Sri Subhra Sankar Bhatta, Judicial Member
This present Appeal under Section 15 of the Consumer Protection Act, 1986 has been directed at the behest of the Appellants viz. 1) The Chairman, West Bengal Financial Corporation, 2) The Managing Director, West Bengal Financial Corporation and 3) The Dy. General Manager (ADMS), West Bengal Financial Corporation, who were the Opposite Party Nos. 1, 2 and 3 respectively before the District Consumer Disputes Redressal Commission, Kolkata, Unit-II (hereinafter referred to “as the District Commission” for short) assailing the impugned judgment and order dated 27.02.2015 passed by the District Commission in Consumer Complaint case no. CC/336/2014 wherein and whereby the Ld. District Commission was pleased to allow the complaint case on contest against the Opposite Parties with the following directions:-
O R D E R E D
That the complaint be and the same is allowed on contest against the OPs with cost of Rs.10,000/-.
OPs are hereby directed to pay a sum of Rs.30,959.25/- and also banking interest @ 4% p.a. over the same since 27.09.1983 till full and final payment of the same to the complainant.
OPs are directed to comply the order very strictly within one month from the date of this order failing which penal damages @ Rs.200/- per day shall be assessed till full compliance of the Forum`s order and if it is collected it shall be deposited to the Forum.
Even if it is found that OPs are reluctant to comply the order, in that case, penal action shall be started against them for which they shall be imposed further penalty and fine.
Respondent Sri Manik Chandra Das as Complainant instituted the petition of complaint under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties/Present Appellants and prayed for relief/reliefs as sought for in the prayer portion of the Complaint. Case of the Complainant in a nut shell is that the Complainant joined WBFC as Technical Officer In-Charge on 22.09.1969 when the Technical Wing of WBFC was opened for the first time. Subsequently, the Technical Wing of WBFC was expanded with more Technical Officers.
Further case of the Complainant is that he served WBFC for 9½ years (approx.) upto the mid of 1978 as the permanent Senior Officer Cadre of the Corporation with last pay of Rs.2200/- per month plus usual allowances before deduction in the scale of pay of Rs.800-40-1200 as it would be transpired from the letter of the then Managing Director being no. MD/Staff/5670 dated 20.09.1975.
Further case of the Complainant is that by virtue of letter no. 242 dated 31.05.1978 the WBFC abolished the post of Officer-In-Charge and as a consequence of which the Complainant was constrained to move before the Hon`ble High Court at Calcutta when he was allowed leave pending decision of the Hon`ble Court vide Civil Rule No. 9351(W) of 1978 which took 3 years and concluded with the suggestion that the Complainant may resign from his service. While the aforementioned Civil Rule No. 9351(W) of 1978 was decided finally by the Hon`ble High Court on 17.03.1982 the Complainant was not present at Calcutta and accordingly could not discuss further with WBFC and also for next 30 years when he was outside Kolkata and still now. However, during this session the WBFC in strict compliance with the said judgment dated 17.03.1982 passed by the then Lordship G. N. Roy in Civil Rule No. 9351(W) of 1978 did not also inform the Complainant as to whether or not the purported adverse remarks have been expunged and/or modified and what appropriate consequential relief has been given to the Complainant after his resignation since August, 1982.
Further case of the Complainant is that he submitted representations on three occasions as regards disbursement of retrial Benefits. Despite receiving six consecutive written representations and several visits of the Complainant the Opposite Parties did not pay any heed and kept themselves sitting tight over the matter. Resultantly, the Complainant did not receive his legitimate claim. Thereafter, the Complainant sent a legal notice to Respondent nos. 1 & 2 by hand on 28.03.2014. Having received the said legal notice of the Complainant on 28.03.2014 Respondent no. 3 most extraneously by issuing a purported and concocted letter being no.DGM (ADMN)/Staff/MCD/469 dated April 22, 2014 discarded their liabilities and statutory obligation to pay the unpaid contributory Provident Fund and Gratuity upon taking a mysterious, untrue and perverse plea that the correspondence of the Complainant recently made with the Corporation are not at all confident as to whether the said claim has still been persisting and that the fact and concocted story of alleged full and final payment of Provident Fund to the tune of Rs.30,959.25/- to the Complainant on 27.09.1983 has been confirmed in written and communicated to the Petitioner by their purported letter no. PF/GENERAL/3629 dated 29.10.2013. It has been also disclosed that and their office has not received any such correspondence from the Petitioner denying receipt of the said sum of Rs.30,959.25/- by the Complainant.
Further case of the Complainant is that in response to the said letter of the 3rd Respondent bearing no. DGM(ADMN)/Staff/MCD/469 dated April 22, 2014 the Complainant was again constrained to issue legal notice to the Respondent nos. 1, 2 & 3 by hand on 08.05.2014. But Complainant never received the aforesaid amount from the Respondents in respect of Contributory Provident Fund etc. and till now the Respondents have not taken any steps pursuant to the order of the Hon`ble High Court, Calcutta. Finding no other alternative and considering the negligent act and deficiency in service the Complainant was compelled to file the complaint case praying for necessary direction upon the Respondents to pay the actual claimed amount towards Contributory Provident Fund, Gratuity along with accrued interest thereon from August 1982.
The present Appellants as Respondent nos. 1, 2 & 3 contested the said complaint case by filing written version. It has been contended that there is no relationship of Consumer and Service Provider between the Complainant and the OPs/WBFC as the Complainant was an employee of West Bengal Financial Corporation which is a Government Concern. It has been categorically contended that the Complainant was an employee of Respondent no. 1 till August,1982 and any grievance regarding Provident Fund dues should be agitated within 2 (two) years from the date of Retirement i.e. within August, 1984. But the Complainant filed the complaint in the year 2014. It has been also contended that Section 24A of the Consumer Protection Act, 1986, Sub Paragraph (1) provides that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. On such score the petition of complaint is liable to be dismissed in limini. It has been further contended that the cause of action in the present case arose in August, 1982 and expired in August, 1984. It has been canvassed much that the Consumer Protection Act, 1986 was not in existence at that relevant point of time.
Further case of the OPs is that the Complainant did not come forward with clean hands and his plea that he never received any payment is completely false because the OPs paid the said amount by cheque dated 27.09.1983 to the Complainant. Moreover, the Complainant did nothing during the period from 1983 to 2013 i.e. for more than 30 (thirty) years he was sitting idle over the issue. On such ground the present complaint case is not also maintainable being barred by the law of limitation.
Further defence of the OPs is that the Complainant is not entitled to get gratuity benefit in accordance with the provisions of the WBFC Gratuity Regulations. It has been specifically contended that as per Provident Fund Ledger maintained in respect of the Complainant Sri Manik Chandra Das since 22.09.1970 and the said amount of Rs.30,959.25/- was already paid to the Complainant by OP no. 1 vide cheque no. A/80/258261 dated 27.09.1993 as approved by the Board of Directors of the OP/Corporation and as such nothing is remain payable to the Complainant. All benefits were already paid in the year 1983 to the Complainant. It has been also stated that despite receiving full payment by accepting the cheque no. A/80/258261 dated 27/09/1983 for Rs.30,959.25/- the Complainant has no legitimate claim at this stage. O.Ps have prayed for outright dismissal of the complaint case.
After considering the pleadings of the respective parties to the complaint case and having considered the evidence (both oral and documentary) on record adduced from the end of the respective parties Ld. District Commission below was pleased to allow the petition of complaint of the Complainant on contest against the Opposite Parties with cost. Ld. Commission below was further pleased to give certain directions upon the Opposite Parties.
Being aggrieved by and dissatisfied with the above Judgment and order of the Ld. District Commission below the Opposite Parties/West Bengal Financial Corporation as Appellants have preferred the present Appeal on various grounds as highlighted in the body of the Memorandum of Appeal. It has been contended in the memorandum of appeal that the Ld. District Commission erred in passing the impugned judgment and order in connection with complaint case no. CC/336/2014; that the Ld. Commission below failed to consider the actual facts and circumstances and the law point involved in the dispute; that the Ld. Commission below failed to appreciate that the impugned dispute arose between an employer viz. Manik Chandra Das and the employee West Bengal Financial Corporation which is beyond the purview and jurisdiction of the Consumer Protection Act, 1986; that the Ld. District Commission below failed to appreciate that the Complainant/Respondent herein retired from service of the Appellants Corporation 30 years back and his alleged claim arising out of service in the Appellant Corporation will be guided by the West Bengal Financial Corporation Staff Regulation as defined in the State Financial Corporation Act,1951; that the Ld. Commission below failed to appreciate that the Complainant/Respondent had the liberty to file an appeal before the Board of Directors of the Appellant/Corporation being aggrieved by the decision of the Managing Director; that the Ld. District Commission failed to consider that the Complainant/Respondent herein retired from service in the year 1983 and the Consumer Protection Act,1986 was not in existence at the relevant point of time; Ld. District Commission further failed to consider that the claim of the Complainant/Respondent herein does not subsist after the expiry of 3 years from the date of retirement of the Claimant from service and as uch the claim of the Complainant/Respondent is barred by the Law of Limitation; that the Ld. Commission below failed to appreciate the fact that the Complainant/Respondent herein instituted the complaint case in the year 2014 despite retiring from service in the year 1982; that the Ld. Commission below failed to appreciate that after receiving all the retiral benefits the Complainant voluntarily left Kolkata and started to stay at Pune and kept himself mum for more than 30 years; that the Ld. Commission below failed to consider the ledger sheet which was placed as a document of evidence from the end of the Corporation; that the Ld. Commission below failed to follow the judgment passed by Hon`ble Mr. Justice G. N. Roy, High Court at Calcutta in CR No. 9351(W), 1978 and wrongly passed the impugned judgment; that the Ld. Commission below failed to observe that the Ld. Commission is not the competent authority to deal with the matter pursuant to the judgment of Hon`ble High Court. On all such grounds the Appellants have prayed for allowing the present appeal after setting aside the impugned judgment and order.
The case record goes to indicate that on 08.07.2015 vide order no. 3 sole Respondent/Complainant entered his appearance through Ld. Counsel by filing Vokalatnama and the next date was fixed on 25.01.2016 for hearing of the appeal and exchanging of BNAs. Subsequently, the Respondent did not turn up to contest the appeal and as a consequence of which the present appeal was heard ex parte.
POINTS FOR DETERMINATION
1. Whether the Ld. Commission below was justified in passing the impugned judgment and order.
2. Whether the Ld. Commission below has committed gross irregularity and illegality in passing the impugned judgment and order.
3. Whether the impugned judgment and order deserve interference of this Appellate Commission.
4. Whether the impugned judgment and order can be sustained in the eye of Law.
DECISIONS WITH REASONS
All the above points are taken up together for the sake of convenience of discussion and in order to avoid unnecessary repetitions. Moreover, all the above points are interlinked with each other.
Ld. Counsel appearing for the Appellants/WBF Corporation has advanced a marathon argument on the point of jurisdiction and limitation. It has been argued that the Respondent/Complainant was an employee under the employee West Bengal Financial Corporation and as such the relationship between the Complainant and the Corporation is simply employee and employer. The present dispute cannot be considered as a consumer dispute under the Consumer Protection Act, 1986 and the Consumer Commission has no jurisdiction to settle the disputes relating to alleged non-payment of claimed amount in respect of Contributory Provident Fund and Gratuity. It has been also argued that the Respondent/Complainant retired from service in the year 1982 but the present complaint was filed in the year 2014 and as such the complaint case of the Complainant is hopelessly barred by the Law of Limitation. It has been further argued that non-compliance of the order of the Hon`ble High Court cannot be the point of consideration before the Hon`ble Commission as the same is beyond the scope of the Consumer Protection Act, 1986. It has been boldly urged that the Ld. Commission below passed the impugned judgment and order basing upon presumption, surmise and conjecture and the Ld. Commission below travelled beyond the scope and the ambit of the jurisdiction as conferred by the Consumer Protection Act, 1986. It has been also argued that at the relevant time of retirement of the Respondent/Complainant from service the Consumer Protection Act, 1986 was not in existence and force. Ld. Counsel has prayed for allowing the present appeal after setting aside the impugned judgment and order of the Commission below:
In support of the above contention Ld. Counsel for the Appellants/WBFC has placed reliance upon the following judgments reported in:-
a) 2016(3) CPR321(NC) Kunjithommane E.T. …(Petitioner)
Vs
Chairman-Cum-Managing Director, United India Insurance Company Ltd. …. (Respondent)
b) 2016(1) CPR690(NC) Deputy General Manager, Dena Bank & Another….. (Petitioners)
Vs.
Inderjit Singh Suri (Respondent)
Admittedly, the Respondent (herein)/Complainant was an employee of the Appellant Corporation till August, 1982. The Respondent/Complainant instituted the complaint case on 17.07.2014 for non-payment of the amount towards Contributory Provident Fund and Gratuity along with interest accrued thereon from August, 1982 till the date of its actual payment. The Respondent/Complainant further prayed for a sum of Rs.1,00,000/- towards compensation and Rs.20,000/- towards litigation cost.
The moot question that arises for consideration as to whether the Respondent/Complainant is a consumer under his employer or not, Section 2(1)(d) of the Consumer Protection Act, 1986 provides the definition of consumer which defines the term “Consumer” to mean a person who purchases goods or hires or avails services for consideration. Here in the present case no consideration was paid by the Respondent/Complainant to the Appellant/Corporation being an employee of the State of West Bengal. Admittedly, the Respondent/Complainant retired from service in the year 1982 and he filed the complaint case before the Ld. Commission below in the year, 2014 for non-payment of Contributory Provident Fund and Gratuity as retired person.
In 2016(3) CPR 321(NC), the Hon`ble National Commission was pleased to hold that an employee is not a Consumer vis—a—vis his employer in matters such as payment retiral benefits which obviously would include Gratuity, Provident Fund, Pension etc. Paragraph no. 6 of the said judgment is very much clear and relevant on this issue which runs as follows:-
Para-6
In Jagmittar Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors., the appellant before the Hon`ble Supreme Court Joined Health Department of the Government of Haryana as a Medical Officer and took voluntary retirement. Claiming that he had not been paid of his retiral benefits and penal rent had also been deducted from his dues, he filed a complaint before the Consumer Forum, Faridabad for the redressal of his grievances. The complaint, however, was dismissed on merits. Being aggrieved, he approached the State Commission by way of an appeal. The appeal was dismissed on the ground that the complaint itself was not maintainable since he was not a consumer within the meaning of the Consumer Protection Act. The appellant thereupon approached this Commission by way of a revision petition. The said revision petition having been dismissed he approached the Hon`ble Supreme Court after taking special leave to appeal. It was contended on behalf of the state of Haryana that service matters of a Government servant cannot be dealt with by any of the forums in the hierarchy of the Consumer Protection Act. Rejecting the appeal it was held by the Hon`ble Supreme Court that a consumer forum cannot deal with the service matters of the government servants. Reference in this regard was made to the earlier decision in Board of Secondary Education Vs. Santosh Kumar Sahoo and Bihar School Examination Board Vs. Suresh Prasad Sinha. The Hon`ble Supreme Court also considered its earlier decision in Bhavani (supra) and concluded as under in para 20 and 21 of the judgment.
“20. In view of the above, 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 and 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.
21. In view of the above we hold that the government servant cannot approach any of the forum under the Act for any of the retiral benefits.”
Keeping in mind the above observations of the Hon`ble Apex Court we hold and firmly hold that the Government Servant cannot approach any of the forum under the Consumer Protection Act for any of the retiral benefits. Considering the facts, circumstances and nature of evidence (both oral and documentary) on record we have no hesitation to conclude that the Respondent/Complainant retired from the service in the year 1982 from the West Bengal Financial Corporation and claimed his retiral benefits such as Contributory Provident Fund and Gratuity before the WBFC but keeping himself silent for a prolonged period of more than 30 years. The Respondent/Complainant instituted the petition of complaint in the year 2014 and as such the claim of the Complainant is also hopelessly barred by the Law of Limitation. Undoubtedly, at the relevant point of time there was no Consumer Protection Act in existence. As a matter of fact the claim of the Respondent/Complainant cannot be and should not be adjudged by any of the Consumer Commission. We further hold that disputes regarding service conditions or payment of provident fund and gratuity or any retiral benefits cannot be raised before any of the Consumer Commissions by an employee.
Considering all aspects from all angles and having considered the argument advanced from the end of the Appellant/Corporation and with our full regard to the observations of the Hon`ble Apex Court and Hon`ble National Commission we come to an irresistible conclusion that there are gross error, irregularity and illegality in the impugned judgment and order passed by the Ld. District Commission, Unit-II, Kolkata in connection with complaint case no. CC/336/2014. Thus being the position we have no hesitation to hold that the Ld. Commission below was totally wrong in the approach and ultimate conclusion. Ld. Commission below failed to appreciate that there was no relationship of Consumer between the Complainant and the Appellant/Corporation within the purview of Consumer Protection Act. The impugned judgment and order cannot sustain in the eye of Law. It deserves interference of this Appellate Authority.
Thus, all the above points are answered against the Respondent.
It is,
therefore,
O R D E R E D
That the present appeal being no. A/390/2015 be and the same is allowed ex parte against the Respondent/Complainant but considering the circumstances without any order as to costs.
The impugned judgment and order dated 27.02.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Unit-II, Kolkata in connection with complaint case no. CC/336/2014 are hereby set aside.
Let a copy of this judgment and order be transmitted to the Commission below forthwith for information and taking necessary action.
Thus, the Appeal stands disposed of.
Note accordingly.
