SCA/21848/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21848 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner(s) Versus MAMHADMIYA JIVABHAI MAKRANI & 1 - Respondent(s) ========================================================= Appearance : MR HARDIK C RAWAL for Petitioner(s) : 1, MR MUKESH A PATEL for Respondent(s) : 1, MS ASMITA PATEL AGP for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 17/06/2008 CAV JUDGMENT SCA/21848/2007 2/6 JUDGMENT 1) Rule. Mr.Mukesh Patel and learned AGP Ms.Asmita Patel waive service of notice of Rule for respondents Nos.1 and 2 respectively. 2) This petition under Articles 226 and 227 of the Constitution of India is filed by the Gujarat State Road Transport Corporation against the order dated 26.3.2007 (Annexure-A) passed by the District Consumer Disputes Redressal Forum, Godhra below Exh.41 in Complaint No.323 of 2006, as without jurisdiction, illegal, arbitrary and contrary to the decisions of the Apex Court. 3) The main contention of Mr.Hardik Raval, learned counsel for the petitioner-Corporation, is that in view of the provisions of Section 2(o) of the Consumer Protection Act, 1986, the direction contained in the order of the District Consumer Disputes Redressal Forum, Godhra (for short, 'the Forum') to pay amount of provident fund to the respondent-employee with interest @9% in any manner can be held to be legal inasmuch as the Consumer Disputes Redressal District Forum, Godhra (for short, `the Forum') has no jurisdiction to determine the disputes between an employee and employee with regard to retiral dues. In view of the above submission, Mr.Raval, learned counsel for the petitioner relied on the decision of the Apex Court in the cases of (1) Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and Anr. Reported in (2002)2 SCC 542 and (2) Rajasthan State Road Transport Corporation & Ors. v. Zakir Hussain SCA/21848/2007 3/6 JUDGMENT reported in (2005)7 SCC 447. 4) Learned counsel for the petitioner has placed reliance on the decision of the Full Bench dated 13.2.2004 in Second Appeal No.61 of 1986 and submitted that even as per the above decision, the jurisdiction of the Civil Court under Section 9 is also debarred in view of special provisions pertaining to Section 2(k) and 2(a) of the Industrial Disputes Act, 1947 with regard to industrial dispute and only forum to adjudicate such industrial forum is Labour Court/Industrial Tribunal, as the case may be. Even on merits also according to learned counsel for the petitioner, there was no outstanding dues with regard to provident fund in view of payment of Rs.3,27,681/- to respondent towards provident fund and any dispute with regard to calculation of the provident fund can be raised before the appropriate authority under the Act and, therefore, the order passed by the Tribunal deserves to be quashed and set aside. 5) Mr.Mukesh Patel, learned counsel for the respondent, submits that the dispute about jurisdiction of the Consumer Disputes Redressal Forum or Consumer Commission to adjudicate the dispute with regard to outstanding dues of the provident fund of an employee and claim in this regard is no more res integra in view of the decision of the Apex Court in the case of Regional Provident Fund Commissioner vs. Shiv Kumar Joshi reported in (2000)1 SCC 98 and submits that after interpreting various provisions of law, it is held by the Apex Court that the Consumer Commission or Consumer Redressal Forum have SCA/21848/2007 4/6 JUDGMENT jurisdiction with regard to issuance of proper directions to the competent authority to release the provident fund dues to a member of the EPF Scheme. According to learned counsel for the respondent, after examining the evidence and material produced on record, the Forum has rightly directed the petitioner-Corporation to release outstanding provident fund dues of the respondent which does not call for any interference by this Court in exercise of power under Articles 226 or 227 of the Constitution of India. 6) Learned counsel for the respondent further submits that against the order passed by the Forum, the petitioner has already preferred an appeal before the Consumer Commission and having exhausted the remedy of appeal, there is no justification to invoke extraordinary jurisdiction under Article 226 of the Constitution of India before this Court and, therefore, availing two remedies simultaneously is clearly not permissible and, therefore, this is a fit case which debars the petitioner from approaching this Court and the petition deserves to be rejected in limine. 7) Having heard learned counsel for the parties and perusing the record of the case, more particularly the contention of Mr.Patel, learned counsel for the respondent, with regard to jurisdiction of the Forum to direct the competent authority to release the outstanding provident fund dues is no more res integra inasmuch as the Apex Court in the case of Shiv Kumar Joshi (supra) has clearly held that the powers can be exercised by the Consumer Dispute SCA/21848/2007 5/6 JUDGMENT Redressal Forum or Consumer Commission in case of outstanding provident fund dues of a member of EPF Scheme. However, the question can be examined in appropriate case whether the Consumer Forum or Consumer Commission can adjudicate the dispute of outstanding payment of provident fund by the employer, more particularly when the remedy under the Statute is available. The above question as such does not require consideration, at this stage, in view of the statement made by learned counsel for the petitioner-Corporation before this Court that in case the respondent-workman makes a representation before the petitioner-Corporation about outstanding dues of provident fund and non-crediting of contribution of employee as well as employer with interest in his provident fund account, the same will be considered by the petitioner-Corporation and the said amount will be paid as early as possible. Therefore, the directions issued by the Forum to pay 9% interest on the outstanding provident fund dues in spite of payment of Rs.3,27,681/- towards provident fund dues by the Corporation to the respondent in absence of any material in this regard to direct further payment of 9% interest within 30 days by the forum does not appear to be just and legal and to that extent the order of the Forum is vulnerable and deserves to be set right by this Court in exercise of power under Article 226 of the Constitution of India. 8) Considering the above facts and circumstances of the SCA/21848/2007 6/6 JUDGMENT case and in view of the statement made by learned counsel for the petitioner-Corporation to consider the case of the respondent for payment of provident fund dues, if remained unpaid, upon making representation, other issues raised by the learned counsel for the parties need not to be discussed, at this stage. 9) In view of the above, the respondent is directed to make representation for outstanding undisputed provident fund dues to the petitioner-Corporation within a period of 15 days from today and the petitioner-Corporation shall pass appropriate order and if the amount of provident fund as claimed by the respondent-workman remained unpaid, such dues be forthwith paid to the respondent with 8% interest and the order impugned of the Forum stands modified to the above extent. 10)With the aforesaid observations and directions, this Special Civil Application stands disposed of. Rule is discharged. However, there shall be no order as to costs. (ANANT S. DAVE, J.) *pvv