(1.) APPELLANT was the opposite party in consumer complaint No. 363 of 2007 filed by complainant Sh. D.K. Rastogi, Retired Engineer of the Uttarakhand Jal Sansthan, in order to have his GPF passbook released by his employer (appellant) to facilitate drawal of his accumulated GPF of Rs. 30,432/ -. The District Forum by order dated 26.06.2008, allowed the said complaint with cost of Rs. 2,000/ - and directed the appellant to release the total sum deposited in the GPF of the complainant by handing over the GPF passbook to the complainant within the stipulated period. The GPF of the complainant had not been released despite retirement of the complainant, on account of the fact that the complainant, at the time of his relieving for further continuation of service in the State of Uttar Pradesh on 05.07.2004, gave undertaking that he shall vacate the government accommodation in his occupation within a period of three months and shall also deposit / pay the electricity dues since the month of June, 1998 till vacation of the accommodation, but till date, has not done so, so as to entitle him for release of GPF and delivery of his GPF passbook to him. The District Forum, in allowing the consumer complaint, rejected the said contention of the appellant, by observing that the complainant after his retirement had handed over the possession of the official residence on 31.03.2007 to Nagar Palika Parishad, Roorkee and further had also been issued No Objection Certificate in respect of any dues by the Nagar Palika Parishad, Roorkee. According to the District Forum, the appellant, under these circumstances, made deficiency in service in not releasing the GPF of the complainant by giving him his GPF passbook and allowed the complaint by the impugned order, as stated above. Aggrieved by the impugned order, appellant filed this appeal.
(2.) CONTENTIONS raised by the learned counsel for the parties, give rise to the following points for consideration in this appeal:
(i) Whether dispute regarding non -payment of the GPF was not a consumer dispute and the District Forum was not justified in entertaining the consumer complaint and decide it in favour of the complainant by the impugned order ?
(ii) Whether even otherwise, the District Forum fell in error in accepting the complainant's case that he had validly handed over the possession of his official residence and obtained No Objection Certificate from Nagar Palika Parishad, Roorkee, so as to entitle him for release of his GPF by handing over to him his GPF passbook by his employer, the appellant ?
(3.) POINT No. (i) Learned counsel for the appellant submitted that the dispute raised by the complainant would not fall within the purview of the provisions of the Consumer Protection Act, 1986, in view of the complainant not being the "consumer" of the appellant and that, therefore, the order impugned can not legally be maintained. On the other hand, learned counsel for the complainant urged that the employer of the complainant had been rendering "service" for consideration in maintaining the GPF account of the complainant, whose contribution had been deducted regularly by his employer and withholding of the passbook and the amount of the GPF of the complainant despite his retirement, tantamount to deficiency in service by the employer appellant. In support of the argument, learned counsel placed reliance on the following decisions:
(i) Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, 1999 3 CPJ 36
(ii) Pranaya Kumar Padhi Vs. Ballarpur Industries Ltd. and others, 2006 2 CPJ 76 .
Having considered the respective submissions of the learned counsel for the parties, we may state at the outset that the submissions of the learned counsel for the appellant have force and that the dispute regarding payment of the General Provident Fund not being a "consumer dispute", the complaint was not legally maintainable and the District Forum was not justified in entertaining the same and deciding it on merit. The reason being that the General Provident Fund is opened for a government servant, for whom it is compulsory to subscribe to the Fund and, as such, no question of hiring of service get involved between the employee and the government. GPF is maintained under the provisions of the Provident Fund Act, 1925 or under the various State General Provident Funds / Rules and the responsibility of maintaining the account has generally been assigned to the Accountant General, on whom a statutory duty has been casted under the provisions of the relevant Act / Rules. The deduction under GPF being compulsory, an element of "service", as contemplated by the provisions of the Consumer Protection Act, 1986, do not at all exists and any dispute regarding non -payment of the GPF, therefore, can not be termed to be a "consumer dispute", adjudicable under the provisions of the Consumer Protection Act, 1986. The decision of the Hon'ble Apex Court in the matter of Regional Provident Fund Commissioner , relied upon by the learned counsel for the complainant, has as such been distinguished by the Hon'ble National Commission in the case of Comptroller and Auditor General of India and another Vs. Shivkant Shankar Naik, 2003 1 CPJ 276 , on the interpretation of the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Scheme framed thereunder. Complainant's case is of General Provident Fund, which does not fall within the purview of the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Employees Provident Fund Scheme, 1952, in relation to which, the above -mentioned decision had been rendered by the Hon'ble Apex Court and in respect of which, it had been held that an employee, who is a subscriber of the Fund under the said Act of 1952 and Scheme, would be a "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and the Scheme under which such an employee is a subscriber of the Fund, is "service" within the meaning of Section 2(1)(o) of the Act. In other words, the Hon'ble Apex Court's decision, pressed into service by the learned counsel for the complainant, would not help the cause of the complainant. The conclusion also holds good in respect of the other cited decision of Hon'ble National Commission in the matter of Pranaya Kumar Padhi , which pertain to an employee, who was subscriber of Employees Provident Fund, distinct from General Provident Fund, in which the contributions have been made by the complainant.;