( Passed on dated 23^rd   February, 2016 )

Per Shri Atul D. Alsi – Hon’ble President.

              The complainant is the account holder of the opposite party no. 2 vides S. B. account No. 923 old and new account No. in 15 digit 002030200000923 & I.F.S.C.  UTIBOSGD01 and since his appointment dated 21.07.1980 to termination service dated August 2006, the Education Officer has deposited his salary every month i.e. August 2006 and thereafter no payment has been made either on the part of management education department. 

2.            The complainant and the management has settled their dispute in the Hon’ble High Court and the complainant had waived his claim of back wages since September 2006 to VRS date 22.01.2014 and the management has granted VRS and given monitory benefits only for pension purpose and that’s why the management of the complainant has prepared the Provident Fund Final Bill and sent to the Superintendent Education Officer, Pay Unit, Education Department (Sec.) Gondia for final disposal and to make payment though the opposite parties Bank.   

3.            The Education Officer Secondary Z. P. Gondia has sent final Provident Fund amount to the Gondia District Central Co-Operative Bank, Branch Railtoli, Gondia to deposit the said amount on dated 01.11.2014 and the opposite party No. 2 has deposited the final amount of Provident Fund of Rs. 2,09,000/-.

4.            On 03.11.2014, the complainant had approached and requested to the Branch Manager of the said Bank i.e. O. P. No. 2 to grant permission to withdraw the little amount of his Provident Fund from his account.  But surprisingly and high handedly the O. P. No. 2 did not grant permission and deducted the whole amount of Rs.2,09,000/- of the provident fund and deposited/directly transferred the above said amount without the consent of the complainant in the loan account No. 5802/727 and against the one time settlement.  Hence the O. P. No. 2 has deprived the complainant’s right to live and hence the O. P. No. 2’s action are totally against the rule and Law of the Employees Provident Fund Act and Miscellaneous Provisions Act 1952 and accordingly to this act the amount standing to the credit of any member in the fund are any exempted employees in provident fund shall not in any way capable of be assigned are charged and it shall not be liable to attachment under any decree or order of any court in respect of any debt. 

5.            The above act of O. P. No. 2 was amount to deficiency in banking service and unfair trade practice due to which the complainant had faced great hardship and financial crises and tremendous physical, economical and mental harassment.

6.            The complainant had issued legal notice through his counsel on 21.11.2014 to opposite party no. 1 & 2.  The opposite party no. 1 & 2 had duly received the notice, but failed to give reply or comply the notice.

7.            The complainant therefore most humbly prayed that to hold and declared the opposite parties guilty of the deficiency in banking service as per the provisions of the said act.  He also prayed to direct the opposite parties to reimburse the complainant, an amount of Rs.2,09,000/- along with 18% interest thereon from the date of deduction/transferred i.e. 03.11.2014 of the said Provident Fund till payment of the same.  The complainant also prayed to direct the opposite parties to pay an amount of Rs.50,000/- each towards cost compensation and mental agony and Rs.20,000/- towards litigation charges.    

8.            After receiving the notice issued by this Forum, the O. P. No. 1 & 2 approaches before this Forum through their counsel and filed their reply. 

9.            In their reply the O. P. No. 1 & 2 submitted that, the complainant is having bank account with O. P. No. 2 is not disputed. 

10.                   On dated 01/11/2014 an amount of Rs.2,09,000/- had deposited in account of complainant is not disputed.  He further submitted that the O. P. No. 2 on dated 03/11/2014 had adjusted whole amount of Rs.2,09,000/- towards loan account No. 5802/727 is also not disputed.  The O. P. submitted that the complainant had obtained term loan of Rs.2,50,000/- (Two Lacks Fifty Thousand Only) on dated 10/11/2005 having loan account No. 5802/727.  The complainant had agreed to repay above loan on monthly installment of Rs.4250/- till dt. 10/11/2010.  The complainant had made default in payment of installment amount since after one year from date of disbursement of loan.  On dated 03/09/2014, total loan of Rs.4,40,120/- (Rs.2,02,500/- towards principal amount + Rs.2,37,620/- towards interest) was outstanding against complainant vide his letter dated 18/06/2008 & 14/07/2008 had gave written undertaking/consent for payment of outstanding loan amount from all his service dues including G. P. F. etc.   The O. P. submits that after adjusting amount Rs.2,09,000/- on dated 03/11/2014 towards loan account No. 5802/727, total Rs.2,31,120/- was outstanding against complainant.  Till date 11/12/2014 total Rs.2,13,891/- is outstanding against the complainant towards above loan account No. 5802/727.

11.                   The O. P. further submitted that the complainant on dated 03/11/2014 after getting knowledge that Rs.2,09,000/- was adjusted towards loan amount, had applied for one time settlement (OTS) of above loan amount.  On dated 03/11/2014, the complainant had not made any objection of adjustment of amount, as the same was done as per his written consent/undertaking dated 18/06/2008 & 14/07/2008 as mentioned above.  The complainant had filed present complaint with malicious intension to avoid payment of outstanding loan amount, which is not tenable in the eyes of law.   The opposite parties had not committed any deficiency in service as specifically mentioned above, hence not legally liable for reimbursement of Rs.2,09,000/- with 18% interest from the date of deduction to complainant.

12.                   The complainant has filed copy of a/c holder’s bank pass book at page no. 19, Copy of bank statement at page no. 20, copy of letter dated 03/11/2014 at page no. 21, copy of receipt of the O. P. 2 bank transferred the G.P.F. amount to loan account at page no. 22, copy of legal notice at page no. 23 and copy of postal receipt at page no. 25 on record.

13.                   The counsel for opposite parties has also filed copy of letter dated 03/07/2014 at page no. 48, copy of notice dated 08/04/2013 & 28/03/2012 at page no. 49 & 50, copies of complainant’s letters dated 22/01/2010, 14/07/2008 & 18/06/2008 at page no. 51 to 53 and also filed documents at page no. 56 to 68 on record.     

14.                   The counsel for complainant Mr. R. U. Borkar argued that the amount of provident fund can’t be attached for repayment of loan as per sec. 10(2) of The Employees Provident Funds & Miscellaneous Provisions Act, 1952.  Hence complaint may kindly be allowed.   

15.                   The counsel for O. P. No. 1 & 2 Mr. S. B. Rajankar argued that as per Judgment of Kerala High Court – Madhavan v/s Syndicate Bank – AIR 1991 Ker 367 – the amount of provident fund received by person on his retirement and deposited in a bank is liable to be attached in execution of decree.  Hence the complaint is liable to be dismissed. 

16.                   As per petition and arguments and documents filed on record following points came for consideration:-

REASONING & FINDINGS

17.                    The complainant has obtained a term loan of Rs.2,50,000/- on dated 10/11/2005 vide loan account no. 5802/727.  The complainant has agreed to pay the loan amount at Rs.4,250/- for monthly repayment till 10/11/2010.  The complainant was defaulter for more than one year.  The complainant has got credited the amount of Provident Fund in his account directly from his employer amounted to Rs.2,09,000/- on 01/11/2014.  The O. P. has adjusted the amount of provident fund Rs.2,09,000/- in outstanding loan account of complainant.  As per written submission vide letter dated 18/06/2008 & 14/07/2008 for consent of payment for service due towards outstanding loan amount if any to O. P. hence the amount is carried to loan account by opposite party.  This fact is admitted by O. P. in their reply, hence the contents of loan disbursement and utilization of P. F. amount to loan account is proved.

18.                   The Employees Provident Funds & Miscellaneous Provisions Act, 1952 as per sec. 10(2) the amount deposited to bank account by employees towards P. F. can’t be attachable and subject to recovery of any due towards loan transaction.

19.                   The employer has already deposited the amount of P. F. in complainant’s bank account and the complainant has not withdrawn the amount.  It was 1^st deposit, hence the amount deposited in the bank is the amount towards P. F. and it can’t be attachable as per Employee’s Provident Fund & Miscellaneous Provisions Act, 1952.  The fact stated in Judgment of Kerala High Court – Madhavan v/s Syndicate Bank – AIR 1991 Ker 367 was the employee after deposit of P. F. amount in one bank withdrawn it and deposited in FDR in another bank, hence that amount cease to be amount of P. F. and can be attachable.  Hence these facts are different from the fact of the case at hand; hence the judgment of Kerla High Court is not applicable for present case. 

20.                   As per Judgment of  Hon’ble Supreme Court by Justice Y. V. Chandrachud & V. R. Krishna Iyer – AIR 1976 S.C. 1163 – amount in the hands of Government due to employee towards provident fund and pension benefit not liable to attachment.  The Government is the trustee of P. F. amount.  It is the duty of Government that there should be actual disbursement of amount at the hands of employee.  Till the subsequent deposit in other bank that deposit cease to be a character of P. F., hence in the present case the utilization of amount of P. F. by bank authority towards arrears of loan amount in same bank amounts negligency of service and the O. P. No. 1 & 2 are liable to refund the P. F. amount along with interest @ 9% with compensation    as per following order:-

-: ORDER :-

1.            The complaint is partly allowed.

2.            The O. P. No. 1 & 2 are directed to pay jointly & severally Rs.2,09,000/- towards the amount of P. F. to the complainant along with interest of 9% p.a. from admission of case i.e. 17/03/2015 till realization of full amount to the complainant.

3.            The O. P. No. 1 & 2 are also directed to pay jointly & severally Rs.10,000/- towards compensation for mental torture and cost of litigation to the complainant.

4.            The O. P. No. 1 & 2 are directed to comply the above order within 30 days from the date of receipt of this order.