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PETITIONER:

REGIONAL PROVIDENT FUND COMMISSIONER

Vs.

RESPONDENT:

SHIV KUMAR JOSHI

DATE OF JUDGMENT: 14/12/1999

BENCH:

S. Saghir Ahmad, R.P.Sethi

JUDGMENT:

The short but an important question of law to be

decided in this appeal is as to whether the provisions of

Consumer Protection Act, 1986 (hereinafter referred to as

'the Act') can be invoked against the Provident Fund

Commissioner by a member of the Employees Provident Fund

Scheme? it has to be ascertained as to whether any such

member is a 'consumer* and the duties performed by the

Provident Fund Commissioner under the relevant scheme is a

'service' within the meaning of the Act. If it is held that

such member is the 'Consumer and the facilities provided are

'services', it has to be further considered as to whether

the delayed payment of the

provident fund to a member-employee amounts to

deficiency of service under the Act.

The facts leading to the filing of the present appeal

are that the respondent, who was a member of the Provident

Fund Scheme, applied to the Regional Provident Fund

Commissioner for the payment of his provident fund on 15th

July, 1992. It was found that the application filed was not

complete as required by Para 72(5)(d) of the Provident Fund

Scheme applicable in the case. The appellant forwarded the

application to the Respondent's employer for verification in

terms of the said Para. The Inspector of the appellant is

also stated to have visited the factory, where the

respondent- employee was working, to impress upon the

employer to expedite verification of the application. The

appellant's Area Inspector is stated to have personally gone

to the factory on 19^ August, 1992

. and obtained the verification application. The

claim of the respondent was settled on 24^ August, 1992.

However, the respondent filed a complaint before the

District Consumer Disputes Redressal Forum, Faridabad

(hereinafter referred to as "the District

I Forum") on 26th August, 1992 alleging deficiency in

service of the appellant and claimed damages to the tune of

Rs.65,000/- along with costs for the alleged delay in

payment of his provident fund. The appellant raised a

preliminary objection regarding the

jurisdiction of the District Forum on the ground that

the respondent was not a 'consumer' and the facilities

provided by the scheme were not a 'service'. The District

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Forum vide its order dated 4.11.1992 directed the appellant

to pay interest @ 18% on delayed payment and costs of

Rs.1,000/-. Not satisfied with the order of the District

Forum, the appellant filed an appeal before the State

Consumer Disputes Redressal Commission, Haryana at

Chandigarh

(hereinafter referred to as "the State Commission'')

under Section 15 of the Act. The appeal was dismissed by

the State Commission on 1.3.1994. The revision filed before

the National Consumer Disputes Redressal Commission, New

Delhi (hereinafter referred to as "the National Commission")

was dismissed vide the order impugned in this appeal.

Taking us through the Employees Provident Fund Scheme,

1952, Shri N.N. Gowswamy, Senior Advocate appearing for the

appellant submitted that the said scheme could not be held

to be a 'service' within the meaning of Section 2(1)(o) and

the respondent No.l as 'consumer* within the meaning of

Section 2(1)(d) of the Act. It was urged that as the

Provident Fund Commissioner was the custodian of the funds

passed to him and the contribution to the Scheme was not for

consideration, the Act was not applicable.

Consumer under the Act has been defined as any person

who;

"(i) buys any goods for a consideration which has

Deer) paid or promised or partly paid and partly promised or

under any system of the daferred payment and includes user

of such goods other than the person who buys such goods for

consideration paid or promised or partiy paid or partiy

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

(i?) hires or avails of any services for a

consideration which has been paid or promised or partly p^d

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 any

system of deferred payment, when such services are availed

of with the approval of the first mentioned person.

and "service" means service of any description which

Is made available to potential users and includes the

provision of facilities in connection with banking,

financing, insurance, transport processing, supply of

electrical or other energy, board or lodging or both,

entertainment, amusement or the purveying of news or other

information, but doss not include the rendering of any

service free of charge or under 9 contract of personal

service.

