STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

                                    (Additional Bench)

Mr.Bahadur Singh s/o Sh.Chajja Singh, Village Dhianpura, Post Office, Kurali, Tehsil Chamakur Sahib, District Ropar, Punjab 140103

                                                                             ... Appellant.

                                                 Versus

1.  The Regional Provident Fund Commissioner (Pension EPS), SCO No.4 to 7, Sector 17, Chandigarh -160017.

2.  The Managing Director, PUNSUP, SCO No.36 to 40, Sector 34-A, Chandigarh

                                                                                ..... Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 02.02.2023 passed by       District       Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint No.1039/2019.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       MR.PREETINDER SINGH,MEMBER

Argued by:      Sh.M.G.Sharma,authorized representative of the appellant alongwith Sh.Bahadur Singh, appellant in person. 

                         Sh.Sandeep Goyal,   Advocate for respondent No.1 .

                         Ms.Anisha Sharma,Advocate for  respondent No.2.

 PER PADMA PANDEY, PRESIDING MEMBER

                   This appeal is directed against the order dated 02.02.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it dismissed the complaint, being not maintainable. However, the complainant was granted liberty to get his grievances redressed through alternative remedy, as permissible under law.   

2.       Before the Ld. Lower Commission, it was case of the complainant/appellant that he served against different positions in the office of Respondent No. 2 during the period of his service from 10/02/1977  till 28/02/2009.  As he had served  Respondent No. 2 till his superannuation  i.e. 28.02.2009, on attaining the age of 58 years, as such, he was  eligible for Monthly Superannuation Pension effective from 3 Feb.2009. OP No.2 allotted EPP No.PB/CH/4565/1295 to the complainant against which all deposits of statutory challans had been made in the office of Opposite Party No.1/respondent No.1. It was alleged that the complainant was wrongly and unlawfully terminated/dismissed from service effective from 16/09/1988 to 11/03/2005 but the Presiding Officer or Labour Court had reinstated him by granting continuity of service and ordered for the release of 50% of the back wages to the complainant. OP No.2 made the payments of salaries  to the complainant and as per the provisions of law the required statutory deductions were made from pending salary of the complainant which has later been deposited by way of challan with the Office of Provident Fund.  The complainant filed his claim Form No.PBCHD150400011327 which was wrongly rejected on 19.12.2015 by OP No.1. It has been alleged that rejection of the Claim has been done despite the fact that OP NO.1 has duly admitted the period of service of the complainant beyond 13 years and 8 Months vide their Letter No. RO/CHD/RTI-2005/2016-17408/2123 dated 10.01.2017 which abundantly holds the Complainant eligible for superannuation Monthly Pension. It has been alleged that there is no reason at all with the OPs not to fix the Superannuation Monthly Pension of the complainant. Monthly Pension is now apparently pending for release beyond 10 years. There is too much delay i.e. more than 3 Years from the date of rejection of the claim No. PBCHD150400011377 which wholly attributes to blatant deficiency of service on the part of the OPs. Alleging  deficiency in service and unfair trade practice on the part of the OPs, a consumer complaint was filed  seeking directions to the Ops to fix the Superannuation Monthly Pension effective from 03.02.2019 along with compensation for mental agony and harassment, litigation expenses etc.

3.             Pursuant to issuance of notice, Opposite Parties/respondents appeared before the Ld. Lower Commission and contested the complaint.     In its written version, OP No.1 stated that every member of Employees Provident Fund Scheme has option of either withdrawing the total amount in accordance with law or seeking monthly pension towards the amount deposited. However, the complainant has already withdrawn a sum of Rs.1.19.204/- plus another sum of Rs.22,385/- totaling to Rs.1,41,590/- on 30.03.2010 and his subsequent claims have been rejected. It has further been stated that the complainant cannot be given any pension, as he has already availed the benefit of earlier withdrawn amount due and payable to him by Employees Provident Fund office hence, his claim qua any amount/pension is baseless illegal and devoid of merits. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, OP No.1 has prayed for dismissal of the complaint.

4.                In its separate written version, OP No.2  has stated that the complainant was an employee with the PUNSP establishment for the period as stated in the complaint and the only relation between the complainant and OP No.2 is as that of an employee (retd.) and employer and as such the complainant is not a consumer as defined under the provisions of the Consumer Protection Act, 2019 and the complaint is liable to be dismissed. It has further been stated that as an employer of the complainant, the only duty of the employer is to submit the required documents for fixation of pension before EPFO i.e. OP No.1 and it is the sole decision of OP No.2 whether to grant pension to the retired employee or not. Pleading that there is no deficiency in service on its part, OP No.2 has prayed for dismissal of the complaint qua it.

5.                  On appraisal of the complaint, and the evidence adduced on record, the Ld. Lower Commission dismissed the complaint, as indicated  in the opening para of this order. 

6.               Aggrieved against  the  aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/complainant  for setting aside the impugned order.

7.                  We have heard representative of the appellant,  Counsel  for  respondent No.1 as well as respondent No.2  and have gone through the evidence and record of the case with utmost care and circumspection.

8.                  In the appeal, the  main ground taken by the appellant is that the Ld. Lower Commission has erroneously/wrongly relied on irrelevant case law  whereas  the Hon’ble Supreme Court in   RPFC Versus Shiv Kumar Joshi AIR 2000 SC 332, has held that consideration amount paid to RPFC on behalf of the worker by the employer is as good as consideration money paid to the doctor/hospital by the father of a young suffering child, for his treatment, which resultantly holds father/parents  or the child eligible as consumer for filing consumer complaint under the CPA,1986. It was further contended that  in the present consumer complaint, EPF contributions/ subscriptions/ accumulations of the Member amounting to Rs.30,870/- have been deposited very late and without any interest penalty, by the employer/Opposite Party NO.2 with RPC/service provider. Further the office of RPFC has wrongly denied release of the said available accumulations of worth Rs.30,870/- and Rs.879/- in different heads of provident fund of the appellant and has also failed to fix monthly short service pension on superannuation of the appellant as provided under Section 12 ( C) of EPS-1995 despite the member having contributed and received PF for more than  10 years towards Employees’s pension Scheme-1995 applied to all employees of factories and other establishments which is a part of EPF & MP Act,1952  but the Ld. Lower Commission has failed to exercise its lawful jurisdiction to decide the present consumer complaint. On the other hand, it was contended on behalf of the respondents that the order passed by the Ld. Lower Commission is quite just and right  and does not call for any interference..

9.             In Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, 2000 (8) SCC 98, the question which came up for consideration before the Hon'ble Supreme Court was as to whether the provisions of Consumer Protection Act can be invoked by a member of the Employees Provident Fund Scheme against the Provident Fund Commissioner. Analysing the meaning of the expressions 'service' and 'consumer', the Hon'ble Supreme Court held that the services being rendered by the Regional Provident Fund Commissioner were 'service' within the meaning of Section 2(1)(o) and the members of the Employees Provident Fund Scheme were 'consumers' within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act. Noticing that under para 30 of the Scheme, it was the responsibility of the Principal Employer to pay not only the contribution made by him but also the administrative charges which are a specified percentage of the pay of the employee, the Hon'ble Court was of the view that the Scheme was for a consideration. The Hon'ble Supreme Court rejected the contention that since no part of the administrative charges is payable by the employee he could not be held to be a consumer. The Apex Court also observed in this regard that the administrative charges are in lieu of the membership of the employee and for the services rendered under the Scheme. It was also noticed in this regard that no service is rendered to the employer under the Scheme which is framed for the benefit of the employee. It was further held that since the definition of consumer under the Act includes not only the person who hires the services for consideration but also the beneficiaries for whose benefit such services are hired even if it is held that the administrative charges are being paid by the Central Government and no part of it is paid by the employees, the services of the Provident Fund Commissioner, in running the Scheme, shall be deemed to have been availed by the Central Government for the benefit of the employees who would be treated as beneficiaries within the meaning of that word used in the meaning of ‘consumer’. Thus, the aforesaid decision of the Hon'ble Supreme Court holds the employees to be consumer of the Provident Fund Commissioner and not of his employer.

10.              In Regional Provident Fund Commissioner Vs. Bhavani 2008 (7) SCC 111, the complainant/respondent was aggrieved on account of failure/refusal of the Regional Provident Fund Commissioner to release pension to her and, therefore, he approached the consumer forum seeking direction for release of her pensionary benefits from the date of her retirement. The claim was resisted inter-alia on the ground that respondent/complainant was not a consumer within the meaning of Consumer Protection Act. The District Forum took the view that the complainant was a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. The said view having been upheld by the State Commission and the National  Commission the matter was taken by the Regional Provident Fund Commissioner to the Hon'ble Supreme Court on the ground that the Consumer Protection Act would not be applicable to the case. Rejecting the appeal filed by the Regional Provident Fund Commissioner the Hon'ble Supreme Court, inter alia, held as under:

"Dr. Padia's submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a 'service giver' within the meaning of Section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of 'master and servant."

11.               It would, thus, be seen that even in the above referred case, it was only the Regional Provident Fund Commissioner and not the employer who was held to be a service giver. In fact, the observation of the Hon'ble Supreme Court that "nor is this a case of........rendering of service under a contract of personal service so as to bring the relations between the appellant and the respondent within the concept of master and servant" is a clear indicator that in a relationship only of master and servant, the master cannot be said to be a service provider and the servant cannot be said to be a consumer.

 12..            In Jagmittar Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors., (2013) 10 SCC 136, 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 the National  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 (2010) 8 SCC 353 and  Bihar School Examination Board Vs. Suresh Prasad Sinha (2009) 8 SCC 483. 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."

            The aforesaid decision of the Hon'ble Supreme Court leaves no scope for taking a view that an employee is not a consumer vis-à-vis his employer in matters such as payment of retiral benefits which obviously would include gratuity, provident fund, pension, etc..

 13.              No doubt, as observed by the Learned District Commission, a government servant  in respect of retiral benefits/dues  etc. can not invoke the jurisdiction of the Consumer Fora as a government servant    does not fall under the definition of a consumer. However, as held by the Hon’ble Supreme Court in    Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, 2000 (8) SCC 98, a consumer complaint  of a member of the Employees’ Pension Scheme against the Regional Provident Fund Commissioner is maintainable under the Consumer Protection Act. Thus, a member of the Employees Provident Fund  Scheme can invoke the jurisdiction of the Fora   under the Consumer Protection Act  for Redressal of his grievances. Resultantly it is observed that the complainant falls under the definition of ‘consumer’ and he can seek redressal of his grievances under the Consumer Protection Act.

14.                In view of the above discussion, we find that the   impugned order  is not based on the correct appreciation of law and facts of the case and calls for interference of this Commission.    Accordingly the appeal is accepted and the impugned order is set aside. The complaint is remanded back to the Ld. Lower Commission for deciding it on merits expeditiously, in accordance with law.

                 The parties are directed to appear before the Learned District Consumer Disputes Redressal Commission-II, U.T.Chandigarh, on 30.04.2024. 

 15.       Certified copies of this order be sent to the parties free of charge.

16.               The file be consigned to Record Room, after completion.