BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 244/2008 Filed on 20.10.2008
Dated : 30.08.2010
Complainants:
Consumer Protection Council of Kerala represented by its General Secretary, Advocate K.G. M Nair, No. 153, A.K.G. Nagar, Peroorkada, Thiruvananthapuram-695 005.
Jacob Zachariah, Chempotharayil, House No. 15, J.P. Nagar-II Stage, R.S.P.O, Thiruvalla- 689 111.
Opposite parties:
S. Elango, General Manager, Regional Office, Food Corporation of India, Kesavadasapuram, Thiruvananthapuram.
The Executive Director(South), Zonal Office, Food Corporation of India, Chennai-600 006.
The Chairman & Managing Director, Food Corporation of India, 16-20, Barakhampa Lane, New Delhi- 110 001.
(By adv. G.V. Sudheer Kumar)
This O.P having been taken as heard on 30.06.2010, the Forum on 30.08.2010 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that the 2nd complainant was an employee of the Food Corporation of India (herein after called the FCI), the opposite parties in this case, that he was a subscriber of the Contributory Provident Fund (herein after called the CPF) managed by the FCI, that the 2nd complainant retired on 31.08.2006, that an amount of 4,50,762/- was sanctioned by the CPF Wing of the 2nd opposite party vide order dated 28.12.2006, that 1st opposite party withheld the said payment for 3 months, that the 2nd complainant was suffering financial loss, inconvenience and was getting frustrated by this delaying tactics of the 1st opposite party, that 2nd complainant met the 1st opposite party for a discussion on 13.03.2007, 1st opposite party pressurized him to sign and submit a consent letter to withhold a portion of the final CPF payment, allegedly as security towards probable future liability of the 2nd complainant to the FCI. 2nd complainant had no outstanding liability to the FCI and hence did not sign any such consent letter. This refusal enraged the 1st opposite party and he threatened the 2nd complainant that the sanctioned amount would not be disbursed in the near future. 3rd opposite party vide letter dated 28.03.2007 ordered the 1st opposite party to release the CPF amount immediately. Finally 1st opposite party was forced to disburse the amount on 04.04.2007, that though the amount was disbursed after a delay of 3 months no action was taken for paying interest for the delayed period and compensation for the deficiency in service. 1st opposite party is duty bound to disburse the amount as sanctioned by 2nd opposite party. Due to the acts of omissions and commissions of 1st opposite party the amount due to the 2nd complainant was finally disbursed only after 3 months from the date it was due. Hence this complaint to direct opposite parties to pay the 2nd complainant an amount of Rs. 11,392/- towards interest for delayed payment of CPF final payment along with Rs. 5,000/- towards compensation and Rs. 2,000/- towards costs.
Opposite parties filed version contending interalia that the complaint is not maintainable either in law or on facts, that complainant is not a consumer, that the issue involved is not a dispute as defined in the Consumer Protection Act, that there was only an employer-employee relationship between the complainant and opposite parties,. The complaint is bad for misjoinder of parties. Opposite parties never withheld any amount due to the complainant illegally, that the alleged delay in payment of CPF was due to the reasons beyond the control of the opposite parties, that FCI vide circular dated 09.09.1997 had allowed stepping up of pay with reference to the juniors who were getting higher pay than the seniors, due to the grand of additional increment on completion of 8 years service in the grade, that subsequently the Head Quarters of FCI had withdrawn abinitio the said circular and directed to review all such cases and effect recoveries, that while the recovery proceedings were under process an O.P was filed by some employees before the Hon'ble High Court of Kerala challenging the circular No. WR-09-2006-05 dated 01.05.2006, that an interim stay was also issued in the said O.P till the next posting date of the said case, that all recovery proceedings were immediately stopped in view of the pendency of the said case challenging the said circular. In the meanwhile 2nd complainant had retired from service and as per the practice prevailing in the FCI the following terminal benefits were paid to him on the date of retirement itself. (1) Gratuity-Rs. 3,50,000/-, Leave encashment- Rs. 2,02,000/-, CPF (90%)-Rs. 9,00,000/-. The balance 10% CPF of the 2nd complainant was also processed and sanctioned vide Zonal Office, Chennai S/O dated 28.12.2006, that the same could not be given to him in view of the instructions issued vide circular No. WR-09-2006-05. Later a meeting of similarly placed Ex-employees was held on 13.03.2007 to find out a viable alternative to make good the loss in case a favourable decision is given by the court on withdrawal of the stepping up of pay. Finally the matter was personally discussed with the higher ups by the 1st opposite party and the amount could be released to 2nd complainant on 04.04.2007. On each occasion the 1st opposite party convinced the actual position of the matter to other opposite parties and got the position to be clarified from the head quarters and released the amounts to the complainant on 04.04.2007. 2nd complainant had received the CPF without any objection and without reserving any right to make any claim in future. Opposite parties have done every thing legally and properly. Complainant is not entitled to get any compensation as alleged. Further the complaint for realization of interest is not maintainable in law. Hence opposite parties prayed for dismissal of the complaint.
