Date of filing :- 01/07/2015.
Date of Order:- 23/11/2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H
Consumer Complaint No. 40 of 2015
Biraj Krishna Mishra, S/o Late Prana Krishna Mishra, aged about 60 (sixty) years, Occupation :- Pensioner, R/o. Ward No. 14, (Shastri Nagar) Bargarh, Po/Ps/Dist.-Bargarh. ..... ..... ..... ..... Complainant.
- V e r s u s -
The Chief Executive Officer, Sambalpur District Co-operative Central Bank Ltd., Bargarh, At. SDCC Bank Ltd., Head Office at Bargarh, P.O and Dist. Bargarh.
Registrar Co-operative Societies (Orissa), Head of the Department Building, 7th Floor, Back side of Orissa Secretariat, Bhubaneswar, Pin 751001 (Odisha). ..... ..... ..... Opposite Parties.
Counsel for the Parties.
For the Complainant:- Sri P.N. Dash, Advocate.
For the Opposite Party No.1(one):- Sri R.K. Satpathy, Advocate with other Advocates.
For the Opposite Party No.2(two):- Ex-parte.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Dt.23/11/2016 -: J U D G E M E N T :-
Presented by Sri P.K. Dash, Member:-
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act 1986. The gist of the Complaint described here under.
The Sambalpur District Co-operative Central Bank Ltd constituted vide 51-SM Dt.16/06/56 under O.C.S. Act 1962 and guided by Reserve Bank of India here- in- after referred to as respondent/Opposite Party No.1(one) where as Registrar Co-operative Societies (Orissa) Bhubaneswar is respondent/Opposite Party No. 2(two) in the Complaint.
The Petitioner was an employee under the Opposite Party No.1(one) bank appointed on Dt.01/08/1976 and was retired as Branch Manager on Dt.28/02/2014 on superannuation from his service.
That after retirement the petitioner got his gratuity of an amount Rs.7,50,000/-(Rupees seven lakh fifty thousand)only form the Opposite Party No.1(one) bank which was credited to his saving Bank account bearing No.03205 in the Opposite Party No.1(one) bank. The concept of gratuity as reveals from the Complaint is that a group of employees constituted by the management, a certain amount is deposited in their favor in the L.I.C, P & G Dept. by the Management and after retirement of the employees, on asking by the management, the LIC prepared a bill and sent to the management for final disbursement to the employees.
Further complaint reveals the Complainant is a consumer of the bank/Opposite Party No.1(one) as gratuity is paid as per Rule-51 Services Rules 1984 prescribed by the Registrar Co-operative Societies u/s 33-A of the Orissa Co-operative Societies Act 1962. Every employee of the Opposite Party bank is entitle for gratuity amount prescribed as per provision of the payment of Gratuity Act 1972 read with Odisha payment of Gratuity Rules 1974.
Further the complaint reveals the gratuity amount as per Sec 4 sub Sec 3 of the payment of Gratuity (Amendment) Act 1910 has been enhanced from three lakh fifty thousand rupees to a maximum of ten lakhs rupees and the Opposite Party No.1(one) bank is under the purview of said amendment since 2010. So also gratuity is the personal property of the employee which can not be altered by the employer in any manner. As per provision prescribed under Sec 4 (A) of the Payment of Gratuity Act 1972 liability of the bank to pay gratuity has been insured with L.I.C. of India.
Further more the complaint reveals the Opposite Party No. 1(one) bank has been credited Rs.8,82,645/-(Rupees eight lakh eighty two thousand six hundred forty five)only and Rs.46,455/-(Rupees forty six thousand four hundred fifty five)only in total Rs. 9,29,100/-(Rupees nine lakh twenty nine thousand one hundred)only by the L.I.C. Of India in favor of the petitioner but the Opposite Party No.1(one) bank has paid gratuity amount to the petitioner for an amount of Rs.7,50,000/-(Rupees seven lakh fifty thousand)only on Dt.11/04/2014.
In the instant circumstance the petitioner seeks the redressal of his grievance by the Forum to direct the Opposite Parties to pay the differential gratuity amount to him.
The petitioner in support of his contention has relied upon the xerox copies of the following documents :-
Letter No. 1030 Dt.03/06/2015 sent by respondent to Deputy Register, Bargarh.
Letter No. 150 Dt.15/04/2014 regarding payment of Gratuity sent by bank to the Petitioner.
Notification No. SO 1217 (E) Dt. 24/05/2010.
Letter issued by Petitioner to the respondent Dt.09/06/2015.
A news has been published in daily Sambad on Dt.27/03/2013.
Copy of staff service rules – 1984.
Copy of Human Resource Policy – 2011.
Copy of Classification of the R.C.S.(o) regarding payment of gratuity Dt.30/09/2014.
Copy of extract of proceeding of COM of SDCCB Dt.17/06/2011.
Gratuity released by the LIC in favor of Complainant Dt. 10/03/04 and Dt.04/05/15.
The Payment Of Gratuity Act,1972.
