National Consumer Disputes Redressal
Lt. Col. Retd. Haridas Mandal vs Bank Of India on 7 March, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 464 OF 2017 (Against the Order dated 27/01/2017 in Complaint No. 220/2015 of the State Commission Andhra Pradesh) 1. LT. COL. RETD. HARIDAS MANDAL FLAT NO. 401 USHODAYA APARTMENTS, S V COLONY RK PURAM, MALKAJGIRI, RANGA REDDY DIST, TELANGANA-500056 ...........Appellant(s) Versus 1. BANK OF INDIA REPRESENTED BY THE CHIEF MANAGER AUTHORISED SIGNATORY, R K PURAM BRANCH, PLOT NO. 4, OFFICEERS COLONY, R K PURAM, SECUNDERABAD, TELANGANA-500056 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : In person. For the Respondent : Mr. S. Pavan Nandan, Advocate.
Dated : 07 Mar 2019 ORDER Per Mrs. M. Shreesha, Member
Aggrieved by the order dated 27.01.2017 passed by the Telangana State Consumer Disputes Redressal Commission, Hyderabad, (for short "the State Commission") in CC No.220 of 2015 the Complainant has preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has dismissed the Complaint observing as follows:
"The Hon'ble Supreme Court, in the matter of Bihar School Examination Board vs. Suresh Prasad Sinha, reported in 2010 AIR (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 Board constituted under the Bihar School Examinations Board Act, 1952 and answered it in negative. In Regional Provident Fund Commissioner v. Bhavani, 2008 AIR (SC) 2957, the Hon'ble Supreme 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 in the case in the other appeals as well.' 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 of his grievance(sic), may be the State Administrative Tribunal, if any, or Civil Court but certainly not a forum under the Consumer Protection Act, 1986.
In view of the above decision, we hold that the government servant cannot approach this Commission for any of the retrial benefits. In view of the aforesaid discussions, we hold that the complainant herein is not a 'consumer' as defined under the Act and accordingly we answer the point No. 1 framed for consideration at paragraph No. 12, supra, against the Complainant and in favour of the Respondent bank."
2. The facts in brief are that the Complainant was serving in the Army and posted to 1-EME Centre Secunderabad since December 2007 and was to retire on 31.01.2009 from Secunderabad where he intended to settle post retirement. It was stated that the pension documents are sent ordinarily 18 months in advance starting with the receipt of retirement order. With only 14 months in hand pension documentation including Release Medical Board Proceedings was taken up expeditiously. It was averred that a retiring officer is required to opt to draw pension either from the nearest Defence Pension Disbursement Office (DPDO) under Principal Controller of Defence Accounts (Pension) Allahabad (PCDA) or to draw pension from any of PSU/Private Bank approved as Pension Disbursing Authority (PDA) Bank. It was stated that the Complainant opted to draw pension from PDA Bank and receive his salary from the Principal Controller of Defence Account (Officers) Pune till retirement. The Complainant has chosen Bank of India in Ramakrsihnapuram Branch Secunderabad where a single Savings Bank Account No.860410110002547 was opened with effect from 05.05.2008. Monthly salary being credited to another account in another Bank started being credited to the Pension Account from the month of September 2008 till January 2009. It was stated that the Complainant retired from the Army on 31.01.2009 and he was issued with a new Identity Card and original pensioner copy of PPO No. M/003011/2009 dated 09.02.2009 for non-formal pension. The PDA Bank also confirmed receipt of their original PDO's Copy against which payments could be credited to his pension account. The PDA bank based on the PDO-1 made a payment of ₹11,85,783/- as 'DCRG/Gratuity' and another ₹14587/- as 'monthly pension for the month of February 2009' on 13.03.2009 and endorsed on the original PDO-1 itself. It continued to pay monthly pension and pension arrears as applicable as per PDO-1 to its pension account. On 02.04.2009 it credited a sum of ₹8,77,957/- as pension March 2009 but recovered a sum of ₹8,63,370/- as pension excess paid on 02.04.2009. It was pleaded that the PDA Bank needed no sanction to invoke Banker's lien to recover excess/wrong payment as there was sufficient balance in his pension account. While so a sum of ₹90,000/- was taken from the complainant's pension account on 01/02 January 2010 to 5 beneficiary account with branches of Bank of India at Mumbai and Surat. It was detected by PDA Head Office at Mumbai which blocked Pension account immediately but did not block the beneficiary account. With IP address of the hackers and account numbers of the beneficiaries already established PDA Bank assured the complainant of recovery of his ₹90,000/- in a few days. He was also advised to open a second Savings Bank Account. Thus account bearing No. 860410110003973 in the same PDO (Second AC) with internet facility was opened for his routine use. It was being operated since 15.02.2010. On receipt of the fresh PPOs, the PDA Bank made payments of ₹13,68,265/- on 08.03.2010 as 'DIFF CPV/GRATUITY' against PDO-2 and a sum of ₹2,83,139/- on 10.03.2010 as 'CPV DISABILITY' against PDO-3. It was further pleaded that the PDA Bank did not return the hacked amount of ₹90,000/-. A Complaint was lodged to the Banking Ombudsman Hyderabad(BO) but PDA retracted and claimed them as valid internet transfer before the BO. It was upheld by BO on 05.07.2010. PDA Bank in their letter dated 01.08.2013 had claimed that the sum of ₹13,68,265/- paid on 08.03.2010 in Second AC against PDO-2 was a double payment as a sum of ₹11,85,783/- was already paid in his Pension AC on 13.03.2009 against PDO-1. But from the PDOs, it can be seen that they were two different entitlements and hence was not a double payment. Similarly, a sum of ₹2,61,697/- which was paid in his Second AC on 11.05.2010 as 'BP & Disability Arrears' was mixed up as a double payment as an amount of ₹2,83,139/- was paid as "CPV Disability" against PDO-3. Thus there was no twice payment/excess payment as claimed by them vide letter dated 01.08.2013. It was further pleaded that despite such glairing anomalies the PDA Bank claimed twice payments of ₹15,23,010/- due to 'Phishing Attack'. As there was no sufficient balance in Pension AC as well as in Second AC it, in the same letter, asked the Complainant to pay back the amount with interest. By 06.08.2013, PDA Bank even got an approval from its Controlling Officer/ZO to invoke Banker's Lien to appropriate the deposits held in the name of the Complainant. Having left with no option the Complainant informed PCDA on 19.08.2013 to redress his grievance as the PDA was not forthcoming and the Complainant was not in possession of all the PPOs issued by PCDA. His request, to PDA bank to unblock the DBDs till PCDA decides the issue, fell on the deaf ears. PDA Bank paid a sum of ₹1,17,890/- against PPO-4 as Pension Arrear on 31.08.2013. On 03.09.2013 it warned the Complainant that his DBDs valued at ₹18,60,955/- would be closed prematurely to recover and remit to the concerned Department of Government of India. In response PCDA vide its letter dated 24.09.2013 asked the PDA Bank to furnish all details on twice payments made to the Complainant. However, in the meantime PDA bank recovered a sum of ₹19,368/- and ₹9,870/- on 04.10.2013 and 08.10.2013 respectively as "Recovery of Excess Arrears paid on 31.08.2013" and thereafter instead of furnishing details of overpayment to PCDA, the PDA Bank actually foreclosed all the eight DBDs on 11.10.2013. In fact PDA Bank not only foreclosed but even manipulated each and every deposited amount of the eight DBDs reducing it to a total of ₹15,58,098/- i.e. a reduction of ₹2,97,003/- and inflated the interest amount from ₹1,82,602/- to Rs. 3,84,744/- i.e. an increase of ₹2,02,142/-. PDA Bank then deposited ₹15,58,098/- towards DBD Closure Proceeds to Pension AC. It then recovered a sum of ₹15,23,010/- from his Pension AC to their CPPC Br. AC Nagpur while retaining inflated interest component of ₹3,84,744/- in its undisclosed office account. Complainant had approached the BO online requesting them to direct the PDA Bank to restore the status of DBDs marked Lien. However, his Complaint was registered by PDA Bank's Nodal Officer on 15.10.2013 i.e. only after DBDs were foreclosed and appropriated on 11.10.2013. BO ultimately closed the Complaint of Complainant on the affidavit furnished by the PDA bank without giving an opportunity to the Complainant to rebut the same or affording an opportunity of personal hearing. It was further pleaded that PCDA issued a mere reminder to PDA Bank to furnish details oblivious of the fact that the PDA Bank had already appropriated closure proceeds of his DBDs on 11.10.2013. Armed Forces Tribunal, Chennai dismissed the matter as it found the same prima facie not a "service matter" but strictly a consumer complaint. That PDA Bank paid ₹8,77,957/- on 02.04.2009 and recovered ₹8,63,370/- from the Pension AC as excess/wrong payment. It also paid ₹1,17,890/- on 31.08.2013 but recovered a sum of ₹19,368/- and ₹9870/- in October, 2013 being excess/wrong payment in his pension account. In both cases, sufficient credit was available when detected. PDA Bank chose to recover the amount foreclosing all his eight DBDs. The PDA Bank did not deposit the interest component of ₹3,84,744/- to either Pension AC or Second AC but to their own undisclosed office account on the ground that the same was retained to meet any demand of interest from PCDA despite the fact that PCDA as per AFT order had not asked for any recovery from the Complainant at all. It categorically denied having made any demand of interest. There is no record to confirm that the PDA Bank has actually returned recovered amounts.
3. The Bank filed their Written Version stating that the amount of ₹13,68,265/- was made based on the Corrigendum PPO No.M/CORR/014747/2009 comprising of difference in Gratuity and capitalized value of pension. This amount was paid twice one on 29.09.2009 by the Hyderabad Main Branch to the account bearing No.860410110002547 and another on 08.03.2010 by Ramarksihnapuram branch to the account bearing No.860410110003973 both standing in the name of the Complainant. It was stated that there was no wrong/excess payment to a tune of ₹2,61,697/- on account of disability pension arrears and the same was also certified by a Chartered Accountant. It was further averred that the PCDA, the pension authority has called for the records and the same was submitted by the Bank. The PCDA vide their letter dated 16.07.2014 has upheld the action of the Bank in exercising the Bankers general lien against the deposits for recovering the excess paid amount; PCDA stated in his letter addressed to the Complainant that the recovery action taken by the PDA was correct as double payment paid made erroneously to the SB account by the PDA. The amount enjoyed by the Complainant is Bank/public funds and thereby Bank can recover the amount by exercising the right of general lien available to the banker. The Complainant approached Banking Ombudsman against the action of the Bank in recovering the amounts from the deposits and Banking Ombudsman upheld the action of the Bank and dismissed the Petition. Aggrieved by the said order, the Complainant has preferred Appeal before the Appellate Authority/Deputy Governor, RBI; that the Complainant had already executed an undertaking in favour of the Bank to recover the excess/wrong payment from any of his account/deposit; the undertaking letter to recover the amount was executed by the Complainant based on the Rules governing Pension Rules and the execution of the same was also mentioned in the letter dated 16.07.2014 of the Pension Authority; that there was no excess recovery of any amount form the Complainant and the same is supported by the documentary evidence and therefore no deficiency of service on their behalf.
4. It is the main case of the Appellant/Complainant that he was informed by the Bank in August 2013 that the pension payments were made twice to his savings account to the tune of ₹15,23,021/- in March 2010; that it was attributed to some phishing attacks; that the Appellant had approached the Bank seeking information which was never provided; that the Appellant approached PCDA Allahabad to furnish the dues statement along with all the PPOs issued to him and that he did not receive the Corrigendum PPOs either from the Bank or from the PCDA; that the Bank foreclosed FDR valued at ₹19 lakhs on their own and appropriated complete amount against alleged twice payments made in March 2010; the PCDA Allahabad had given the PPO subsequently after correspondence under RTI; that PDA did not comply with para 103 of DEFPPI 2005/2013 and PCDA shifting the responsibilities to the PDA bank who has violated the DEFPPI instructions. The Appellant vehemently argued that he had served the Indian Army and the Bank unilaterally cannot exercise its lien over the FDR as the amounts were pensionary benefits and that the Bank has no right to exercise such lien.
5. The Learned Counsel appearing for the Bank vehemently argued that the Complainant was not a 'Consumer' and that Section 60(1) of CPC is not applicable to the Complainant; that there was no deficiency of service on behalf of the Bank as undertaking was executed in favour of the Bank to recover the excess/wrong payments and that these amounts converted into FDRs and that Appellant has been enjoying the same from 2009 to 2013. He further submitted in his written arguments that para 103.2 DPPI 2005 does not apply to the Appellant's case in the light of the undertaking executed by him and therefore the question of recovering 1/3 of the amount does not arise. Learned Counsel placed reliance on the letter issued by Sr.Accounts Officer, Chief Allahabad dated 16.07.2014. The same is reproduced as hereunder:
"...the recovery action taken by PDA is absolutely correct. It is pertinent to mention that the double payment made erroneously to your SB account by the PDA should have been informed by you yourself as you are a group 'A' retired officer and it is your responsibility to intimate any overpayment made erroneously by PDA to you and remit the same at once at our end but you did not do so."
Further Para 103 of DPPI, 2005 is not applicable in your case. The overpayment made erroneously by the PDA will be recovered directly at PDA end, as you have already furnished an Undertaking to the PDA that any excess payment made to you will be recovered by them directly."
6. The undertaking given by the Complainant to the respondent Bank marked as Ex.OP1 is also reproduced has hereunder:-
"I, the undersigned, agree and undertake to refund or make good any amount to which I am not entitled or any amount to which I am or would be entitled. I further hereby undertake and agree to bind myself and my heirs, successors, executors and administrators to indemnify the bank from and against any loss, suffered or incurred by the bank in so crediting my pension to my account under the scheme and to forthwith pay the same to the bank and also irrevocably authorise the bank to recover the amount due by debit to my said account or any other account/deposits belonging to me in the possession of the bank."
7. Be that as it may, the State Commission has dismissed the Complaint on the ground that the Appellant is not a 'Consumer'. We are of the considered view that the point for consideration in this Complaint is not whether there was any deficiency of service in fixation of the quantum of pension, instead it is only with respect to the role of Bank in exercising general lien over the FDRs which were the amounts from the pensionary benefits and if the procedure followed by the Bank was in accordance with law keeping in view the ratio laid down by the Hon'ble Apex court with respect to proviso(g) of Section 60(1) of the Civil Procedure Code, 1908. We are of the view that the Complainant is a "Consumer" and falls within definition of Consumer as defined u/s 2(1)(d) of the Act.
8. Keeping in view the documents on record, we are of the considered view that this Complaint deals with the allegation of deficiency of service against the Bank regarding Pensionary Benefits and we find it a fit case to place reliance on the recent judgement of this Commission dated 29.01.2019 in RP No. 2840/2018 State Bank of India & Ors. Vs. Smt. Manika Sarkar and Yash Paul Ahuja Vs. Punjab National Bank & Anr. I (2016) CPJ 23 (NC) wherein this Commission had dealt with the pensionary benefits versus deficiency of service in a Bank and held that they were 'Consumers' as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. This Appeal is allowed and the order of the State Commission is set aside and the matter is remanded back to the State Commission to decide the same on merits after taking into consideration the documents on record, expeditiously within six months from the date of first appearance of both parties. Both parties shall appear before the State Commission on 25.03.2019.
9. It is clarified that we have not expressed any view on the merits of the case.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER