DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.406/2008
Sh. B. D. Sharma
B-85, Dena Apartments,
Sector-13, Rohini, Delhi-110085 ……Complainant
Versus
1. M/s Dena Bank
Through its Chairman and
Managing Director,
“Dena Corporate Centre”
C-10, G-Block, Bandra- Kurla Complex,
Bandra East, Mumbai-400051
2. M/s Dena Bank
Provident Fund Department
Through its Incharge, Sharda Bhawan,
1st Floor, Opp. Mithibai College,
V.M. Marg, J.V.P.D. Scheme, Vile Parle,
West Mumbai-400056 …… Opposite Parties
Date of Institution : 24.06.08 Date of Order : 03.03.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Brief facts of the case as stated in the complaint are that the Complainant had joined the OP Bank on 12.06.1988 and retired on 21.03.2002 before attending the age of superannuation under the garb of non recovery of advances from the willful defaulters. He was victimized in the name of the departmental action and his services were dispensed with on 31.03.2002 alongwith five other officers, namely, Mr. J. D. K. Jain, Mr. Prem Singh Kalyan, Mr. I. S. Suri, Mr. P. K. Sahi and Mr. Ravinder Malik for non recovery of loan of Rs.209.48 lakhs. As per rule 18 of the Dena Bank Employees Provident Fund Rules “If a contributory is dismissed for fraud or misconduct the bank shall be entitled to recover from the contributions made by the bank to the individual account of the contributor and the interest (simple and compound) credited in respect of such contribution any loss or damage resulting to the bank from the cause entailing such dismissal the Board shall be entitled to declare the amount of loss or damage so resulting and their declaration in that behalf shall be final and conclusive and the amount so declared shall be paid to the bank.” The Complainant has stated that the OPs were liable to pay the contributory provident fund within 30 days from the date of retirement being the member of beneficiary of that scheme. The OPs did not pay an amount of Rs.3,51,433.72 to him. He had made all the efforts but all in vain. He sent a legal notice on 26.10.07 which was replied by the AGM vide letter dated 24.12.07 without giving any clarification. The OP No.2 sent periodical statement of account of provident fund upto 19.06.06 but after that no statement was received. The OPs had made partly payment of his own contribution on 07.03.08 but they did not pay the amount of Contributory Provident Fund (CPF) of Rs.3,51,433.72 plus interest @ 8.5% p.a. on his retirement till date. Hence, the OPs are liable for deficiency in service for non-payment of CPF. The Complainant has prayed as under:-
- Direct the OPs to pay Rs.1 lac for loss and mental agony due to negligence on the part of OPs.
- Direct the OPs to pay interest @ 8.5% since March 2002 till the date of actual payment of Rs. 3,51,433.72 and penal interest of 18%.
OPs in their written statement have stated that the complaint is liable to be dismissed as the Complainant is not a consumer nor the issue raised by him is a consumer dispute; that he has concealed the material facts from this Forum; that on 12.06.1988 while working as a Branch Manager, Mayapuri Branch, New Delhi-64, he had committed serious irregularities/lapses due to which OPs had suffered huge financial losses to the extent of Rs.209.48 lacs and he was charged sheeted by the OPs on 20.01.1998, 28.02.1998, 02.07.1999 and 04.12.1999 and he was placed under suspension vide letter dated 12.09.1997. He was dismissed from the services vide memo dated 21.03.2002. The Complainant had already filed a complaint No.313/08 before this Forum whereby he had claimed the benefit of the provident fund and the present case has been filed for the same relief for his own contribution; the said relief was also available to him at the time of filing of the earlier complaint and hence he had foregone his right to claim further amount by filing the fresh case. The complaint is liable to be dismissed.
Complainant has filed rejoinder to the written statement of OPs.
It is stated as under:-
“……. The fact is that complaint case No.313/2008 is pertaining to partly and non payment of own contribution and the present case is related to non payment of contributed provident fund which has been forfeited under the garb of dismissal in most arbitrary manner……”
Complainant has filed his own affidavit in evidence while affidavit of Sh. S. Majumdar, Deputy Regional Manager has been filed in evidence on behalf of OPs.
Written arguments have been filed. We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
We have gone through the decisions reported in Civil Appeal No. 6770 of 2013 titled as State of Jharkhand & Ors Vs Jitendra Kumar Srivastava & Anr. decided on 14.1.2003 by the Supreme Court and Punjab National Band Vs Shri Sunil Kumar Poddar, (2008)(3) CPR 211 (NC) decided by the National Consumer Disputes Redressal Commission, New Delhi relied on behalf of the complainant. There is no dispute about the proposition of law laid down in the judgments. However, we proceed to dispose of the complaint on a legal point. The complainant had admittedly earlier filed complaint No. 313/08 before this Forum wherein he had claimed the benefit of the Provident Fund deposited by him with the OPs. That complaint was decreed in his favour. Undisputably, that amount has already been paid to the complainant by the OPs. It is not the case of the complainant that he had filed complaint No. 313/08 by reserving his right to file another complaint in respect of his right to claim the amount of Contributory Provident Fund (CPF) deposited by the OPs. At the time of filing of the complaint No. 313/08 the said right was available to the complainant but, however, he did not do so for the reasons best known to him. Now, he has filed the present complaint by claiming the amount of CPF. It is not his case that while filing the earlier complaint he had sought the permission of the Forum to file another complaint in respect of his right to claim CPF from the OPs. Therefore, in our considered opinion, the complainant should be deemed to have waived off/relinquished his right to claim the amount of CPF by taking recourse of the law or by filing a complaint before the Consumer Forum. We say so on the basis of analogy of the provision laid down in Order 2 Rule 2 CPC. We are not oblivious of the fact that the provisions of CPC do not apply to the proceedings under the Consumer protection Act. However, the analogy of the law laid down in CPC can be drawn in order to reach to right and just conclusion. Therefore, we hold that the present complaint is not maintainable.
In view of the above discussion, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 03.03.3016.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 406/08
03.03.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
