BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                             C.C.No.39/2013

Dated this the  29^th day of September 2016

(Date of Institution: 02.09.2013)

K. Sellappan, son of Karupanna Cavundar             

No. 26, First Main Street,              

East Vasal Nagar                        

Nainarmandapam, Mudaliarpet

Puducherry – 605 004.

….     Complainant

vs

1. The Branch Manager                             

    State Express Transport Corporation (T.N.) Limited

    Opp. Swadeshi Mill                         

    Maraimalai Adigal Salai

    Puducherry – 605 001.

2. The General Manager (Administration)

    State Express Transport Corporation (T.N.) Limited

    Pallavan Salai,

    Chennai – 600 002.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru  T.S.P. Sridhar Babu and R. Raja Prakash,  Advocates

FOR THE OPPOSITE PARTY:  Tvl. A. Loganathan and V. Govindaradjou,

                                                          Advocates.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 (1) (a) of Consumer Protection Act for directing the Opposite Parties to pay a sum of Rs.5,25,000/-towards the complainant's provident Fund amount with interest;  to direct the opposite parties to pay a sum of Rs.4,00,000/- towards compensation for deficiency in service, monetary loss, sufferings, mental agony and stress and for cost of this complaint.

2.  The case of the complainant is as follows:

          The Complainant was working as Conductor in the opposite parties Transport Corporation from 21.02.1981 and was superannuated on 31.07.2012 after serving for 31 years, 5 months and 10 days. He was a member of the Provident Fund under Opposite Parties and his Provident Fund Account number is 11137.   On  25.05.2011 the complainant submitted an application for non-recoverable loan from his share amount lying in the provident fund and on 03.08.2012 he submitted an another application to the second opposite party through first opposite party for settling his amounts due to him from his provident fund account along with other retirement benefits.   Even after receiving his applications submitted in complete format, the opposite parties did not settle his Provident Fund Amount at the time of his retirement, therefore, he issued a letter dated 25.05.2013 requesting for settlement of the dues.  Till date of filing this complaint, the opposite parties have not settled his dues with interest.  The complainant further stated the State Express Transport Corporation Ltd., (Tamil Nadu) obtained exemption from the Provident Fund Office and has a Provident Fund Office at Chennai – 2 under the name and style of State Express Transport Corporation (Tamil Nadu Provident Fund Office for the workers assuring payment of more interest.  The OP office deducted from his office, the monthly contribution payable by him, but did not refund the provident fund accumulations which is inclusive of the share of the employer and due to him.  The non-settlement of dues under the Provident Fund Account to the complainant is a deficiency of service committed by the Opposite Parties, as they are under law liable to do.  Further, under the terms of an agreement reached between the Union and Corporation, the opposite parties have to settle retirement dues and provident fund amounts to the retired employees within 10 days of their retirement. Since the opposite parties have not settled the provident fund amounts due to him, the complainant had to incur expenditure  by raising loans at exorbitant interest and his children's education, marriage and health were affected.  The complainant estimated the loss and sufferings at Rs.4,00,000/- on this count.  Hence, the prayer for payment of Rs.5,25,000/- being the amount payable to him under the Provident Fund Account by Opposite parties along with interest as well as for compensation of Rs.4,00,000/-. 

3. The reply version filed by the second opposite party and adopted by first opposite party discloses the following:

          The complaint is not maintainable either in law or on facts.  The opposite parties denied that the petitioner was appointed as Conductor on 21.02.1981 and retired on 31.07.2012 at Pondicherry Depot and also denied that on 25.05.2011 and 03.08.2012 the petitioner had availed loan from the provident fund but the same was not forwarded and he was not paid the amount from them.  It is stated by the opposite parties that the petitioner was appointed  by the Head Office and the Head Office is situated at Chennai, if the complainant has any grievances, he should have approached only before the Head Office at Chennai or the concerned authority at Chennai.  Without doing so, the complainant has approached this Forum  without any jurisdiction.  Further stated that the opposite parties Transport Corporation is a Government undertaking and hence, the petitioner is not entitled protection under the Act and he has to approach the Central Administrative Tribunal or the State Authority and it is the only appropriate forum for Redressal of his grievances if any.  The complainant is not a consumer under Section 2 (1) (d)(ii) of the Act.  The Government Servant is entitled to claim his retiral benefits strictly in accordance with his service conditions and the complainant cannot approach any forum under the Act.  Further stated that the Consumer Act is made to deal with the rights of consumers wherein marking of goods or services as defined under the Act have been provided.  Hence, prayed for dismissal of the complaint with compensatory costs.

4.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C7 were marked.  On the side of first opposite parties, one A.N. Ragulan, Branch Manager was examined as RW1 and marked Exs.R1 to R3. 

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any deficiency in service?
3. To what relief the complainant is entitled for?

6. Point No.1:

          The learned Counsel appearing for the opposite parties submitted that the dispute raised by the complainant does not come under the purview of "Consumers" and they are not rendering any service as defined in the Consumer Protection Act and the Provident Fund is government by statutory Act and Rules.  Hence, the complainant is not a Consumer.  In this regard, the opposite party relied upon two judgments reported in Revision Petition No. 961 of 1997 and others filed by Comptroller and Auditor General of India and the Accountant General (A&E)  wherein, Hon'ble National Consumer Dispute Redressal Commission has held that "the Accountant Generals are not running any service within the meaning of the Consumer Protection Act 1986……Statement 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."

          7. Further in INDIAN BANK vs THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AND N.S. RAJAN (Writ Petition No. 8122 of 202 [2003] RD-TN wherein, Hon'ble High Court Judicature at Madras has decided that "the Government servant has been excluded from the purview of the Consumer Protection Act to claim damages / compensation against the State under the Act."

          8. On the otherhand, the learned counsel appearing for the complainant submitted that as per Section 2 (1) (d) (ii) of the Consumer Protection Act 1986,  consumer means, a person who hires the "services" for consideration and also "beneficiary of the service".  Hence, as per Employees Provident Fund Scheme, employees should be treated as beneficiary.  In this case, the opposite parties Corporation has obtained exemption for depositing contribution from the Employees Provident Fund Organisation.  They have paid their contribution and employee's contribution in their internal office (Provident Fund Trust).  Hence, the opposite parties rendered services to the employees.  Hence, the Employees Provident Fund Trust under Provident Fund Scheme is a "Service" within the meaning of the Consumer Protection Act, 1986.   To fortify their contentions, the complainant cited a judgment of Hon'ble Supreme Court of India in [REGIONAL PROVIDENT FUND COMMISSIONER vs SHIV KUMAR JOSHI] (2000) 1 SCC 98 – AIR 2000 SC 331 wherein, it was held that "…..We are concerned with clause (ii) of Section 2 (1) (d).  In the said clause a consumer would mean a person who hires or avails of any services and includes any beneficiary of such services other than the person who hires or avails of the services….."The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such-services which beneficiary is other than the person who hires the services"……"A perusal of the scheme clearly and unambiguously indicate that it is a "service" within the meaning of Section 2 (1) (o) and the member a "consumer" within the meaning of Section 2 (1) (d) of the Act. "

          9. The learned Counsel for the complainant also relied upon the judgments reported in Civil appeal No. 6447 of 2001 [REGIONAL PROVIDENT FUND COMMISSIONER vs BHAVANI] and also relied a judgment of Hon'ble Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Appeal No. 2123 of 2004 [2007 (1) CPR 351] NAUBAT SINGH vs M/S DENA BANK.  It is also clearly reiterated the same version that a member of Provident Fund is also a Consumer. 

          Moreover, this Forum also relied upon a judgment of Hon'ble National Consumer Disputes Redressal Commission in THE DEPUTY GENERAL MANAGER cpf…. Vs KASHMIR SINGH AND OTHERS [Revision Petition No. 3317/2008) wherein, it was held that

"Dr. Padia's submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995     Pension Scheme, must be held to be a 'service giver' within the meaning of Section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of 'master and servant'. In our view, the respondent comes squarely within the definition of 'consumer' within the meaning of Section 2(1)(d)(ii), in as much 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."

          10. From the above, it is crystal clear that the complainant is a Consumer u/s 2 (1) (d) of the Consumer Protection Act 1986.  Therefore, the authorities cited by the learned Counsel for the opposite parties are not taken into consideration.

          11.  Point No.2:

We have perused the complaint, evidence of CW1 and Exs.C1 to C7.  We have also perused the reply version of opposite parties and their evidence  RW1 and Exs.R1 to R3.  The complainant submitted that he was working as Conductor in the Opposite Parties Corporation from 21.02.1981 and retired on 31.07.2012 and further alleged that soon after his retirement, his contribution to Provident Fund was not settled by the opposite parties.  It is also the allegation of the complainant that he had applied for a loan to his children's education in 25.05.2011 vide Ex.C5 that was also not processed by the opposite parties.  Further, on 3.8.2012, the complainant has given a letter vide Ex.C6 to the opposite parties to disburse the retirement benefits, the same was also not processed by the opposite parties.  Since, the retirement benefits are not given to the complainant, the complainant sent a legal notice vide Ex.C7 dated 25.05.2013, though the said notice was received by the opposite parties, they have not come forward either to give the  reply or to settle the dues.  Thus,  the opposite parties committed deficiency in service and they are liable to pay compensation.   

