Date of Filing : 30.12.2010
Date of Order : 11.11.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
SESHADRIPURAM, BANGALORE – 560 020
Dated 11th day of November 2011
PRESENT
Sri. H.V.RAMACHANDRA RAO …. President
Sri. BALAKRISHNA V. MASALI, B.A., LL.B.(SPL) …. Member
COMPLAINT NO. 3028 / 2010
N.Janrdhan Rao Magar,
S/o.late.Narayana Rao Magar,
R/at No.18, 4th Block,
K.G.S.Querts, 1st Cross,
Govindarajanagar,
Bangalore 560 079.
(In-person) ……. Complainant
V/s.
1. M/s UCO Bank Employees
Provident fund Trustees,
UCO Bank head Office-2,
Personnel Service Department,
3 & 4 DD Block, Sector-1,
Salt Lake,
Kolkata 700 064,
Rep. by it’s the Chief Officer PF & GF.
2. M/s UCO Bank, Zonal Office,
13/22, K.G.Road,
Bangalore 09,
Zonal Manager/Asst. General Manager
(By Advocate Bhoopalam Law Associates) ….Opposite Parties
ORDER
(By the President Sri. H.V.RAMACHANDRA RAO)
The brief antecedents that yet to be filing of the complaint under section 12 of the Consumer Protection Act seeking direction to the OP to pay a sum of Rs.4,55,790-84 ps., to the complainant, are necessary.
1. The complainant was an employee of the OPs. He was dismissed from service on 13.01.1999. The said order was set aside by the CGIT in CR No.4/2001 on 11.07.2006. That order was modified in WP No.15108/2006(LTER) c/w WP No.14823/2006(LRES). The Hon’ble High Court reduced the payment of back wages to 40% but other relief relating to continuity of service etc., has been confirmed. The OPs has not paid the gratuity and provident fund as prevailing in the PF rules. The complainant is entitled to Rs.1,30,990.84 ps., towards BCPF and MCPF with interest thereon at 24% amounting to Rs.1,84,800/- and compensation of Rs.2,00,000/-. As this has not been paid, this complaint is filed.
2. In brief the version of the OPs are: The employment of the complainant is admitted. He has been dismissed because of his misconduct and Report of enquiry officer. That order has been challenged before the CGIT. The CGIT has passed an order of compulsory Retirement and payment of 50% of the back wages with gratuity of service.. The said orders were challenged, both by the complainant and the OPs in the writ petitions. The writ petition of the complainant is dismissed and that of the OPs is allowed by restricting the payment of back wages at 40%. Accordingly the OPs have paid the amount. The provident fund is a service condition and that cannot be adjudicated before this Forum. The complaint will not come within the ambit and scope of condition and service. The service condition is out side the petitioner of Consumer Fora.
3. To substantiate their respective cases the parties have filed their respective affidavits and documents. Complainant was absent. OP was heard.
4. The point that arise for our consideration are:
A) Whether there is any deficiency in service ?
B) What order ?
5. Our answer is :
A) Negative
B) As per detail order for the following reasons.
REASONS
6. Reading the pleadings in conjunction with the affidavit and documents on record it is an admitted fact that the complainant was an employee of the OPs Bank. He was charged for misconduct and after enquiry the complainant was dismissed from the service. The complainant approached the CGIT in CR No.04/2011. In that on 11.07.2006 the CGIT has passed the following order:
“The impugned punishment order of dismissal is hereby replaced by the order of Compulsory Retirement to be given effect from the date of passing of this award. The first party shall be paid 50% of the back wages from the date of original punishment order till the date of passing of this award. No costs.”
Against which both the complainant and the OPs have preferred W.P.No.15108/2006(L-TEF) connected with W.P.No.14823/2006 (L-RES). In that on 24.10.2007 the Hon’ble High Court has passed the following order
I. “W.P.No.14823/2006 is hereby partly allowed.
II. W.P.No.15108/2006 is hereby dismissed.
III. The impugned award dated 11.07.2006 in CR No.4/2001 passed by the central Government Industrial Tribunal–cum-Labour Court, Bangalore, is modified by reducing 50% back wages as 40% back wages from the date of order of punishment till the date of passing of the award with continuity of service and other consequential benefits.
IV. In all other aspects the impugned award remains intact.
V. The petitioner Bank is directed to pay the amounts due to the respondent as expeditiously as possible and in any event within a period of three months from the date of receipt of copy of this order.”
7. According to the complainant the order has not been complied with, with regard to the PF. But OPs has contended that it has that complied with the order. If the order of the Industrial tribunal or any appellate Authority is there and not complied with the complainant is at liberty to approach the concerned industrial tribunal under section 33 C-2 of the Industrial Dispute Act for which this order will not come in the way.
8. In this case the complainant wants execution of the order of the Industrial Tribunal and Hon’ble High Court, in this Forum which is not permissible in law. If the OPs fail to comply the order with respect to the PF, the complainant may approach the Hon’ble High Court, if need be for that this Order will not come in the way.
9. The Industrial Tribunal is well versed in the Industrial Law, the calculation of PF etc., and that will not come in the consumerism.
10. In III (1993) CPJ(NC) the National Commission on V(5) are ruled thus:
“Still not being satisfied, the petitioner has come before us by way of this revision petition. After hearing the parties and going through the records. We are of the opinion that the dispute in question does not fall within the purview of the act. The claim of the respondent-complainant was about the non-payment of Provident fund to him. Of course, the provident fund cannot be retained by the employer, but for that matter the proper remedy for the claimant was to approach a Civil Court. Payment of Provident fund can by no stretch of imagination be said to be “rendering of service” under the Act. Of course in the present the employer was the Bank, but the payment of provident fund does not relate to “banking service” which service has been included in the definition of “service” as given in Clause (0) of Sub-section(1) of Section 2 of the Act.”
Further in (1996) 8 655 the Hon’ble Supreme court has ruled thus :
“Consumer Protection Act, 1986 – S, 2(1)(0) – Services rendered ‘free of charge’ or under a ‘Contract of personal service’ excluded from purview of the Act- ‘Contract of personal service’ includes one between Govt. and its employee-Respondent govt. servant not entitled to claim any damages against the State under the Act for the free service rendered by govt. to its employees-govt. servant bounded by the service conditions]”
That means the provident fund is the matter coming within the service conditions and as it is service condition, that will not come within the ambit and scope of the Consumer Protection Act and thus the complainant is not a consumer and complainant has to be dismissed. Thus in all affairs comply to the fact and circumstances.
11. On reading of pleadings and documents it is established that the complainant is not a consumer. Opposite party is not a trader. The complainant has not purchased any service/goods for consideration nor OP sold it. He wants execution of Order of Hon’ble High Court which is not in the perview of the C.P.Act.
12. Even the OPs have clearly stated that whatever the provident fund that has to be paid in accordance with law have been paid. The said statement is recorded. Hence we hold the above points accordingly and pass the following
ORDER
1. Complaint is dismissed.
2. Return the extra sets to the concerned parties as under regulation 20(3) of the consumer Protection Regulation 2005.
3. Send copy of this Order to both the parties free of cost immediately.
Pronounced in the Open Forum on this 11th day of November 2011.
MEMBER PRESIDENT
