Provident Fund Commissioner vs SURAJ BAI

THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 26.12.2001 of the District Consumer Disputes Redressal Forum, Rajnandgaon in Case No. 44/2001 directing the appellant to pay to the complainant/respondent the sum of Rs. 7,590/- towards her E.P.F. dues with interest and cost.

RELEVANT facts no longer in dispute are that the complainant/respondent was a Bidi Worker. Deductions towards employees'' Provident Fund under provisions of Employees'' Provident Fund Act, 1952 were made from her salary. She retired on 20.11.1996 and filled up the prescribed Form No. 19 for payment of the Employees'' Provident Fund due to her. In that form she opted for being paid by Money Order. The form was duly submitted by the complainant/respondent to the appellants. The complainant/respondent averred in her complaint that though as per Employees'' Provident Fund Scheme, 1952, the amount of her Provident Fund should have been paid within a period of one month as has been provided in Rule 72(7) of the said Scheme. However, the amount was not paid to her so far despite efforts, nor any intimation was sent to her regarding the cause of non-payment. The complainant, therefore, submitted an application to the appellant for payment of her dues on 14.12.2000, with copies to different authorities. The Employees Provident Fund Organisation, New Delhi by its letter dated 9.2.2001 directed the appellant No. 2 to make payment. However, according to the complainant/respondent the appellants have failed to pay the amount payable to her towards her Employees Provident Fund.

According to the reply of the appellants the complainant in her application opted for payment of the amount by Money Order, accordingly Rs. 7,590/- payable to her as her dues of Employees'' Provident Fund, was sent to her on 3.5.1997 by Money Order alongwith amounts of E.P.F. payable to other persons. The Money Order as above was not returned back to the appellant''s Regional Office at Indore. It was accordingly, averred by the appellants in their reply that the Money Order as above was presumably received by the complainant/respondent, and no further amount was payable to her.

THE learned District Forum in the impugned order has held that the appellants have failed to prove that they had paid the amount of Rs. 7,590/- to the complainant/respondent. Accordingly it was held that there was a deficiency of service on the part of the appellants. It was, therefore, directed that the amount of E.P.F. with interest @ 10% per annum thereon be paid by the appellants to the complainant/respondent. The learned Counsel for the appellants during arguments reiterated their stand as above, and submitted that the appellants from their Regional Office at Indore remitted the amount by Money Order to the complainant/respondent. Her name appears in the list of money order sent by the appellants. It was also urged that since the money order sent to the complainant/respondent never returned back to the appellants'' Regional Office at Indore, it should be presumed that the same was duly delivered to the respondent. Appellants'' learned Counsel also submitted that he has also filed an application under Order 41 Rule 27, C.P.C. with a document showing list of persons to whom money orders have been sent by the Regional Office of the appellants. A postal acknowledgement is endorsed thereon. It was urged that the list as above indicates that the appellants had sent the amount to the respondent by money order. It was further submitted that the amount having been sent by the appellants to the complainant/respondent they should be discharged from liability to pay the same again and the order of the District Forum deserves to be set aside. Learned Counsel for the complainant/respondent however, supported the impugned order. It was submitted that the list of persons to whom the amounts were allegedly remitted would not support the contention of the appellants that the amount was received by the complainant/respondent or that amount of money order was duly handed over to the complainant/respondent. Therefore, the District Forum was justified in holding that the appellants have failed to discharge their burden of proving that the amount of Employees'' Provident Fund was duly paid to the complainant/respondent.

IN view of the contentions as above, the main question that arises for consideration is, as to whether the appellants have substantiated their averments that the amount of Employees'' Provident Fund has been duly paid to the complainant/respondent ? Undisputedly, the appellants were under an obligation to pay the amount of Employees'' Provident Fund dues to her after she left service . There is also no dispute that a sum of Rs. 7,590/- was payable to the complainant/respondent towards her dues of E.P.F. on 20.11.1996 when she left service. According to the appellants the amount as above was sent by Money Order. It was submitted that as per their practice Money Orders of several persons are handed over to the Post Office by including their names in the list prepared for the purpose. In this appeal an application under Order 41 Rule 27, C.P.C. has been filed by which copy of the said list dated 23.5.1997 has been filed, which mentions names of several persons including that of the complainant/respondent to whom money orders were purportedly sent by the appellants. The appellants have, however, not produced any money order receipt. There appears to be an endorsement on the said list showing that Post Office Receipt No. is 4905 dated 24.5.1997 was issued. However, it is not clear as to who put that endorsement on the said list. As noticed earlier, no separate postal receipt has been filed to support the averments of the appellants that the money order was actually despatched to the persons listed in the said document. Affidavit of the person who had put the endorsement of receipt of money orders has also not been filed. The above document, therefore, at best would show that money orders for some persons were prepared and handed over for being despatched but the said list would not indicate that the money orders were actually despatched, or that the money order was remitted on the address of the complainant/respondent. It is also not established that the money order was received or handed over to the complainant/respondent. The acknowledgement of the money order form or the certificate from the Post Master at the address of the complainant/respondent or any other document has not been produced, to support the inference as above. Accordingly, merely because the name of the complainant finds place in the list produced by the appellants, no presumption arises that the amount mentioned therein was actually received by money order by the complainant/respondent.

IT is clear that it was the burden of the appellants to substantiate their averments that the amount was duly despatched by money order and was received by the complainant/respondent. They have not furnished adequate material to substantiate the averments as above. Consequently, it appears that the District Forum was justified in holding that the appellants have failed to discharge their burden of proving that payment was made by the appellants to the complainant/respondent. Since it was obligatory for the appellants to prove payment of E.P.F. dues to the respondent and since they have failed to satisfactorily discharge their burden, they cannot be absolved from the liability to pay the said amount to the respondent.

THE learned Counsel for the appellant during arguments also tried to submit that the complaint was time-barred. However, it is noticed that the complainant had been persistently trying to get her E.P.F. dues from time to time and the appellant No. 2 was also directed by the Employees Provident Fund Organisation by its letter dated 9.2.2001 to attend to the complaint of the respondent. THEre is no allegation by the appellants that they had denied the claim of the respondent or intimated the complainant/respondent regarding the payment of amount by money order. THErefore, the matter was never concluded and the complaint having been filed on 24.4.2001, cannot be treated as time-barred. THE finding as above of the learned District Forum, therefore, is justified and calls for no interference. Consequently, this appeal has no substance and is accordingly dismissed. Appeal dismissed.