Punjab

StateCommission

A/326/2018

Area Manager food corporation of india - Complainant(s)

Versus

Gur Harkam Singh - Opp.Party(s)

K.K.Gupta ,mrs UMA Gupta, and vaibhav Gupta

10 Aug 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,     PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.326 of 2018

 

                                                          Date of Institution    : 31.05.2018         

                                                          Order Reserved on  :06.08.2018               

                                                           Date of Decision     : 10.08.2018

 

1       Area Manager, Food Corporation of India, District Office,         Sangrur.

 

2.      General Manager, Food Corporation of India, Regional Office,         Bay No.34-38, Sector 31-A, Chandigarh.

 

3.      Executive Director (North), Food Corporation of India, Zonal    Office (North), NOIDA (UP)

 

4.      The Chairman-cum-Managing Director, FCI 16-20,          Barakhamba Lane, New Delhi 110001

 

          All through its Area Manager, Food Corporation of India,          District Office, Sangrur.

 

                                                 Appellants/Opposite parties no.2 to 5

 

                              Versus

 

1.      Gur Hakam Singh s/o Late Sh. Jang Singh, R/o H.No. 333,     Street No. 1, Sardar Basti, Near Ranbir College, Sangrur      (Punjab).

                                                          Respondent no.1/Complainant

 

2       Regional Provident Fund Commissioner, Sub Regional Office,         Urban Estate, Phase-1, Near TV Tower, Bathinda.

 

                                              Respondent no.2/Opposite party no.1

 

First Appeal against order dated 20.04.2018 passed by the District Consumer Disputes Redressal Forum,  Sangrur

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

            Smt. Surinder Pal Kaur, Member.

 

Present:-

 

          For the appellants        :  Sh.K.K. Gupta, Advocate

          For the respondent no.1:  Sh. Gur Hakam Singh in person

          For the respondent no.2:  Sh.Gaurav Tangri, Advocate

. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellants is to order dated 20.04.2018 of District Consumer Disputes Redressal Forum Sangrur, accepting the complaint of the respondent no.1 of this appeal by directing the appellants to forward the documents regarding pension case of respondent no.1 of this appeal within a period of 15 days and thereafter respondent no.2 of this appeal was to settle the  pension case within a period of 15 days from receipt of documents. The District Forum also awarded compensation of Rs.40,000/- for mental harassment and Rs.10,000/- as costs of litigation to respondent no.1 of this appeal. Respondent no.1 of this appeal is complainant in the complaint and appellants of this appeal are opposite parties no.2 to 5 before District Forum and respondent no.2 of this appeal is opposite party no.1 therein and they be referred as such hereinafter for the sake of convenience.

2.                The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he had been an employee of Food Corporation of India from 19.04.1972 to 29.02.2008  for a period of 36 years. He remained the compulsory member of the employer pension scheme 1995 under Employees Provident Funds and Miscellaneous Provisions Act 1952 and is entitled for EPS pension from 2006  (from the age of 58 years). The pension scheme is based upon the self-contribution of the members concerned. Due contribution for the scheme has been deducted from the monthly salary of the complainant, which was to be remitted  by the employer-FCI to the Regional Provident Fund Commissioner, Bathinda. OP no.1 is, thus, competent to settle and administer the EPS pension after receiving the pension case of the employee forwarded by his employer. The pension contributory funds are protected against attachment under clause 10 of the Act. The complainant was relieved from FCI Sangrur on attaining the age of superannuation on 29.02.2008. He was served with a letter no.A/1 (Retirement) PF/AGII(D)/08/26093 dated 05.05.2009 of Regional Office, FCI Punjab Chandigarh/OP no.3 through Area Manager Sangrur who declared the complainant to have been retired from service in the afternoon of 29.02.2008. The complainant applied for his pension claim in May 2011 in the office of Area Manager FCI Sangrur. The claim application has to be settled within a period of 30 days from the date of receipt by the Commissioner under Clause 17-A of EPS 1995. No action has been taken by OPs to settle the claim of the complainant despite issuing reminder by complainant to OP no.2. OP no.2  issued several letters to OP no.4 for allotting pension number to complainant. The complainant filed complaint against OPs no.2, 4 and 5 for getting EPS number allotted from FCI. OP no.5 was asked to fix the responsibility upon the official for delay.  FCI gave detailed reply informing that EPS number 18116 has been allotted to complainant. The FCI authorities asked him for fresh pension claim documents, that he submitted claim documents and OP no.2 forwarded the claim documents to OP no.4, vide letter no. A/1 (RPS) Gurhakam/2015/6205 dated 15/16.07.2016. FCI did not forward the claim of the complainant to RPFC for its settlement and adopted dilatory tactics in the matter. Legal notice dated 04.07.2017 was served upon complainant to OPs. OPs no.2 , 3 and 5 have not given any reply against the notice and OP no.4 gave vague reply thereto stating that RFPC did not accept incomplete 10-D form  of complainant. OP no.5 wrote letter dated 20.07.2017  to OP no.4 that pension case of complainant EPS A/C No.18116 has not been received in his office and requested to send the pension claim documents to enable his office to submit the same to EPFO Delhi. OP no.2/FCI neither forwarded the  claim  nor deposited the subscription with RPFC. OPs no.2 to 5 have violated the principle of right of privacy of the complainant as well. The complainant has, thus, filed complaint praying for below noted reliefs against OPs:-

i)        OPs be directed to settle the long pending pension case.

ii)       OPs be directed to pay compensation for mental harassment           and cost of litigation.

3.                Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is pre-mature and same is liable to be dismissed. The complainant has not come to the Forum with clean hands and has concealed the material facts.  On merits, it was averred that the complainant has nowhere mentioned in the complaint about his EPF account number and without disclosing the same, the claim of the complainant cannot be processed and settled. It was duty of the employer of complainant to deduct, contribute and to deposit the amount pertaining to the complainant with OP no.1, but till date, no contribution has been received from employer of the complainant. OP no.1 informed the complainant that as per his office record, EPS No.18116 was never allotted to complainant or any other person till date.  Furthermore, EPS No.118116 was never allotted to complainant, but the same was allotted to Ram Pal son of Kirpa Ram. It was duty of the employer to allot EPS number to its members and to deposit the contribution for them with OP no.1, but employer of complainant failed to do so.  As per EPF Scheme, it was also duty of the employer to submit application/claim form to the office of Provident Fund within 5 days of its receipt. No claim form of EPS No.118116 or EPS No.18116 were ever received by the office of OP no.1. EPFO Noida was the ultimate authority for the settlement of the claim, but it was duty of the employer to submit the attested claim form complete in all respects with the office of OP no.1, but till date, it had not received  any claim form either form complainant or from his employer. EPF Office Sangrur has not been made a party in the present case, as such, this Forum has got no jurisdiction to try and decide this complaint. Any deficiency in service on its part was denied by OP no.1 and it prayed for dismissal of the complaint.

4.                OPs no. 2 to 5 appeared and filed its separate written reply and contested the claim of the complainant by raising legal objections that  the complainant is not a consumer of OPs.  The complaint is without any just or reasonable basis. The complainant has no locus standi to file the complaint. The complainant has no cause of action to file the complaint and complaint is false, fabricated and vexatious. The complainant was an employee of the OPs no.2 to 5 and was governed under FCI Staff Regulation Act 1971 and there was a relationship of the parties, as employer and employee and this Forum has no jurisdiction to try and decide the complaint. On merits, it was denied that FCI did not forward the claim of the complainant to RPFC for its settlement earlier due to incomplete information in the claim form, as the complainant had not disclosed the name of his wife in his 10-D Form. He was not ready to disclose any information in respect of his wife in 10-D Form inspite of repeated requests. Thereafter, the pension documents were forwarded to RPFC wazirpur, vide letter no.CPF-1/EPS cases/2017/NZ/132 dated 28.10.2017 for settlement of pension.  The RPFC is the  competent authority to settle the pension.  The claim of the complainant was not forwarded to RPFC till the date of filing of the complaint due to incomplete and contradictory information submitted by the complainant, but now claim of the complainant has been forwarded to RPFC, vide letter no.CPF-1/FPS cases/2017/NZ/132 dated 28.10.2017 for settlement of pension. OPs no.2 to 5 denied other averments of the complainant and they prayed for dismissal of the complaint.  

5.                The complainant tendered in evidence his affidavit Ex.C-1 and closed the evidence.  As against it; OP no.1 tendered in evidence affidavit of Nirmal Jain Sr.SSA Legal Section and closed the evidence. OPs no.2 to 5 tendered in evidence affidavit of complainant Dharam Singh Meena Area Manager as Ex.OP2to5/1 along with copies of documents Ex.OP2to5/2 to Ex.OP2to5/8 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Sangrur accepted the complaint of the complainant by virtue of order dated 20.04.2018. Aggrieved by above order of the District Forum Sangrur, OPs no.2 to 5 now appellants, have carried this appeal against the same.

6.                We have heard learned counsel for the parties and have also examined the record of the case.

7.                The District Forum found OPs no.2 to 5 deficient in service in not forwarding the case of the complainant with regard to his pension to OP no.1 within required period and also imposed compensation of Rs.40,000/- for mental harassment and Rs.10,000/- as costs of litigation from OPs no.2 to 5. The correctness of the order of District Forum has been assailed in this case by OPs no.2 to 5 by filing this appeal. The submission of OPs no.2 to 5 now appellants before us is that they being employer of the complainant are not accountable to Consumer Forum and Consumer Forum has no jurisdiction to hold them liable as it lacks jurisdiction because there is no relationship of consumer and service provider  between complainant and them. On the other hand, submission of complainant before this Commission is that his employers deducted his pension, but have not forwarded his pension case to OP no.1 within required period of time and as such they are primarily liable for deficiency in service. The evidence on the record including affidavit of Hakam Singh complainant is Ex.C-1 and affidavit of Nirmal Jain Sr.SSA Legal Section office of Employees Provident Fund as Ex.OP-1/1 and affidavit of Dharam Singh Meena Area Manager of OPs no.2 to 5 and documents on the record have been duly scanned by us. There is no dispute of this fact that complainant remained employee of FCI and was member of Employees Provident Fund Scheme  and his contribution was deducted by OPs no.2 to 5. His case has not been forwarded for his pension to OP no.1 by OPs no.2 to 5 within a required time and consequently he has to suffer. The counsel for OPs no.2 to 5 now appellants contended before us that Consumer Forum is not competent to hold the employers as negligent and an employee of the establishment, who is governed by Employees Pension Scheme 1995 framed under the provisions of Employees Provident Fund and Miscellaneous Provisions Act 1952  is not consumer vis-à-vis his employer in terms of Section 2(1)(d) of the Consumer Protection Act, in a case where the pension scheme is not administered by the employer himself. In other words, such an employee shall not be a consumer vis-à-vis his employer, within the meaning of Section 2(1)(d) of the Consumer Protection Act , where the pension scheme is administered by an agency such a Regional Provident Fund Commissioner/Provident Fund Commissioner. The counsel for OPs no.2 to 5 now appellants referred to law laid down by National Commission in "Deputy General Manager Cpf. F.C.I. New Delhi Food Corporation of India versus Kahsmir Singh and others" reported in Revision Petition no. 3317 of 2008 decided on 13.04.2015. The majority  view of National Commission in this case held that where pension scheme is administered by an outside agency, such as Regional Provident Fund Commissioner, the Employer/FCI is not consumer of employer. The complainant now respondent no.1 has not cited any counter authority against it before us. The counsel for appellant further referred to law laid down by Apex Court in "Dr.Jagmittar Sain Bhagat versus Dr. Health Services Haryana and others" reported in 2013(3) CPJ 22 that the government servant cannot approach any of the  Consumer Forum under Consumer Protection Act for any of the retiral benefits (gratuity, GPR etc).  The law cited by appellant by National Commission in Kashmir Singh's case (supra) as decided by majority view of the Members is to effect that when the pension scheme is not administered by the employer himself, he is not service provider to the employee being a consumer under the Act. Since no counter law has been cited by the complainant now respondent no.1 before us   in person and as such this Commission is bound to follow the law laid down by National Commission by majority view in Kashmir Singh's case (supra). Consequently, it is held that this is a case, which is not administered by the employer himself with regard to pension of the complainant as its employee, but it is case where the pension is administered by the Regional Provident Fund Commissioner, which is separate agency and as such, law laid down by National Commission in Kashmir Singh's case (supra) holds the field in this case. In this view of the  matter, appellants who have been found deficient and negligent in service by District Forum is not amenable to the jurisdiction of the Consumer Protection Act, as they are not proved to be service provider to complainant, because pension scheme under Employees Pension Scheme  Act is administered by Regional Provident Fund Commissioner/OP no1 and not by OPs no.2 to 5. In this view of the matter, order of District Forum under challenge in this case cannot be sustained in this appeal in view of above referred view of National Commission in Kashmir Singh's case (supra). The pension case of the complainant has not reached OP no.1 and as such, OP no.1 has not found deficient in service in this case in any manner. There is no relationship of consumer and service provider between the complainant and OPs no.2 to 5 and as such order passed by the District Forum under challenge in this case cannot be sustained in this appeal.

8.                As a result of our above discussion, we accept the appeal of the  appellants and set aside the order passed by District Forum Sangrur  under challenge in this case and resultantly dismiss the complaint of the complainant. The complainant is at liberty to seek redressal of his grievance before Competent Forum of law.

9.                The appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the appellants by way of crossed cheque/demand draft after 45 days from receipt of certified copy of this order.

10.              Arguments in this appeal were heard on 06.08.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

11.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                                   (SURINDER PAL KAUR)      

                                                                           MEMBER

August 10, 2018                                                                 

(ravi)