Delhi District Court
Ashwini K Aggarwal vs M/S Manufacturer'S Association For It on 10 May, 2016
IN THE COURT OF SH. RAJ KUMAR CHAUHAN, ADJ04,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Civil Suit No. 782/14
In the matter of:
Ashwini K Aggarwal
S/o Late Sh. Om Prakash Aggarwal
R/o 541, Sector9, Faridabad,
Haryana121006 .............Plaintiff
Versus
M/s Manufacturer's Association for IT
Having its Central Office at
4th Floor, PHD House,
Opp. Asian Games Village,
New Delhi. ...........Defendant
Date of institution of the suit: 29.08.2012
Date reserved for judgment: 06.05.2016
Date of pronouncement of judgment: 10.05.2016
JUDGMENT
Suit for recovery of Rs. 15,18,125/.
1. The plaintiff has instituted the present suit for recovery of Rs.
15,18,125/ from the defendant interalia alleging that he is MBA in Finance, Electronics from Faculty of Management Studies, Delhi and was employed with M/s Hewlett Packard (referred as HP) as country business manager till 31.10.2008; during the employment with HP he was having his provident fund account with HP Trust; as per the Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 1/27 procedure the plaintiff without getting his provident fund transferred to the new employer/company was entitled to retain the said amount with HP PF trust for three years and was also entitled to interest therein on the said PF amount; on 31.10.2008 after resignation from HP, the plaintiff joined M/s V5 Global Services Pvt Ltd on 01.11.2008 and then CPM India Sales and Marketing Pvt Ltd. On 01.10.2009 and also left the said company on 10.09.2010; the plaintiff joined the defendant association as Executive Director initially on 06 months probation; since the requisite period to get the provident fund transferred from HP PF Trust was to expire on 31.10.2011, the plaintiff well within time in the last week of April 2011 submitted the prescribed form13 as per Employees Provident Scheme, 1952 for the transfer of balance of provident fund in his previous account to his account with the defendant where he was employed at that time; as per terms of prescribed form 13 on receipt of an application for transfer of provident fund account from the plaintiff, the defendant was under legal obligation to fill up the rest of the form which was required to be filled by defendant (present employer) and forward the same to HP PF Trust (the previous employer in the custody of the PF account); the plaintiff has made it clear at the time of submitting the PF balance transfer to Mr. Vijay Sharma the acting Executive Director of the defendant association about the fact Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 2/27 that the said form has to be processed latest by 31.10.2011; Sh. Vijay Sharma assured the plaintiff that no delay in completing the process of PF transfer will occur.
2. It is further alleged that as per term of employment the plaintiff gave one month notice of his intention to resign from the defendant on 10.04.2011 and accordingly the plaintiff ceased to be employee of the defendant from 10.05.2011; the plaintiff thereafter joined the present company Applied Materials India Pvt Ltd. As Director Government Affairs on 27.06.2011; the plaintiff followed up on the status of his request for transfer of his PF balance with defendant association in the month of August 2011 and was told that the application was in progress at PF office; nothing was intimated about the transfer of the PF till the month of October 2011 despite all efforts of the plaintiff which went in vain; the plaintiff personally visited the office of plaintiff in the month of August, September and November 2011 to check the status of his PF balance transfer application but there was no clear satisfactory reply from the defendant; there was no response to the call of the plaintiff till January 2012 when he again visited the defendant.
3. In February 2012 after several follow ups plaintiff was informed that the PF transfer form is deposited in PF drop box at EPF office in Dwarka has been lost by the PF authority and it was assured to the plaintiff by Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 3/27 the defendant that there would be no interest loss and was asked to fill a fresh application again; accordingly, the plaintiff sent a fresh application form for transferring of the PF fund in February 2012 through courier; seeing the conduct and no response from the defendant, the plaintiff sought a meeting with HP Pay Role Department who informed that they have not received any application for transfer of the PF of the plaintiff; the defendant has been negligent in dealing with his PF transfer form; in his further visit to the defendant's office, plaintiff came to know that the defendant had not sent the PF application form to HP PF Trust as was required under process guideline of form13 of the EPF office; as per requirement of form13 of the Employees PF Scheme, 1952, it was bounded duty of the employer to send the PF form directly to the HP PF Trust for transferring of the PF account of the plaintiff to the defendant; the defendant has not sent the application form for transferring of PF account from HP PF Trust. It is further stated that as advised by the Industrial Consultants thereafter the plaintiff arranged to transfer his PF balance from HP PF Trust through his current employer who followed the due process and the balance was transferred to the PF account maintained with his present employer by 15.05.2012.
4. Due to misdeeds and gross negligence on the part of the defendant, plaintiff suffered huge loss in the form of interest on PF amount of Rs. Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 4/27 11,001,395/ since 31st October, 2011; the defendant was responsible for causing a loss of Rs. 9,89,794/ as on 15.05.2012 to the plaintiff. The defendants are liable to pay interest 12% at the abovesaid amount from 15.05.2012 till 15.08.2012 amounting to Rs. 28330.34/ and are also liable to pay damages @ Rs. 5 lacs for causing mental agony and harassment to the plaintiff. Defendant as such liable to pay Rs. 15,18,125/ for which the present suit has been filed. Hence, the present suit is instituted for recovery of above mentioned amount alongwith interest.
5. Defendant has filed WS and has taken preliminary objection that the plaintiff was on probation for a period of six months w.e.f. 12.09.2010; the defendant did not intend to confirm the plaintiff's employment, hence, he tendered his resignation by an email dated 11.04.2011 but requested the defendant that his resignation should be taken to be effective from 10.05.2011; his request was acceded and his service continued till 10.05.2011; in the last week of April 2011 and shortly before leaving service of defendant, the plaintiff handed over to the defendant two copies of filled in Employees Provident Fund (EFP/PF) form13 for transferring all his EPF accounts with a request to forward the same to the office of Regional PF Commissioner, Dwarka; as per form13 (revised) it was sole responsibility of the employee concern to Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 5/27 fill up the form with necessary and appropriate information and details and submit the said form duly filled in to the present employer for onward transmission in the first case to the EPF Commissioner by whom the transfer was to be effected and in the second case to the EPF Trust of the exempted establishment. Neither the EPF account, nor the signatures and the rules places any responsibility on the current employer to fill up the application for transfer of EPF account with the requisite and necessary data and the onus of the same lies entirely on the employee (plaintiff).
6. On submission of the filled in applications to the defendant, the defendant took immediate steps and submitted the two applications of the plaintiff to the office of RPFC on 03.05.2011 as per the instructions of the plaintiff; the copy of each of the two receipted forms was provided to the plaintiff in May 2011 and after scrutinizing the same the plaintiff kept the form in his custody; at the time of handing over the EPF form, the plaintiff failed to communicate to the defendant about the status of HP, as an exempted establishment under the EPF and miscellaneous Provisions Act, 1952 and further failed to confirm that the said EPF forms were to be forwarded to his previous employer HP directly and not to the office of RPFC. In the absence of any such relevant information the plaintiff's said forms were submitted in the office of RPFC; the Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 6/27 plaintiff failed to inform the defendant that he would lose the interest if his balance in the HP PF trust account was not transferred on or before 31.10.2011. It is further stated that after submitting his application form in the end of April 2011, the plaintiff first time made an inquiry in January 2012 about the status of his transfer application; the balance in plaintiff's HP PF account has already been transferred to the plaintiff's EPF account with his current employer on 09.04.2012; under the provision of EPF Scheme 1952, the defendant was not having any duty to carry out the transfer of the balance of the PF account maintained by the plaintiff's previous employer without proper instructions and advise of the plaintiff.
7. On merit all averments in the plaint has been controverted and denied stating that the plaintiff was negligent in pursuing its matter and there was no negligence on the part of defendant and as such plaintiff is not entitled to any such amount.
8. In replication, the plaintiff has reiterated the stand taken in the plaint and denied the averments of the defendant made in the written statement.
9. After completion of pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 05.02.2013:
(1) Whether the plaintiff has no cause of action against the defendant? OPD (2) Whether the plaintiff is entitled to a decree of Rs. 15,18,125/ alongwith with interest, if so, for what period and at what rate? OPP (amended issue vide order dated 05.03.2013).
(3) Relief.
Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 7/27
10. In support of its case plaintiff has examined himself as PW1 by filing affidavit Ex.PW1/A.
11. The defendant has examined Sh. Manoj Khantwal as DW1. He has filed his affidavit Ex.DW1/A.
12. I have heard the arguments of both the sides and have carefully gone through the entire material on record.
MY ISSUEWISE FINDINGS ARE AS UNDER:
ISSUE No.(1):
Whether the plaintiff has no cause of action against the defendant? OPD
13. The onus of this issue was upon the defendant. It is deposed in the affidavit Ex.DW1/A of DW1 that the plaintiff himself was not aware about the procedure to be followed for getting his PF transfer because at the time of filing of the transfer form the plaintiff himself was ignorant of the procedure to be followed and for that reason he failed to inform the defendant that the form had to be sent to the PF trust maintained by the HP PF Trust as it was exempted establishment; the plaintiff himself appears to be unaware of the said particular fact therefore, failed to draw attention of the defendant to the exempted status of the previous employer and to the place where PF form no.13 had to be sent; the suit of the plaintiff was therefore liable to be dismissed.
14. However, in cross examination DW1 admitted that it was correct that as per procedure laid down under EPF rules, in case the PF transfer is due Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 8/27 from an exempted establishment, the duly filled up form submitted by the employee has to be sent by the employer to the PF trust of exempted establishment; the duly filled up form submitted by the employee has to be sent by the employer to the PF trust of exempted establishment. He further admitted that the plaintiff never asked Mr. Vijay Sharma, the then acting Director or other dealing person to submit the form13 to RPFC, Dwarka. DW1 further admitted that Mr. Vijay Sharma did not come to depose as he has left the service.
15. The claim of the plaintiff in the present suit is that after joining the defendant and being their employee till 10.05.2011, he has applied for his transfer of PF from the previous employer and his previous employer being exempted establishment the required form13 was to be sent directly to the previous employer HP Trust which was not done by the defendant despite the said fact being mentioned in form13 Ex. DW1/2 as a result he has suffered loss of interest for which the present suit for recovery has been filed. The evidence of DW1 discussed above and other material on record shows that the plaintiff has a valid cause of action to institute the present suit against the defendant. Moreover, cause of action has to be ascertained from the averments in the plaint. The facts alleged in the plaint sufficiently discloses a bundle of facts which makes out a valid cause of action in favour of plaintiff to institute Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 9/27 the present suit. Accordingly, issue no.1 is decided in favour of plaintiff and against the defendant.
ISSUE NO.(2) Whether the plaintiff is entitled to a decree for a sum of Rs. 15,18,125/ along with the interest, if so for what period and at what rate? (amended issue vide order dated 05.03.2013)
16. The onus to prove this issue was upon the plaintiff. In his affidavit Ex.PW1/A he has proved that he was employee with M/s Hewlett Packard (referred as HP) as country business manager till 31.10.2008 and during his employment with HP he was having his provident fund account with HP PF Trust vide account no. HP PF Trust 00405007, EPS account no. 000870. He has further proved that after his resignation from HP, he has joined M/s V5 Global Services Pvt Ltd on 01.11.2008 and then CPM India Sales and Marketing Pvt Ltd on 01.10.2009 and also left the said company on 10.09.2010; thereafter, the plaintiff joined the defendant association as Executive Director for a period of 06 months on probation; he further deposed that since the requisite period for getting the provident fund transferred from HP PF Trust to the current employee (defendant) was to expire on 31.10.2011; in the last week of April 2011 he submitted the prescribed form13 as per Employee Provident Fund Scheme, 1952 for the transfer of balance of provident fund in his previous account to his account with the defendant, the copy of the form13 is proved as Ex.PW1/1 (Ex.DW1/2); the Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 10/27 defendant was under legal obligation to fill up the rest of the form required to be filled up by the present employer and then forward to HP PF Trust; he made it abundantly clear while filling his provident fund balance transfer application to Mr. Vijay Sharma, the then acting Executive Director in the defendant association that the form has to be processed latest by 31.10.2011 as period of three years granted as per Provident Fund Transfer Scheme would be expiring on 31.10.2011 and it was necessary to prevent any interest loss on his PF; Mr. Vijay Sharma assured him that no delay in processing his PF transfer will occur; Mr. Vijay Sharma has sent an email Ex.PW1/2 dated 17.02.2012 to him in that regard; he ceases to be employee of defendant w.e.f. 10.05.2011 as he has given one month's notice on 10.04.2011; after resignation the defendant joined another company on 27.06.2011; he followed up his status of his request for transfer of PF balance from the defendant and in the month of August 2011 he was told that the application was in the progress at PF office; nothing was intimated about the transfer of his PF account till October 2011 despite several follow ups by him. He personally visited the office of defendant in the month of August, September and November 2011 to check the status of his PF transfer application but the response of the defendant was not satisfactory; he wrote various emails to the Director as well as to the Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 11/27 Chairperson of the company regarding the status of his PF balance transfer application but no adequate response of the emails were given. He has proved the said emails dated 23.01.2012, 17.02.2012, 19.02.2012, 26.03.2012, 07.06.2012, 15.07.2012, 05.08.2012 as Ex.PW1/3 (colly).
17. It is further deposed that after several follow ups in February 2012 he was informed that the PF balance transfer form deposited in PF drop box at EPF office in Dwarka has been lost by the PF authority and was asked to fill up a fresh application again; he was sent a fresh application form for transfer of the PF fund in the month of February 2012 through courier and Mr. Vijay Sharma also sent an email Ex.PW1/4 dated 16.02.2012 in that regard; after above communications by the defendant, he realized that the defendant association is not behaving in a credible manner and sought a meeting with the HP Payroll Department who informed that they have not received any application for his PF fund transfer; the email sent and received by the plaintiff to the HP Payroll Department dated 17.02.2012 is proved as Ex.PW1/5 and Ex.PW1/6; after visiting his previous employer he came to know that the defendant in negligent manner through his employee dealing with PF transfer case have not followed the correct procedure stipulated by the PF office; he visited the defendant to understand the process Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 12/27 they have followed and was surprised to find that defendant has not sent the PF application form to HP PF Trust (Previous employer) as was required under process guideline stipulated on form13 of EPF office. He further deposed that in compliance of para 57 part 2 of The Employees Provident Funds Scheme, 1952 he clearly stipulated in point
(ii) of the form13 that " in case the PF transfer is due from the PF Trust of an exempted establishment the application should be sent direct by the employer to the PF Trust of the exempted establishment with a copy to the RPFC concerned for details of the family pension membership".
18. As per above procedure and the information the defendant was duty bound to send the PF transfer form directly to the PF HP Trust for transfer of his PF account but they negligently and irresponsibly followed the procedure mentioned in part (i) of form13 of The Employees Provident Funds Scheme, 1952 which provides the form 13 to be submitted by the member of the present employer (plaintiff) for onward transmission to regional commissioner EPF by whom the transfer is to be effected. He further deposed that after seeking advise from industrial consultant he arranged to transfer his provident fund balance from HP PF Trust through the current employer who followed the due process and the balance was transferred to the provident fund account of the present employer by 15.05.2012. He has proved the Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 13/27 letter dated 09.04.2013 showing transfer of money by cheque to the plaintiff as Ex.PW1/A. He further deposed that due gross negligence on the part of defendant, he suffered huge loss in the form of direct interest on the PF amount of Rs. 11,001,395/ since 31.10.2011; the statement of account Ex.PW1/9 shows that the account of plaintiff was inoperative and no interest accrued after October 2011. He further deposed that defendants were liable for the loss of Rs. 9,89,794/ as on 15.05.2012 as loss of interest on PF amount because of delay of PF transfer for a period of about 6½ months and loss of interest @ 9.50%; he has mentioned interest amount to be Rs. 5,66,113.45/. He has claimed interest on the said loss of interest @ 12% per annum w.e.f. 15.05.2012 till the payment of the same. He has further deposed that he is entitled to Rs. 5 lacs due to mental agony and harassment from the defendants.
