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Judgment
Subhash Chandra, Member
This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails order dated 25.04.2012 of the Maharashtra State Consumer Dispute Redressal Commission, Mumbai (in short, ‘State Commission’) dismissing Appeal No. 2204 of 2011.
The State Commission has dismissed the appeal of the petitioner against the order dated 16.01.2010 of the District Consumer Disputes Redressal Forum, Mumbai Suburban District, Mumbai (in short, ‘District Forum’) in consumer complaint no. 271 of 2004 filed by the respondent claiming provident fund benefit in a compensation awarded by the High Court of Mumbai.
In brief, the facts of the case are that Dattaram Payyar, the husband of the respondent no 1, was dismissed from service by the petitioner on 09.03.1992 on grounds of misconduct. The dismissal was challenged before the Industrial/Labour Court in April 1992. During the pendency of the case Dattaram Payyar died on 18.08.1995. The case was decided on 14.05.1998 upholding the dismissal. However, Rs. 25,000/- was awarded on humanitarian grounds at the consent of the petitioner. Before the District Forum, respondent no. 1 claimed deficiency in service against the Provident Fund Commissioner on the ground that the provident fund on the compensation had not been paid with interest. This claim was disallowed by the District Forum. The order was appealed against in the State Commission. The State Commission dis-allowed the appeal and upheld the order of the District Forum. This order has been impugned before us in this review petition.
The legal representatives of the deceased applied for the release of his Provident Fund (PF) account no. MH/6570/616 which was settled on 21.02.2000 and Rs 36,064/- was paid. Against the order of the Labour Court, writ petition (WP) no. 139/1999 was filed by the workers’ association. The WP was decided by way of a settlement which enhanced the compensation to Rs. 90,000/-.
We have heard the submissions of both the learned counsels for the parties and perused the records carefully.
The petitioner has contended that a consumer complaint is not maintainable against an employer who fails to make the statutory provident fund contribution, though it may lie against the provident fund department. It is also argued that as compensation does not form part of basic wages, it does not attract the requirements of PF contribution. Accordingly it is claimed by the petitioner that there is no liability placed on him by virtue of the order in WP 139/1999.
It is contended by the respondent no.1 that since the amount awarded was directed to be spread over from the date of dismissal up to the date of award, the respondent is eligible for provident fund which has not been ordered by the respondent no.2 and therefore there is deficiency in service on the part of respondent no 2. Reliance is placed on Regional Provident Fund Commissioner vs Shiv Kumar Joshi CA no.411 of 1997 decided on 14.12.1999 in support of the argument that the respondent is a ‘consumer’ under the Act and to seek relief on ground of deficiency in service.
The order of the District Forum is as below:
(i) Complaint application is partly allowed;
(ii) The opponent no.2 shall calculate amount as per Employees’ Provident Fund Rules payable for the period of 09.03.1992 to 18.08.1995 to late Dattaram Kany Payyar husband of the complainant by charging interest @ 12% per annum on it shall deposit total amount payable (basic amount + interest) within one month to the opponent no.1 from the date of receipt of order;
(iii) As mentioned above on deposit of the said amount by opponent no.1 he shall make payment to complainant together with interest within one month;
(iv) The opponent no.2 shall after calculating amount payable under the Employees Pension Scheme 1995 in order to give benefit to complainant amount payable as per the salary of Late Dattaram Kanu Payyar and shall sent amount of family pension with interest @ 12% within one month to the opponent no.1 for further action;
(v) On receipt of the amount as mentioned above the opponent shall take action as per the Employees Pension Scheme, 1995 to grant family pension to the complainant within two months;
(vi) The opponent shall pay to the complainant Rs.25,000/- towards the mental torture and Rs.1,000/- as cost of this application;
(vii) Above said amounts (Rs.25,000/- and Rs.1,000/-) shall be paid by the opponent no.2 to complainant within one month from the receipt of this order otherwise it will be liability to pay interest @9% for delay; and
(viii) As there are no allegations against the opponent no.1 complainant is dismissed against them.
The order of the State Commission dismissing the appeal of the revision petitioner stated that:
“5. There is no denial of the fact that Shri Dattaram Payyar workman was member of the Employees Provident Fund w.e.f. 1987 till his dismissal on 9th March, 1992. The scheme, viz. Employees Provident Fund 1995 provides that the workman or employee who expired between 01.04.1993 to 15.11.1995 presumed to have opted for Employees Provident Fund Scheme, 1995. In the instant case the complainant’s husband served for the period of 10 years. Hon’ble High Court in writ petition no. 137/1999 awarded enhanced compensation in lieu of reinstatement. Appellant’s presumption regarding settlement terms as full and final is erroneous as it was only in lieu of reinstatement of the deceased workman. On plain reading of the Bombay High Court order it will be clear that the compensation as a settlement was in respect of dismissal of the workman in lieu of reinstatement in service. Therefore the submission of the Ld. Advocate for the Appellant that the settlement was fulfilled in respect of the claim is not acceptable. As stated by the Appellant, the original Provident Fund Commissioner is empowered to decide the family pension and Provident Fund dues of the deceased workmen under amended Section 7A of the Employees Provident Fund and Misc. Provisions Act, 1952. The Ld. District Forum has appreciated the relevant facts in this case and passed the impugned order. We find the appeal is devoid of merit and therefore, impugned order passed by the District Forum cannot be faulted with. We hold accordingly…”
Emphasis added
From the foregoing, it is seen that the present revision petition has been filed against concurrent findings of the District Forum and the State Commission against the revision petitioner. This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or when the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269 has held that:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.
Foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretation of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.
We therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.