| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No.157 of 8-6-2018 Decided on : 17-07-2023 Resham Singh aged about 59 years S/o S. Bikker Singh R/o Ward No.3, Gali No.11, Guru Arjun Dev Nagar, Mansa. ........Complainant Versus Punjab Mandi Board, Punjab Mandi Bhawan, Sector 65-A, S.A.S. Nagar, through its Deputy Controller (Finance & Accounts). Punjab Mandi Board Near Liberty Chowk, Near Grain Market, Bathinda, through its Executive Engineer (C). Regional Provident Fund Commissioner, Regional Provident Fund Office, Urban Estate, Phase-I, Bathinda.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM:- Sh.Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present:- For the complainant : Sh.Ish Kumar, Advocate. For opposite parties : Sh.M.R Gupta, for OP Nos.1 & 2. Sh.Vinod Garg, for OP No.3. ORDER Lalit Mohan Dogra, President The complainant Resham Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this Forum (Now Commission) against Punjab Mandi Board & others (here-in-after referred to as opposite parties). Briefly, the facts of the complaint as pleaded by the complainant are that he was employed work charge staff with opposite party No.1 and he had served at Faridkot office and his services were regularized on 5.4.1999 and he was deputed as Supervisor Punjab Mandi Board at Bathinda i.e. opposite party No.2. It is alleged that while the complainant was serving at Faridkot office, a deduction on account of EPF 50% share/contribution of employee was made by Faridkot office from his salary and by contributing 50% share on account of employer contribution, the same was got deposited by Faridkot office with the concerned Employees Provident Fund Commissioner and after the complainant was regularized and was transferred to Bathinda office, similar process was adopted by opposite party No.2 and by making the deduction of EPF from his salary and by contributing 50% share on account of employer contribution, opposite party No.2 used to deposit the same with opposite party No.3 and since he is beneficiary of this amount lying deposited with opposite party No.3. He is consumer of opposite party No.3 and opposite party No.1 is head office of opposite party No.2. It is further alleged that the complainant retired as Supervisor on 30.6.2017 afternoon vide office order No.378 (2017) dated 20.6.2017 on attaining the superannuation age of 58 years. During his employment, he had been performing his duties to the satisfaction of his superiors and had been enjoying unblemished service career. No departmental enquiry etc. was/is pending against him and on his retirement, he was/is entitled to the service/retirement benefits. Although, nothing was due towards him, yet Faridkot Office vide letter No.4578 dated 5.9.2017 has recommended for making the deduction of Rs.53,584/- on account of EPF that was alleged due and recoverable from him and similarly, opposite party No.2 vide letter No.3273 dated 9.5.2017 also recommended for making the deduction of Rs.1,22,371/- on account of EPF that was allegedly due and recoverable from him. In this way, total amount of Rs.1,75,955/- was allegedly due and recoverable from the complainant whereas nothing was due and recoverable from him. It is further alleged that on account of aforesaid letters, opposite party No.1 stopped the retrial benefits of the complainant. Ultimately, under threat and coercion and compelled circumstances, the complainant had to give a consent for making the deduction of amount of Rs.1,75,955/- from his retrial benefits that were payable to him under different heads and only on the consent given by him for making deduction of the amount, opposite party Nos.1 and 2 have released him remaining retrial benefits vide office order No.605 (2017) that also contained the reference of aforesaid letters No.3273 dated 9.5.2017 and No.4578 dated 5.9.2017. In this way, opposite party No.1 on the recommendation of Faridkot office and opposite party No.2, had wrongly and illegally deducted the amount of Rs.1,75,955/- from the retiral benefits of the complainant. It is further alleged that the complainant got issued a legal notice dated 12.12.2017 (dispatched on 20.12.2017) tthrough his counsel to opposite party Nos.1 and 2 and Faridkot office. In its response, Faridkot office sent a reply to the legal notice dated 5.2.2018, but opposite party Nos.1 and 2 kept mum in this regard. From the perusal of reply sent by Faridkot office and also from the perusal of copy of circular sent by Faridkot office alongwith reply to legal notice, the complainant at his own enquired the matter and learnt that earlier to it, he was never apprised about the circular or instructions contained in the circular and from further enquiry, he also learnt that Faridkot office rightly recommended for the deduction of Rs.53,584/-, but opposite party No.2 has wrongly recommended for deduction of Rs.1,22,371/-. It is also alleged that in the year 2015/2016, opposite party No.2 directed the complainant to complete the formalities of opposite party No.3 for transferring the amount lying in his EPF account with opposite party No.3 to his Pension Fund Account and GPF account with opposite party No.1. Accordingly, he completed the formalities and submitted the requisite documents for transferring the amount lying in his EPF account to the bank account bearing No.55049753234 with State Bank of Patiala (now State Bank of India), Sector 17-C, Chandigarh and IFSC Code No.STBP 0000167 belonging to opposite party No.1. In these papers/documents, initially, opposite party No.2 had mentioned the EPF account number of the complainant to be as PB/BTI/14751/70 and later on, while making cutting converted the account number to be as PB/BTI/14751/10 in place of PB/BTI/14751/70. After completing the formalities, the complainant remained under impression that the amount lying in his EPF account has already been transferred in the account of opposite party No.1 as after completing the formalities, opposite party Nos.1 and 2 never put any query about the transfer of the amount. The complainant further alleged that after receipt of reply from Faridkot office, he further enquired the matter from the office of opposite party Nos.2 and 3 and opposite party No.2 conveyed that opposite party No.3 has not transferred the amount in their account, so recovery has rightly been made and on enquiry from opposite party No.3, firstly, it orally conveyed that the amount has already been transferred, but, later on, it handed over the photocopies of documents that the complainant has submitted for the transfer of his amount in the account of opposite party No.1 and it was told to the complainant that none of the account No.PB/BTI/14751/70 or PB/BTI/14751/10 is belonging to him, so the amount could not be transferred. It is further alleged that thereafter, the complainant approached opposite party No.2 and requested it to disclose his exact/actual account number to enable him to withdraw the amount at his own, but to no effect. On this backdrop of facts, the complainant has prayed for directions to opposite parties to pay/refund Rs.1,22,371/- alongwith interest @ 18% p.a. on delayed payment till realization and Rs.50,000/- as damages on account of mental tension and agony and Rs.22,000/- as litigation expenses. Upon notice, opposite party Nos.1 to 2 appeared through counsel and contested the complaint by filing written written reply raising legal objections that the complaint is non-maintainable in its present form. It is bad in nature due to non-joinder of necessary parties. Opposite party Nos.1 to 2 are part and parcel of the State of Punjab and State of Punjab has not been made the party to this complaint. The complaint has not been filed in the Court of Competent Jurisdiction. The complainant is not a 'consumer' as per the definition of 'consumer' provided U/s 2(1)(d) of Act. The complainant has not come to this Forum with clean hands as he has concealed the true and material facts and wilfully presented the wrong and false facts with intent to mislead this Forum. Initially, he was appointed as work charge staff on 11.7.1986 and subsequently regularised in service on 5.4.1999. He retired as Supervisor on 30.6.2017. As such, he was entitled for retirement benefits for the period of his regular service only i.e. from April 1999 to June 2017. As per instructions/circular issued from time to time, if the complainant wants to get the benefits of his work charge service, he has to refund/deposit the whole amount of his E.P.F. (i.e. employee's share as well as employer's share also) for the period of his work charge service for the period from 16.7.1986 to 31.10.1996 i.e. 100% share as all the amount had been deposited by the employer/department and employers' share for the period November 1996 to March 1999 i.e. 50% share. Further legal objections are that since the complainant had opted retirement benefits for his work charge service and also submitted an affidavit to this effect to the answering department with his free will. As such, the amount of his E.P.F. contributions for the period from July 1986 to March 1999 was rightly recovered from him to extend the benefits of his work charger service to him. No illegal or unwarranted recovery has been made by the department from the complainant. The complaint is false, frivolous, malafide and vexatious. Both shares of EPF contribution (employer's and employee share for the period from 16.7.1986 to 31.10.1996) relating to Faridkot Office had been deposited by the Punjab Mandi Board from the fund of Mandi Board. In case of period November 1996 to March 1999 i.e. 50% employer's share was deposited by the Bathinda Office of department.The complainant has no locus-standi or cause-of-action to file this complaint against opposite party Nos.1 and 2. As such, the complaint is liable to be dismissed. On merits, it is pleaded that form-10C was submitted by the comlpainant to the EPF department for the transfer of his pension fund to the pension fund of answering department, but the same is not yet transferred by them. Neither the complainant has ever approached the answering department for the transfer of his pension funds nor forwarded any letter to this effect. After reiterating his version as taken in the legal objections as detailed above and controverted all other averments, opposite party Nos.1 and 2 have prayed for dismissal of complaint. Opposite party No.3 appeared through counsel and contested the complaint by filing written written version and raised the legal objections that the intricate questions of law and facts are involved in this complaint. They require voluminous documents and evidence for determination that is not possible in the summary procedure under 'Act' and appropriate remedy, if any, lies only in the civil court. The complainant has concealed the material facts and documents from this Forum and opposite party No.3. As such, he is not entitled to any relief. He has concealed the fact that his dispute is only with opposite party Nos.1 and 2 and PF account bearing No.PN/14751/70 and PN/14751/10 do not pertain to the complainant Resham Singh. The complainant is not 'consumer' of opposite parties. He has no locus-standi or cause-of-action to file the complaint against opposite parties. The complaint is not maintainable in its present form and it is liable to be dismissed. On merits, opposite party No.3 has reiterated its version as taken in the legal objections as detailed above and prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 8.6.2018, (Ex.C1) and documents, (Ex.C2 to Ex.C17). In order to rebut the evidence of complainant, opposite party Nos.1 and 2 have tendered into evidence photocopy of affidavit of Resham Singh, (Ex.OP1/1); affidavit of Jaswinder Singh Mann dated 17.7.2018, (Ex.OP1/6) and documents, (Ex.OP1/2 to Ex.OP1/5). Opposite party No.3 has tendered into evidence affidavit of Kuldeep Bhagat, (Ex. OP3/2) and documents, (Ex.OP3/1). We have heard learned counsel for the parties and gone through the record. Counsel for complainant has argued that the complainant was employed as work charge employee with opposite party No.1 and his service was regularised on 5.9.1999 with opposite party No.2. It is further argued that earlier, the complainant was serving at Faridkot office and deductions on account of EPF 50% share/contribution of employee was made by Faridkot office from his salary and 50% contribution from the employer. Similar process was adopted by opposite party No.2. It is furher argued that the complainant retired as Supervisor on 30.6.2017. However, opposite party No.1 vide letter dated 5.9.2017 recommended deductions of Rs.53,584/- on account of EPF and opposite party No.2 recommended deductions of Rs.1,22,371/- on account of EPF vide letter dated 9.5.2017 and accordingly, total amount of Rs.1,75,955/- was deducted from the benefits payable to the complainant. The complainant had given consent for deductions under compelled circumstances as opposite party Nos.1 and 2 had stopped his retiral benefits. The complainant had got the legal notice served upon opposite parties, but they have failed to refund the said amount. It is further argued that although, opposite party Nos.1 and 2 have recovered Rs.1,75,955/- from the retiral benefits payable to the complainant. However, opposite party No.3 had paid only amount of Rs.48,028/- to the complainant and Rs.8500/- was refunded to opposite party Nos.1 and 2 and as such, remaining amount is liable to be refunded to the complainant. On the other hand, learned counsel for opposite party Nos.1 and 2 has argued that the