          12. On the other hand, the opposite parties alleged that since there is paucity of funds in the corporation, the disbursement of provident fund to the retired employees could not be made immediately, however, on seniority retirement basis, the provident fund amounts were settled to various employees,  accordingly the dues to the complainant were settled vide Ex.R1, therefore, there is no deficiency in service on the side of the opposite parties. 

13.     This forum has perused the materials available on record.  Admittedly, there is no dispute with regard to the service rendered by the complainant to the opposite parties.  The only dispute that arose in this complaint is that the opposite parties have failed to settle the Provident Fund amount due to the complainant in time.   It is pertinent to note that as per Section 72 (7) of the Employees Provident Fund Scheme, 1952 it is clearly stated that

"The claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within 30 days from the date of its receipt by the Commissioner.  If there is any deficiency in the claim, the same shall be recorded in writing and communicated to the applicant within 30 days from the date of receipt of such application.  In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner."

In this case, the State Express Transport Corporation Ltd., (Tamil Nadu), Chennai-2, the OP2  obtained exemption from the Provident Fund Office to act as a Commissioner under the name and style of State Express Transport Corporation (Tamil Nadu) Provident Fund Office, to assure the payment of more interest to the members.  The Managing Director of the Corporation is deemed to be the  Commissioner of the Trust.    Further, as per the Act, the Provident Fund amount to be settled within 30 days of retirement of an employee, but the opposite parties failed to do so for the reason that there was scarcity of funds in the Corporation, but they are settling the amount on seniority retirement basis.  Accordingly, the complainant was also settled the provident fund amount i.e. a sum of Rs.5,14,058/- only on 7.9.2015 during the pendency of this case and the Counsel for the complainant also filed a memo for receipt of Rs.5,14,058/-.

          14.  Now the question that has to be decided by this Forum is whether the complainant is entitled for interest from 01.08.2016 to till date.  As per section 72 (7) of the Employees Provident Fund Scheme, 1952, if the settlement is not made within 30 days on receipt of application, the delayed period carries penal interest at the rate of 12% per annum.  In the present case, the complainant was retired on 31.07.2012, the opposite parties settled the Provident Fund benefits only on 7.9.2015.  The Act clearly envisages that the Provident Fund dues to be settled within 30 days of from the date of receipt of application.  The complainant submitted his application on 3.8.2012 vide Ex.C6 and his dues might have settled on or before 3.9.2012.  But the opposite parties settled his dues only on 7.9.2015 i.e. after three years of his retirement.  Therefore,  the complainant is entitled for the penal interest as laid down in section 72 (7) of the Employees Provident Fund Scheme, 1952.  Hence, this Forum observed that the opposite parties have committed deficiency in service which might have definitely caused loss and mental agony and the complainant has to be compensated for the same by the Opposite Parties. 

          15. On point No.3:

          In view of the discussions made supra, this complaint is hereby allowed and the opposite parties are directed to:

          1. pay  the complainant a sum of Rs.48,843/-  being the interest @ 12% for the delayed payment of Provident Fund from 03.09.2012 to 18.06.2013 the date of filing of this complaint and the complainant is entitled for subsequent interest from 19.06.2013 till the period of realisation;

          2. pay  the complainant a sum of Rs. 25,000/-  being compensation for the loss and sufferings;

          3. pay  the complainant a sum of Rs.5000/- towards cost of this litigation.

Dated this the 29^th  day of September 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           17.06.2014           Chellappan       

OPPOSITE PARTY'S WITNESS:

RW1           17.12.2014           A.N. Ragulan, Branch Manager

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   04.04.2014           Photocopy of list of employees to whom the PF

amount was settled by the OP.

Ex.R2                   20.09.2014           Letter from Assistant Manager, SETC, Chennai to

Branch Manager, SETC, Pondicherry informing

the settlement of PF amount to the employees.

Ex.R3                                                Photocopy of PF statements for the year 2009-10;

2010-11; 2011-12 and 2012-13 of complainant

Series

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER