State Consumer Disputes Redressal Commission
President, Rajashri Shahu Govt. ... vs Anant Gajanan Deshpande on 21 August, 2024
A/21/461
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/21/461
(Arisen out of order dated 29/01/2021 in Complaint No.102 of 2018 passed by
the District Commission, Kolhapur)
1. President,
Rajashri Shahu Government Servants Co.op.
Bank Ltd.,
Head Office, 746, E Ward, Shahupuri,
3rd Lane, Kolhapur.
2. Chief Executive Officer,
Rajashri Shahu Government Servants Co.op.
Bank Ltd.,
Head Office, 746, E Ward, Shahupuri,
3rd Lane, Kolhapur. ....... Appellant(s)
Versus
1. Shri Anant Gajanan Deshpande,
R/o. Block No.88, Salokhe Nagar,
Kalamba Road, Kolhapur. .........Respondent(s)
BEFORE:
Justice S.P.Tavade - President
Vijay C. Premchandani - Member
For the Appellant(s) : Advocate A.D. Patil
For the Respondent(s): Advocate Umesh J. Desai
ORDER
(21/08/2024)
1
A/21/461
Per Hon'ble Mr. Vijay C. Premchandani - Member:
(1) Appellant has filed present appeal against the order dated 29th January, 2021 passed by the District Consumer Disputes Redressal Commission, Kolhapur in Complaint No.102 of 2018.
(2) Facts of the original case are as under:
a) The Appellants/original opponents state that the Original Complaint was filed by the Original Complainant which is registered as Consumer complaint No.102 of 2018 before the Learned District Consumer forum, at Kolhapur, wherein the Learned District Consumer Forum pl3ased to allow the complaint partly in favour of the Original Complainant and directed to the Appellant Bank to pay the amount of Rs.3,12,021/- with 7% interest which was withdrawn from the account of the Original Complainant and also pay the amount of Rs.32,186/- and further directed to pay Rs.5,000/- for the mental agony and pay Rs.3,000/-
as cost of the proceedings. The order of the Learned District Consumer forum passed in consumer complaint No.102/2018 annexed herewith and marked as "Exhibit A".
b) That one Mr.Anant Gajanan Deshpande was an employee of the bank. And he tendered his resignation and relieved from the services of the bank from the date of 31/07/2017. That after retirement the amount of service benefits was deposited in the account of the original complainant. That one Mr.Santosh Kore was an employee of the bank wherein 2 A/21/461 he had taken personal loan and the original complainant was guarantor for that loan. That there was arrears of that loan and the bank filed co-operative dispute against Mr.Kore and against original complainant and against the other guarantor as they were defaulter. That the dispute was decided in favour of the bank. That the bank filed recovery proceedings against Mr.Kore, against original complainant and against the other guarantor. That the recovery officer following due process of law and process laid down in section 107 of Maharashtra Co-operative Societies Act, 1960, attached the amount from the account of original complainant and other guarantor and deposited the said amount in the account of the appellant bank. That the original complainant failed to made grievance against recovery proceedings and filed revision application before the appellate authority prescribed under the MCS Act. Hence, it is crystal clear that, the original complainant was satisfied with the order passed by the recovery officer.
c) That the original complainant filed the complaint against withdrawal the amount from the personal account. It was case of the original opponent was that, the recovery of the amount was made by the authority of the Co-operative Department as per Section 107 of the MCS Act, 1960. That the original complainant made argument that, the amount of gratuity cannot be attached and the bank attached the amount of the gratuity and the said amount be paid to him. That the defense of the original complainant was that the 3 A/21/461 said defense was taken against the pleadings of the complainant. That the original Complainant was defaulter and the recovery officer recovered the amount through the personal account of the original complainant by following due process of law.
d) That it is submission of the original opponent is that, if rely upon the defense of the original complainant, then also the said defense is not reliable for the reason that, that as per the pleadings at para No.5 of the original complaint, the original complainant had received the amount of Rs.2,68,822/- on 02/11/2017 as the amount of leave salary and on 17/11/2017 he had received the amount of Rs.7,94,365/- as amount of gratuity and it is deposited in his personal account maintained in the appellant bank. That it means the amount of gratuity and amount of leave salary if tallied then the total figure of the amount will be of Rs.10,63,187/-. That the recovery officer recovered the amount of Rs.3,12,021/- only. That if gone through the observations made by the Learned District Consumer Forum, the Learned District Consumer Forum the observation that, the amount of gratuity cannot be attached without permission of the employee. That the complaint of the complaint is only of the amount of Rs.3,12,021/- which was withdrawn from the account of the original complainant and it is submission of the original opponent is that if the amount of Rs.2,68,882/- curtailed from the total figure of the amount which was received as payment of 4 A/21/461 leave salary and the amount of gratuity, the only amount of Rs.43,199/- is remained. Means the recovery officer recovered the amount of Rs.43,199/- from the account. But while deciding the application the Learned District Consumer Forum failed to considered the factual aspects of the case. That the total approach of the Learned District consumer Forum is against the original opponents.
(3) The appellant has prayed that the impugned order passed by the District Consumer Commission may be set aside and the original Consumer Complaint 102 of 2018 may be dismissed with costs.
(4) The appeal was admitted and notice was issued to the respondent i.e. original complainants. The original complainant appeared and filed written notes of arguments.
(5) The Respondent submitted in written notes of arguments that on 31st July, 2017 the respondent was forced to resign from the post of Branch Manager. Therefore, the relationship between the appellant and the respondent has come to an end as owner and employee and the relationship between the appellant and respondent has become 'Consumer' as defined under the provisions of the Consumer Protection Act, 1986. The respondent further contended that as on 17/11/2017 there was balance amount of Rs.10,63,247/- in his Saving Bank Account No.004001003951. The appellant had without informing to the present respondent illegally withdrawn the said amount. The SMS service has also been closed. The respondent has moved an application to the appellant for getting back amount i.e. Rs.3,12,021/-. The same has 5 A/21/461 not been given back since the said amount was included in salary of respondent as well as gratuity amount. The respondent has stood as guarantor for Shri Santosh Kore. The appellant bank was pressuring to stay as guarantor, therefore, he signed as guarantor for the loan taken by Santosh Kore. The aforesaid person has not cleared the earlier loan, in spite of that fresh loan was sanctioned, which is against the rules and regulations of the Co-operative Society. Therefore, the Registrar has been informed for the said fact and as on 26/04/2018 the said loan given to Santosh Kore was declared illegal. The respondent further contended that the appellant has illegally withdrawn the amount from the respondent's Savings Bank Account of respondent in the garb of recovery of loan amount of Santosh Kore. Since loan amount has been declared illegal, the recovery made by the appellant from the respondent amounts to deficiency in service and the appellant does not have authority to recover any amount pertaining to the gratuity received by the respondent/complainant. Hence, the order passed by the District Consumer Commission is proper and legal. Therefore, respondent prayed that the present appeal may be dismissed with costs.
(6) Pursuant to that the appellant has also filed written notes of arguments and the same contention has been made as made in the appeal memo. It is further contended that the District Consumer Commission does not have jurisdiction to entertain the complaint or grievances pertaining to the proceedings u/sec 101 of the Maharashtra Co-operative Societies Act. It is further contended that the respondent failed to file Revision Application u/sec 154 6 A/21/461 of the Maharashtra Co-operative Societies Act before the Joint Registrar. Hence, the liability of respondent has been accepted and accordingly, the amount has been recovered pursuant to the order passed U/sec 101 (1) and (2) of the Maharashtra Co- operative Societies Act. Hence, the impugned order passed by the District Consumer Commission is not proper and erred by directing the appellant to pay to the respondent.
(7) Perused the appeal, written notes of arguments filed by both the parties, citations placed on record. It is admitted fact that the respondent has stood as guarantor for Santosh Kore. It is also admitted fact that as per order passed by the Registrar of Co- operative Societies u/sec 101 Sub section (1) and (2) action has been taken by the appellant bank and seized the account of the respondent i.e. original complainant having the status of the guarantor. It is admitted fact that the respondent has received the amount deposited in the Savings Bank Account in two instalments, one as on 2nd November, 2017 in lieu of salary and another amount received by him on 17th November, 2017 Rs.7,93,965/- in lieu of the gratuity. It is also admitted fact that the appellant has withdrawn the total salary amount of Rs.2,68,882/- and in addition to that amount of Rs.43,199/- has been withdrawn from the amount of gratuity received by the respondent. It is admitted fact that the recovery proceeding is in pursuance to the order u/sec 101 (1) and (2) of the Maharashtra Co-operative Societies Act and thereby the amount has been recovered. We simultaneously perused the provisions of Section 13 of the Payment of Gratuity Act, "No gratuity payable under this Act and 7 A/21/461 no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court". In spite of that amount of Rs.43,199/- has been deducted from his account without informing to him that amounts to deficiency in service. We simultaneously agree with the appellant's contention that while passing final order, the District Consumer Commission has not considered the fact that the only amount of Rs.43,199/- from the gratuity amount has been recovered. Hence, the District Consumer Commission has erred in passing the final order.
(8) Citations referred by the appellant in support of appeal will not be applicable to the facts of the present appeal. Therefore, we are inclined to pass the following order:
ORDER
(i) Appeal is partly allowed.
(ii) The original order dated 29/01/2021 in Complaint No.102 of 2018 passed by the District Consumer Commission has been modified as under:
a) The appellants/original opponents are jointly and severally directed to pay Rs.43,199/- with interest @7% per annum till 8 A/21/461 the amount has been realised from the date of deduction of the amount.
b) The appellants/original opponents are jointly and severally directed to pay compensation of Rs.10,000/- and Rs.5,000/-
towards costs of litigation to the respondent/complainant.
c) Copies of the order be furnished to the parties.
[Justice S.P. Tavade] President [Vijay C. Premchandani] Member emp 9