HARI VALLABH VIJAY vs Administrative Officer

THE three appeals arise of the order dated 24.5.2000 passed in Case No. 3/2000 by the District Consumer Disputes Redressal Forum, Rajgarh (for short the ''District Forum'') are disposed of by this common order.

IT is not necessary to reproduce facts in details. Suffice it to say that the complainant was a civil servant in State Service, whose provident fund was deducted monthly, the record of which was maintained by the office of the Accountant General Madhya Pradesh, Gwalior. The complainant averred that on his retirement from his service on 31.10.1995 he was not paid the full amount of his provident fund with interest as per slips issued by the Office of the Accountant General. The District Forum after hearing dismissed the complaint holding that because of carelessness and negligence of the servants of the State Government and the employees of the Accountant General Office, the wrong slips were issued. However, the complainant did not suffer any loss as the amount deducted of provident fund from the monthly salary was rightly paid with its accrued interest as per rules. The deduction of the amount of the provident fund from the monthly salary of the complainant was under the terms and conditions applicable to the government servants. The fund is not opened to anyone who is not a government servant. A temporary government servant who has put in more than one year service and all permanent government servants compulsorily have to subscribe the fund. The government servants and the staff of Accountant General Office of the Comptroller and Auditor General maintains the records of provident fund of a government servant, issue slips of deposits of fund and on retirement final payment is made to the subscriber. The government servants and the staff of the Accountant General in discharging their duties does not render any service for consideration, nor hiring of any service is involved hence, maintenance of General Provident Fund Account does not fall within the meaning of ''service'' as defined in Section 2(1)(o) of the Consumer Protection Act, 1986 (for short the ''Act'').

The Supreme Court in case of State of Orissa v. Divisional Manager, LIC & Anr., II (1996) CPJ 31 (SC)=AIR 1996 SC 2519, considered the case of a government servant who filed a complaint before the District Forum to claim the damages observed that the complaint of a government servant who is bound by service conditions is not maintainable under the provisions of the Act as the question of rendering of service as defined under Section 2(1)(o) of the Act is not involved. It would be appropriate to quote the observations from paras 5, 6 and 7 which reads thus : "5. The only question is : whether the appellant is liable to pay compensation to Hribandhu Setha under the Act and whether the claim is maintainable. Section 2(1)(o) of the Act defines ''service'' as under : '' "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 of loading or both housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.'' 6. A reading of the definition would indicate that services contemplated there under alone are the services within the meaning of the Act except excluded services mentioned there under. The excluded services are ''service free of charge or under a contract of personal service''. The concept of contract of personal service was considered in a recent judgment of this Court in Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651 = 1995 AIR SCW 4463. This Court had held therein that the expression ''personal service'' has a well-known legal connotation and has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act. For that purpose, a contract of personal service has been held to cover a civil servant, the managing agents of a Company and a Professor in the University. There can be a contract of personal service if there is relationship of master and servant between a doctor and the availing of his services and in that event the services rendered by the doctor to his employer would be excluded from the purview of the expression under Section 2(1)(o) of the Act by virtue of the exclusionary clause in the said definition. Other excluded service is service rendered free of charge. 7. It is not in dispute that the respondent was a government servant and, therefore, he is bound by the service conditions and the State was rendering services free of charge to the contesting respondent. Under those circumstances the government servant has been excluded from the purview of the Act to claim any damages against the State under the Act. Therefore, if any claim arises for the contesting respondent, it would be open to him to claim, in any other Forum, but not under the Act. If the claim is barred by limitation, time taken during the entire proceedings shall stand excluded."

THE National Commission in case of Sukhvir Singh v. THE Superintending Engineer, I & P (WR) & Anr., Revision No. 125 of 1995, decided on 5.12.1995, where the grievance of the complainant before the District Forum was that the amounts legitimately due to him from his provident fund account have not been paid over to him by the respondents namely, Superintending Engineer, Irrigation, Meerut and the Accountant General-2, (F-54), Allahabad, despite the fact that more than 5 years have been elapsed after he retired from service in February, 1990, observed that the Accountant General is discharging only a statutory function and is not performing any service that has been hired for consideration. THErefore, the complaint is not maintainable. This Commission in case of Accountant General v. District Consumer Forum & Ors., II (1993) CPJ 905, considered the question and observed that a complaint alleging deficiency in maintaining General Provident Fund account cannot be maintained as maintaining of the GPF account cannot be said to be service within the meaning of Section 2(1)(o) of the Act and observed in paras 6 and 7 thus : "6. 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 (hereinafter 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 open to anyone who is not a government servant and in case of temporary 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-pro-quo. 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 service on hire and a person taking such services on hire.

MOREOVER under Section 10 of the Comptroller and Auditor General''s (Duties, Powers and Conditions of Services) Act, 1971 (hereinafter referred as ''CAG Act'') the Comptroller and Auditor General (hereinafter 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 department responsible for the keeping of such account. 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 account is in discharge of a statutory responsibility, the source of his authority being the proviso of Section 10 of the CAG Act." 7. The decision of the Supreme Court in case of Regional Provident Fund Commissioner v. Shiv Kumar Joshi, III (1999) CPJ 36 (SC), relied by the complainant is of no help as it was a case where provisions of Section 5(a), (d) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and Para 30 of the Employees Provident Fund Scheme amounts were considered and the contention of the Regional Provident Fund Commissioner that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering ''service'' within the meaning and scheme of the Act was repelled. In view of the above, in our opinion the District Forum exceeded its jurisdiction in admitting the complaint and making observations against the employees of the State Government and of the staff of the Office of the Accountant General. In the result, the Appeal Nos. 1016/2000 and 1780/2000 are allowed, the Appeal No. 972/2000 filed by the complainant is dismissed consequently, the complaint is also dismissed. However, the complainant shall be at liberty to take recourse to the proceedings in accordance with the law to claim the relief. If the complainant choose to seek relief in the appropriate Court or Tribunal and if the claim is barred by limitation in that case the complainant may claim the benefit of extension of the time spent during the proceedings under Act, this we say so relying on the decision of the Supreme Court in State of Orissa v. Divisional Manager, LIC & Anr. (supra).

IN the circumstances parties to bear their own costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Ordered accordingly.