State Consumer Disputes Redressal Commission
Regional Provident Fund Commissioner vs Dipak Navneetlal Desai on 27 April, 2023
A /2014/ 290 A / 2014 / 676
Details DD MM YY Details DD MM YY
Date of Judgment 27 04 2023 Date of Judgment 27 04 2023
Date of filing 14 02 2014 Date of filing 31 01 2014
Duration 13 02 09 Duration 27 02 09
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 1
Appeal No.2014/290
Deepak Navnitlal Desai (Deceased)
(1) Harshit Deepakbhai Desai
(2) Sukin Deepak Kumar Desai
Add: B/22 Dhanurdhar Apartment,
Near Uttam Nagar Garden,
Maninagar, Ahmadabad 380008. ...Appellant
Vs
1. Regional Provident Fund Commissioner - I,
Employees‟ Provident Fund Organization,
Bhavishya Nidhi Bhavan, Ashram Road,
Nr. Income Tax Circle, Ahmadabad.
2. The Regional Provident Fund Commissioner - II,
EPFO, Sub Regional Office (Vatva),
3 rd & 4 th Floor, Satyam Tower,
Maninagar, Ahmedabad. ...Respondents
APPERANCE : Mr. Dinesh Panchal, advocate for the appellant.
Smt. E. Shailaja Pillai, advocate for the respondents.
Appeal No.2014/676
1. Regional Provident Fund Commissioner - I,
Employees‟ Provident Fund Organization,
Bhavishya Nidhi Bhavan, Ashram Road,
Nr. Income Tax Circle, Ahmadabad.
d.i.dabhi A-2014-290/A-2014-676 Page 1 of 12
2. The Regional Provident Fund Commissioner - II,
EPFO, Sub Regional Office (Vatva),
3 rd & 4 th Floor, Satyam Tower,
Maninagar, Ahmedabad. ...Appellants.
Vs.
Deepak Navnitlal Desai (Deceased)
(3)Harshit Deepakbhai Desai
(4)Sukin Deepak Kumar Desai
B/22 Dhanurdhar Apartment,
Near Uttam Nagar Garden,
Maninagar, Ahmadabad 380008 ...Respondents.
Coram :Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms.A.C.Raval, Member
APPERANCE : Smt. E. Shailaja Pillai, Ld. Adv. for the appellants.
Mr. Dinesh Panchal, Ld. Representative for the respondents.
Order by Hon'ble Mr. Justice V. P. Patel, President
1. The Appellant/Original complainant has filed the present Appeal no. A/2014/290 and Respondents/Original Opponent have filed Appeal no. A/2014/676, being aggrieved by and dissatisfied with the judgment and order dated 30/11/2013 rendered by the learned Consumer Disputes Redressal Commission, Ahmadabad (Additional) (For short ld. District Commission) in Complaint No. 704 of 2010 under Section 15 of the Consumer Protection Act, 1986. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature.
2. In this matter two Appeals have been filed against the same order of the ld. District Commission Ahmadabad (Additional) in CC No. 704 of 2010. As facts, arguments and law points involved in both the Appeals are the same, this Commission has decided to dispose of these two Appeals by a common judgment.
Case of the complainant:
3. The facts given rise to the present Appeals in a nutshell are as under; The complainant had been working in the Shri Krishna Keshav Laboratories ltd.
d.i.dabhi A-2014-290/A-2014-676 Page 2 of 12Amraiwadi Road, Ahmadabad as permanent employee for the period from 18/12/1974 to 15/11/2008 and he was a member of Employee Provident Fund Scheme 1995 and his Member Pension Account No. is GJ-5227/441. It is further the case of the complainant that he has deposited his PF contribution for wage payment for the said period to the opponent PF office through his employer. That he was illegally suspended from 11/3/1993 to 15/3/2002 from employment. He was reinstated on 16/3/2012 without break in the service.
4. The employer has deposited 10% contribution instead of 12% contribution from September 2003 to July 2008. Contribution from the employer at a rate of 3.67% was required to be deposited in his PF account but the employer has not deposited 12% interest therefore only a 1.67% contribution was deposited in his PF account. This less amount was deposited by the employer in connivance with the opponent PF office.
5. That Form no. 19 was deposited on 29/01/2010 as per Para 69 of the Scheme 1952. in pursuant to which opponent PF office has sent a cheque on date 24.01.2010 and credited the amount of Rs. 2,39,505/- in the complainant's bank account, but it is alleged by the complainant that opponent has credited the said amount after delay and therefore he is entitled to get 12% punitive interest for the said delay as per the scheme.
6. The complainant has pleaded that the department has not provided from no. 10 (D), Copy of Member's account, annual report, Worksheet, Account Ledger, Contribution Card, etc. It is also claimed in the relief as regards to the non supplier of such documents. It is alleged that the opponent had made deficiency service for maintaining his PF account. Complainant has filed Consumer Complaint before the learned District Commission Ahmadabad (Additional).
Order under Challenge:
7. After hearing learned advocates for both the parties and after considering the documents and evidence, the learned District Commission partly allowed the Complaint and ordered the opponent PF office to pay Rs. 10,000/- towards mental agony and Rs. 2,000/- for the cost of the litigation. Nothing has stated about other relief claimed by the complainant.
d.i.dabhi A-2014-290/A-2014-676 Page 3 of 12Arguments of the Complainant:
8. The learned Representative Mr. Dinesh Panchal has appeared on behalf of original complainant and vehemently argued that complainant has worked in the employer/ institution from date 18/12/1974 to 15/11/2008.
9. That the order of the district commission not granting relief to the complainant is illegal, arbitrary and unjust hence required to be quashed and set aside. The order is against the principle of natural justice. That the Learned district Commission has not properly considered evidence produced on behalf of the complainant. It is further argued that ld. The District Commission has not properly considered several oral arguments made during the hearings explaining the provisions of EPF and MP Act, 1952 and Scheme framed there under. Furthermore the Ld District Commission has failed to appreciate the provisions of Para 73, 75 of Employees' Pension Scheme, 1952 which clearly states that the claim shall be settled within 30 days of its receipt by the Commissioner.
10. It is further argued that the employer has deposited 10% contribution instead of 12% contribution from September 2003 to July 2008. Contribution from the employer at a rate of 3.67% was required to be deposited in his PF account but the employer has not deposited 12% interest therefore only a 1.67% contribution was deposited in his PF account. This less amount was deposited by the employer in connivance with the opponent PF office. Though this fact was not disputed by the opponent PF office in the written statement, the ld. district Commission has not considered this aspect in its order.
11. Moreover ld. Dist. Commission has failed to consider that the opponent has intentionally not revealed the records of the complainant's account which in fact is available with the opponent PF office and wrongly not considered the submission advanced by the complainant. It is further asserted that even on filing an application for making the opponent to produce such crucial documents, the opponent PF office has intentionally not submitted the said documents in the proceeding before District Commission and adverse inference was not drawn on the part of the opponent. ld. Representative Mr. Panchal has prayed to allow the present Appeal filed against the opp. PF office.
d.i.dabhi A-2014-290/A-2014-676 Page 4 of 12Arguments of the Respondent:
12. ld. Adv. Smt. E. Shailaja Pillai has argued that the Order is illegal, arbitrary and unjust, it requires to be set aside. The complainant has willfully not joined the employer as a necessary party in the case and therefore the order passed by the ld. Dist. Commission should be set aside. It is further argued that the ld District Commission has not properly considered the evidence produced and several oral arguments made during the hearings. Furthermore the Ld. The District Commission has failed to appreciate the provisions of Para 75 of Employees' Pension Scheme, 1952 which clearly states that the claim shall be settled within 30 days of its receipt by the Commissioner but the claims shall be completed in all respects. The claim was settled within 30 days then the Commissioner shall not be liable.
13. It is further contended that the Ld. Dist. Commission has erred in appreciating that timely submission of returns & timely remittance of money by the employer is a prerequisite for maintenance of proper accounts. It is only when these pre-requirements are met by the employers that EPFO is able to reconcile the member's account & issue a slip to him. The employer/establishment was a defaulter in timely remittance of money and submission of prescribed returns. The employer has made certain litigations for nonpayment of contribution due to its sick industrial unit and such litigations are pending till today also. The District Commission has not properly appreciated Para 72 (2) of the EPF scheme 1952. The portion of the amount which is not disputed is required to be paid and if it is disputed the same is required to be settled after making enquiry as permissible according to the section 7A of the act. See requested to allow the Appeal and set aside the Order of compensation of mental agony and cost of litigation.
Merit of the case:
14. Complaint is asked mainly 4 reliefs in Para 4. He has asked the interest as declared by the government on the contribution for the period of October 1998 to October 2000.
Interest for the period of October 1998 to October 2000
15. It is stated in the complaint that the employer has not deposited a contribution of the employer to the fund for the period of October 1998 to d.i.dabhi A-2014-290/A-2014-676 Page 5 of 12 October 2000. The complainant is entitled to such an amount therefore he has requested to get deposited such an amount of contribution from the employer and pay with the interest to the complainant.
16. Complainant has produced a letter dated 3/2/2010 addressed to the central public information officer whereby the complainant has asked information as to what amount was deposited by the employer for the period of October 1998 to October 2003. Complainant has also produced a copy of appeal-memo filed before the appellate authority employees Provident Fund dated 10/2/2010 as the information was not supplied properly to the complainant.
17. Nothing stated in the written statement about this contention of the nonpayment of contribution to the fund by the employer. Nothing stated about this contention in the brief note submitted by the respondent at page number 88. In the written submission/clarification dated 16/12/2012, /01/2023 and 09/02/2023 produced page number 104-105, 134-135 and 136-137 respectively, it is stated that the employer share was recovered from the establishment and received at the rate of 10% for the period 10/98 to 10/2000 wherein the amount of Rs 131681/- is already paid on 23rd march 2016 through NEFT and also an amount of rupees 36435/- is paid on 24/10/2016 through NEFT for the balance amount as available then to the member. A part of the order dated 30/11/2013 has been compiled by the PF Department. The said facts are confirmed in the letter dated 18/09/2018 produced by the complainant at page number 130-131. In view of the above clarification and discussion we are of the opinion that nothing is required to be paid by the department about relief claimed in Para 4A of the complaint as regards to the interest for the period of October 1998 to October 2000.
Non supply of Record
18. Second relief claimed in Para 4B in the complaint is Non supply of the documentary evidence of the Account statement, ledger Card, Contribution card, worksheet and other documentary evidence. Complainant has stated in Para 2(b) of the complaint that he has requested vide number of letters ie. dated 4.1.09, 10.7.09, 27.7.09, 11.8.09, 10.9.09, 11.1.10, 25.2.10. But the department has not provided such documentary evidence. We have gone d.i.dabhi A-2014-290/A-2014-676 Page 6 of 12 through the above letters produced on record from page number 29 to 40 and found that there is substance in the contention of the complainant. The opponent department has replied to the RTI information on 3/12/2010 letter produced at page 49 that the employees contribution fund for the period of October 1998 to October 2000 has been taken into consideration. Further it is also stated that amount of rupees 239505/- has been paid, now nothing is required to be paid hereinafter.
It appears that the complaint has been requested a number of times to the department even after the RTI application the department has given a vague and nebulous reply. We found that the approach of the department is not positive, specific and not appropriate to beneficial provision of the PF act. We find that the District Commission has rightly imposed a cost of compensation of rupees 10000 for mental agony and litigation cost of rupees 2000. Thus an appeal filed by the department is required to be dismissed.
19. It is the duty of the employer under Para 35 of the EPF Scheme 1952 to prepare the Contribution Card in form 3 or form 3A. The employer has to send to the commissioner a consolidated return showing basic wage, retaining allowance and dearness allowance etc. under para 36 of the EPF Scheme. As per the provisions of the Scheme 1952 the contribution card is required to be prepared by the employer, it is required to submit on every end of the month to the PF commissioner and the copy of it required to retain by the commissioner.
20. Under Para 75 of the Scheme the members are entitled to a copy of members' accounts and annual reports on payment of fees. Which reads as under:
"The Commissioner shall furnish copies of the member's account and of the Annual Reports of the Fund to any employer or member on written application and on payment of such fees and subject to such conditions as may be specified by the Central Board on this behalf."
21. We have gone through the records of the case and it has emerged that the opponent has not produced any computerized record of the complainant's account statements, worksheet, etc. Further we found that the district Commission has erred in not granting relief in terms of Para 4(B) of the complainant as regards to the non supply of record of Account statement, Ledger Card, worksheet, etc. Therefore, we are of the considered d.i.dabhi A-2014-290/A-2014-676 Page 7 of 12 opinion that the complainant is entitled to get the copies of statement of account, ledger card, worksheet etc. 2% less contribution to fund paid by the employer
22. Complainant has asked for relief in terms of para 4C of the complaint that he may be provided the amount with interest under sec 60 of PF Act of Contribution of 2% less paid by the employer for the period of September 2003 to July 2008. The employer has paid a contribution 12% as per Law but they have deposited a contribution at a rate of 10%.
