DR. JAGMITTAR SAIN BHAGATversusDIR. HEALTH SERVICES, HARYANA & ORS.

                     [2013] 8 S.C.R. 77


              DR. JAGMITTAR SAIN BHAGAT                          A
                              v.
       DIR. HEALTH SERVICES, HARYANA & ORS.
             (Civil Appeal No. 5476 of 2013)
                       JULY 11, 2013                             B
       [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

     Consumer Protection Act, 1986 - ss. 2 and 11 - Forum
under the Act - Jurisdiction of, to deal with the service matters
of government servants -Held: A government servant cannot C
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
u/s.2(1)(d)(ii) of the Act - Such government servant is entitled D
to claim his retiral benefits strictly in accordance with his
service conditions and regulations or statutory rules framed
for that purpose - 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.           E

       Morgan Stanley Mutual Fund v. Kartick Das (1994) 4
  SCC 225: 1994 (1) Suppl. SCR 136; Secretary, Board of
  Secondary Education, Orissa v. Santosh Kumar Sahoo &
. Anr. AIR 2010 SC 3553: 2010 (8) SCC 353; Bihar School F
  Examination Board v. Suresh Prasad Sinha AIR 2010 SC
  93: 2009 (8) SCC 483; Maharshi Dayanand University v.
  Surjeet Kaur (2010) 11 SCC 159: 2010 (8) SCR 475 and
  Regional Provident Fund Commissioner v. Bhavani AIR 2008
  SC 2957: 2008 (6) SCR 767 - referred to.
                                                                 G
      Jurisdiction - Conferment of - Held: Is a legislative
 function and it can neither be conferred with the consent of
 the parties nor by a superior Court - If the Court passes a

                              77                                 H
78       SUPREME COURT REPORTS                 (2013] 8 S.C.R.


decree having no jurisdiction over the matter, it would amount
to nullity as the matter goes to the roots of the cause.

       United Commercial Bank Ltd. v. Their Workmen AIR
 1951 SC 230: 1951 SCR 380; Smt. Nai Bahu v. Lal
 Ramnarayan & Ors. AIR 1978 SC 22: 1978 (1) SCR 723;
 Natraj Studios (P) Ltd. v. Navrang Studios & Anr. AIR 1981
 SC 537: 1981 (2) SCR 466; Kondiba Dagadu Kadam v.
  Savitribai Sopan Gujar & Ors. AIR 1999 SC 2213: 1999 (2)
 SCR 728; Sushi/ Kumar Mehta v. Gobind Ram Bohra (Dead)
  Thr. Lrs. (1990) 1 SCC 193: 1989 (2) Suppl. SCR 149;
  Setruchar/u Ramabhadra Raju Bahadur v. Maharaja of
 Jeypor, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar
  Chimanlal Barot & Anr. AIR 1996 SC 2664: 1996 (4) Suppl.
 SCR 279; Harshad Chiman Lal Modi v. D.L.F. Universal Ltd.
. & Anr. AIR 2005 SC 4446: 2005 (3) Suppl. SCR 495 and
  Carona Ltd. v. Mis. Parvathy Swaminathan & Sons AIR 2008
  SC 187: 2007 (10) SCR 656 - relied on.

     Premier Automobiles Ltd. v. K.S. Wadke & Ors. (1976)
1 SCC 496: 1976 (1) SCR 427; Kiran Singh v. Chaman
Paswan AIR 1954 SC 340: 1955 SCR 117; Chandrika Misir
& Anr. v. Bhaiyala, AIR 1973 SC 2391: 1974 (1) SCR 290 -
referred to.
                     Case Law Reference:
     1951 SCR 380                relied on           Para 7
     1978 (1) SCR 723            relied on           Para 7
     1981 (2) SCR 466            relied on           Para 7
     1999 (2) SCR 728            relied on           Para 7
     1989 (2) Suppl. SCR 149 relied on               Para 7
     1976 (1) SCR 427            referred to         Para 8
     1955 SCR 117                referred to         Para 8
      DR. JAGMITTAR SAIN BHAGAT v. DIR. HEALTH                  79
                 SERVICES, HARYANA
        1974 (1) SCR 290             referred to       Para 8        A
        AIR 1919 PC 150              relied on         Para 9
        1996 (4) Suppl. SCR 279 relied on              Para 9
        2005 (3) Suppl. SCR 495 relied on              Para 9        B
        2007 (10) SCR 656            relied on         Para 9
        1994 (1) Suppl. SCR 136 referred to            Para 12
        201 o (8) sec 353            referred to         Para 13
                                                                     c
        2009 (8) sec 483             referred to         Para 14
        2010 (8) SCR 475             referred to         Para 14
        2008 (6) SCR 767             referred to         Para 15
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. D
    5476 of 2013.

         From the Judgment and Order dated 26.11.2009 of the
    National Consumers Disputes Redressal Commission, New
    Delhi in RP No.1156 of 2007, MA No. 291 & 450 of 2008.   E
        Dr. Jagmittar Sain Bhagat (Petitioner-In-Person), Prateesh
    Kapur (A.C.) for the Appellants.

        Narendra Hooda, Sr. AAG, Dr. Monika Gusain for ihe
    Respondents.                                                     F

        The following Order of the Court was delivered
                               ORDER
        1. Leave granted.                                            G

        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 H
    80       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A   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.
B
         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
C   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
D   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.

E        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.
F   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
G   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
H   fact that the opposite party (State) neither raised the issue of    ,
   DR. JAGMITTAR SAIN BHAGAT v. DIR. HEALTH                    81
              SERVICES, HARYANA
jurisdiction before the District Forum nor preferred any appeal,     A
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          B
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.
                                                                     c
      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,        D
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     E
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        F
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.                                              G

     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      H
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A 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
B 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
c  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
0
   Sopan Gujar & Ors., AIR 1999 SC 2213).

         8. In Sushi/ 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
E 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. Bhaiya/al, 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
F · 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."
G
         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;,
H "it is an objection going to the nullity of the order on the ground
   DR. JAGMITIAR SAIN BHAGAT v. DIR. HEALTH                    83
             SERVICES, HARYANA
of want of jurisdiction". Thus, for assumption of jurisdiction by    i
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             E
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. Mis. Parvathy Swaminathan & Sons, AIR 2008 SC
187).                                                                c
      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   C
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.
                                                                     E
     11. Section 2 of the Act which is a definition clause defines
the following as under:

     "2(b) '•complainant' means-

     (i) a consumer; or                                              F

     (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;           G

     (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           H
    84       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A        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
B        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
c        or availed of by him suffer from deficiency in any respect;

               xx                     xx                xx
         2(d) 'consumer' means any person who-
D
         (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
E        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

F        (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
G        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;
H
   DR. JAGMITTAR SAIN BHAGAT v. DIR. HEALTH                    85
              SERVICES, HARYANA
          xx                       xx               xx               A
    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
                                                                     8
    a contract or otherwise in relati.on 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       C
    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     D
    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   E
    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   F
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.
                                                                     G
    12. In Morgan Stanley Mutual Fund v. Kartick Das, (1994)
4 sec  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.          H
    86       SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A        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
B        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,
c        wholesaler and retailer.
               xx                     xx                xx
               Therefore, it is after allotment, rights may arise as
D        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 h.irer of the services of the company for a
         consideration. In order to satisfy the requirement of above
E
         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
F        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
G 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
H to consider the issue of maintainability of the complaint in a
   DR. JAGMITTAR SAIN BHAGAT v. DIR. HEALTH                     87
              SERVICES, HARYANA
correct perspective. Before the District Forum could go into the      A
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.                                  B

    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                   C
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              D
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
                                                                      E
    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
                                                                      F
    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               G
    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."                                  H
    88       SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A       (See also: Maharshi Dayanand University v. Surjeet
    Kaur, (201 O) 11 sec 159).

         15. In Regional Provident Fund Commissioner v.
    Bhavani, AIR 2008 SC 2957, this Court dealt with the issue
B   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
C   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 'masteF·· '/
    and servant'. The court held:

         "In our view, the respondent comes squarely within the
D        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
E        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
F   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
G   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.

H        17. In view of the above, we hold that the government
   DR. JAGMITTAR SAIN BHAGAT v. DIR. HEALTH                    89
             SERVICES, HARYANA
servant cannot approach any of the Forum under the Act for any        A
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         B
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.              c
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.

B.B.B.                                      Appeal disposed of.