BALLARPUR INDUSTRIES LTD. vs P.K.PADHY

THIS is a revision against the order dated 28.7.2001 of the District Forum, Koraput at Jeypore, directing issuance of non-bailable warrants of arrest against the present appellant for non-compliance of the order of the District Forum in C.D. Case No. 50 of 1992 and thereafter the order of this Commission in C.D. Appeal No. 300 of 1994. The specific finding, according to the District Forum, in the impugned order is that the appellant as the employer was bound to furnish information as to the share of provident fund amount contributed by the employer and deposited with the E.P.F. Commissioner. Since this order was not complied, C.D. Execution Proceeding No. 4 of 1998 was initiated by the complainant-respondent in which the above impugned order was passed.

THE complainant''s case is he was serving originally under Sewa Paper Mills Ltd. which was opposite party No. 3 in the original C.D. case. According to him he resigned from service on 31.3.1991 and wanted to withdraw his provident fund deposit. But this he could not do in absence of any information as to how much amount had been credited to his provident fund account. In the District Forum he made a prayer for directing the Provident Fund Commissioner to supply the copy of the accounts statement from the beginning of his service career till end and also for a direction to his employer to pay their part of the contribution of the provident fund. The Provident Fund Commissioner who was opposite party No. 3 filed counter stating that the Management of opposite party No. 3, i.e. Sewa Paper Mills Ltd. did not submit any report in respect of the portion of the provident fund paid by them and, therefore, it was not possible on the part of the Commissioner to supply any statement. Opposite party No. 3 remained ex parte in that case. The District Forum held that the complainant was a consumer and passed an order against opposite party No. 3 that it was to supply the information to the Court as to the amount deducted towards provident fund contribution and remitted to the E.P.F. Commissioner.

The present petitioner, Ballarpur Industries was not a party to the original proceeding, but since from June, 1991 it stepped into the shoes of Sewa Paper Mills Ltd. and thus was the successor with regard to assets and liabilities, being aggrieved by the said order had filed C.D. Appeal before this Commission. The plea of the present petitioner was that Sewa Paper Mill became sick and proceedings were taken up under the provisions of the Rehabilitation of Sick Industrial Companies (Special Provisions) Act, 1985. Under a scheme it was settled with various conditions. According to the present appellant Sewa Papers Ltd. for all practical purposes was closed on 31.10.1987, which was taken as the last working day in respect of the employees of the Sewa Papers. Therefore, it was the contention of the present petitioner that the complainant could not be an employee of the erstwhile Sewa Papers after 31.10.1987 and, therefore, if he was not an employee, he was not entitled to any salary and the question of payment of contribution would not arise.

THIS Commission held that whether the complainant should be considered an employee after 31.10.1987 and for that matter what pay or remuneration he would be entitled, was a matter for other authorities to judge and the same was not within the scope of the Consumer Forum. THIS Commission also held that though the District Forum directed opposite party No. 3, Commissioner to furnish information about the deposit of money deducted from the salary of the employee, viz., complainant, the aforesaid direction did not indicate as to the period for which the employer was liable to pay his contribution and further the Forum did not decide as to whether the complainant would be entitled to any contribution from the employer during the period when Sewa Papers remained closed as per the version of the present petitioner. It upheld the finding of the District Forum awarding cost because of the inconvenience and suffering of the complainant, by approaching the Forum for his remedies and this Commission did not interfere with the order. We have heard Mr. J. Das, the learned Counsel for the revision petitioner and Mr. K.N. Jena, learned Counsel for the complainant and we have gone through the various documents and materials on record. The learned Counsel for both sides have advanced extensive arguments which we have considered. We would like to dispose of this revision in the following manner.

ADMITTEDLY, the present petitioner was not originally a party in the case before the District Forum. But the petitioner has accepted the liability of Sewa Papers by stepping into the shoes of Sewa Papers. Its case was referred to BIFR under the rehabilitation scheme. It is proved from the materials on record that Sewa Industries was closed with effect from 31.10.1987. The complainant resigned from the service from 31.3.1991. The crux of the point for decision is whether the complainant is entitled to the contributory provident fund for the period from 1.11.1987 till 31.3.1991, i.e. for 3 years 4 months. We are informed by the petitioner that the matter of fixation of the wage of the complainant was taken up and it has already reached finality after the judgment by the authorities under the Minimum Wages Act for this period. This is not disputed by Mr. Jena and it is also not further disputed that the complainant for this period received a sum of Rs. 22,000/- towards his arrear pay. Now the next point remains that once he has been paid wages or salary for this period, certainly he was also supposed to contribute towards his Provident Fund which was to be done by the employer. In the execution proceeding from out of which the present revision arises the complainant has given a calculation sheet mentioning therein the subscription particulars, i.e. subscription to E.P.F. Rs. 6,182/- and interest, penalties and cost Rs. 43,818/-, total Rs. 50,000/-. The District Forum did not pass any order on this, though the complainant had prayed for a relief vide the prayer portion in the execution proceeding. Mr. Jena strenuously urged that this being a proceeding under Section 27, the revision has been filed only to harass the complainant and secondly, they have not complied with the direction of the District Forum as well as of this Commission to furnish information. Having heard Mr. Jena we are of the view that directing the present petitioner to furnish the accounts in respect of the Provident Fund would be an idle exercise of power, because the main relief of the complainant is that he should get his contributory provident fund amount. Once the wages have been fixed by the Appropriate Authority vide judgment in Civil Misc. Appeal No. 39 of 1993 quantifying the wage for this period at Rs. 22,550/- there should not have been any difficulty on the part of the District Forum to give an order as to what should be the contributory provident fund calculated at the prescribed percentage on this amount of salary, i.e. Rs. 22,550/-. In the execution proceeding the complainant submitted a claim where he mentioned the subscription at Rs. 6,182/-. Before this Court he has filed another calculation sheet (page 27 of the record). This is for Rs. 5,447,40. We accept this calculation sheet to be correct, since there is no objection to this from the side of the present petitioner and that apart, we find it to be also reasonable calculation with 12 per cent interest per annum.

THE present petitioner was also the appellant in the case before the District Judge who disposed of the appeal under the Payment of Wages Act and the present petitioner has been made liable to pay that amount. THE said appeal was disposed of by order dated 26.3.1994. THEreafter the present petitioner did not move any higher authority. THErefore, it was incumbent on their part to also calculate the contributory Provident Fund on the basis of this amount which was the wage component. This they have delayed and, therefore, it would be appropriate to award interest on this amount which we calculate at Rs. 5,000/- (consolidated), because of the delay in settling the claim.

THE District Forum has not considered the case in the light of our judgment above. We set aside the order of the District Forum and dispose of this revision with a direction that the present petitioner shall pay to the complainant Rs. 5,447.40 plus further Rs. 5,000/- (= Rs. 10,447.40) within a period of one month from the date of communication of this order. We direct that until expiry of this period there shall be stay of further proceeding in execution proceeding. If the amount is not paid within that period, the complainant may proceed with the execution proceeding that is pending before the lower Forum, or else, on payment the said proceeding shall be dropped on satisfaction. Revision is disposed of. Revision disposed of.