RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Revision No.84 of 1997

The Accountant General (A&E),

Allahabad.                                                  …… Revisionist.

Versus

1- The District Forum (Consumer Protection)

     Lakhimpur Kheri,

2- Raghunath Prasad s/o Sri Chhavidas,

    R/o Mohalla Hatipur Nagar, Lakhimpur Kheri.

                                                                  ….Opp. Parties. 

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon'ble Sri Jugul Kishor, Member.

None appeared.

Date      18.12.2014

JUDGMENT

Sri A.K. Bose,  Member.- Aggrieved by the judgment and order dated 13.6.1997 passed by the Ld. DCDRF, Lakimpur Kheri in complaint Case No.59 of 1996, the revisionist The Accountant General (A&E), Allahabad has preferred the instant revision under Section 17(1)(b) of the Consumer Protection Act, 1986 (Act No.68 of 1986) on the ground that the impugned order dated 13.6.1997 was  Coram non judice and was passed without any inherent jurisdiction to deal with the matter. The entire proceedings were illegal and arbitrary and the impugned judgment was delivered without proper appreciation of law and application of mind, simply on the basis of surmises and conjunctures and, therefore, it has been prayed that the same be set aside in the interest of justice and fair play, otherwise, the revisionist will suffer irreparable loss.

(2)

          From perusal of the records, it transpires that the impugned judgment was delivered on 13.6.1997 against which the instant revision was filed on 9.9.1997 and during pendency of the revision Execution Proceedings bearing no.238 of 1998 was initiated, in which the Forum below awarded an imprisonment for the period of one month without following the due process of law to the representative of the appellant Shri S.C. Mishra who had come for Pairvi on 28.10.1998. We intend to deal this aspect of the matter at the appropriate stage.

          The factual matrix of the case is that the OP Raghunath Prasad s/o Chhavidas was a Government employee and retired as JDA from Collectorate,  Lakhimput Kheri on 30.9.1988. His GPF number was ABU 34298; and upon his retirement, 90% of the same was paid to him in due course of time. There is no dispute in this regard. However, remaining 10% of the GPF was withheld for want of NOC from the D.M., Lakhimpur Kheri. Since no such authorization was received, therefore, the balance amount of Rs.8,068.00 was not paid to him in time. Thereafter, an application for payment of the balance was received alongwith NOC and accordingly, the Authority Letter was issued on 6.10.1998 in view of the Rule 11(4) of the G.P.F. Rules (U.P) 1985. The revisionist was given interest from the date of submission of the application as per Rules contained in Rules, 1985. As such, it has been contended that no remiss was committed by the revisionist. Apart from this, the Forum had no inherent jurisdiction to deal with the matter as it is

(3)

a settled law that the functioning of the revisionist Accountant General (A&E) is statutory in nature and, therefore, is not covered under the Act, 68 of 1986. It has further been prayed that the impugned judgment and order dated 13.6.1997 passed in complaint case no.59 of 1996 be set aside alongwith all other unexcutable orders.

We have heard the Ld. Counsel for the revisionist. The OP did not appear in spite of notice. From perusal of the records, it transpires that the revisionist Accountant General (A&E) U.P. was directed on 13.6.1997 to pay the balance 10% amount of the GPF alongwith 18% interest from the date of retirement of the OP/complainant alongwith compensation and other consequential reliefs. It has been argued on behalf of the revisionist that the impugned order is Coram non judice and, therefore, all consequential reliefs granted to the OP in execution are unenforceable and unexecutable as held in III (2013 CPJ 22 (SC). We have given due consideration to all aspects of the matter. There is no denial of the fact that 90% of the GPF amount was paid to the OP Raghunath Prasad on his retirement and the balance 10% was subsequently paid to him with interest on 6.10.1998 upon his submitting the application for release of the same. Thus, there was no mala-fide intention or remiss on the part of the revisionist. The Forum below failed to deal with this aspect of the matter and delivered the judgment on 13.6.1997 and, therefore, passed conviction order on 28.10.1998 in execution proceeding. It may be noted here that the Hon'ble Supreme Court was pleased to hold in Jagmittar

(4)

Sain Bhagat (Dr.) Vs. Director, Health Services, Haryana and Ors., III(2013) CPJ 22 (SC), at para 16 that:

          "It is evident that by no stretch of imagination a Government servant can raise any dispute regarding his service conditions or for payment of gratuity or GPF or any of his retiral benefits before any of the Forum under the Act. The Government servant does not fall under the definition of a "consumer" as defined under Section 2(1)(d)(ii) of the Act. Such Government servant is entitled to claim his retiral benefits strictly in accordance with his service conditions land regulations or statutory rules framed for that purpose. The appropriate forum, for redressal of any his grievance, may be the State Administrative Tribunal, if any, or Civil Court but certainly not a Forum under the Act."

          It may also be noted here that it is a settled legal position that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity, as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the Forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party should not be permitted to perpetuate and

(5)

perpetrate, defeating the legislative animation. The Court/ Tribunal or any Forum cannot derive jurisdiction apart from the Statute. In such eventuality, the doctrine of waiver also does not apply, as held in AIR 1951 SC 230, AIR 1978 SC 22, AIR 1981 SC 537, AIR 1999 SC 2213 and Jagmitter Sain Bhagat (Dr. Vs. Director, Health Services Haryana & Ors., III (2013) CPJ 22 (SC) at para 7. Since subject matter in hand relates to payment of retiral benefits, therefore, in view of the rulings laid down in Krishna Kumar Gupta Vs. Bank of India and another, I (2003) CPJ 152 (NC), Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, Civil Appeal No.411 of 1997 decided on 14.12.1999 by the Hon'ble Apex Court and Jagmittar Sain Bhagat (Dr.) Vs. Director, Health Services, Haryana and Ors., III(2013) CPJ 22 (SC), we are of the considered view that  the Forum below lacked initial jurisdiction to deal with the matter. The OP/complainant was not a consumer as defined under Section 2(1)(d)(ii) of the Act and, therefore, the judgment and order, being Coram non judice, is liable to be set aside and consequently, all orders passed in connected execution proceeding is also liable to be set aside as non-est.

          It will not be inappropriate here to mention here that during the pendency of the appeal, Execution Proceedings bearing no.238 of 1998 was initiated against the revisionist and the Forum below without even naming the officer or summoning the attendance of revisionist/OP

(6)

sentenced his representative Sri Suresh Chandra Misra, Sr. Accounts Officer of the AGUP to imprisonment for a period of one month.

From perusal of the order, it is clear that while passing the impugned order of conviction dated 28.10.1998, the Forum below did not even follow the procedure laid down for summary trial as provided under Chapter XXI of the Cr.P.C. For the offence to be tried summarily, there is a procedure laid down under Section 262 Cr.P.C. which provides that: (1) In trials under this Chapter, the procedure specified in this code for the trial of summary case shall be followed except as hereinafter mentioned. (2) no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter." As per provisions laid down under sub-clause (1) above, apparently, in summary trials, the procedure specified in Cr.P.C. for the trial of summary cases shall be followed which are contained under Section 251 to 255 Cr.P.C. Apart from this, the Forum below did not take cognizance of the offence as Judicial Magistrate, First Class as provided under 190 Cr.P.C. and the attendance of the accused was not formally procured by invoking the provisions of Chapter VI of the Cr.P.C. pertaining to processes to compel the attendance of the accused. Under the provisions of law, when an accused appears or is brought before the Consumer Forum, functioning as Judicial Magistrate, Ist Class, the particulars of the offence of which he is accused

(7)

of shall have to be stated to him and he shall be asked as to whether he pleads guilty or has any defence to make. If he pleads guilty, then nothing further is required to be done and an order of conviction may be passed and the accused may be sentenced to imprisonment at once. If the person/accused does not plead guilty and has any defence to make then he shall have to be heard in the light of the defence in respect to the offence alleged to have been committed by him in reference to all facts and circumstances. If, after affording an opportunity of hearing and after considering the entire circumstances of the case, the Forum finds that the accused is not guilty, he shall be acquitted; and if he is found guilty, the Forum shall pass a sentence as provided under Section 27 read with Section 13(5) of the Act. In the instant matter, the Forum below, being empowered as Judicial Magistrate, Ist Class did not follow the procedure for trial of an accused summarily as observed hereinabove. It did not even take pain to summon the revisionist/OP and sentenced his representative Sri Suresh Chandra Misra who had come in connection for pairvi of the case. Sri Misra was not a party to the complaint and did not get the opportunity of audi-alterum-partem. Thus, the impugned conviction order passed in Execution Case no.238 of 1998 is not only inherent jurisdiction but is totally perverse. The Forum below has not given any finding regarding non-compliance of the order or its jurisdiction to deal with the matter. All these remisses categorically indicate that the impugned order was passed without following procedure established under the law and as such it cannot be allowed

(8)

to sustain either. Therefore, in view of the observation made by this Commission in Revision No.41 of 2003, GDA vs. Sripal Dixit, we are of the considered view that the impugned order passed in Execution Case no.238 of  1998 is a non-est order and, therefore, it also requires to be set aside alongwith judgment and order passed in complaint case no.59 of 1996.   

ORDER

          The revision is allowed. The judgment and order dated 13.6.1997 passed in complaint case no.59 of 1996 by the Ld. DCDRF, Lakhimpur Kheri is set aside as Coram non judice and consequently, the order passed by the Forum below in Execution Petition no.238 of 1998, being non-est order, is also set aside. No order as to costs. Certified copy of this order be provided to the parties in accordance withr rules.   

               (A.K. Bose)                            (Jugul Kishor)       

           Presiding Member                        Member       

Jafri

PA II Court No.5