REGIONAL PROVIDENT FUND, COMMISSIONER, FARIDABAD vs SHIV KUMAR JOSHI

WHETHER the Commissioners constituted under the Employees'' Provident Funds and Miscellaneous Provisions Act extend out services within the meaning of Section 2(l)(o) of the Act to the subscribers is the question rightly posed by the Haryana State Commission at Chandigarh in the impugned Order dated 1.3.1994.

THE facts lie in a narrow compass and are not in dispute. The complainant was a subscriber under the provisions of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees'' Provident Funds Scheme, 1952 (for sh Rt called the said Act and 1952 Scheme respectively), being an employee of an Industrial Establishment with the Regional Provident Fund Commissioner, Faridabad and had to his credit contributions made by him as well as the employer. The complainant made a claim on 15.7.1992 of his Provident Fund dues under Para 72 of the 1952 Scheme and as the final refund of the Provident Fund dues was not settled within 20 days as prescribed, he alleged deficiency in service. The claim made in the complaint was for release of the Provident Fund dues and damages to the tune of Rs. 65,000/- for the failure and negligence of the petitioner herein. The opposite paRty in its written version had admitted that the complainant was a subscriber but his claim for refund was not ceRtified by the complainant''s employer as mandatorily required under Para 72(5)(d) of the 1952 Scheme and instead the complainant got his application attested from Executive Magistrate. It is pleaded that the accumulations were remitted on 15.9.1992 &>td 21.9.1992 after the Area Manager of the complainant''s factory at the instance of the petitioner herein verified the application on 19.8.1992. The petitioner herein, however, raised legal objections to the jurisdiction of the District Forum to enteRtain the complaint on the ground that the complainant is not a consumer within the meaning of Section 2(1 )(d) of the Act as there is no hiring of service for consideration. The District Forum allowed the complaint and granted interest atthe rate of 18% per annum from5.8.1992 till 15/21.9.1992 being the dates of issuance of the cheques besides costs. In appeal the view of the District Forum was affirmed by the State Commission, Haryana by the impugned order dated 1.3.1994 after holding that Regional Provident Fund Commission extends out service within the meaning of Section 2(1 )(o) of the Act to the subscriber for consideration.

THE main submission of the learned Counsel for the petitioner herein is that the Regional Provident Fund Commissioner does not come within the purview of the Act as Section 2(1)(o) of the Act which defines ''service'' expressly exclude the rendering of any service free of charge. It is urged that neither the said Act, nor 1952 Scheme anywhere provides for any consideration to be charged for executing statutory functions as exercised by the Regional Provident Fund Commissioner. The thrust is that the decision of the Delhi State Commission in M.K. Sangal v. Accountant General-I, I (1992) CPJ 441 is the basis of the impugned order and that runs contrary to the view taken by this Commission in Central Bank of India v. Dil Bahadur Singh, III (1993) CPJ 319 holding that payment of Provident Fund by no stretch of imagination can be said to be rendering service under the Act. These arguments are attractive but cannot stand close scrutiny when considered in relation to the provisions of the said Act and the 1952 Scheme in contrast to the provisions of the General Provident Fund Act, 1925. It is pertinent to notice some statutory provisions of the said Act and the 1952 Scheme.

THE Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 was enacted by Parliament as a measure of welfare legislation to provide for the institution of provident fund, family pension fund and deposit linked insurance fund for employees in factories and other establishments. Three Schemes have been provided under Sections 5,6-A and 6-C of the said Act and the same were framed by the Central Government. We are concerned in this case with the Employees'' Provident Fund Scheme, 1952. Prior to this there was no statutory provisions for the institution of Provident Fund for the employees in the industrial and commercial establishment. The 1952 Scheme provides for the establishment of the Provident Fund under the said Act for the employees of the establishments specified therein. Section 6 deals with the contributions which may be provided under the Scheme and also prescribes rate of contribution to the fund and that the employees'' contribution should be equal to the contribution payable by the employer. Subject to the provisions of Sections 16 and 17 of the said Act, the 1952 Scheme broadly applies to all factories and establishments covered under the said Act and every employee of such factories or establishments is entitled and required to become a member of the Fund from the very beginning of the month following that in which he completes three months service or has actually worked for not less than 60 days within a period of three months or less in accordance with the provisions of Para 26 of the 1952 Scheme. The Scheme provides for the Board of Trustees, the appointment-powers of Commissioners and other staff of Board or Trustees, membership of the Fund, contributions etc. Chapter V, Paras 29 to32 deals with the contribution, the payment of contribution, employer''s share not to be deducted from the members and the recovery of member''s share or contribution. Under Para 30 the employer shall in the first instance, pay both the contribution payable by himself and also on behalf of the member employed by him directly or by or through a contractor, contribution payable by such member. It shall be the responsibility of the principal employer to pay both the contribution payable by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor and also administrative charges (emphasis supplied). For the purpose of para 30 by virtue of the explanation the expression ''administrative charges'' means such percentage of the pay (basic wages, dearness allowance, retaining allowance, if any and cash value of food concession admissible thereon) for the time being payable to the employees other than an excluded employee and in respect of which Provident Fund contributions are payable as the Central Government may, in relation to the Central Board and having regard to the resources of the Fund for meeting its normal administrative expenses fixed. Chapter VI provides for the declaration, contribution cards and returns. Chapter VII provides for the administration of the Fund, accounts and audit. Para 49 requires that a separate account shall be kept in the ''Central Administration Account'' for recording all administration expenses of the fund including such administrative charges as the fund may be authorised to levy. The aggregate amount received as the employer''s and employees'' contribution to the Fund shall be credited to an account to be called the ''Provident Fund Account" (Para 50). All interests, rent and other income realised and net profits or losses, if any, from the sale or investments not including therein the transaction of the Administration Account, shall be credited or debited, as the case may be, to an account called the "Interest Suspense Account". Brokerage and commission of the purchase and sale of securities and other investments, shall be included in the purchase or sale price, as the case maybe, and not separately charged to the "Interest Suspense Account". Para 52 of the 1952 Scheme is very relevant and provides for the investment of moneys belonging to the Employees'' Provident Fund. All moneys belonging to the Fund shall be deposited in the Reserve Bank or State Bank of India or in such other Scheduled Bank as may be approved by the Central Government from time to time or shall be invested, subject to such directions as the Central Government may from time to time give, in the securities mentioned or referred to in Clauses (a) to (d) of Section 20 of the Indian Trusts Act. All expenses incurred in respect of, and loss, if any, arising from any investment shall be charged to the Fund. Under para 54 all expenses relating to the administration of the Fund including those incurred on Regional Committee shall be met from the Fund. AH expenses of administration of Fund, including the fees and allowances, the trustees of the Central Board and salaries, leave and joining time allowances, traveling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to Provident Fund other benefit fund instituted for the officers and employees of the Central Board, the cost of audit of the accounts, legal expenses and cost of all stationery and forms incurred in respect of the Central Board, cost and all expenses incurred in connection with the construction of office building and staff quarters shall be met from the Administration Account of the Fund. Para 59 of the Scheme provides for the member''s account. An account shall be opened in the office of the Fund in the name of each member in which it shall be credited:� (a) his contribution, (b) the contributions made by the employer in respect of him, and (c) interest as provided in paragraph 60. Chapter VIII deals with the nomination of payment and withdrawals from the Fund. Under para 2 when the amounts standing to the credit of a member, or the balance thereof after any deduction under paragraph 69 to be payable, it shall be the duty of the Commissioner to make payment as provided in the Scheme. On perusal of the above statutory provisions of the said Act and the 1952 Scheme it shows that the Commissioners constituted under the said Act and the 1952 Scheme extend out service within the meaning of Section 2(l)(o) of the Act to the subscriber for consideration. The administration charges are levied and recoverable by the Commissioner for payment of the services rendered by the Commissioners and the ancillary staff. A duty is also cast for the investment of moneys belong to the Employees Provident Fund just as any banker or financial institutions under the control of Central Government does to earn interest. The Commissioner is also required to credit to the account of each member interest at such rate as may be determined by the Central Government in relation with the Central Board. The Delhi State Commission in Kamlesh Vohar v. The Central Provident Fund Commissioner and Ors., I (1993) CPJ 232 came to the conclusion that the Regional Provident Fund Commissioner comes clearly within the ambit of the consumer jurisdiction and further the delay in settling the claim was contrary not only to the spirit of the said Act and the 1952 Scheme but equally to the express instructions of the Commissioners themselves. We are unable to accept the contention of the Counsel for the petitioner herein that the Commissioners are exercising statutory power and discharging statutory functions under the said Act and the 1952 Scheme and therefore they could not come within the ambit of service as defined under the Act. In Lucknow Development Authority v. M.K. Gupta, the Supreme Court held that the Statutory Authority such as Lucknow Development Authority or Delhi Development Authority or Bangalore Development Authority constituted under States Act to carry on planned development of the city in the State are amenable to jurisdiction under the Consumer Protection Act, 1986 for any act or omission relating to housing activity such as delay in the stipulated time, or defective and faulty construction. The Commissioners under the said act give statutory service on payment of administration charges and they are required to invest the contributions to the Provident Fund like any banker or financing institution and to credit interest to the subscribers'' account. It is rendering of service for consideration as defined in the Consumer Protection Act.

THE position however, is different to the maintenance of the Provident Fund under the Provident Fund Act, 1925 or under the various State General Provident Fund Acts/Rules. The responsibility of maintaining the account relating to the amount of Provident Fund Account of a Government employee (Central or State) to whom the said provisions are applicable have been assigned to the Accountant General. A statutory duty has been cast upon the Accountant General in this respect. The Government pays to the credit of account holder interest at such rates as may be determined for each year by the Government. There are various other rules, which need not be mentioned dealing with the rights and liabilities of a subscriber in regard to the amount of his provident fund. Those provisions show that the element of service as contemplated by the provisions of the Consumer Protection Act, 1986, or of any consideration there for, so as to bring a subscriber within the definition of a ''consumer'' is absolutely lacking. It is on these considerations that in Central Bank of India v. Dil Bahadur Singh which was the case relating to the payment of Provident Fund of a bank employee of a nationalised bank was considered and decided by this Commission. The responsibility in compiling and maintaining the General Provident Fund Accounts by the Government or Public Undertakings is in discharge of statutory responsibility and the source of his authority is not the said Act and the 1952 Scheme. The contrary view taken by the Delhi State Commission was in the case of M.K. Sangal v. Accountant General which fails to notice that the maintenance of the Provident Fund Account by the Accountant General is in exercise of statutory powers and perhaps this view was taken with- out drawing a distinction to the functions of the Commissioners under the said Act and the 1952 Schemes. In the result the Revision Petition fails and is dismissed with no order as to costs but for the reasons recorded above.