The payment of Gratuity (Amendment) Act 2010.
Judgment copy of SCDRC, West Bengal in SC case No. FA/117/2010.
Judgment copy of NCDRC, New Delhi in Revision Petition No. 3382 of 2013.
Copy of particular of Pension scheme and Details of Members of the employee.
Copy of Judgment AIR 2008 Supreme Court 2957.
Being noticed the Opposite Party No.1(one) appeared through his counsel and filed his version before the Forum. The Opposite Party No.2(two) did not appeared and contested hence set ex-parte in the complaint.
The Opposite Party No.1(one) in its version admitted the facts that the Opposite party No.1(one) is a registered co-operative society under the Orissa. Co-operative societies Act 1962 and guided by the Reserve Bank of India, and that the Complainant was an employee under the Opposite Party No.1(one) bank appointed on Dt. 01/08/76 and superannuated as the Branch Manager on Dt.28/02/2014 and that the Opposite Party No.1(one) was the employer of the Complainant and as per sec 33-A of the O.C.S. Act 1962 the Complainant is guided by the service Rules (HR Policy) of the bank and that Opposite Party No.1(one) has adopted the Human Resources Policy of the R.C.S. (O) and that the Opposite Party No.1(one) in its committee of Management Dt.17/06/2011 has adopted to pay Rs.7,50,000/-(Rupees seven lakh fifty thousand)only maximum to the Complainant as gratuity and that L.I.C Ltd has paid Rs. 9,29,100/-(Rupees nine lakh twenty nine thousand one hundred)only to the Opposite Party No.1(one) bank in favor of the petitioner as per H.R. Policy of the bank.
Further the Opposite Party No.1(one) in its version contends that the Complainant is not a consumer of the Opposite Party No.1(one) bank as gratuity is not covered under the scope and ambit of Consumer Protection Act 1986 as gratuity of an employee is guided under the payment of Gratuity Act 1972 and Orissa payment of Gratuity Rules 1974. Further the payment of gratuity is calculated on many complicated question of Law and facts like last payment of the employees, application of the Gratuity Rules and Orissa Govt. finance Department Notification and its applicability and consumer fora decide the cases of summary in nature lacks jurisdiction in deciding such matter.
Further the version of the Opposite Party No.1(one) contends that under the payment of Gratuity Act 1972 a special designated Authority (Court) has been designated and empowered to deal with the gratuity matter hence complaint not maintainable before this consumer Forum. Further version reveals that as per prevailing H.R. Policy of bank the Complainant is not entitled for the rest gratuity amount as claimed for and the case is not maintainable for want of jurisdiction and prays for dismissal of the Complaint.
The Opposite Party No.1(one) relies upon the xerox copies of the following documents.
Gratuity statement supplied by L.I.C of India including additional gratuity (3 sheets).
Decision of committee of Management Dt.17/06/2011 relating to gratuity payment.
Gone through the pleadings of the parties, heard arguments from both the Complainant and Opposite Parties No.1 (one), perused the memo of arguments, citations and documents filed by the parties and delving deep into the matter the forum found the facts which are admitted by the parties.
Facts admitted :-
The Opposite Parties No.1(one) is a registered cooperative society under the O.C.S. Act 1962 guided by the Reserve Bank of India.
The Complainant was an employee under the Opposite Party appointed on Dt.01/08/1976 and superannuated as Branch Manager on Dt.28/02/2014.
The Opposite Party No.1(one) was the employer of the petitioner as per sec 33-A of the O.C.S. Act 1962 and guided by the service Rules (H.R. Policy) of the Bank.
Gratuity of an employee is guided under the payment of Gratuity Act 1972 and Orissa payment of Gratuity Rules 1974.
Opposite Party No.1(one) has adopted the Human Resource policy of the RCS (O) and the committee of Management vide its order Dt.17/06/2011 adopted to pay Rs.7.5 lakh to the Complainant as to his gratuity payment.
The Opposite Party No.1(one) bank has received Rs.9,29,100/-(Rupees nine lakh twenty nine thousand one hundred)only in total from the LIC of India drawn in favor of the petitioner.
It is the settled principle of law that the facts which are admitted by the parties need not be probe again.
For the just decision of the complaint, the core issues likely to be decided are as follows :-
Whether the Petitioner/Complainant is a consumer under the Opposite Party No.1(one) as per provision of the Consumer Protection Act 1986 ?
Whether the complaint as to payment of gratuity is maintainable before the Consumer Fora?
What relief the Complainant/Petitioner is entitled to ?
Answering Issue No.1(one).
The Management of the Opposite Party No.1(one) deposited certain amount in favor of his employees before the L.I.C of India and that money is utilized or paid to the employees after their retirement as a gratuity payment. So money deposited in this regard by the Opposite Party No.1(one) before the L.I.C. is a consideration money of the employees and the Opposite Party No.1(one) is not giving free service to the employees or not a case of rendering of service under contract of personal service so as to bring relationship before the employer (OP No.1) and employee (Petitioner) as master and servant. The Complainant has cited some decisions i.e. AIR 2008 Supreme Court page 2957 At Page 2960 (Para-20) State Consumer Case No.EA/117/2010 and NCDRC Revision Petition No.3382/2013, where in it is held by their Lordship that the person responsible for working of pension scheme is service giver within the meaning of 2 (I) (O) of the Consumer Protection Act 1986 and the employee is the consumer within the meaning of 2(I) d (II) of the Consumer Protection Act 1986. So these citations are squarely applicable to this issue and the Complainant/petitioner is a consumer under the Opposite Party No.1(one) bank. The issue No.1(one) is answered affirmatively.
Answering Issue No.2(two).
In answering issue No.2(two) the Opposite Party in its version para-4(four) and memo of argument has made contention that claim for gratuity payment as alternative court is available can not be entertained and decided by consumer Fora.
Be it mentioned here that Sec-3(three) of the Consumer Protection Act-1986 envisages that the provision of the Act are in addition to and are not in derogation of any other law time being in force. Having due regard to the scheme of the Act and as purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted in its strict legal sense.
Hon'ble Supreme Court, Hon'ble National Commission and many Hon'ble State Commissions have decided in many reported cases, the applicability of Sec 3(three) of Consumer Protection Act-1986 in complaint Cases/Appeals of various nature and their lordships have convincingly hold that unless there is specific bar in any other law time being in force, the Consumer Fora under Sec 3(three) of Consumer Protection Act-1986 are empowered to entertain Consumer Complaint in addition to other laws. Hon'ble National Commission in a decision reported in I (2008) CPJ 219(NC) between Venkatesh and others Vrs Vishwanath and others), his lordship has categorically decided that for a claim of Gratuity amount additional remedy is available to the Consumers under Consumer Protection Act and that the Complainant is a Consumer and Consumer fora have Jurisdiction to entertain such cases which contention is also earlier decided in same manner in S.C Case No. FA/266/2009 and FA/08/400 that Consumer Complaint of present nature is maintainable under Consumer Protection Act 1986 for a claim of gratuity.
So in the context of decisions discussed above the Forum arrived at a conclusion that claim for payment of gratuity can be entertained by the consumer fora and in the instant case District Consumer forum has rightly entertained the Consumer Complaint. So the issue is answered affirmatively.
Answering Issue No.3(three).
In answering issue No.3(three) the Opposite Party No.1(one) is its version has categorically admitted that the Complainant is entitle to gratuity benefit under the provision of Payment of gratuity Act, 1972 read with Odisha payment of gratuity Rule 1974. Complainant and Opposite Party No.1(one) have filed so many documents regarding the status of the employees for payment of gratuity benefit. More specifically the Opposite Party No.2(two) in Letter No.17787 Dt. 30/09/2014 to the secretary SDCC Bank Ltd. has replied to its office Letter No.3560/ Dt.06/08/2014 that employees of the bank shall be entitled for payment of gratuity as per provision of Payment of gratuity Act ,1972 read with Odisha payment of gratuity Rules 1974. Opposite Party No.1(one) in its version as well as through written documents have admitted that the Opposite Party No.1(one) has received an amount of Rs. 9,29,100/-(Rupees nine lakh twenty nine thousand one hundred)only from L.I.C of India Ltd. in favor of the Complainant and the Complainant has been paid Rs.7,50,000/-(Rupees seven lakh fifty thousand)only towards gratuity by the opposite Party No.1(one). In the entire case, the opposite Party No.1(one) has not made any rebuttal to the contention and claim of the Complainant except jurisdictional points which clearly indicate that the Opposite Parties are playing hide and seek game with the Complainant with different pleas knowing very well that the Complainant is entitle to get the differential amount.
Hence in the instant circumstance owing to the provision of various State and Central Laws regarding payment of gratuity,service status of such employee, the forum held that the Petitioner/Complainant is entitled for the differential amount between Rs. 9,29,100/-( Rupees nine lakh twenty nine thousand one hundred)only and Rs.7,50,000/-( Rupees seven lakh fifty thousand)only with the reasonable interest and the issue No.3 in answered as above.
Hence the forum Order as follows.
O R D E R
The Opposite Parties are jointly and severally directed to pay Rs. 1,79,100/-(Rupees one lakh seventy nine thousand and one hundred)only as the differential gratuity amount along with an interest @6% per annum from Dt.11.04.2014 till the date of Order i.e. Dt.23/11/2016 to the Complainant and compensation for mental agony, harassment and litigation expenses of an amount of Rs. 10,000/-(Rupees ten thousand)only, within one month from the date of Order, failing which the total awarded amount shall carry interest @12% per annum till the actual date of payment.
Further the forum warns the Opposite Parties not to repeat aforesaid practice in future.
The complaint is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
(Sri Pradeep Kumar Dash)
M e m b e r.
I agree,
(Sri Krishna Prasad Mishra)
P r e s i d e n t.
