TRUSTEES J.K. SYNTHETICS vs S.C. SHARMA

THESE appeals have been filed by the appellants under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''1986 Act'') against the order dated 29.3.2003 passed by the learned District Forum, Kota whereby the complaint of the complainant-respondent S.C. Sharma was allowed as against the appellant and was dismissed as against other O.Ps.

THE brief facts giving rise to this appeal are that the respondent-complainant was a Dy. Manager in M/s. J.K. Synthetics Ltd. and had retired from service on 20.7.2001 on attaining the age of 60 years. He was a member of the J.K Synthetics Employees Fund (hereinafter referred to as "Employees Fund") framed under the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952. It was an optional scheme and all employees who were drawing a monthly salary over Rs. 3,500 were entitled to subscribe to the Fund every month a sum equal of 10% of the amount of his salary or wages actually earned by him and the Employer was authorised to deduct the amount of such subscription out of his salary. THE Employer was also required to subscribe to the Fund an equal amount of contribution and to credit the above amounts to the Trustees Account. All expenses relating to the administration of the Fund are to be made from the Fund. On retirement, the employee was entitled to payment of the accumulated balance due to a member. The respondent retired from service on 26.7.2001 and requested the appellants to make payment of his provident fund but the same was not paid to him. He, therefore, filed a complaint in the Forum below claiming the amount of provident fund together with interest and an amount of Rs. 20,000 as damages on account of mental agony.

The appellant and the respondent No. 3 filed a joint reply in the Forum below which stated that the complainant is not a consumer and the appellant is an independent trust and the payment of provident fund is made by it directly. Although, this reply stated in its first paragraph that it is a joint reply from the appellant also but the whole reply related only to respondent No. 3 and there was no averment on behalf of the appellant.

AFTER hearing both the parties, the learned District Forum held that the complainant is a ''beneficiary'' of service given by the appellant and as such he is a ''consumer''. The learned District Forum, therefore, directed the appellant to make payment of Rs. 1,62,674 standing at the credit of the complainant as provident fund, an amount of Rs. 5,000 as damages for mental agony and Rs. 500 as cost of proceedings. Aggrieved with the order, the appellant has come up before us in appeal. We have heard the arguments and submissions made by the learned Counsel and considered the materials placed on record of the Forum below. We are in general agreement with the findings of the learned District Forum.

THE learned Counsel for the appellant has contended that the complainant is not a consumer and the learned District Forum had no territorial jurisdiction to entertain the complaint. As such, the impugned order deserves to be set aside. The learned Counsel for the respondent No. 1 has contended that he was beneficiary of service rendered by the appellant and was a consumer, and that the learned District Forum had territorial jurisdiction because the factory of the respondent No. 3 was at Kota. At the outset it is to be stated that in this appeal much discussion is not required on the point of the respondent being a ''beneficiary'' under the scheme of Employees'' Provident Fund in view of the decision of the Apex Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi, III (1999) CPJ 36 (SC)=X (1999) SLT 395=AIR 2000 SC 331. In the said case, the Hon''ble Supreme Court had examined the Employees Provident Fund Scheme at length to see whether the provisions of the Consumer Protection Act, 1986 can be invoked by a member of the Employees Fund. It was held by Their Lordships of the Supreme Court that under the scheme, its member was a ''consumer'' under Section 2(1)(d) and the scheme was a ''service'' under Section 2(1)(o) of the Consumer Protection Act and that the definition of ''consumer'' includes not only the person who hires the services but also the beneficiary of such services.

IN this case, it is not in dispute that the Employees'' Fund was an optional scheme which was introduced as a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer and surrendered part of their savings on an assurance that in their old age they would not be left in lurch and they can fall back upon their savings. It was a contributory provident fund in which the workers were required to contribute to it at the the prescribed rate and the amount standing to the credit of each individual member of the fund was required to be paid to him in full on his retirement. The employer, in his turn, was obliged to contribute to the scheme in consideration of service rendered by the employee, although he was not a member of the said scheme. Therefore, if a right is conferred on the employee to get his due provident fund on retirement, it cannot be said that it is a free service. IN the present case, the appellant had agreed in the written reply that the payment of the provident dues was to be paid by the appellant which is an independent organization. As such, following the dicum of Hon''ble Supreme Court as given above, it is clear that the complainant was beneficiary of the services rendered by the trustees and as such the complaint by him was maintainable under the provisions of Consumer Protection Act.

AS regards jurisdiction of the Forum below in respect of the complaint, it is not in dispute that the employer of the complainant was running its factory at Kota and the deductions from the salary of the complainant and the contributions of the employer were made from Kota. The services of the appellant were hired at Kota and as such the complaint filed by the complainant at Kota was within the jurisdiction of the Forum below. In view of the above, in our considered opinion, the discretion exercised by the learned District Forum cannot be termed as arbitrary, capricious or perverse and as such does not call for any interference by us. The appeal is, therefore, dismissed and the impugned order is hereby upheld. No costs.

In passing, we would like to observe that in a Welfare State like ours, it is unfair of the P.F. authorities to make the employees suffer and deprive them from their dues on technical grounds of non-maintainability of their complaint before Consumer Forum, rather than providing relief, if admissible under the rules. Appeal dismissed.