HARIHAR JORE IRRIGATION DIVISION vs ANIRUDHA SAHU

THE moot question that arises for consideration in their appeal is as to whether a Government servant can raise a "consumer dispute" under the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') claiming compensation against his officers on the ground that there was delay in disposing of his application for temporary withdrawal of money from the General Provident Fund (in brief G.P.F.).

BRIEFLY stated, the case of the respondent is that while serving as Junior Engineer of the State Government at Titilagarh, he in April 1998 applied for temporary withdrawal of Rs. 70,000 from G.P.F. to defray the marriage expenses of his sister. As the amount was not made available to him at proper time, he had to take loan from a private financier to meet the expenses. The Superintending Engineer however sanctioned withdrawal on 22.6.1999. The delay caused by him amounts to deficiency of service and because of such delay, he had to undergo mental shock and agony. He accordingly filed a complaint before the District Forum claiming compensation of rupees one lakh.

The appellants filed their written version separately. Their common case is that the respondent is not a ''consumer'' and as such the complaint filed by him is not maintainable. There was no delay in sanctioning and withdrawal of G.P.F. and delay if any was on account of official procedure.

THE District Forum allowed the complaint by recording the following findings. (i) THE complaint is maintainable inasmuch as the employees of the organization are provided with the remedy to approach the authority for withdrawal of the G.P.F. and the services rendered by the authority are amenable to the jurisdiction of the Consumer Forum. (ii) THE appellants failed to discharge their duty in providing the G.P.F. amount at proper time and hence they are liable to pay a sum of rupees one lakh to the respondent by way of compensation for causing mental agony and harassment.

Mr. Sangram Das, learned Additional Standing Counsel appearing for the appellants submitted that the District Forum committed gross error of law in holding that the complaint is maintainable in law. He also submitted that as a matter of fact there was no delay in sanctioning the temporary withdrawal of G.P.F. and grant of compensation amounting to rupees one lakh is unwarranted and grossly disproportionate.

AS indicated above, the District Forum in reaching to the conclusion that the complaint filed by the respondent is maintainable, it seems to have relied upon the decision of the Supreme Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi, III (1999) CPJ 36 (SC)=X (1999) SLT 395=AIR 2000 SC 331. In that case Shiv Kumar Joshi being a member of the Provident Fund Scheme applied to the Regional Provident Fund Commissioner for payment of his Provident Fund. The Commissioner found that his application was not complete. He accordingly forwarded it to Joshi''s employer for verification. The Inspector of the Commissioner visited the factory in which Joshi was working. Joshi''s claim was however settled in August, 1992. Alleging that there was deficiency in service by the Commissioner, he filed complaint before the District Forum claiming damages amounting to Rs. 65,000. The District Forum held that Joshi was not a consumer and the facilities provided by the Provident Fund Scheme were not "services". It however directed the Commissioner to pay interest on delayed payment and cost of litigation. Being dissatisfied with the said order the Commissioner filed appeal before the State Commission but without any success. The Revision filed by the Commissioner before the National Commission was futile. Thereafter, he filed appeal before the Supreme Court. After examining the definition clauses "consumer" and "service" the Supreme Court held that services contemplated under the Act alone are the services within the meaning of the Act except excluded services mentioned thereunder. The excluded services are "service free of charge or under the contract of personal service". The Supreme Court further examined the Provident Fund Scheme and held that the contribution of the employee has to be equal to the contribution payable by the employer in respect of such employee. It is only because of the employment of the employee, there is obligation upon the employer to pay his part of the contribution. The Provident Fund Commissioner renders "service" within the meaning and Scheme of Employees'' Provident Funds and Miscellaneous Provisions Act, 1952. Under the said Act and the scheme framed thereunder he discharges statutory function. He has not been delegated with the sovereign powers of the State so as to hold it as a Central Government being not the authority rendering the "service" under the Act. The Commissioner is a separate and distinct entity. He cannot claim that the facilities provided by the scheme are not "services" or that the benefits under the scheme are provided free of charge. In the circumstances, the Court held that the Provident Fund Scheme is a "service" within the meaning of Section 2(1)(o) and the member is a "consumer" within the meaning of 2(1)(d) of the Act. From the aforesaid, it may be seen that the subscriber Shiv Kumar Joshi was not a Government servant. He was an employee working in a factory and as per the Provident Fund Scheme, the employer and the employee are required to contribute their contribution towards the provident fund under the direct supervision of the Provident Fund Commissioner and in case of any default on the part of employer he is entitled to determine the money due from employer and recover the same from the employer. In the instant case the facts are different from the facts appearing in the case of Shiv Kumar (supra). In the case at hand the respondent as well as the superiors were Government servants and under the conditions of service the application for temporary withdrawal of G.P.F. has to be considered by his superior officers and for such consideration the respondent does not avail or hire any services of the Government or his superiors.

IN order to get hand of the issue, we have to examine if the respondent can be held to be a "consumer" within the meaning of Section 2(1)(d) of the Act. "Consumer" means any person who: "(i) *** *** *** (ii) ''(hires or avails of) 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 beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose)."

SIMULTANEOUSLY, we have to look at the definition of "service" as provided under Section 2(1)(o) of the Act which states as follows: "service" means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging 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 under a contract of personal service."

(Emphasis supplied) From the aforesaid definitions, it is evident that the services envisaged thereunder only are the services within the meaning of the definition of "service" except excluded services mentioned therein. In other words, services rendered free of charge or under contract of personal service do not come within the definition. It is nobody''s case that the appellants while considering the application for withdrawal of G.P.F. rendered service by taking some charge from the respondent nor was it covered by the contract of personal service. The respondent and the appellants are Government servants. Under the scheme of the G.P.F. Orissa Rules all Government servants are required to subscribe to the funds. The subscriber is entitled to take advance from the amount at his credit in the funds subject to certain conditions. The Designated Authority is competent to grant the advance applied by the subscriber. Therefore, permission to withdraw certain amount of advance from the subscriber''s account is done as per the rules provided. For the aforesaid reason, the respondent can neither be held as a "consumer" nor the appellants can be held to have been rendering service by taking some charges.

The legal position in this regard has been clearly laid down by the Supreme Court in the State of Orissa v. Divisional Manager, L.I.C., II (1996) CPJ 31 (SC)=AIR 1996 SC 2519. Paragraph 7 of the judgment is relevant for our purpose. It is extracted hereunder: "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."

IN view of what has been stated above, we are of the opinion that the District Forum erred in law in entertaining and allowing the respondent''s complaint. Before parting with the case, we may observe that the District Forum has awarded a sum of rupees one lakh as compensation to the respondent for mental agony, harassment, etc. It is not understood what formula was adopted by the District Forum for assessing the compensation. No doubt the District Forum is competent to grant compensation in a deserving case. While exercising such discretionary power the Forum is required to act judiciously on the well known principles governing grant of compensation. The discretion is a judicial one and not an arbitrary or capricious exercise of the post.

FOR the reasons aforesaid, the impugned order cannot be supported in law which is hereby set aside. The complaint of the respondent accordingly stands dismissed. In the result, the appeal is allowed. No costs. Subash Mahtab, Member, I agree. Appeal allowed.