STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 253 of 2013 |
Date of Institution | : | 14.06.2013 |
Date of Decision | : | 21.06.2013 |
1. Ansal Properties and Infrastructure Limited through its Vice President-Operations. Sh. Vikas Gupta, having its office at SCO 183-84, Sector 9C (First Floor), Above British Library, Chandigarh.
2. Ansal Properties and Infrastructure Limited through its President-HR and Admn., Sh. Vivek Gandhi, having its office at 115, Ansal Bhawan, 16 KG Marg, New Delhi.
……Appellants/Opposite Parties No.2 and 3.
Versus
1. Sanjay Gupta son of Lt. S.P. Gupta, resident of House No.319, Sector 12A, Panchkula, Haryana.
….Respondent/Complainant.
2. The Assistant Provident Fund Commissioner (o/o Employees Provident Fund Organisation), Regional Provident Fund Office – SCO No.4 to 7, Sector 17D, Chandigarh 160017.
3. Addl. Central P.F Commissioner, Bhavishya Nidhi Bhawan, 8th Floor, 28, Community Centre, Wazirpur Industrial Area, Delhi-110502.
….Proforma Respondents/Opposite Parties No.1 and 4.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Vaibhav Narang, Advocate for the appellants.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 15.05.2013 of the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), passed in Consumer Complaint No.431 of 2012 vide which, it partly accepted the complaint of the complainant against Opposite Parties No.2 and 3 (now appellants) only and directed them, as under: -
“10. In view of the above discussion, the present complaint is allowed and opposite parties No.2 & 3 are directed as under:-
i) to pay a sum of Rs.10,000/- as compensation for mental agony and harassment caused to the complainant;
ii) to pay Rs.10,000/- as costs of litigation.
The complaint against opposite parties No.1 & 4 stands dismissed with no order as to costs.
2. This order be complied with by opposite parties No.2 & 3, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(i) above shall carry interest @18% per annum from the date of filing of this complaint till actual payment, besides payment of litigation costs.”
However, the complaint qua Opposite Parties No.1 and 4 (now respondents No.2 and 3) was dismissed by the District Forum.
2. The facts, in brief, are that the complainant, joined as Assistant General Manager with Opposite parties No.2 and 3, on 02.01.2007, at their Chandigarh Office and subsequently, he was promoted as Additional General Manager in the month of April 2009. It was stated that being the employers of the complainant, Opposite Parties No.2 and 3, used to deduct a certain amount of money towards employees provident fund, from his salary. It was further stated that the complainant was allotted Provident Fund No.DL/3364/4488, at the time of his appointment. It was further stated that an equivalent sum of Rs.10,890/- per month, was also being contributed by the employer, and as such, the total amount of Provident Fund deducted was Rs.21,780/- per month. It was further stated that the last sum of money deducted by Opposite Parties No.2 and 3, was Rs.10,890/-. It was further stated that the complainant had worked with Opposite Parties No.2 and 3, from 02.01.2007 to 04.02.2012 and his resignation was duly accepted, by the employer. It was further stated that the complainant was assured that all his dues including Provident Fund, Gratuity, Leave Encashment, Leave Travel Concession and payments of pending bills alongwith one month salary would be cleared, but, the Opposite Parties No.2 and 3, failed to clear and settle his account. It was further stated that the amount of Provident Fund dues, alongwith arrears of pension, were still lying and deposited with Opposite Parties. It was further stated that despite submitting withdrawal Form No.19, for Provident Fund and Form No.10C for Employees Provident Scheme (in fact, Employee’s Pension Scheme, 1995), to Opposite Parties No.2 and 3 (Annexures C-5 and C-6), nothing was paid to the complainant till date. It was further stated that the aforesaid acts of the Opposite Parties, in not releasing the arrears of Provident Fund and pension, to the complainant, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the C. P. Act only), for directing the Opposite Parties to release the arrears of Provident Fund and Pension, pay Rs.1,00,000/- on account of damages for causing inordinate delay in the release of pension as well as provident fund; Rs.1,00,000/- as compensation for harassment and mental agony and Rs.22,000/- as cost of litigation, was filed.
3. Opposite Party No.1, in its written version, stated that the PF account No.DL/3364/4488, against which the complainant was claiming his dues, did not belong to it and as such, it had nothing to do with the claim of the complainant. It was further stated that there was neither any deficiency, in rendering service, on the part of the Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining, averments made in the complaint, were denied.
4. Opposite Party No.4, in its written version, submitted that Forms No.19 & 10-C of the complainant, were received on 11.10.2012 and immediately, the claim of the complainant was settled. It was further stated that amounts of Rs.11,54,058/- and Rs.32,630/-, on account of full and final settlement of the Provident Fund alongwith up-to-date interest thereon and EPS withdrawal benefits, were sent through NEFT for crediting the same to the SB account of the complainant vide cheques Nos.240242 and 926539 on 11.10.2012. It was further stated that the complainant himself was alleging negligence on the part of Opposite Parties No.2 and 3, in not submitting the forms to Opposite Parties No.1 and 4. It was further stated that there was neither any deficiency, in rendering service, on the part of the Opposite Party No.4, nor did it indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.
5. Opposite Parties No.2 and 3, failed to appear before the District Forum, on 12.02.2013, on which date, the case was fixed for filing their reply and evidence, subject to payment of costs. Accordingly, they were proceeded against exparte, by the District Forum, vide order dated 12.02.2013.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint against Opposite Parties No.2 and 3 only, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.2 and 3.
9. We have heard the Counsel for the appellants/Opposite Parties No.2 and 3, at the preliminary stage, and, have carefully perused the record of the District Forum.
10. The Counsel for the appellants submitted that the District Forum failed to appreciate the real controversy. It was further submitted that the respondent No.1/complainant being a regular employee, he could not be termed as a ‘consumer’ by any stretch of imagination. In support of his contention, the Counsel for the appellants, referred to the definition of ‘consumer’ as defined in Section 2(1)(d) of the C.P. Act and submitted that the complainant being former employee of the company, was not covered under the definition of ‘consumer’. It was further submitted that the complaint should have been dismissed, as the Consumer Fora had no jurisdiction to entertain the dispute between the employer and employee. It was further submitted that the District Forum failed to appreciate the contention of the appellants, that claiming pensionary benefits, from the employer, was not a consumer dispute. It was further submitted that on the same cause of action, the complainant had also filed a civil suit in the Civil Court at Chandigarh and the issue, whether the appellants were factually at fault, would be adjudicated by the said Court. It was further submitted that the District Forum went beyond its jurisdiction in awarding Rs.20,000/- to the complainant. It was further submitted that the order passed by the District Forum is perverse, illegal and arbitrary as the District Forum, without discussing the contentions raised by the appellants, and without considering the evidence, on record, allowed the complaint. It was further submitted that the order passed by the District Forum is based merely on conjectures and surmises. It was further submitted that the impugned order, passed by the District Forum, being unsustainable, in the eye of law, be set aside.
11. The core question, which arises for our consideration, is, as to whether, respondent No.1/complainant, is ‘consumer’ or not? In Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, III (1999) CPJ 36 (SC), the Hon’ble Supreme Court of India, in Para 11, held as under: -
“11. We cannot accept the argument that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering 'service' within the meaning and scheme of the Act. The Regional Provident Fund Commissioner, under the Act and the scheme discharges statutory functions for running the scheme. It has not, in any way, been delegated with the sovereign powers of the State so as to hold it as a Central Government, being not the authority rendering the 'service' under the Act. The Commissioner is a separate and distinct entity, it cannot legally claim that the facilities provided by the 'scheme' were not "service" or that the benefits under the scheme being provided were free of charge. The definition of "consumer" under the Act includes not only the person who hires the 'services' for consideration but also the beneficiary, for whose benefit such services are hired. Even if it is held that administrative charges are paid by the Central Government and no part of it is paid by the employee, the services of the Provident Fund Commissioner in running the scheme shall be deemed to have been availed of for consideration by the Central Government for the benefit of employees who would be treated as beneficiary within the meaning of that word used in the definition of consumer. This Court in M/s.Sprinq Meadown Hospital & Anr. vs. Harjol Ahluwalia through K.S. Ahluwalia & Anr. I (1998) CPJ 1 (SC)=III (1998) SLT 684 = JT 1998 (2) SC 620, to which one of us (Saghir Ahmad. J) was a party has already held that the "consumer" means a person who hires or avails of any services and includes any beneficiary of such service other than the person who hires or avails the services. The Act gives comprehensive definition of 'consumer' who is the principal beneficiary of the legislation but at the same time in view of the comprehensive definition of the term "consumer" even a member of the family of such 'consumer' was held to be having the status of 'consumer'. In an action by any such member of the family of beneficiary of the service it will not be open for a trader to take a stand that there was no privity of contract…….
12. A perusal of the scheme clearly and unambiguously indicate that it is a 'service' within the meaning of Section 2(1)(o) and the member a 'consumer' within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the scheme are rendered free of charge and, therefore, the scheme is not a 'service' under the Act. Both the State as well as National Commission have dealt with this aspect in detail and rightly came to the conclusion that the Act was applicable in the case of the scheme on the ground that its member was a 'consumer' under Section 2(1)(d) and the scheme was a 'service' under Section (1)(o).”
11. The complainant, being an employee of Opposite Parties No.2 and 3, was member of the Employees Provident Fund Scheme 1952. Members of the Employees Provident Fund Scheme, 1952, fell within the definition of ‘consumer’ under Section 2(1)(d) of the Act. The scheme is a service under Section 2(1)(o) of the Act. The complainant, thus, fell within the definition of a ‘consumer’ under Section 2(1)(d) of the Act. The principle of law, laid down in the aforesaid case, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellants, thus, being without merit, stands rejected.
13. The Counsel for the appellants/Opposite Parties No.2 and 3, placed reliance on Maharashtra State Electricity Board & ors. Vs. Madhukar Vithal Kale and Ors., 2010 (1) CPC 237 and Premsingh Verma Vs. Cantonment Executive Officer, Cantonment Board, Mhow and Anr., 2012 (1) CPC 98. The facts of these cases, relied upon by the Counsel for the appellants/Opposite Parties No.2 and 3, are entirely different and distinguishable from the facts of the present case. Even otherwise, any principle of law laid down in the cases relied upon by the Counsel for the appellants, which is contrary to the principle of law laid down in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi’s case (supra), decided by the Hon’ble Apex Court, shall not hold field. No help, therefore, can be drawn by the Counsel for the appellants from these cases.
14. Insofar as the argument of the Counsel for the appellants that the complainant had also filed a civil Suit before the Civil Court, for the same subject matter, and, therefore, the principle of res judicata, would apply, is concerned, it is made clear that Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. Even the contention of the Counsel for the appellants, that respondent No.1/complainant filed a civil suit, is not supported by any documentary evidence, more so, such plea was not raised before the District Forum. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
15. In the instant case, the delay took place due to inaction on the part of appellants/Opposite Parties No.2 and 3. Respondent No.1/complainant produced evidence before the District Forum that he did submit Forms No.19 and 10C (Annexures C-5 and C-6) to Opposite Parties No.2 and 3 and even reminded them vide legal notice dated 14.06.2012 (Annexure C-9). It is evident from the record that the complainant resigned w.e.f. 04.02.2012, but it was only after a lapse of about nine months i.e. in October 2012, that the benefits relating to the Provident Fund and Pension were released to him. Since, the Provident Fund Account and Pension Account were maintained by Opposite Party No.4, action by it, could only be taken, on receipt of claim papers from the employer (Opposite Parties No.2 and 3) of the complainant. They (Opposite Parties No.2 and 3) chose not to file any written statement before the District Forum, for which, the District Forum rightly drew an adverse inference against them.
16. The sum total of evidence clearly suggests that there was delay on the part of appellants/Opposite Parties No.2 and 3, in processing and forwarding the claim papers of respondent No.1/complainant to Opposite Parties No.1 and 4 and undoubtedly, such an action of theirs caused the complainant, undue mental agony and physical harassment besides compelling him to resort to litigation. The findings of the District Forum, in this regard, being correct are affirmed.
17. No other point, was urged, by the Counsel for the appellants.
18. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties No.2 and 3, is dismissed, at the preliminary stage, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
21st June 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.253 of 2013)
Argued by: Sh. Vaibhav Narang, Advocate for the appellants.
Dated the 21st day of June, 2013.
ORDER
Vide our detailed order of the even date, recorded separately, this appeal filed by the appellants/Opposite Parties No.2 and 3, has been dismissed, at the preliminary stage, with no order as to costs.
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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