23. Open and department has stated in Para 7 of the written statement that, "The opponents submit to the Honorable forum that complainant's establishment M/s Krishna Keshav laboratory has been chronic defaulter in payment of PF dues and submission of returns and it has been subjected for compliance action in accordance with the provision of EPF and MP act 1952. It is stated that the establishment has approached the honorable High Court of Gujarat against the compliance action initiated by this department and the case is pending before the honorable High Court of Gujarat. The establishment is remitting PF contribution at the rate of 10% instead of 12% on the plea that the establishment is a Sick unit. The admissibility of establishment in this contention Is being enquired under section 7A of the EPF act 1952."
24. Ld advocate for the PF office has vehemently argued that as per Para 72(2) to of the EPF scheme, the phrase 'Prompt payment' has been misinterpreted as releasing payment immediately with considering the other provision of the Act and Scheme. Moreover as per scheme the liability of the PF commissioner is restricted only to the amount which is remitted by the employer for the credit in the member account maintained by the PF Commissioner. It is also argued that the undisputed amount is required to be paid promptly and disputed amount is required to be realized after enquiry under section 7A of the Act.
The establishment/employer has brought a stay order vide ATA no. 235(5) 2012 (Now CGIT 136/2017) against the difference of 2% contribution by the establishment. Copy of the order are produced at page no.106 to 116. It is not possible to pay the differential amount due to the member as of now the stay is continued till date. The assessment of disputed amounts under section 7A of the Act and subsequent recovery under Section 8 of the Act is a prerequisite to realizing payment under Para 72(2) of the scheme.
25. It is one of the arguments on behalf of the Complainant that in view of the benevolent provision of the EP Act and Scheme, irrespective of d.i.dabhi A-2014-290/A-2014-676 Page 8 of 12 contribution deposited to the fund by the employer, the Commissioner has to pay the pension and PF fund to the Member complainant. Prima facie this argument appears attractive, but if we think deeply then it is not acceptable under the law. The reasons are as under;
26. It is advisable to refer to some of the provisions of the EPF Act and Scheme.
Para 72 of the EPF scheme 1952. Which Reads as under;
(A) 72. Payment of Provident Fund - (2) If any portion of the amount, which has become payable, is in dispute or doubt, the Commissioner shall make prompt payment of that portion of the amount in regard to which there is no dispute or doubt, the balance being adjusted as soon as may be possible.
(B) Sce 7A of the EPF Act 1952 -
7A Determination of moneys due from employers.-- (1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,--
(b) determine the amount due from any employer under any provision of this Act, the Scheme or the [Pension] Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary;
(C) Sce 8 of the EPF Act 1952 -
8. Mode of recovery of moneys due from employers.--Any amount due--
(a) from the employer in relation to an establishment to which any Scheme or the Insurance Scheme] applies in respect of any contribution payable to the Fund or, as the case may be, the Insurance Fund, damages recoverable under section 14B, accumulations required to be transferred under sub-section (2) of section 15 or under sub-section (5) of section 17] or any charges payable by him under any other provision of this Act or of any provision of the Scheme or the Insurance Scheme]; may, if the amount is in arrear, be recovered in the manner specified in sections 8B to 8G.
27. As per Para 72(2) of the Scheme the Commissioner shall make prompt payment of that portion of the amount in regard to which there is no dispute or doubt. If any amount is in dispute, the Commissioner has to make inquiry under section 7A of the Act 1952 and determine the exact and final amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme as he may deem necessary.
The PF Commissioner may recover any amount due from the employer in relation to an establishment to which any Scheme applies in respect of d.i.dabhi A-2014-290/A-2014-676 Page 9 of 12 any contribution payable to the Fund or any charges payable by him under any other provision of this Act or of any provision of the Scheme is in arrear in the manner specified in sections 8B to 8G.
28. Can Court/Consumer commission pass an order to pay an entitled amount to the member, without recovery of the due from the responsible employer? This question is required to be answered according to law. If the government has sanctioned a special grant for this purpose under the Scheme then it can be paid. It is an admitted fact that there is no statutory provision to the effect that irrespective of the amount contribution to fund recovered from the employer the amount in dispute is required to be paid to the member. The amount of contribution to fund from the employer can be recovered with interest and after recovering such amount the payment can be made to the member with interest as applicable. Our answer is that in absence of any statutory provision or sanction of special grant the disputed amount cannot be paid to the member under the scheme.
29. It is an admitted fact that the employer has deposited 2% less amount of contribution to the fund. The complaint is entitled to such an amount. Ld district Commission has not looked into this aspect though it was agitated before it. We are of the opinion that the impugned judgment is erroneous in the eyes of law. The appeal succeeded to that extent. Complaint is entitled for the amount with an applicable interest for the 2% less contribution deposited by the employer, but such amount is to be paid after recovery from the employer according to law.
Penal interest for delay payment
30. The last contention raised by the complainant is for the penal interest for delay payment under Para 72(7) of the Scheme 1952. The complainant has pleaded in Para 3 of the complaint and claim relief in terms of Para 4D that he is entitled 12% in penal interest for the breach of Para 72(7) of the scheme 1952. It is pleaded in Para 3 that the form no. 19 was submitted on 29.1.2010 and the amount of rupees 239505/- was deposited by the department in his account on 24.2.2010.
31. Para 72(2) of the Scheme 1952.
Para 72(7) The claims, complete in all respects submitted along with the requisite documents shall be settled and the benefit amount paid to the d.i.dabhi A-2014-290/A-2014-676 Page 10 of 12 beneficiaries within 30 days from the date of its receipt by the Commissioner. If there is any deficiency in the claim, the same shall be recorded in writing and communicated to the applicant within 30 days from the date of receipt of such application. In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner.
32. The form no. 19 was submitted on 29.1.2010 and the amount of Rs 239505/- was deposited by the department in the Complainant's account on 24.2.2010. Admittedly the claim is settled within 30 days. There is no breach of Para 72(7) of the scheme. Therefore this contention is negated.
Conclusion
33. We have considered the grounds stated in the memo of appeals, reasons recorded in impugned judgment and order, documentary evidence on record, arguments advanced by the ld. Advocate and ld. representative for both the parties, facts and circumstances of the case.
In view of the above deliberation, we find that the Learned District Commission has discussed certain things and come to the conclusion that the department has made a deficiency in service of maintaining the PF fund of the complainant and partly allowed the complaint up to certain extent. We uphold that finding. At the same time we hold that the complainant is not entitled to the payment and the interest for the contribution fund of the employer for the period of October 1998 to October 2000 as the same amount is already paid to the complainant. Further as there is no breach of Para 72(7) of the scheme 1952, he is not entitled 12% in penal interest as claimed.
34. We came to the conclusion that the judgment and order passed by the Learned District Commission is required to be modified to the following extent. We find that the Complainant is not entitled following reliefs.
(a) the Complainant is entitled to get the record of the Statement of Account, ledger Card, Worksheet, Contribution card, etc.
(b) Complaint is entitled for the amount with an applicable interest for the 2% less contribution deposited by the employer, but such amount is to be paid after recovery from the employer according to law.
d.i.dabhi A-2014-290/A-2014-676 Page 11 of 12Thus appeal is required to be partly allowed. Hence, in the interest of justice following order is passed.
ORDER
1. The Appeal No. A/14/290 filed by the appellant/ complainant is hereby partly allowed.
2. The Appeal No. A/14/676 filed by the appellant/Opponent Department is hereby dismissed.
3. The order 30/22/2013 passed by the Consumer Disputes Redressal Forum, Ahmadabad (Additional) in Consumer Complaint no. 704/2010 is hereby modified as under:
(a) The Opponent Department is directed and ordered to issue the record of the Statement of Account, ledger Card, Worksheet, Contribution card, etc. to the Complainant.
(b) The Opponent Department is directed and ordered to recover the amount with an applicable interest of the 2% less contribution deposited by the employer according to law at the earliest, after the stay is vacated by the competent authorities, and pay such amount to the complainant.
4. The rest of the order passed by the Learned District Commission is hereby confirmed.
5. No order as to the cost.
6. Office is directed to verify the amount deposited by the appellant department in Appeal no. A/14/676, CMA no. 247 of 2012, if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant department by RTGS after following due procedure and verification. For this purpose the appellant department shall apply to the Account branch of this Commission.
7. Registry is directed to send a certified copy of this order free of cost to the parties as well as intimate to the ld. District Commission Ahmadabad (Additional) through E mail in PDF format.
Pronounced in the open Court today on 27th April, 2023.
[Ms. A. C. Raval] [Hon'ble Justice V.P. Patel]
Member President
d.i.dabhi A-2014-290/A-2014-676 Page 12 of 12