State Consumer Disputes Redressal Commission
Devendra Shadangi vs The Chairman & Managing Director Dena ... on 11 May, 2016
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/02
Instituted on : 27.01.2016
Devendra Shadangi,
S/o Late Shri Mandan Mohan Shadangi,
B-10, Kanchan Ganga Estate, Phase - 1,
Near D.D.U. Housing Board Colony,
P.O.: R.S.U. Raipur (C.G.).
Through representative : Satish C. Sharma, Advocate,
B-83, Dena Apartments, Plot No.36,
Sector - 13, Rohini,
Delhi - 110085 ... Appellant.
Vs.
1. The Chairman and Managing Director,
Dena Bank, Dena Corporate Centre,
C-10, Block - G, Bandra Kurla Complex,
Bandra, East, Mumbai - 400051
2. The Incharge/Secretary,
Dena Bank, Pension/P.F. & Gratuity Department,
Sharda Bhawan, First Floor, Opposite Mithibai College,
V.M. Marg, J.V.P.D. Scheme Parle West,
Mumbai - 400056
Present Address : P.F./G.F. / Pension Department,
Dena Bank, Horniman Circle,
Mumbai - 400054
3. The Regional Authority,
Dena Bank Regional Office,
Life Insurance Corporation Building No.02, Pandri,
Raipur (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Rajesh Pandey, for the appellant.
Shri Bhupendra Jain, for the respondents.
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ORDER
Dated : 11/05/2016 PER :- HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT. This appeal is directed against the order dated 15.12.2015, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Complaint Case No.457/2013. By the impugned order, the learned District Forum has dismissed the complaint filed by the appellant (complainant).
2. Briefly stated, the facts of the complaint of the appellant (complainant) are that the appellant (complainant) joined the respondents (OPs) on 27.07.1985 and was retired on 23.01.2009 by way of dismissed order before attaining the age of superannuation under the garb of non-recovery of advances to the wilful defaulters because of the undue favourism so such defaulters which has become universal truth in public in general and because of such undue favour of such defaulters by the executives of the Bank, at the instance of grave concern and protest of Bank employees and officers in a voice, the Government became compelled to set up separate tribunals for the recovery of public money from such wilful defaulters known as Debt Recovery Tribunals. The appellant (complainant) was victimized in the name of departmental action and his service was terminated with effect from 23.01.2009 along with another officer for non recovery of approx Rs.875.80 lacs without ascertaining the exact damage or loss of // 3 // each and every aforesaid different officer employee through their individual commission and omission of total amount of approx Rs.875.80 lacs. The service of the appellant (complainant) was terminated in one line punishment "Dismissal from the service of the Bank without notice and with immediate effect which shall ordinarily be a disqualification for future employment". The employer did not give any other consequential effect with the said punishment. No damage or loss was mentioned in the said order of punishment dated 23.01.2009. The respondents (OPs) were liable to pay the Contributory Provident Fund (C.P.F.) within 30 days from the date of termination/retirement of the services of the appellant (complainant), being the member of beneficiary scheme to the employees of C.P.F. running by the respondents (OPs) Bank. The respondents (OPs) did not pay the amount of Rs.6,09,117.54 (last available statement with the appellant - complainant) and further interest thereupon from 01.10.2008 onwards along with the deductions made upto 23.01.2009 to the appellant (complainant), but all efforts in this regard of the appellant (complainant) have gone vain. That on behalf of the appellant (complainant) a legal notice was sent to all the respondents (OPs) on 01.07.2013, but they did not bother to even send the reply for the same. The respondent No.2 (O.P.No.2), from time to time sent periodical statement of account of Provident Fund upto September, 2008. The respondents (OPs) have neither made payment of even own // 4 // contribution of the appellant (complainant) on 23.01.2009 on account of termination/dismissal of the service of the appellant (complainant) nor paid the amount of C.P.F. on his retirement on 23.01.2009, of Rs.6,09,117.54 (as of 30.09.2008) plus interest there upon prevailing upon the Provident Fund @ 8.50% p.a. since 01.10.2008, till the actual date of payment. That the Dena Bank Employees Provident Fund Rules have the statutory force which is approved under Income Tax Act also. The respondents (OPs) get the benefit of deduction in Income Tax over the contribution made to the individual account of the contributor - appellant (complainant). The Contributory Provident Fund Scheme in respondents (OPs) approved under Income Tax Act, is also approved under the provisions of The Employees Provident Fund and Miscellaneous Provisions Act, 1952. The respondents (OPs) are liable for deficiency in service for non-payment to the appellant (complainant) on his retirement i.e. 23.01.2009. That on account of dereliction of duty and negligence on the part of the respondents (OPs), the appellant (complainant) suffered mental loss and injury to due harassment and agony for which he is entitled to compensation and refund of Contributory Provident Fund with penal interest. Hence the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in relief clause of the complaint.
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3. The respondents (OPs) filed their written statement and averred that as per provisions of the Consumer Protection Act, 1986 prima facie the complaint is not maintainable and is liable to be dismissed. As per provisions of Section 2(1)(d) of the Consumer Protection Act, 1986 the appellant (complainant) does not come in the category of consumer because the appellant (complainant) was working as employee / officer in the respondents (OPs) Bank and relationship between them was of employer and employee. Thus, as per provisions of the Consumer Protection Act, the dispute between the employee and employee does not come in the category of consumer dispute and the complaint is barred by time, therefore, prima facie the complaint is not maintainable before the District Forum. The appellant (complainant) was employee / officer in the respondents (OPs) Bank and for the Scheme (Dena Bank Employees Provident Fund Rule) he was deposited amount and the respondents (OPs) Bank was also depositing its share as per Bank rules and terms , which was paid to the employee as per rules of the scheme after retirement, but the appellant (complainant) was not entitled for the same. Thus, the dispute in the matter relates to employer and employee dispute and not consumer dispute. The respondents (OPs) provide the benefit of the above scheme to their employees and did not provide any service. The respondents (OPs) did not take any charge, it means the Scheme was free of cost. The respondents (OPs) provide benefit of the scheme // 6 // to their employees without taking any charge, therefore, prima facie, the complaint is not maintainable before the District Forum. The appellant (complainant) was working as employee /officer in the respondents (OPs) Bank and during his working period he misused the public money and caused financial loss to the bank, cheated the bank and committed fraud, therefore, the departmental inquiry was initiated against the appellant (complainant) and he was dismissed from the service on 23.01.2009. The appellant (complainant) did not take retirement but penal action was taken against him for the illegal work committed by him and he was dismissed from service. In some cases, the Bank has adjusted the loan taken by the employee, penalty, expenses, charge and compensation and the Bank has taken disciplinary and penal action against the employee / officer, who committed illegal work, therefore, the act of the Bank does not come in the category of deficiency in service. The appellant (complainant) is not entitled to get a sum of Rs.6,09,117/- till 23.01.2009 along with interest @ 8.5%. The appellant (complainant) has not properly deposited part of his contribution and caused loss to public money, for which he is liable. The appellant (complainant) is not entitled to get any amount. The appellant (complainant) has received the amount along with interest and as per rules disciplinary and penal action was taken against him and he was compulsorily retired from service under Regulation No.7 (3) of Dena Bank Officers Employees // 7 // (Discipline and Appeal) Regulation, 1976, therefore, the complaint is not maintainable before the District Forum and the appellant (complainant) is not entitled to get any benefit under the Scheme. The appellant (complainant) was dismissed from the service, due to which he was not entitled to get his share from the Bank, but the Bank had adjusted the entire liability/outstanding and thereafter had paid the amount along with interest. The Bank did not commit any mistake by adjusting loan taken by the appellant (complainant), penalty, expenses etc. For illegal act done by the appellant (complainant), disciplinary and penal action was taken against him and he was dismissed from service. The appellant (complainant) was intimated in this regard through Memorandum. The appellant (complainant) filed the instant complaint with malafide intention, covetousness and has deliberately made the respondents (OPs) as party to harass them and to extract the money, which is not maintainable, whereas vide letter dated 26.08.2013, entire particulars were once again given and Statement of P.F. IX Biapartite Settlement Arrears was clearly mentioned and full particulars of Rs.6,79,666.81 was given. The appellant (complainant) has not filed the complaint with clean hands. Vide letter dated 12.12.2013 particulars regarding settlement and adjustment of his share Rs.6,23,762.54 and stock over draft equity share, loan, vehicle loan, stock housing loan but with malafide intention the appellant (complainant) has filed complaint. The instant can not be settle // 8 // through summary proceeding and the above is case of civil nature, therefore, is not maintainable before the District Forum. The respondents (OPs) have taken action as per rules, therefore the respondents (OPs) are not responsible. The case is not maintainable because it is time barred and also for want of jurisdiction. The appellant (complainant) was dismissed from service on 23.01.2009 and intimation regarding this was given vide Memo No.D.I.S.C./92/2009/0-86, therefore, the above complaint is barred by time. There is non-joinder and mis-joinder of the party. The complaint is liable to be dismissed.
4. The appellant (complainant) filed documents. Annexure P - 1 is Memorandum No.Disc/92/2009/O-86 dated 23.01.2009, Annexure P- 2 is Dena Bank Employees P.F. Rules, Annexure P-3 is Request for Terminal Benefits dated 23.05.2013, Annexure P-4 is Track Result RC0810626431N dated 23.05.2013, Annexure - P-5 is Legal Notice dated 01.07.2013, Annexure P-5-A is Track Result ED904187795 dated 01.07.2013, Annexure P-6 is Track Result ED9041878351N dated 01.07.2013, Annexure P-7 is Track Result ED904187827IN dated 01.07.2013, Annexure P-8 is Statement of P.F- April 2008 to September 2008, Annexure P-10 is authority letter..
5. The respondents (OPs) have also filed document. Document D1/ page 1 to 8 is photocopy of Circular No.179/24/2010-11 dated // 9 // 30.08.2010 issued by Dena Bank, document D2/page 9 to 12 is letter dated 13.11.2013, document D3/ page 10 to 17 is letter dated 10.12.2013, document D4/ page 18 & 19 is letter dated 12.12.2013, document D5/page 20 & 21 is letter dated 13.12.2013, document D/6 page 22 & 23 is letter dated 08.05.2014, Ex.R-01 is Memorandum No.Disc/92/2009/O-86 dated 23.01.2009 etc., Ex.R-02 is letter dated 22.07.2009 sent by Chief Manager (HRD) Dena Bank, Mumbai to the appellant (complainant) and order, Ex.R-03 is letter dated 10.06.2010 sent by Chief Manager (HRD), Dena Bank, Mumbai to the appellant (complainant) and order, Ex.R-04 is letter dated 23.05.2013 sent by the appellant (complainant) to The Chairman & Managing Director, Dena Bank, Mumbai, Ex.R-05 is Notice sent by Shri Satish Chander Sharma, Advocate to The Chairman and Managing Director, Dena Bank, Mumbai, Ex.R-06 is relevant extract of The Employees' Provident Fund and Miscellaneous Provisions Act, 1952 etc, Ex.R-07 is letter dated 11.07.2013 sent by Secretary and Chief Manager PF/GF/& Pension Fund Department, Dena Bank sent to the Zonal Manager, Zonal Office, Mumbai City, Mumbai, Ex.R-08 is letter dated 26.08.2013 sent by Chief Manager, Dena Bank, Mumbai to the appellant (complainant), Ex.R-09 is letter dated 29.08.2013 sent by General Manager (RML) Dena Bank, Mumbai to the appellant (complainant) with latest account statement of PF account No.Q-4853, Ex.R-11 is Statement of Account for the period from April 2008 to September 2008, Ex.R-12 is Dena Bank // 10 // Employees Provident Fund Rules, Ex.R-13 is order under Section 7(4)(C) Read With Sub-Rule (4) of Rule 11 of Payment of Gratuity (Central) Rules, 1972 issued by Shri D.K. Singh, Controlling Authority under P.G. Act, 1972 and Assistant Labour Commissioner (C), Raipur (C.G.), Ex.R-14 is Circular No.445/97/2008 dated 21.04.2008.
6. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint of the appellant (complainant) holding that the complaint was filed after four years from the accrual of cause of action and the complaint is barred by time.
7. Shri Rajesh Pandey, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the District Forum, is erroneous and the finding recorded by the District Forum that the complaint is barred by time is unsustainable. He further argued that the amount of Member Contribution to P.F. was deposited by the respondents (OPs) on 10.07.2013, therefore, the cause of action has arisen on 10.07.2013. In the written statement, the respondents (OPs) admitted that a sum of Rs.6,79,666.81 was deposited on 26.08.2013 and the particulars were sent to the appellant (complainant). It appears that the cause of action had arisen when share of Contributory Provident Fund amount of the appellant (complainant) was deposited by the respondents (OPs) in the account // 11 // of the appellant (complainant) i.e. 10.07.2013 or 26.08.2013, whereas the appellant (complainant) has filed complaint on 25.11.2013, hence the complaint is within limitation. The finding recorded by the District Forum, is liable to be set aside. The appeal of the appellant (complainant) may be allowed and reliefs as mentioned in the relief clause of the complaint be granted.
