Karnataka

Chitradurga

CC/35/2016

G.K.Kodandarama S/o Kariyappa, - Complainant(s)

Versus

The Managing Director/Chairman Bangalore Trading & Financing Corporation Pvt Ltd., - Opp.Party(s)

Shri.D.G.Gundegowda

23 Feb 2017

ORDER

COMPLAINT FILED ON:04.05.2016 DISPOSED ON:23.02.2017 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA. CC.NO: 35/2016 DATED: 23rd FEBRUARY 2017 PRESENT: - SRI. T.N. SREENIVASAIAH : PRESIDENT B.A., LL.B., SRI.N. THIPPESWAMY : MEMBER B.A., LL.B., ……COMPLAINANT G.K. Kodandarama S/o Kariyappa, Age: 60 Years, Retired Boiler Attender/Helper, R/o Ward No.2, Near Maruthi School, Vedavathi Nagara, Hiriyur Town, Chitradurga. (Rep by Sri. D.G. Gundegowda, Advocate) V/S …..OPPOSITE PARTIES 1. The Managing Director/Chairman, Bangalore Trading & Financing Corporation Pvt. Ltd., (BT & FC(P) Ltd., Regd. & Admn Office No. 24, 2nd Main Road, 5th Block, Kumarapark West, Bangalore-560020. 2. Assistant P.F Commissioner, Employees Provident Fund Organization, Plot No.S1, I Cross, I Phase, Peenya Industrial Estate, Bangalore. 3. Labour Officer, Labour Office, IUDP Layout, Chitradurga. (OP No.1 and 3 ex-parte & OP No.2 in Person) ORDER SRI. T.N. SREENIVASAIAH: PRESIDENT The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OP No.1 to pay wage/salary from the year 2002 until lay-off dated 01.04.2010, OPs to pay PF money 2003-04 onwards till lay-off dated 01.04.2010, OP No.1 and 3 to pay the overtime wage/salary from the year 2010 till to lay-off dated 01.04.2010, OP No.1 and 3 to pay the bonus amount from the year 2002 till lay-off dated 01.04.2010 and OP No.1 and 3 to pay the lay-off compensation from the lay-off i.e., 01.04.2010 up to retirement i.e., 23.04.2013. 2. The brief facts of the case of the above complainant are that, OP No.1 doing the manufacture work of liquors, distilleries including the bottling of liquors, OP No.2 is Employees Provident Fund Organization in Ministry of Labour and Employment under the Government of India. The complainant is doing service as Boiler Helper/Attender in the company of OP No.1 in M/s BT and FT Pvt. Ltd., Distillery, Challakere Road, Hiriyur Town. On 24.05.2013 the complainant retired from the service from the OP No.1 Company. But, in previous OP No.1 declared the lay-off said FT and BT Pvt. Ltd., effected from the date of 01.04.2010 to until further notice. The OP No.1 is not paid the PF amount to the OP No.2 and also OP No.1 not paid the salary/wage amount to the OP No.1 from the year 2002 to till today to the complainant and other workers. The OP No.1 not paid the overtime working wage to the complainant and other workers in the said factory from the year 2002 till lay-off and also OP No.1 not paid the bonus to the complainant and other employees from the year 2000 up to lay-off. The OP No.1 not paid the half wage up to retirement from the date of lay-off in the year 2002. The complainant get the basic wage of Rs.1,870/- in the year 2004. The complainant wages increased to Rs.2,320/- in the year 2010. The complainant wages increased to Rs.2,570/-. After the declare of the lay-off complainant entitled to get half wages a sum of Rs.1,285/- p.m until his retirement dated 24.05.2013. After the retirement, the complainant approached the OP No.2 and asking the PF money and he give an application to the OP No.2 by asking entire details of PF money in his account. Then the OP No.2 informed the complainant 2003-04 onwards the OP No.1 has not paid any amount since the employer is defaulter of payment of contribution the recovery proceedings already initiated. Therefore, the complainant request and demand to pay all his PF money balance monthly salary/wage till to lay-off and compensation for up to retirement bonus amount salary/wages etc. But, the OP No.1 never paid any of the money to the complainant in any manner at any point of time, which is a deficiency of service and prayed for allowing of the complaint. 3. After admission this Forum has issued notices to all the OPs. In spite of service of notice, OP No.1 and 3 did not appear before this Forum. Hence, placed ex-parte. OP No.2 appeared in person and filed version stating that, it has an establishment defaulted in payment of PF and allied dues for the period from May 2002 to August 2004 and for which it has determined dues to the tune of Rs.5,57,439/- vide orders bearing No. KN/PFD/ENF/CIR/BCIV/KN10145/1272/2004 dated 17.11.2004 as provided u/Sec.7A of the Act. The establishment has challenged the assessment order dated 17.11.2004 by filing an Appeal No.357(6)/2005 before the Hon’ble Employees Provident Fund Appellate Tribunal, New Delhi on the grounds of the financial constraints. The Hon’ble Tribunal in its order dated 25.04.2005 has granted stay of the impugned orders and the matter is pending for disposal. It is further submitted that, the establishment has defaulted in payment of PF dues for the period October 2012 to March 2015 and the OP vides orders bearing No.PY/PNY/ENF/CIR-II/10145/251/2015-16 dated 30.04.2015 has determined the dues to the tune of Rs.3,16,745/-. It is further submitted that, establishment has not submitted statutory returns/records for the period March 2002 to November 2012 despite receipt of show cause notice dated 23.02.2011 and 05.12.2011 and for the said act, the OP is constrained to determine the dues based on records. It is further submitted that, the establishment has continued to default and failed to remit the statutory dues for the period from September 2002 to November 2012 in respect of regular employees has also failed to enroll some employees to the fund. The OP has determined the dues to the tune of Rs.35,79,546/- vide order bearing No.KN/PY/10145/PF/ENF/608/2012-13 dated 17.11.2012 and the said order has also been contested before the Hon’ble EPF Appellate Tribunal, New Delhi by filing an Appeal ATA No.689(6)/2012, the Appeal has been resisted and reply has been filed by the OP Department. It is further submitted that, the Hon’ble Tribunal in its interim order dated 23.08.2012 has stayed he impugned order dated 17.07.2012 subject to deposit of 50% of the determined dues. The establishment failed to comply with the orders and for the lapse, the OP has initiated recovery action as provided u/Sec.8(b) to 8(g) of the Act. It is further submitted that, the OP has initiated recovery action such as attachment of Bank account, third party attachment vide proceedings dated 26.05.2015 and proceedings dated 18.05.2016 in response the establishment has furnished the reply vide order dated 09.04.2015. It is further submitted that, without prejudice to the recovery of action, the OP has settled the PF account of complainant of Rs.36,214/- during July 2014 to the extent of amount available in the A/c KL/10145/076, the complainant has no dispute about the receipt of amount. It is further submitted that, the OP has released the amount to the extent of standing to the credit of the member and the act of the OP is justified dues to reasons i.e., for non-compliance/failure to remit dues by the employer, the OP is absolute of the liability to the extent of default amount. The OP supports its cause with the following case law. “Liability of the Commissioner is limited to the extent of the amount standing to the credit of the member and does not extend to amount paid to the fund by the employer. It is submitted that, receipt of pension claim, this OP has proceed the pension claim and transmitted the details to the sub-Regional Office, EPFO, Bellary during October 2014. The pension has been fixed at the rate of Rs.943/- and pension proceeds including arrears of Rs.16,334/- for the period May 2013 to October 2014 has been released to the complainant and send to S.B A/c No.30699285522 maintained with State Bank of India, Hiriyur. It is further submitted that, recovery action has been initiated by the OP is in progress has also both the Appeals filed by the establishment are pending before the Hon’ble EPFAT. In view of the pending recovery proceedings/Appeal before the EPFAT, the complaint is pre-mature and false outside the jurisdiction of this Forum. 4. It is further submitted that, issue of declaration of lay-off by the establishment w.e.f., 01.04.2010 and its ratification/justification lies at the hands of Authorities of Labour Department, Government of Karnataka. The role of OP is limited to the extent of extension of PF and pensionery benefit and in this direction, the OP has discharged its duties as provided under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is denied that, the averments made in para 3 of the complaint, it is placed that this OP has initiated recovery action as provided under the Act and in the event of realization of the determined amount, the bounden duty of the OP is to release the amount to all the members of the fund in uniformity including the claim of the complainant. It is further submitted that, filing of complaint by employees of the establishment before the Labour Officer, Chitradurga as regards non-payment/release of lay-off compensation, overtime, bonus and other monetary benefits is not within the knowledge of this OP. It is further submitted that, OP has discharged its duties by way of release of PF amount of Rs.36,214/- and release of pension of Rs.943/- p.m and that being the fact, the claim of the complainant is untenable and there is no deficiency of service on its part and prayed for dismissal of the complaint. 5. Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-7 were got marked. On behalf of OP No.2 one Sri. Sivashanmugam S/o Subramanyam, Assistant PF Commissioner (Legal) EPFO, Regional Office, Peenya, Bangalore has examined as DW-1 by filing affidavit evidence and Ex.B-1 to B-8 documents have been got marked. 6. Arguments of both sides heard. 7. Now the points that arise for our consideration for decision of above complaints are that; (1) Whether the complainant proves that the OPs have committed deficiency of service in settling the claim made by him and entitled for the reliefs as prayed for in the above complaint? (2) What order? 8. Our findings on the above points are as follows:- Point No.1:- Negative. Point No.2:- As per final order. REASONS 9. It is the case of the complainant that, he is doing service as Boiler Helper/Attender in the company of OP No.1 in M/s BT and FT Pvt. Ltd., Distillery, Challakere Road, Hiriyur Town he retired on 24.05.2013 from the service. OP No.1 declared the lay-off said FT and BT Pvt. Ltd., effected from the date of 01.04.2010 to until further notice and not paid the PF amount to the OP No.2 and also OP No.1 not paid the salary/wage amount to the OP No.1 from the year 2002 to till today to the complainant and other workers. OP No.1 has not paid the overtime working wage to the complainant and other workers in the said factory from the year 2002 till lay-off and also not paid the bonus to the complainant and other employees from the year 2000 up to lay-off. OP No.1 has not paid the half wage up to retirement from the date of lay-off in the year 2002. In the year 2004, The complainant get the basic wage of Rs.1,870/- which increased to Rs.2,320/- in the year 2010, which increased to Rs.2,570/-. After declare of the lay-off complainant entitled to get half wages for a sum of Rs.1,285/- p.m until his retirement dated 24.05.2013. After the retirement, the complainant approached the OP No.2 asking the PF money and he gave an application to the OP No.2 asking entire details of PF money in his account. OP No.2 informed the complainant 2003-04 onwards, OP No.1 has not paid any amount since the employer is defaulter of payment of contribution the recovery proceedings already initiated. Complainant requested and demanded to pay all his PF money balance monthly salary/wages till lay-off and compensation up to retirement bonus amount salary/wages etc., but, the OP No.1 never paid any of the money to the complainant in any manner at any point of time. 10. In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on the documents like temporary appointment letter dated 03.07.1985 marked as Ex.A-1, Copy of Transfer order dated 31.07.1992 marked as Ex.A-2, Attendance Register extract marked as Ex.A-3, Copy of legal notice dated 03.10.2015 marked as Ex. A-4, postal receipts marked as Ex.A-5, Copy of served postal acknowledgements marked as Ex.A-6, Returned RPAD cover marked as Ex.A-7. 11. On the other hand, it is argued by the OP No.2 that, issue of declaration of lay-off by the establishment w.e.f., 01.04.2010 and its ratification/justification lies at the hands of Authorities of Labour Department, Government of Karnataka. Its role is limited to the extent of extension of PF and pensionery benefit and in this direction, it has discharged its duties as provided under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is vehemently argued and denied that, it is placed that it has initiated recovery action as provided under the Act and in the event of realization of the determined amount, its bounden duty is to release the amount to all the members in uniformity including the claim of the complainant and filing of complaint by employees of the establishment before the Labour Officer, Chitradurga as regards non-payment/release of lay-off compensation, overtime, bonus and other monetary benefits is not within the knowledge of this OP. OP has discharged its duties by way of release of PF amount of Rs.36,214/- and release of pension of Rs.943/- p.m and that being the fact, the claim of the complainant is untenable and there is no deficiency of service on its part. 12. In support of their contention, the OP No.2 has filed affidavit evidence and reiterated the contents of version and relied on the documents like Proceedings of the Assistant Provident Fund Commissioner dated 30.04.2015 marked as Ex.B-1, showcause notice dated 23.02.2011 marked as Ex.B-2, Enquiry u/Sec.7A of the Employees Provident Fund dated 05.12.2011 marked as Ex. B-3, Proceedings of the Assistant Provident Fund Commissioner dated 17.07.2012 marked as Ex.B-4, Order in ATA No.689(6)2012 of the Appellate Tribunal, New Delhi dated 23.08.2012 marked as Ex.B-5, Order u/Sec.8F of the Employees Provident Fund dated 26.05.2015 marked as Ex.B-6, Order to third party to pay the dues dated 18.05.2016 marked as Ex.B-7 and letter dated 09.04.2015 regarding remittance of Employees Provident Fund Contribution marked as Ex.B-8. 13. On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, the OP No.1 has appeared before the OP No.3 and admits the contents of the complainant and other workers and also agreed to pay the arrears of amount to the complainant and other employees within 3 months from the date of 06.04.2013 but, OP No.1 did not comply the orders passed by the OP No.3. The complainant and other members have at liberty to approach the OP No.3 to take steps for recovery of the money from the OP No.1. In this case, the complainant and others have got liberty to approach the OP No.3 to take further steps and there is a case pending before the Hon’ble Appellate Tribunal, Delhi regarding with bonus, overtime wages etc., and there is a stay granted by the Hon’ble Appellate Tribunal. Such being the case, this Forum has no right to take any decision. Hence, the complaint filed by the complainant is not sustainable under and accordingly, this Point No.1 is held as negative to the complainant. 14. Point No.2:- As discussed on the above Point and for the reasons stated therein we pass the following:- ORDER The complaint filed by the complainant U/s 12 of C.P Act 1986 is hereby dismissed. No order as to costs. (This order is made with the consent of Member after the correction of the draft on 23/02/2017 and it is pronounced in the open Court after our signatures) MEMBER PRESIDENT -:ANNEXURES:- Witnesses examined on behalf of Complainant: PW-1: Complainant by way of affidavit evidence. Witnesses examined on behalf of OP No.2: On behalf of OP No.2 Sri. Sivashanmugam S/o Subramanyam, Assistant PF Commissioner (Legal) EPFO, Regional Office, Peenya, Bangalore by way of evidence. Documents marked on behalf of Complainant: 01 Ex.A-1:- Copy of Temporary appointment letter dated 03.07.1985 02 Ex.A-2:- Copy of Transfer order dated 31.07.1992 03 Ex.A-3:- Copy of Attendance Register extract 04 Ex.A-4:- Copy of legal notice dated 03.10.2015. 05 Ex.A-5:- Copy of postal receipts 06 Ex.A-6:- Copy of served postal acknowledgements 07 Ex.A-7:- Copy of Returned RPAD cover Documents marked on behalf of OP: 01 Ex.B-1:- Proceedings of the Assistant Provident Fund Commissioner dated 30.04.2015 02 Ex.B-2:- Show cause notice dated 23.02.2011 03 Ex.B-3:- Enquiry u/Sec.7A of the Employees Provident Fund dated 05.12.2011 04 Ex.B-4:- Proceedings of the Assistant Provident Fund Commissioner dated 17.07.2012 05 Ex.B-5:- Order in ATA No.689(6)2012 of the Appellate Tribunal, New Delhi dated 23.08.2012 06 Ex.B-6:- Order u/Sec.8F of the Employees Provident Fund dated 26.05.2015 07 Ex.B-7:- Order to third party to pay the dues dated 18.05.2016 08 Ex.B-8:- Letter dated 09.04.2015 regarding remittance of Employees Provident Fund Contribution MEMBER PRESIDENT Rhr**