The points that arise for consideration are:-
Whether the complainant is a consumer as defined in Consumer Protection Act/
Whether there is deficiency in service on the part of opposite parties?
Whether the complainant is entitled to compensation and costs?
In support of the complaint, 2nd complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and has marked Exts. P1 to P17. PW1 has been cross examined by the opposite parties. Opposite party has not filed affidavit or documents.
Points (i) to (iii):- Admittedly, 2nd complainant was an employee of the Food Corporation of India and a subscriber of the Contributory Provident Fund (CPF) managed by the FCI. The 2nd complainant retired on 31.08.2006. The issue herein is the delay in disbursement of the final payment of the CPF dues of the complainant. It has been contended by the opposite parties that complainant is not a consumer as defined in the Consumer Protection Act, that there was only an employer and employee relationship between the complainant and the opposite parties. Stretching contentions the learned counsel for opposite parties states that intra-relationship between the complainant and opposite parties was a contract of personal service and in that view of the matter, services rendered by the complainant would not attract Sec. 2 (d) of the Consumer Protection Act.
Regard being to nature of service rendered by employees to State Government and Union Government, that has been held to be not 'service' within the meaning of the Act. Application of this nature however as far case under consideration need to be noted. The complainant/employee rendered his service to opposite parties/FCI which is not a sovereign body, and that apart, both the complainant and FCI had been contributing to Provident Fund which accumulated in the account of the complainant. An employee of a State Government or Central Government cannot raise consumer dispute in the matter of payment of provident fund as the State Government or the Central Government are not contributing to the Provident Fund of their employees, in equal proportion. Almost in similar circumstances in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi III(1999) CPJ 36 (SC), Hon'ble Apex Court in the backdrop of contribution of Provident Fund by the Employer held that service rendered by the employee is considered to be in service as defined under Sec. 2 (1) (d) of the Act. Service of Provident Fund Commissioner in running scheme was deemed to be availed of for consideration by Central Government for benefit of employees treating them as beneficiary within the meaning of the word used in definition of consumer. As held by the Hon'ble Apex Court, the definition of consumer is wide and covers in its ambit not only goods but also services bought or hired for consideration. Service herein means 'service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information but does not include the rendering or any service free of charge or under a contract of personal service'. The definition of service unambiguously indicates that the definition is not restrictive and includes within its ambit such service as well which are specified therein. However service hired or availed which are free of charge or under a contract of personal service have specifically been excluded. In backdrop of the scheme which required employer FCI to contribute to the PF, service rendered by employee has to be considered 'service' within the meaning of Sec. 2(1)(o) and employed to be a consumer within the meaning of Sec.2(1)(d) of the Act. The contention raised on behalf of the employer/opposite parties that the services were rendered under the contract of personal service and therefore it does not come within the purview of the Act is not maintainable and hence rejected. In view of the above, we find complainant is a consumer and dispute raised by him is a consumer dispute.
The very case of the complainant is that though a sum of Rs. 4,50,762/- towards final payment of CPF due to him was sanctioned on 28.12.2006, 1st opposite party withheld the same for 3 months and that though the amount was disbursed after a delay of 3months no action was taken by opposite parties for paying interest for the delayed period. As regards the disbursement of the final payment of CPF dues of the complainant, the stance of the opposite parties is that they never withheld any amount due to the complainant illegally and that the alleged delay in payment of CPF was due to the reasons beyond the control of the opposite parties.
It has been contended by opposite parties that 2nd complainant has suppressed the material facts in the complaint and that the actual facts of the case are that the FCI vide circular Nos. 5/93 dated 18.02.1993 and 13/97 dated 09.09.1997 had allowed stepping up of pay with reference to juniors who were getting higher pay than their seniors, due to the grand of additional increment on completion of eight years service in the grade, that subsequently, the Head Quarter of FCI vide its circular No. WR 09-2006-05(No. WRC/32/10/2003-Vol-III) dated 01.05.2006 had withdrawn abinitio the said two circulars and directed to review all such cases and effect recoveries, that while the recovery proceedings were under process an O.P was filed by some employees before the Hon'ble High Court of Kerala challenging the said circular No. WR 09-2006-05 and an interim stay order was also issued in the said O.P till the next posting date of the said case, thereby all recovery proceedings were immediately stopped in view of the pendency of the said case challenging the said circular, that in the meanwhile the 2nd complainant, who was also an affected party of the said circular, which was under challenge, had retired from service and as per the practice prevailing in FCI the terminal benefits such as Gratuity (Rs. 3,50,000/-), leave encashment (Rs. 2,02,000/-) and CPF 90% (Rs. 9,00,000/-) were paid to him on the date or retirement itself, that the balance 10% CPF was also processed and sanctioned vide Zonal Office Chennai S/O dated 28.12.2006, but the same could not be given to him in view of the instructions issued vide circular No. WR 09-2006-05, that while on the one hand the instructions of GOI/HQs and the interest of the FCI have to be taken care of and the other no recoveries could be effected due to pendency of the said case before the High Court of Kerala. It has been contended by opposite parties that in the above circumstances the matter was taken up with the higher offices, the co-operation of the persons similarly placed Ex-employees were sought to end the stalemate, a meeting of similarly placed Ex-employees was held on 13.03.2007 to find out a viable alternative to make good the loss in case a favourable decision is given by the court on withdrawal of stepping up of pay and that finally the matter was personally discussed with the higher ups by the 1st opposite party by visiting the Head Quarters at New Delhi on 30.03.2007 ad the amount was released to 2nd complainant on 04.04.2007. Nowhere in the complaint mentions the said contentions raised by opposite parties. 2nd complainant has been cross examined at length by opposite parties. In his cross examination, 2nd complainant has admitted all the aforesaid incidents raised by opposite parties in their version. Even in the affidavit 2nd complainant has never denied the reasons for alleged delay in payment of CPF as contended by opposite parties in their version. In this case, though opposite parties have never filed affidavit in support of their version, nor have they produced any documents to corroborate their rival contentions, it is the settled position in evidence that admitted fact need not be proved. Though complainant has produced Exts. P1 to P17, most of them are communications between opposite parties and 2nd complainant from 13.03.2007 onwards. Further it is to be noted that a complaint for realisation of interest alone is not maintainable in law. Further, 2nd complainant had received the CPF dues without any protest. In view of the aforesaid discussion and of the evidence available on records, we are of the considered opinion that the alleged delay in final payment of CPF dues of the 2nd complainant was due to the reasons beyond the control of the opposite parties, and that there is no deficiency on the part of opposite parties in the disbursement of the final payment of CPF due of the 2nd complainant. Complaint has no merits at all which deserves to be dismissed.
In the result, complaint is dismissed. Parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of August 2010.
G. SIVAPRASAD,
President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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C.C. No. 244/2008
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Jacob Zachariah
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of letter dated 07.03.2007.
P2 - Copy of letter dated 14.03.2007 from the complainant.
P3 - Copy of letter dated 14.03.2007
P4 - Copy of Fax dated 19.03.2007.
P5 - Copy of registered letter dated 21.03.2007.
P6 - Copy of letter dated 28.03.2007
P7 - Copy of registered letter dated 23.05.2007.
P8 - Copy of registered letter dated 23.05.2007
P9 - Copy of letter dated 31.05.2007
P10 - Copy of letter dated 19.06.2007.
P11 - Copy of advocate notice
P12 - Copy of registered letter
P13(a)- Copy of letter dated 15.10.2007
P13(b)- Copy of letter dated 15.11.2007.
P14 - Copy of Sec. 12 of Chapter II of FCI Staff Regulation.
P15 - Copy of Sec. 12 of Chapter II of FCI Staff Regulation.
P16 - Copy of Sec. 14 of Chapter II of FCI Staff Regulation.
P17 - Copy of Regulation 27 of the FCI CPF Regulation.
P18 - Copy of the Baggage Claim Questionnaire
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
PRESIDENT
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