National Consumer Disputes Redressal
Chief General Manager, Secl & Anr. vs Regional Commissioner, Cmpf & Anr. on 20 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3297 OF 2013 (Against the Order dated 16/04/2013 in Appeal No. 512/2012 of the State Commission Chhattisgarh) 1. CHIEF GENERAL MANAGER, SECL & ANR. BAIKUNTHPUR AREA, BAIKUNTHPUR, DISTRICT : KORIYA C.G. 2. SUB-AREA MANAGER, SECL, PANDAVPARA (JHILMIL AREA), BAIKUNTPUR, DISTRICT : KORIYA C.G ...........Petitioner(s) Versus 1. REGIONAL COMMISSIONER, CMPF & ANR. JABALPUR (SHAKTINAGAR), DISTRICT : JABALPUR M.P. 2. S.N PARSAD , S/O SUMARSAI, R/O VILLAGE CHIRGUDA, P.O PATNA TEHSIL, BAIKUNTPUR, DISTRICT : KORIYA C.G ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE PETITIONER : FOR THE PETITIONERS : MR.ADITYA MALHOTRA, PROXY CL. FOR
MR. ASHWARYA SINHA, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENT NO.1 : MS.PREMA PRIYADARSHNI, ADVOCATE
FOR THE LRS OF THE
RESPONDENT NO.2 : NOT APPEARED
Dated : 20 December 2023 ORDER
1. This Revision Petition No.3297 of 2013 filed on 16.09.2013 challenges the impugned order of the learned Chhattisgarh State Consumer Disputes Redressal Commission, Raipur ('State Commission') dated 16.04.2013. Vide this order, the learned State Commission dismissed Appeal No.512 of 2012. This Appeal was filed against the order of the District Forum, Koriya, Baikunthpur, Chhattisgarh ('District Forum') dated 16.08.2012. Vide this order, the District Forum allowed the Complaint with the following order:
"10. In view of the aforementioned reasons the complaint of the complainant is proved against Opposite Party No.2 and 3. Therefore, the present complaint is admitted and it is hereby directed to Respondent No.2 and 3 that they may prepare the pension documents of the complainant jointly or separately, and the same may be forwarded to the office of Opposite Party No.1 within 45 days from the date of issue of this order, and the Opposite Party No.01 may deposit the balance amount of pension due to the complainant along with D.R. to the office of Forum within one month from the date of receiving of pension documents from Opposite Party No.2 and 3 and thereafter the amount of pension may be made to the complainant till he is alive. Opposite party No.2 and 3 may deposit Rs.2,000/- towards legal expenses of complainant in the office of this Forum within 45 days from the date of issue of this order. After depositing the aforesaid amount, payment may be made to the complainant by account payee cheque."
(Extracted from translation copy)
2. As per report of the Registry, there is a delay of 61 days in filing of the present Revision Petition. For the reasons stated in IA/3276/2014 seeking condonation of delay, the same is allowed.
3. Briefly, the facts are that the complainant was an employee of the Petitioner in Pandopara colliery in the post of Assistant Grade-I and retired in that capacity on 30.11.2001. The case of the Complainant before District Forum was that at the time of his retirement the Employer had merely paid the amount of provident fund to the Complainant, but nothing was paid against deduction which was made by the employer in pension account nor the pension was assessed for every month payment. It has been averred that the employer was deducting from the salary of the complainant every month contribution towards provident fund as well as in the pension fund and that deduction against pension fund was required to be deposited with OP No.1 the CMPF in their account. The Complainant made several requests to the Petitioners for payment of pension but only evasive replies were given. Alleging deficiency in service on the part of the employer and the Commissioner of the CMPF, a consumer complaint was filed by him before District Forum.
4. The Commissioner of CMPF, Jabalpur has not filed any detailed reply of the complaint and an application was filed to the effect that the Account Number which has been mentioned in the complaint regarding deduction of contribution of Coalmines Employees Provident Fund was incorrect and such Account Number was not allotted to any of the members. In the Office of Respondent No.1/OP No.1 the work of maintenance of Accounts of Coalmines Employees Provident Fund Scheme 1948 was being done and was to be paid by the Head Office.
5. The Petitioners herein, in their reply, averred that the Complainant was employed in the year 1963, but he was not a member of Coalmines Family Pension Scheme 1971. Another scheme Coalmines Pension Scheme came into effect in 1998 and for becoming member of that scheme, it was necessary for the Complainant to give his option within 60 days from the date of notification and to file an application to that effect in the Office of the Petitioners/OPs No.2&3. But, the Complainant had not submitted any such option and, therefore, no pension was fixed and paid. So, the petitioners had not committed any deficiency in service in not payment any amount of pension.
6. The learned State Commission, dismissed the Appeal and observed as below:
"11. In the facts of the present case, we find that no such denial has been produced by the appellants. On the contrary pay slips produced by both parties clearly shows that contributions towards pension fund have been made by the employee and the employer was deducting the amount from his salary every month. Thus, it is clear that he was a member of Pension Scheme and therefore was entitled to have benefits of the Scheme after his retirement and if the Employees' Pension Scheme 1995 was not made applicable to the employees of the Coalmines then the employer, as contended by learned counsel for the appellants, was having its own pension scheme. But provisions of that Pension Scheme have not been brought on record and therefore by applying the principles of natural justice, on the basis of Pay Slips, the District Forum has come to a right conclusion that contributions were made by the employee towards pension fund, so he was entitled for pension as per the Pension Scheme and therefore directions have been given to prepare pension case of the complainant and to send the same to the Commissioner CMPF.
12. In view of the aforesaid, the appeal has got no substance and is liable to be dismissed. The same is so dismissed. No order as to cost."
7. Against the order of the learned State Commission, this revision petition has been filed. The pleadings and associated documents placed on record were examined and learned Counsel for the Petitioners/OPs No.2 &3 and Counsel for the Respondent No.1 were heard at length. The legal heirs of the deceased Complainant did not appear despite service.
8. It is uncontested position that the Complainant was an employee of the Petitioners, who are a Public Sector Company. He approached the District Forum against denial of his pension benefit, for which he contributed. The learned counsel for the petitioners has raised a significant issue concerning jurisdiction of the consumer forum and argued that he does not qualify as a "Consumer" since he served the Petitioners, who are Public Undertakings Company. It was further contended that Govt servants or employees of Public Undertakings do not fit in the definition of a "Consumer" as outlined in Section 2(1)(d)(ii) of the Act. Therefore, the consumer forum is not the appropriate venue for addressing grievance concerning retiral benefits, as this issue pertains to a service matter. As a result, he requested that the orders passed by the lower fora be set aside, and the Complaint filed before the District Forum be dismissed. He has relied upon the judgment of the Hon'ble Supreme Court in the Matter of Dr.Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana & Ors., Civil Appeal No.5476 of 2013, decided on 11.07.2013 wherein the Hon'ble Supreme Court held as under:
"7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).
8. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v. K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, "performance cannot be forced in any other manner."
9. Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, "it is an objection going to the nullity of the order on the ground of want of jurisdiction". Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s. Parvathy Swaminathan & Sons, AIR 2008 SC 187). 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-
(i) 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 light of the legal precedent established by the Hon'ble Supreme Court, it is determined that the complainant does not qualify as a "Consumer" as defined in Section 2(1)(d)(ii) of the Act because he was an employee of the Petitioners. The Consumer Fora, therefore, are not the suitable forums for addressing issues related to retiral benefits.
10. In view of the foregoing discussions, Revision Petition No.3297 of 2013 is allowed, and the orders dated 16.04.2013 passed by the learned State Commission and the order dated 16.08.2012 passed by the learned District Forum are set aside. Consequently, the complaint filed by the Complainant is dismissed. Notwithstanding the same, the legal heirs of the deceased Complainant have the liberty to approach the appropriate Forum or Court to seek redress for their grievances in accordance with the law.
11. There shall be no order as to costs. Pending Applications, if any, also stand disposed of accordingly.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER