COMPLAINT FILED ON: 26.10.2009

DISPOED ON:29.03.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

29^th DAY OF MARCH-2012

  PRESENT:-  SRI. B. S. REDDY                   PRESIDENT

                     SRI. A. MUNIYAPPA                   MEMBER               

COMPLAINT No.2484/2009

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainants 1 to 3 filed this joint complaint U/s 2(C)(III) of the C.P. Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to pay sum of Rs.46,883/- to complainant No.1, Rs.53,556/- to complainant No.2 and Rs.51,836/- to complainant No.3 with costs of Rs.5,000/- to each with interest at 6% p.a. on the allegations of deficiency in service on the part of the OPs.

2. The case of the complainants to be stated in brief is that:

The complainants have served the OP-3 bank for long years and opted for voluntary retirement as per the provisions provided by the bank vide head office circular NO.35/0/BC/PD/13 (P.C.R.-15) dated 24.01.1980. The bank assured the employees opting for this scheme, all the benefits accruing to the superannuated retirees. In the year 1994 the bank announced a pension scheme for the benefit of the employees. The regular scheme was framed and published vide their circular No.226/95/BC/PD61/SWD dated 04.11.1995. Under the scheme the complainants and eleven others who voluntarily retired were informed by the head office that they are also eligible for pension along with superannuated retirees. However at the last minute they were informed that as per the Central Government communication all the voluntarily retired employees are not entitled to the pension. Being aggrieved by the decision of the head office a few of them sought for relief from the court of law. The case was decided in their favour by the Karnataka High Court as well as the Supreme Court. In both the judgements it had been laid down that there cannot be any distinction between superannuated retirees and voluntary retirees. Thus all the voluntary retirees were paid on 14.07.2000 the pension with effect from 01.11.1993. As per the pension scheme, the bank contribution to the individual voluntary retirees provident fund account were collected back by the bank with interest from the date of payment of the same to the individual retirees at the rate of 6% p.a. As per the pension scheme, the retirees are entitled to commute a portion of their pension and almost all the retirees opted for commutation and the same was made effective from 01.11.1993 on which date they were entitled for pension. The head office paid pension with arrears to all the retirees together with commutation amount with effect from 01.11.1993 in April, May – 1996. But the voluntary retirees got the same only on 14.07.2000 after the Supreme Court decision. After the orders being passed by the Hon’ble Supreme Court in favour of the voluntary retirees, the OPs in compliance of the said orders sanctioned pensionary benefits to the complainants with effect from 01.11.1993 and commutation amount payable was fixed at Rs.1,17,033/-, 1,33,142/- and Rs.1,28,658/- to the complainants 1 to 3  respectively. OPs should have paid the amount in full to the complainants, but have deducted the commuted pension amount out of the pension amount payable to the complainants effective from 01.11.1993 itself and actually paid a sum of Rs.38,713/- on 03.07.2000 to the complainant No.1 Rs.42,662/- on 14.07.2000 to the complainant No.2 and sum of Rs.46,658/- on 18.07.2000 to the complainant No.3.

Further it is submitted OPs should have paid interest on the delayed payment of commuted amounts, which the complainants are entitled. The OPs are due to the complainants the following amounts as interest on the delayed payments of the commuted amounts.

a)    Interest at 6% p.a. due to the complainant

        No.1 on Rs.1,17,916/- from 01.11.1993 till

        the date of payment i.e., 03.07.2000.    -   Rs.46,883/-

b) Interest at 6% p.a. due to the complainant

No.2 on Rs.1,33,142/- from 01.11.1993

till the date of payment i.e., 04.07.2000   -  Rs.53,556/-

c) Interest at 6% p.a. due to the complainant

No.3 on Rs.1,28,658/- from 01.11.1993

till the date of payment i.e., 18.07.2000  -  Rs.51,836/-

        OPs have not paid the interest in spite of repeated demands.

        In view of the implementation of the pension scheme only in November – 1995, the payment of commuted amount to the Superannuated retirees was paid only in April/May – 1996. Since the bank recovered interest on the refunded bank’s contribution to the provident fund from the date of payment to the employees to the date of recovery, the retirees were aggrieved having not received any interest on the delayed payment of the commuted amount though the same was due on 01.11.1993, but paid in April / May – 1996. A few of the superannuated retirees approached the Kerala High Court and sought for the redressal of their grievances in this regard. The Kerala High Court gave their order in favour of the employees. In terms of this order the bank started paying interest on the delayed payment of commutation amount against the individual application to all the superannuated retires other than the complainants. When the voluntary retired employees approached the bank for the payment of interest for the delayed payment of commuted sum, they were denied the same. Hence the complaint.

3.   On appearance, OPs filed version contending that the complaint is not maintainable; the same is barred by time. It is admitted that the complainants herein filed W.P.43960/1995 before the Hon’ble High Court of Karnataka for sanction of pensionary benefits and the same came to be allowed. OP preferred W.A.10027/1996 which came to be dismissed. OP preferred an SLP before the Hon’ble Supreme Court the same was disposed off upholding the decision of the Hon’ble High Court of Karnataka. Accordingly OPs in compliance with the said order sanctioned pensionary benefits with effect from 01.11.1993. The arrears of pension / commutation of pension were released to the complainants by recovering the bank’s contribution of Provident Fund along with interest at 6% as per IBA guidelines. The complainants are claiming benefits as employees of the bank which is governed by service regulations and hence this Forum has no jurisdiction to try issues relating to service regulations and complaint is liable to be dismissed. The complainants are not consumers as defined under the Consumer Protection Act; this Forum has no jurisdiction to adjudicate upon matters pertaining to service regulations of employees. The joint complaint is not maintainable and cannot be invoked to seek individual remedies. The complainants have to approach this Forum individually and establish their individual cause of action to do so. The OP paid pension with arrears to all the retirees together with commutation amount in the month of July – 2000. The complainants cannot subsequently claim for further sum, the same being barred by limitation. The complainants have approached this Forum after a lapse of 9 years and have filed a frivolous complaint to harass the OPs. If the complainants were so entitled to any further interest, nothing prevented them from urging their contention at the time when the amounts were satisfied as per the Supreme Court order on 05.04.2000 which the same was complied by OP in the year – 2000 itself. The Hon’ble High Court of Kerala has allowed interest at 6% p.a. on the commuted value of pension for the delayed payment. In the said case, the Hon’ble High Court allowed payment of interest at 6% on the commuted value of pension with effect from the date of retirement till the actual payment in such cases where the bank has reduced 1/3 rd pension on account of commutation from 01.11.1993 and commutation of pension paid with a delay. Hence this case is in no way relevant to the complainants case as the pensionary amount had been granted and released as per the court verdict. The complainants were denied the payment of interest for the delayed payment of commuted sum by OP, as the complainants were not eligible for the same as per the Hon’ble Supreme Court order. It is denied that the complainants are entitled for any interest whatsoever much less the amount so claimed by the complainants.

In the additional version filed after amending the complaint, it is stated that the amount paid to the complainant No.1 on 03.07.2000 was Rs.3,71,784/- to the complainant No.2 on 14.07.2000 was Rs.4,28,688.54, to the complainant No.3 was Rs.4,10,636.04 and not the amounts as stated by the complainants in the said para. Regarding para 5B of complaint Claiming interest on the delayed payments of the commuted amounts, OP is not liable to pay the same. The same would amounts to Res Judicata on the part of the complainants, since the subject matter of the present dispute relating to the pension amounts payable, the same was tried and disposed off by the Hon’ble Supreme Court directing the OP to sanction the pensionary benefits to the complainants and in due compliance thereof the said amounts were released to the complainants. The complainants neither claimed any interest before the Hon’ble High Court nor before the Hon’ble Supreme Court and the complainants having failed to do so, have filed this complaint for the interest on the delayed payment of pension which is barred by principles of Res Judicata. Hence it is prayed to dismiss the complaint.       

4. In order to substantiate the complaint averments each of the complainants filed affidavit evidence. The General Manager of Ops filed affidavit evidence and the Assistant Manager filed Additional Affidavit in support of the defence version.

5. Both the parties filed written arguments

6. Arguments heard on the point of limitation.

7. Point for consideration is:-

Whether the complaint filed by these complainants is within the period of limitation.

8. We record our findings on the above point in negative.

R E A S O N S

    9.  Section-24-A(1) of the Consumer Protection Act provides the period of limitation as two years for admitting complaint from the date on which the cause of action has arisen. In order to find out the date on which the cause of action has arisen for these complainants to claim interest on the commutation amount paid, it is necessary to take into consideration the earlier Writ proceedings before the Hon’ble High Court and Supreme Court initiated by complainant Nos.2 & 3.

10. Earlier to this complaint, the complainant No.2 filed Writ Petition No.3532/1996 (S) and complainant No.3 filed Writ Petition No.43960/1995 (S) against the OPs Syndicate Bank seeking certain reliefs with regard to pensionary benefits and specifically the prayer related to issue a Writ in the nature of Mandamus to grant commutation amount of the pension and to pay pension from 01.11.1993 in terms of the provisions of the Syndicate Bank Employees Pension Regulations 1995 with all consequential benefits including interest at the market rate for the period of delay in payment of pension and commutation amounts to the petitioner. These complainants having voluntary retired from the services of OP-Bank during 1990-92 were not extended the benefit of the pension regulations 1995 which came into force with effect from 29.09.1995. As per Regulation-29 of the Pension Regulations, pension is payable only to those employees who voluntary retired on or after 01.11.1993. Since the complainant’s voluntary retired during 1992, they did not come under the purview of the said pension regulations. Therefore, the complainant No.2 and 3 filed the above said Writ Petitions before the Hon’ble High Court for sanction of pensionary benefits. The said Writ Petitions were allowed, OP-Bank preferred Writ appeal No.10027/1996 which came to be dismissed. Then OP-Bank preferred Civil appeals before the Hon’ble Supreme Court and the same were disposed of upholding the decision of the Hon’ble High Court by its order dt.05.04.2000. Accordingly, OP in compliance with the said order sanctioned pensionary benefits with effect from 01.11.1993. The arrears of pension/commutation of pension were released to the complainants by recovering the bank’s contribution of Provident Fund along with interest at 6% as per I.B.A guidelines. The complainants received the arrears of pension together with commutation amount in pursuance of the Supreme Court decision in the year 2000 itself.

11.In the Writ Petitions filed by the complainant Nos.2 & 3 sought all the consequential benefits including interest for the period of delay in payment of pension and commutation amounts to the petitioners. When the relief with regard to the interest was claimed and the same is not considered while allowing the Writ petitions it is deemed to have been refused. The complainants have not agitated the matter further claiming the said relief. Therefore, we are of the view that the cause of action arose on 05.04.2000 when the Supreme Court passed an Order in Bank of India V/s Hindurajagopalan and others in Civil Appeal No.6959/1997 with connected appeals upholding the Orders of the Hon’ble High Court and on 03.07.2000, 14.07.2000 and 18.07.2000 respectively, when all the arrears of pension together with commutation amount paid to the complainants in due satisfaction of the Order of the apex Court.

12. The complainants claim that the implementation of the pension scheme was only in November-1995, the payment of commuted amount to the superannuated retirees was paid only in april/May-1996. since the OP-Bank recovered interest on the refunded banks contribution to the Provident Fund from the date of payment to the employees to the date of recovery, the retirees were aggrieved having not received any interest on the delayed payment of the commuted amount though the same was due on 01.11.1993 but paid in April/May 1996. Few of superannuated retirees approached the Kerala High Court and the Kerala High Court on 23.09.2005 passed order in their favour. Annexure-E is the copy of the order of the Kerala High Court. In terms of that order OP-Bank paid interest on the delayed payment of commutation amount to all the superannuated retirees other than the complainants. When voluntary retired employees approached OP-Bank for payment of interest for the delayed payment of commuted sum, the same was denied by OP-Bank Annexure-F to H are the correspondence made in this connection by the complainants with Op-Bank. It is claimed that it is clear violation of Article-14 of the Indian Constitution, Annexure-I is the copy of the paper cutting reported in Economic Times regarding Bank VRS optees compensated for delayed payment. The complainants produced copy of common order passed in complaint No.263/2001 to complaint No.406/2001 by the District Consumer Disputes Redressal Forum Chennai(North) awarding compensation of Rs.15,000/- to each of the complainants against Indian Bank with regard to delay in payment of commutation amount and pension to the voluntary retired employees.

13.It is contended for the complainants that Ex-employees approached the High Court of Kerala seeking payment of interest on the delayed payment of commuted value of pension. The High Court allowed the petitions and granted the reliefs. Some more persons approached the Kerala High Court seeking the same reliefs. At that stage, the bank assured to pay interest and petitions were withdrawn. The OP-Bank paid interest to those petitioners and several others (about 300) who had not gone to the court including the legal representative of the deceased employees. The complainants approached the Op-Bank in the year 2009 seeking the same reliefs-grant of interest which was declined on the ground that these complainants had got their pension by approaching the High Court and the Supreme Court and the Court while granting their prayer for pension did not award interest or costs. These complainants have to succeed on the ground of violation of Article-14 of the constitution. The Bank granted interest to all those similarly placed, even those who did not approach the Court and the LRS of the deceased employees have been paid interest. The complainants cannot be worse off for having gone to court earlier. The stand of OP-Bank denying interest is exfacie discriminatory and arbitrary and the violative of Article-14. The Limitation Act does not in terms apply to the subject complaint. The cause of action arose in 2009 when the Bank paid interest to those similarly placed but denied the same to the complainants who filed the complaint in 2009. The bar of limitation does not arise.

Further it is contended that the pension’s scheme has no provision to pay interest on commutation amount, hence the complainants did not claim interest on commutation amount. While implementing the Supreme Court order OP-Bank did not pay interest on pension and commutation amount and the complainants did not claim the same at that point of time, since it was not paid to superannuated retirees, though they demanded its payment. Being aggrieved a group of 11 superannuated retirees approached Kerala High Court in 1996 and obtained favourable order in 2005. The Bank paid interest to those 11 members which invited another 12 members to claim the interest. When the Bank denied to those 12 members they too approached Kerala High Court on the same lines as that of earlier batch of 11 members. After that the Bank agreed to pay interest on commutation amount to those 12 retired employees. Even thereafter OP-Bank paid interest to those who did not go to the Court (employee Sri.K.R.Tanthi, K.M.Naik etc) even the heirs of the deceased officers not gone to court (e.g. K.Gayathri Devi and K.Jayasri D.Prabhu) are paid interest. Thus on the whole about 300 claims of the retiree officers were entertained whereas officers gone to Court were only 23, just as pension was paid to voluntary retirees who have not gone to court were also paid pension when the order of the Supreme Court was implemented in the year 2000 e.g No.1 complainant so the Banks action in denying interest is in violation of Banks Circular of 1980 (Annexure-A) and Karnataka High Court and Supreme Court Order not to distinguish between the voluntary retirees and superannuated retirees. When the Bank paid the interest to all the retired officers on the basis of Kerala High Court order relating to the 23 officers and these complainants being voluntary retirees were denied interest hence the cause of action arose only in 2009 not in the year 2000, the denial of interest is unequal, biased, arbitrary and prejudicial. The Bank did not raise the issue of interest in their special leave petition filed in Supreme Court. There was no issue of payment of interest as a main point of contention. It was only payment of pension that was contested by Bank in Karnataka High Court and Supreme Court.

14.Annexure-E is the order in Writ Appeal No.1487/2002 (P) on the file of High court of Kerala at Ernakulam wherein 11 appellants preferred the Writ Appeals and it was held that those employees who had retired earlier than the introduction of the Scheme have to refund the employer’s contribution with 6% interest to the Bank and the interest shall be calculated between the date of their retirement and the date of actual repayment. Necessarily, when the Bank calculates interest from the date of retirement, the Bank has a duty to pay similar rate of interest until the commutted value of pension is really paid by the Bank. In other words, what maximum the Writ Petitioners/appellants can get is 6% interest on the commuted value of pension with effect from the date of retirement till the actual payment is effected as per the record of netting.  

15.Annexure-C the copy of the Order in Writ Petition.43960/1995 disposed of as per Order dt.29.10.1996 stating that the question involved in this Writ Petition is covered by the judgment of this Court in Writ Petition No.3919-3994/1996 in the case of B.M.Ramachandra V/s Canara Bank and was decided on 20..09.1996 following the above decision the Writ Petition was disposed of granting relief to the petitioner in terms of the judgment in Writ Petition No.3919-3994/1996 D.D.dt.20.09.1996.

16. The copy of the judgement in Writ Petition No.3919-3994/1996 produced by the complainants reveals that the Writ Petitions were allowed holding that the petitioners are entitled to the pensionery benefits extend under the Pension Scheme direction was given to the responded Bank to extended the benefit of the pension Scheme to all the petitioners after accepting their option given.

17.Annexure-D is the copy of the order of the Hon’ble Supreme Court in Bank of India V/s Indu Rajagopalan and others in Civil Appeal No.6959/1997 with connected appeals holding that Comprehensive Pension Scheme has been framed which came into force with effect form 01.11.1993 and applicable uniformly to all Bank Employees which provides for voluntary retirement as well. The applicability of these rules to those employees who have voluntarily retired with effect from 01.01.1986 to 31.10.1993 is raised in these matters. It is not possible for the learned counsel for appellants to point out that there is any significant financial or other burden or difference so far as those who had voluntarily retired and those who had ordinarily retired. In that event where there is no distinction, the authorities having sought to make a distinction and not applied the regulations framed subsequent to their retirement, the High Court has given appropriate directions. The number of employees who have retired in this manner is also very small. Therefore, no interference is called for in these appeals.

18. The OP has produced copy of the judgment of the Hon’ble High Court of Delhi in Writ Petition No.3133/2008 wherein a similar claim of interest on arrears of pension/commutation amount was claimed was dismissed holding that the claim is barred by limitation. In the said case the petitioner filed the Writ Petition seeking directions to the respondent to pay interest on his commuted value of pension and arrears of pension at 12% p.a. compounding from 01.06.1993 till Feb-1998. The petitioner retired from service of the respondent with effect from 31.05.1993 and he was paid arrears of pension and commutation value of pension in March-1998. The contention of the respondent was the petition filed belatedly after 10 years of payment of arrears of Pension/commuted pension cannot be entertained. According to the petitioner he was waiting for the out come of Writ petition filed by his colleague bearing WP (c) No.4009/1998 which according to him was decided finally in 2007. Hence the petition should be treated as having been filed within time. It is observed the petition was filed in April 2008, i.e., after more than 10 years of receipt of arrears of pension/commuted pension which the petitioner received in March-1998. The grievances of the petitioner are about the interest for delayed payment. It was observed that the cause of action for claiming interests on arrears of pension /commuted pension arose to the petitioner in March-1998 when he was paid the arrears. The claim for interest by no means can be said to be a recurring cause of action. The petitioner should not have waited for the outcome of the writ petition filed by his colleague. In case the petitioner was aggrieved by delay in payment of arrears of pension/commuted pension to him and wanted interest on the said amount, then he should have taken recourse to legal proceedings within a reasonable time, if not within three years of arising of cause of action in his favour. There is no explanation at all given by the petitioner for delay of ten years in filing of the present petition after receipt of arrears of pension/commuted pension by him. In view of the same, the present Writ Petition is dismissed as barred by delay and latches.

The facts of this case are similar to the facts of the case decided in the above said Writ Petition by the Hon’ble Delhi High Court. In this case also these complainants received the arrears of commuted amount for the period from 01.11.1992 to 30.06.2000 in the month of July-2000. The cause of action to claim interest on the delayed payment of commutation amount arose to these complainants in the month of July-2000 itself and the complaint ought to have been filed within 2 years from the date of receipt of the commutation amount. Merely because the superannuated retirees were paid interest on the commutation amount as per the Orders passed in Writ Appeal No.1287/2002 by the Hon’ble High Court of Kerala, on that basis the complainants wrote a letter during Feb-2009 to pay the interest on the delayed payment of the commuted amount and the Ops as per their letter dt.17.03.2009 denied to pay the same, it cannot be said that the cause of action arose in the month of March-2009 when Ops denied the payment of interest. Under these circumstances, we are of the view that the complaint filed by the complainants is not within the period of limitation. The complaint is liable to be dismissed. Accordingly, we proceed to pass the following:

O R D E R

        The complaint filed by the complainants is dismissed as barred by limitation. Considering the nature of dispute there is no order as to costs.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 29^th day of MARCH-2012.)

MEMBER                                                                   PRESIDENT

Cs.