Chandigarh

DF-II

CC/659/2020

Mrs Sukhbir Pal Kaur - Complainant(s)

Versus

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

Tarun Malhotra

11 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	659/2020
Date of Institution	:	07.12.2020
Date of Decision	:	11.04.2023

 

               

 

 

Mrs.Sukhbir Pal Kaur w/o Sh.Maan Singh r/o H.No.HIG-1622, Sector 70, Chandigarh

                ...  Complainant.

Versus

The Regional Provident Fund Commissioner, Employees Provident Fund Organization, SCO 4-7, Sector 17, Chandigarh

…. Opposite Party.

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Maan Singh, Authorized Representative of the complainant Sh.Raj Kumar Sayal, Counsel of OP.

   

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

1.     The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019  alleging therein that she was an employee of M/s Punjab Energy Development Agency. Solar Passive Complex, Plot No. 1-2, Sector 33-D, Chandigarh (UT)-160020. She joined her job on 29.5.1986 and superannuated on attaining the age of 58 years i.e. w e f 2.2.2018, but retired from the services of the opposite party on attaining the age of 60 years i.e. on 28.2.2020. The complainant was holding the position of Additional Director at the time of superannuation and thus has served continuously for a period 33 years 9 months.  It has been averred that M/s Punjab Energy Development Agency. Solar Passive Complex, Plot No. 1-2, Sector 33-D, Chandigarh (UT)-160034 is covered under Employees Provident & Misc Provisions Act, 1952/Scheme having EPF Code No. PBCHD0013708000. The complainant was enrolled as member of EPF & MP Act scheme from the date of joining i.e. from 29.5.1986 up to the date of superannuation dated 28.2.2020 and was allotted Member ID No. PBCH00137080000000005 and UAN No. 100367515245 and the EPF contribution (employer & employee share) was being deposited with the Employees Provident Fund Organization (Opposite Party) and further the management (Opposite party) has deposited the employer and employee share contribution up to the date of retirement i.e. up to 60 years of age (up to 28.2.2020) which has been received and accepted by the Employees' Provident Fund Organization. In the year 1971 the Government of India formulated Employees Family Pension Scheme and the complainant became member of the said scheme w.e.f. 29/5/1986 and continued as member of said scheme from the date of joining i.e. 29.5.1986 up to 15.9.1995. On introduction of Employees Pension Scheme 1995 (hereinafter referred to as 'EPS-1995), the complainant was also enrolled under the said scheme w.e.f. 16.9.1995 and continued to be member of EPS 1996 till 3rd February 2018 i.e. up to the age of 58 years and thus past services rendered the complainant is 9 years 5 months 18 days and actual service is of 22 years 2 months and 18 days, thus the complainant rendered total service of about 32 years. The OP without considering the statutory provisions of para 12(2) & 12(3) of the EPS 1995 wrongly calculated the pension of the complainant amounting to  Rs.3,013/-. According to the complainant, the OP calculated the pension on 60 months average basis on pensionable salary at Rs.12,308/- p.m. and on service of 22 year 2 months 18 days and past service of 9 years 5 months and 18 days. After determining of pensionable salary on pro-rata basis, pensionable service and past service the OP determined the monthly pension as per formula shown in Paro 12 (2,3) of EPS 1995, whereas the complainant pension should have been calculated as under:-

Monthly member pension =

pensionable salary x pensionate service

70

Thus pension calculation= 12308/-x 20.22 years+2 years weightage/70=

Rs.12308/-X 24.22 years / 70 = 4,258.57 rounded off to= Rs 4259)

Plus

Past service benefit as per para 12(3)(b) =85 X relevant factor in Table "B" For the past service upto 11 years= 85 x 8.537= 726/

 

        It has further been stated that the OP has received employee and employer share of contribution on salary of Rs.15,000/- from the EPF for 43 months but while computing the pensionable salary of the complainant taken Rs.15000/- as salary for 41 months only. The OP neither taken calculation by taking salary of Rs.15,000/- for 43 months nor refunded the two months, pension fund contribution amounting to Rs.2500/- deducted from FPF for two months contribution.  Further, the OP also made calculation of pensionable salary wrongly on 60 months basis average which has already been declared ultra vires by the Hon'ble Supreme Court of India. The OP amended EPS 1995 in August 2014 and made calculation of pensionable salary on 60 months average basis in place of 12 months average basis vide GSR No.609 (E) dated 22.8.2014 which came in to effect from 1.9.2014. But the Hon'ble Karnataka High Court vide its Judgement dated 12 Oct 2018 set aside the alleged notification of the Employees Provident Fund Organization. The relevant portion of the Judgement is reproduced below:

"The amendment in so far as it stipulates the average month pay drawn over a span of 60 months preceding the date of exit as the pensionable service is also arbitrary for the reason that it deprives the employees of substantial portion of the pension to which they would have been eligible had it not been for the amendment. The provision as it originally stood stipulated computation of pension able salary on the basis of the monthly pay drawn over a period of 12 months to their exit"

Held 'Employee's Pension (Amendment) Scheme 2014 brought in to force by Notification No. GSR 609 (E) dated 22.8.2014 evidenced by Ex P/8 in W.P.(C) No. 13120 of 2015 is set aside"

        It has further been alleged that in view of the judgment, the complainant is entitled for monthly pension under EPF and MP Scheme 1952 @ Rs.5,916/- per month w.e.f. 03.02.2018 instead of Rs.3,013/- which has been wrongly calculated by the OP along arrears from the due date i.e. 03.02.2018 and refund of pension contribution amount received by the OP for two months i.e. after the age of 58 years amounting to Rs.2,500/- along with interest, compensation and litigation expenses.

2.     In their written version, the OP has submitted that the complainant had attained the age of 58 years on 02.02.2018 i.e. exit date of pension as per Employees Pension Scheme, 1995 and accordingly pension was allowed to the complainant w.e.f. 03.02.2018, the total service of complainant is 31 years 8 months 6 days and after adding 2 year weightage is 33 years 8 months 6 days. The copy of pension calculation sheet is Annexure OP/1. As per office record, the contribution of Employees Pension Scheme (EPS) received upto 58 years and Rs.1250/ has excess deposited by the ex-employer of the complainant in FPF account for the month of March 2018 paid in the month of April 2018, the complainant may re-apply for withdrawal of the same. As per the record, the service of the complainant under FPF, from 29.05.1986 to 15.11.1995 instead of 15.09.1995. It was further stated that the complainant enrolled under Employees Pension Scheme, 1995 w.e.f. 16.11.1995 instead of EPS 1996 on 16.09.1995 as the Scheme came into effect w.e.f. 16.11.1995. The OP has rightly calculated the pension at Rs.3013/- per month as per the provisions of the Employees Pension Scheme, 1995, the details of which was given in para 6 of the written version. According to the OP, the complainant has multiplied the entire services days with Pensionable Salary i.e. Rs.12,308/- which is wrong. Contribution of the complainant was received under wage limit of Rs.6,500/- upto 31.08.2014 and Rs.15,000/- from 01.09.2014 to 02.02.2018 as prescribed in Employees Pension Scheme, 1995. Moreover, the OP correctly calculated the monthly pension on Pro-rata basis and pensionable salary as per Para 11 of the Employees Pension Scheme, 1995, reproduced as under:

Para 11. Determination of Pensionable Salary (1) The pensionable salary shall be the average monthly pay drawn in any manner including on piece rate basis during contributory period of service in the span of Sixty months preceding the date of exist from the membership of the pension fund and the pensionable salary shall be determined on pro-rata basis for the pensionable service upto the 1 day of September 2014 subject to maximum of six thousand and five hundred rupees per month and for the period thereafter at the maximum of fifteen thousand rupees per month.   

    Provided that if a member was not in receipt of full pay during the period of sixty months preceding the day he ceased to be the member of the Pension Fund, the average of previous sixty months full pay drawn by him during the period for which contribution to the pension fund was recovered, shall be taken into account pensionable salary for calculating pension."

         In respect of past service benefits, Table-B was revised from 10.06.2008 for the purpose of calculation of past service benefits, whereas the complainant has multiplied the factor of less then 23 years 8.537 which is also wrong as you have taken old Table-B for calculation of past service benefits. It was denied that the complainant is entitled total pension payable Rs.4985/.  Further stated that the complainant has completed 58 years as on 02/2018 but the ex-employer of the complainant has deposited FPF contribution of Rs. 1250/- in the FPF account of the complainant for the month of 03/2018, paid in the month of April 2018, However, the complainant may apply for withdrawal of the same. Further stated that they settled the pension account claim of the complainant without any delay and forwarded the PPO to the banker of the complainant i.e. HDFC Bank, Sector 35, Chandigarh for disbursement of pension. 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.     The complainant filed replication to the written reply of the OP controverting its stand and reiterating the contents of the complaint.
4.     The parties filed their respective affidavits and documents in support of their case.
5.     We have heard the authorized representative of the complainant and the Counsel for the OP and have gone through the documents on record, including written submissions.
6.     In view of the specific arguments taken by the OP 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 OP or not? In order to find out answer to this question, the following judgments of the Hon'ble Supreme Court of India are discussed.  
7.     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.”

8.     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 OP to fix the monthly pension under EPF and MP Scheme 1952 @ Rs.5,916/- per month w.e.f. 03.02.2018 instead of Rs.3,013/- along with arrears from the due date i.e. 03.02.2018 and to refund of pension contribution amount received by the OP for two months i.e. after the age of 58 years amounting to Rs.2,500/- along with interest, compensation and litigation expenses. Thus, there is relationship of employee and employer between the complainant and the OP and so there is no relationship of consumer and service provider between the complainant and the OP. Hence, the complaint is dismissed.

9.     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 her grievances redressed through alternative remedy, permissible under law.
10.     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 11/04/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER