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)
.
(7)
..
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