National Consumer Disputes Redressal
The Deputy General Manager Cpf. F.C.I. ... vs Kashmir Singh & Ors . on 13 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3317 OF 2008 (Against the Order dated 03/07/2008 in Appeal No. 926/2008 of the State Commission Chandigarh) 1. THE DEPUTY GENERAL MANAGER CPF. F.C.I. NEW DELHI Food Corporation Of India Barakhamba Lane Head Office , Connaugh Place New Delhi Delhi ...........Petitioner(s) Versus 1. KASHMIR SINGH & ORS . Son of Shri santa Singhj C/o. Shri Piar Chand Flat No. 241/1, Sector. -55. Chandigarh Housing Complex Chandigarh Chandigarh 2. The ASSITT. PROVIDENT FUND cOMMISSIONER . Regional Fund Commissioner EPFO Sector No-17. Chandigarh-160017 Chandigarh ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Manoj, Advocate Ms. Aparna Sinha, Advocate For the Respondent : For the Respondent No. 1: Mr. M.G. Sharma, A.R. For the Respondent No. 2: Mr. A.P. Sinha, Advocate Dated : 13 Apr 2015 ORDER 05.08.2014 PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 03.07.2008, passed by the Chandigarh State Consumer Disputes Redressal Commission (for short 'the State Commission') in FA No. 926/2008, "DGM (CPF), FCI & Ors. versus Kashmir Singh & Anr.", vide which the said appeal against the order dated 24.04.2008 passed by District Consumer Disputes Redressal Forum, U.T. Chandigarh, allowing the consumer complaint in question, was dismissed.
2. Brief facts of the case are that the complainant/respondent Kashmir Singh is a retired employee of the Food Corporation of India (hereinafter referred to as 'FCI'). He enrolled himself as a member of the Employees' Pension Scheme, 1995 under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 from 17.11.95. The FCI was required to deduct 8.33 % of his salary upto the age of 58 years and to deposit the proceeds with the Regional Provident Fund Commissioner, Chandigarh. The complainant/respondent retired on superannuation on 31.05.2004 and he was entitled to monthly pension with effect from 17.05.2002. However, his monthly pension was neither fixed, nor paid, following which he filed the consumer complaint in question. The District Forum vide their order dated 24.04.2008, allowed the complaint and ordered the employer, FCI to pay a sum of Rs.50,000/- to the complainant as compensation for deficiency in service and Rs.2200/- as cost of litigation. It was also ordered that the FCI would be free to recover the said amount after adopting proper procedure under the Rules from the employees of District Office and Zonal Office who had delayed the case. An appeal against this order was dismissed in limine by the State Commission and the said Commission also observed that there was inordinate delay in sanctioning pension to the complainant, as he had to wait for about four years to get the pension and the arrears. It is against this order that the present petition has been made by the FCI. The complainant has been made as respondent no. 1 in the petition and the Assistant Provident Fund Commissioner, the Office of Regional Provident Fund Commissioner, has been made as respondent no. 2.
3. At the time of hearing before us, the learned counsel for the petitioner admitted that there had been delay in the sanction of release of pension to the complainant/respondent. He also stated that his other retirement benefits like gratuity, leave encashment etc. had already been paid. The learned counsel further stated that the complainant/respondent did not fall within the definition of Consumer, as he has served as employee of the petitioner and hence the petitioner was not providing any service to the complainant, rather the complainant used to be in the service of petitioner and getting a salary. The learned counsel stated that there was no question of deficiency in service on the part of the petitioner FCI, rather the matter was not covered under the definition of 'service', as contained in section 2(o) of the Consumer Protection Act, 1986. The learned counsel argued that in this case, the Regional Provident Fund Commissioner was the service provider and if there had been any deficiency in service, the same was attributable to the Regional Provident Fund Commissioner (RPFC). In the eventuality of an employer exempted from the relevant provisions under the Scheme, the said establishment could become the service provider and hence liable for deficiency in service as well. In the present case, therefore, the service provider was the RPFC and not the petitioner FCI. The learned counsel has drawn our attention to the order made by the National Commission in RP No. 2798/2011, "State Bank of Mysore versus S.K. Vidya" decided on 27.08.2012 and reported in [IV (2012) CPJ 174 (NC)]. The learned counsel has further drawn our attention to paragraph 17(A) of the Employees' Pension Scheme 1995, saying that the Commissioner for Employees Provident Fund was required to settle the claim within 30 days of its receipt, alongwith the requisite documents. In the present case, there had been certain delay on the part of their office as well and also because of non-submission of documents like birth certificate, photographs, etc. in time by the complainant.
