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Judgment
OPPOSITE parties in O.P. 233/2000 on the file of the Consumer Disputes Redressal Forum, Pathanamthitta are the appellants. Complainant''s grievance was that though he retired from the service of the opposite party on 31.5.2000 the disbursement of the gratuity was delayed and the same was disbursed only on 18.7.2000. Thus delay in disbursement of the gratuity as stated above caused injury to the complainant and, therefore, he alleged the said deficiency is entitled to be compensated.
IN the version by the opposite party they sought to maintain that the nature of the claim is such that the complainant cannot be treated as a consumer. IN such circumstance they wanted dismissal of the complaint. They further contended that the gratuity was disbursed to the complainant within 48 days of the retirement. It was sought to be maintained that there is no deficiency in service. By the impugned order the District Forum found that the complainant is a consumer and consequently on account of the delay in disbursing the amount the District Forum found deficiency in service. District Forum directed the opposite party to pay compensation of Rs. 1,000/-, costs was also allowed, it is said direction that is under challenge in this appeal.
Learned Counsel for the appellant urged that in relation to the pensionary benefit particularly gratuity, the employer/the opposite party cannot be said to have rendered service to the complainant/the employee; adding to that there could be no consideration for the said alleged service. When such is the position the complainant being not a consumer the complaint itself was not maintainable before the District Forum. It was also urged by the learned Counsel on the basis of Rules 7 and 8 of the Kerala Payment of Gratuity Rules, 1973, the payment having been made within 48 days of the retirement there cannot be any delay so as to find deficiency in service. On the other hand the learned Counsel for the respondent/complainant sought to support the direction maintaining that even assuming that the employer cannot be treated as one who rendered service to the employee, after retirement, the position is different and in such case his status as a consumer cannot be disputed.
LEARNED Counsel for the appellant placed before us two decisions one by the State Commission, Orissa at Cuttack, III (1992) CPJ 205, Mahendrakumar Dalabehera v. State of Orissa & Ors., and the other the decision in Sukhbir Singh v. Chief Engineer, Mahi Pariyojana & Ors., III (1993) CPJ 1785, by the State Commission at Rajasthan, Jaipur. In both these decisions the view taken is, an employee either in respect of the service benefit during the period of service or post service benefits does not avail service from the employee or its agent and hence such employee cannot be treated as consumer. The reasoning in the two decisions cannot be said to be not consistent with the principle underlying Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. First of all, the employee cannot maintain that he avails the service of his employer much less he has paid consideration for such service. When such is the position the aforesaid two decisions would cover the point and applying the said decisions. We hold that the complainant is not a consumer. When that is the position the complaint was not maintainable. Consequently the direction is liable to be set aside and the appeal has to be dismissed. We do so, but in the circumstances of the case, there will be no order as to costs. Ordered accordingly.