Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
1. This appeal takes an exception to an order dated 24/08/2009 passed in consumer complaint No.70/2007 Shri Vipin B. Diwedi V/s. Godrej Consumer Products Ltd. &Ors. by Addl. District Consumer Disputes Redressal Forum, Mumbai Suburban (‘the Forum’ in short). The respondent/org. complainant-Mr.Vipin Diwedi (hereinafter referred to as ‘complainant’) was an employee of the appellant/org. opponent No.1 (hereinafter referred to as ‘Company’). He was served with the Organisation for quite a length of time. On 23/07/2001 he was summoned for a meeting by the officials of the Company and was informed that there is charge of gratification on him for accepting the money for favour from the Transport Contractors. He was further asked to resign. The complainant, accepting the responsibility, tendered his resignation on the same day and also further accepting his liability to make good to the Company, asked the Company to adjust the amount due to the Company from his Provident Fund. His resignation was subsequently accepted and communicated to him on 02/10/2001 by the Company. It was also communicated to the complainant that as per his authorization, the amount accumulated in his Provident Fund, were adjusted towards the loss suffered by the Company due to his gratification. However, thereafter, the complainant rescinded from his earlier authorization given in favour of the Company to adjust the provident fund accumulated amount and demanded the same from the Company. This consumer complaint is ultimately filed on 20/01/2007 since the Company failed to pay the amount of the provident fund. Original opponent Nos.2to5 are the Trustees of Employees Provident Fund, Godrej Consumer Products Ltd. while respondent/org. opponent No.6 is a Provident Fund Authority, namely, Regional Provident Fund Commissioner-II, Employees Provident Fund Organisation (Ministry of Labour, Govt. of India), Regional Office, Mumbai-II, Thane. The Forum accepting the contention of the complainant directed the Company to pay an amount of `4,26,139/- which was standing in balance in the provident fund account of the complainant, to him within a period of one month. It was further directed that the said amount shall carry interest @ 12% p.a. with effect from 24/07/2001 till its implementation. The Company was further directed to pay compensation for mental torture of `10,000/- and cost of `1,000/-. Feeling aggrieved thereby the Company preferred this appeal.
2. We heard both the sides. Perused the record including original Record & Proceeding of consumer complaint No.70/2007.
3. It is the contention of the Company that since the complainant voluntarily, accepting his felony, in order to reimburse the loss suffered by the Company, given a written authorization to the Company to appropriate the amount of his provident fund towards the same. It is also contended on behalf of the Company that the provident fund amount could not be paid to the complainant since he had concealed the fact of his subsequent employment with M/s.Hans Motor and therefore, as directed by the Provident Fund Authority, the Company was asked to ensure to get completed he formalities including obtaining Form No.13, the amount standing in the provident fund account of the complainant may be transferred to the new employer and not to refund or pay the same to the complainant. Further, during the course of pendency of the consumer complaint on 14/12/2007 entire dues in full and final settlement of the payment towards provident fund account i.e. total accumulated amount of `8,12,119/-, was paid and received by the complainant and the Forum even though this fact was brought to the notice of the Forum, erroneously proceeded further to grant relief as per the impugned order.
4. According to the complainant referring to the provision of Employees Provident Fund & Miscellaneous Provisions Act, 1952, it is stated that the amount standing in his provident fund account cannot be appropriated or attached towards alleged loss suffered by the Company. It may be true if it is an un-voluntary act on the part of the complainant or unilateral act of the Company, but if voluntarily the complainant authorized the Company to get adjusted the amount towards loss suffered by the Company then, as far as deficiency in service under the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is concerned, the Company cannot be held guilty. The authorisation so given by the complainant is on record. Though the complainant tried to rescind from such authorization saying that it was obtained from him under duress, it may be noted that except for making grievance for the first time in a letter dated 30/07/2001 to the employers’ corporate head of the family, namely, Mr.A.B. Godrej, he had not stated at all or made in any complaint to the Police that under duress such authorization was obtained from him. Further, if the complainant wanted to challenge such authorization given in favour of the Company at the time of tendering his resignation on 23/07/2001 after accepting his felony, it is for him to establish this fact which he failed to do. Therefore, in this background, appropriating or withholding the payment of the provident fund dues on the part of the Company cannot be held as deficiency in service within the meaning of the Act.
5. Referring to the plethora of correspondence between the complainant with the Company or with the Provident Fund Authority of different levels including the Government, it could be seen that by its letter dated 29/11/2006 the Regional Provident Fund Commissioner-II had advised the Company not to settle the claim of the complainant under Form No.19 as per provisions of the Provident Fund Act, supra, as the complainant falsely declared that he was unemployed (he was found employed with M/s.Hans Motors). This fact is further communicated by the Regional Provident Fund Commissioner even to Additional Central Provident Fund Commissioner by letter dated 18/01/2007. Copies of both these letters are on record. Further letter from Assistant Information Officer, RO Mumbai-II addressed to Shri Mahabir Singh, Assistant P.F. Commissioner (CSD), Head Office, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi, recounted all the facts referred above. Since the competent authorities themselves asked the Company not to settle the account of the provident fund with the complainant but transfer the amount in the provident fund account of the complainant to the new employer after getting completed all the formalities of Form-13 from the complainant; the Company cannot be held responsible for alleged deficiency in service for withholding the payment of provident fund amount, as alleged by the complainant.
6. As could be verified from the original Record & Proceeding of consumer complaint No.70/2007, the amount due i.e. the principal amount along with interest totaling to `8,12,119/- standing in the provident fund account of the complainant with the Company were tendered to the complainant and the fact was informed under application dated 29/11/2007 to the Forum. Further, the application and the endorsement of the complainant dated 14/12/2007 and receipt of even date issued by the complainant confirmed that he had received said amount of `8,12,119/- by cheque bearing No.517926 dated 27/11/2007 drawn on HDFC Bank Ltd., Fort, Mumbai and which was drawn on account No.0601110000317 towards full and final settlement of his provident fund dues. Even though this fact is on record, the Forum proceeded further to grant relief as if said amount remained to be paid and thus, committed an error of fact and law. In fact, once this payment is made, the fact which is even admitted by the respondent-complainant cause of action for alleged deficiency in service on the part of the Company does not survive.
7. Complainant in his complaint stated that the cause of action for filing consumer complaint arose on 02/10/2001 when the Company sent a letter to him informing him that the resignation was accepted on 27/07/2001 and it was decided by the Company to set all the amount payable in his account under the Employees Provident Fund against the loss suffered by the Company. He further submits that said cause of action is continuous one. In fact it is not so. Referring to the cause of action which arose on 02/10/2001 as aforesaid, consumer complaint filed on 20/01/2007 and that too without filing any application for condonation of delay, is a belated action, time-barred and as such, the Forum erred in taking its cognizance. Complaint ought to have been dismissed as time-barred. A useful reference on the point can be made to the decision of the Apex Court in the matter of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. and Anr., 2009 CTJ 951 ( SC)(CP).
8. For the reasons stated above, we find that the impugned order cannot be supported in eyes of the law. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 24/08/2009 is set aside and in the result, consumer complaint No.70/2007 stands dismissed.
2. In the given circumstances, parties to bear their own costs.
3. Record & Proceeding be sent back to the Forum.
4. Copies of the order be furnished to the parties.
Pronounced
Dated 29th April, 2011.
