Back
2011(4) CPR 264 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
V.R. Kingaonkar, Presiding Member and Vinay Kumar, Member
Manager, Zila Sahakari Kendriya
Bank Ltd. —Petitioner
versus
Hari Narayan Bhargava (Dead) through
Legal Representatives & Ors. —Respondents
Revision Petition No. 1164 of 2010
Decided on 22.9.2011
Counsel for the Parties:
For the Petitioner:Mr. Naveen Sharma, Advocate.
For the Respondent:Mr. Avneesh Garg, Advocate for Mr. A.R. Takkar, Advocate.
IMPORTANT POINT
Contract between master and servant is always of different character from contract of service between consumer and service provider.
Headnote:(A) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o), 15 , 17 , 19 and 21—Banking—Refusal of Petitioner-Bank to credit amount of Gratuity and Group Insurance in account of respondent for recovery of amount due—Deceased respondent (complainant) was Manager of Petitioner-Bank—Complaint allowed by Fora below—In case of gratuitous service available to employee of Petitioner-Bank, in respect of banking account, service cannot be within ambit of Section 2 (1) (o)—When amount was withheld for the reason that certain amounts were recoverable from respondent (complainant), complaint was not for deficiencies in personal service—Complaint could not have been entertained by District Forum—Fora below committed patent error while allowing complaint in ignorance of import of expression ‘service’ as used in Section 2 (1) (o)—Impugned orders unsustainable and liable to be set aside. (Paras 8 to 13)
(B) Consumer Protection Act, 1986—Sections 2(1)(g) and 2(1)(o)—Service—Contract between master and servant is always of different character from contract of service between consumer and service provider—In case of contract between consumer and service provider, consumer is in commanding position because he is required to pay necessary service charges and seeks to obtain services as per his requirement— He can maintain a complaint that service rendered to him was of inferior quality or that there was deficiency in service or that service was not rendered in spite of payment of charges made by him—However, in case of service of an employee, there is absolutely no dominance of employee likewise one available to consumer—Exclusion of service under contract of personal service will have to be understood having regard to nature of service for which complaint is lodged with Consumer Forum. (Para 8)
V.R. Kingaonkar, Presiding Member—This revision petition is directed against concurrent judgements rendered by the District Forum and the State Commission whereby complaint of respondent was allowed.
2. The revision petition involves a significant question of law as to whether refusal of the Petitioner-Bank to credit amount of Gratuity and Group Insurance in the account of the respondent can be branded as deficiency in the banking service as contemplated under Section 2 (o) of the Consumer Protection Act, 1986.
3. Before embarking upon determination of the above-referred clinching question, it would be useful to set out the factual matrix. Undisputedly, the deceased respondent (complainant) was Manager of the Petitioner-Bank. It appears that he was superannuated on 31.1.2001. There is no dispute about the fact that the amount of Gratuity and Group Insurance Scheme was payable to the respondent on account of his superannuation. The amount had not been, however, paid to him. As an employee of the petitioner, the respondent was having A/c. No. 36 in the Petitioner’s-Bank. The Petitioner-Bank noticed that certain amounts were recoverable from the respondent being the amounts, which were retained by him or given to him by way of advance. The Petitioner-Bank found that total amount recoverable from the respondent was Rs.2,12,588.94 along with future interest. In view of the recovery to be made from the respondent, the Petitioner-Bank withheld the said amount of Group Insurance Scheme and the gratuity, though, by the time such amounts were available, the respondent was paid provident fund of Rs.2,96,841/- and encashment of leave to the tune of Rs.65,964/-.
4. The respondent (complainant) filed complaint under Section 12 of the Consumer Protection Act, 1986 alleging that the Petitioner-Bank committed deficiency in the service by not depositing his due amount of gratuity and Group Insurance Scheme in his account. It was the case of the Petitioner-Bank that internal inquiry was conducted after the retirement of the respondent. A report of Deputy Director was received by the Petitioner-Bank on 16.8.2001. As per the inquiry report, the respondent was found guilty of withholding and misappropriation of funds and, therefore, a departmental inquiry was proposed. The amounts were, therefore, adjusted towards the excess payment or the misappropriated amounts and as such, there was no deficiency in the banking service.
5. Both the Fora below held that the amount payable to the respondent could not have been withheld by the Petitioner-Bank in contemplation of departmental inquiry. The State Commission held that the inquiry was conducted by the Deputy Director without observing principles of natural justice and, therefore, the amounts payable to the respondent could not have been withheld by the Petitioner-Bank. Relying upon the case of Radheshyam Khichrolia v. M.P. State Co-operative Marketing Federation Ltd. & Anr.1, the State Commission held that in absence of any provision made for continuance of departmental inquiry after the superannuation, the Petitioner-Bank had no legal authority to take action by way of punishment or recovery. The State Commission also held that since there was no departmental inquiry instituted during the service tenure of the respondent, there was no question of continuation of such departmental inquiry. In this view of the matter, the State Commission dismissed the appeal of the Petitioner-Bank and confirmed judgement of the District Forum whereby the payment of gratuity and Group Insurance Scheme was directed to be paid to the respondent (complainant) along with the cost of Rs.500.
6. We have heard learned Counsel for the parties. We have also perused the relevant record and the judgments cited by the Counsel for the parties.
7. This is not a case in which the respondent was ordinary customer of the Petitioner-Bank. His Bank A/c. No. 36 was opened by him with the Petitioner-Bank as per terms of the
