TRUSTEE, BIRLA JUTE And INDUSTRIES LTD. vs BHABATOSH MUKHERJEE

-THIS is an appeal against the order dated 21.6.2000 passed by the District Forum, Howrah. The respondent No. 1, Sri Bhabatosh Mukherjee in the appeal matter was the complainant before the Forum while the appellants were the O.P. Nos. 1 and 2. The facts of the matter are briefly stated hereunder.

THE complainant joined the Bally Jute Mill Unit of the O.P. 2 on 9.8.1993 as Personal Manager and became a member of the Company''s Superannuation Fund from the date of his joining. THEn on 7.4.1997 the O.P. 2 sold their Bally Jute Unit to M/s. Ambika Multifibres Ltd. THE latter declared suspension of work on 6.6.1997. As the suspension of work continued, the complainant left the service on 5.7.1997. But he is yet to receive his dues of Rs. 53,738.20 under the aforesaid Superannuation Fund lying with O.P. 3 viz., L.I.C., as per a master policy taken by O.P. 1 with O.P. 3. As the complainant failed to get his dues despite followup, he approached the Forum with the prayer for a direction upon the O.Ps. 1 and 2 to pay his dues of Rs. 53,738.20 with interest. O.P. 1 and O.P. 2 contested the case by filing a written statement (W/S). The main points taken by them were as under: (i) The case is not maintainable before the consumer Forum as the dispute is an employer-employee dispute. (ii) Ambika Multi fibres Ltd. under whom the complainant was serving at the time of leaving was not made a party. (iii) As per the rules and regulations of the Superannuation Fund any employee leaving service before completion of 20 years is not entitled to any benefit under the said fund. (iv) The benefit accruing to the employees of O.Ps. 1 and 2 under the aforesaid Superannuation Fund are purely in the nature of pension payable after retirement and not earlier.

O.P. 3 (L.I.C.) also filed a written version stating that they received contribution in respect of the complainant during the financial years 1994-95, 95-96 and 96-97. But O.P. 3 did not receive any superannuation claim form in respect of the complainant. L.I.C. is in a position to settle the matter on receipt of the claim form from the Trustees of the Superannuation Fund, if the member is otherwise eligible as per provisions contained in the said Fund rules. This being the position, L.I.C. contended that there was no deficiency in service on their part.

UPON hearing both the parties the District Forum passed an order directing O.P. 2 to submit the relevant claim form, duly filled in and signed, in respect of the complainant''s claim from the Superannuation Fund to O.P. 3 and directing O.P. 3 to make the payment of the accrued amount to the complainant without any delay. Aggrieved by the above order, O.Ps. 1 and 2 have filed the present appeal before the State Commission praying for setting aside the impugned judgment. O.P. 3 has not filed any separate appeal, but during hearing, supported the memo of appeal.

IN the memo of appeal, the appellants have taken more or less the same points as taken by them in the Forum below. IN particular the appellants sought to emphasize the following grounds: (i) The Forum does not have any jurisdiction over the matter inasmuch as the dispute is one between employer and employee and the complainant is not a consumer vis-a-vis the appellants. (ii) The entire contribution towards the Superannuation Fund is borne by the employer and no amount is deducted from the employee''s salary for this purpose. (iii) The complainant left the service without completing the minimum period of 20 years of service for becoming eligible for any benefit under the Superannuation Fund as stipulated in the rules which were duly accepted by the complainant at the time of becoming a member of the Superannuation Fund. (iv) Any alleged irregularity of the rules framed under the Superannuation Fund as pointed out by the Forum cannot be examined by the Forum nor can any benefit be given to the complainant on the ground that the rules are allegedly irregular. (v) The judgment of the Hon''ble Apex Court passed in January, 2000 has no applicability in the present matter.

The respondent/complainant filed objection to the memo of appeal stating inter alia that his claim was acceptable to the L.I.C. as per their written version filed in the Forum. During the hearing the learned Advocate for the respondent contended that the appeal was barred by limitation inasmuch as the certified copy of the impugned order was made ready on 26.6.2000 while the appeal was filed on 21.8.2000 after a lapse of nearly two months. Incidentally this point was not made by the respondent in his objection, but agitated at the time of hearing. From the impugned order we find that the judgment was passed on 21.6.2000 and the certified copy was ready for delivery on 26.6.2000. But the certified copy was supplied to the appellants on 27.7.2000 and the appeal was filed on 21.8.2000. The respondent argued that the limitation period should be counted from 26.6.200 when the certified copy was ready for delivery and the delay caused by the failure of the appellants to take the copy on 26.6.2000 should not be condoned. To this, the learned Advocate for the appellant replied that the certified copy was supplied to him on 27.7.2000 and the appeal was filed within 30 days thereof on 21.8.2000 and hence there was no delay. The learned Advocate for the appellant argued that the Forum did not send the copy of the judgment to the appellants on its own, as required by the rules to the Consumer Protection Act and only upon their application for certified copy, the same was supplied to them on 27.7.2000. In this connection he cited an order of the Hon''ble Supreme Court, III (1995) CPJ 28 (SC), wherein it has been clearly laid down that the limitation would be counted from the date on which the certified copy of the judgment is supplied to the party. We find substance in the contention of the learned Counsel for the appellant and going by the principle laid down by the Hon''ble Supreme Court in this regard we hold that the appeal was filed within the prescribed period of 30 days from the date on which the certified copy of the judgment was supplied to the appellants and hence, the appeal is not barred by limitation. We perused the case law cited by the learned Counsel for the respondent, viz., an order passed in 1992 by the Haryana State Commission, II (1992) CPJ 526, according to which "the terminus for computing the period of limitation runs from the date of the order and not from any supposedly slippery date of the alleged receipt of a copy thereof." But in view of the contrary view taken in the Apex Court order of 1995, we are inclined to follow the principle enunciated therein about reckoning the period of limitation, as in our opinion the Supreme Court order passed on a later date must override the order of the Haryana State Commission.

AFTER disposing of the question of limitation, at the outset we proceed to examine the question of maintainability of the complaint petition as raised by the appellant. On this score the appellant has argued mainly on the following grounds: (i) The complainant is not a consumer vis-a-vis the appellants. (ii) The dispute is an employer-employee dispute and is not amenable to adjudication before a Consumer Court. (iii) The entire contribution to the Superannuation Fund is borne by the employer and no amount is deducted from the employee''s salary for this purpose.

The learned Advocate for the appellant has also cited the following case laws in support of his contention: (i) III (1994) CPJ 119 (NC)-Order of the National Commission. (ii) III (1994) CPJ 63-Order of the Tamil Nadu State Commission.

IN the former the complainant approached the National Commission for alleged wrongful termination of his service and alleged non-payment inter alia of the complainant''s provident fund and gratuity, etc. The National Commission held that the petition was not maintainable because the petitioner was not a ''Consumer''. He was only an employee and there was no arrangement of hiring by him of the services of his employer for consideration so as to entitle him to claim relief against his employer on the ground of any deficiency in service. The National Commission further observed that the dispute regarding service matters arising as between the employee and employer has to be agitated before other appropriate Forums and not before the Consumer Forum. In the latter, the Tamil Nadu State Commission dismissed the petition of the complainant who sought voluntary retirement, but was not paid his terminal benefits and other dues. The State Commission held that by no stretch of imagination of the complainant could claim to be a consumer who had hired or availed of the services of the O.P. (the employer) for consideration.

The Forum, however, decided in favour of the maintainability of the matter apparently on the basis of a Supreme Court order passed in January, 2000 which, according to the Forum, held that gratuity and pension will also come within the ambit of the C.P. Act. The Forum in its impugned order did not furnish the full reference of the Supreme Court order relied upon by the Forum. While we could not find any such order of the Supreme Court passed in January, 2000, there is an order of the Supreme Court passed on 14.12.1999, III (1999) CPJ 36 (SC)=X (1999) SLT 395=2000(1) CPR 61 (SC), which was also cited by the learned Advocate for the respondent during the hearing. This order of the Supreme Court dealt with provident fund only and held that a member of Employees'' Provident Fund Scheme is a ''Consumer'' and that delay in settlement of provident fund claim would amount to deficiency in service, and that the provisions of the Consumer Protection Act can be invoked against the P.F. Commissioner by a member of the Employees'' Provident Fund Scheme. The Supreme Court observed that the P.F. Scheme is a ''service'' and the administrative charges required to be paid under the scheme show that the scheme is for consideration.

WE have carefully considered the case laws cited by both the parties as summarized above. The orders of the National Commission and Tamil Nadu State Commission cited by the appellant relate to the year 1994 and both the orders held that the matter of claim of retirement dues by the employee from the employer is not maintainable because the petitioner (employee) is not a ''Consumer'' inasmuch as there was no arrangement of hiring by him of the services of his employer for consideration. The order of the Apex Court was delivered much later in 1999, and if this order is found to be applicable to the present matter, the same will obviously have to be obeyed even if it is contrary to the orders (cited by the appellant) of National Commission and Tamil Nadu State Commission delivered in 1994. Now let us examine whether the above order of the Supreme Court is applicable to the present matter. Admittedly the facts of the matter before the Supreme Court and the facts of present matter before us are not exactly similar. While the former related to P.F. dues, the latter relates to dues from the ''Superannuation Fund'' which is really a Pension fund as may be seen from the Rules and Regulations of the Superannuation Fund filed by the appellant which provide that monthly pension will be paid to the member of the fund upon his retirement. The corpus of the Superannuation Fund is built by regular annual contribution by the employer only @ 15% of the member''s salary, and there is no provision for any contribution by the member i.e., the employee. Whereas under the P.F. Scheme, as is well known, both the employee and the employer make equal contributions every month at the stipulated rate which is some percentage of the basic pay and D.A. From the above it may appear that the facts of the present matter being different from those in the aforesaid Supreme Court order, the Supreme Court order is not applicable in the present matter.

HOWEVER, if we examine the aforesaid Supreme Court order more closely, we notice that the Hon''ble Supreme Court held the P.F. Scheme to be for consideration as the payment of contribution includes the payment of administrative charges. The Supreme Court further observed that the liability of the employer to pay his part of the contribution was in consideration of the employer working with him. The administrative charges are also paid for consideration of the employee being the member of the P.F. Scheme. In the opinion of the Hon''ble Supreme Court it is immaterial as to whether such administrative charges are deducted actually from the wages of the employee or paid by his employer in respect of the employee member of the scheme working for such employer. The Hon''ble Supreme Court continued to observe that the administrative charges are in lieu of membership of the employee and for the services rendered under the scheme. It cannot be held that even though the employee is the member of the scheme, yet the employer would only be deemed to be a ''Consumer'' for having made the payment of the administrative charges. In the opinion of the Supreme Court, the argument that as no part of the administrative charges, are deducted from the wages of the employee, he (employee) cannot be deemed to be hiring the services of the scheme and hence, cannot be held to be a ''Consumer'' under the meaning of Section 2(1) of the C.P. Act, is without substance, and if accepted, is likely to defeat the purpose and object of the Act. From the foregoing observations of the Supreme Court in the case law apparently relied upon by the Forum below, the principle that clearly emerges is that the administrative charges paid, even though by the employer, is to be treated as the consideration for the service under the scheme and on this basis the employee is eligible to be considered as a ''Consumer, within the meaning of Section 2(1)(d) of the Consumer Protection Act.

IN the present matter, the case is of course not one relating to settlement of P.F. dues. But if we closely examine the rules and regulation (hereinafter described as Rules) of the Superannuation Fund, we find that there are some provisions by which similarity can be established between the present matter and the matter in which the aforesaid order of the Supreme Court was passed. As in the case of P.F., in the said Rules also there is a provision [Rule 7(c)] according to which the expenses of administration of the Fund shall be payable by the employer and shall be paid in addition to the contribution paid by the employer. This is similar to the administrative charges being paid by the employer under the P.F. Scheme, though in the present matter the administrative expenses being paid by the employer are not a stipulated percentage of the salary, as is the case with the P.F. Scheme. For the Superannuation Fund also in the present matter the annual contribution by the employer can be treated as in consideration of the employee working with him, on the basis of analogy with the observations of the Supreme Court in the P.F. matter. Also in Rule 15 of the Rules and Regulations of the Superannuation Fund it is enjoined that the Trustees shall administer the fund for the benefit of the members and their beneficiaries in accordance with the provisions of these rules. This stipulation of Rule 15 lends further support to the proposition that the Trustees are actually providing service to the members (employees), though the contribution and administrative charges are being paid by the employer. And in both the matters administrative charges are paid by the employer for consideration of the employee being a member of the Superannuation Fund in the present matter and of the P.F. Scheme in the Supreme Court matter. IN the Supreme Court matter the R.P.F. Commissioner (the appellant) was incharge of administering the P.F. Scheme while in the present matter, the Trustees of the Superannuation Fund (the appellants) are in charge of administering the Superannuation Fund.

HENCE the reasons, on the basis of which the Hon''ble Supreme Court held that the P.F. dispute was maintainable before the Consumer Court, very much hold good in the present matter also and, therefore, on the basis of the aforesaid Supreme Court Order we hold that the complainant/respondent is a ''Consumer'' and the matter is maintainable before the Consumer Courts. We did consider the case laws cited by the appellant on this point (Orders of the National Commission and Tamil Nadu State Commission). But we find that in both the orders it was decided at the threshold that matters being employer-employee disputes are not maintainable before Consumer Courts. On the other hand the Apex Court examined the matter in-depth and passed a well-reasoned order deciding in favour of maintainability. We go by the Supreme Court order for reasons discussed above and hold that the matter is maintainable before the Consumer Court. The Forum''s decision on this point is upheld, though on the basis of somewhat different reasoning. The appellant''s contention on this point against maintainability is rejected. Next we proceed to the adjudication of the appeal matter on merits. The most important ground taken by the appellants is that the complainant left the service without completing the stipulated minimum period of 20 years for becoming eligible for any benefit under the Superannuation Fund as per Rule 13 of the Rules and Regulations of the Superannuation Fund which were duly accepted by the complainant at the time of becoming a member of the Superannuation Fund. Admittedly the complainant joined the Bally Jute Mill Unit of O.P. 2 on 9.8.1993 and left the service on 5.7.1997. Thus the period of service of the complainant was about four years only and in such a situation the Rule 13 as stated above clearly bars the complainant from being entitled to any benefit under the Superannuation Fund scheme. We may quote here the relevant portion of the Rule 13 "If any member leaves the service of the employer before completing 20 years of service, he will not be entitled to any benefit hereunder and the Trustees shall realise the benefits in respect of the member and credit to the ''SURPLUS ACCOUNT''." Incidentally the period of minimum service required has subsequently been revised downward from 20 years to 05 years in the revised rules and regulations for Superannuation Fund which came into effect from 1.8.1997. However the complainant did not complete even 5 years of service before leaving and moreover he left service on 5.7.1997 when the revised rules did not come into force.

The Forum in its impugned order appears to have questioned the vires of the Rule 13. It has been observed by the Forum that "a very ingenuine advice has been made in this Rule 13 to defraud the Income Tax Authority". The Forum has also tried to argue that the complainant did not leave the service of his own Will, but had to leave under compelling circumstances, and in such circumstances the disabling provision of Rule 13 should not apply.

