REGIONAL PROVIDENT FUND COMMISSIONER vs ARVIND MISHRA

THIS is an appeal against the order dated 2.7.1997 passed in Case No. 161/Forum/97 by the District Consumer Disputes Redressal Forum, Satna (for short the ''District Forum'').

THE respondent No. 1 an employee of respondent No. 2, after his resignation applied for payment of provident fund amount, contribution of which from time to time deposited in his Account No. MP 655/A-11. THE amount neither was paid by the employer nor by the appellant-Regional Provident Fund Commissioner. THErefore, he filed a complaint before the District Forum. THE appellant did not appear hence was proceeded export. THE respondent No. 2 resisted the complaint. THE District Forum after appreciation of evidence on record ordered the appellant to make the payment of the accumulated amount of the provident fund with interest thereon at the rate of 12 per cent per annum from 1.8.1996 till payment and also directed to pay the compensation of Rs. 5,000/- for mental pain and sufferings with Rs. 500/- as costs of the proceedings. THE appellant applied under Order 9, Rule 13, C.P.C. for setting aside ex parte order. THE said application was registered as MJC No. 17/0/97 which was dismissed on 27.11.1997. It is against this order, the present appeal has been filed. Mr. Uday Palnitkar, learned Counsel for the appellant submitted that there was sufficient cause for non-appearance as the notice was received in the office of the Regional Provident Fund Commissioner in a different section from here it was sent to legal section. By the time the ex parte order was passed. Therefore, the District Forum committed illegality in not setting aside the ex parte order.

The provisions of Order 9, Rule 13, C.P.C. do not apply as ruled by the Supreme Court in Jyotsna Arvind Kumar Shah & Ors. v. Bombay Hospital Trust, III (1999) CPJ 1 (SC)=VII (1999) SLT 146, therefore, the appellant ought to have challenged the final order instead of filing an application under Order 9, Rule 13, C.P.C.

ON merits, the main contention that it is the liability of the employer and not of the Provident Fund Commissioner as the Provident Fund Commissioner does not render any service, therefore, the respondent No. 1 was not the consumer of the appellant. The Supreme Court in the recent pronouncement of the Supreme Court in case of Regional Provident Fund Commissioner v. Shiv Kumar Joshi, III (1999) CPJ 36 (SC)=X (1999) SLT 395=(2000) 1 SCC 98, it has been ruled that the Regional Provident Fund Commissioner renders service on behalf of the Central Government and, therefore, facilities provided by him under the scheme can be said to be service for consideration for the employees as beneficial at within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. In the result, the appeal fails and is dismissed with no order as to costs. A copy of his order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Appeal dismissed.