The definition of consumer is wide and covers in its

ambit not only the goods but also services, bought or hired,

for consideration.

Such consideration be paid or promised or partly paid

or partly promised under any system of deferred payment and

includes any beneficiary of such person other than the

person who hires the service for consideration. The Act is

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aimed to protect the interests of a consumer as understood

In commercial sense of the term as 'purchaser of goods' and

in larger sense 'user of services'. The important

characteristic of goods and service under the Act is that

such goods are supplied at a price to cover the costs which

consequently result in profit or income to the seller of

goods or provider of service. The definition excludes a

person who obtains such goods for re-sale or for any

commercial purposes. However, the services hired for

consideration even for commercial purposes have not been

excluded. A reference to the definition of 'service'

unambiguously indicates that the definition is not

restrictive and includes within its ambit such services as

well which are specified therein. However, services hired

or availed, which are free of charge, or under a contract of

personal service, have specifically been excluded. This

Court in Lucknow Development Authority vs. M.K. Gtipta

1(1994) 1 SCO 243 referred to the meanings of the word

"consumer" in various dictionaries and found that the Act

has opted for no less voider definition than those mentioned

in dictionaries. Referring to the definition of the

"consumer" the Court held:

"....It is in two parts. The first deals with goods

and the other with services. Both parts first declare the

meaning of goods and services by use of wide expressions.

Their ambit is further enlarged by use of inclusive clause.

For instance, it is not only purchaser of goods or hire, of

services but even those who use the goods or who are

beneficiaries of services with approval of the person who

purchased the goods or who hired services are included in

it. The legislature has taken precaution not only to define

'complaint', 'complainant', 'consumer' but even to mention

in detail what would amount to unfair trade practice by

giving an elaborate definition in clause (r) and even to

define 'defect' and 'deficiency' by clauses (f) and (g) for

which a consumer can approach the Commission. The Act thus

aims to proisct the economic interest of a consumer as

understood in commercial sense as a purchaser of goods and

in the larger sense of user of services. The common

characteristics of goods and services are that they are

supplied ai a price to cover the costs and general profit or

income for the seller of goods or provider of service. But

the defect in one and the deficiency in other may havs to be

removed and compensated differently. The former is.

normally, capable of being replaced and repaired whereas the

other may be required to be compensated by award of the just

equivalent of the value or damages for loss. 'Goods' have

been defined by clause (i) and have been assigned the same

meaning as in the Sale of Goods Act, 1930 which reads as

under:

" 'goods' means every kind of movable property other

than actionable claims and money; and includes stocks and

shares, growing crops, grass and things attached to or

forming part of the land which are agreed to be severed

before sale or under the contract of sale."

It was therefore urged that the applicability of the

Act having been confined to movebale goods only a complaint

filed for any defect in relation to immoveable goods such as

a house or building or allotment of site

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could not have been entertained by the Commission.

The submission does not appear to be well founded. The

respondents were aggrieved either by delay in delivery of

possession of house or use of substandard material etc. and

therefore they daimed deficiency in service rendered by the

appellants. Whether they were justified in their complaint

and if such act or omission could be held to be denial of

service in the Act shall be examined presently but the

jurisdiction of the Commission could not be ousted (sic

merely) because even though it was service it related to

immoveable property."

and while dealing with the meaning of the word

"service" this Court held:

"The main clause itself is very wide. It applies to

any service made available to potential users. Trie words

'any' and 'potential' are significant. Both are of wide

amplitude. The word 'any' dictionarily means 'one or some

or all'. In Black's Law Dictionary it is explained thus.

"word 'any' has a diversity of meaning and may be employed

to indicate 'all' or 'every' as well as 'some' or 'one' and

its meaning in a given statute depends upon the context and

the subject matter of the statute". The use of the word

'an/ in the context it has been used in clause (o) indicates

that it has been used in wider sense extending from one to

all. The other word 'potential' is again very wide. In

Oxford Dictionary it is defined as 'capable of coming into

being, possibility'. In Black's Law Dictionary it is

defined as "existing in possibility but not in act.

Naturally and probably expected to come existence at some

future time, though not existing; for example, the future

product of gain or trees already planted, or the successive

future instalments or payments on a contract or engagement

already made." In other words service which is not only

extended to actual users but those who are capable of using

it are covered in the definition. The clause is thus very

wide and extends to and or ail actual or potential users."

In Morgan Stanley Mutual Fund v. Kartick Pas [(1994)

4 SCC 225 the definition of "consumer' was explained as:

"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

ail business and industrial activity. He needs protection

from the manufacturer, producer, supplier, wholesaler and

retailer." i

This Court again in S.P. Goel vs. Collector of

Stamps Delhi 1(1996) 1 SCC 573 considered, with approval,

the meaning and scope of the words "consumer", "service" and

"deficiency in service".

In State of Orissa vs. Divisional Manager. LIC &

Another [(1996) 8 SCC 655 this Court held:

"The only question is: whether the appellant is

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liable to pay compensation to Haribandhu Setha under the Act

and whether the claim Is maintainable. Section 2(1)(o) of

the Act defines 'services' as under: "services" means

service of any description which is made available to

potential users and includes 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 a news or other information, but

does not

include the rendering of any service free of charge or

under a contract of personal service."

A reading of the definition would indicate that the

services contemplated thereunder alone are the services

within the meaning of the Act except excluded services

mentioned thereunder. The excluded services are "service

free of charge or under a contract of personal service".

The concept of contract of personal service was considered

in a recent Judgment of this Court in Indian Medical

Assn.vs. V.P. Shantha (1995) 6 SCC 651. This Court had

he'd therein that the expression "personal service" has a

well-known legal connotation and has been construed in the

context of the right to seek enforcement of such a contract

under the Specific Relief Act, 1963. For that purpose, a

contract of personal service has been held to cover a civil

servant, the managing agents of a company and a professor in

the University. There can be a contract of personal service

if there is relationship of master and servant between a

doctor and the availing of his services and in that event

the services rendered fay the doctor to hi's employer would

be excluded from the purview of the expression under section

2(1)(o) of the Act by virtue of the exclusionary clause in

the said definition. The other excluded service is service

rendered free of charge."

The combined reading of the definitions of "consumer"

and "service" under the Act and looking at the aims and

object for which the Act was enacted, it is imperative that

the words "consumer" and "service" as denned under the Act

should be construed to comprehend consumer and services of

commercial and trade oriented nature only. Thus any person

who is found to have hired services for consideration shall

be deemed to be a consumer

notwithstanding that the services were in connection

with any goods or their user. Such services may be for any

connected commercial activity and may also relate to the

services as indicated in Section 2(1 )(o) of the Act.

The Employees Provident Fund & Miscellaneous

Provisions Act, 1952 (hereinafter referred to as "the

Provident Fund Act") has been enacted to provide for the

institution of provident fund, pension and deposit linked

insurance funds for employees working in factories and other

establishments. Section 2(h) defines "fund" to mean the

provident fund established under the Scheme. "Scheme" means

the Employees Provident Fund Scheme framed under Section 5

thereof which provides:

"5. Employees' Provident Fund Scheme.(1 ) The

Central Government may, by notification in the Official

Gazette, frame a scheme to be called the Employees'

Provident Fund Scheme for the establishment of provident

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funds under this Act for employees or for any class of

employees and specify the establishments or class of

establishments to which the said Scheme shall apply and

there shall be established, as soon 33 may be after the

framing of the scheme, a Fund in accordance with the

provisions of this Act and the Scheme.

(IA) The Fund shall vest in, and be administered by,

the Central Board constituted under section 5A.

(IB) Subject to the provisions of this Act, a scheme

framed under sub-section (1) may provide for all or any of

the matters specified in Schedule II.

(2) A scheme framed under sub-section (1) may provide

that any of its provisions shall take effect either

prospectively or retrospectively on such date as may be

specified in this behaif in the Scheme."

Section 5(d) authorises the Central Government to

appoint a Central Provident Fund Commissioner who is the

Chief Executive Officer of the Central Board constituted

under Section 5(a) or the Provident Fund Act. Section 6

provides that the contributions to the Scheme shall be made

by the employer to the Fund at the rates specified therein

from the wages of the employee along with his own equal

contribution" exercise of the powers conferred by Section 5

of the Provident Fund Act, the Central Government framed

Employees Provident Fund Scheme. 1952. Para 30 of the

Scheme provided:

"30. Payment of contributions(1) The employer shall,

in the first instance, pay both the contribution payable by

himself (in this Scheme referred to as the employer's

contribution) and also, on behalf of the member employed by

him directly or by or through a contractor, The contribution

payable by such member (in this Scheme referred to as the

member's contribution).

(2) In respect of employees employed by or through a

contractor, the contractor shall recover the contribution

payable by such employee (in this Scheme referred to as the

member's contribution) and shall pay to the principal

employer the amount of member's contribution so deducted

together with an equal amount of contribution (in this

scheme referred to as the employer's contribution) and also

administrative charges."

(3) It shall be the responsibility of the principal

employer io pay both the contribution payable by himself in

respect of the employees directly employed by him and also

in respect of the employees employed by or through a

contractor and also administrative charges.

ExplanationFor the purposes of this paragraph the

expression "administrative charges" means such percentage of

the pay (basic wages, dearness allowance, retaining

allowance, if any. and cash value of food concessions

admissible thereon) for the time being payable to the

employees other than an excluded employee, as the Central

Government may in consultation with the Central Board and

having regard to the resources of .the Fund for meeting its

normal administrative expenses fix.

Obviously, it appears that as the payment of

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contribution includes the payment of administrative charges,

the Scheme appears to be for consideration.

Mr.A.S. Nambiar, Senior Advocate, who later appeared

for the appellant submitted that as no part of the

administrative charges is payable by the employee, he

(employee) cannot be held to be a 'consumer' within the

meaning of Section 2(1)(d) of the Act. In support of such a

submission an affidavit of Shri D.P. Sethi, Assistant

Provident Fund Commissioner has been Tiled ^wherein after

reproduction of para 55 of the scheme it is submitted:

'That under para 30 of Employees' Provident Fund

Scheme 1952, employer is liable to pay both the

contributions as well as administrative charges but under

para 38 the employer is authorised to deduct the

employee's share of contribution from his wages,

consequently leaving employer's share as well as

administrative charges payable by employer himself.

That according to above scheme provisions it is the

employer who is responsible to pay administrative charges

and not the member. Following the above provisions of law

the Central Board of Trustees is recovering administrative

charges only from employer and not from members."

Such a submission which apparently appears to be

attractive, when analysed in depth, is without substance

and, if accepted, is likely to defeat the purpose and object

of the Act as also the scheme framed under it. The word

'consideration' has not been defined either under the scheme

or the Act. Black's Law Dictionary defines 'consideration'

thus: Consideration is not to be confounded with motive,

consideration means something which is of value in the eye

of the law, moving from the plaintiff, either or benefit of

the plaintiff or of detriment to the defendant. In volume

17 of Corpus Juris Secundum (pp.420-421 and 425) the import

of 'consideration' has been described thus: Various

definitions of consideration are to be found in the

textbooks and judicial opinions. A sufficient one, as

stated in Corpus Juris and which has been quoted and cited

with approval is, 'a benefit to the party promising, or a

loss or detriment to the party to whom the promise is

made....". At common law every contract not under seal

requires a consideration to support it, that is,

as shown in the definition above, some benefit to the

promisor, or some loss or detriment to the promisee...

There is a sufficient consideration for a promise if there

is any benefit to the promisor or any detriment to the

promisee. It may be laid down as a general rule. in

accordance with the definition given above, that there is a

sufficient consideration for a promise if there is any

benefit to the promisor or any loss or detriment to the

promisee. The gist of the term 'consideration' and its

legal significance has been clearly summed up in Section

2(d) of the Contract Act which defines 'consideration' thus:

When, at the desire of the promisor, the promisee or any

other person has done or abstained from doing, or does or

abstains from doing, or promise to door to abstain from

doing, something such actor abstinence or promise is called

a consideration for the promise. Webster's Third New

Intenational Dictionary (Unabridged) defines

'consideration' as: Something that is legally regarded as

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the equivalent or return given or suffered by one for the

act or promise of another.

In Sonia Bhatia v. State of U.P. & Ors. [1981 (2)

SCC 585] it was held:

"From a conspectus, therefore, of the definitions

contained in the dictionaries and the books regarding a gift

or an adequate consideration, the inescapable conclusion

that follows is that 'consideration' means a reasonable

equivalent or other valuable benefit passed

on by the promisor to the promisee or by the

transferor to the transferee."

A perusal of the scheme unambiguously shows that it is

for consideration which is applicable to all those factories

and establishments covered under the Act and the scheme who

are required to become a member of the Fund under the

scheme. Para 26 provides that every employee employed in

connection with any work of the factory or other

estabishment to which the scheme applies other than an

excluded employee, shall be entitled and required to become

a member of the Fund from the date the said para comes into

force in such factory or the establishment. The scheme

provides for the Board of Trustees, the appointment, power

of Commissioner and other staff of Board of Trustees,

membership of the Fund, contribution, etc. Chapter V deals

with contribution. The employer who is otherwise not a

member of the scheme is obliged to contribute under the

scheme at the rates specified therein of the basic wages,

dearness allowance including cash value of any food

concession and repairing allowances, if any., payable to

each employee to whom the scheme applies. The contribution

of the employee has to be equal to the contribution payable

by the employer in respect of such employee. The words 'in

respect of are significant as they indicate the liability of

the employer to pay his part

of the contribution in consideration of the employee

working with him. But for the employment of the employee

there is no obligation upon the employer to pay his part of

the contribution to the scheme. The administrative charges,

as required to be paid under para 30 of the scheme are also

paid for consideration of the employee being the member of

the scheme. It is Immaterial as to whether such charges are

deducted actually from the wages of the employee or paid by

his employer in respect of the employee-member of the scheme

working for such employer. The administrative charges are

further required to be determined having regard to the basic

wages, the dearness allowance, retaining allowance, if any,

and cash value of food concessions admissible thereon for

the time being payable to the employee. If the contention

of the appellant is accepted ttiat as no part of the

administrative charges are deducted from the actual wages of

the employee, he cannot be deemed to be hiring the services

of scheme, the consequences of such an interpretation shall

frustrate the object of the Act and the scheme as in that

event no obligation can be cast upon the employer to pay

contributions which are equal to the contribution payable by

the employee along with the administrative charges. The

scheme has to be given such an interpretation which serves

the purpose intended to be achieved by it keeping in view

the objects of the Act. The admini»trative

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charges are in lieu of the membership of the employee

and for the services rendered under the scheme. It cannot

be held that even though the employee is the member of the

scheme, yet the employer would only be deemed to be a

'consumer' for having made payments of the administrative

charges. Admittedly, no service is rendered to the employer

under the scheme which is framed for the benefit of the

employee under Sections 5, 6 and 7 of the Act. Chapter VII

provides for administration of the Fund. Accounts and

Audit. A separate account called "Central Administration

Account" for recording of administration expenses of the

Fund is required to be kept under Para 49. Para 52 deals

with the investment of monies belonging to employee's

provident fund and provides that such monies be deposited in

the Reserve Bank or the State Bank of India or in such other

scheduled banks as may be approved by the Central Government

from time to time or be invested subject to the directions

as the Central Government may from time to time give in

securities mentioned or referred to in Clauses (a) to (d) of

Section 20 of the Indian Trust Act., 1882. Ail expenses

incurred in respect of, and loss, if any. arising from, any

investment shall be charged to the Fund. Para 53 provides

that the Fund not including the administration account shall

be except with the previous sanction of the Central

Government be expanded for any purpose other than the

payment of the sums standing to the credit of

individual member of the Fund or to their nominees or heirs

or legal representatives in accordance with the provisions

of the scheme. All expenses relating to the administration

of the Fund including those incurred on Regional Committee

are to be made from the Fund in terms of para 54 of the

scheme. Similarly all expenses of administration of Fund

including the fees and allowances of the trustees of the

Central Board and salaries, leave and joining time

allowance. travelling and compensatory allowances,

gratuities and compassionate allowances, pensions,

contributions to provident fund and other benefit fund

instituted for the officers and employees of the Central

Board, the cost of audit of the accounts, legal expenses and

cost of all stationery and forms incurred in respect of the

Central Board, cost and ali e>i"-n^es incurred in connection

with the construction of office ana staff quarters shall be

met from the Administration Account of the Fund. The member

of the scheme is entitled oniy to the interest determined as

per para 60. Chapter VIII deals with nominations, payments

and withdrawals from the Fund.

We cannot accept the argument that the Regional

Provident Fund Commissioner, being Central Government,

cannot be held to be rendering 'service' within the meaning

and scheme of the Act. The Regional Provident Fund

Commissioner, under the Act and the

scheme discharges statutory functions for running the

scheme. It has not, in any way, been delegated with the

sovereign powers of the State so as to hold it as a Central

Government, being not the authority rendering the 'service'

under the Act. The Commissioner is a separate and distinct

entity, it cannot legally claim that the facilities provided

by the 'scheme' were not "service" or that the benefits

under the scheme being provided were free of charge. The

definition of "consumer" under the Act includes not only the

person who hires the 'services' for consideration but also

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the beneficiary, for whose benefit such services are hired.

Even if it is held that administrative charges are paid by

the Central Government and no pad of it is paid by the

employee, the services of the Provident Fund Commissioner in

running the scheme shall be deemed to hsve been availed of

for consideration by the Central Government for the benefit

of employees who wouid be treated as beneficiary within the

meaning of that word used in the definition of consumer.

This Court in M/s.Sprinq Meadown Hospital & Anr. vs.

Harjol Ahluwalia through K.S. Ahluwalia & Anr. [JT 1998

(2) SC 620, to which one of us (Saghir Ahmad.J) was a party

has already held that the "consumer" means a person who

hires or avails of any services and includes any beneficiary

of such service other than the person who hires or avails

the services. The Act gives comprehensive definition of

'consumer'

who is the principal beneficiary of the legislation

but at the same time in view of the comprehensive definition

of the term "consumer" even a member of the family of such

'consumer' was held to be having the status of 'consumer'.

In an action by any such member of the family of beneficiary

of the service it will not be open for a trader to take a

stand that there was no privity of contract. In this regard

this Court specifically held:

"In the present case. we are concerned with clause

(ii) of Section 2(1)(d). In the said clause a consumer

would mean a person who hires or avails of any services and

includes any beneficiary of such services other than the

person who hires or avails of the services. When a young

child is taken to a hospital by his parents and the child is

treated by the doctor, the parents would come within the

definition of consumer having hired the services and the

young child would also become a consumer under the inclusive

definition being a beneficiary of such services. The

definition clause being wide enough to include not only the

person who hires the services but also the beneficiary of

such- services which beneficiary is other than the person

who hires the services, the conclusion is irresistible that

both the parents of the child as well as the child would be

consumer within the meaning of Section 2(1 )(d)(ii) of the

Act and as such can claim compensation under the Act"

A perusal of the scheme clearly and unambiguously

indicate 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 National Commission have dealt

with this aspect in detail and rightly came 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

(1)(o).

No ground is, therefore, made out for interference

with the impugned order. The appeal is accordingly

dismissed, as no one appeared on behalf of the respondent,

without any order as to costs.

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