1.       The present Revision Petitions (RPs) has been filed by the Petitioner against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 29.11.2019 and 27.01.2020 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai, (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. in 939/2019, 940/2019, 941/2019, 942/2019, 943/2019; and in RP/180/2019, RP/220/2019 and RP/1/2020 in which order dated 17.07.2019 and 16.05.2019 of District Consumer Disputes Redressal Forum, Sangli (hereinafter referred to as District Forum) in Consumer Complaint (CC) 175/2017, 176/2017, 231/2017, 232/2017, 233/2017, 234/2017, 24/2018 and 74/2018 was challenged, inter alia praying to quash the impugned orders passed by the State Commission and to dismiss the complaints pending before District Forum at Sangli.

2.       While the Revision Petitioner (hereinafter also referred to as OP-1) was Appellant in RP/180/2019, RP/220/2019 and RP/1/2020; Respondents in FAs 939/2019, 940/2019, 941/2019, 942/2019, 943/2019 and the Respondent(s) (hereinafter also referred to as Complainants) were Respondents in RP/180/2019, RP/220/2019 and RP/1/2020; Appellants in FAs 939/2019, 940/2019, 941/2019, 942/2019, 943/2019 before the State Commission (Indian Bank Association was Respondent-2 before State Commission in all the cases), the Revision Petitioner was OP-1 and Respondents were Complainants before the District Forum in the CC no 175/2017, 176/2017, 231/2017, 232/2017, 233/2017, 234/2017, 24/2018 and 74/2018 (Indian Bank Association was OP-2 before District Forum). For the sake of convenience, hereinafter the parties will be referred to as they were arrayed before the District Forum in the original CCs.

3.       Notice was issued to the Respondent(s) on 10.01.2020.  Parties filed Written Arguments/Synopsis on 24.02.2022 (OP-1) and 25.11.2022 (Complainants).

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that (taking RP/28 of 2020 as lead case): -

1. The complainant, in CC 175/2017 before District Forum was an employee of Sangli Bank Limited, retired in 2017 after the bank merged with ICICI Bank in 2007. The complainant and other employees were required to exercise their pension options under the Pension Regulations of 1995 by a specific deadline, but the complainant failed to do so. The complainant alleges that the bank did not establish the pension fund as required by the regulations and did not consider the pension options after its creation. The OP-1 objected to the complaint, arguing that it could not be entertained as the complainant did not exercise their pension option. Both parties presented evidence, and during the final arguments, the OP-1 raised a preliminary issue regarding the forum's jurisdiction to entertain the complaint. The forum dismissed the application, stating that the complaint was ready for final arguments.

2. The OP-1 then filed a writ petition before the Hon'ble Bombay High Court, requesting an inquiry into the preliminary issue. The High Court directed the forum to conduct an inquiry to determine whether the complaints could be entertained and if the forum had the jurisdiction to do so. The Learned District Forum dismissed the majority of the complaints and opted to proceed with only two specific complaints, numbered 175/2017 and 176/2017 (which are still pending).

3. Appeals 939/2019 to 943/2019 were filed before Circuit Bench at Kolhapur and the bench transferred the proceedings to the principal bench at Mumbai for final hearing.

4. Additionally, the State Commission dismissed the RP/220/2019 and 180/2019 filed by the Petitioner and granted approval for Appeal Nos. 939, 940, 941, 942, and 943, which were filed by the ex-employees of the erstwhile Sangli Bank in response to the Common Order issued on 17 July 2019.

5. As regards RP/225/2020, the complainant Vishnu Krishna Patil filed CC/74/2018 before the District Forum. The District Forum, in its order dated 16.05.2019, allowed the complaint. Subsequently, OP-1 filed RP/1/2020 before the State Commission. The State Commission, in its order dated 27.01.2020, directed the District Forum to reconsider and decide the matter.

5.       Vide Order dated 17.07.2019, in CC no. 175/2017, 176/2017, 231/2017, 232/2017, 233/2017, 234/2017, 24/2018 and order dated 16.05.2019 in CC 74/2018 the District Commission has-

(i)      Dismissed the CCs 231/2017, 232/2017, 233/2017, 234/2017, 24/2018 on ground of no jurisdiction;

(ii)     In CC 74/2018 complainant was compensated of Rs.1,00,000/- and Rs.25,000/- from OP-1.

