National Consumer Disputes Redressal
The Accountant General (A&E-Ii;) vs Sitaram Yadav & Anr. on 13 December, 2002
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 961 OF 1997 (From the order dated 7.2.97 in Appeal No.645/95 of the State Commission Maharashtra) The Comptroller & Auditor General of India & Anr. Petitioner Vs. Shivkant Shankar Naik Respondent REVISION PETITION NO. 933 OF 2001 (From the order dated 5.6.2000 in Appeal No.2409/99 of the State Commission Maharashtra) The Accountant General (A&E-II) Petitioner Vs. Sitaram Yadav & Anr. Respondents REVISION PETITION NO. 1115 OF 2001 (From the order dated 11.8.2000 in Appeal No.151/SC/99 of the State Commission Uttar Pradesh) The Comptorller & Auditor General of India & Anr. Petitioners Vs. Bhuwan Chandra Pant & Anr. Respondents REVISION PETITION NO. 1319 OF 2001 (From the order dated 11.6.2001 in Appeal No.159/SC/2000 of the State Commission Uttar Pardesh) The Principal Accountant General Petitioner Vs. Jia Lal Respondent A N D REVISION PETITION NO. 1775 OF 2001 (From the order dated 26.6.2001 in Appeal No.894/2001 of the State Commission Maharashtra) The Accountant General (A&E-II) Petitioner Vs. D.R. Nagwanshi & Anr. Respondents BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER. Provident Fund - GPF under the Provident Fund Act - does not raise a consumer dispute. For the petitioner in all the petitions : Mr. R. Srinivasan, Authorised Representative Director (Legal) For the respondents in all the petitions: Mr. R.U. Upadhyay and Mr. Joy Basu, Advocates O R D E R
DATED THE 13th December, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT) In this batch of five revision petitions the question that arises for consideration is if the petitioners i.e. The Comptroller & Auditor General of India and the respective Accountant General of the State (hereinafter collectively described as Accountant General) are rendering any service to the respondents under the provisions of the Provident Fund Act, 1925 and the Rules framed thereunder, to the respondent in each of these matters who are regular Government employees in their respective State.
REVISION PETITION No.961 of 1997:
In this case respondent retired as Senior Clerk in the office of the Maharashtra State Government. Dispute raised was regarding payment of his provident fund dues under the Provident Fund Act. Respondent contended that when his GPF account was settled the Accountant General paid him Rs.80/- less from the amount payable to him. He wrote to the Accountant General but without result which led him to file the complaint before the District Forum which was allowed. State Commission on appeal filed by the Accountant General dismissed the same. An objection had been raised by the Accountant General that the complaint did not raise any consumer dispute and that they were not rendering any service within the meaning of Section 2(o) of the consumer Protection Act and that respondent is governed by relevant service rules and further that Accountant General is performing its statutory functions under the relevant provisions of law.
REVISION PETITION No.933 of 2001:
In this matter State Commission dismissed the appeal of Accountant General holding that it was barred by limitation and that there was no convincing ground to condone the delay. The order of the District Forum was received by the Account General on 23.8.1999 and the appeal was filed on 21.12.99. District Forum on a complaint filed by the respondent held that a certain amount was wrongly deducted from the GPF account of the respondent.
Such account of course was maintained under the Provident Fund Act. Since question of substantial importance has been raised we will, in the circumstances of the case condone the delay in filing the appeal before the State Commission and ourselves hear the matter instead of sending it back to the State Commission for fresh consideration.
REVISION PETITION No. 1115 of 2001:
In this case District Forum held that premium paid by the Accountant General for the policy taken from the Life Insurance Corporation by the respondent, from the GPF account maintained by it under the Provident Fund Act, could not be covered under the statutory functions performed by the Accountant General under the aforesaid provident Fund Act. State Commission did not accept the argument of Accountant General that by paying premium for the life insurance policy of the respondent from the GPF account was without consideration and was in fact part of its statutory functions.
Even though State Commission said that function was being performed under some policy decision of the State Government. State Commission upheld the view taken by the District Forum and dismissed the appeal of the Accountant General.
REVISION PETITION No. 1319 of 2001:
In this case District Forum allowed the complaint of the respondent and directed that the balance amounts of gratuity and GPF be paid to the respondent. Admittedly, the amounts were paid from the Provident Fund Account of the respondent-complainant maintained under the Provident Fund Act. State Commission on appeal filed by the Accountant General, did not find any merit in the objection raised by it and dismissed the revision filed by it against the preliminary objection raised before the District Forum challenging its jurisdiction. It is against that order of the State Commission this revision petition has been filed. As a matter of fact, State Commission did not itself consider the objection on merit but rather swayed by the argument of the respondent that revision before it did not lie and that only appeal was maintainable.
REVISION PETITION No. 1775 of 2001 :
Maharashtra State Commission relying on the decision of this Commission in the case of Regional Provident Fund Commission vs. Shiv Kumar Joshi - 1(1996) CPJ 199 which was subsequently upheld by the Supreme Court reported as (2000) I SCC 98, held that Accountant General was rendering service while maintaining the provident fund account of the respondent - complainant under the Provident Fund Act.
While considering these matters we are confining ourselves to the provisions of the Provident Fund Act as applicable to the government employees. This Act came into force on 27.8.1925. It defines compulsory deposit contribution to Government and other Provident Fund.
Again we are dealing with the Government Provident fund which under clause (d) of Section 2 of the Act means :
(d) Government Provident Fund means a Provident Fund, other than a Railway Provident Fund, constituted by the authority of the Secretary of State, the Central Government, the Crown Representative of any State Government for any class or classes of persons in the service of the Government or of persons employed in educational institutions or employed by bodies existing solely for educational purposes, and references in this Act to the Government shall be construed accordingly;
Section 4 contains provisions regarding repayment from the Provident Fund. It is done under the Rules of the respective State Governments and the officer whose duty it is to make the payment shall pay the amount to the subscriber or depositor as per those provisions. Power also exists to make deduction from the Provident Fund. Under proviso to Article *309 of the Constitution State Governments have framed Rules under the Provident Fund Act. A conjoint reading of the Provident Fund Act and the Rules so framed by the State Governments would show that payment to Provident Fund is one of the service conditions of the government servant. He is entitled to make withdrawal from the Provident Fund as per various contingencies mentioned in the Act and the Rules. The Provident Fund Account of the government employees is maintained by the Accountant General of the respective States. Duty has been cast on them to pay the amount of Provident Fund to the government servant. Payment to the Provident Fund Account from the salary of the government servant and his getting withdrawals on the grounds mentioned in the Act and the Rules and to _________________________________________________________________________ *309. Recruitment and conditions of service of persons serving the Union or a State. - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union of or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the union, and for the Governor of a State or such a person as he may direct in the case of services and post in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
receive the balance amount lying in his credit at the time of retirement is part of his service condition with which he is governed. In the case of State of Orissa vs. Divisional Manager, LIC & Anr. (1996) 8 SCC 655 Supreme Court observed that a government servant is bound by the service conditions and the State was running service free of charge to him. In that case State Commission had awarded a sum of Rs.1.00 lakhs as damages against the State of Orissa. Supreme Court said the government servant had been excluded from the provisions of the Consumer Protection Act to claim any damages against the State under the Act and, therefore, if any claim arises for a government servant it would be open to him to claim the same in any other Forum but not under the Act.
Supreme Court also observed that if the claim is barred by limitation, time taken during the entire proceedings under the Consumer Protection Act, shall stand excluded.
The Administrative Tribunals Act, 1985 was passed by the Parliament under the Provisions of Article 323A of the Constitution. Reading of Section *28 and *29 of this Act would show that that it is only the Administrative Tribunal constituted under the Act, or under the State Act, will have jurisdiction to consider any dispute relating to _________________________________________________________________________ *28. Exclusion of jurisdiction of courts except the Supreme Court.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any Service or post, no court except -
a) The Supreme Court; or
b) any industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.
*29. Transfer of pending cases.- (1) Every suit or other proceeding pending before any court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen service conditions of the State Government employee. As a matter of fact, except for the Supreme Court jurisdiction of other Courts and Tribunals have been excluded. However, in a judgment of the Supreme Court it has been held that jurisdiction of the High Court under Article 226 of the Constitution would not be excluded and now appeals from the orders of the Administrative Tribunal, goes to the High Court though the Act prescribes appeal to the Supreme Court.
_____________________________________________________________________ after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court (2) Every suit or other proceeding pending before a court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation or society, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
Explanation.- For the purpose of this sub-section date with effect from which jurisdiction is conferred on a Tribunal, in relation to any local or other authority or corporation or society, means the date with effect from which the provisions of sub-section (3) of section 14 or, as the case may be, sub-section (3) of section 15 are applied to such local or other authority or corporation or society.
(3) Where immediately before the date of establishment of a Joint Administrative Tribunal any one or more of the States for which it is established, has or have a State Tribunal or State Tribunals, all cases pending before such State Tribunal or State Tribunals immediately before the said date together with the records thereof shall stand transferred on that date to such Joint Administrative Tribunal.
Explanation. For the purpose of this sub-section, State Tribunal means a Tribunal established under sub-section (2) of section 4.
(4)..
(5)..
(6).
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We may also note that duties and powers of the Comptroller and Auditor Generals have already been prescribed under the Comptroller and Auditor Generals (Duties, Powers and Conditions of Service) Act, 1971. We do not think it is necessary for us to refer this enactment for the decision of the present controversy. The decision of the Supreme Court in the case of Regional Provident Fund Commissioner vs. Shiv Kumar Joshi - (2000) 1 SCC 98 is clearly distinguishable as that was rendered on the interpretation of the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Scheme framed thereunder. Shiv Kumar Joshi was not a government employee.
Here in this batch of revisions petitions all the complainants were State Government employees and as such governed by the statutory rules applicable to their respective service and for the purpose of raising service dispute to go the State Administrative Tribunal wherever established or to any authority except to the Forum under the Consumer Protection Act, 1986 also wherever established We hold that dispute raised by the complainants-respondents is not consumer dispute and they are not consumers and Accountant Generals are not running any service within the meaning of the Consumer Protection Act, 1986. It may also be noticed that the State Government in the exercise of its power has jurisdiction to give instructions not inconsistent with the provisions of the Act and the Statutory Rules on that subject. We, therefore, allow all these revision petitions and set aside the orders of the District Forums and the State Commissions and dismiss the complaints. There shall be no order as to costs.
J (D.P. WADHWA) PRESIDENT J (J.K. MEHRA ) MEMBER (RAJYALAKSHMI RAO) MEMBER (B.K. TAIMNI) MEMBER