STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

             UNION TERRITORY, CHANDIGARH

Employees State Insurance Corporation, Sector 19-A, Chandigarh through Mohindera Taneja, S.S.O.

                                   .…Appellant

                 Vs.

Vandhna wife of Sh.Ajay Lalia r/o H.No.3377/1, Sector 47-D, Chandigarh.

                                   …. Respondent 

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT

         MRS. NEENA SANDHU,    MEMBER

Present:

Sh.B.S.Bhatia, Advocate for the Appellant.

           Sh.Gaurav Bhardwaj, Advocate for the Respondent.

                      ---

MRS. NEENA SANDHU, MEMBER

1.                   This is an appeal, filed by the opposite party (now the appellant) against the order dated 16.05.2011, passed by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 473 of 2010 vide which, it allowed the complaint and directed the Opposite Party  as under:-

“In view of the above findings, this complaint is accepted and OP is directed to pay Rs.39,312/- to the complainant along with interest @ 9% p.a. from the date of filing of the complaint till realization along with Rs.2500/- as compensation for mental agony and harassment and Rs.2500/- as costs of litigation within one month  from the date of receipt of the certified copy”.

2.                   The facts, in brief, are that, the complainant is working as Store Keeper in Advanced Pediatric Centre (PGIMER) through a contractor M/s Om Security & Cleaning. She has been registered under ESIC Benefits Scheme (hereinafter referred to be the “Scheme”) vide ESI Card No.9493193 since April 2005. It was stated that the salary of the complainant was increased from Rs.5,000/- to Rs.11,025/- in April 2008, so she used to deposit higher contribution, with the Opposite Party. It was further stated that she was blessed with a son in November 2009 and, as such, she availed of maternity leave for five months. She filed the maternity leave claim, with the Opposite Party. It was further stated that the complainant received a letter dated 5.5.2010, stating therein, that her claim was accepted and she was required to submit the documents. It was further stated that the complainant was handed over a cheque for Rs.39,312/-, but, subsequently, the Opposite Party asked her to hand over the cheque back, as some extra amount, was to be given to her. It was further stated that the complainant handed over the cheque to the Opposite Party after retaining its copy.    It was further stated that the complainant received a letter dated 21.5.2010 vide which the Opposite Party refused to pay the claim on the ground that the salary of the complainant was more than Rs.10,000/-, so she was not entitled to avail of the claim. It was further stated that the complainant sent an e-mail on 3.6.2010 and also gave written representation dated 14.6.2010, but of no consequence. It was further stated that a legal notice dated 13.7.2010, was served upon the Opposite Party, but to no effect. It was further stated that the Opposite Party, was deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.                   In their written reply, the Opposite Party, stated that the salary of the complainant was Rs.11,025/- w.e.f. April, 2008, and so she was out of coverage, as the wage limit for coverage was Rs.10,000/- p.m. It was further stated that, as per Section 39(2) of Employees State Insurance Act, it was the duty of the principal employer, to pay the contribution, at the rates, as prescribed by the Central Government. It was further stated that a letter was written, to the complainant, that Form 23 was required to be submitted, within 30 days, to the Branch Office. However, the Regional office regularized the time barred submission of Form 23 of the complainant. It was further stated by the Opposite Party that the complainant was not entitled to maternity benefit as per Rule 50 of ESI Central Rules, 1950. It was further stated that, the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice.

4.                   The Parties led evidence, in support of their case.

5.                   After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

6.                   Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

7.                   We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully. 

8.                   Admittedly, the salary of the respondent/complainant was Rs.11,025/- per month in April, 2008, whereas, during this period, as per Rule 50 of the Employees State Insurance (Central) Rules, 1950, the wage limit for coverage of an employee under sub clause (b) of clause (9) of Section 2 of the Act was {ten thousand] rupees a month. However, the respondent/complainant deposited the amount towards her contribution under the scheme, which was against the Statute/Rules. Even if the principal employer accepted the contribution of the employee against the provisions of law that did not entitle the employee to get any benefit under the scheme.  The District Forum was wrong in holding that the Opposite Party was estopped from denying the claim of the complainant, even though the contribution was made against the provisions of law. It is settled principle of law, that there cannot be any estoppel against statute. The District Forum  was also wrong in directing the Opposite Party to pay Rs.39,312/- to the respondent/complainant alongwith interest and compensation. The order of the District Forum is liable to be modified because the respondent/complainant is not entitled to Rs.39,312/-, whereas, she is only entitled to get back Rs.4970/-, being employee’s share, alongwith interest as this amount was withheld, by the appellant, for the period from 01.04.08 to 30.09.2010 as is evident from the calculation sheet duly signed by the Social Security officer of the appellant. 

9.                   The respondent/complainant  was also not entitled to compensation, in the sum of Rs.2500/- for mental agony and harassment and Rs.2500/- as costs of litigation awarded, by the District Forum, because there was no deficiency in rendering service, on the part of the appellant. The order of the District Forum to this extent, is liable to be set aside.

10.                For the reasons recorded above, the appeal filed by the appellant is partly accepted, with no order, as to costs, and the order of the District Forum is modified to the extent as discussed above. Consequently, we direct the appellant/Opposite Party to refund Rs.4970/-, being the employee’s share, to the respondent/complainant along with interest @ 9% from the date of filing the complaint i.e. 05.08.2010 till its realization.

11.                The order of District Forum granting compensation and costs of litigation is set aside. 

12.                The aforesaid order be complied with by the appellant/opposite party, within 30 days, from the date of receipt of a certified copy of this order, failing which interest @  12% p.a. shall be paid thereon from the date of filing of the complaint till its realization.

13.                 Certified Copies of this order be sent to the parties, free of charge.

14.                The file be consigned to Record Room, after completion.

Pronounced.                                 Sd/-

09.02.2012                  [JUSTICE SHAM SUNDER]

                                       PRESIDENT         

cmg

                                                sd/-                             [NEENA SANDHU]

                                      MEMBER