8. Shri Bhupendra Jain, learned counsel appearing for the respondents (OPs) has argued that the finding recorded by the District Forum is just and proper and does not suffer from any infirmity, irregularity or illegality regarding dismissal of the complaint on the ground of limitation. He further argued that the appellant (complainant) was dismissed from services of the Bank without notice and with immediate effect which shall ordinarily be a disqualification for future employment. The appeal filed by the appellant (complainant) before the Appellate Authority, was also dismissed by the Executive Director (Appellate Authority), Dena Bank, Mumbai vide order dated 21.07.2009. The Review Petition was also dismissed by the Chairman & Managing Director (Reviewing Authority) vide order dated 08.06.2010, therefore, cause of action had arisen on 08.06.2010 when Review Petition of the appellant (complainant) was dismissed. The complaint has been filed before the District Forum on 25.11.2013 i.e. after two years from the accrual of cause of action, therefore, the complaint is barred by time. Shri Bhupendra Jain, has // 12 // further argued that the appellant (complainant) is not consumer, therefore, the finding recorded by the District Forum that the appellant (complainant) is consumer is erroneous and that part of the impugned order is liable to be set aside. The remaining part of the impugned order is reasonable and does not call for any interference by this Commission. The appeal of the appellant (complainant) is liable to be dismissed.
9. We have heard learned counsel for both the parties and have also perused the record and impugned order of the District Forum.
10. So far as question of consumer is concerned, learned District Forum on the basis of judgment in Bank of Baroda Vs. Sankari Devi 2012 (3) CPR 123 (NC), held that the appellant (complainant) is "consumer".
11. In Revision Petition No.2689 of 2015 - Dena Bank, Regional Office, New Delhi - 110 001 Through its Assistant General Manager Vs. Sh. Ravinder Malik, order dated 01.12.2015, Hon'ble National Commission, has observed thus :-
"3. ............. This authority is not applicable to this case. Moreover, there is no proof when the formalities were completed. To our mind, there are no formalities, as such, to be completed for getting PPF. Consequently, another authority cited by the petitioner - Bank titled Bank of Baroda Vs. Sankari Devi, 2012 (3) CPR 123 (NC) shall not be applicable. The Departments are required to send the // 13 // PPF immediately or at least within one month. The revision petition is without merit and, therefore, the same is hereby dismissed."
12. In Punjab National Bank Vs. Shri Sunil Kumar Podar and Anr. 2008(3) CPR 211 (NC), Hon'ble National Commission has observed that "A Provident Fund subscriber is a consumer of the service provided by the employer."
13. On the basis of above judgments, the appellant (complainant) is "consumer" and the respondents (OPs) are "service provider", therefore the finding recorded by the District Forum that the appellant (complainant) is consumer is correct and the above finding cannot be disturbed.
14. So far as finding recorded by the District Forum that the complaint of the appellant (complainant) is barred by time is concerned, same is not tenable.
15 The cause of action is arisen when any liability is made and on the date when part payment was made is taken into consideration regarding limitation. In the instant case, the payment of Contributory Provident Fund amount was made to the appellant (complainant) on 10.07.2013 or 26.08.2013 and intimation was also given to the appellant (complainant) regarding part payment of Contributory Provident Fund. In the written statement, the respondents (OPs) admitted that vide letter dated 26.08.2013 the entire particulars were once again // 14 // given to the appellant (complainant) and the Statement of P.F. IX Biapartite Settlement Arrears was clearly mentioned and full particulars of Rs.6,79,666.81 were given, therefore, the date when amount of Contributory Provident Fund was deposited in the account of the appellant (complainant) can be treated as date of accrual of cause of action. Therefore, in the instant case, the cause of action has accrued on 10.07.2013 or 26.08.2013 and the complaint has been filed before the District Forum on 25.11.2013 i.e. within two years, therefore, the complaint is within limitation. The learned District Forum has erroneously held that the complaint is time barred and it has also erroneously held that cause of action has arisen on 23.01.2009, actually the cause of action has arisen on 10.07.2013 or 26.08.2013.
16. Therefore, the finding recorded by the District Forum that the complaint is time barred is liable to be set aside.
17. Hence, the appeal filed by the appellant (complainant), is allowed and the impugned order dated 15.12.2015 passed by the District Forum set aside. The case is remanded back to the District Forum for afresh disposal. Learned District Forum is further directed that after providing opportunity of hearing to both the parties, to decide the matter afresh on its own merits. Parties are directed to appear before the District Forum on 23.05.2016. Office of this // 15 // Commission, is directed to send the record of the case to the District Forum forthwith.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 11/05/2016 11 /05/2016 11/05/2016 11/05/2016