State Consumer Disputes Redressal Commission
Sh. Jeet Ram Thakur. & Ors. vs Regional Commissioner, E P F. & Anr. on 5 December, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Objection No. : 01/2017
Execution application No.: 05/2016
Order reserved upon objection: 28.07.2017
Order announced upon objection: 05.12.2017
......
The Regional Commissioner Eployees' Provident Fund
Organization SDA Complex Block No.34 Kasumpti Shimla-171
009.
...... Objector/Opposite Party No.1
Versus
1. Smt. Saroj Attri wife of Shri R.D. Attri Pen Rose Hall
Kasumpti Shimla-171009.
2. Shri Bhag Singh son of late Shri Lachhman Singh R/o.
Village Nalahi (P.O.) Nalahi (Tehsil) Sujanpur Tira
(District) Hamirpur H.P 176111.
......Non-objectors/Complainants
3. Chief Executive Officer H.P. Khadi and Village Industries
Board Cleave Land Shimla 171 004.
......Non-objector/opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Objector : Mr. Peeyush Verma Advocate.
For Non-objectors No.1 & 2: Mr. Digvijay Singh vice Mr.
Shashi Bhushan Advocate.
For Non-objector No.3: Mr. Susheel Parihar Advocate.
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Whether reporters of the local papers may be allowed to see the order? Yes.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present objections filed by objector upon Execution Application No.05/2016.
Brief facts of case:
2. Smt. Saroj Attri and Shri Bhag Singh and others filed consumer complaint No.15/2009 before H.P. State Commission which was decided on 04.10.2010. State Commission ordered Regional Commissioner Employees' Provident Fund Organization SDA Complex Block No.34 Kasumpti Shimla-9 to adjust contribution of 12% remitted by Chief Executive Officer H.P. Khadi & Village Board Cleave Land Shimla-H.P since date of enforcement of pension scheme 1995 which came into force on 16.11.1995 by way of putting month wise bifurcation w.e.f. February 1999 to the pension fund to the extent of 8.33% of total monthly salary. State Commission further ordered that rest of EPF would be reduced month wise in the account of complainants. In addition State Commission ordered that Chief Executive Officer H.P. Khadi & Village Board Cleave Land Shimla-H.P would remit pension fund @ 8.33% of total salary w.e.f. 01.11.2010 under Employees Pension Scheme 1995 & rest of 3.67% in EPF head of the complainants. State Commission further ordered that 2 undertaking would be given by complainants forthwith for allowing the bifurcation to opposite party No.2 who would forward the same to opposite party No.1 before 01.11.2010. State Commission further ordered that compliance report would be filed within 45 days w.e.f. 04.10.2010 failing which opposite parties would be liable to pay interest @ 9% per annum on both components i.e. pension as well as provident fund till the needful was done.
3. Smt. Saroj Attri and Shri Bhag Singh filed execution application under sections 25 of Consumer Protection Act 1986 for execution of the order.
4. Objector filed objections upon execution application pleaded therein that complainants have no cause of action to file execution application. It is pleaded that executors themselves did not comply the order passed by State Commission on dated 04.10.2010 and complainant are estopped to file the execution application before State Commission. It is pleaded that opposite party No.2 i.e. Chief Executive Officer H.P. Khadi & Village Board Cleave Land Shimla-171004 did not forward the consent letter of executors on or before 01.11.2010 seeking re-bifurcation of contribution already paid. It is further pleaded that Chief Executive Officer H.P. Khadi & Village Board Cleave Land Shimla-171004 continued to contribute on higher side. It is pleaded that 3 executors are estopped from filing the present execution application due to their own act deed and acquiescence. It is further pleaded that pensionary benefit on the wages higher than the statutory ceiling could be released to only those employees who have exercised option within the stipulated period.
5. Per contra response filed on behalf of non- objectors No.1 & 2 pleaded therein that executors are legally entitled to claim pension on the basis of full contribution i.e. 8.33% of total salary which is paid to other similarly situated retirees. It is pleaded that executors have complied the order of State Commission and objector has erred in not giving full pension to the executors i.e. 8.33% of total salary. It is further pleaded that objectors are giving full pension to all other retirees. It is pleaded that undertakings were given by executors immediately. It is further pleaded that non- executors could not be allowed to adopt pick and choose formula. It is pleaded that objectors are releasing full pension of 8.33% to other retirees by way of adopting pick and choose formula. It is further pleaded that executors are not estopped from filing execution application by their act conduct or acquiescence. It is pleaded that objectors have intentionally flouted the order of State Commission. Prayer for dismissal of objection petition sought.
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6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present objection petition.
1. Whether objections filed by objector are liable to be accepted as mentioned in memorandum of grounds of objection petition.
2. Final order.
Findings upon point No.1 with reasons:
8. Objector filed affidavit of Shri Kailash Chander Joshi Assistant PF Commissioner in evidence. There is recital in affidavit that amount of pension sanctioned and amount of pension paid are annexed. There is further recital in affidavit that information given in the affidavit is true and correct to the best of knowledge of deponent.
9. Non-objectors filed affidavit of Smt. Saroj Attri in evidence. There is recital in affidavit that deponent is receiving pension of Rs.2334/- per month w.e.f. 19.03.2015.
There is recital in affidavit that deponent is legally entitled to receive pension of Rs.15000/- per month. There is further recital in affidavit that similarly retirees are receiving pension to the tune of Rs.15000/- per month. There is recital in affidavit that an amount to the tune of Rs.139326/- is due to deponent. There is further recital in affidavit that short 5 pension is paid every month. There is recital in affidavit that consent was forwarded to objector immediately.
10. Non-objectors also filed affidavit of Shri Bhag Singh in evidence. There is recital in affidavit that since 06.03.2015 deponent is receiving pension of Rs.2325/- per month whereas it should be Rs.10400/- per month. There is recital in affidavit that similarly situated retiree namely Ravi Katoch is receiving pension of Rs.10400/- per month. There is further recital in affidavit that deponent is paid less pension to the tune of Rs.8000/- per month. There is recital in affidavit that total amount of shortfall of pension is Rs.112000/-. There is further recital in affidavit that deponent has submitted consent to opposite party No.2 as ordered by State Commission. There is recital in affidavit that consent was forwarded to objector immediately.
11. Submission of learned Advocate appearing on behalf of objector that objections be admitted as prayed and execution application filed by non-objectors be dismissed is decided accordingly. It is well settled law that executing Commission is under legal obligation to execute the order passed by State Commission in consumer complaint No.15/2009 decided on 04.10.2010. It is well settled law that all the parties were under legal obligation to comply the order passed by State Commission in C.C. No.15/2009 and 6 Executing Commission could not modify and could not alter the final order passed by State Commission in any manner. The order passed by State Commission dated 04.10.2010 has attained the stage of finality. It is proved on record that State Commission has ordered in a positive manner that Smt. Saroj Attri and Shri Bhag Singh would be entitled for a pension of 8.33% of total salary. In view of the affidavit filed by Smt. Saroj Attri and Shri Bhag Singh it is proved on record that till date executors are not receiving pension @ 8.33% of total salary. Affidavit filed by Smt. Saroj Attri and Shri Bhag Singh are trustworthy reliable and inspire confidence of State Commission. There is no reason to disbelieve affidavits filed by Smt. Saroj Attri and Shri Bhag Singh. The final order was passed by State Commission on 04.10.2010 but even till date after expiry of seven years the order of State Commission could not be executed. It is well settled law that proceedings under Consumer Protection Act 1986 are time bound proceedings. In view of the affidavits filed by Smt. Saroj Attri and Shri Bhag Singh it is proved on record that option has been given by executors as ordered by State Commission. In view of above stated facts it is held that it is not expedient in the ends of justice and on the principle of natural justice to allow the objections filed by objector.
12. No personal affidavit filed by Regional Commissioner Employee's Provident Fund Organization SDA 7 Complex Block No.34 Kasumpti Shimla-9. No reason assigned as to why Regional Commissioner Employee's Provident Fund Organization SDA Complex Block No.34 Kasumpti Shimla-9 did not file his personal affidavit. It is well settled law that when a party did not adduce any evidence then adverse inference should drawn against party. State Commission has also drawn adverse inference against Regional Commissioner Employee's Provident Fund Organization SDA Complex Block No.34 Kasumpti Shimla-9 for not filing his personal affidavit despite the fact that he was impleaded as co-party No.1. It is held that Assistant PF Commission (Legal) Kasumpti Shimla-9 who has filed affidavit was not co-party in the original consumer complaint and is also not co-party in original execution petition. It is held that affidavit filed by a person who was not co-party in original complaint and who is not co-party in execution petition is not sufficient to rebut the affidavits filed by Smt. Saroj Attri and Sh. Bhag Singh. Even Chief Executive Officer H.P. Khadi and Village Industries Board also did not file any affidavit in evidence in objection petition. See AIR 1999 SC 1441 Vidyadhar Versus Mankik Rao. See AIR 1999 SC 1341 titled Ishwar Bhai C Patel Versus Harihar Bahera.
13. Submission of learned Advocate appearing on behalf of non-objectors that objections filed by objector be 8 dismissed is decided accordingly. It is held that retirees are legally entitled to execute the order passed by State Commission announced in C.C. No.15/2009 expeditiously. It is held that no one can be allowed to flout the order passed by State Commission in C.C. No.15/2009. It is well settled law that Consumer Protection Act 1986 is beneficial legislature in favour of consumer. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
14. In view of findings upon point No.1 above objections filed by objector are dismissed. Observation will not effect the merits of execution petition in any manner and will be strictly confined for disposal of objection petition. Objection petition filed by objector is disposed of. It be tagged with main execution application forthwith.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 05.12.2017.
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