4. Learned counsel for the petitioner has further drawn our attention to the orders passed by the Hon'ble Supreme Court of India in "Regional Provident Fund Commissioner versus Shiv Kumar Joshi" as reported in [AIR 2000 (SC) 331] and in " Regional Provident Fund Commissioner versus Bhavani" decided on 22.04.2008 and reported in [AIR 2008 SC 2957], saying that in both these cases, the Regional Provident Fund Commissioner has been held to be the 'service provider'. Moreover, it was held by the National Commission in FA No. 74/2000, " Laxman Kini versus CMD, Indian Overseas Bank and Anr." decided on 25.09.2000, reported as Manu/CF/0011/2000 that the complainant was only an employee of the Bank and not a consumer.
5. In reply, learned counsel for the respondent no. 1/complainant has drawn our attention to the order passed by the District Forum, saying that the pension @Rs.797/- per month and the arrears of pension had been sanctioned vide letter dated 18.03.2008. The claim of the complainant with respect to pension and arrears had already been satisfied, but the complainant was entitled to compensation for the harassment caused to him due to non-rendering of proper service by OP No. 1 in sending the pension papers promptly. In fact, there had been delay of 33 months in making payment of pension. The State Commission has also observed in the impugned order that the complainant was eligible for monthly pension with effect from 17.05.2002 and that, it was the duty of the petitioner no. 1 to get his pension papers completed, six months before retirement. The date of birth etc. could have been verified from the record available with the employer. It was also not clear why the Zonal Office of FCI had been sitting over the papers for about two years.
6. Learned counsel for the respondent no. 2, Regional Provident Fund Commissioner stated that there was no delay on the part of their Organisation and hence, the District Forum and State Commission had rightly not given any finding against them.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The State Commission vide their impugned order observed that there was an inordinate delay of about 4 years in granting the pension to the complainant/respondent and hence, the complainant/respondent was entitled to be compensated for the lapse on the part of the OPs. The State Commission also observed that the amount of Rs.50,000/- granted as compensation by the District Forum to the complainant was on lower side, but since the complainant had not filed appeal against the order of the District Forum, the amount of compensation was not being enhanced. The State Commission dismissed the appeal filed by the present petitioner, Food Corporation of India in limine.
8. During the course of arguments before us, the learned counsel for the petitioner admitted that there had been delay on the part of the subordinate offices of the petitioner in processing the claim of the complainant for the grant of pension. They have, however, raised the issue that the complainant is not a 'consumer', vis-a-vis, the FCI, in view of the rulings quoted by them during arguments. A perusal of the order made by the Hon'ble Apex Court in 'Regional Provident Fund Commission versus Bhavani (supra)' indicates that their Lordships have held as follows:-
" 19. We have carefully considered the submissions made on behalf of the respective parties and the relevant documents which had been produced before the District Forum and we are satisfied that the dates of birth of the respondents as recorded in their service records with the company are the correct dates of birth of the employees and not the dates of birth as entered in the records of the appellant. The reasoning given by the District Forum in accepting the entries in the company's record while rejecting those in the records of the appellant/Regional P.F. Commissioner are based on sound logic and the materials on record. For instance, there are certificates issued by the company to indicate that the respondent in C.A. No.6447/2001 had continued to work in the company till her date of superannuation i.e. 31.12.1995 and there was no denial on the part of the appellant that the respondent continued to contribute to the fund till the year 1995. No explanation is forthcoming as to why and how such contributions were received, even though according to the records of the appellant the respondent had retired on 31.12.1992, so as to make her ineligible for the 1995 Employees' Pension Scheme which came into operation on and from 1st April, 1993.
20. 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 ension 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'. 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."
9. In the above judgment, the decision made by the Hon'ble Apex Court in 'Regional Provident Fund Commissioner versus Shiv Kumar Joshi (supra)' has also been quoted saying that the same proposition had been explained in that case also.
10. This Commission, while pronouncing their order in 'State Bank of Mysore versus S.K. Vidya (supra)' have discussed both the above judgements of the Hon'ble Apex Court and came to the conclusion that the Consumer complaint was maintainable before the Consumer Fora and stated as follows:-
"9. After considering the submissions made before us by the parties as noted above, we do not find merit in the contention of counsel for the petitioner. The features of the pension scheme in question clearly indicate that there is element of contribution by the employee and hence any action of the administering authority, be it a separately designated authority or the employer itself, can be challenged with reference to the criteria of deficiency in service or unfair trade practice since the contribution by the employee would constitute the requisite consideration and the same makes disputes pertaining to the operation of such a scheme as maintainable before the consumer Fora ."
11. In the above noted case, the complainant was an employee of State Bank of Mysore and the Consumer Fora allowed relief, vis-a-vis, the employer, the State Bank of Mysore. It is very clear from the above order that any action of the administering authority whether employer or any designated authority can be challenged under the Consumer Protection Act, 1986 with reference to the criteria of deficiency in service or unfair trade practice.
12. In the case of " Laxman Kini versus The Chairman and Managing Director, Indian Overseas Bank [FA No. 74 / 2000 [decided on 25.09.2000]" by this Commission, the complainant was not held to be a consumer because the dispute was between the employer and employee only. The facts of this case are at variance with those in the present case and hence, the judgement in Laxman Kini case is not applicable in the present case.
13. It is further mentioned that the Hon'ble Supreme Court of India in a case decided recently, Dr. Jagmittar Sain Bhagat versus Director, Health Services, Haryana & Ors." [Civil Appeal No. 5476 of 2013 decided on 11.07.2013] observed that a Government servant could not approach any of the consumer fora for any of the retiral benefits. However, in this case, the matter did not relate to the grant of pension under the EPF Scheme and hence facts of this case are also not applicable to the present case. However, in this very judgement, Hon'ble Apex Court has quoted the decision taken in the case " Regional Provident Fund Commissioner versus Bhavani" (supra), which says that the complainant / respondent squarely comes within the meaning of section 2(1)(d)(ii) of the Act in as much as by becoming a member of the Family Pension Scheme 1971 and contributing to the same, she was availing of the services rendered by the appellant for the implementation of the Scheme.
14. It becomes abundantly clear from the judgements made in the cases quoted above that in the instant case, the complainant does come within the definition of 'consumer' as he is a member of the Employees' Pension Scheme 1995 and by contributing to the Scheme he was availing of the services rendered by the OPs, including the petitioner. In so far as the deficiency in service is concerned, the same stands proved from the facts and circumstances on record and in fact, the delay in sanctioning the pension has also been admitted by the petitioner. In fact, the State Commission observed that there was a case for enhancement of compensation, but since the complainant had not challenged the order of the District Forum, the amount of compensation of Rs.50,000/- awarded by the District Forum was being upheld by them. Further, in so far as the role of the RPFC is concerned, no relief has been granted against them and the complainant has also not sought relief against them, by challenging the order of the lower courts.
15. It is also stated that there are concurrent findings of the State Commission and District Forum in favour of the complainant and these have been made after a thorough discussion of the facts and circumstances of the case. The negligence on the part of the employer FCI has been established beyond doubt. It shall, therefore, be a grave injustice with the complainant if he is not allowed relief against his employer, based on the technicalities alone. Moreover, the spirit behind judgements made by the Hon'ble Supreme Court in "Regional Provident Fund Commissioner versus Bhavani" (supra), " Regional Provident Fund Commissioner versus Shiv Kumar Joshi" (supra) and the order passed by the National Commission in " State Bank of Mysore versus S.K. Vidya" (supra), shall be defeated if the complainant is considered consumer vis-a-vis the Regional Provident Fund Commissioner only and not vis-a-vis his employer, who has admittedly been negligent in handling the pension case of the complainant.
16. In view of the discussion above, there is no merit in this revision petition and the same is ordered to be dismissed. The order of the State Commission does not suffer from any illegality, irregularity or jurisdictional error and the same is ordered to be upheld. There shall be no order as to costs.
(DR. B.C. GUPTA) MEMBER PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 03.07.2008, passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (for short 'the State Commission') in FA No. 926/2008, "DGM (CPF), FCI & Ors. versus Kashmir Singh & Anr.", by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that the complainant/respondent no. 1 was an employee of Food Corporation of India. He became member under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 from 17.11.95 for monthly pension scheme. OP No. 1/petitioner was required to deduct 8.33% of his salary upto the age of 58 years and to deposit the proceeds with the Regional Provident Fund Commissioner, Chandigarh. The complainant retired on superannuation on 31.05.2004 and he was entitled to monthly pension with effect from 17.05.2002. Complainant submitted Form 'D', but his monthly pension was neither fixed, nor paid. Alleging deficiency on the part of OPs, complainant filed complaint. OP No. 1/petitioner contested the complaint and submitted that deductions regarding provident fund made from the salary of complainant were deposited by OP with Provident Fund Commission/OP No. 2. It was further submitted that on retirement, gratuity and leave encashment were paid to him and other dues including CPF was paid within one month of his retirement. Papers for release of pension were submitted by the complainant in August, 2005, but for want of birth certificate, papers were returned to him on 30.9.2005 and on receipt of birth certificate, papers were again submitted to FCI Zonal Office, Noida on 21.12.2005 from where papers were forwarded to RPEC, Delhi on 6.12.2007 and claim for release of pension was accepted on 13.12.2007 and monthly pension of Rs.797/- was sanctioned and arrears to the tune of Rs.56,189/- were later on disbursed by OP No. 2 and denied any deficiency on his part and prayed for dismissal of complaint. OP No.2 also resisted the complaint and submitted that District Forum had no jurisdiction to entertain the complaint as office of OP No. 1 false within U.P. Region who has not been impleaded as a party and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP NO. 1 to pay a sum of Rs.50,000/- as compensation along with Rs.2200/- as cost of litigation. Appeal filed by the OPs was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that relationship between complainant and OP No. 1 were of employer employee and complainant was not a consumer vis-à-vis OP NO. 1, but was consumer vis-à-vis OP No. 2; even then, learned District Forum committed error in allowing complaint against the petitioner and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, leaned Counsel for the Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law as undue delay of 2 years was caused by petitioner in forwarding documents to Respondent No. 2; hence, revision petition be dismissed.
5. It is admitted case of the parties that complainant was employee of OP No. 1 and complainant became member under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 for monthly pension scheme. It is also not disputed that OP No.1 deducted 8.33% of the complainant's salary and remitted it to OP No. 2 and OP No. 2 was to grant pension and has granted pension.
6. Perusal of record reveals that papers for release of pension were resubmitted on 21.12.2005, but papers were forwarded by petitioner to Respondent No. 2 on 6.12.2007 and later on pension was sanctioned by Respondent No. 2 on 13.12.2007. No doubt, undue delay of 2 years was caused by petitioner for sending papers to Respondent No. 2 for release of pension to Respondent No. 1.
7. But, the core question is whether there was any relationship of consumer between the petitioner and respondent no. 1. Admittedly, complainant was employee of petitioner. Merely because petitioner deducted 8.33% of complainant's salary, no relationship of consumer is established between petitioner and respondent no. 1, but there was a relationship of employer and employee between the petitioner and respondent no.1. As pension was to be released by respondent no. 2, respondent no. 1 was consumer vis-à-vis respondent no. 2. Hon'ble Apex Court in AIR 2000 (SC) 331 - Regional Provident Fund Commissioner versus Shiv Kumar Joshi and in AIR 2008 SC 2957 - Regional Provident Fund Commissioner versus Bhavani held that RPF Commissioner responsible for working of pension scheme is service provider. Thus, it becomes clear that respondent no. 2 was service provider and by no stretch of imagination, petitioner can be treated as service provider vis-à-vis respondent no. 1.
8. In R.P. No. 74 of 2000 - Laxman Kini, A. Vs. The Chairman and Managing Director, Indian Overseas Bank & Ors. decided on 25.9.2000, this Commission observed as under:
"Moreover, the State Commission was right in holding vis-a-vis the bank, the complainant was only an employee and not a consumer. The terms and conditions of an incentive provided by the employer whether in the form of a soft housing loan or some other manner is not a consumer service. A dispute between an employee and an employer relating to terms and conditions of service, salaries or perquisites to its employees will not amount to consumer dispute".
9. In the light of aforesaid judgments, it becomes clear that petitioner was not service provider and respondent no. 2 was service provider and complainant could not have been allowed against the petitioner, as petitioner was not service provider vis-à-vis respondent no. 1. Learned District Forum committed error in awarding damages and learned State Commission further committed error in dismissing appeal.
10. As far delay caused by petitioner in forwarding papers for release of pension, respondent no. 1 is free to initiate action before the appropriate authority, but not before Consumer Fora.
11. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 3.7.2008 passed by learned State Commission in Appeal No. 926/08 - "DGM (CPF), FCI & Ors. versus Kashmir Singh & Anr." and order of District Forum dated 24.4.2008 in Complaint No. 84 of 2008 - "Kashmir Singh & Anr. Vs. DGM (CPF), FCI & Ors" are set aside and complaint stands dismissed against petitioner with no order as to costs.
(K.S. CHAUDHARI) PRESIDING MEMBER PER DR. B.C. GUPTA, MEMBER In the aforesaid revision petition, the draft order was made by the undersigned and sent to the Presiding Member, Hon'ble Mr. Justice K.S. Chaudhari, for concurrence before pronouncement. However, the Hon'ble Presiding Member has sent his dissenting draft order. Both the draft orders are placed below.
As per section 20(1A)(iii) of the Consumer Protection Act, 1986, since the Members of the Bench are equally divided in their opinion, this reference is being made to the Hon'ble President for further necessary action in accordance with this section. The point(s) of difference on which the Members of the Bench differ, are as follows:-
(i) Whether an employee of an establishment, eligible to get pension as Member of Employees Pension Scheme 1995, framed under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, is a consumer under section 2(1)(d) of the Consumer Protection Act, 1986, vis-à-vis, his employer and the Employees Provident Fund Organisation (EPFO) both. The ratio of the judgements made by the Hon'ble Apex Court in "Regional Provident Fund Commissioner versus Bhavani (AIR 2008 SC 297) and Regional Provident Fund Commissioner versus Shiv Kumar Joshi (AIR 2000 SC 331)" and the orders passed by this Commission in Revision Petition No. 2798/2011 "State Bank of Mysore versus S.K. Vidya" provides that such an employee is a consumer vis-à-vis employer and EPF Organisation under section 2(1)(d) of the Consumer Protection Act, 1986. However, while the Members of the Bench are agreeable that such an employee is a consumer, vis-à-vis, EPF Organisation, there is difference of opinion as to whether he is a consumer vis-à-vis, his employer as well.
It is also submitted that any pronouncement of the orders of the National Commission should be made only after a majority opinion is reached among the Members of the Commission. When the Members of the Bench are equally divided, the orders drafted by them are only the draft orders and not the orders of the National Commission. If pronouncement of such orders is made, the interested parties may obtain copies of such orders and use them to their advantage before the State Commissions / District Fora etc. The matter may accordingly be submitted before the Hon'ble President for appropriate orders.
(DR. B.C. GUPTA) MEMBER 06-04-2015 HON'BLE MR. JUSTICE V.K. JAIN, MEMBER The facts leading to the filing of this revision petition have already been noted in the orders of Hon'ble Mr. Justice K.S. Chaudhari and Hon'ble Dr. B.C. Gupta. The aforesaid Hon'ble Members, however, differed on the following questions of law:
"Whether an employee of an establishment, eligible to get pension as Member of Employees Pension Scheme, 1995, framed under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 is a consumer under Section 2 (1)(d) of the Consumer Protection Act 1986 vis-à-vis his employer and the Employees Provident Fund Organization (EPFO) both. The ratio of the judgments made by the Hon'ble Apex Court in 'Regional Provident Fund Commissioner Vs. Bhavani (AIR 2008 SC 297) and Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi (AIR 2000 SC 331) and the orders passed by this Commission in RP No.2798/2011 "State Bank of Mysore Vs. S.K. Vidya" provides that such an employee is a consumer vis-à-vis employer and EPF Organisation under Section 2(1)(d) of the Consumer Protection Act 1986. However, while the Members of the Bench are agreeable that such an employee is a consumer, vis-à-vis, EPF Organisation there is a difference of opinion as to whether he is a consumer vis-à-vis his employer as well?
In view of the aforesaid difference of opinion, the matter has been referred to me vide order of the Hon'ble President dated 10-10-2014. Thus, the only question which arises for my consideration in this matter is as to whether an employee, who is eligible to get pension under the provisions of Employees Pension Scheme 1995, is a consumer of his employer or not.
2. 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 hold 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.
3. 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 this 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."
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.
4. 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 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 (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..
5. In State Bank of Mysore Vs. S.K. Vidya, IV (2010) CPJ 174 (NC), referred in the order passed by Hon'ble Dr. B.C. Gupta, this Commission recorded the following submission made by the learned amicus curiae and accepting the said submission, rejected the contention of the petitioner bank that the respondent/complainant was not a consumer.
"In view of Bhavani's judgement and similar view taken in a number of other cases, it is clear that matters pertaining to the employees PF schemes as also the pension schemes for which the employees are required to contribute have been regarded as being covered by the definition of consumer dispute with reference to their maintainability under the Consumer Protection Act, 1986. This being the well settled legal position, the cases where such matters, namely, the employees PF schemes, pension schemes or family pension schemes or similar other matters are administered by the employers themselves rather than through a separate designated authority like Provident Fund Commissioner/ Pension Authority etc. then the employer itself assumes the role of service giver and complaints in respect of such matters made by the employees can be maintained before the consumer Fora qua such employers. This, however, does not come in conflict with the general proposition which lays down that an employee is not a consumer qua his employer with reference to his service matters as such. The distinguishing feature being related to the aspect of contribution being made by the employees and the service being rendered by the administering authority under such a scheme."
6. It would be seen from the submissions extracted hereinabove that in the aforesaid case this Commission held the employer to be a service provider and the employee to be a consumer only in those cases where the Provident Fund Scheme is administered by the employer itself instead of getting the same administered through a designated authority such as Provident Fund Commissioner. In such a case that the employer becomes the service provider, whereas in a case where such services are entrusted to a designated authority such as Provident Fund Commissioner, it is only the said designated authority and not the employer who would be considered to be the service provider vis-à-vis the employee. The distinguishing feature in such cases would be as to who administers the Scheme. If the Scheme is administered by the employer himself, he would be the service provider and the employee would be his consumer but if the administration of the Scheme is entrusted to an agency such as a Provident Fund Commissioner, it is the outside agency and not the employer, who can be said to be the service provider vis-à-vis the employee.
7. For the reasons stated hereinabove, the point of difference is answered as follows:
An employee of an establishment who is governed by Employees Pension Scheme 1995 framed under the provisions of Employees Provident Fund and Miscellaneous Provisions Act 1952 is not a consumer vis-à-vis his employer in terms of Section 2(1)(d) of the Consumer Protection Act in a case where the pension scheme is not administered by the employer himself. In other words, such an employee shall not be a consumer vis-à-vis his employer, within the meaning of Section 2(1)(d) of the Consumer Protection Act where the pension scheme is administered by an agency such as a Regional Provident Fund Commissioner/Provident Fund Commissioner.
9. The Registry is directed to place the aforesaid opinion before the concerned Bench for pronouncement of the order.
(V.K. JAIN, J.) MEMBER DATED :- 13.04.2015 PER JUSTICE K.S. CHAUDHARI & DR. B.C. GUPTA, MEMBER In Revision Petition No. 3317 of 2008 - The Deputy General Manager (CPF), FCI, New Delhi Vs. Kashmir Singh & Anr. arguments were heard by our Bench. Judgment was dictated by Hon'ble Dr. B.C. Gupta, Member and sent for approval to Hon'ble Justice K.S. Chaudhari, Presiding Member. The Presiding Member sent his dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon'ble President, NCDRC under Section 20 (i) (iii) of the Consumer Protection Act for appropriate directions. . The Hon'ble President referred the matter to Hon'ble Mr. Justice V.K. Jain, Member. Hon'ble Mr. Justice V.K. Jain, Presiding Member opined as under:
An employee of an establishment who is governed by Employees Pension Scheme 1995 framed under the provisions of Employees Provident Fund and Miscellaneous Provisions Act 1952 is not a consumer vis-à-vis his employer in terms of Section 2(1)(d) of the Consumer Protection Act in a case where the pension scheme is not administered by the employer himself. In other words, such an employee shall not be a consumer vis-à-vis his employer, within the meaning of Section 2(1)(d) of the Consumer Protection Act where the pension scheme is administered by an agency such as a Regional Provident Fund Commissioner/Provident Fund Commissioner.
Consequently, in the light of majority judgment, Revision Petition filed by the petitioner is allowed and impugned order dated 3.7.2008 passed by learned State Commission in Appeal No.926/08 - "DGM (CPF), FCI & Ors. Vs. Kashmir Singh & Anr." and order of District Forum dated 24.4.2008 in Complaint No.84 of 2008 - "Kashmir Singh & Anr. Vs. DGM (CPF), FCI & Ors". are set aside and complaint stands dismissed against petitioner.
......................J K.S. CHAUDHARI PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER