per awards of the order dated 28.8.2006. The operational part of this order is reproduced below:- “I hereby determine a sum of Rs 10,042/- (Rupees Ten Thousand Forty Two Only) as due towards statutory dues from the estt for the period 25.01.1979 to 29.03.1984”. “Establishment is directed to deposit an amount of Rs.10042/- (Rupees Ten Thousand Forty Two Only) within 15 days of receipt of these orders and produce copies of bank Challans in support of having deposited the said amount failing which action under Section 8-B to 8-G of the E.P.F. & M.P. Act, 1952, will be taken to recover the said amount. This order will however, shall not absolve the estt. of its liability to pay the penal damages u/s 14-B and interest U/s 7Q of the said Act. The department may also invoke the provisions of Section 7-C of the said Act to recover the escaped liability, if any, if so required.” The Complainant has made repeated representations with the Opposite Parties through his letters Annexure C-4, C-5, C-7, C-8 and C-10, whereafter, the Complainant also served a legal notice dated 6.5.2010 (C-11), which was not replied by the Opposite Parties. However, during this period, two letters dated 18.3.2010 (Annexure C-6) and another dated 9.4.2010 (Annexure C-9), asking him to explain his right for the arrears that he was claiming, were sent to him. 19. We are surprised that the Opposite Parties instead of implementing the orders dated 28.8.2006, which were borne out of the orders of Hon’ble High Court dated 6.9.2005, through which the Complainant was entitled for a sum of Rs.40,000/- as back wages for the period Jan., 1979 to Mar. 1984, the opposite parties took no initiative to implement the same. The orders of the quasi judicial authority determining a sum of Rs.10,042/- as dues towards the statutory dues, from the establishment for a period 25.1.79 to 29.3.84, clears all ambiguities with regard to the entitlement of the Complainant towards interest accrued on this amount. This aspect is duly explained and established in the orders of the APFC dated 18.8.2006, which clearly states that this order shall not absolve the establishment of its liability to pay the penal damages and interest under Section 14-B and Section 7Q respectively of the said PF Act. It was also left to the department of the Provident Fund to recover the escaped liabilities, if any, if so required. But we are surprised that the Opposite Parties have failed to either give directions to the Corporation to deposit the same with it or to initiate any action against the establishment in not having done the needful as envisaged under the provisions of Section 7-C of the Act. It is important to mention here that the Opposite Parties while replying to this fact, in para 1 of their reply on merits have denied the claim of the Complainant that Opposite Party No.2 is not complying with its own orders. As nothing needful had been done, till date, it establishes the fact that Opposite Parties are sleeping over the matter. 20. The Opposite Parties in their reply to para 7 have claimed that the issue with regard to the recovery of liabilities to pay the penal damages under Section 14-B and interest under Section 7-Q is a matter between the PF Department and the Corporation, and the Complainant has no concern, whatsoever, with this part of the order, and the Complainant is not entitled for any interest for any period. We fail to comprehend that it was the bounden duty of the Opposite Parties to recover liabilities established by the orders of the APFC dated 28.8.2006 and the PF Act under Section 14-B and Section 7-Q empowers them to do the needful. The stand taken by the Opposite Parties in claiming that the Complainant is not entitled to any interest for any period is beyond comprehension. The stand of the Opposite Parties is also offensive in nature, as they have forgotten, as to whose benefit; they are holding these posts under the provisions of PF Act. 21. This entire episode can easily be understood in the light of the judgment of Hon’ble Kerala High Court, in case titled as Joseph K.V. Versus RPF Commissioner, Ernakulam, reported as 2003-I-LLJ 981, wherein the Hon’ble Kerala High Court has held as under:- “Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 – Secs. 7-Q and 14-B – Employees’ Provident Funds Scheme, 1952 – Para 60 – Member (of P.F) entitled to interest at rate determined by Central Government – Provident Fund Commissioner, held, not justified in denying interest to member on ground that employer has not paid interest.” The above titled judgment is squarely applicable to the present complaint. While clearly establishing the responsibilities of the Opposite Parties, the Hon’ble High Court has observed that it was for the PF Department to take steps to realize interest under Section 7-Q from the Establishment (Employer) in case the same was not paid. It was also held that the PF Department was not justified in denying interest to the member on the ground that the employer has not paid interest. It was left to the P.F. Department to realize interest under Sec.7-Q of the Act from the employer. 22. The Complainant has annexed the details of the statement of interest payable since 1980 as Annexure C-12, claiming that an amount of Rs.1,08,925/- is due towards the opposite parties upto 31.3.2010, along with interest @18% p.a. The Opposite Parties while replying to this claim has however denied on the ground that the Complainant is not entitled for any interest whatsoever and even the details prepared by the Complainant are claimed to be wrong. We feel that the complainant’s entitlement of interest u/s 7-Q as well as penal damages under Section 14-B are established beyond all reasonable doubts and we find Opposite Parties deficient in service in not doing the needful to recover the same from the establishment and releasing the same in the favour of the Complainant for all these years. 23. Hence, in the light of above observations, the present complaint of the Complainant succeeds against the Opposite Parties, and the same is allowed. 24. The Opposite Parties are directed to pay amount of interest due towards the Complainant as claimed by him. 25. The Opposite Parties are also directed to pay compensation to the tune of Rs.20,000/- on account of deficiency in service and having caused harassment and unnecessary litigation to the Complainant. Opposite Parties are further directed to pay Rs.7,000/- as litigation costs. 26. The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, Opposite Parties shall be liable to pay an interest @18% per annum on the awarded amount of Rs.20,000/- plus the entire amount of dues payable towards the Complainant as per his prayer, from the date of institution of this complaint i.e. 31.12.2010, till it is actually paid, besides costs of litigation of Rs.7,000/-. 27. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 29th May, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
