Debasish Ghosh vs Regional P.F. Commissioner & ...
2009 Latest Caselaw 4204 Del

45.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 3345/2005

                                 Date of Decision: 20th October, 2009

      DEBASISH GHOSH                                        ..... Petitioner

                         Through Ms. K.B. Hina, Advocate.
                   versus

      REGIONAL P.F. COMMISSIONER & ORS.                 ..... Respondents

                         Through Ms. Reema Khorana, Ms. Ankit Khushu,
                         Advocates for respondent Nos. 1 and 2 along with
                         Mr. Arun Batra, from Department.
                         Mr. Bhuvnesh Singh Chauhan, Advocate for
                         respondent Nos. 3 and 4.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

      1. Whether Reporters of local papers may be
      allowed to see the judgment?
      2. To be referred to the Reporter or not ?
      3. Whether the judgment should be reported
      in the Digest ?


                               ORDER

1. Learned counsel for the respondent- Regional Provident Fund

Commissioner seeks and is granted permission to place on record affidavit

of Regional Provident Fund Commissioner, Mumbai. The petitioner, Mr.

Devashish Ghosh, was an employee of Wimco Seedlings Limited, a

subsidiary of Wimco Limited. Prior thereto, the petitioner was working in

Bhadra Chalam Paper Boards Limited till 1987.

W.P. (C) No. 3345/2005 Page 1

2. In 1989, Wimco Limited opened a Provident Fund account with the

Regional Provident Fund Commissioner, Delhi and was allotted PF account

No. DL/9146/01. On 11th August, 1994, Regional Provident Fund

Commissioner paid Rs.45,068/- to the petitioner as the total amount

standing to the credit of the petitioner. Immediately after receipt of the

statement, vide letter dated 14th July, 1994 the petitioner informed the

Regional Provident Fund Commissioner that Rs.65,566/- was deposited by

M/s Wimco Limited at the State Bank of India, Bombay on 8th July, 1989

in favour of the Regional Provident Fund Commissioner being the amount

transferred by M/s Bhadrachalam Paper Boards Limited on account of

provident fund deposited with their trust and transferred to M/s Wimco

Limited. Regional Provident Fund Commissioner has not specifically

disputed the said letter in their counter affidavit. No reply was sent by

Regional Provident Fund Commissioner to this letter. The petitioner wrote

another letter dated 9th January, 1996 stating that Rs.65,566/- along with

interest has not been released to the petitioner by the Regional Provident

Fund Commissioner and the said amount was deposited by M/s Wimco

Limited in the State Bank of India Bombay on 8th July, 1989 in the

provident fund account No.DL/9146/01. By letter dated 24th January,

1996, Regional Provident Fund Commissioner informed the petitioner that

no money had come into their account on account of transfer. The

petitioner was asked to furnish details as to how the money was

W.P. (C) No. 3345/2005 Page 2 transferred with draft number along with copy of Annexure-K so that

further action could be taken. By letter dated 6th May, 1996, the

petitioner reported the relevant facts enclosing therewith photocopy of the

records available with him, which included the challan of deposit of

Rs.65,566/- in State Bank of India, Bombay along with Annexure-K as

transfer certificate. Other letters were written on 21st May, 2009, 18th

May, 2003 and on 4th September, 2004. No response or reply to the said

letters were received. The Regional Provident Fund Commissioner in his

counter affidavit has not stated what steps are taken by them after the

said letters along with the photocopy were received to trace out the said

amount in their accounts and whether any deposit was made in their

accounts at State Bank of India, Bombay.

3. Left with no option, the petitioner issued notice dated 4th

September, 2004 under registered post to which the respondents denied

their liability vide letter dated 15th October, 2004. In this letter, the

respondent-Regional Provident Fund Commissioner stated that the cheque

of Rs.65,566/- stated to have been deposited towards past accumulations

in State Bank of India, Bombay had not been received in the provident

fund account or Regional Provident Fund Commissioner, Delhi and instead

must have been deposited in the Regional Provident Fund Commissioner's

account, Bombay. In view thereof, it was difficult to release the amount

from Delhi account. The letter reads as under:-

W.P. (C) No. 3345/2005 Page 3 " This is with reference to your notice dated 4.9.2004 regarding payment received as transfer in from MH/801 to DL/9146/01 for Rs.65,566.00.

It has been observed from the facts stated in your notice that the amount of EPF past accumulations had been transferred from Wimco Ltd. (MH/801) to WIMCO SEEDLINGS LTD (DL/9146/1) in the member's account by way of a cheque No. 015080 dated 8.7.1989 drawn on Grindlays Bank, D.N. Road, Bombay. However, the said cheque has been deposited in SBI, Bombay. It is thus not been received in the PF A/c of the RPFC Delhi and instead it must have been deposited in the RPFC, Bombay's A/c. In view of this it is difficult to release the amount from the RPFC Delhi's A/c and credit it to the member's A/c. Hence you are advised to contact the Bombay office of EPFO and arrange to transfer the amount to the RPFC Delhi's A/c."

(emphasis supplied)

4. The said stand has been reiterated in the counter affidavit. In

addition, the respondent Regional Provident Fund Commissioner has taken

the plea that M/s Wimco Limited had made a mistake by sending the

payment to State Bank of India, Mumbai Branch. It is further stated that

they are not able to get confirmation from both the banks, i.e., Grindlays

Bank now known as Standard Chartered Bank, DN Road Branch Mumbai

and State Bank of India, Mumbai as the transaction pertains to July, 1989

and the said bankers have expressed their inability to confirm the same.

5. The fault squarely lies with the respondent-Regional Provident Fund

Commissioner. The said respondent had failed to respond to letter dated

14th July, 1994 and thereafter when the petitioner had submitted

photocopies and explained the entire factual position vide letter dated 6 th W.P. (C) No. 3345/2005 Page 4 May, 1996. It was for the respondents-Regional Provident Fund

Commissioner, Delhi to take immediate steps, and if steps were taken, this

problem of verification and destruction of records by the banks would not

have occurred. Further, the petitioner has placed on record another letter

dated 27th September, 1989 written by M/s Wimco Seedlings Limited, the

respondent No. 3 herein to Regional Provident Fund Commissioner, Nehru

Place, New Delhi. The said letter has not been specifically disputed and

denied by the respondent-Regional Provident Fund Commissioner. In this

letter, it is stated that the accumulation from the petitioner amounting to

Rs.65,566/- had been transferred to the Regional Provident Fund

Commissioner's office along with Annexure-K. In case there was an error

or mistake in depositing the amount in Regional Provident Fund

Commissioner's office in Mumbai through State Bank of India, Mumbai, the

respondent-Regional Provident Fund Commissioner's office in Delhi should

have taken immediate action for correction of the mistake and to ensure

that the amount is credited to the right account. No letter was written by

the Delhi office of the respondent to the Mumbai office. Delhi office

should have taken up the matter with Mumbai office at the earliest.

6. The petitioner has produced before this Court photocopy of the

challan issued by State Bank of India for deposit of Rs.65,566/- in the

account of Regional Provident Fund Commissioner in State Bank of India,

Mumbai. Photocopy of the said challan was furnished to the counsel for

W.P. (C) No. 3345/2005 Page 5 the respondent-State Regional Provident Fund Commissioner. Learned

counsel for the respondent-Regional Provident Fund Commissioner states

that the said challan is in respect of establishment bearing MH-801 and as

per Regional provident Fund Commissioner, Mumbai, credit of Rs.65,566/-

is not reflected in their books. It is also stated that M/s Wimco Limited,

the respondent No. 4 herein is an exempted establishment under the

Employees Provident Fund and Miscellaneous Provisions Act, 1952 having

established a separate trust. The aforesaid affidavit, however, does not

meet the allegation with regard to challan issued by the State Bank of

India mentioned above. The State Bank of India, Mumbai has filed

counter affidavit in this Court stating that it is evident from the counter foil

submitted by the petitioner that cheque No. 015080 drawn on Grindlays

Bank, DN Road, Mumbai dated 21st June, 1989 for Rs.65,566/- was

deposited and would have been cleared and credited to EPF account. It is

further stated that the issuing bank, i.e., Grindlays Bank, has clarified

whether cheque was cleared from their account. State Bank of India has

stated that they do not maintain old records and vouchers after a period of

ten years and their own records for the aforesaid period have been

destroyed. The petitioner has placed on record copy of statement of

accounts received from Grindlays Bank, which shows that cheque of

Rs.65,566/- was cleared for payment on 12th July, 1989 from the account

of M/s Wimco Employees Provident Fund, Nicol Road, Ballard Estate,

W.P. (C) No. 3345/2005 Page 6 Bombay. The said amount tallies with the counter foil and the challan

issued by the State Bank of India as the amount is identical and the dates

of the challan and the cheque and the date of encashment are in seriatim.

These aspects read with letter dated 27th September, 1989 written by

Wimco Seedlings Limited to the Regional Provident Fund Commissioner,

Delhi show the laches and negligence on the part of the respondent-

Regional Provident Fund Commissioner. The stand now taken is also

contrary to the stand taken by the Regional Provident Fund Commissioner

in their letter dated 15th October, 2004, which has been quoted above.

7. In view of the aforesaid, the writ petition is allowed and the

respondent-Regional Provident Fund Commissioner, Delhi is directed to

refund this amount to the petitioner along with interest accrued thereon

within a period of four weeks from the date copy of this order is received.

If required, it will be open to the respondent-Regional Provident Fund

Commissioner, Delhi to get credit from their counterpart in Mumbai. In

the facts and circumstances of the case, there will be no order as to costs.

SANJIV KHANNA, J.

      OCTOBER 20, 2009
      VKR




W.P. (C) No. 3345/2005                                                Page 7