6.       Aggrieved by the said Order dated 17.07.2019 and 16.05.2019 of District Commission, Petitioner(s) appealed in State Commission and the State Commission vide order dated 29.11.2019 in FAs 939/2019, 940/2019, 941/2019, 942/2019, 943/2019; RPs RP/180/2019, RP/220/2019 and 16.05.2019 (in RP/1/2020 from CC/74/2018) has –

(i) Allowed the FAs 939/2019, 940/2019, 941/2019, 942/2019, 943/2019;

(ii) Dismissed the RPs RP/180/2019, RP/220/2019;

(iii) Disposed the RP/1/2020 and directed the District Forum to decide the    

      CC on merits.

7.       Petitioner has challenged the said Order dated 29.11.2019 and 16.05.2019 of the State Commission mainly on following grounds:

1. The Commission erred in jurisdiction and the maintainability of the complaint, disregarding important legal considerations. The complaint did not meet the criteria of a valid complaint under Section 2(c) of the Consumer Protection Act and the Commission failed to recognize that the alleged conduct of the petitioner did not amount to a deficiency in service as defined in Section 2(g) of the Act.

2. The Commission overlooked that the matter of pensionary benefits for ex-employees of Sangli Bank, who did not opt for pension in 1994 and 2000, had already been resolved by the Bombay High Court and the Supreme Court in related writ petitions. As a result, the complainant is precluded from raising the same issue under the Consumer Protection Act, even if they were not a party to those writ petitions.

3. The Commission also neglected to consider the distinction between a "contract of service" and a "contract for service." A "contract for service" involves the provision of services based on professional skills and discretion, while a "contract of service" signifies an employer-employee relationship with obligations to follow instructions. The Consumer Protection Act excludes contracts of service from its definition of "service."

4. Considering the complainant's resignation from Sangli Bank and the acceptance of provident fund dues without objection, it is evident that their past service was forfeited, and the number of years of service is irrelevant in determining eligibility for pensionary benefits. Consequently, the complainant is not entitled to such benefits.

8.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.1. Counsels for the OP argued that the complaint is not maintainable under the Consumer Protection Act as it pertains to a contract of service, which is excluded from the Act's definition of "service." The OP-1 and complainant have an employer-employee relationship, and the Consumer Protection Act does not apply to their dispute. The complainant forfeited his right to pension due to resignation, and the issues raised in the complaint were already settled and adjudicated by the Bombay High Court. The complainant's allegations are baseless and appear to be an attempt to extort money from the petitioner. Therefore, there is no basis for granting any relief, pensionary benefits, compensation, or costs to the complainant.

8.2 Counsels for Complainants argued that an employer cannot file a consumer complaint against an employee. However, an employee can file a consumer complaint against the employer for the denial of benefits under a social security scheme. In this case, the complainants are seeking justice regarding a deficiency in service related to the bank employees' pension scheme, 1993, provided by the OP-1. The Supreme Court and the National Consumer Disputes Redressal Commission have consistently held that pension schemes fall within the definition of service. In the case of State Bank of Mysore v. S.K. Vidya, it was established that when such matters are administered by the employers themselves, the employer assumes the role of the service provider. Consequently, complaints by employees concerning such matters can be maintained before the consumer forums against such employers.

9.       The main issues raised by the Petitioners in the RPs are :-

(i)      Non-maintainability of the case as a consumer dispute – the complainant(s) not being consumers but governed by Employer-Employee/Master-Servant relationship.

(ii)     Complaints being time barred due to limitation.

(iii)    District Forum/State Commission having no jurisdiction to decide such issues.

These are briefly discussed as follows:-

1. Non-Maintainability of the Complaints before the Consumer Commissions/Fora.

10.     It is contended by the Petitioner ICICI Bank that the Respondents (Complainants) being ex-employees of erstwhile Sangli Bank, now merged with ICICI Bank, have alleged deficiency in service on the part of Petitioner due to non-receipt of pension from the Petitioner.  Petitioners have raised a question whether a contract of service is governed under the provisions of Consumer Protection Act qua ex-employees claiming relief of pension in lieu of provident fund.  Petitioner also contended that before going into the merits of the case,  the issue of maintainability has to be decided.  Petitioner relied upon following judgments of Hon’ble Supreme Court/NCDRC in support of his arguments that question of jurisdiction must be adjudicated upon first, before any forum enters into adjudication of the complaint on merits.

(i) Srinivasa Rice Mills and Ors. Vs. ESI Corp. (2007) 1 SCC 705-

(a)   “Before an Act is made applicable, in the event a dispute is raised, the authorities exercising statutory power must determine the jurisdictional fact.  Applicability of the Act would be a jurisdictional question ----”( para 18).

(b)   “What would be a jurisdictional fact has recently been stated by this Court in Arun Kumar Vs. Union of India. [(2007) 1 SCC 732] in the following terms…..   It is further stated (SCC para  84). “………..It is clear that existence of ‘jurisdictional fact’ is sine qua non for the exercise of power ……” (para 19).

2. K. Sagar, MD Kiran Chit Fund, Musheerabad Vs. A Bal Reddy (2008) 7 SCC 166.

     “In aforesaid background, we are of the view that the issue relating to jurisdiction has to be decided by the forums first.  We therefore, set aside the impugned order of the National Commission confirming the order passed by State Commission, and remit the matter to the State Commission to consider the question of jurisdiction”.

3. CHL Apollo Hospital & Anr. Vs. Dr. (Mrs.) Jasbir Gupta & Ors. (RP No. 770 of 2009, decided on 19.03.2009 (2009) SCC OnLine NCDRC 78.

     “……..Both the counsel agree and admit that the law by now is fully settled that question of pecuniary jurisdiction has to be adjudicated upon first, before any Forum enters into adjudication of a consumer complaint on merits…..”

(iv)       Anil Dutt Vs. M/s Business Park Town Planners Ltd. (CC No. 159 of 2012 decided on 01.10.2013) (2013 SCC OnLine NCDRC 920)

     “The Opposite Party contested the complaint. It has called into question the jurisdiction of this Commission. Consequently, we are bound to decide this point, first of all, as per law laid down by the Honble Apex Court in the case of “K.Sagar Vs. Managing Director, Kiran Chit Fund, Mushridabad Vs. A. Bal Reddy, (2008) 7 Supreme Court Cases, 166.”

4. Nagaraj Narayan Katti and Anr. Vs. ITC Ltd. and Ors. (CC 184 of 2012 decided on 21.08.2013 [2014 (2) C.P.C. 390]

     “8…… The complainants have already filed an application on behalf of Opposite Party No.1 seeking direction to decide the jurisdictional issue at the first instance and dismissal of complaint being not maintainable.  The Hon’ble Apex Court in an authority reported in  Consequently, this question has to be decided, first of all”.

11.     The Petitioner contended that in the past, Petitioner had preferred Writ Petition No. 10043 of 2018 before Hon’ble Bombay High Court challenging the jurisdiction of the District Forum U/s 11 of Consumer Protection Act to entertain a similar dispute between an employer and employee pertaining to service regulations. By an order dated 26.06.2019, the Hon’ble High Court directed the District Forum to decide the issue of jurisdiction and maintainability as a preliminary issue.

12.     Petitioner contends that there is no cause of action for filing the said complaint as against the Petitioner and Respondent No.1 herein has attempted to create an illusory cause of action. Hon’ble Supreme Court in T. Arivandandum Vs. T.V. Satyapal & Anr. (1977) 4 SCC 467 held that if clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing itself.  Considering there is no cause of action for filing a consumer complaint based on an employer-employee relationship, the preliminary issue of jurisdiction and maintainability of the complaint ought to be decided at the threshold.  In I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal (1998) 2 SCC 70, Hon’ble Supreme Court observed “16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 C.P.C. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint.”

13.     Petitioner contended that consumer Fora do not have jurisdiction to entertain disputes between an employer and employee relating to service conditions or any of the retiral benefits governed by service regulations.  In support of his contentions the petitioner relied upon following judgments of the Hon’ble Supreme Court.

