Commissioner, Ongole Municipality Vs. A. Venkateshwar Rao - Court Judgment

S. Parvatha Rao, President:

1. Heard the learned Counsel for the appellant and also the learned Counsel for the respondent.

2. The complainant was a permanent employee of the Ongole Municipality from 1.8.1980 and he retired as Head-master on the afternoon of 31.3.1996 on attaining the age of superannuation. In his complaint the stated that he contributed a sum of Rs. 22/- per month towards Provident Fund amount through deduction from salary and that the appellant, who was the opposite party in the DistrictForum, also credited the enhanced D.A. as per the Government orders and that the total amount contributed to Provident Fund account came to Rs. 15,333.80 ps. including the arrears of D.A. credited to that account. He further stated that the Government issued orders in G.O. Ms. No. 245 Finance and Planning Department dated 1.7.1985 for payment of interest @ 10.5% p.a. with effect from 1.4.1985 and subsequently under G.O. Ms. No. 167 of the same department dated 19.6.1986 increased the interest to 12% with effect from 1.4.1986. The case of the complainant is that after his retirement he approached the appellant for payment of the provident fund amount but the same was not paid to him. According to him the appellant paid only Rs. 13,800/- on 9.4.1996 leaving a balance of Rs. 1,535.80 still to be paid and also interest accrued amounting to Rs. 14,102.40 ps. as per Government orders issued from time to time.

3. In the order dated 20.5.1997 the District Forum observed that though notice was issued to the appellant, no counter was filed and no affidavit was filed and that the complainant gave affidavit in support of his claim.

4. The District Forum held that no adequate reason was there to reject the complainant's affidavit and accepting the case set up by the complainant allowed his claim directing the appellant herein to pay Rs. 15,638.20 ps. to the complainant with interest @ 18% p.a. from the date of the order till the date of payment. The District Forum also directed the appellant to pay Rs. 300/- towards costs to the complainant.

5. Thus this is a case where the appellant/ opposite party remained ex parte before the District Forum. He did not appear before the District Forum even though notice was received by him and he did not care to file any counter and oppose the claim of the respondent/complainant before the District Forum. But the learned Counsel for the appellant contends that the District Forum had no jurisdiction to entertain the matter as it pertains to payment of provident found pursuant to Government directives and no services for consideration were involved. He relies on the decision of the National Consumer Disputes Redressal Commission, New Delhi in Ch. Veerabhadrayya v. Secretary, A.P. Residential Educational Institutions Society, III (1992) CPJ 3 (NC)=1986-1996 Consumer Cases 2206 (NS), wherein it was held as follows :

"We are in agreement with the view expressed by the State Commission that the dispute raised in the complaint petition out of which this appeal has arisen, relating to the alleged non-payment of amounts due to the petitioner by way of pension by the respondent in whose service he had worked is not a consumer dispute and the petitioner cannot be regarded as a 'consumer'. The dismissal of the complaint on this ground was perfectly right".

This was followed by Kerala State Consumer Disputes Redressal Commission in Headmistress, A.U.P. School v. M. Devayani and Another, 1996 CCJ 477. But those cases did not deal with Provident Fund.

6. The Karnataka State Consumer Disputes Redressal Commission in AswanthaiahEsthuri Sanjeevamma National College, Gowribidanur v. D. Somasekhara, III (1996) CPJ 262=(1996) 4 CTJ 826 (CP), also relates to settlement of pension claim of the claimant who was a retired Government servant. The District Forum allowed the claim for interest for the delayed payment. The Karnataka State Commission held that the Consumer FORA established under the Act had no jurisdiction to undertake enquiry of such a claim and relied on the decision of the Punjab State Consumer Disputes Redressal Commission in Additional Director (T and A) and Others v. JagdishwarNath Jariath, 1995 (2) CCC-CONSUMER 76 (SS), wherein it was held that the case of a Government servant for non-payment of gratuity or Provident Fund would not be covered under the definition of services to be rendered and therefore the Agencies established under the Act had no jurisdiction to entertain such a claim.

7. In Central Bank of India v. DilBahadurSingh, (1994) 2 CTJ 24 (NC), the National Commission held that the claim of the complainant in that case was about non-payment of Provident Fund to him and that though the Provident Fund could not be retained by the employer, payment of Provident Fund could by no stretch of imagination be said to be rendering of service under the Consumer Protection Act, 1986 — though in that case the employer was a Bank, the National Commission held that payment of Provident Fund did not relate to "Banking service". In that view of the matter, the National Commission held that the District Forum and the State Commission exceeded their jurisdiction vested in them while granting relief to the complainant under the Act in respect of Provident Fund claimed by him.

8. In District Educational Officer and Anr. v.M. Krishnan Kutty, II (1997) CPJ 477, the Kerala State Consumer Disputes Redressal Commission was considering the case of a complainant who was working as a teacher in an aided school and who had remitted his contribution to the Teachers Provident Fund under the Madras Education Rules and retired from the service in 1979, but no steps were taken to disburse his Provident Fund amount. The District Forum, which he approached, found that there was deficiency in service and directed the opposite party to pay to the complainant Rs. 2.000/- as compensation. The Kerala State Commission held as follows :

"We find the conduct of the opposite party is not satisfactory. The complainant retired in 1979 and till now his Provident Fund claim has not been settled. However, we have held that this is not a matter which would fall within the purview of the Consumer Protection Act".

9. In Regional Provident Fund Commissioner, Faridabad v. Shiv Kumar Joshi, I (1996) CPJ 199 (NC), the National Commission has clarified the distinction between claims of Provident Fund under Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the schemes framed under that Action the one hand, and claims under Provident Fund Act, 1925 and various State General Provident Fund Acts/Rules on the other. In the former case, the National Commission hasheld that the Commissioners constituted under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the 1952 Scheme extend out service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986, to the subscriber for consideration as administrative charges are levied and recoverable by the Commissioner for payment of the services rendered by the Commissioners and the ancillary staff. As regards the Provident Fund in the later case, the National Commission has held as follows:

"The position however, is different to the maintenance of the Provident Fund under the Provident Fund Act, 1925 or under the various State General Provident Fund Acts/ .Rules. The responsibility of maintaining the account relating to the amount of Provident Fund Account of a Government employee (Central or State) to whom the said provisions are applicable have been assigned to the Accountant General. A statutory duty has been cast upon the Accountant General in this respect. The Government pays to the credit of account holder interest at such rates as may be determined for each year by the Government. There are various other rules which need not be mentioned dealing with the rights and liabilities of a subscriber in regard to the amount of his Provident Fund. Those provisions show that the element of service as contemplated by the provisions of the Consumer Protection Act, 1986, or of any consideration therefor, so as to bring a subscriber within the definition of a 'consumer' is absolutely lacking. It is on these considerations that in Central Bank of India v. DilBahadur Singh, which was the case relating to the payment of Provident Fund of a Bank employee of a Nationalised Bank was considered and decided by this Commission. The responsibility in compiling and maintaining the General Provident Fund Accounts by the Government or Public Undertakings is in discharge of statutory responsibility and the source of his authority is not the said Act and the 1952 scheme. The contrary view taken by the Delhi State Commission was in the case of M.K. Sangal v. Accountant General, I (1992) CPJ 441, which fails to notice that the maintenance of the Provident Fund Account by the Accountant General is in exercise of statutory powers and perhaps this view was taken without drawing a distinction to the functions of the Commissioners under the said Act and the 1952 Schemes".

10. In view of this clear enunciation and clarification of the legal position and as it is not in dispute that the Provident Fund claimed by the respondent in the present case falls in the latter category and does not come under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the order of the District Forum dated 20.5.1997 questioned in this appeal is set aside and the appeal is accordingly allowed. No costs.

Appeal allowed.