19. In his cross examination he has deposed that he has applied for transfer of his PF from HP in the last week of April 2011, by this time he had tendered his resignation but his last date of working was 10.05.2011. He admitted in cross examination that he did not say in writing about the expiry of transfer period on 31.10.2011 but has verbally communicated to the Executive Director Mr. Vijay Sharma.
20. The gist of his cross examination and the reply of the question put to him by Ld. Counsel for defendant is that he has not communicated in Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 14/27 writing to the defendant or its Executive Director Mr. Vijay Sharma about the expiry of PF transfer period on 31.03.2011 but he has verbally communicated the same to Executive Director Mr. Vijay Sharma. The said Mr. Vijay Sharma has not been examined as witness on behalf of defendant on the ground that he has resigned from the service of defendant and the suggestion was denied that the defendant has deliberately withheld the said witness Vijay Sharma.
21. Sh. Manoj Khantwal, Assistant Director, Finance in his affidavit Ex.DW1/A deposed that defendant did not intend to confirm the plaintiff's employment, therefore, the plaintiff tendered his resignation by an email dated 11.04.2011 but requested the defendant for making his resignation effective from 10.05.2011 and accordingly full and final settlement of the plaintiff's account was made and concluded on 10.05.2011. He further deposed that it was the plaintiff himself who has filled up the form and signed it as a member and it was he who signed the form on behalf of defendant as Executive Director. He further deposed that the necessary conclusion is that the aforesaid form13 was duly scrutinized by the plaintiff himself for accuracy and only thereafter further forwarded to the RPFC office, Dwarka under his instructions as he was acting in the capacity of the concerned and authorized officer dealing with the subject PF transfer; the plaintiff is Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 15/27 deemed to have followed the correct procedure for PF transfer and under these circumstances, it was strange that the plaintiff himself questioned the correctness of PF transfer procedure which he himself followed and implemented. It is the plaintiff who himself committed this error and defendant could not be make liable for the said procedural error. DW1 has placed on record the form13 as Ex.DW1/2. He further deposed that at the time of handing over of the EPF forms, which the plaintiff himself has signed as the authorized officer of the defendant, he failed to point out the status of HP (previous employer) as an exempted establishment under the EPF And Miscellaneous Provisions Act, 1952 and plaintiff further failed to confirm that the said EPF forms were to be forwarded to his previous employer, HP directly and not to the office of RPFC for onward transmission to the plaintiff's previous employers; in the absence of any such relevant information, the plaintiff's said forms were submitted in the office of RPFC, presumably under his instructions. This deposition of DW1 seems to be suffering from inherent contradiction because on the one hand the defendant is taking the defence that it was the sole responsibility of the plaintiff himself as authorized signatory to send the said PF transfer form to the EPF office and on the other hand they are saying that the plaintiff had not sufficiently communicated the said fact of directly sending the form to Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 16/27 the previous employer and not to the EPF office as a result it was submitted to the office of RPFC.
22. The plaintiff has pointed out in the written arguments that form13 (revised) Ex.DW1/2 clearly mentioned on the right side from the top the name of previous employer i.e. M/s Hewlett Packard India (Sales Pvt Ltd. EPF Trust). He further pointed out that it is clearly mentioned their that the said column has to be filled up if Note (2) above is applicable. The Note (2) reads as under: Note (2): In case the P.F transfer is due from the P.F Trust of an exempted establishment, the application should be sent direct by the employer to the P.F. Trust of the exempted establishment with a copy to the RPFC concerned for details of the Family Pension membership.
23. It was further argued that his digital signatures might have been used by the defendant to show that he was authorised signatory of the said form on behalf of defendant. He further argued that it was not his responsibility to carry the form to the concerned authority/previous employer because the said job was to be done by any other employee of the defendant and not by Executive Director as he was.
24. No reply came forward on behalf of defendant to the above submissions/documentary evidence pointed out by the plaintiff. Mr. Vijay Sharma acting Director has not been examined on behalf of defendant to contradict the version of plaintiff that he has verbally communicated him about the expiry of the period of transfer of the PF to be 31.10.2011. Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 17/27 Moreover, DW1 has admitted that as per procedure laid down under the PF rules in case the PF is due from exempted establishment the duly PF form submitted by employee has to be sent by employer to the PF Trust of exempted establishment. He voluntarily stated that the plaintiff never told in writing that the form was to be submitted to the previous employer and not to the PF office. DW1 denied the suggestion that in April 2011 the plaintiff provided the duly filled up form13 to Sh. Vijay Sharma, the then acting Director and further informed that the HP PF trust was an exempted establishment and that 31.10.2011 was the last date before which form has to be processed and the transfer needed to be completed otherwise there would be loss of interest to the plaintiff. DW1 further admitted that Mr. Vijay Sharma assured the plaintiff that there will be no difficulty in the clearance of the PF. DW1 further admitted in the cross examination that the plaintiff has never asked Mr. Vijay Sharma or any other dealing person to submit the PF form to RPFC, Dwarka. He further admitted that Mr. Vijay Sharma has never come to depose as he has left the service. DW1 denied the suggestion that the defendant deliberately not produced Mr. Vijay Sharma as witness and withheld his evidence which would have benefited the plaintiff.
25. It was argued by plaintiff that the filling up of the right side of the second Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 18/27 column of form13 Ex.PW1/1 makes it crystal clear that the form was to be directly sent to the previous employer and not to the EPF office. It was further argued that the defendant through its employee acted negligently in not processing the transfer form in time and Mr. Vijay Sharma acting Executive Director went on assuring the plaintiff that the PF will be transferred without any hassles.
26. Ld. counsel for defendant on the other hand vehemently argued that there was no negligence on the part of defendant in dealing with the form13 of the defendant. Therefore, the defendant could not be held liable for loss of any interest by the plaintiff due to non transfer of his PF account from his previous employer to the account of the plaintiff with the defendant. It was further argued that in order to make the defendant liable for the claim of the suit amount, the defendant was duty bound to prove gross negligence on the part of defendant. Ld. Counsel for defendant has relied upon the case titled as "Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat (1994) 4 SCC1, Supreme Court of India" wherein it was held in para no.7 as under:
That an action for tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of the invasion of a legally protected interest.
27. In para no.9 it is further held as under: But to be actionable and get redress from court it must assume legal shape by falling in one or the other statutorily, judicially or even otherwise recognised category of wrong.
Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 19/27
28. In para no.10 of the judgment the negligence has been referred as under: 'Negligence' ordinarily means failure to do statutory duty or otherwise giving rise to damage. Winfield has defined 'negligence' as under:
"Negligence" as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. Thus its ingredients are
(a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty;
(b) breach of that duty;
(c) consequential damage to B. According to Dias, liability in negligence is technically described as arising out of damage cause by the breach of a duty to take care.
29. Ld. counsel for defendant has further referred the case titled "Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum & Ors. reported as (1997) 9 SCC 552" it was held as under: That there was no legal liability for negligence unless a legal duty to take care exists. Knowledge of harm likely to occur to the deceased is a prerequisite of liability which must in some sense be foreseeable.
30. It was further held as under: That the negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others.
It was further held as under: That the degree of liability depends upon the degree of mental element. The elements of tort of negligence, therefore, consist in (a) duty of care (b) duty owed to the plaintiff and (c) it has been carelessly breached.
31. In pare no.17 it was further held as under: Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 20/27 Not every careless conduct which causes damage, however, will give rise to an action in tort. The negligence lies in failure to take such steps a reasonable prudent man would have taken in the given circumstances. What constitutes carelessness is the conduct and not the result of inadvertence. Thus negligence in this sense is a ground for liability in tort.
32. It was therefore vehemently argued on behalf of defendant that there was no carelessness in the conduct on behalf of defendant as it was inadvertent mistake of the defendant under the direct supervision of the plaintiff himself wherein the PF transfer form was sent to EPF office and not to previous employer therefore, the plaintiff is not entitled to any reimbursement to the loss of interest amount which is claimed as suit amount.
33. The above discussion shows that the arguments put forth on behalf of defendant are two fold:
Firstly, the plaintiff has failed to inform the defendant that the PF transfer form be sent directly to the previous employer and further that the period of transfer of the PF from the previous employer was expiring on 30.10.2011.
