Orissa

Rayagada

CC/205/2016

Sri Kiran Kumar Patnaik - Complainant(s)

Versus

The District Fisheries Officer - Opp.Party(s)

Self

27 Dec 2018

ORDER

                                DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 205 / 2016.                                Date.     27    .12  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Kiran Kumar Patnaik, S/O:  Late Broja Sundar Patnaik, At: Raniguda Farm,   Dist:Rayagada  (Odisha)                    .                                               …. Complainant.

Versus.

1.The  District  Fisheries Officer, Rayagada.

2.Director of Fisheries,  Po/Dist:  Cuttack.

3.Sr. Accounts Officer,  Office of the Accountant  General (A&E),Odisha,Bhubaneswar.                                                                                                     .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.P No. 1 & 2  :- In person.

For the O.P. No.  3:- Sri Sudhir Kumar Patra, Advocate.

JUDGEMENT

       The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non payment of   retrial benefits on superannuation  for which  the complainant  sought for redressal of the grievances raised by the complainant.

          On being noticed the O.P. No.1 filed written version and submitted that  Sri Kiran Kumar Pattnaik was working   as JFTA in the establishment of O.P No.1 and attaining the age  of superannuation he retired from Govt.  service w.e.f.  28.2.2014  A.N. Prior to his retirement his date  of annual normal increment was Ist. August, in every and accordingly his last increment was sanctioned vide this office  order No. 673 Dt.30.08.2013 to Rs.9,160/- to Rs. 9,500/- w.e.f. 1.8.2013  in the PB Rs. 5,200/- to 20,200/-. In the mean time  after implementation  of RACP scheme proposal was forwarded to Directorate of Fisheries, Odisha, Cuttack vide this office Lr. No. 1040 Dt. 21.5.2014 for  sanction of RACP pay of Sri Patnaik, JFTA retired and the RACP has been sanctioned and communicated  vide Directorate of Fisheries Letter No. 754  Dt. 16.1.2015 in  favour of complainant. After fixation of pay in the  RACP scheme his final pension paper was sent  to the  Directorate of Fisheries, Odisha, Cuttack vide this office Lr. No. 150 Dt. 5.2.2015.  Bud due to requirement of some other pension papers the same were submitted  to the O.P. No.2 vide Lr. No. 16475 Dt. 11.12.2015 this office has been intimated that increment sanctioned  w.e.f. 1.8.2013  is not admissible  and the O.P. No.1 has been instructed to recover the excess amount from the complainant.  Again instruction has been received from the O.P. No.2 vide Lr. No. 3008 Dt. 24.2.2016 to recover the excess paid salary towards  differential  amount @ Rs.340/- w.e.f. 1.8.2013 to 31.12.2013 from the complainant. Accordingly Rs. 3230/- has been recovered from the complainant and deposited vide Rayagada Treasury challan No.  202 Dt.14.3.2016 and intimated to the O.P. No.2 vide this office Lr. No. 422 Dt.19.3.2016. The commuted value of pension Rs. 2,31,040/- and unutilized leave salary of the complainant  has also been  drawn and paid to him during March, 2016. In the mean time his final pension papers  has also forwarded by the O.P. No.2 to the O.P. No.3 for sanction of pension vide Lr. No. 5980 Dt. 18.4.2016.

         

          On being noticed the O.P. No. 3  filed  written version through their learned counsel   refuting the allegation levelled against  them. The O.P No.3  taking one and other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No.3. Hence the O.P No.  3   prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.Ps   appeared and defend the case.  Heard arguments from the learned counsels for the O.P No.3   and from the O.P. No.1   inter alia  complainant.    Perused the record, documents,  written version filed by the parties. 

                This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law                                           

                                                FINDINGS.

          There is no dispute the complainant Sri Kiran Kumar Pattnaik  was working as JFTA under the control of Erstwhile District Fisheries Officer, Rayagada and  had already  retired on Dt. 28.2.2014 on attaining  the age of superannuation. Again there is no dispute the complainant has not received his final pension from the O.Ps.

          The O.P. No.3  in their written version contended that  the O.P. No.2 vide his Letter No. 5980 Dt. 18.4.2016 submitted the pension papers of the complainant to this office for necessary  authorisation of pensionery benefits.  While reviewing the pension case it is found  that  Rs.10/- in excess in the  pay was allowed on 1.8.2006. As a result the last pay was arrived  at Rs. 9,490/- + G.P. Rs. 2,000/- instead of Rs. 9,500/- +GP Rs. 2,000/- as averred by  this  complainant. Accordingly, the monthly pension was authorised   at Rs.5,745/-. As regards to authorization commuted value of pension, it is submitted that as per the date of acknowledgement of commutation application  i.e. OCS(Com of pension ) form No. 1 is 5.2.2015 and the date of birth  of the  complainant is  Dt..5.2.1956.  So the age as on the next birth day for calculation of commutation value is 60 years taking into account of the date of acknowledgement of commutation application.  Accordingly, the O.P. No.3(A.G.) has authorised the CVP amount of Rs. 2,28,523/- correctly  taking next birth day as 60 years by commuting 40% of pension i.e. Rs.2,298/- as calculated  2,298/- x 12 x 8,287/-) Rs. 2,28,522.31 or Rs. 2,28, 523/- as provided in revised commutation table. Thee copies of the  acknowledgement of commutation application dated. 5.2.2015 and the copy of the revised  commutation table are in the filed which  is marked  as Annexure-I. So the complainants contention to calculate the commuted value taking into account the age at next birth day for 59 days is not correct and tenable as per rule.

                The O.P. No.3 in their written version   contended that as regards to the jurisdiction and maintainability of the present case before the forum.  It is submitted that in terms of Section-28 (Misc.), chapter-V of the  Central Administrative  Tribunal Act, 1985, all the service   matters are amenable to the  Jurisdiction of Administrative  Tribunal’s.

          The O.P. No.3 in their written version   contended that this forum in as much as the complainant, as a ‘Consumer’, does not fulfill the  requirements of definition  under Section -2(i)(d) and 2(i)(o) of the C.P. Act, 1986, nor his claims as contained in the present complaint comes under the purview of the C.P.Act, 1986. In other words, the complainant has not  hired the services of the O.P. No.1 on payment of consideration.

          The O.P. No.3 in their written version   contended that this forum has no jurisdiction to redress the grievance as contained in the complaint case in view of catena of judgment delivered  by the Hon’ble Apex Court in the case of State of Odisha Vrts. LIC of India  (AIR 1996 SC page No. 2519), the Hon’ble  National Commission in the case of Roshan Lal Ahuja Vrs. Union of India and others 1995(2) CPR page Nol. 185 and Revision  petitions  R.P. No.961 of 1997, R.P. No.933 of 2001, R.P. No. 1115/2001, R.P. No. 1319/2001 and R.P. No.1775 of 2001 filed  by the Comptroller & Auditor General of India  and some Accountants General of different States of the country  against the Orders of State Commissions of different states, the Hon’ble State Commission of Madhya Pradesh, in the case of A.G ‘ Vrs. District consumer forum, Sherore and others (1993 CCJ page No. 601) and the Hon’ble  State Commission of Odisha in the cases Accountant General (A&E)  Odisha Vrs. G.C. Patnaik and others CDA No. 281/1993 decided on 17.9.1997, Accounts officer,O/O of the A.G (A&E) Odisha, BBSR Vrs. Tirthabasi Mohapatra & Ors. CDA 127 of 1998 decided  on 9.10.1998,  and  other Hon’ble  Odisha State commission, Cuttack’s citation where in the Hon’ble State commission observed  “The consumer  courts cannot try the cases relating to the service conditions of a Govt. employee as no  consideration is paid by such employee to the O.P. No.4. and latter is not providing any service within the meaning of C.P.Act, 1986.

          The O.P. No.3 in their written version again  contended that further while dealing with the retirement claims of State Govt.  employees, the  O.P. No.4 has been rendering and discharging various services free of charges.  The complainant had not paid any service charges or any consideration amount to this O.P. Since the service provided by the office of the O.P. No.4 is not  coming within the  meaning of Section-2(i_ (o) of the  C.P.Act, 1986, the complainant’s grievances in shape of  any representation can not be included  within the definition of ‘Complainant’  under Section 2(b) (i) & 2(d) of the C.P. Act, 1986.

          The O.P. No.3 in their written version further  contended that in view  of the facts  stated above, this O.P. No.3  submits that this forum has no jurisdiction to  entertain  the consumer dispute case relating to service matter and adjudicate the same under the provision of the C.P. Act, 1986.

                It is   pertinent to mention here  that in case arising out of Civil Appeal No. 5476  of 2013 (arising  out of SLP© No. 1138 of 2012  Dr. Jagatmmittar Sain Vagat Vrs.   Director, Health Services, Haryana, the Hon’ble Apex Court has  categorically held that by no stretch of imagination  a Govt. Servant can raise any dispute  regarding the service conditions of payment of gratuity, G.P.F or any of hire retirement benefits  before any of the forum  under the Act.  The Govt. servant does not fall  under the definition of ‘Consumer’  as defined U/S-2(1)(d)(ii) of the C.P.Act, 1986. The said   Govt.  servant is entitled to claim his retirement benefits strictly in accordance with the service conditions and regulations or statutory rules framed  for that purpose. The appropriate Forum, for redressal of any of his grievances, may be the Administrative Tribunal or any other civil court but  certainly not a forum under the Act. The Hon’ble National Commission in a decision reported in IV(2008) CPJ 146 (NC), State of Haryana Vrs.  V.Lila Ram has also held that complainant being a Govt. servant was not a consumer.  Payment of gratuity is also not coming under C.P. Act.  In a  decision reported in 11(2006) C PJ 391 (Mah) Mohammad Ibrahim Shekh Muneer Vrs. Pulgaon Cotton Mill Ltd.  it has been held that Consumer Fora has no  jurisdiction to entertain a complaint  in respect of  non payment of gratuity . The complainant has never hired or availed  any services (as defined U/S 2(o) of the C.P. Act for consideration from the Govt. So by no stretch of imagination  the complainant can never a be a consumer/complainant.

          This forum completely agreed with the views taken by the O.P. No. 3 (A.G.)  in their written version by  citing  apex court  decisions, inter alia this forum found   there is   no deficiency   in service on the part of the O.P No.3 in the present  case in hand.

                In view of the aforesaid  decisions, the complaint filed by the complainant  is not maintainable  before the Consumer Forum since the dispute is not coming under the C.P. Act,1986.

                The grievance of the complainant can be raised  before the appropriate court of law and not before this forum.  As the   case is not maintainable before the forum  we  do not  think  proper to go  into merit of this case.

Hence, the claim of the   complainant can not be accepted under the provisions of the C.P. Act. It is open to  complainant   ordinary remedy to approach proper forum.      As this forum had no option in law but to deny any relief  on complainants were hopelessly barred by jurisdiction. 

So  to meet the  ends of justice    the following order is passed.

ORDER.

                In resultant the complaint petition stands  dismissed.  The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is  disposed of.

                Serve the copies of the above order to the parties.

Dictated and corrected by me.      Pronounced on this         27^th.        Day of   December,  2018.

Member.                                               Member.                                                               President