National Consumer Disputes Redressal
Mohan Lal Sethi (Lrs) vs New India Assurance Company Ltd. on 3 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3244 OF 2013 (Against the Order dated 03/07/2013 in Appeal No. 938/2009 of the State Commission Uttar Pradesh) 1. MOHAN LAL SETHI (LRs) S/O LATE SRI V.N SETHI,
R/O A-7,INDERPURI, NEW AGRA DISTRICT : AGRA U.P ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE COMPANY LTD. INCLUDING ITS OFFICE AND ITS OFFICE AT MUMBAI,DELHI,AGRA & KANPUR,
THROUGH ITS DULY CONSTITUTED ATTORNEY & ITS ASSITANT MANAGER, AT ITS OFFICE LEGAL CELL AT M.G MARG, LUCKNOW U.P ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 03 Nov 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioners
:
Mr. Siddharth Kaushik, Advocate
For the Respondents
:
Mr. Navdeep Singh, Advocate
PRONOUNCED ON : 3rd November 2017
O R D E R
PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 03.07.2013, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 938/2009, "The New India Assurance Co. Limited vs. Mohan Lal Sethi", vide which, while allowing the appeal, the order dated 08.12.2008, passed by the District Consumer Disputes Redressal Forum, Agra, allowing the consumer complaint No. 333/2007, filed by the present petitioner Mohan Lal Sethi was set aside and the complaint was ordered to be dismissed.
2. Briefly stated, the facts of the case are that Mohan Lal Sethi was an employee of the opposite parties (OPs), the New India Assurance Co. Ltd. and that he superannuated from service on 31.01.2004. The opposite party while releasing his retirement dues, retained an amount of Rs. 73,679/- from his provident fund on the ground that certain audit queries were pending against him. The complainant made representations to various authorities in his department and also to the Assistant Labour Commissioner, Kanpur, but to no effect. The complainant filed the consumer complaint in question, seeking directions to the OPs to pay Rs. 73,679/- alongwith interest @ 24% per annum w.e.f. 31.01.2004 and also compensation of Rs. 90,000/- for mental agony and Rs. 6,000/- as cost of litigation.
3. The District Forum decided the complaint vide their order dated 08.12.2008 ex-parte against the respondents/OPs, as they did not appear despite sending notice to them by speed post. The complaint was allowed and a direction was given to the OPs to pay a sum of Rs. 73,679/- to the complainant alongwith interest @ 9% per annum from the date of making the complaint. While passing this order, the District Forum relied upon the judgement of the Hon'ble Supreme Court in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, 2000 SCC 98, saying that the matter was a consumer dispute, as held by the Hon'ble Apex Court in the said judgment. Being aggrieved against the order passed by the District Forum, the OP Insurance Company challenged the same by way of an appeal before the State Commission. The State Commission allowed the appeal vide their impugned order dated 03.07.2013, and dismissed the complaint, saying that the matter in question was not a consumer dispute, as the complainant could be called a consumer vis-a-vis the Employees' Provident Fund authorities, but not qua his employer. Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the present Revision Petition.
4. During arguments, the learned counsel for the petitioners stated that the District Forum had decided the complaint, after making a correct interpretation of the judgment given by the Hon'ble Apex Court in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi (supra). However the State Commission had taken an erroneous view by stating that the matter was beyond the scope of the Consumer Protection Act. The learned counsel has drawn attention to an order passed by this Commission in State Bank of Mysore vs. S. K. Vidya & Anr., 2012 (3) CPR 406 (NC), saying that the issue relating to the non-release of provident fund dues was a consumer dispute. The order passed by the District Forum was, therefore, in accordance with law and should be restored. The learned counsel for the respondents/OPs stated, however, that an amount of Rs. 73,679/- had been deducted from the provident fund dues of the complainant on the ground that he had committed certain wrong-doings during his service with the Insurance Company. In reply, the learned counsel for the petitioners stated that the respondents/OPs could have taken disciplinary action against the complainant, if he had done anything wrong during his service career, but they had no right to withhold or deduct any amount from his provident fund dues.
5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
6. A perusal of the copy of the memo of appeal filed by the respondents/OPs before the State Commission reveals that the OPs took the stand that the amount of Rs. 73,679/- was recovered from the gratuity amount of the complainant and that he had moved an application dated 20.12.2006 before the controlling authority under the payment of Gratuity Act, 1972 at Kanpur. The present complaint was, therefore, not maintainable before the consumer fora. Moreover, the complaint filed was beyond limitation, as the employee had retired on 31.01.2004, whereas the complaint is dated 07.07.2007 and hence, beyond a period of two years from the date of the cause of action. The OPs also stated that they could not contest the case before the District Forum due to fault of their counsel. A perusal of the impugned order passed by the State Commission reveals that they simply held the complaint to be non-maintainable, as it was a dispute between an employer and an employee. The State Commission have not cared to go into the question, as to whether the deduction of Rs. 73,679/- had been made from the gratuity of the complainant, or from his provident fund dues. In so far as the employees' provident fund is concerned, copies of judgments, including those in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi (supra) and State Bank of Mysore vs. S. K. Vidya & Anr. (supra) have been placed on record, as per which, the complainants have tried to show that the matters pertaining to the provident fund were covered under the category of consumer disputes. However, before discussing the orders passed in these judgments, it is necessary to know whether the amount in question was deducted from the gratuity amount or from the provident fund dues. It also requires to be ascertained whether the controlling authority under the Payment of Gratuity Act, 1972 had already taken a decision on the application filed on behalf of the complainant before them, as stated in the memo of appeal filed by the OPs before the State Commission.
7. Based on the discussion above, this revision petition is disposed of with directions to the District Forum to hear the matter again, after calling both the parties before them, and by holding a thorough inquiry into the facts of the case. While doing so, the District Forum may also determine whether the consumer complaint is maintainable before them in view of the fact that the complainant was an employee of the OP Insurance Company. The orders passed by the consumer fora below are, therefore, set aside and both the parties are directed to put in appearance before the District Forum for further proceedings on 30.11.2017.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER