SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint for realization of Rs.62,663/-, arrears salary of Rs.37,000/- with compensation, costs etc.

          The averments in the complaint can be briefly summarized as follows:

          The complainant has been working as Lecturer in various colleges of S.N Trust  and she retired from S.N. College, Kollam on 31.3.2004.  The complainant was a subscriber  and contributory to the Kerala Private College Teaching Staff Provident Fund   The practice is that when an employee  retired from service she shall be given the due amount standing in her credit with interest immediately after the retirement.  Even much before retirement she has submitted all the necessary papers for closure of Provident Fund amount.  But the amount due to the complainant was not disbursed .  On repeated enquires the  opp.parties   have not  given reply..   Though  she approached  the first opp.party  the amount was not paid and the same was  paid only on 27.12.2005 at about 21 months after the retirement.   The complainant entitled to get  a minimum Rs. 7.78,242/- with interest  as on 31.3.2005.  Since the payment of the amount was delayed she is entitled to get further  interest for the period from 1.4.2005 59 25.5.2005  which would come to Rs.41,506/-  Though the complainant was entitled to get  Rs. 8,19,748/- she was given Rs.7,57,085/- Hence that the complainant is entitled to get Rs.66,663/- with interest.   The complainant has not so far  received another sum of Rs.37,000/- on account on the UGC arrear salary.  .   After receiving the PF amount the complainant informed the opp.parties and submitted about the balance amount and interest.  But it was not paid.  The delay in paymentof  PF amount is due to the negligence on the part of the opp.parties.  Hence the complaint.

          Opp.party 1 and2 filed a joint version contending that the complaint is not maintainable either in law or on facts.   The averments in para 1 to 3 are admitted.  The averments in para 4 to 8 are not  fully correct and hence denied.  The PF  Closure application are being considered by the opp.parties on priority basis according to the date of receipt of application.  Since many application were pending in the queue for processing the PF of the complaint could be verified only on 10/2004 due to pressure of work.  On verifying  the application it was  noticed that required documents for processing the closure of the PF were not submitted by the complainant and after repeated requests the same have been received in  the office only on 8.11.2005.   After that  the application  was processed and authorisation for  a sum of Rs.7,57,085/- with interest upto 3/2004 has been forwarded to the Principal  for drawing and disbursing the amount to the complainant.   The PF in this case is not a contributory provident fund  and it is governed by the PF account and therefore the District Consumer Disputes Redressal Forum is not competent to interfere on the issue relating to the cloisure of PF account.    As the term  service  is not applicable to the case of the complainant and it is outside the purview of this Forum as the rendering of any  service herein is  free of costs.   The service herein is  personal service which are outside the purview of the Consumer Protection Act.   Hence the opp.party 1 and 2 are prays to dismiss the complaint

          The 3^rd opp.party filed a separate version  contending interalia, that the complaint is not maintainable either in law or on facts.  The averment in para 1. 2 and 3  of the complaint are  admitted.   The averment in para 4 of the complaint this opp.party is unaware.  The 1^st opp.party is the sanctioning authority and this opp.party has  the duty to forward the closure application together with the required documents to the 2^nd opp.party  which  has been done by this opp.party  promptly.  The communication for sending PF schedule of UGC arrears from the 1^st opp.party is served to this opp.party on 30.11.2004.  The complainant requested  the opp.party  to handover the documents to Sri. Udaya Bhanu Retd. Head of the department of Chemistry for handing over the same to the 1^st opp.party.   Considering her request the documents were handed over to  Sri. Udhaya Bhanu  on 3.12.2004  for submission of the same in  person before the first opp.party.  This fact was informed to the counsel when this opp.party   received  an Advocate notice   d Head of the department  of Chemistry for handing over the same  to the 1^st opp.party.  Considering her request the documents were handed over to Mr. Udaya Bhanu

The complainant has intentionally suppressed  the fact  that she has authorized Prof. Chandrabhanu to collect the  documents from this opp.party  for onward transmission to the first opp.party.   There is no delay,  what so ever, on the part of this opp.party in sending the closure application, to the 2^nd and 1^st opp.parties.  When the 1^st opp.party sent a reminder to this opp.party   the copies were again forwarded.   So there is no deficiency  in service on the part of this opp.party.   The complainant is not entitled to get any relief from this opp.party.  Hence this opp.party prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether the complaint is maintainable.

2.     Whether there is deficiency in service on the part of the opp.parties

3.     Reliefs and costs.

For the complainant PW.1is examined.  Ext. P1 to P6 are marked.

For the opp.party DW.1 and 2 are examined.   Ext. D1 to D5 are marked.

Points:

          There is no dispute that the complainant was a Lecturer in the 3^rd Opp.party college and that she retired from service on 31.3..2004.  It is also not in dispute that the Provident Fund amount due to her was disbursed on 27.12.2005 ie. 21 months after her retirement.   The complainant has no dispute regarding the quantum of the amount and the interest awarded upto 31.3.2004 but the complainant is claiming interest for the amount for the delay in making payment.

          The contention of opp.parties 1 and 2 is that the complainant is not a consumer within the meaning of Sec 21 [d] of the Consumer Protection Act 1986  as a college Lecturer will not come within the meaning of definition ‘Service’ in Sec. 2[1] [o] of Consumer Protection Act.  It is further argued relying on the decision of the Hon’ble Kerala State Commission in appeals No.1370/08 and 415/08 that the complaint is not maintainable as the dispute herein is not a Consumer Dispute as there is no hiring of Service for consideration and that GPF is a creation of statute and the Govt. as the custodian of the fund is discharging statutory functions and as such they are exempted from the purview of the Consumer Protection Act 1986.  The learned Government Pleader in support of his arguments  also relied on the decision of the Apex Court in Orissa  V/s. Divisional  Manager, LIC [1990] 8 SCC 655 and the decision of High Court of Kerala in DFO V/s Aravindakha Menon {2002 [2]  KLT 48}

          The learned counsel for the complainant would argue that the complainant is a consumer.  He would canvass the point that Government Servants are excluded from the purview of Consumer Protection Act only to claim any damages against the State relying on the decision reported in 2008 [1] CPR 201 and argued that the claim herein is not for any damages but for interest for delayed payment which would amount to  deficiency in service.

          Sec 2[1] [o] defines services as “Service means ‘service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing and supply of electrical or other energy, Board or lodging or both, housing construction, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”   The services contemplated therein alone are services within the meaning of Sec 2[1] [o] of the Act except excluded services mentioned there in ie.. Service free of charge and under a contract of personal service.   According to the learned Government Pleader the Government is rendering service free of charge and as such the provisions of the Consumer Protection Act is not applicable in this case .

          The learned counsel for the complainant would argue that Provident Fund is a continuous subscription of certain amount by the employee during the period of service which is to be refunded by the employer with interest after retirement and that during the service period the employer is using that amount of contribution for making profit which is ‘finance’ referred to in the definition ‘service’ in the Consumer Protection Act and the same is entirely different from pensionery benefits and so the decision in DFO V/s. Aravindaksha Menon [2002 [2] KLT 48] is not applicable in this case.  Admittedly the dispute herein is not in respect of any pensionary claim.   There is also no dispute regarding the quantum of PF accumulation or the interest accrued thereon but the claim is for interest for delayed payment which occurred due to the negligence of opp.parties.  Even assuming that the maintenance and payment of Provident Fund comes within the sovereign.  power of the state the inordinate delay in refunding the amount when there was no dispute regarding the quantum of subscription amount or interest is misfeasance in public service.

          In Lucknow Development Authority V/s. M.K. Guptha AIR 1994 SC 787 the Apex Court has held that “a Govt or Semi Government body or local authority is as much amenable to the Act as any other private body rendering similar service.  In the absence of any indication express or implied there is no reason to hold that authorities created by statute are beyond the purview of the Act”

          This proposition of law was subsequently affirmed by the Apex Court in Ghaziabad Development Authority V/s. Babir Sing AIR 2004 SC 2141.  It was held therein that the Consumer Protection Act has a vide reach and the Commission has jurisdiction even in cases of service rendered by statutory and Public Authorities. Such Authorities become liable to compensate for misfeasance in Public Office ie. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen”  It was further held that misfeasance in public service is deficiency in service.

          In standard chartered Bank Ltd. V/s Dr. B.N. Ramesan  it was held by the Hon’ble Supreme Court that “activities relating to non-sovereign powers of statutory bodies are within the purview of the Act.   The functions of such statutory bodies come under the term ‘Service” U/S. 2[i] [o] of the Act.  If the PF amount which was to be refunded in  6 months is not paid  within such period it is a non sovereign power.

          In  Telecom Goa District V/s. Sarojin DA Costa I [2009] CPJ 485 Goa State Consumer Disputes Redressal Commission has held relying on the above decisions that the contention that a complaint against Government is not maintainable is not acceptable.

          The National Commission in Ravindra Mohan Nmdev V/s Naib Tehsildar and another 2008[2] CPR 141 has ordered payment of compensation for harassment and costs to the complainant therein for the delay in issuing certain documents from that officer despite the fact that the Naib Tahsildar is discharging sovereign function.   The Director of Collegiate Education who is maintaining the PF account of the teaching and non teaching staff of that department is not discharging any sovereign function more than that of a Nahib Tahsildar.   The decisions referred to above clearly shows that a complaint under the Consumer Protection Act is maintainable against the Government when there is misfeasance in Public Office and that such misfeasance is deficiency in service.  Hence we hold that the complainant herein is a consumer and the complaint is maintainable before this Forum.  Point found accordingly.

          Points 2 and 3

          Admittedly the complainant retired from service on 31.3.2004 and she received  the Provident Fund money on 27.12.2005.  The application for closure of PF was admitted on 24.11.2003 and the same was received in the office of the 1^st opp.party on 27.12.2003 can be seen from Ext.P3.  However Ext D3letter seeking certain documents was issued by opp.party 1 to 3  only on 20.11.2004. The next  letter Ext. D4 which is a reminder was seen issued on 21.10.2005  ie. About one year after the issuance of Ext. D3 DW.2 has admitted in cross examination that a closure application shall be processed within 3 months of receipt of the same.  But no satisfactory explanation is forthcoming in this case for not processing the closure application within 3 months.  Even D3 letter calling for certain documents was issued only after the expiry of 11 months.

          DW.2 would state that the closure application could  be processed as certain details required for the same was not furnished by opp.party.   According to the complainant on receipt of copy of Ext.D3 the necessary details were forwarded from the college to opp.party 1, through PW.2.  PW.2 has stated that he has taken the documents sought for as per Ext. D3 to the office of the 1^st opp.party and handed over the same but no receipt was given.   DW.2 admitted that there is no practice  of issuing  receipts.   We find no reason to disbelieve PW.2  who is a retired Professor .  If the  records handed over by PW.2 is not there in the 1^st opp.party’s office it can only be due to this negligence.   So it is clear that the delay was caused in the office of opp.party 1.   The delay in processing the closure application and the delay in issuing D3 and D4 establishing negligence and misfeasance on the side of opp.party 1^st and 2^nd causing mental agony and harassment to the complainant and she is entitled to get interest for the PF amount as per the prevailing rate for the period from 1.4.2004 to 27.12.2005.

          In the result the complaint is allowed directing the opp.parties 1 and 2  to pay the complainant  interest to her PF accumulation for the period from 1.4.2004 to  27.12.2005 as per the rates prevailing during that period.  There are also directed to pay  Rs. 5,000/- as compensation and costs.  The order is to be complied with within one month from the date of this order.

Dated this the  25^th        day of July, 2010                                  

I n d  e x

List of witnesses for the complainant

PW.1 – Dr. Kalyanikutty.P

PW.2. – Prof. R. Udayabhau

List of documents for the complainant

P1. – Adv. Notice

P2. – Postal receipt

P3. –Letter sent by Director of Collegiate Education to the Complainant’s Advocate

P4. – Reply notice

P5. – Receipt

P6. – Detailed Statement of account.

List of witnesses for the opp.party

DW.1.- Santhosh Kumar.S.

DW.2. –Selvaraj

List of documents for the opp.party

D1. – Receipt dt. 2.12.2004

D2. – Pfclosure application

D3. – Letter dated 20.11.2004

D4. – Reminder letter dt. 21.10.2005

D5. – Application to t