Durga Nath Kotha vs Director Accounts Officers

S.K. Gupta, J.—We have heard Mr. P.N. Goja, learned counsel, for the appellant as well as Mrs. Anita Tikku, learned counsel for the

respondents in extenso.

This appeal has been directed against the Judgment and order dated 1.3.2001 passed by learned Single Judge in OWP No. 201/2000 allowing

the writ-petition.

Few facts relevant for the disposal of this appeal may be noticed. The appellant was a state employee holding the Post of Assistant Executive

(mechanical) till he reached the age of retirement. Being a member of the state services, appellant contributed regularly towards the provident fund

under the Provisions of J&K State Funds Act, 1998 and the Rules framed thereunder. The above said contributions/subscriptions made by the

employee during the course of his employment become payable on his superannuation in accordance with the rules relating to General Provident

Fund. Upon attaining the age of superannuation on 31.7.95, the appellant, being an employee of the Government of J&K, approached the

Respondents for the release of the G.P. Fund amount, but the latter failed to perform the statutory duties and render the services for which they

were appointed and paid by the Government of Jammu and Kashmir. The grievance of the appellant is that the respondents did not release his

G.P. Fund dues within reasonable time, therefore there is deficiency in service and hence entitled for interest and compensation.

Learned Single Judge, after hearing the counsels of both the sides, allowed the writ-petition in terms of the following order:

In view of the above this petition is allowed. Orders passed by the Divisional Forum and State Commissioner are set aside, to the extent that

respondents would not be entitled to compensation to the extent of Rs. 10,000. Rate of interest at the rate of 12% p.a. would be payable on

whole of the amount. This is however subject to the condition that whatever payment is due be released within a period of 2 months from today. In

case this is not released within stipulated period then rate of interest would be 18% p.a.

The spinal question that falls for determination in this case is as to whether the Provisions of J&K Consumer Protection Act would be attracted

to the facts of this case. It has to be ascertained as to whether any employee of the State Government is a 'consumer' and the duties performed by

the State relating to the release of the G.P. Fund amount-towards the contributions made by an employee during the course of his employment

under the Provisions of J&K Provident Funds Act is a 'service' within the meaning of the Act. In generic terms, a consumer is a person who

consumes goods or avails of services. The term 'consumer is specifically defined in Clause (d) of Section 2(1). It covers a person who buys any

goods or hires or avails, of services for consideration. The term 'consideration' for the purpose of J&K Consumer Protection Act (hereinafter

referred to as 'the Act') may be in terms of money or otherwise because the same is not defined. The Apex court in Km. Sonia Bhatia Vs. State of

U.P. and Others, has held that the 'consideration, means a reasonable equivalent or other valuable benefit passed on by the promiser to promisee

or transferer to transferee. A reference to the definition of 'service unambiguously indicates that the definition is not restrictive and includes within its

ambit such services which are specified therein. However, services hired or availed which are free of charge, or under contract of personal

services, have specifically been excluded from the purview of the expression u/s 2(1)(O) of the Act by virtue of exclusionary clause in the said

definition.

In Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, , the Apex Court considered the true import of Section 2(1)(d) and (O) of

the Act and held as under:

The combined reading of the definitions of ""consumer"" and ""service"" under the Act and looking at the aims and object for which the Act was

enacted, it is imperative that the words ""consumer"" and ""service"" as defined under the Act should be construed to comprehend consumer and

services of commercial and trade-oriented nature only. Thus, any person who is found to have hired services for consideration shall be deemed to

be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected

commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act.

In the instant case, appellant being a State Government employee is governed by the service conditions and the services rendered by the

respondents are free of charge. The maintainability of such cases before the Consumer Forum by now finally stands determined by the Apex court

in catena of cases. We are, therefore, of the view that any delay in rendering the services by the respondents in settling the claim for the release of

G.P.F of the appellant, is not actionable before the consumer forum against the defaulters.

No ground is, therefore, made out for interference in the impugned order propounded by the learned Single Judge.

In the result, there is no merit in this appeal and is, accordingly, dismissed without any order as to costs.