Chandigarh

DF-II

CC/1039/2019

Mr. Bahadur Singh - Complainant(s)

Versus

The Regional Provident Fund Commissioner (Pension) - Opp.Party(s)

M.G. Sharma Authorized Representative

02 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	1039/2019
Date of Institution	:	15.10.2019
Date of Decision	:	02.02.2023

 

               

 

 

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

                ...  Complainant.

Versus

 

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

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

 

…. Opposite Parties.

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SMT.PRITI MALHOTRA,	MEMBER
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.M.G.Sharma, Authorized Representative of complainant along with complainant in person. Sh.Sanjay Judge, Counsel of OP No.1 Ms.Shushmi, Advocate, Proxy for Sh.Keshav Kataria, Counsel for OP No.2.

   

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The complainant has filed the present complaint alleging therein that the complainant has served against different positions in the office of Respondent No. 2 during the period of his service from 10/02/1977 onwards till 28/02/2009. The date of birth of Member Complainant is 02/02/1951 and he has served the Respondent No. 2 till his superannuation and is eligible for Monthly Superannuation Pension effective from 3 Feb.2009. OP No.2 allotted EPP No.PB/CH/4565/1295. However, 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 wage. OP No.2 made the payments of salaries 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 averred 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 parts of OPs. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint 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.
2.     In its written version, OP No.1 has 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 que 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.
3.     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.
4.     The complainant filed replication to the written reply of the Opposite Parties controverting their stand and reiterating his own.
5.     The parties filed their respective affidavits and documents in support of their case.
6.     We have heard the authorized representative of the complainant and the Counsel for the OPs and have gone through the documents on record.
7.     In view of the specific objections taken by the OPs in their written versions regarding the maintainability of the complaint, the first and foremost question to be determined in this case is as to whether there is a relationship of consumer and service provider between the complainant and the OPs or not? In order to find out answer to this question, the following judgments of the Hon'ble Supreme Court of India are discussed.  
8.     In Civil Appeal No.5476 of 2013 titled as  Dr.Jagmittar Sain Bhagat Vs. Dir Health Services, Haryana & Ors., decided on 11.07.2013, the Hon'ble Supreme Court of India held as under:-

“10.     The Act was enacted to provide for the better protection of interest of consumers, such as the right to be protected against marketing of goods which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, to protect the consumer against unfair trade practices; and right to seek redressal against an unscrupulous exploitation of consumers, and further to provide right to consumer education etc. as is evident from the statement of objects and reasons of the Act.

11.      Section 2 of the Act which is a definition clause defines the following as under:

“2(b) ‘Complainant’ means-

1.   a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or

(iii) the Central Government or any State Government;

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;

2(c) ‘complaint’ means any allegation in writing made by a complainant that-

(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

xx xx xx

2(d) ‘consumer’ means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person; [but does not include a person who avails of such services for any commercial purpose;

 

xx xx xx

2(g) ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

2(o) ‘service’ means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.” 

    Section 11 of the Act deals with the jurisdiction of the District Forum as:

“(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs.”

    The aforesaid statutory provisions make it crystal clear that the Act is made to deal with the rights of consumers wherein marketing of goods, or “services” as defined under the Act have been provided. Therefore, the question does arise as to whether the Forum under the Act can deal with the service matters of government servants.

12.  In Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, this Court examined the issue as to whether a prospective buyer can be “consumer” under the Act, and held:

“The consumer as the term implies is one who consumes. As per the definition, consumer is the one who purchases goods for private use or consumption. The meaning of the word ‘consumer’ is broadly stated in the above definition so as to include anyone who consumes goods or services at the end of the chain of production. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. The consumer deserves to get what he pays for in real quantity and true quality. In every society, consumer remains the centre of gravity of all business and industrial activity. He needs protection from the manufacturer, producer, supplier, wholesaler and retailer.

xx xx xx

 

Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods……There is no purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Section 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act”.

13.  In Secretary, Board of Secondary Education, Orissa v. Santosh Kumar Sahoo & Anr., AIR 2010 SC 3553, this Court resolved the issue as to whether the Forum under the Act had jurisdiction to entertain and allow a complaint filed by a person for correction of his date of birth recorded in the matriculation certificate, observing that the impugned order was liable to be set aside because all the consumer forums failed to consider the issue of maintainability of the complaint in a correct perspective. Before the District Forum could go into the issue of correctness of the date of birth recorded in the matriculation certificate of Respondent 1, it ought to have considered whether the so-called failure of the appellant to make correction in terms of the prayer made by Respondent 1 amounted to deficiency of service.

    The court remitted the matter to the District Forum to decide the issue of maintainability of the complaint.

14.      This Court in Bihar School Examination Board v. Suresh Prasad Sinha, AIR 2010 SC 93, considered the question as to whether a candidate can file a complaint before the District Forum under the Act raising any grievance regarding his examinations conducted by the Bihar School Examinations Board constituted under the Bihar School Examinations Board Act, 1952 and answered it in negative observing as under:

“The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi- commercial activity). But the Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of marksheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a ‘service provider’ and a student who takes an examination is not a ‘consumer’ and consequently, complaint under the Act will not be maintainable against the Board.”

 

(See also: Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159).

15.         In Regional Provident Fund Commissioner v. Bhavani, AIR 2008 SC 2957, this Court dealt with the issue as to whether Dr. Padia's submissions regarding the non-applicability of the Act to the case of the Regional Provident Fund Commissioner - the person responsible for the working of a Pension Scheme, could be held to be a 'service giver' within the meaning of Section 2(1)(o) of the Act, as it was neither a case of rendering of free service nor rendering of service under a contract of personal service so as to bring the relationship between the parties within the concept of 'master and servant'. The court held:

“In our view, the respondent comes squarely within the definition of 'consumer' within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees' Family Pension Scheme, 1971, and contributing to the same, she was availing of the services rendered by the appellant for implementation of the Scheme. The same is the case in the other appeals as well.”

16.     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.

17.     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.”

9.     In another case i.e. Civil Appeal No.8472 of 2019 titled as Ministry of Water Resources & Others Vs. Sonepat Rao Kamde, decided on 06.11.2019, the Hon'ble Supreme Court of India held as under:_

    “After considering relevant cases on the point, this Court concluded as under:

“20. In view of the above, it is evident that by no stretch of imagination can a government servant 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 of his grievance, may be the State Administrative Tribunal, if any, or the 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 also noticed a line of cases decided by this Court where claims under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 in respect of employees of establishments covered under the Schedule to said Act had come up before this Court. Those cases were also dealt with and finally the conclusion was arrived at in paragraphs 20 and 21 as stated above.

    This Court also considered the case of Santosh Kumar Sahoo, which had found that the Act was not intended to cover discharge of statutory function of examining whether a candidate was fit to be declared as having successfully completed a course by passing the examination.

    On the point of entitlement of a Government servant in respect of dues as stated and whether such Government servant can maintain any action under the provisions of the Act, the law is thus well settled.

    The decision of this Court rendered in Jagmittar Sain Bhagat was holding the field when the matter was decided by the State Commission and the National Commission. A plea was squarely raised by the appellants about the inapplicability of the provisions of the Act. However, that plea was not gone into.

    In keeping with the principles laid down by this Court in the case of Jagmittar Sain Bhagat, we hold that the complaint in the present case was not maintainable before the District Forum under the provisions of the Act.”

        The principle of law settled in the aforesaid judgments of the Hon'ble Supreme Court of India, is squarely attracted to the facts and circumstances of the present case as in the case in hand, the complainant has sought directions from this Commission to direct the OPs to fix the Superannuation Monthly Pension of the complainant. Thus, there is relationship of employee and employer between the complainant and OPs and so there is no relationship of consumer and service provider between the complainant and the OPs. Hence, the complaint is dismissed.

10.     Consequently, this complaint stands dismissed, being not maintainable before this Commission. The office is directed to return the complaint along with documents annexed therewith to the complainant, after retaining its copy. The complainant is at liberty to get his grievances redressed through alternative remedy, permissible under law.
11.     Certified copy of this order be sent to the parties, free of charge, as per rules. After compliance file be consigned to record room.

Announced 02/02/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(PRITI MALHOTRA) MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER