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Retd. Employee can not file a complaint before the consumer forum for his retirement benefits as he is not a consumer nor the dispute is consumer disputes comes under the jurisdiction of consumer forum = though the complaint was not maintainable as the District Forum did not have jurisdiction to entertain the complaint of the appellant as he was not a “consumer” and the dispute between the parties could not be redressed by the said Forum, but in view of the fact that the opposite party (State) neither raised the issue of jurisdiction before the District Forum nor preferred any appeal, order of the District Forum on the jurisdictional issue attained finality= 2(d) ‘consumer’ means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person; [but does not include a person who avails of such services for any commercial purpose;= by no stretch of imagination a government servant can raise any dispute regarding his service conditions or for payment of gratuity or GPF or any of his retiral benefits before any of the Forum under the Act. The government servant does not fall under the definition of a “consumer” as defined under Section 2(1)(d)(ii) of the Act. Such government servant is entitled to claim his retiral benefits strictly in accordance with his service conditions and regulations or statutory rules framed for that purpose. The appropriate forum, for redressal of any his grievance, may be the State Administrative Tribunal, if any, or Civil Court but certainly not a Forum under the Act. 17. In view of the above, we hold that the government servant cannot approach any of the Forum under the Act for any of the retiral benefits. 18. Mr. Hooda has made a statement that all the dues for which the appellant had been entitled to had already been paid and the penal rent has also been dispensed with and the State is not going to charge any penal rent. If the State has already charged the penal rent, it will be refunded to the appellant within a period of two months. In view thereof, we do not want to pass any further order. In view of the above, the appeal stands disposed of. Before parting with the case, we record our appreciation for the assistance rendered by Shri Prateesh Kapur, learned Amicus Curiae. He is entitled for full fees as per the Rules.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40564
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5476 OF 2013
(Arising out of S.L.P.(C) No. 11381 of 2012)

 
Dr. Jagmittar Sain Bhagat
…Appellant

 
Versus

 
Dir. Health Services, Haryana & Ors.
…Respondent

 

 

 
O R D E R

1. Leave granted.
2. This appeal has been preferred against the judgment and order
dated 26.11.2009 passed by the National Consumer Disputes Redressal
Commission, New Delhi (hereinafter referred to as the ‘Commission’)
constituted under the Consumer Protection Act, 1986 (hereinafter
referred to as the ‘Act’), in Revision Petition No. 1156 of 2007, MA.
No. 291 of 2008; and MA. No. 450 of 2008, by way of which, the
Commission has dismissed the claim of the appellant as well as the
review petition seeking certain reliefs.
3. The facts and circumstances giving rise to this appeal are that:
A. The appellant joined Health Department, of the respondent
State, as Medical Officer on 5.6.1953 and took voluntary retirement on
28.10.1985. During the period of service, he stood transferred to
another district but he retained the government accommodation, i.e.
Bungalow No. B-8 from 11.5.1980 to 8.7.1981. Appellant claimed that he
had not been paid all his retiral benefits, and penal rent for the
said period had also been deducted from his dues of retiral benefits
without giving any show cause notice to him.
B. Appellant made various representations, however, he was not
granted any relief by the State authorities.
C. Aggrieved, the appellant preferred a complaint before the
District Consumer Disputes Redressal Forum, Faridabad (hereinafter
referred to as the `District Forum’) on 5.1.1995 and the said Forum
vide order dated 24.3.2000 dismissed the complaint on merits
observing that his outstanding dues i.e. pension, gratuity and
provident fund etc. had correctly been calculated and paid to the
appellant by the State authorities.
D. The appellant approached the appellate authority, i.e., the
State Commission. The State Commission dismissed the appeal vide order
dated 31.1.2007 observing that though the complaint was not
maintainable as the District Forum did not have jurisdiction to
entertain the complaint of the appellant as he was not a “consumer”
and the dispute between the parties could not be redressed by the said
Forum, but in view of the fact that the opposite party (State) neither
raised the issue of jurisdiction before the District Forum nor
preferred any appeal, order of the District Forum on the
jurisdictional issue attained finality. However, there was no merit
in the appeal.
E. Aggrieved, the appellant filed Revision Petition No. 1156 of
2007 before the Commission. The said revision stood dismissed vide
order dated 1.4.2008 and the review filed by the appellant has also
been dismissed vide order dated 26.11.2009.
Hence, this appeal.
4. Shri Narendra Hooda, learned Senior AAG, Haryana, has raised
preliminary issue of the jurisdiction submitting that the service
matter of a government servant cannot be dealt with by any of the
Forum in any hierarchy under the Act. Therefore, the matter should
not be considered on merit at all. More so, all the outstanding dues
of the appellant had been paid, and none of the issues survive any
more.
5. Shri Prateesh Kapur, learned Amicus Curiae, has raised a large
number of grievances, inter-alia, that till today the appellant has
not been paid all his retiral benefits as some of his outstanding dues
have been withheld by the authorities, thus, he is entitled to recover
the same with interest; whether the Forum was competent to entertain
the complaint ought to have been decided by the District Forum first
as a preliminary issue. It is difficult for a litigant to go back to
any other appropriate Forum after such a long time. In the instant
case, the appellant approached the District Forum in 1995, the matter
could not be finalised till date, and at such a belated stage, the
appellant if asked to approach the other forum, a great hardship would
be caused to him.
6. We have considered the rival submissions made by learned counsel
for the parties and perused the records.

7. Indisputably, it is a settled legal proposition that conferment
of jurisdiction is a legislative function and it can neither be
conferred with the consent of the parties nor by a superior Court, and
if the Court passes a decree having no jurisdiction over the matter,
it would amount to nullity as the matter goes to the roots of the
cause. Such an issue can be raised at any stage of the proceedings.
The finding of a Court or Tribunal becomes irrelevant and
unenforceable/ inexecutable once the forum is found to have no
jurisdiction. Similarly, if a Court/Tribunal inherently lacks
jurisdiction, acquiescence of party equally should not be permitted to
perpetuate and perpetrate, defeating the legislative animation. The
Court cannot derive jurisdiction apart from the Statute. In such
eventuality the doctrine of waiver also does not apply. (Vide: United
Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu
v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v.
Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).
8. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs.,
(1990) 1 SCC 193, this Court, after placing reliance on large number
of its earlier judgments particularly in Premier Automobiles Ltd. v.
K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR
1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC
2391 held, that a decree without jurisdiction is a nullity. It is a
coram non judice; when a special statute gives a right and also
provides for a forum for adjudication of rights, remedy has to be
sought only under the provisions of that Act and the Common Law Court
has no jurisdiction; where an Act creates an obligation and enforces
the performance in specified manner, “performance cannot be forced in
any other manner.”

9. Law does not permit any court/tribunal/authority/forum to usurp
jurisdiction on any ground whatsoever, in case, such a authority does
not have jurisdiction on the subject matter. For the reason that it
is not an objection as to the place of suing;, “it is an objection
going to the nullity of the order on the ground of want of
jurisdiction”. Thus, for assumption of jurisdiction by a court or a
tribunal, existence of jurisdictional fact is a condition precedent.
But once such jurisdictional fact is found to exist, the court or
tribunal has power to decide on the adjudicatory facts or facts in
issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of
Jeypore, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar Chimanlal
Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F.
Universal Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s.
Parvathy Swaminathan & Sons, AIR 2008 SC 187).
10. The Act was enacted to provide for the better protection of
interest of consumers, such as the right to be protected against
marketing of goods which are hazardous to life and property; the right
to be informed about the quality, quantity, potency, purity, standard
and price of goods, to protect the consumer against unfair trade
practices; and right to seek redressal against an unscrupulous
exploitation of consumers, and further to provide right to consumer
education etc. as is evident from the statement of objects and reasons
of the Act.
11. Section 2 of the Act which is a definition clause defines the
following as under:
“2(b) ‘Complainant’ means-
(i) a consumer; or
(ii) any voluntary consumer association registered under the
Companies Act, 1956 (1 of 1956), or under any other law for the
time being in force; or
(iii) the Central Government or any State Government;
(iv) one or more consumers, where there are numerous consumers
having the same interest;
(v) in case of death of a consumer, his legal heir or
representative; who or which makes a complaint;
2(c) ‘complaint’ means any allegation in writing made by a
complainant that-
(i) an unfair trade practice or a restrictive trade practice has
been adopted by any trader or service provider;
(ii) the goods bought by him or agreed to be bought by him
suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or
availed of by him suffer from deficiency in any respect;
xx xx xx
2(d) ‘consumer’ means any person who-
(i) buys any goods for a consideration which has been paid or
promised or partly paid and partly promised, or under any system
of deferred payment and includes any user of such goods other
than the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system
of deferred payment when such use is made with the approval of
such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which
has been paid or promised or partly paid and partly promised, or
under any system of deferred payment and includes any
beneficiary of such services other than the person who [hires or
avails of] the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred
payments, when such services are availed of with the approval of
the first-mentioned person; [but does not include a person who
avails of such services for any commercial purpose;
xx xx xx
2(g) ‘deficiency’ means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance
which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to
any service;
2(o) ‘service’ means service of any description which is made
available to potential users and includes, but not limited to,
the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, [housing
construction], entertainment, amusement or the purveying of news
or other information, but does not include the rendering of any
service free of charge or under a contract of personal service.”

 
Section 11 of the Act deals with the jurisdiction of the
District Forum as:
“(1) Subject to the other provisions of this Act, the District
Forum shall have jurisdiction to entertain complaints where the
value of the goods or services and the compensation, if any,
claimed [does not exceed rupees twenty lakhs.”
The aforesaid statutory provisions make it crystal clear that
the Act is made to deal with the rights of consumers wherein marketing
of goods, or “services” as defined under the Act have been provided.
Therefore, the question does arise as to whether the Forum under the
Act can deal with the service matters of government servants.
12. In Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225,
this Court examined the issue as to whether a prospective buyer can be
“consumer” under the Act, and held:
“The consumer as the term implies is one who consumes. As per
the definition, consumer is the one who purchases goods for
private use or consumption. The meaning of the word ‘consumer’
is broadly stated in the above definition so as to include
anyone who consumes goods or services at the end of the chain of
production. The comprehensive definition aims at covering every
man who pays money as the price or cost of goods and services.
The consumer deserves to get what he pays for in real quantity
and true quality. In every society, consumer remains the centre
of gravity of all business and industrial activity. He needs
protection from the manufacturer, producer, supplier, wholesaler
and retailer.
xx xx xx
Therefore, it is after allotment, rights may arise as per
the contract (Article of Association of Company). But certainly
not before allotment. At that stage, he is only a prospective
investor (sic in) future goods……There is no purchase of goods
for a consideration nor again could he be called the hirer of
the services of the company for a consideration. In order to
satisfy the requirement of above definition of consumer, it is
clear that there must be a transaction of buying goods for
consideration under Section 2(1)(d)(i) of the said Act. The
definition contemplates the pre-existence of a completed
transaction of a sale and purchase. If regard is had to the
definition of complaint under the Act, it will be clear that no
prospective investor could fall under the Act”.

 
13. In Secretary, Board of Secondary Education, Orissa v. Santosh
Kumar Sahoo & Anr., AIR 2010 SC 3553, this Court resolved the issue
as to whether the Forum under the Act had jurisdiction to entertain
and allow a complaint filed by a person for correction of his date of
birth recorded in the matriculation certificate, observing that the
impugned order was liable to be set aside because all the consumer
forums failed to consider the issue of maintainability of the
complaint in a correct perspective. Before the District Forum could go
into the issue of correctness of the date of birth recorded in the
matriculation certificate of Respondent 1, it ought to have considered
whether the so-called failure of the appellant to make correction in
terms of the prayer made by Respondent 1 amounted to deficiency of
service.
The court remitted the matter to the District Forum to decide
the issue of maintainability of the complaint.
14. This Court in Bihar School Examination Board v. Suresh Prasad
Sinha, AIR 2010 SC 93, considered the question as to whether a
candidate can file a complaint before the District Forum under the Act
raising any grievance regarding his examinations conducted by the
Bihar School Examinations Board constituted under the Bihar School
Examinations Board Act, 1952 and answered it in negative observing as
under:
“The object of the Act is to cover in its net, services offered
or rendered for a consideration. Any service rendered for a
consideration is presumed to be a commercial activity in its
broadest sense (including professional activity or quasi-
commercial activity). But the Act does not intend to cover
discharge of a statutory function of examining whether a
candidate is fit to be declared as having successfully completed
a course by passing the examination. The fact that in the course
of conduct of the examination, or evaluation of answer scripts,
or furnishing of marksheets or certificates, there may be some
negligence, omission or deficiency, does not convert the Board
into a service provider for a consideration, nor convert the
examinee into a consumer who can make a complaint under the Act.
We are clearly of the view that the Board is not a ‘service
provider’ and a student who takes an examination is not a
‘consumer’ and consequently, complaint under the Act will not be
maintainable against the Board.”
(See also: Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC
159).
15. In Regional Provident Fund Commissioner v. Bhavani, AIR 2008
SC 2957, this Court dealt with the issue as to whether Dr. Padia’s
submissions regarding the non-applicability of the Act to the case
of the Regional Provident Fund Commissioner – the person
responsible for the working of a Pension Scheme, could be held to
be a ‘service giver’ within the meaning of Section 2(1)(o) of the
Act, as it was neither a case of rendering of free service nor
rendering of service under a contract of personal service so as to
bring the relationship between the parties within the concept of
‘master and servant’. The court held:
“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.”

 
16. In view of the above, it is evident that by no stretch of
imagination a government servant can raise any dispute regarding his
service conditions or for payment of gratuity or GPF or any of his
retiral benefits before any of the Forum under the Act. The
government servant does not fall under the definition of a “consumer”
as defined under Section 2(1)(d)(ii) of the Act. Such government
servant is entitled to claim his retiral benefits strictly in
accordance with his service conditions and regulations or statutory
rules framed for that purpose. The appropriate forum, for redressal
of any his grievance, may be the State Administrative Tribunal, if
any, or Civil Court but certainly not a Forum under the Act.

17. In view of the above, we hold that the government servant cannot
approach any of the Forum under the Act for any of the retiral
benefits.
18. Mr. Hooda has made a statement that all the dues for which the
appellant had been entitled to had already been paid and the penal
rent has also been dispensed with and the State is not going to charge
any penal rent. If the State has already charged the penal rent, it
will be refunded to the appellant within a period of two months. In
view thereof, we do not want to pass any further order.
In view of the above, the appeal stands disposed of. Before
parting with the case, we record our appreciation for the assistance
rendered by Shri Prateesh Kapur, learned Amicus Curiae. He is entitled
for full fees as per the Rules.

 
………………………………J.
( Dr. B.S.
CHAUHAN )

 

 

………………………………J.
( S.A.
BOBDE )
New Delhi,
July 11, 2013
———————–
11

 

 

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