State Consumer Disputes Redressal Commission
1. The State Of Haryana vs Surinder Kumar Mittal on 17 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 335 of 2013 Date of Institution : 02.08.2013 Date of Decision : 17/09/2013 1. The State of Haryana, through the Chief Secretary to the Government of Haryana, Civil Secretariat, Chandigarh. 2. The Director of Employment, Haryana, SCO No.17, Sector 7, Chandigarh Appellants/Opposite Parties V e r s u s Surinder Kumar Mittal, H.No. 306, Sector 12, Panchkula. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Ajay Chaudhary, Senior Deputy Advocate General for the appellants.
Sh.
Surinder Kumar Mittal, respondent in person.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 26.03.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is Allowed qua them. The Opposite Parties are directed:-
[a] To pay the actual entitlement and amount of personal pay, since 20.04.2003 the date of his retirement, along with interest @9% p.a. when each such entitlement became due towards him;
[b] To pay Rs.20,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant;
[c] To pay Rs.7,000/- as cost of litigation;
The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] of para 8 above, instead of 9% p.a. & the amount mentioned in sub-para [b] of para 8 above, too, shall carry interest @18% p.a., from the date of institution of this complaint, till it is paid, apart from cost of litigation of Rs.7,000/-.
2. The facts, in brief, are that the complainant was in service of the State of Haryana. He served the State Government of Haryana, for the period from 14.01.1977 to 20.04.2003, and ultimately retired. Being a permanent employee of the State of Haryana, the complainant was entitled to the contractual obligations, as contained in the Civil Services Rules, and various other commitments, issued from time to time. The Opposite Parties had issued letter dated 20.07.1981, for the grant of special increment, in the form of personal pay, which was accepted by the complainant, on 31.03.1986. It was stated that despite a speaking order, passed by the Honble Punjab and Haryana High Court, in CWP No.8058 of 2009, the Opposite Parties did not release the amount of personal pay, which included the special increment an incentive for family planning, though the complainant qualified for the same. It was further stated that non compliance with the Judgment of the Hon`ble Punjab and Haryana High Court, referred to above, by the Opposite Parties, amounted to commission of contempt of Court. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the actual amount of personal pay, to which he is entitled, since 20.04.2003, alongwith interest @18% P.A., till realization; ten times compensation, on the amount prayed for above; and cost of litigation, to the tune of Rs.20,000/-
3. The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer. It was further pleaded that since the complainant did not fall within the definition of a consumer, the District Forum had no Jurisdiction to entertain and decide the Consumer Complaint, as the same was not maintainable. It was further pleaded that since the complainant had also filed Consumer Complaints bearing nos. 297 of 2012 and 304 of 2012, before the District Forum, which were dismissed, on the ground, that the same were not maintainable, as the complainant did not fall, within the definition of a Consumer, as such, this complaint was also liable to be dismissed, on the same ground. It was admitted that the complainant was a permanent employee of the State Government of Haryana, and served from 14.01.1977 to 20.04.2003, when he was compulsorily retired, at the age of 50 years, vide order Annex. R-I. It was stated that the said order had been challenged and was pending adjudication, before the Honble Punjab and Haryana High Court. It was denied that there were any contractual obligations, between the Government of Haryana and the complainant. It was further stated that the Government of Haryana, had issued a Notification, under Article 309 of the Constitution of India dated 07.12.2001, vide which, Rule 6.19(c), in Clause
(i) was amended, which now reads as, The term emoluments for these purposes shall mean pay as defined in Rule 2.44 (a) (I) of Punjab Civil Services Rules Volume I, Part-I. Thus, in terms of the aforesaid amendment in Rule 2.44 (a), only Sub-Clause (i) was applicable and rest of the Sub-Clauses viz; (ii) and
(iii), were excluded. It was further stated that, this Notification had not been referred to, by the Honble High Court, while deciding CWP No. 8058 of 2009. It was further stated that, in view of the aforesaid Notification, read with rule 6.19(c) Clause (i) CSR Volume II and Rule 2.44(a)(i) of CSR Volume I, personal pay was not admissible, in determining the retiral benefits of the complainant. It was also admitted that, as per the Scheme of 1981, in respect of the family planning, special increment was to be counted, as personal pay and rate of personal pay was to be the next increment. It was further denied that personal pay was payable, while deciding the retiral benefits. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the complainant, in person, Authorized Representative of the Opposite Parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Senior Advocate General for the appellants, respondent in person, and, have gone through the evidence, and record of the case, carefully.
8. The core question, that falls for consideration, is, as to whether, the complainant, fell within the definition of a consumer or not. For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(1)(o), defining the consumer and service respectively are extracted as under:-
(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 then 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 payment, 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]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation.
For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;] Section 2(1)(o) defines service as under:-
(o) "service" means service of any description which is made available to potential 16[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, 17[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.
9. According to Section 2(1)(d)(i) of the Act, the consumer does not include a person who obtains such goods for resale or for any commercial purpose. Section 2(1)(d)(ii), which was amended by Act 62 of 2002 w.e.f. 15.03.2003, clearly lays down that the person who hires or avails of the services for consideration, for any commercial purpose, shall not qualify, as a consumer. According to Section 2(1)(o) of the Act, "service" means service of any description which was made available to potential users and included, 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.
10. In Dr. Jagmittar Sain Bhagat Versus Dir. Health Services, Haryana and Ors., III (2013) CPJ 22 (SC), the appellant/complainant who was a Medical Officer, in the State of Haryana, and, as such, a public servant took voluntary retirement, on 28.10.1985. According to him, he had not been paid all his retiral benefits. He filed a Consumer Complaint, before the District Consumer Disputes Redressal Forum, Faridabad, which was dismissed, vide order dated 24.3.2000, on the ground, that no deficiency, in rendering service was proved. The First Appeal, filed against the said order of the District Forum, was also dismissed by the State Consumer Disputes Redressal Commission. Ultimately, the National Consumer Disputes Redressal Commission, New Delhi, also dismissed the Revision Petition. The appellant/ complainant, then filed Civil Appeal No.5476 of 2013, before the Hon`ble Apex Court. The Hon`ble Supreme Court held that a Government Servant could not raise any dispute, regarding the service conditions or payment of gratuity or GPF, or any other retiral benefits, before any of the Forums, under the Act, as he did not fall within the definition of a consumer, as defined under Section 2(1)(d)(ii) of the Act. The observations made by the Honble Supreme Court, in paragraph numbers 7, 8, 9 and 10, of its order, are detailed 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. Similar principle of law, was laid down, in The Comptroller and Auditor General of India and Anr. Vs. Shivkant Shankar Naik, Revision Petition No.961 of 1997, The Accountant General (A&E-II) Vs. Sitaram Yadav and Anr. Revision Petition No.933 of 2001, The Comptroller and Auditor General of India and Anr. Vs. Bhuwan Chandra Pant and Anr., Revision Petition No.1115 of 2001, The Principal Accountant General Vs. Jia Lal, Revision Petition No.1319 of 2001, and The Accountant General (A&E-II) Vs. D.R. Nagwanshi and Anr., Revision Petition No.1775 of 2001, decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, on 13.12.2002, as also in Om Prakash Sethi Vs. Account General, Haryana (A&E), Revision Petition No.3878 of 2009, decided on 06.07.2010, by the National Consumer Disputes Redressal Commission, New Delhi.
12. In the instant case also, the respondent/complainant was compulsorily retired, from the Government Service. If there was any dispute, with regard to the non-grant of retiral benefits, or non-calculation of his pension properly, then he could either file a suit, before the Civil Court, or Writ Petition before the Honble High Court. Neither the Opposite Parties/appellants were rendering any service, to the complainant, nor were their services allegedly hired by him, for consideration. Whatever amount was claimed by the complainant, if due to him, as per the provisions of the relevant Rules, he could claim the same, by resorting to any other remedy, which was available to him. The District Forum, failed to take into consideration, the objection raised by the Opposite Parties, in their written version, that the complainant did not fall within the definition of a consumer, nor touched the same, nor discussed the same, in the order impugned. The principle of law, laid down, in Dr. Jagmittar Sain Bhagat`s case (supra), and other cases, referred to above, is fully applicable to the facts and circumstances of the instant case. Under these circumstances, it is held that since the complainant did not fall within the definition of a Consumer, the Consumer Complaint was not maintainable.
13. No doubt, the respondent, placed reliance on Regional Provident Fund Commissioner Vs. Bhavani, Civil Appeal No.6447 of 2001, decided on 22.04.2008, by the Honble Apex Court , The Chairman State Bank of India and Ors., Vs. Sh. N.K. Sharma, First Appeal No.170 of 2010 decided on 24.09.2010, by this Commission, Shashi Shekhar Vs. Managing Director M.A.D.A, Jharakhand, Revision Petition No.2088 of 2005 decided on 25.05.2010, Smt. Indrani Bhattacharjee Vs. National Thermal Power Corporation Limited, Original Petition No.233 of 1996, decided on 09.08.2007, by the National Consumer Disputes Redressal Commission, New Delhi and Jagdish Kumar Bajpai Vs. Union of India, Revision Petition No.570 of 2002, decided on 20.10.2005, by the National Consumer Disputes Redressal Commission, New Delhi, in support of his contention, that he fell within the definition of a consumer and, as such, the Consumer Complaint was maintainable, before the Consumer Fora. The facts and circumstances of the cases, referred to in this paragraph, are clearly distinguishable, from the facts of the instant case, and, as such, no help could be drawn by the respondent/complainant, from the principle of law, laid down therein. Even otherwise, in view of the principle of law, laid down, in Dr. Jagmittar Sain Bhagat`s case (supra), decided on 11.07.2013, by the Hon`ble Supreme Court of India, holding that a Government Servant or a retired Government Servant did not fall within the definition of a consumer, when he claims retiral benefits or other service benefits, and, therefore, the Consumer Complaint was not maintainable, any principle of law, laid down to the contrary, in the cases cited by the respondent/complainant, shall not hold the field. The submission of the respondent/complainant, being devoid of merit, must fail, and the same stands rejected.
14. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
15. For the reasons recorded above, the appeal is accepted, with no order as to costs, on the ground, that the Consumer Complaint was not maintainable, as the Complainant did not fall within the definition of a consumer. The order of the District Forum is set aside.
16. The respondent/complainant, shall, however, be at liberty to resort to other remedy, which may be available to him, under the law, for the redressal of his grievance.
17. Certified copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion Pronounced.
17.09.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg