Dena Bank vs Brij Datt Through Lrs. & 4 Ors

Subhash Chandra, Presiding Member;

This revision petition under section 21 (B) of the Consumer Protection Act, 1986 (in short, the “Act’) assails the order dated 12.08.2016 in First Appeal No. 964 of 2013 of the State Consumer Disputes Redressal Commission, Delhi (in short, the ‘State Commission’) arising from the order dated 10.06.2013 of the District Consumer Disputes Redressal Forum – II, New Delhi (in short, the ‘District Forum’) in Consumer Complaint no. 313 of 2008.  The State Commission’s order upholds the order of the District Forum allowing the complaint of the respondent/complainant.

The facts, as per the petitioner/opposite party, are that the late respondent was its employee who was suspended for financial irregularities on 12.09.1997 and dismissed from service on 21.03.2002 on being found guilty. The respondent challenged this order through Writ Petition (C) 17496 of 2005 before the High Court, Delhi which was contested by the petitioner. On 11.02.2008 the respondent submitted the required forms to the petitioner under the Dena Bank Employees Provident Fund Rules and on 07.03.2008 a sum of Rs 3,73,952/- was paid after adjusting Rs 20,149/- towards vehicle loan. The respondent/complainant approached the District Forum claiming to have been paid Rs 1,77,315/- less. Upon contest, the District Forum allowed the complaint and directed payment of Rs 1,77,315/- with interest @ 9% p.a. w.e.f. 21.02.2002 till 07.03.2008 on Rs 5,71,267/- along with Rs 20,000/- for mental agony and Rs 11,000/- as costs. The appeal, which was contested by the petitioner, was allowed by the State Commission. This order is assailed before this Commission by way of the instant revision petition on the ground that the State Commission failed to appreciate the violation of Rule 14 of the Dena Bank Employees Provident Fund Rules, that the respondent had been removed from service, that the employer’s contribution would not attract interest and that the State Commission failed to exercise the jurisdiction vested in it and acted with material irregularity. It is argued that there was no delay since the certified copy of the impugned order dated 12.08.2016 was made available to it on 03.08.2017 on its application dated 07.07.2017.

I have heard the learned counsel for the petitioner and carefully considered the material on the record. None appeared on behalf of the respondent.

The District Forum’s findings in its order are as below:

It is not disputed that the complainant was terminated/ retired from his service on 21.03.2002 and accepted by the opposite party that the opposite party Bank had to pay the said amount to the complainant within 30 days from the date of retirement from which employment but PPF amount has not been paid to him within the period of 30 days and had paid Rs.3,93,952.35 on 07.03.2008 instead of amount of Rs.5,71,267.35 as per account statement filed by the complainant. The opposite party submitted that the amount of Rs.3,93,952.35 paid to the complainant after deducting the outstanding dues against the vehicle loan. Complainant has filed two account statement of Provident Fund Account dat3ed 19.06.2006 (annexure A) the amount was due upon the opposite party of Rs.5,71,267.35 upto 19.06.2006 and second statement of account issued by the opposite party from Employee Provident Fund department dated 07.03.2008 as per this second statement OP had paid Rs.3,93,952.35 to the complainant. The opposite Bank failed to file any documentary evidence that the complainant had taken vehicle loan and amount of Rs.1,77,315/- had been deducted for adjustment of said dues from his provident fund account. Therefore, we accept the claim of the complainant that the opposite party had paid Rs.3,93,952.35 on 07.03.2008 instead of Rs.5,71,267.35. That means the complainant had received Rs.1,77,315/- less as per account statement dated 19.06.2006 (rs.5,71,267 – Rs.3,93,952/- = Rs.1,77,315/-_. Therefore, the complainant is entitled to get this amount of Rs.1,77,315/- along with interest from 07.03.2008 till today and interest on amount of Rs.5,71,267/- from 21.02.2002 to 07.03.2008 @ 9% per annum.

The State Commission in its order dated 12.08.2016 states as under:

It is admitted position that the respondent/complainant was terminated/dismissed from the service of appellant bank on 21.03.2002 and Provident Fund dues of Rs.3,93,952.35 were paid on 07.03.2008. There is delay of almost 6 years in releasing the said amount. Further the complete dues were not paid to him even on 07.03.2008. Appellant/OP has paid less amount of Rs.1,77,315/- towards Provident Fund dues. In the impugned order, the stand of bank recorded is that the same was deducted towards vehicle loan taken by the respondent/complainant. In the grounds of appeal, it is stated that vehicle loan was Rs.20,149/- which was adjusted while paying Rs.3,73,952.35 to him. The finding of District Forum that Rs.1,77,315/- was paid less is based on statement of account placed on record by respondent/complainant. Nothing contrary is placed on record by appellant/OP. In these circumstances, Ld. District Forum has rightly held that Rs.1,77,315/- towards contribution of Provident Fund was less paid to him.

The Ld. District Forum has also rightly awarded interest by relying upon the judgment of Shri Alok Shankar Pandey vs Union of India & Ors. reported in AIR 2007 SC 1198; wherein it is held that interest is neither a penalty nor punishment at all but it is a normal accretion on capital, that the person who thereon (which otherwise would have been earned by the person who was entitled to that amount), equity demands that the person who kept the money should pay the principal amount to the person to whom it is due with interest. Since the Provident Fund dues of respondent/complainant had remained with the appellant bank from 21.2.2002 to 07.03.2008, the Ld. District Forum has rightly awarded interest on Rs.5,71,267/- for the aforesaid period @9% p.a. The interest on Rs.1,77,315/- is also rightly awarded. Keeping in view the facts and circumstances the compensation amount and litigation cost is also rightly awarded.

In view of above discussion, we find no merits in this appeal. Accordingly, the same stands dismissed.

[ Emphasis added ]

The case of the petitioner is that the orders of the fora below erred in not appreciating that the Dena Bank Employees Provident Fund Rules had not been considered and the respondent/complainant had been directed to be paid an amount that was the employees’ contribution with interest thereon. In view of the fact that the respondent stood dismissed from service, he was not entitled for the same. Reliance was placed upon a Statement of Account in respect of the respondent as on 31.03.2002 dated 07.03.2008 prepared by the Dena Bank Employees Provident Fund Department, Mumbai and it was argued by the Ld. Counsel for the petitioner that the Bank’s contribution and Interest thereon had been incorrectly included in the calculation. This is, however, the petitioner’s own document and its veracity is not disputed. The order of the District Forum has based its finding on the basis of the account statement dated 19.06.2006 which reflects the amount due on that date to be Rs 5,71,267.35 and this statement which indicates payment of Rs 3,93,952.35, i.e. a difference of Rs 1,77,315/-. No documentary evidence has been brought on record by the petitioner to show the basis for this amount to be deducted.

From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.

This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

The Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 dated 18.03.2011 has held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 SCC 286 dated 02.08.2016 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record.  In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

I, therefore, find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. Pending IAs, if any, stand disposed of with this order.