West Bengal Housing Board vs GOPI BHUSAN DEY And OTHERS

THIS appeal is against an order passed by the Calcutta District Forum allowing a prayer of the Complainants/Respondents for a higher scale of pay. The Complainants are all employees of the West Bengal Housing Board and their designation is Draftsman (Architectural) Grade-I. In short their case is that they were appointed in the aforesaid posts in the scale of Rs. 505-25-755/-. After the 2nd Pay Commission''s recommendation Draftsman (Architectural) Grade I in the Government of West Bengal were placed in the same scale viz. Rs. 440-1170/- (with a higher initial starting of Rs. 560/-). After the 3rd Pay Commission''s recommendation the petitioners became entitled to the scale of Rs. 1420-3130/-. The petitioners'' grievance is that the OP/Appellants have illegally and arbitrarily merged the post of Draftsman (Architectural) Grade-I with the cadre of Draftsman with the scale of pay of Rs. 1260-3010/- and arbitrarily decided that 15% of the posts of Draftsman should be upgraded to the Draftsman Grade-I posts in the scale of Rs. 1420-3130/- to be filled by promotion without abolishing the posts of the petitioners. The petitioners feel that they have been unjustly deprived of the scale of Rs. 1420-3130/- with a higher initial start of Rs. 1465/-.

THE petition of complaint was contested by the OPs/Appellants. THEir main contention being that the Forum had no jurisdiction to decide the present dispute. THEir other contentions were that the West Bengal Housing Board is a Statutory Body being governed by the West Bengal Housing Board Act, 1972 and that the Board was bound to accept the decision of the Govt, regarding the fixation of the pay scale. THEy also raised the plea that the complaint should not be considered in the absence of Notice under Section 40 of the Housing Board Act, 1972. The District Forum after hearing both parties was of the opinion that the Forum had jurisdiction to entertain the matter. On a consideration of the merits of the complaint the Forum allowed the prayer of the petitioners.

Before the Commission the learned Advocate for the appellant strenuously argued that the petitioners not being ''Consumers'' as defined in the Consumer Protection Act, 1986, the dispute raised by them was not a Consumer Dispute and that the District Forum had no jurisdiction to decide the case.

THE points for consideration in this appeal are if the Calcutta District Forum had jurisdiction to decide the case and if so, if the decision of the Forum is correct. The long title of the Consumer Protection Act, 1986 shows that the Act was enacted to provide for better protection of the interests of the consumers and other authorities for the settlement of consumer disputes. Now, a consumer dispute has been defined under Section 2(1)(e) as follows- "''consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegation contained in the complaint. 1. The word "complaint" has been defined under Section 2(1)(c) of the Act as follows:- "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: (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; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods with a view to obtaining any relief provided by or under this Act; (v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.

The definition of the consumer as given under Section 2(1)(d) is as follows:- "consumer" means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid any 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 an partly promised, or under any system of deferred payment and includes and 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 payment, when such services are availed of with the approval of the first mentioned person; "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 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.

NOW, basing of the above key definitions in the Consumer Protection Act we are to consider if the complainants were consumers and if there was any deficiency in service rendered by the West Bengal Housing Board to them. From the definition of "consumer" it will be seen that the consumer is a person who buys any goods for consideration or hires or avails of any service for consideration. In this case the respondents are not concerned with any buying of goods and, therefore, clause (ii) of Section 2(1)(d) is attracted to them i.e. they claim to be consumers on the basis of hiring of service from the Board. But is this claim true? The complainants are employees of the West Bengal Housing Board and they draw salary from the Board on the basis of rules governed by the West Bengal Housing Board Act. There arises no question of hiring or availing of any service for consideration so far as the complainants are concerned. This, however, does not mean that the West Bengal Housing Board or for that matter any Housing or similar Board cannot give any service under the purview of the Consumer Protection Act, 1986. In U.P. Avas Evam Vikas Parishad (Housing & Development Board) v. Garima Sukla & Ors., reported in I (1991) CPJ 1 (NC)=1991 (2) Consumer Protection Reporter 140, it has been held by the National Commission that the Housing & Development Board being engaged in serving public in the matter of providing housing by acquisition of land, development of sites, construction of house thereof etc. the Board is clearly engaged in rendering service for a consideration to the public. Those who are allotted houses from the Board are clearly consumers falling within the definition in Section 2(1)(d)(ii) of the Act. It has been further held by the National Commission in the said case that the type of service which the Board renders to the public is covered by Section 2(1)(o). Thus it is found that the Housing Board in relation to its activities may be said to be rendering service to the public for consideration and in that case the members of the public are consumers. But in the instant case is the Board rendering any service to its employees so as to attract the provisions of the Consumer Protection Act? The answer is clearly No. Section 2(1)(d)(ii) provides that a consumer means any person who hires or avails of any service for a consideration which has been paid or promised. So hiring or availing of any service by a consumer must be for a consideration and unless such consideration is paid a consumer cannot get benefits of the Consumer Protection Act. In the instant case the complainants before the District Forum are employees of the Housing Board. Can they by any stretch of imagination be said to be hiring the services of the Board for a consideration. In fact there arises no question of hiring the services of an employer by the employees. The District Forum while describing the end and object of the Consumer Protection Act has stated as follows in its order. "The aim and object of the Consumer Protection Act, 1986 are to give relief to the affected persons who have suffered loss and injury due to the dereliction of duties not to speak of default and laches on the part of the either side. When anybody comes before the Forum seeking redressal of his grievances which is caused due to the sheer negligence and unmindful attitude on the part of other side than this Forum comes before him as a boon to save him and to mitigate justice to him. This very intention has been reflected in Section 9 of the Code of Civil Procedure. This is thus a sheer case where the opposite parties themselves have taken themselves out of the relevant laws governing them and pushed the petitioners to the Forum by reckless non-application of mind against public policy and principles of equity and fair play."

OBVIOUSLY the Forum has shown a compassionate attitude to the employees of the Board holding the view that they have been deprived of their due share in the revised scales of pay on account of the action of the Govt. If the complainants are actually entitled to the scale of pay as claimed by them, certainly they have genuine ground for agitating their right and we think that their point can be successfully agitated before a proper Forum. But so far as the present Consumer Disputes Redressal Forum is concerned we do not think that the said Forum has any right to allow benefits claimed by them. In Consumer Unity & Trust Society, Jaipur v. State of Rajasthan & Others reported in II (1991) CPJ 56=1991 (2) CPR 241. The National Commission had discussed in details whether a person who goes to receive medical treatment in a Govt. Hospital is a consumer as defined in Section 2(1)(d) of the Act. The said Commission has answered the question in the negative. In course of the judgment in the said case the Commission also discussed whether the direct and indirect taxes paid to the State by the citizens constitute consideration for the services and facility provided to a citizen by the State. Citing the decisions of the Supreme Court the Commission held that a taxation is a compulsory extraction of money by public authority for public purposes enforceable by law and not payment for service rendered. Judging from this point of view also it cannot be said that a Govt, employee or for that matter an employee receiving salary from the consolidated Fund of the State can be said to be a consumer.

LASTLY the relief claimed by the complainants before the Forum involves the setting aside of Govt. Order or otherwise refusing its operation which is not within the competence of the District Forum. If any higher scale of pay is to be given to any section of the employees in modification of the Statutory Rules, this can be done only by a proper Forum and there is no doubt that the District Forum in this case is not such a proper Forum. For the above reasons we think that the respondents-complainants in this case being not consumers as defined in the Consumer Protection Act are not entitled to the benefits granted to them by the Forum. The impugned order passed by the Calcutta District Forum is therefore, liable to be set-aside. In the result this appeal succeeds. The appeal is allowed and the order dated 14.10.1993 passed by the Calcutta District Forum in Case No. 1258 of 1993 is set-aside. There will be no order for cost in this appeal. Appeal allowed.