BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
AT PORVORIM–GOA
Coram : Ms. Bela N. Naik, President
Mr. Auroliano De Oliveira, Member
Ms. Rejitha Rajan, Member
Consumer Complaint No. 89/2019
Sebastian Joseph Fernandes
House No. Block A/G-3,
Samarth Residency,
Caranzalem, Panjim Goa - 403002 ....... Complainant
Versus
- Chairman & Managing Director
Bank of Maharashtra Head Office
Shivajinagar, Pune – 411005
T.No. 022-25532731/022-25536977
Email : BOMCOPER@MAHABANK.CO.IN
- The Board of Trustees
Employees Provident Fund
Head Office Bank ofMaharashtra
Shivajinagar Pune - 411005
- The Zonal Manager
Bank of Maharashtra Police Station
Road, Basavangudi, Bangalore – 560004
T.NO. 080-26620236 / 080-26626237
EMAIL :ZMBENGALURU@MAHABANK.CO.IN......... Opposite Parties
Date of Complaint :- 06-12-2019
Date of Judgement/Order :-13-04-2023
Counsel for the Parties :
For the Complainant : Ld. Adv. Mr. V. Fernandes for the Complainant.
Opposite Parties (OP-1, OP-2, and OP-3) : Adv.Ld. Adv. G.M. Rege for the Opposite Parties
JUDGEMENT
(Per Ms. Rejitha Rajan, Member)
By this Judgement and Order, we shall finally dispose off the Consumer Complaint bearing No. 89/2019 dated 06-12-2019 filed by the Complainant alleging non-payment of the Provident Fund by the Opposite Parties (for short the OP-1, OP-2, OP-3 or OP’s) herein under Section 12 Consumer Protection Act, 1986 which is herein repealed and replaced by the Consumer Protection Act, 2019 passed on 9th August, 2019.
The brief facts of the case of the Complainant is that :
- The Complainant Mr. Sebastian Joseph Fernandes had joined Bank of Maharashtra on 09-06-1984 as a clerk. In 1998, he got elevated to Scale I officer and further got elevated to Scale II officer in the year 2005. That during the course of his career he completely devoted to his duties with more dedication and hard work and as a result he was given 4 better managed awards in clerical cadre, 2 better managed awards in Officer Cadre and better managed regional trophy award as a Branch Manager. And that the other awards being a member of the branch only a memento is given and no certificate is given in person. The Complainant states that he had an unblemished record from 1984 until the charge sheet was issued in 2008 for 24 years.
- The Complainant states that he had worked in 7 branches and 1 Regional Office. It is further stated by the Complainant that the charges pertains to the year 2003 and prior to the year 2003, no adverse record nor after 2003 any adverse record have been there in his career.
- The Complainant states that in the year 2010, he was given a dismissal order from services after conducting 2(two) enquiries. He was shocked to get the dismissal order considering the nature of charges and gravity of the misconduct which had put the Complainant in a state of trauma, depression, isolated from the outside world and took him around 7 years to come out of the trauma. Also the dismissal from services caused an economic issue as he was the sole bread winner of the family and the ones worst suffered were his family members as the bread earning member was totally rendered jobless. The Complainant states that his children’s education got hampered and further to that the stigma of dismissal and joblessness made his life pathetic and miserable.
- The Complainant states that nowhere in the charge sheet or in the enquiry report nor in the punishment Order there is even a mention of a single rupee monetary loss to the bank or any manipulation or misappropriation of funds or assets charged and there is no charge of moral turpitude, rude behaviour or violent behaviour.
- The Complainant states that the branch where he worked as a Branch Manager, he was a Scale I officer and was posted to a Scale II. That within a year for all his efforts, he was elevated at the Branch to Scale III and received better managed trophy award at the Regional Level. The Complainant also states that before imposing the punishment which is disproportionate to the gravity of the misconduct, the past record and performance was not at all taken into account by the Disciplinary Authority.
- The Complainant in the year January 2018 submitted an appeal for reconsideration of the punishment and it was acknowledged on 10-01-2018. Thereafter again on 04-07-2018 the Complainant resubmitted the appeal and which was acknowledged on 14-07-2018 but received no reply till date from the Appellate Authority. The Complainant on 06-09-2019 made a claim for provident which is acknowledged on 11-09-2019. The Complainant after 15 days on enquiry over telephone at Staff Department, Head Office, Pune informed to send the Claim Forms in prescribed format of Pension, gratuity and Provident through last working branch (Service Branch, Bangalore) which was acknowledged on 01-10-2019. The Complainant upon not hearing from Head Office or last working branch till date decided to approach this Honourable District Commission for justice and speedy claim.
- That the Complainant states as he took stress and trauma all these years due to the liabilities, interest payments, children’s educational expenses and which had an effect on his health and had to undergo heart surgery in May 2019 at Jaya Deva Cardiac hospital, Bangalore, and it is stated by the Complainant that he is implanted with a pace maker in the chest for his survival and due to his illness, he is staying with his daughter in Panjim.
- The Complainant thus have approached this Commission that his prayers for relief be heard for granting his employees Provident Fund under Regulation 7 of the Provident Fund Act, 1952 which is accumulated in his account from the year June 1984 to the year October 2010 i.e. the principal amount deducted from his salary every month and the hard earned money. The Complainant also prayed in his Complaint that the Honourable Commission to peruse the information/pieces of legislation under The Provident Fund Act, the CPC Code, 1908. The Complainant has also prayed to the Honourable Court (Commission) to direct the bank and the trustees of the employees provident fund to provide the interest as per the Provident Fund Act, 1952. Section 7q which stipulates 12% of simple interest or interest as per the statutory regulation with compound interest from the date of termination to the date of settlement along with the principal amount.
- The Complainant in his Affidavit-in-Evidence states that he has already withdrawn the said Claim for Provident Fund from Regional Labour Commissioner (Central) Bangalore since this Authority also has the jurisdiction and the notice received from Ld. Commissioner Bangalore is only for gratuity and pension claim. The Complainant states that he had made a claim in regional labour commissioner, Bangalore for Provident fund, pension and gratuity on 16-11-2019 and subsequently on 02-12-2019, withdrew the claim of provident fund from Regional Commissioner Bangalore. It is also stated by the Complainant that he had no outstanding loan amounts payable by him to the Bank of Maharashtra.
- It is stated by the Complainant in his Affidavit-in-Evidence that he is entitled for an order whereby the Opposite party shall be directed to repay the entire amount paid along with interest to the extent of Rs. 9,50,000/- (Nine Lakhs Fifty Thousand Only), Rs. 10,00,000/- for the mental trauma and physical pain caused in the due course, Litigation charges of Rs. 5000/- be also be awarded suitably. It is also stated by the Complainant that he is a consumer as per the Consumer Protection Act, 1986 and this Honourable Forum (now referred as the Commission) has jurisdiction over matter pertaining to the Public Provident Fund and the Complaint of the Complainant in respect of alleged non-payment of employees Provident Fund to the Complainant is maintainable before this Honourable Commission. It is also by the Complainant that the Provident Fund Commissioner is a “Service Giver” and therefore the Complainant herein is a “Consumer”.
- The Complainant also states that there is no provision with respect to “as per the BANK OF MAHARASHTRA OSR 1979”, in case of Order of Dismissal of an Employee then all the monetary benefits payable to the Employee are forfeited”. And it is also further stated that Provident fund cannot be attached and is immune from attachment nor can be forfeited by the service giver by law and various statutes under the EPF Act, 1952/the CPC Act, 1908 under section 60 (k) and under Article 300 (a).
- The contention in the Written Version of the OP’s are as follows a) that the Complaint under reply is neither maintainable in law nor on facts on record and as such the same is liable to be dismissed in limine. b) Complainant herein was the Employee of the Opposite Party and the Employer and Employee relation existed till the date of dismissal of the Complainant c) the grievances/allegations of the Complainant does not fall under the purview of the Consumer Protection Act, 1986 (currently under the Consumer Protection Act, 2019), as there is no element of deficiency of service, unfair trade practice, etc committed by Opposite Parties thus the District Forum/Commission has no jurisdiction to entertain the Complaint (that in view of the aforesaid law and it’s application, the Complainant herein cannot invoke the jurisdiction of District Forum Commission and the Complaint of the Complainant in respect of alleged non-payment of employees Provident Fund to the Complainant is not maintainable). e) The alleged claim of the Complainant is also barred by law of limitation.
- The other contention of the Opposite Parties in their written version is that the Complainant to suppress the truth purposely has not filed the Charge Sheet along with the Complaint. It is also submitted by the Opposite Parties that under the law the Complainant was not remediless to prefer/file appeal/revision or initiate any other proceedings as per law to challenge the order of Dismissal of 2010, but the Complainant did not do so for the reasons best known to him, as such the order of dismissal attained finality. That after a lapse of 09 years the Complainant cannot allege that “before imposing the punishment which is disproportionate to the gravity of the misconduct, the past record and performance was not at all taken into account by the Disciplinary Authority. It is stated by the Opposite parties that the Complainant admits in his submissions that there was misconduct committed by him.
- It was also the contention of the Opposite Parties that admittedly the Order of Dismissal was passed on 30-11-2010 and question of preferring appeal against the said Order of Dismissal for reconsideration of the punishment does not arise, since by efflux of time and law the said Order of Dismissal dated 30-11-2010 has become final and the aforesaid appeal for reconsideration of the punishment is not maintainable. And that the said alleged facts are not at all relevant, since the Honourable District Commission is not an appellate Commission (earlier forum) to ventilate the said grievances and also not having jurisdiction to entertain any application in aforesaid issue.
- The Opposite Parties have stated in their written version that “ as per the Bank of Maharashtra Officer Employees (Conduct) Regulations, 1976, in case of Order of Dismissal of an Employee then all the monetary benefits payable to the Employee are forfeited” and that in view of the above allegation/averments of the Complainant that, “ On 06-09-2019 I made a claim for provident which is acknowledged on 11-09-2019. After 15 days on enquiry over telephone at Staff Department Head Office, Pune, I was informed to send the claim forms through the last working branch. Hence again on 27-09-2019 I had sent my claim forms in prescribed format of pension, gratuity and provident through last working branch being Service Branch Bangalore and it was acknowledged on 01-10-2019.” does not arise. Moreover, the Opposite Parties state that the allegation/averment of the Complainant that, “On not hearing from head office nor last working branch till date I am with no option but to climb the steps of the Honourable District Consumer Court for justice and speedy claim.”, is false and after thought ground created to overcome the period of limitation to challenge the Order of Dismissal dated 30-11-2020 which is barred by law.
- The Opposite Parties state that the Complainant has suppressed the fact that the Complainant had already filed application dated 16-11-2019 before Ld. Regional Labour Commissioner (Central) Bangalore for payment of Provident Fund and the said authority has issued a notice to the Opposite Party Bank on 01-01-2020. It is further submitted that the said authority is holding conciliation proceedings in the said matter. The Complainant has already invoked the jurisdiction of Regional Labour Commissioner (Central) Bangalore, in view of his last service branch and as such this Honourable Forum (Commission) is not having jurisdiction to entertain the present Complaint.
- The Opposite Parties have also made contention in the written version that the Bank of Maharashtra Employees Provident Fund Trust is a separate legal entity and governed by its Bank of Maharashtra Employees Provident Fund Rules, and since the Complainant has submitted the application and as per the aforesaid rules the Complainant claim will be adjudicated by the said authority. The Opposite Parties further states that the Complainant is also liable to pay the outstanding loan amounts availed by him under various account and since the Complainant and the nominee of the fund has consented for recovery of the said outstanding from the said fund amount as such after adjustment of the said due to the Opposite Party Bank is any amount remained as surplus then the same will be returned to the Complainant. It is submitted by the Opposite Party that the Complainant has approached the Honourable District Commission by suppressing the aforesaid facts and allegedly claiming his contribution of Provident Fund amount with interest upto date is not maintainable and that already a complaint is lodged before one forum as such a second complaint in respect of the same cause of action and relief cannot be lodged in other forum.
- Furthermore, it is stated by the Opposite Parties that the averments/allegation of the Complainant in the para under reply in respect to Provident Fund under Regulation 7 of the Provident Fund Act 1952,the C.P .C Code, 1908 cannot be looked into in view of the aforesaid facts and circumstances of the case and since the issue under complaint does not fall under the purview of the Consumer Protection Act, 1986 (currently under CPA, 2019).
- It is also stated by the Opposite Parties in their written version that the averments in the para of Pg. No. 5 of the Complaint under heading “ i) PROVIDENT FUND ACT and CPC LEGISLATION, ii) As per Provident Fund Act 7Q iii) 69. Circumstances in which accumulation in the Fund are payable to a member iv) 72. Payment of Provident Fund (5), (v) 10. Protection against attachment, (vi) Code of Civil Procedure, 1908 Complete Act, (vii) Article 300-A of the Constitution of India and viii) Apex and High Court Verdicts” wherein the Opposite Parties submits that all the above provision of law pleaded by the Complainant in his complaint are not ad judicable under the present complaint as this Honourable District Commission do not have jurisdiction and secondly the aforesaid provision of law are not applicable to the Complainant till the Order of Dismissal dated 30-11-2010 is subsisting and that thirdly the Honourable District Commission is not a competent Authority to adjudicate the alleged grievances raised by the Complaint.
- The Opposite Parties have further stated that no cause of action has accrued to the Complainant for filing the present Complaint against Opposite Parties No. 1, 2 and 3 and that the Complainant to achieve it’s ulterior motives for illegal and wrongful gains, unnecessarily has dragged the answering opposite parties in to litigation for no fault without challenging the Order of Dismissal dated 30-11-2010 and that in view of the contentions made in the written version, the Opposite Parties have submitted that there are no bonafides on the part of the Complainant in filing the present Complaint and is not entitled for any of the reliefs i), ii) and iii) claimed in the Complaint against the OP-1, OP-2 and OP-3 and moreover this Honourable District Commission has no jurisdiction to entertain the present Complaint as the Complainant is barred from claiming the alleged Pension, Gratuity and Provident Fund in view of the Order of Dismissal dated 30-11-2010.
- The Opposite Parties have also stated in their written version that in catena of Judgements of Honourable National Consumer Disputes Redressal Commission has categorically held that “A dispute between an employee and employer relating to terms and conditions of service, salaries or perquisites to it’s employees will not amount to consumer dispute.” The Opposite parties have also stated that the Honourable Tamil Nadu State Consumer Disputes Redressal Commission at Chennai has held that “ The relationship between the Complainant and the Opposite Party is that of Employee and Employer. By no stretch of imagination, the Complainant can claim to be consumer who has hired or availed of the services for consideration....”
- That the Opposite Party No. 1, 2 and 3 has filed their Affidavit-in-Evidence through their Authorized Signatory Ms. Narmada Sambhaji Sawant, Zonal Manager (Authorized Signatory of Bank of Maharashtra vide Resolution item no. A/03 dated 21-12-2015 designated as Principal Officer under the provisions of Order 29 of CPC i.e. OP-1, OP-2 and OP-3.
- The Opposite Parties have made contentions in their written arguments that the Complaint is liable to be dismissed on the point of law and facts canvassed in their written arguments which is as follows : 1. That the Complainant is not a consumer and thus the Honourable Forum/Commission lack jurisdiction to try and entertain the present Complaint and have cited the case law Laxman Kini, A Kini, A. Vs. The Chairman and Managing Director, Indian Overseas Bank and Ors – (MANU/CF/0011/2000), D Yesodharan vs. Chairman and Managing Director, Canara Bank – (III (1994) CPJ63(RE). 2. That the Complainant at the time of joining services of the Bank of Maharashtra, he became the member of the Bank of Maharashtra Employees Provident Fund and therefore he is bound by the Bank of Maharashtra Employees Provident Fund Rules. That in view of the Bank of Maharashtra Officer Employees (Conduct) Regulations 1976 and Dismissal Order of 2010, the claim if any by the Complainant for Provident Fund should have been in the year 2010, however the Order of Dismissal attained finality as the same was never challenged and therefore the Complainant is barred from making any claims against the Opposite Parties. 3. That it is an admitted case of the Complainant that he was dismissed from the services in the year 2010, therefore any claims for monetary benefits from the Opposite Party shall not stand in view of the subsistence of the aforesaid order and that the Opposite parties state that it is pertinent to note that till the Order of Dismissal is not challenged, the Bank is not liable to pay any amount to the Complainant and the Complainant is also well aware of the said rules and regulations which govern the services with Bank of Maharashtra and therefore the applications made if any is nothing but a ground to create a fake cause of action to file the present Complaint.
- The Opposite Parties state that the Complainant at the time of joining services had agreed to be bound by all the rules and regulations of the aforesaid bank including the Bank of Maharashtra Officer Employees (Conduct) Regulations 1976 and therefore being dismissed from services the Complainant is estopped from making any further claims and therefore the cause of action averred by the Complainant in his Complaint is not tenable as per law. It is also stated that as per the P.F. Rules & Civil Procedure Code, the Provident fund cannot be attached and is not tenable as the Complainant is bound by the Bank of Maharashtra Officer Employees (Conduct) Regulations 1976. The Advocate for the Opposite parties have placed on record vide a memo dated 29-11-2022 a copy of the Judgement decided by the National Consumer Disputes Redressal Commission, New Delhi dated 20-07-2023 (Kondarreddygary Adinarayana Reddy v/s. State Bank of Hyderabad & Another.
- Also the Advocate for the Opposite Party have placed on record vide a memo the case laws relied by the Opposite Parties namely Laxman Kini, A. Vs. The Chairman and Managing Director, Indian Overseas Bank and Ors – (2001(1) C.P.C 422, I (2001) CPJ16 (NC), The Deputy General Manager CPF.F.C.I New Delhi vs. Kashmir Singh and ors – (Revision Petition No. 3317 of 2008), D Yesodharan vs. Chairman and Managing Director, Canara Bank – (III (1994) CPJ63(RE).
Upon perusal of the Complaint, documents annexed, heard the arguments advanced on admission of the Complaint, and then accordingly the OP-1, OP-2, OP-3 were duly notified vide the issuance of the notice(s) by Regd. AD along with the copy of Complaint and list of documents annexed. An opportunity for filing of Written Version to contest the case was provided to all the Opposite Parties. Accordingly the Advocate for the OP’s filed the Written Version collectively. The Advocate for the Complainant and Opposite Parties submitted that the settlement is not possible. The Advocate for the Complainant filed application for production of documents (document only shows that proceedings before Regional labour commissioner are withdrawn). Accordingly, an opportunity for filing additional Written Version if any was provided in view of the documents taken on record. Advocate for the Complainant filed the Affidavit-in-Evidence and subsequently the Affidavit –in-Evidence was filed by the Advocate for the Opposite Parties. Thereafter the written arguments were filed by the Advocate for the Complainant and the Advocate of the Opposite Parties. That the Advocate for the Opposite Parties placed on record Memo along with Administrative Order dated 30-11-2010 containing the Charge sheet levelled against the Complainant. Thereafter, the Advocate for the Complainant files a memo along with documents. The final arguments were advanced by the Advocate for the Complainant and the Advocate for the Opposite Parties and were fixed for judgement. Thereafter the Commission sought clarification from the Advocate for the OP on the point of jurisdiction of the Commission to decide the Complaint pertaining to the non-payment of Provident Fund to the Consumer and the Advocate for the OP sought time to answer the clarification with judgements. The Advocate for the OP filed a memo annexing a judgement decided by NCDRC in a Revision Petition No. 71 of 2013 dated 20-07-2022. The Advocates for the Complainant and the OP’s advanced the final oral arguments before the Commission on 24-02-2023.
We have heard the Oral Arguments advanced by the Ld. Adv. V. Fernandes for the Complainant and Ld. Adv. G.M. Rege for the OP-1, OP-2 and OP-3.
We have perused the Complaint, the Affidavit-in-Evidence of the Complainant and taken into consideration the advanced Oral and Written Arguments upon which the following points arise for our determination and consideration :
- Whether the District Consumer Disputes Redressal Commission has the jurisdiction to hear issues/disputes regarding withholding terminal benefits like pension, gratuity and provident fund ?
Ans. Negative
- Whether the Complainant is entitled for the reliefs prayed for ?
Ans. Negative
Reason to Point (a)
Upon perusal of the complaint, documentary evidences, the written arguments and oral arguments advanced by the Ld. Advocate(s) for the Complainant and the Opposite Parties, it is the case of the Complainant having filed the Consumer Complaint bearing No. 89/2019 for alleged non payment of the of the Provident Fund by the Opposite Parties (for short the OP-1, OP-2, OP-3 or OP’s) and also made known through the Complaint of the Complainant that there has been a disciplinary action taken for misconduct whereby an enquiry was conducted and accordingly a disciplinary order (Administrative Order) has been issued in the year 30-11-2010 by which the Complainant was dismissed vide the Dismissal Order (Administrative Order) dated 30-11-2010. That in the case of “dismissal” a person is debarred from future employment. It is also observed from the written version filed by the Opposite Parties that there has been selective suppression of facts by the complainant who have raised the said suppressed facts in their Written Version/Reply to the Complaint.
That based on the versions of the fact from the complaint of the complainant and the written version of the Opposite Parties, it can be observed firstly that the Complainant at the time of joining services had agreed to be bound by all the Rules and Regulations of the Bank of Maharashtra including the Bank of Maharashtra Officer Employees (Conduct) Regulation 1976 and therefore being dismissed from services the Complainant is estopped from making any further claims. Moreover, it is submitted by the Opposite Parties that the Complainant has not taken recourse of the remedies available to him i.e. challenging the Dismissal Order dated 30-11-2010. Secondly, that the District Commission is not the competent adjudicatory authority to decide the disputes regarding the withhold of terminal benefits of the employee like Pension, Gratuity or Provident Fund and as such disputes does not fall within the ambit of the jurisdiction of Consumer Protection Act, 2019.
In the present case the Provident Fund is held by the bank where the Complainant was an employee. It is also seen from the contention in the written version of the Opposite Parties that the Bank of Maharashtra Employees Provident Fund Trust is a separate legal entity and governed by its Bank of Maharashtra Employees Provident Fund Rules, and since the Complainant has submitted the application and as per the aforesaid rules the Complainant claim will be adjudicated by the said authority.
It is also observed in this Consumer Complaint, the Complainant’s grievances are with regard to the withholding of the Provident Fund and as such the District Commission does not have the jurisdiction to decide such disputes. The issues related to terminal benefits as seen in this case being provident fund should be adjudicated by the concerned competent authority/courts or Service Tribunal. Moreover, the said Complaint before this Honourable District Commission should have been dismissed at the stage of admission for want of jurisdiction than been dismissed upon consideration on merits.
And as such the present Consumer Complaint is a matter of alleged non-payment of the Provident Fund and the grievance observed in the complaint of the Complainant is with regard to “before imposing the punishment which is disproportionate to the gravity of the misconduct the past record and performance was not at all taken into account by the Disciplinary Authority” concerns with the issues related to services and in view of that the Complainant should approach the appropriate civil courts or service tribunal.
That upon relying on the cited Judgement decided by the National Consumer Disputes Redressal Commission, New Delhi dated 20-07-2023 (Kondarreddygary Adinarayana Reddy v/s. State Bank of Hyderabad & Another, Case No. Revision Petition 71/2013) wherein it was held that “ the Complaint was dismissed as not maintainable before the District Commission, as the terminal benefits like provident fund (bank’s contribution) and gratuity not being granted on dismissal from service is the subject-matter of the competent services tribunal or civil court. The Complaint is returned un-adjudicated, the merits or the nature of the facts remain unexamined by the Consumer Protection fora. The Complainant shall be at liberty to approach the Competent Services Tribunal or Civil Court to seek remedy as per the law. Section 14 of the Limitation Act, 1963 shall be relevant in respect of the period spent in litigation before the Consumer Protection fora.”
Reason to Point (b)
That in view of the reasoning to point (a), it is clearly established that this Complaint is not maintainable as the District Commission does not have jurisdiction to decide issues related to non-payment of provident fund which itself negates the consideration at point (b). Thus the Complainant is not entitled for any reliefs as prayed.
In the light of the perused complaint, written version along with annexed documents with documentary evidences to substantiate the averred facts, Affidavit-in-Evidence, written and oral arguments and from the above discussion and reasoning, it is observed that this Complaint is not maintainable before the District Commission as non-payment of Provident Fund upon dismissal from service is clearly a subject-matter to be adjudicated before the competent authorities i.e. services tribunal or civil court. And in view of the above, we pass the following order
ORDER
The Complaint is dismissed with no order as to costs.
Pronounced in Open Court.
Proceedings closed.
Ms. Bela N. Naik
President
Mr. Auroliano De Oliveira
Member
Ms. Rejitha Rajan
Member