Supreme Court of India

Regional Provident Fund Commissioner vs Bhavani on 22 April, 2008

Equivalent citations: AIR 2008 SUPREME COURT 2957, 2008 AIR SCW 4974, 2008 LAB. I. C. 3565, 2008 (5) ALL LJ 693, 2008 (5) AIR BOM R 509, 2008 (3) AIR JHAR R 844, (2008) 3 KER LT 789, (2008) 3 LAB LN 45, (2008) 4 MPLJ 121, (2008) 3 SCT 395, (2008) 5 SERVLR 430, (2008) 2 WLC(SC)CVL 267, (2008) 70 ALLINDCAS 157 (SC), (2008) 118 FACLR 415, (2008) 2 CURLR 256, (2008) 5 MAH LJ 496, 2008 (7) SCC 111, (2008) 3 UC 1724, 2009 BOMCRSUP 496, (2009) 1 MAD LJ 931, (2009) 2 SERVLJ 346, (2008) 2 CPJ 9

Author:
Altamas Kabir

Bench:
Altamas Kabir
,
V.S.Sirpurkar

CASE NO.:
Appeal (civil) 6447 of 2001

PETITIONER:
Regional Provident Fund Commissioner

RESPONDENT:
Bhavani

DATE OF JUDGMENT: 22/04/2008

BENCH:
Altamas Kabir & V.S.Sirpurkar

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 6447 OF 2001
With
Civil Appeal Nos.-------------------of 2008
(Arising out of S.L.P.(C) No.15469 of 2005,
S.L.P.(C) No.16573 of 2006,S.L.P.(C) No.20260
of 2004 and S.L.P.(C) No.8661 of 2004 and
Civil Appeal No.2629 of 2006)

Altamas Kabir,J.

1. Civil Appeal No.6447 of 2001 has been
taken up for hearing along with five other
matters, namely, Special Leave Petition (C)
No.15469 of 2005, Special Leave Petition (C)
No.16573 of 2006, Special Leave Petition (C)
No. 20260 of 2004, Special Leave Petition (C)
No.8661 of 2004 and Civil Appeal No.2629 of
2006. All the said matters are directed
against orders passed by the National Consumer
Disputes Redressal Commission on Revision
Petitions filed from orders passed by the State
Commission, Kerala, in appeal from orders
passed by the District Forum. All of them
involve a common question of law and fact and
have thus been taken up together for hearing
and final disposal.

2. Of the five matters, Special Leave
Petition (C) Nos. 20260 of 2004 and Special
Leave Petition (C) No. 8661 of 2004 have
been filed against order dated 30.7.2002 passed
by the National Consumer Disputes Redressal
Commission (hereinafter referred to as 'the
National Commission') dismissing the Revision
Petitions filed by the Regional Provident Fund
Commissioner for condonation of delay in filing
the Review Petition. Both the Revision
Petitions were dismissed on the ground that the
delay had not been sufficiently explained.
Though in these two Special Leave Petitions it
is the order rejecting the Revision Petitions
on ground of delay that is involved,
ultimately, it is the order of the State
Commission allowing the claim of the
respondents concerned which is the subject
matter of all these five matters. Furthermore,
the effect of the orders passed by the National
Commission in all these five matters is the
same in respect of the different petitioners
before the District Forum and it is their claim
which has been upheld right through up to the
National Commission.

3. Leave is accordingly granted in the
Special Leave Petitions and all the appeals are
taken up for hearing together.

4. For the sake of convenience the facts
relating to Civil Appeal No.6447/2001 are taken
into for consideration in order to decide the
common issues in these matters.

5. The respondent Bhavani was a worker in
Cashew Factory No.III (Naduvathoor) owned and
managed by the Kerala State Cashew Development
Corporation Limited, Kollam and according to
her she retired from service on 31.12.1995 on
attaining 60 years of age. Bhavani was a
member of the Employees' Provident Fund and
Family Pension Scheme, 1971, and was making
contribution to the Scheme. In her service
records maintained by the company her date of
birth was shown as 31.12.1935 and though she
was eligible for pension, the same was not
ordered by the Regional Provident Fund
Commissioner, the appellant herein in all these
appeals. Aggrieved by the failure and/or the
refusal of the Regional Provident Fund
Authorities to release pension to her, Bhavani
filed an application before the Consumer
Disputes Redressal Forum (hereinafter referred
to as 'the District Forum') Kollom, praying for
a direction upon the appellant herein to
release her pensionary benefits from the date
of her retirement from service i.e. 31.12.1995.
Bhavani's claim was contested by the appellant
herein before the District Forum by filing a
counter affidavit wherein it was contended that
the
Consumer Protection Act, 1986
, would have
no application to a claim made under the
Employees' Provident Funds and Misc. Provisions
Act, 1952 (hereinafter referred to as 'the 1952
Act'), inasmuch as, Bhavani, the respondent
herein, was not a "consumer" within the meaning
of
Section 2(d)
of the Act.

6. It was also contended on behalf of the
appellant herein that Bhavani was a member of
the Employees' Provident Fund and Family
Pension Scheme 1971 and according to the
records of the appellant she had attained the
age of 60 years in 1992 before the
Employees'
Pension Scheme Act, 1995
, came into operation.
Before the District Forum it was the case of
the appellant herein that the said Employees'
Pension Scheme, 1995, contained a cut-off date,
namely, 1st April, 1993 and those members of
the Scheme who had attained the age of 60 years
prior to the cut-off date were not entitled to
the benefits thereof. It was the further case
of the appellant before the District Forum that
according to the records maintained by the
office of the appellant, the date of birth of
Bhavani had been shown as 24.9.1932. It was
submitted that Form 2 which was required to be
filled up and filed by the concerned employee
while applying for membership of the Family
Pension Fund Scheme, 1971, showed her date of
birth as 24.9.1932. It was contended that
according to the information provided by
Bhavani herself she had attained the age of 60
years on 24.9.1992 and was not, therefore,
entitled to the benefits of the 1995 Employees'
Pension Scheme.

7. The District Forum rejected the case made
out on behalf of the appellant herein on a
scrutiny of the various documents submitted on
behalf of Bhavani to establish that her date of
birth in the records of the company was
31.12.1935. The District Forum came to a
finding that since Bhavani was eligible for the
benefits of the 1995 Scheme, denial of the same
amounted to deficiency of service which would
attract the provisions of the
Consumer
Protection Act, 1986
. The District Forum on
considering the provisions of Section 2(1)(d)

(ii) of the
Consumer Protection Act, 1986
,
observed that the definition of "consumer"
therein was not exhaustive and
Section 2(1)(o)

exempts only such services as are rendered free
of charge or under a contract of personal
service.

8. The District Forum also rejected the said
contention of the appellant herein upon holding
that the service rendered by the appellant
herein did not fall within the exempted
categories. The District Forum categorically
found that the services rendered by the
appellant herein to Bhavani came within the
ambit of
Section 2(1)(d)(ii)
of the Consumer
Protection Act.

9. On the question of the recording of the
respondent's date of birth in the records of
the appellant herein, the District Forum came
to a definite finding that the respondent
retired from service only on 31.12.1995 and
was, therefore, entitled to the benefits of the
1995 Employees' Pension Scheme which became
operative from 1st April, 1993.

10. As indicated hereinbefore, the said order
of the District Forum was challenged by the
appellant herein unsuccessfully both before the
State Commission as also the National
Commission.

11. The question involved in the other
matters taken up along with this appeal is
identical and have been allowed by the District
Forum and thereafter by the State and National
Commissions.

12. Dr. R.G. Padia, learned senior advocate
appearing in support of the appeal, repeated
the same submissions that had been advanced
before the District Forum and the State
commission. He contended that, inasmuch as, the
respondent was not a 'consumer' within the
meaning of
Section 2(1)(o)
of the Consumer
Protection Act, 1986, the said Act would have
no application particularly when from the
definition itself it would be evident that no
service was being rendered to the respondent
free of charge. Dr. Padia also urged that when
a master and servant relationship existed, the

Consumer Protection Act
would not apply to
either of them.

13. Dr. Padia also urged that the 1995 Scheme
had no relation to the question of payment of
the respondent's provident fund dues.

14. Dr. Padia then went on to submit that the
order of the National Commission under
challenge was very cryptic and did not indicate
reasons for negating the claim of the
respondents in the appeals and deserved to be
remanded to enable the National Commission to
pass a properly reasoned order. It was then
urged that, in any event, this Court had
deprecated the practice of employees
approaching the management at the fag end of
their careers asking that their dates of birth
be altered to their advantage. Dr. Padia
submitted that this was not permissible and
this Court had said so in different judgments.
It was submitted that such a claim after the
attainment of superannuation was all the more
inadmissible and the order passed by the
District Forum, which was upheld up to the
National Commission to direct the appellant
herein to correct its records relating to the
date of birth of the respondent, was erroneous
and could not be sustained.

15. In this regard, various decisions of this
Court were referred to by Dr. Padia in support
of his contention that contract of personal
service or a service rendered free of charge
would not attract the provisions of the

Consumer Protection Act, 1986
. Dr. Padia urged
that the services rendered by the appellant to
the respondent amounted to personal service
which was of a free nature and would not,
therefore, attract the provisions of the

Consumer Protection Act
on both counts.
According to Dr. Padia, the respondent could at
best have asked for pensionary benefits under
the 1971 Employees' Family Pension Scheme which
had been replaced by the Employees' Pension
Scheme, 1995.

16. Dr. Padia lastly urged that the District
Forum had no jurisdiction under the
Consumer
Protection Act
to direct alteration of the date
of birth of a member which was recorded in the
records of the appellant, and, that too,
without holding any inquiry in that regard.

17. On behalf of the respondents, Mr. Noor
Mohammed, learned advocate for the respondent
in Special Leave Petition ) No.8661 of 2004,
submitted that in a similar case involving the
same set of facts, being Special Leave Petition
) No.9667 of 2005, this Court by order dated
26.3.2007 had dismissed the special leave
petition. He, therefore, submitted that the
arguments advanced by Dr. Padia were of no
consequence in view of the order passed in
Special Leave Petition ) No.9667 of 2005
wherein one K. Sarojini was the complainant
before the District Forum.

18. Mr. V. Prabhakar disputed Dr. Padia's
contentions and submitted that the entries
relating to the date of birth of the respondent
in the records of the company and not that
recorded in the records of the appellant were
relevant for the purpose of determining the
date of superannuation of the employee
concerned. It was submitted that stress had
been erroneously laid on the alleged entry in
the records of the appellant to wrongfully deny
the benefits of the 1995 Employees' Pension
Scheme to the respondent. It was also
submitted that various records had been
produced on behalf of the respondent, including
documentary evidence from the company, in order
to establish her claim that her date of birth
had been entered in her service records with
the company as 31.12.1935.

19. We have carefully considered the
submissions made on behalf of the respective
parties and the relevant documents which had
been produced before the District Forum and we
are satisfied that the dates of birth of the
respondents as recorded in their service
records with the company are the correct dates
of birth of the employees and not the dates of
birth as entered in the records of the
appellant. The reasoning given by the District
Forum in accepting the entries in the company's
record while rejecting those in the records of
the appellant/Regional P.F. Commissioner are
based on sound logic and the materials on
record. For instance, there are certificates
issued by the company to indicate that the
respondent in C.A. No.6447/2001 had continued
to work in the company till her date of
superannuation i.e. 31.12.1995 and there was no
denial on the part of the appellant that the
respondent continued to contribute to the fund
till the year 1995. No explanation is
forthcoming as to why and how such
contributions were received, even though
according to the records of the appellant the
respondent had retired on 31.12.1992, so as to
make her ineligible for the 1995 Employees'
Pension Scheme which came into operation on and
from 1st April, 1993.

20. Dr. Padia's submissions regarding the
non-applicability of the
Consumer Protection
Act
to the case of the respondent must also be
rejected on account of the fact that the
Regional Provident Fund Commissioner, who is
the person responsible for the working of the
1995 Pension Scheme, must be held to be a
'service giver' within the meaning of
Section
2(1)(o)
of the Consumer Protection Act. Nor is
this a case of rendering of free service or
rendering of service under a contract of
personal service so as to bring the
relationship between the appellant and
respondent within the concept of 'master and
servant'. In our view, the respondent comes
squarely within the definition of 'consumer'
within the meaning of
Section 2(1)(d)(ii)
,
inasmuch as, by becoming a member of the
Employees' Family Pension Scheme, 1971, and
contributing to the same, she was availing of
the services rendered by the appellant for
implementation of the Scheme. The same is the
case in the other appeals as well.

21.
In fact, the same proposition has been
explained in
Regional Provident Fund
Commissioner vs. Shiv Kumar Joshi
[2000 (1)
SCC 98], wherein in relation to the operation
of the
Consumer Protection Act
to the
Employees' Provident Fund Schemes it was held
as follows:

"A perusal of the Scheme clearly and
unambiguously indicates that it is a
'service' within the meaning of

Section 2(1)(o)
and the member a
'consumer' within the meaning of

Section 2(1)(d)
of the Act. It is,
therefore, without any substance to
urge that the services under the
Scheme are rendered free of charge
and, therefore, the Scheme is not a
'service' under the Act. Both the
State as well as the National
Commission have dealt with this
aspect in detail and rightly come to
the conclusion that the Act was
applicable in the case of the Scheme
on the ground that its member was a
'consumer' under
Section 2(1)(d)
and
the Scheme was a 'service' under

Section 2(1)(o)
."

22. Several other earlier decisions were also
referred to, where a similar view has been
expressed.

23. We are not also able to appreciate Dr.
Padia's submission that the cases of the
respondents should not be considered as they
had applied at the fag end of their careers for
correction of their dates of birth in the
appellant's records, which practice had been
strongly discouraged by this Court. The
aforesaid principle cannot apply to the case of
the respondents as their dates of birth had
been correctly recorded in the records of the
company, including the respondents' service
records, on the basis whereof they had retired
from the company's services.

24. We, therefore, have no hesitation in
upholding the orders passed by the National
Commission. All the six appeals filed by the
Regional Provident Fund Commissioner are
accordingly dismissed.

25. There will, however, be no order as to
costs.