Regional Provident Fund Commissioner Vs. Bhavani  INSC 687 (22 April 2008)
Altamas Kabir & V.S.Sirpurkar
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
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
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
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
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
"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.