Employer conspired with reg. p.f. comm
V.N.K. MENON
(Querist) 10 August 2011
This query is : Resolved
I AM PARTY IN PERSON. History of the case: A person had made a complaint to Central P.F. Comm . which in turn was sent to Reg. P.F. Commissioner (RPFC) to take action u/s 14-B of EP & MP Act against employer for not having deposited p.f. contributions (employee + empr) due in the respective months from January 2002 to June 2002. Instead of sending notice to employer RPFC conspired with certain officials and employer deposited only the amount due and payable had it been deposited in the respective months of 2002. No interest as per S. 7Q of EP & MP Act was not deposited. The person had made complaints to CPFC, but no action was taken even though reminders were sent . As such made complaint to Secretary Labour, Govt. of India, in April 2011 – again no action was taken.
QUERY: (A) If I file a case u/s 8, 13(d)(1) of Prevention of Corruption of Act & S.120-B of IPC, will it survive. (B) If yes, whom should I make opposite parties (4) Whether Delhi has jurisdiction?
I am Applicant/ PRTY-in-Person. Shall appreciate a reply, pl. Tk U.
V.N.K. MENON
Raj Kumar Makkad
(Expert) 10 August 2011
A. Yes. It shall definittely survive. You can also go to High Court and may file a writ against all persons involved therein including the employer, the concerned EPF officials including RPFC, CPFC, EO and Accounts Section Incharge etc.
B. Already replied.
C. Yes as the office of CPFC is in Delhi.
A K CHANDOK
(Expert) 11 August 2011
Generally,In cases where dues are not deposited in time,the same are to be assessed first u/s 7-A and once the same are deposited, further action for levy of damages u/s 14-B as well as of interest u/s 7-Q is taken.
In this case, I will suggest that since dues have been deposited, RPFC will definitely take above actions in near future. IN case of any doubt about less deposits/rescued amount,one can make complaint to the Chief Vigilance Officer of EPFO at New Delhi who will get the matter investigated.
Chandok
Ex-RPFC
Kirti Kar Tripathi
(Expert) 11 August 2011
The best remedy, you have is to approach High Court seeking mandamus against the PF department to recover the entire dues from employers and deposit the same in employees accounts.
V.N.K. MENON
(Querist) 20 September 2011
Pl. suggest any changes in the following Petition, if I prefer to file a criminal case.Of course Index and supporting Affidavit shall be made. I am affected workman. Tks in anticipation.
=========================================
BEFORE HON’BLE …………………………………………………………………………………….
SAKET, NEW DELHI
IN ………………………………………………./2011
V.N.K. Menon
……………………………… …. PETITIONER – IN -PERSON
V/s
1)M/s Malana Power Co. Ltd (MPCL)
40-41, Community Centre
New Friends Colony
New Delhi-110065
(Through its Director-cum-Chairman)
2)Regional Provident Fund Commissioner (RPFC)
Bhavishyanidhi Bhavan
Block 34
SDO Complex
Kasumpti
Shimla (H.P.)-9
3)Accounts Officer
RPFC’s Office, Block
Bhavishyanidhi Bhavan, Block 34
SDO Complex
Kasumpti
Shimla (H.P.)-9
4)Central Pro vident Fund Commissioner (CPFC)
Bhavishyanidhi Bhavan
14- Bhikaji Cama Place
R.K. Puram
New Delhi …… RESPONDENTS
Application u/s under Section- 24, 25, 406 & 120(B) Indian Penal Code, r/w Section- 8, 13(d) of Prevention of Corruption Act 1988, Section- 7Q of E.P.F. &M.P. Act 1952
-------
RESPECTFULLY SHOWETH
(A) This Hon’ble Court has absolute jurisdiction to try this case because it is an offence committed by Respondent No. 1 u/s 24, 25 and 4065 IPC read with Sec. 8, 13(d) of Prevention of Corruption Act 1988, 120-B IPC & 7Q of E.P.F. & M.P.Act 1952 and also because of the fact that Respondent -1 and 4 have their controlling offices in Delhi.
(B) Background: That the appellant was a workman in the employment of Respondent No. 1 till his illegal termination on 17th July 2002 and a case was filed under the provisions of Industrial Disputes Act 1947 before the Hon’ble Labour Court, Kakardooma, Delhi, duly referred by the Govt. of Delhi, which altogether is a different case. The Ld. Labour Court found that the termination illegal and unlawful and passed Award on 1st August 2006 in appellant’s favour (a) for reinstatement with (b) full back wages and (c) continuity of service with (d) all consequential benefits. The Appellant had requested the Implementation Cell of Delhi Govt. for implementation of Award after its publication and a notice was served upon Respondent No. 1, which was challenged by Respondent No. 1 Co. before the Hon’ble High Court of Delhi by way of a Writ Petition in November 2006. Proceedings were held and in January 2009 as per a consented order of the Hon’ble High Court the appellant was reinstated by Respondent-1 [at their Transmission Line Office, Kullu (H.P.) ] but wages are being given by Respondent-1 which was decided by the Court for the purposes of Section 17-B of I.D. Act and not at last-drawn wages.. The matter has not reached finality.
(1) That following admissions had been made by Respondent No. 1 in their letter No. MPCL:HRD:48 dated 17th September 2002 ( attached as Annexure-P1):
(a) It is also admitted in the first paragraph on page …… of Annexure-P1 that the Appellant had attended the office from January to June 2002, which is reproduced below:
“Your claim for earning under the Head Basic salary @ Rs. 8625/- p.m., HRA Rs. 4313/- p.m. & Provident Fund RS. 1035/- p.m. are admitted in full in consonance with your attendance record for the month of January 2002 to June 2002 from the date you were entitled to be paid, details of which are given subsequently herein under”.
(b) It is also admitted by Respondent No. 1 in 3rd paragraph page ………..of the said Annexure-P1 that:
“You are aware that as per rules, your contribution as well as contribution of employer towards Provident Fund is to be deducted at source & is to be deposited with the Regional Provident Fund Commissioner concerned.”
(c) On page No. 4 in the statement : “ 4. Summary of Earnings“ Respondent -1 clearly admitted the quantum of that P.F. contributions which had become due and payable in the respective months of year 2002 totalling to Rs. 10,158/-.
It is humbly submitted that it is the statutory duty of Respondent No. 1 company to deposit the p.f. contributions in the manner that payment accrued, due and payable of a particular month is to be deposited on or before 15th of subsequent month, i.e. January contribution is to be deposited on or before 15th of February; February contribution is to be deposited on or before 15th of March and so on. The Respondent No. 1 did not comply with law by entering into conspiracy with Respondent No. 2 & 3 for gains as stated below.
(2) Firstly cause of action arose as it was the statutory duty of Respondent No. 2 and 3 to make periodic checking of records of a firm for compliance of law, but on the other hand they did not take necessary action of checking the records of Respondent No. 1 (MPCL) and conspired and colluded and shown undue favour to Respondent No. 1, albeit they were informed by the Petitioner through a letter sent to Respondent No. 2 by Regd Post bearing No. 1421 on 26.11.2002 attached as Annexure-P2. It has also come to know that certain employees of Respondent-1 company are related to people of Respondent -2 and/or 3. From the following paragraphs it is evident that Respondent No. 2 has shown undue favour to Respondent No. 1 Company and helped in its fraudulent acts obviously for benefits.
(3) Cause of action again arose when Petitioner came to know after reinstatement that his provident fund contributions had not been deposited for the period he worked during January 2002 to June 2002, as admitted by Respondent -1 as enumerated in paragraph 1 above. In the circumstances, Petitioner had to request Respondent No. 4 (CPFC ) vide letter dated 10.12.2009 by Speed Post bearing No. EE705880005 IN (attached as Annexure-P3) for recovery u/s 14-B of EPF& MP Act 1952 and in turn it was passed by Respondent No. 4 (CPFC) to Respondent No. 2 (RPFC) for necessary action.
(4) Cause of action again arose:
a) when after receipt of Complaint which was redirected from the office of Respondent No.4 (CPFC) as stated in paragraph-1 (Annexure-P3), Respondent No. 2 & 3 (RPFC) obviously contacted and conspired with Respondent No. 1 (MPCL) and Respondent No.1 said to have deposited a total sum of Rs. 10,146/- after 8 years {consisting of Employee’s share Rs. 5078/-+ employer’s share Rs. 5078/- (2277+ 2801) } on 21.04.2010 [ reference letter dated 10th June 2010 from RPFC to CIC attached as Annexure- P4 which].
The said amount of Rs.10,146/- as stated by Respondent-2 & 3 (RPFC) in Annexure-P4 represents only the amount if it had been deposited promptly in the respective months of year 2002 [ as stated in paragraph 1(c) above] and thus Respondent No. 2 & 3 has shown undue favour to Respondent No. 1 (MPCL) by refusing to prosecute Respondent No. 1 company for obvious gains as stated above. Thus Respondent No. 1, 2 & 3 are jointly and severally guilty under Section-8, 13(d) of Anti Corruption Act 1998 and conspiracy u/s 120(B) IPC. It is submitted that a conspiracy cannot take place without undue benefits/ reward.
b) In the said letter Respondent-2 mislead the CIC when they stated that they had not received Petitioner’s RTI application through Speed Post. But the letter dated 21.07.2010, attached as Annexure –P4(Colly), from SPM, Kasumpti, Shimla, Post Office proves to the contrary and it goes without saying that Respondent-2 is a hardened culprit.
(5) Therefore, it proves beyond doubt that Respondent No. 1 Company deliberately, intentionally and with ulterior motive cheated the Petitioner for illegal gains as they did not deposit the contributions for all these years, due and payable in the relevant months of the year 2002 by entering into conspiracy with Respondent No. 2 & 3. Objective of conspiracy is obviously for gains and therefore Respondent No. 1, 2 and 3 attracts punishment under Section-24 & 25 IPC for dishonesty, Section-120(B) IPC for conspiracy & Section 406 IPC cheating read with Sec. 8 & 13(d) PC Act 1988.
(6) Respondent No.1 is liable to pay interest @ 12% p.a. as per Section 7Q of the EPF & MP Act 1952 but with the conspiracy/ connivance of Respondent No. 2 & 3 did not deposit interest for default and thus inflicted considerable loss and damage to the Appellant and thus made illegal gains.
(7) That it shall not be out of place if it is added that Respondent No. 1 Company who is the holding company of M/s A.D.Hydro Power Ltd , Manali, and is managed by the same people helm have a proved bribing culture as FIR, bearing No. 03/2011 dated 09.02.2011 u/s 8, 13(d) of Anti Corruption Act 1988 and 120(B) IPC which is in progress before Ld. Special Judge Kullu (H.P.)has been filed by State Anti Corruption Bureau against Respondent No.1 Company & Ors. after having unearthed irrefutable evidence arrested some management people for custodial interrogation and is in the process of filing charge-sheet.
It is also pertinent to add that there are several poor and hapless employees either working or worked at their Transmission Line office [where the Petitioner is working as stated in (B) above] of the management at Shamshi, Dist. Kullu (H.P.) who is not paid the statutory provident fund and ESI benefits that too with the connivance and conspiracy of Respondent 2 and 3. It shall also not be out of place to state that the management of Respondent No. 1 is chronic law breaker as has been reported in local Hindi papers.
(8) The Petitioner had sent several e-mails and letters by Speed Post to the ultimate officer responsible for the conduct of business of Respondent No. 1 Company, i.e. Director cum Chairman, who has been keeping silence over the matter which establishes his admission that all these frauds are committed with his knowledge, approval and consent and as such attracts punishment. For brevity two communications sent to the said officer dated 11.04.2011 and Reminder dated 22..07.2011 are attached as Annexure-P5 and P5 (Colly).
(9) Again fraud seems to have been committed by the management of Respondent -1 Co. Although p.f. contributions had been deducted from the wages of Petitioner, there is no congruency in the account numbers given in salary slips. For example salary slips for the month of September 2009 and February 2010 bears same P.F. Account number while P.F. Account No. in salary-slip of August 11 , 2011 differs. Copy of these 3 slips are attached as Annexure-7 (Colly).
Prayer
In the facts and circumstances, it is humbly prayed that in the interest of justice this Hon’ble Court may please:
(a) award deterrent punishment to Respondent No. 1, 2 & 3 as contemplated in Section 24, 25 & 406, 120-B IPC, and S. 8 & 13(d) of P C Act 1988.
(b) relief may kindly be granted to Petitioner u/s 7Q of EPF & MP Act 1952.
(c) direct Respondent -1 management to inform the correct status of p.f. contributions deposited in Petitioner’s account since February 2009.
(d) any other action which this Hon’ble Court deems fit and proper against the Respondents and in favour of Appellant.
APPELLANT – IN PERSON
