KHETRABASI SAHOO vs REGIONAL PROVIDENT FUND COMMISSIONER

THIS is a suo motu revision against the final order of the District Forum, Kendrapada dated 4.10.2000. The complainant moved the District Forum for the inaction on the part of the Provident Fund Commission in not releasing the P.F. Amount claimed by him amounting to Rs. 40,000/-. The District Forum after hearing directed the Liquidator-O.P. No. 4 that he shall put his counter signature on the forms and relevant documents for settlement of the C.P.F. account of the complainant and then send the same to the P.F. Commissioner. Since this order was not complied with by the Liquidator the complainant moved the Misc. Case under Section 27 for order against the Liquidator. In the said Misc. Case 3/01 the District Forum held that there was intentional non-compliance of the order of the Forum by the Liquidator and imposed fine of Rs. 2,000/- on the Liquidator. THIS was disposed of on 27.7.2001. The Liquidator filed an appeal against the said order vide C.D. Appeal No. 583/01. THIS Commission on going through the relevant materials held that the Liquidator was not liable under Section 27 for the reason indicated in the judgment dated 18.7.2003. However, considering the fact that the District Forum in the original case did not quantify the amount the complainant was entitled under the E.P.F., we registered a suo-motu revision and this is how the matter stand at this stage, to judge the correctness or otherwise of the judgment of the District Forum passed in the original case.

THE complainant moved the Forum with a case that while he was an employee under the Baldevjew Weavers Co-operative Society Ltd. Kendrapada he was a subscriber to the C.P.F. bearing account No. OR-887/120 from 1.1.1974 till 1989. After 1989 a new account was opened bearing No. OR/887/488 after the SPINFED-O.P. No. 5 (in Misc. Case No. 3/01) took over the charge of the management. THE said unit was closed on 5.9.1998. THE complainant applied for final withdrawal of the amount on 24.9.1999. But the Liquidator did not put his counter signature on his P.F. paper and returned the same. None else took interest in the matter. Finally on 9.12.1989 the complainant applied to the Commissioner after getting his signature attested by District Labour Officer, Kendrapada. He claimed Rs. 40,000/- towards the P.F. amount besides interest. The Commissioner and their functionaries filed a joint written version in which admitted that the complainant joined the fund on 1.1.1974 with account No. OR/887/120 and ceased his Membership on 1.2.1989. It is their case that by cheque dated 11.7.1989 they settled the claim for Rs. 6,840/- and Rs. 890/- towards family pension vide cheque dated 11.7.1989. The complainant received the cheques on 21.7.1989. The second P.F. Membership began during 1991 with the P.F. account No. OR/887/488. But the establishment was a chronic defaulter in not remitting the amount. However, a part of the payment was made to the complainant i.e., Rs. 2,721.00 under cheque No. 82686 dated 12.4.1999. It is further their case that the complainant again moved in the month of December, 1999 for final settlement of the claim which was without signature of the employer i.e., the Liquidator for which the claim was returned to the complainant. It was their case that the claim could only be settled if the Liquidator could attest and forward the claim application of the complainant and deposits all arrear dues.

The District Forum in the judgment held that the case was maintainable before the Forum, as the complainant was an employee under the Co-operative Society, and a subscriber to the E.P.F. account under the Commissioner. With regard to the merit of the case, the Forum held that since the P.F. papers was not counter signed by the Liquidator the Commissioner or for that matter any of the functionaries would not be liable for the delay in withdrawing the final settlement of the claim. It, however, held that the Liquidator was responsible for the delay in final settlement of the claim and accordingly directed the said Liquidator to put his counter signature on the required papers.

HEARD the complainant in person and Mr. Samantaray the learned Counsel for the Commissioner and Mr. L. Misra the learned Counsel for the Liquidator. Perused the materials on record. Mr. Samantaray has drawn our attention to the materials on record and submitted that in fact the Commissioner did not receive the duly signed pension papers of the complainant counter signed by the Liquidator. Therefore, no question of any deficiency would arise. That apart he submitted that because of the default of the outstanding contribution both of the employer and the employee, the Commissioner has initiated certificate proceeding vide 4/97 and 30/99 to the tune of Rs. 5,35,721/- and Rs. 4,46,660/- respectively and so much so the Bank account of the Society has been seized and only a sum of Rs. 1,531.82 p. has been realised by way of attachment from the Bank account. Mr. L. Misra the learned Counsel for the Liquidator on the other hand submitted that since the Society was under loans from the OSFC, the OSFC seized all documents and papers for which the Liquidator was unable to process the application of the complainant. The learned Counsel for the SPINFED submitted that the Organisation is not liable since it was only the apex body and all other administrative transaction was carried on by the Liquidator for and on behalf of the Society.

IT is found from the impugned order of the District Forum as well as the case of the Commissioner that they have paid a sum of Rs. 4,640/- in respect of account No. 887/120, the amount due from 1.1.1974 to 1.2.1998. Again the second spell of the payment of Rs. 2,721/- in respect of the account No. OR/887/488 made on 12.4.1999. IT is the case of the Commissioner that after that in the month of 12/99, the complainant again applied for final settlement. In view of this admitted position, it is clear that on two occasions in respect of the two accounts of the complainant the Commissioner disbursed the above amount. In order to settle the dispute for all times to come by our order dated 5.2.2003 we had directed the E.P.F. Commissioner to file an affidavit with reference to their records as to the total amount if any deposited with the Commissioner during the period from 1974 to 1998. No such information has been furnished by the Commissioner till date. An affidavit has been filed by Mr. Samantaray stating that the Commissioner has finally settled the account of the complainant. But nothing is mentioned about the details of the deposit in complainant accounts. This we directed because of the Society has gone on Iiquidation and Unit has been seized by OSFC. The complainant has precisely claimed that he is entitled to receive Rs. 12,000/- by 1988 and the Commissioner paid only Rs. 5,440/- there by keeping back Rs. 6,560/- and that amount with interest would be Rs. 22,000/- till 1989. Since the Commissioner have not filed any document to indicate as to how and on what basis they paid the amount as stated by them an adverse inference is drawn where by we accept the case of the complainant to be correct. Accordingly we direct the Commissioner to pay the said amount of Rs. 6,560/- along with interest at the rate of 9% per annum till payment is made. This amount we hold the complainant is entitled. So far as the period after 1989 is concerned this relates to the new account number bearing No. OR/887/488 and the Commissioner''s case is the amount under this account has been partly settled for Rs. 2,721/- on 8.4.1999. For the reasons given in the forgoing paragraphs we accept the case of the complainant that he is entitled to Rs. 5,979/- till 1999 and this relates to the contribution made by him and the employer for the period up to 1994. We direct the Commissioner to pay this amount along with interest at the rate of 9% per annum on this amount till payment. So far as the period from 1994 onwards till 5.8.1998 is concerned, the complainant claims Rs. 8,000/- besides interest. The Commissioner''s case is no contribution has been received from the employer and steps have been taken by way of certificate proceeding against the establishment. We accept the case of the Commissioner that after 1994 till 1998 they have not received any contribution and the moment they receive the same, the complainant would be entitled to the same for which we do not give any direction for the present. But since the documents of the Society have been seized by the OSFC and presently the Liquidator already appointed we hold both the OSFC and the Liquidator as jointly and severally liable to furnish to the complainant the exact figure that represents the contribution of the complainant as well as that of the employer during this period from 1994 till closure on 5.9.1998 to which the complainant would be entitled to. This information should be furnished to the complainant within a period of 3 months from the date of communication of the order. This we are directing since the complainant is not in possession of the documents and it is not possible on his part to know the exact amount that has been deducted by the employer during this period or not and if deducted what is the exact amount that has been deducted from his salary so that equal of the same amount would be calculated towards the contribution of the employer. This figure should be furnished to the complainant by the OSFC and the Liquidator. The amount so quantified if not sent to the Regional Provident Fund Commissioner would be liable to be paid from the assets of the Society like any other liability. We make both jointly and severally liable to furnish the account of the complainant. This should be paid to the complainant from the assets of the Society. Information by both should be furnished within three months from the date of judgment. With this direction the suo motu revision is disposed of. No cost. Suo Motu Revision disposed of.