(Delivered on 03/02/2023)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant –Bank of Maharashtra  has preferred the present  appeal challenging  the judgment and order dated 12/10/2021 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No.  561/2020 whereby the learned District Consumer Commission, Nagpur  allowed the  Consumer Complaint  filed by the complainant/ respondent Smt. Pranita Rohit Dhakata and directed the  appellants  to defreeze the pension  account as well as saving account of the complainant /respondent and also  to pay interest  at the rate of 10% on the amount  of Rs. 8,65,242/- as well as compensation of Rs. 1,00,000/- and cost of litigation.

    2.     Short facts leading to filing of the complaint may be narrated as under,

            Complainant – Smt. Pranita Rohit Dhakate is the wife of deceased Mr. Rohit Ambadas Dhakate. The complainant is account holder in Ayodhya Nagar Branch of Maharashtra and is having Pension Account No. 60222251365 and Saving Account No. 60363231835. The O.P. No. 1 is the Branch Manager of Bank of Maharashtra , Ayodhya Nagar Branch. O.P.No. 2 is the Regional Manager of Bank of Maharashtra and the O.P.No.3 is the  Chairman, Bank of Maharashtra. The complainant  has contended that  her husband  Mr. Rohit Dhakate was  serving  as a Senior  Branch Manager in Dharampeth Brach of  Bank of Maharashtra   and was  compulsory retired from service on the allegations of committing  certain irregularities.  The complainant has contended that the Disciplinary Enquiry was conducted and the amount of gratuity payable to the complainant was withheld by the O.P. Nos. 2&3.  The complainant’s husband thereafter  filed  the case  in  Labour Court, at Nagpur under the Payment of Gratuity Act,1972 and Assistant Labour  Commissioner  passed an order  in  favour of the husband of the complainant  for  releasing  the gratuity amount of Rs. 6,83,077/- alongwith interest at the rate of 10%.  The complainant has contended that her husband suddenly died  due to Brain Stroke on 23/07/2020.  The complainant has contended that on 26/08/2020 the O.P. No. 1 informed the complainant  that her gratuity  amount is received from Head Office and  asked her to  attend the  branch office. The complainant then attended the  branch office. The complainant has contended that the O.P.No.1 on her own credited the amount of Rs.8,65,242/- in the pension account of the  complainant bearing No. 60222251365. The complainant thereafter withdrew the amount of Rs.1,92,226/- and from the balance amount she  repaid outstanding  debts  of her  relatives  and friends. On 13/10/2020 by one letter  the O.P.No.1 informed  the complainant  that  the amount of Rs. 8,65,242/- was wrongly  and inadvertently  paid  to her and so asked  the complainant  to  return the said amount.  The complainant then informed the O.P.Nos. 2 and 3 that  as per  order of  Labour Court, Nagpur she was  entitled  for  gratuity  amount and  asked the O.P.Nos.2 and 3 to adjust  the amount  internally within the  bank but  instead of making internal adjustment the O.P.No.1 unlawfully blocked the Pension Account No. 60222251365 as well as Saving Bank Account No. 60363231835  without any  fault of the  complainant.  The complainant has contended that the O.P.Nos.1 to 3 had by freezing the Pension Account and Saving Bank Account had committed the deficiency in service. The O.P.Nos.1 to 3 have no right to block the Pension Account of the complainant unlawfully or to withhold the amount. The complainant therefore, was compelled to file the Consumer complaint under the provisions of Consumer Protection Act, 2019.

 3.        After filing of the present complaint, due notice was issued to the O.P.Nos.1 to 3 and O.P.Nos.1 to 3 have appeared before the Learned District Consumer Commission, Nagpur by filing written version on record and resisted the complaint. The O.Ps. have admitted that  the husband of the complainant was working as a Senior Manager at Dharampeth Branch and had come to be retired compulsorily. The opponents have contended that the complainant had committed misappropriation of the amount of the Bank while he was posted at Chandrapur on 14/09/2009 to 25/05/2012 and so Departmental Enquiry was conducted. The O.Ps. have contended that by way of punishment  the gratuity amount of the  husband of the complainant  was stopped and so the complainant had filed the case before the Labour Court. The Assistance Labour Commissioner had thereafter decided the matter and directed bank to pay the gratuity of Rs.6,83,077/- alongwith interest.  The opponents’ bank thereafter filed an appeal but they were not successful.  The O.Ps has taken a specific  plea that the complainant was entitled  for the sum of Rs. 6,83,077/-  but  erroneously  an amount of Rs. 8,65,242/- belonging to one  Mr. Mahadeo Vithoba Dhakate had  come to  be credited in the  pension account of complainant.  The  O.Ps.  has contended that  the  said  mistake was  inadvertent  and complainant should  have not  withdrawn  the amount but  complainant withdrew the amount. The  complainant  was liable to  repay the said amount to the bank. There was no deficiency in service of the O.P. Nos.1 to 3 and so the complaint filed by the complainant needs to be dismissed.

 4.        The learned District Consumer Commission, Nagpur thereafter recorded the evidence led by the complainant as well as by O.P. Nos. 1 to 3 The learned District Consumer Commission, Nagpur also went through the documents as well as written notes of argument filed by the complainant as well as O.P. Nos. 1 to 3. After appreciating the documentary evidence and notes of arguments, the learned District Consumer Commission, Nagpur allowed the complaint and directed the O.Ps. to defreeze  the Saving Account as well as Pension Account. The learned District Consumer Commission, Nagpur also directed the O.Ps.  to pay interest  at the rate of 10% on the amount of Rs. 8,65,242/- and also to pay compensation  of Rs. 1,00,000/- towards  mental  and physical  harassment  as well as cost of litigation by  judgment and order dated 12/10/2021.   Again this judgment and order dated 12/10/2021 the present appellant has come up in the present appeal.

5.         We have heard Mrs. Renuka Nalamwar, learned advocate for the appellant and Mrs. Rohilla, learned advocate for the respondent Nos. 1 to 3. We have also perused the record, copies of which are filed on record.  On the basis of the facts stated above   the following  points  arises  for our determination with our finding recorded against the same and reasons  to follow.

REASONS FOR FINDINGS.

6.         Prior to adverting to the rival contentions made on behalf of the appellant and respondent it would be relevant  to notice certain undisputed facts.  It is not  in dispute  that  the husband  of the respondent / complainant – Smt. Pranita Rohit Dhakate namely  Rohit Dhakate was working as a Branch Manager with  Bank of Maharashtra, Dharampeth Branch  and was compulsorily  retired.  It is also not seriously in dispute that initially the amount of gratuity to which the complainant was entitled was not paid to him after retirement and so he had lodged the complaint as well as one case in the Labour Court. It is not in disputed that  the Labour Court, Nagpur has passed an order dated 23/07/2020  directing  the appellant - Bank of Maharashtra to pay gratuity amount of Rs. 6,83,077/- along with interest  at the rate of 10% to the  respondent /complainant. It is further not in dispute that during the pendency husband of the complainant namely Rohit Dhakate died due to Brain Hemorrhage  on 23/07/2020. There is also no dispute that the appeal filed against the order passed by the  Labour Court was also dismissed on 24/02/2021 and thereafter  the  appeal preferred before the Hon’ble Bombay High Court, Bench at Nagpur  also came  to be dismissed on 08/04/2022. There is also not in dispute that the respondent  /complainant  is having Pension Account  bearing No. 60222251365 and Saving Account bearing  No. 60363231835. The respondent /complainant  has come with  the plea that  on 26/08/2020 she was given  intimation  that  as per orders passed by the various  Forums  the amount of gratuity  amount has been credited  in the pension  account.  It appears that the  O.P. No. 1 had transferred  an  amount of Rs. 8,65,242/- in the pension account  of the respondent /complainant. The respondent /complainant thereafter withdrew an amount of Rs.1,92,226/- out of the total amount of gratuity to repay the loans  of her husband.  The respondent/complainant thereafter received another letter dated 13/10/2020 informing  respondent /complainant that  inadvertently  the amount belonging to  one other  person  of similar name  namely  Mahadeo Dhakate has wrongly been credited  in the account of the present respondent/complainant. The respondent /complainant thereafter informed the O.P.No. 1- Brach Manager that since the amount of gratuity was credited in her account she has withdrawn the same and is unable to refund the amount as demanded by the O.P. No. 1.  It is the main grievance of the respondent /complainant that despite having full knowledge of the fact that the respondent/complainant  was entitled  for amount of gratuity  of her husband,  the O.P. No. 1- Brnach Manager had freezed   the Pension Account of the respondent/complainant  which not only  amounted to  deficiency in service but also  the illegality  as the pension of the respondent /complainant  cannot be withheld or stopped at all.  The respondent/complainant has contended that due to illegally freezing of pension account, the respondent / complainant is unable to withdraw her pension which is her right . It appears that since there was no response from the O.P. No. 1- Branch Manager the respondent/ complainant has compelled to file the present complaint under the Consumer Protection Act, 1986, which also came to be allowed by the learned District Consumer Commission, Nagpur and direction was given to the O.P. No. 1- Branch Manager to allow the complainant/ respondent to operate her Saving Bank Account as well as Pension Account.

7.         Mrs. Renuka Nalamwar, learned advocate appearing for the Appellant has contended that the respondent/complainant was entitled to gratuity amounting to Rs. 6,83,077/- and not Rs. 8,65,242/- but inadvertently due to mistake on the part of the staff the amount of Rs. 8,65,242/- was wrongly  credited  in the name of the respondent/complainant which  was  in fact belonging to another  staff member namely Mahadeo Dhakate.  It is submitted by Mrs. Renuka Nalamwar, learned advocate for the appellant that with the    malafide intention the respondent/complainant has withdrawn the entire amount and same amounted to unjust enrichment. Admittedly, the respondent/complainant had refunded an amount of Rs. 3,20,000/- vide cheque No. 0038 dated 09/11/2020 but  the remaining amount  was not refunded with a mala fide intention. It is contended by the learned advocate for the appellant that the pension account and saving account of the respondent/complainant was put on hold to recover the balance amount of Rs. 5,45,242/- as  the gratuity  amount  of her husband-Rohit Dhakate  was already  forfeited  under Section  4(6) of the Payment of  Gratuity Act, 1972. It is submitted on behalf of the appellant  that  the order  passed by the  Hon’ble High Court had not  at all attained finality  as the appellant  has also filed a Review Application  before  the  Hon,ble High Court and same  was  pending and so it cannot be  said that  the  appellant  was entitled  for the  gratuity  amount.  It is argued  by the learned advocate for the  appellant that  despite  this situation  the respondent/complainant had not only filed the instant  Consumer Complaint  but had also  filed another  complaint  before the Bank Ombudsman, Mumbai. It is submitted on behalf of the appellant  that  the  punishment of forfeiture imposed under the  Payment of Gratuity Act, 1972 cannot be termed as  deficiency in service under the Consumer Protection Act, 2019  but the  learned District Consumer Commission, Nagpur has not appreciated  this fact in proper  perspective  and has passed the impugned order dated 12/10/2021 directing the O.P.-Bank of Maharashtra  to release  and defreeze  the pension account as well as saving account.

8.         We have heard Mrs. Rohilla, learned advocate for the respondent/complainant and she has strongly rebutted the contentions advanced by the learned advocate for the appellant.  Mrs. Rohilla, learned advocate for the respondent/complainant has advanced argument on various aspects. At the outset  it is submitted by the learned advocate for the respondent/complainant that  the question of payment  of gratuity  to the respondent/ complainant was finally  decided  not only by the Labour Court but also  confirmed by the Hon’ble  High Court and accordingly specific order has been passed by the Competent  Authority  releasing  the gratuity  of amount Rs. 6,83,077/- along with interest. It is submitted by the learned advocate for the respondent/complainant that the appellant /O.P. was specifically  informed  by the respondent/complainant on 26/08/2020 that  her  gratuity  payment  was received and amount of Rs. 8,65,242/- was credited  in Pension Account No. 60222251365 which was joint account with her husband and therefore  she  rightly withdrew the amount for  making  repayment of loans taken by her  husband.  It is submitted by the learned advocate for the respondent/complainant that  the respondent/complainant was not  at fault in withdrawing the amount as per  the letter issued  by the  Bank of Maharashtra but  despite  this aspect  the appellant –Bank of Maharashtra had  indulged in  deficiency  in  service by freezing the pension account of the respondent/complainant in unlawful  manner. Mrs. Rohilla, learned advocate for the respondent/complainant has contended that  Account No. 60222251365 was Pension  account and it was not open  to Bank of Maharashtra  to freeze  pension account as  the respondent/complainant has  thereby  being  deprived  of her legitimate  pension.  It is argued by Mrs. Rohilla, learned advocate for the respondent/ complainant that availing the pension is a right of the employee and no recovery can be made from the Pension also. Further  it is  submitted  that no  attempt  can be made to  take away a part of pension and gratuity or leave encashment  without  any  statutory  provisions.  On this aspect Mrs. Rohilla, learned advocate for the respondent/complainant has heavily relied upon one judgment in the case of State of Jharkhand & Ors Vs. Jitendra Kumar Srivastava and Anr. delivered by the  Hon’ble Supreme Court on 14/08/2013. It is also submitted that there is also no provision of recovery from family pension as per the Bank of Maharashtra Officer- Employees (Conduct) Regulation -1976. Mrs. Rohilla, learned advocate for the respondent/ complainant has also relied upon the judgment in the case of Assistant General Manager, S.B.I.  Vs. Radhey Shyam Pandey, delivered by the Hon’ble Supreme Court on 02/03/2020 in which it has been observed that pension cannot be denied in unfair manner and right to receive pension flows not because of any order, but by virtue of rules..  On the basis  of  the aforesaid judgment  it has been also argued by the  learned advocate for the respondent/complainant that  the  freezing of  the family pension account it  is causing great   hardship  to the respondent/ complainant in house hold  expenditure  and also payment of EMI of house loan. Admittedly, in the present case before us, the account No. 60222251365 was the pension account of the respondent/complainant and an amount of Rs. 8,65,242/- had come  to be credited  in the account inadvertently  due to  some error on the part of the staff member of Bank of Maharashtra. It is not in dispute that the respondent/complainant was entitled for gratuity of amount of Rs. 6,83,077/- and since  due intimation  was given  the respondent/complainant has withdrawn  the same.  There is also not disputed that  that after  getting the intimation  the respondent/complainant had also refunded  the sum  of Rs. 3,30,000/- as per cheque No. 0038/- dated 20/11/2020 which also shows  the bonafide of the respondent/complainant but  the real   dispute  arose as instead of rectifying  the  error  or  adjusting   the same  internally  or by  any other  means  the appellant /O.P. Bank of Maharashtra had frozen  the pension  account  and  also kept the pension  account on hold in arbitrary manner   due to which  the respondent/complainant is unable to withdraw any amount  including  pension amount which is not permissible at all.  Appellant  has come with a plea that  the  freezing  of the pension account as well as saving bank account was done by the appellant Bank of Maharashtra to recover the balance amount of Rs. 5,45.242/- as the gratuity  of her husband was forfeited  under Section 4(6) of Payment of Gratuity  Act, 1972. However, the respondent/complainant filed on record documents to show that the Labour Court, Nagpur had passed an order dated 23/07/2020 directing the payment of gratuity in favour of the respondent/complainant and appeal filed against the said order was also dismissed. Further  the respondent/complainant has also placed on  record  the copy of the order whereby  the Writ Petition preferred by the appellant–Bank of Maharashtra had also come to be dismissed and so the order of payment of gratuity  has already  attained  finality.  Appellant has also not placed on record the documents to show that any stay has been granted or any appeal has been preferred against the order passed by the  Hon’ble High Court. As such the contention of the learned advocate for the appellant that the gratuity of Rohit Dhakate has been forfeited cannot be accepted in the absence of necessary documents on record.  At this aspect it is also necessary to mention that the appellant has not pointed out any provision of law ground as to how the pension account of the respondent/complainant can be frozen or put on hold thereby depriving the family pension of the respondent/ complainant. Admittedly, the present respondent/complainant is the wife of Rohit Dhakate and is entitled for gratuity amount after the order passed by the competent authority namely Assistant Labour Commissioner. Further we feel that the respondent/complainant was also entitled to operate her pension account as well as saving bank account in the normal course and said account could not be freezed  or  made  in operation  in  an arbitrary  manner

