ACCOUNTANT GENERAL vs District Consumer Forum

THE Appellant along with Collector, Sehore was an Opposite Party in a complaint filed by a retired Government servant complaining about deficiency in service in maintaining General Provident Fund account of the complainant and claiming an amount of Rs. 1794/-with interest from the Opposite Party.

ON behalf of the Appellant/Accountant General, Madhya Pradesh a preliminary objection was raised as to the jurisdiction of the District Forum to entertain the complaint. However, the District Forum without deciding the objection as to the jurisdiction decided the claim on merit and directed Appellant, payment of costs of Rs. 250/- to the complainant. Aggrieved, the present appeal is filed by the Accountant General, Madhya Pradesh. The sole question for determination in the case is as to whether the complaint about the deficiency in maintaining General Provident Fund (hereinafter referred as "GPF'') account of a Government servant would be covered by the Consumer Protection Act, 1986.

Definition of "consumer" and "service" will be essential to be reproduced for our purposes : - "2. Definitions - (1) In this Act, unless the context otherwise requires : - (d) "consumer" means any person who, - (i). (ii) hires 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 benefficacy of such services other than the person who hires for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services arc availed of with the approval of the first mentioned person."

(o) "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

It is therefore clear that for a person to become a consumer for the purposes of the Act, he must hire any services. It is also clear from the definition of "service" that all kinds of service is covered except-a-service which is rendered free of charge or which is rendered under a contract of personal service.

EXAMINING the facts of the present case in the light of the above two provisions of the Consumer Protection Act, we find that firstly, there is no hiring of service as such by the complainant and secondly whatever service the Opposite Parties were expected to render were under a contract of personal service. The General Provident Fund is constituted under the Madhya Pradesh General Provident Fund Rules, 1955 framed by the State Government in exercise of its powers under Article 309 of the Constitution of India. Rule 3 of the Madhya Pradesh General Provident Fund Rules, 1955 (here in after referred to as the "Rules") provides that the fund shall be administered by the State Government and shall be maintained in rupees. Rule''4 of the Rules provides that all Government servants except those on short term vacancies etc. shall be eligible to subscribe to the fund. Rule 5 provides that all temporary Government servants who had put in more than one year of continuous service and all permanent Government servants who are eligible to subscribe to the fund under Rule.4 shall be compulsory subscribers to the fund. It is therefore clear that the fund is not opened to anyone who is not a Government servant and in case of temporary Government servants who have put more than one year of continuous service and all permanent Government servants, it is compulsory to subscribe to the fund. There is therefore no question of hiring of service involved because hiring means hiring voluntarily. It connotes a contract entered into between two parties of their own volition. There has to be an offer and acceptance for an agreement between parties. There is no question of any offer or acceptance in case of membership of GPF which is not offered on the basis of quid-proquo. It depends on the status of a person as a Government employee and in case of the complainant as he was a permanent Government employee, the membership of the GPF was compulsory. There is therefore no doubt that the relationship of the Authorities maintaining the GPF and the complainant was to that of a person giving services on hire and a person taking such services on hire.

MOREOVER under Section l0 of the Comptroller and Auditor General''s (Duties, Powers and Conditions of Services) Act, 1971 (hereinafter referred as ''CAG Act'') the Controller and Auditor-General (here in after referred as ''CAG'') is responsible for compiling the accounts of the Union and of each State from the initial and subsidiary accounts rendered to the audit and accounts offices under his control by treasuries, offices or departments responsible for the keeping of such accounts. Under the proviso to said Section, the President or in certain cases Governor of the State with the previous approval of the President and after consultation with the CAG may relieve him from the responsibility of compiling certain accounts. Brochure on Duties and Powers of the Comptroller and Auditor General of India published by the Office of CAG contains an information that the President has by issue of several orders relieved the CAG from the responsibility for maintaining the GPF accounts of certain categories of employees in various States. It appears that under this provision the CAG has been relieved of the responsibility of compiling the provident fund accounts of the employees of Madhya Pradesh State and instead the Accountant General has been charged with the responsibility. Thus, it appears that the responsibility being discharged by the Accountant General of Madhya Pradesh in compiling and maintaining the GPF accounts is in discharge of a statutory responsibility, the source of his authority being the proviso to Section 10 of the CAG Act. Lastly, the function of maintenance of GPF account cannot be said to be service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. Even if, it is assumed that some kind of service is made available by the Government to it''s employees in maintaining their GPF accounts, such a service fixing clearly under a contract of personal service is not covered by the definition of "service" under the Consumer Protection Act. There is no doubt that the contract of service between the Government and a Government servant is a contract of personal service. Under this contract, the Government servant undertakes to serve the Government on terms and conditions contained in the Rules framed under Article 309 of the Constitution of India. The Rules under which the fund is constituted and administered is no doubt a part of a contract of personal service between the Government and it''s servants. Service rendered by the Government by maintaining the GPF accounts cannot therefore be said to be "service" for the purposes of the Consumer Protection Act. Before parting with this case, we have to deal with a case cited at the Bar. In M.K. Sangal v. The Accountant General-I(Lekha) I (1992) CPJ 441, the State Commission, Delhi has held that the Accountant General while administering the provident fund functions as a Bank and, therefore, the services rendered by the Accountant General in maintaining the account come within the purview of the Consumer Protection Act. With respect we do not agree with the view taken by the State Commission, Delhi. It appears that because the judgment was rendered ex-parte the provisions of law under which the GPF is constituted and administered were not brought to the knowledge of the State Commission. It is for this reason that the State Commission did not consider the definition of "Consumer" and definition of "service" and straightway went into the question whether improper maintenance of GPF account would be a deficiency in service or not. In our considered view, with due respect to the State Commission of Delhi, the decision does not lay down a correct pro-position of law. We are therefore, unable to follow the same.

IN the result the appeal is allowed. The impugned order of the District Forum is set-aside. IN the circumstances of the case, the parties shall bear their own costs. Appeal allowed.