Heard learned counsel for both the parties.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant was posted as Development Officer under OP and was promoted to the post of Asst.Manager(Sales) in the year 1998-1999 but he was dismissed from service on 17.07.2007. It is further alleged by the complainant that during the year 2007 the complainant cleared outstanding dues of Co-operative society and no cooperative dues is pending against the complainant. But OP illegally deducted a sum of Rs.51,063.00 from the account of the complainant which is reflected in the discharge voucher and wrongly it was mentioned that Rs.3,91,723.00 was paid. The complainant alleged that as he has already cleared the cooperative loan, he is entitled to get Rs.4,42,786/- from his provident fund. The complainant requested the OP to release provident fund but it was not being paid. So, the complaint was filed.
4. The OP filed the written version stating that the averment in the complaint was not correct and the complaint petition is not maintainable.
5. After hearing both the parties, learned District Forum passed the following order:-
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“In the result with these observations, findings, discussion the complaint petition is partly allowed on contest against the Ops No.1 & 2 and dismissed against OP No.3.
The Ops are ordered to release a sum Rs.4,42,786/- towards provident fund in favour of the complainant alongwith interest @ Rs.8.5 % from the date of filing of this complaint petition i.e. on Dtd.8.10.2013 till realization. The complainant is ordered to pay Rs.1000/- towards legal expenses. No compensation.
The Ops are ordered to comply the above direction within one month from the date of receipt of this order failing which the complainant is at liberty to take further proceedings U/S-25 & 27 of the C.P.Act. “
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not going through the written version and documents filed by the Ops with proper perspective. According to him the complainant being a dismissed employee had challenged same in the Hon’ble High Court vide W.P.(c) 12893/2008 and for that the impugned order directing OP to pay any amount is not justified. Learned District Forum ought to have considered such fact. Besides he submitted that the provident fund of complainant is a pensionary benefit but due to disciplinary proceeding against the complainant and availing the loan, withholding of provident fund account is legal and proper. Learned District Forum ought to have considered such fact and law. Learned counsel for the appellant further submitted that the prayer of the complainant is concerned with service matter. As such the service is not a ‘service’ under the Act for which the complaint is not maintainable.
7. Learned counsel for the respondent submitted that the learned District Forum has well considered the facts and passed the impugned order. According to him the complainant is denied the pensionary benefit although he has challenged his dismissal before the Hon’b le High Court and Civil Court. He also cited the decision of Hon’ble Supreme Court passed in Regional Provident Fund Commissioner-Vrs- Shiv Kumar Joshi reported in 1986-2002 Consumer-6250(NS)(SC) in support of his submission.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. The complainant is required to prove the deficiency of service on the part of the OP. It is admitted fact that the complainant was one employee under the OP. It is not in dispute that he was dismissed from the service and disciplinary proceeding was started against him. It is also not in issue that he has challenged such order before the Hon’ble High Court of Odisha. But no order of the Hon’ble High Court is filed quashing the departmental proceeding. In other words the complainant alleged about the non-withdrawal of the provident fund. At the same time complainant alleged that he has got loan outstanding from the cooperative society. Whether it is correct or incorrect but the fact remains that the provident fund has not been released due to departmental proceeding and alleged loan. It is well settled under the law that if there is any Govt. dues pending, the final withdrawal of any pensionary benefit can be withheld by the employer. So, the action of the OP in this regard can not be said as deficiency of service.
10. Here complainant has not alleged that the provident fund is related to the Provident Fund Commissioner. Moreover Provident Fund Commissioner is not party to it. The decision of the Hon’ble Supreme Court in Regional Provident Fund Commissioner (Supra) related to the case where the Provident Fund Commissioner has not released the dues of the employee although the employee has contributed his dues. Here the case of complainant is not as such. Therefore, the above decision is not applicable to the fact and circumstances of this case.
11. It is also well settled in law that the service matter of a Govt. Servant or any public sector undertaking can not be said as ‘service’ under the Act. Therefore, learned District Forum, without considering all these aspects have passed the impugned order. In such circumstances, this Commission do not agree with the finding of the learned District Forum and as such the impugned order of the learned District Forum is set-aside. Appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