9.         During the course of  argument, Mrs. Renuka Nalamwar, learned advocate for the appellant  has also  submitted that  the District Consumer Commission or  State Consumer Commission cannot  decide the issues  related to the pension  and gratuity  as  the specific and  Competent  Forums  are available  for  said  dispute.  On this aspect she has heavily relied upon one judgment of National Commission in the case of Kondareddygari Adinarayanareddy Vs.  State Bank of  Hyderabad and Anr. , Revison Petition  No. 71 of 2013, order passed on 20/07/2022. We have carefully gone through this judgment. In that  case the question was as to whether the employees of the Bank were entitled  for  Provident  Fund Scheme. It was observed that the employees of the Government/Public Sector  servants  do not  fall under  the definition  of the Consumer and  their terminal benefits are governed by the  service condition and  statutory  rules framed  for that purpose. It was also observed in the said case  that  the gratuity  was a service  matter and  was not within  the purview  of  the Consumer Protection  Act, 1986 but  it is  necessary to mention  that the  question  of grant  of gratuity  to  husband of  complainant  is not at all the subject matter of the present Consumer Complaint and the respondent/complainant has instituted  the present  complaint on the sole ground that the appellant –Bank of Maharashtra had committed deficiency in service by  putting  on hold or freezing  the pension account of the respondent/complainant and thereby she  is not in  a position to  operate her  account or withdraw the amount. As such we find that the judgment delivered by the Hon’ble National Commission in the case  of  Kondareddygari Adinarayanareddy Vs.  State Bankof  Hyderabad and Anr.  which relied by the learned advocate for the appellant is not  helpful  to the case of the  appellant.

10.       If we go through the impugned order dated 12/10/2021, the learned District Consumer Commission, Nagpur had dealt with all aspects elaborated  and has also given a finding  that  no general lien   can be placed  upon  the  pension  account.  We do not see any error in the said finding given by the learned District Consumer Commission, Nagpur.  In the light of the aforesaid discussions, we are unable to accept the submissions advanced by the learned advocate for the appellant and so we find that the appeal preferred by the appellant is devoid of any substance. Further, we are also of the view that the interim stay granted earlier to the impugned order dated 12/10/2021 cannot be continued any further.  As such, by way of sequel we pass the following order.

ORDER

i.          Appeal is hereby dismissed.  Stay granted to the impugned order dated 12/10/2021 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No.  561/2020 hereby stands vacated.

ii.          Both parties shall bear their own cost.  

iii.         Copy of order be furnished to both the parties, free of cost.