http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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.