34. Secondly, it was the defendant who has signed the form13 as authorized signatory on behalf of defendant and therefore it was he who has failed to send it to the previous employer and has inadvertently got it sent to EPF office and as such there was no negligence or carelessness on the part of defendant company in not sending the form Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 21/27 directly to the previous employer and instead sending the same to the EPF commissioner.
35. It has already been discussed by him that the deposition of DW1 was found suffering from inherent contradiction because on the one hand showing that it was plaintiff who was responsible as authorized signatory and has sent the form to the EPF office and not to the previous employer, on the other hand subsequently he has deposed in cross examination that the plaintiff has failed to inform in writing that the form was to be sent directly to the previous employer. DW1 has however admitted that the plaintiff has never asked any of the employee of the defendant to sent the form to the EPF commissioner. It is also admitted by DW1 that Vijay Sharma, the then acting Director has assured the plaintiff about the transfer of his PF without any hassles.
36. The plaintiff has joined the defendant company as Executive Director.
By no stretch of imagination it can be believed that it was responsibility of the plaintiff personally to send the form13 on behalf of defendant to the previous employer or to the EPF office. Admittedly, the said job was to be done by some employee of lower rank who might be responsible for taking such forms to the concerned authorities. Therefore, the defence of the defendant could not be established wherein they have tried to assert that it was the plaintiff who was negligent in not sending Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 22/27 the form13 to the previous employee and the form was inadvertently sent to the EPF office where it was lost.
37. Next question arises whether there was any statutory requirement of the defendant to send the form13 duly filled up by the plaintiff after its submission to the defendant ? Section 57 of the Employees PF Scheme 1952 sub Section (2) provides as under: "Where a member of the fund ceases to be employed in one establishment and secures employment in another establishment in the same region, he may apply to the commissioner of the region, in such form as the Commissioner may specify for the transfer of balance of the Provident Fund in his previous account to his account in the new establishment where he takes up the employment."
38. Under the said rules, the form 13 has been prescribed by the EPF commissioner which is clearly mentioned in Section 57 of The Employees Provident Fund Scheme 1952 as under: (1) InterState transfer of members: Where a member of the fund ceases to be employed in one region and secures employment in another region in an establishment to which this scheme applies or which is an exempted establishment or which is not covered under the Act but has a provident fund scheme at its own, he may apply to the commissioner within whose jurisdiction he was previously employed, in such form as the Commissioner may specify, for transfer of balance of the provident fund in his existing account to his account in the other region.
(2) Where a member of the fund ceases to be employed in one establishment and secures employment in another establishment in the same region, he may apply to the commissioner of the region, in such form as the Commissioner Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 23/27 may specify for the transfer of balance of the Provident Fund in his previous account to his account in the new establishment where he takes up the employment.
39. Thus the language of the form13 Ex.DW1/2 shows that the duty of the plaintiff was to submit the form to the present employer for onward transmission to the commissioner EPF or as per (note2 Form13) to the previous employer directly. Once the form has been submitted by the plaintiff, the duty of onward transmission to the concerned authority and in this case the previous employer HP PF Trust was of the defendant and not of the plaintiff. Both the column in left and right of the form13 has been filled up by the plaintiff which shows that the submitted form was to be transmitted by the defendant to the previous employer M/s Hewlett Packard India (Sales Pvt Ltd. EPF Trust) and copy of the same was to be sent to the RPF commissioner, Dwarka. It was thus responsibility and the statutory duty of the defendant in this case to send the form directly to the previous employer. The plaintiff has also succeeded in proving that he has sufficiently and abundantly made it clear to Sh. Vijay Sharma, the then acting Director to send the form directly to the previous employer and that the expiry date of the transfer was 30.10.2011. The deposition of the plaintiff in that regard could not be assailed in cross examination. Sh. Vijay Sharma, the then acting Director has not been produced in evidence on the ground that he left the services of defendant. The suggestion was given by the plaintiff to Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 24/27 DW1 that they have deliberately withheld the said witness because in case he had come to depose, his deposition would have benefited the plaintiff. Admittedly, the defendant has not placed on record any evidence to the effect that Sh. Vijay Sharma was not in the service of defendant or to the effect as to when he has left the service of the defendant. The proof of Vijay Sharma not in service was within the prerogative of the defendant only and they have failed to prove his non availability as witness to rebut the evidence of the plaintiff to the effect that he has informed Mr. Vijay Sharma, the then acting Executive Director of the defendant about the sending of the PF transfer form directly to the previous employer and further that the said date for transfer was expiring on 30.10.2011. This situation shows that the defendant has failed to observe its statutory duty which needs to be observed by an ordinary prudent man in the given circumstances. In the absence of said prudent care on behalf of defendant, the form13 could not be sent directly to the previous employer as a result the PF account/amount of the plaintiff could not be transferred to the defendant and his account with the previous employer could not be credited for the interest because of statutory expiry of three years for which the PF can be kept with the employer under the rules.
40. The plaintiff has thus suffered interest of his PF account of Rs. Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 25/27 4,95,061.16 paise because of the negligence of the defendant. The defendant is therefore duty bound to reimburse the plaintiff for the loss due to the negligence of the defendant.
41. The loss suffered by the plaintiff is calculated by him as under: Total amount of HP EPF 11,001,359.00 Supported by HP EPF Trust statement of account on record.
EPF interest rate for 201112 8.25% Supported by PF rate history
sheet attached from net
(Google search PF interest
rate)
EPF interest rate for 201213 8.50%
Period of loss (1 Nov 201115 May' 12) 6.5 months
Loss amount as of 15 May 2012
th
495,061.16 5 month (1st Nov 2011 to 31st
March 2012) at 8.25% and 1.5
month (1st April15th may 2012)
at 8.5%
Interest for year ending 201213 8.50% 10.5 months (15th may31st
March 2013) 36,820.17
adtnl interest
Loss amount as of 31st March 2013 531,881.33
Interest for year ending 201314 8.75% 12 mths (1st April 201331st
March 2014) 46,539.62
Loss amount as of 31st march 2014 578,420.94
Interest for year ending 201415 8.75% 12 mths (1st April 201431st
Mar 2015) 50,611.83
Loss amount as of 31st March 2015 629,032.79
Interest for year ending 201516 8.80% 12 mths (1st April 201531st
Mar 2016) 55,354.88
Loss amount as of 31st March 2016 684,387.66
Interest for one month and four days 8.80% One month and four days (1 st
April 20164th May 2016)
5855.31
Loss amount as of 4th May 2016 6,90,242.97/.
Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 26/27
42. As per above calculation, the loss of interest till 15.5.2012 when admittedly the PF amount had been transferred to the account of the plaintiff maintained by his current employer comes to Rs. 4,95,061.60 paise only. The subsequent calculation of interest as above and the subsequent amount reflected above is not relevant. After transfer of the PF amount to the current employer, the interest amount has to be calculated in the account of the plaintiff maintained with the present employer. The plaintiff is therefore entitled to recover Rs. 4,95,061.16 on account of loss of interest between 1 st November 2011 to 15th May 2012.
43. The plaintiff has claimed interest @ 12% per annum on the said amount w.e.f. 15.05.2012 till 15.08.2012. The end of justice shall be met in case plaintiff be given interest 8% interest per annum w.e.f. 15.05.2012 till the realization of the decreetal amount.
44. Hence, issue no.2 is accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO.(3):
Relief.
45. In view of my findings on the above mentioned issues, the suit of the plaintiff is decreed for a sum of Rs. 4,95,061.16 paise alongwith interest @ 8% per annum w.e.f. 15.05.2012 till the realization of the decreetal Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 27/27 amount. The claim of the plaintiff for damages of Rs. 5 Lakhs on account of mental harassment is declined because the plaintiff has failed to lead any evidence in that regard.
46. Cost of the suit is also awarded in favour of plaintiff and against the defendant.
47. Decree sheet be prepared accordingly.
48. File be consigned to record room after due compliance.
Dictated and announced in the
open court on 10.05.2016 (RAJ KUMAR CHAUHAN)
ADJ04 (South)
Saket Courts / New Delhi
10.05.2016
Ashwini K Aggarwal Vs. M/s Manufacturer's Association For IT 28/27