State Consumer Disputes Redressal Commission
Epf Organization vs Jain Parkash on 21 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 233 of 2012 Date of Institution 12.07.2012 Date of Decision 21.12.2012 1. The Employees Provident Fund Organization, through its Regional Provident Fund Commissioner, SCO No. 4-7, Sector 17-D, Chandigarh. 2. The Regional Provident Fund Commissioner, SCO No. 4-7, Sector 17-D, Chandigarh. ---Appellants/Opposite Parties V E R S U S Jain Parkash, Senior Manager (Retired), Punjab Agro Industries Corporation, r/o H.No. 3162, Sector 27-D, Chandigarh. ...Respondent/Complainant BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT MRS. NEENA SANDHU, MEMBER
SHRI SUBHASH CHANDER JAIN, MEMBER Argued by:
Sh.Sukhjit Singh, Advocate for the appellant.
Sh.Raj Kaushik, Advocate for the respondent.
MRS. NEENA SANDHU, MEMBER This appeal is directed against the order dated 29.05.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint and directed the Opposite Parties (now respondents) as under:-
24. The Opposite Parties are directed to pay amount of interest due towards the Complainant as claimed by him.
25. The Opposite Parties are also directed to pay compensation to the tune of Rs.20,000/-
on account of deficiency in service and having caused harassment and unnecessary litigation to the Complainant. Opposite Parties are further directed to pay Rs.7,000/- as litigation costs.
26. The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, Opposite Parties shall be liable to pay an interest @18% per annum on the awarded amount of Rs.20,000/- plus the entire amount of dues payable towards the Complainant as per his prayer, from the date of institution of this complaint i.e. 31.12.2010, till it is actually paid, besides costs of litigation of Rs.7,000/-.
2. In brief, the facts of the case are that the complainant was an employee of the Punjab Agro Industries Corporation (hereinafter referred to as Corporation), having joined its service on 16.09.1970 as Assistant, had served till 31.07.2004, when he attained the age of superannuation, and retired from the post of Senior Manager. During this tenure, his services were terminated between the period 25.01.1979 to 29.03.1984, but he was reinstated as per the order of the Labour Court, but without back wages. It was stated that the aforesaid award was challenged and while allowing the appeal, the Honble High Court directed the Opposite Parties to reinstate the complainant, alongwith back wages. Against this order, the Corporation filed the LPA before the Honble Punjab and Haryana High Court where the compromise was arrived at between the parties and the complainant consented to receive a sum Rs.40000/- in full and final settlement of the claim and made a statement that he would claim nothing more and accordingly, the LPA was disposed of as withdrawn vide order dated 06.09.2005, Annexure C-1. It was further stated that it was incumbent upon the Corporation to deposit its share of EPF with the Provident Fund Office for the period 25.01.1979 to 29.03.1984 on wages of Rs.40,000/- but the same was not deposited by the Corporation. For this reason, the complainant filed an application under Section 7-A of the EPF Act, Annexure C-2. This application dated 03.04.2006 was contested by the Corporation. The Assistant Provident Fund Commissioner vide its order dated 28.08.2006, Annexure C-3 decided the application in favour of the complainant, This order of the APFC was not appealed against and thus has attained finality. It was further stated that the complainant specifically stated that the PF Department did not take care to implement the second part of the order dated 28.08.2006 and, as such, the complainant claimed his entitlement to the extent for the period for which the Corporation had deposited the amount of Rs.10042/- and upto date interest for the period thereafter. It was further stated that the complainant made repeated representations through letters dated 02.01.2010 and 06.03.2010, which were replied by the PF Department through their letter dated 17.03.2010, copies of the same were annexed as Annexure C-4 to C-6 respectively. It was further stated that besides these letters, the complainant made repeated representations through communications which were annexed as Annexure C-7 to C-9 and thereafter served a legal notice dated 06.05.2010 through registered A.D., copies of the same were annexed as C-10 and C-11 respectively. It was further stated that the complainant was entitled to a sum of Rs.1,08,925/- due towards interest calculated upto 31.03.2010, Annexure C-12. It was further stated that the Opposite Parties were 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 Parties stated that the complainant had already availed of the remedy before the RPFC at Chandigarh and the same remedy could not be availed of again through this Forum. It was further stated that the complainant had the next remedy available in the shape of appeal against the order dated 28.08.2006 of the APFC under section 7-A, but the complainant failed to do so hence he was estopped by his own act. It was further stated that the Complainant having chosen a remedy under a statute then under those circumstances, he could not approach the District Forum, as held by the Honble Punjab State Consumer Disputes Redressal Commission, in Appeal No. 418 of 2001, decided on 20.7.2005. It was further stated that in the case titled G.M. Telecom Vs. M. Krishnan, decided by the Honble Supreme Court in Civil Appeal No. 7687 of 2004, decided on 1.9.2009, wherein it was held that if a special remedy is provided under any Act, regarding the settlement of the dispute, then the remedy under Consumer Protection Act, 1986 is by implication barred. It was further stated that the Consumer Fora has no jurisdiction to sit over the issues as an appellate authority of Opposite Party No.2. The fact with regard to the application under Section 7A of PF Act was admitted. However, the allegations of the complainant that Opposite Party No. 2 was not complying with its own orders was stated to be wrong and denied. It was further stated that the Corporation had deposited the amount as per the orders of the APFC dated 28.8.2006. Rest of the matter was claimed to be between the PF Department, and the Corporation. It was further stated that the Complainant had no concern whatsoever with the 2nd part of the order, and the Complainant was not entitled for any interest for any period.
It was further stated that the Opposite Parties acted as per the provisions of the Act, and even if after this the Complainant was at liberty to seek remedy by filing an appeal under the provisions of the Act. It was further stated that, the Opposite Parties were 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, as stated above.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellants/Opposite Parties submitted that the complainant was ordered to be reinstated with back wages vide order dated 29.09.1998 passed by a Single Bench of the Honble Punjab and Haryana High Court. Against this order, the Corporation filed the LPA before the Honble Punjab and Haryana High Court where the compromise was arrived at between the parties. He further submitted that the LPA was disposed of as withdrawn vide order dated 06.09.2005, Annexure C-1. He further submitted that the complainant was wrong in moving an application dated 30.03.2006 under Section 7-A of the EPF Act before the Assistant Provident Fund Commissioner because as the demand raised by him was in direct contravention of the statement made by him before the Honble Punjab and Haryana High Court in the LPA. However, the Assistant Provident Fund Commissioner in exercise of power conferred under Section 7-A of the Employees Provident Funds and Misc. Provision Act, 1952 vide its order dated 28.08.06 directed the establishment to deposit Rs.10,042/- within 15 days of receipt of these orders and produce copies of bank challans in support of having deposited the said amount failing which action under Section 8-B to 8-G of the EPF and MP Act, 1952 would be taken to recover the said amount. He further submitted that the complainant could have filed an appeal before the competent Tribunal against order dated 28.08.06 but he failed to do so.
It was further submitted that the District Forum has misinterpreted the order dated 28.08.06. He further submitted that the complainant could not claim interest or damages under Section 7Q or 14-B of the Act and he was not entitled to interest under paragraph 60 of the Employees Provident Fund Scheme, 1952. He further submitted that as no amount of EPF contributions during the period of termination was deposited with the appellants, so the question of interest did not arise at all. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant submitted that the order passed by the District Forum, being based, on the correct appreciation of evidence, and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same is liable to be upheld.
10. Admittedly, the Hon'ble High Court vide its order dated 29.09.1998 allowed CWP filed by the complainant and the order of Labour Court was modified with a direction of payment of back wages to the complainant from the date of termination till the date of reinstatement within two months. Aggrieved against the order dated 29.09.1998 the Punjab Agro Industries Corporation filed the LPA before the Hon'ble High Court in which the complainant accepted the sum of Rs.40,000/- in full and final settlement of his claim and made a statement that he was satisfied with the said amount received towards his claim and claimed nothing more. Accordingly the said LPA was disposed of as withdrawn vide order dated 06.09.2005 by the Hon'ble High Court.
11. Now the question, that arises for consideration, before us, is, as to whether the complainant could move an application under Section 7-A of the Employees Provident Funds and Misc. Provision Act, 1952. Our answer to this question, is in negative, because the matter was compromised between the parties and the complainant accepted a sum of Rs.40,000/- in full and final settlement of his claim before the Honble Punjab and Haryana High Court in the LPA and made a statement that he was satisfied with the said amount received towards his claim and claimed nothing more. In view of this statement, he waived of his right to claim any other amount. Hence, the principle of estoppel is fully applicable against him, and now the complainant has no right to claim interest on the amount for the period from 25.01.1979 to 29.03.1984 on the basis of the order dated 28.08.2006 passed by the Assistant Provident Fund Commissioner, Quasi Judicial Authority. In the case Joseph K.V. Versus R.P.F. Commissioner, Ernakulam, 2003-I-LLJ Pg. 981, the Honble Kerala High Court in para 5 of its order it was held that a member is entitled to get interest at the rates determined by the Central Govt. in consultation with the Central Board but the same can be denied only if the member waives his right to get interest. The principle of law laid down in the aforesaid case is fully applicable to the instant case. In this view of the matter, we are of the considered opinion that the complainant is not entitled to any relief as claimed by him.
12. The order of the District Forum is not based on the correct appreciation of evidence and law, on the point. It suffers from illegality and perversity, warranting the interference of this Commission. The order of the District Forum is, thus, liable to be set aside.
13. For the reasons recorded above, the appeal , is accepted, with no order as to costs. The order of the District Forum is set aside.
14. Certified Copies of this order be sent to the parties, free of charge.
15. The file be consigned to Record Room, after completion.
Pronounced. Sd/-
21.12.2012 [JUSTICE SHAM SUNDER[RETD.] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Cmg APPEAL No.233 of 2012 Argued By:
Sh.Sukhjit Singh, Advocate for the appellant.
Sh.Raj Kaushik, Advocate for the respondent.
---
Vide our detailed order of the even date recorded separately, the appeal , is accepted, with no order as to costs. The order of the District Forum is set aside as per directions contained therein.
21.12.2012 (MEMBER) (MEMBER) (PRESIDENT) cmg