WE are afraid; we are unable to agree with the above views of the Forum. Firstly, the Rule 13 begins as "in the event of member leaving service of the employer of his own free Will or otherwise..." Hence Rule 13 applies regardless of whether the employee leaves the service of his own free will or otherwise, and is not restricted to the employee''s leaving the service of his own free will. Secondly, the complainant at the time of becoming a member of the Superannuation Fund accepted the Rules and Regulations of the Fund and cannot subsequently take a stand contrary to the rules. Thirdly even if we accept that the said Rule 13 is inequitable or irregular (as the Forum appears to have concluded), in our opinion, it is not within the competence of the Forum to disregard the provisions of Rule 13 on the ground of their irregularity and/or inequity and thereby allow benefit to the complainant. In this regard we tend to agree with the contention of the appellants that on any question arising on any point of interpretation of these rules or any point relating to cessation of membership, the decision of the Trustees shall be final, and the dispute, if any, arising out of the decision of the Trustees is to be resolved by the Commissioner of Income Tax vide Rule 26 of the Rules and Regulation of the Superannuation Fund. The Forum appears to have passed the order for payment of the amount that has accrued in the account of the complainant more on compassionate grounds without justifying the same on the basis of the rules of the fund. In such a situation we cannot uphold the decision of the Forum. The appellants have acted in accordance with the rules of the Superannuation Fund and hence cannot be faulted on that score. It may be that some rule is unfair to the employees, but examination thereof is not within the jurisdiction of the Consumer Courts. The complainant (i.e., the employee), if aggrieved by any such unfair rule, may approach the appropriate Forum for ventilating his grievances. The respondent (complainant) in his written version has taken the plea that his claim was admitted by the L.I.C. and hence there should not be any hindrance in paying his dues from the Superannuation Fund. In this connection the written version filed by L.I.C. may be recalled. The appellants took a Master Policy with L.I.C. who received annual contribution from the O.P. Nos. 1 and 2 in respect of the members of the Superannuation Fund. L.I.C. pays Superannuation claims of different employees from the fund accumulated with it. L.I.C. stated that it could settle the claim of the complainant on receipt of the claim from the Trustees of the Superannuation Fund (O.P. 1) duly filled in and signed by the Trustees, if the member is otherwise eligible as per provisions contained in the Rules for the Superannuation Fund. L.I.C. obviously cannot act independently in the matter and can settle the claim of the complainant only if the relevant claim form is forwarded by the Trustees and only if the complainant is otherwise eligible as per the provisions of the Rules (emphasis added). Thus the alleged readiness of L.I.C. to settle the claim of the complainant does not mean much because the essential precondition is that the complainant must satisfy the eligibility condition and we have already seen that he is not meeting the eligibility criterion and that being so, L.I.C. is certainly not in a position to settle the claim of the complainant. The learned Counsel for L.I.C. also clarified this point during the hearing. Therefore, the contention of the respondent (complainant) that he should be paid his dues in view of L.I.C.''s readiness to do so is not tenable. As discussed above L.I.C. cannot give any relief to the complanant on its own and it will have to act as per the advice of the Trustees of the Superannuation Fund, taking into account the eligibility of the member of the Superannuation Fund.

IN the adjudication of the appeal matter one somewhat grey area has come to our notice. The O.P. 2 viz., Birla Jute and INdustries Ltd. sold the Bally Jute Unit (in which the complainant was serving) to one M/s. Ambica Multifibres Ltd. on 7.4.1997 and the complainant perhaps automatically became an employee of the latter. However, it is not clear whether he continued to be a member of the Superannuation Fund of the Birla Jute and INdustries Ltd. or whether he became a member of any similar fund of Ambica Multifibres Ltd. As the complainant did not implead M/s. Ambica Multifibres Ltd. as a party to the proceeding, no clarification on this point could be obtained. We also notice that the rules of the Superannuation Fund of Birla Jute and INdustries Ltd. do not clearly specify as to the benefit a member of the fund is entitled to in the event of a wing of the company in which the member was working is sold out to another company and accordingly ceases to exist. Rule 6 provides for transfer of equitable interest in the fund in the event of the member joining the services of any allied firm, concern, agency or body corporate of the approved fund of which the employee may become a member even though the said member has not completed 20 years of service and consequently is not entitled to the benefits under Rule 13. However, from the records it is not clear whether Ambica Multifibres Ltd. is an allied concern of Birla Jute and INdustries Ltd. and whether any transfer of equitable interest took place. The respondent/complainant also has not thrown any light on the above aspect during the hearing nor did he make any attempt to press his demand on this point. IN such a situation, we are not in a position to examine this aspect in-depth to ascertain whether the complainant is entitled to any relief on this score. Going by the foregoing discussion we hold that the impugned order of the Forum below cannot be sustained and is accordingly set aside. The appeal is allowed and the complaint petition before the Forum is dismissed. However the complainant will have the liberty to move the appropriate Forum if so advised and if not otherwise barred. The delay in moving such Forum that will occur due to the time spent in the present litigation will be considered for condonation by that Forum in accordance with law on such prayer for condonation being made. The appeal is disposed of accordingly. However, taking into account the circumstances, there will be no order as to cost. Appeal allowed.