complainant was appointed as work charge staff on 11.7.1986 and regularised on 5.4.1999 and thereafter retired on 30.6.2017 and was entitled to retiral benefits from April 1999 to June 2017. However, as per instructions issued from time to time, if the complainant wants to get benefits of his work charge service, he was required to refund/deposit whole amount of his EPF for the period i.e. 16.7.1986 to 31.10.1996 and November 1996 to March 1999. Since the complainant opted for retirement benefits for the work charge service and also submitted affidavit to this effect with his free will, as such, EPF contribution for the period from July 1986 to March 1999 was rightly recovered from the complainant. As such, there is no deficiency in services on the part of opposite party Nos.1 and 2. It is further argued by learned counsel for opposite party Nos.1 and 2 that the complainant does not fall under the definition of 'consumer' U/s 2(1)(d) of 'Act'. As such, the complaint is liable to be dismissed. To support these submissions, learned counsel for opposite party Nos.1 and 2 has cited following cases law:- i) Decision of Hon'ble Supreme Court of India in case Dr.Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Others, 2014(2) MPHT 1; ii) Decision of Hon'ble National Commission, New Delhi reported in Revison Petition No.626 of 2016 Dated 17.5.2016 in case Kunjithomman E.T Elengical House, Kozhipilly P.O. Kothamangalam Vs. Chairman-cum-Managing Director, United India Insurance Co. Ltd. Learned counsel for opposite party No.3 has argued that the complainant has no dispute with opposite party No.3 and complainant has mentioned the wrong PPF account number. It is further argued that this Commission has no jurisdiction to entertain the present complaint and as such, the complaint is liable to be dismissed. It is further argued that opposite party No.3 has produced statement, (Ex.OP3/3), as per which amount of Rs.48,609/- on account of EPF and Rs.8500/- on account of pension fund were withdrawn by the complainant on 21.10.2019 during the pendency of present complaint. We have given careful consideration to these submissions and gone through the case law cited by learned counsel for opposite party Nos.1 and 2. The complainant has approached before this Commission for issuance of directions to opposite party Nos.1 and 2 to refund the excess amount recovered from his retiral benefits. However, learned counsel for opposite party Nos.1 and 2 has referred to the order of Hon'ble National Disputes Redressal Commission, New Delhi in case Kunjithomman E.T Elengical House (Supra), in which Hon'ble National Commission has held as under:- “Consumer Protection Act, 1986, Section 2(1)(d) Consumer-Conveyance Scheme, 2002 for benefits of employees-Retiral benefits-Alleged deficiency in service-Complaint filed seeking recovery of the excess amount collected from him by respondent-District Forum dismissed complaint-State Commission also dismissed-Hence, revision petition-Held, that an employee is not a consumer vis-a-vis his employer in matters such as payment of retiral benefits which obviously would include gratuity, provident fund, pension etc-No grounds to interfere with concurrent view taken by the Fora below-Revision petition dismissed.” Counsel for opposite party Nos.1 and 2 has also referred judgment of Hon'ble Supreme Court of India in case Dr.Jagmittar Sain Bhagat (Supra), in which it has been held as under:- “Consumer Protection Act, 1986 Section 2(1)(d)(ii) and 2(b) Retiral benefits denied to Govt. Servant-The Government servant cannot approach any of the Consumer Forum under Consumer Protection Act for any of the retiral benefits (Gratuity, GPR etc).” Moreover as per section 2(1) (d) of Consumer Protection Act, 1986:- “Consumer” means any person who - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.” Explanation:- for the purposes of this clause- 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment.” In view of the referred judgments, this Commission is of the view that the complainant in the present case does not fall within the definition of 'consumer' U/s 2(1)(d) of 'Act'. Accordingly, the complaint before this Commission is dismissed without any order as to costs. However, the complainant is given liberty to approach appropriate Court for recovery of excess amount, if any, recovered from his retiral benefits. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 17-07-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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