(i) Jagmittar Sain Bhagat and Ors. Vs. Director Health Services Haryana & Ors. (2013) 10 SCC 136)

“11. The law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such an authority does not have jurisdiction on the subject-matter……Thus for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent…..”

          x x x x 

“15. The aforesaid statutory provisions made it crystal clear that the Act is made to deal with the rights of consumers wherein marketing of goods, or ‘services’ as defined under the Act have been provided.  Therefore, the question does not arise as to whether the Forum under the Act can deal with the service matters of government servants.”

x x x x

“19.  In Regional Provident Fund Commissioner Vs. Bhavani (2008) 7 SCC 111, this court dealt with the issue as to whether Dr. Padha’s submissions regarding the non-applicability of the Act to the case of Regional Provident Fund Commissioner, the person responsible for the working of a pension scheme, could be held to be a ‘service provider’ within the meaning of Section 2 (1) (o) of the Act, as it was neither a case of rendering of free service nor rendering of service under a contract of personal service so as to bring the relationship between the parties within the concept of ‘master and servant’ ”.

x x x x

“20.  In view of the above, it is evident that by no stretch of imagination can a government servant raise any dispute regarding his service conditions or for payment of gratuity or GPF or any of his retiral benefits before any of the forum under the Act.  The government servant does not fall under the definition of a ‘consumer’ as defined under Section 2 (1) (d) (ii) of the Act.  Such government servant is entitled to claim his retiral benefits strictly in accordance with the service conditions and regulations or statutory rules framed for that purpose.  The appropriate forum, for redressal of any of his grievances, may be the State Administrative Tribunal, if any or the civil court but certainly not be forum under the Act”.

14.     The Petitioner contended that the said complaint arises out of a “contract of service” which is on a completely different footing from a contract for service”.  While a contract for service implies a contract where by one party undertakes to render service involving professional or technical skill and uses his own knowledge and discretion, a contract of service implies a relationship of mater-servant (employer-employee) and an employee is not a consumer’ .  U/s 2(1) (o) of the Act, wherein ‘service has been defined, a contract of personal service is specifically excluded.  In this regard, the Petitioner relied upon following judgments of Hon’ble Supreme Court. 

1. Kishorelal Vs. Chairman Employees State Insurances Corporation (2007) 4 SCC 579.

“8……..the definition of service in section 2(1)(o) can be split into three parts; the main part, the inclusionary  part and exclusionary part, the exclusionary part in Section 2 (1)(o) excludes from the main part the service rendered (i) free of charge or (ii) under a contract of personal service.  The expression ‘contract of personal service’ in the exclusionary part of section 2 (1)(o) must be construed as excluding the services rendered by an employee to his employer under the contract of ‘personal service’ from the ambit of the expression ‘service’.   There is a distinction between a ‘Contract of Service’ and ‘Contract for Service’……. A ‘Contract of Service’ is excluded for consideration from the ambit of definition of service in the C.P. Act, whereas a ‘Contract for Service’ is included.

2. Indian Medical Association Vs. V.P. Shantha & Ors. (1995) 6 SCC 651.

“40…….. A ‘Contract for Services’ implies a contract whereby one party undertakes to render services e.g. professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion………  A ‘Contract of Service’ implies relationship of mater and servant and involves an obligation to obey orders in the work to be performed and/or to its mode and manner of performance….. We entertain no doubt that the parliamentary draftsman was aware of this well accepted distinction between ‘Contract of Service’ and ‘Contract for Services’ and has deliberately chosen the expression ‘Contract of Service’ instead of the expression ‘Contract for Services’ in the exclusionary part of the definition of ‘service’ in section 2(1)(o).  The reason being that an employer cannot be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment…..”.

15.     Petitioner contends that Respondent No.1 is not a consumer under the Consumer Protection Act in view of the employer-employee relationship between the parties.  The employees were not making payment of any expenses/contribution towards administration of the pension fund in question.  Hence, the question of any services being provided by the employer does not arise.  The alleged conduct of the Petitioner for which the said complaint has been filed does not constitute a deficiency in service under the Act.  The State Commission failed to appreciate that the order for production of documents was passed without deciding the question of maintainability of the said complaint although it directed the same to be answered by its order dated 22.10.2019.  The State Commission has acted illegally while exercising its jurisdiction and with material irregularity. 

16.     On the issue of maintainability, Respondents on the other hand contended that this Commission in State Bank of Mysore Vs. S.K. Vidya & Anr. Revision Petition No. 2798 of 2011 decided on 27.08.2012  held that when the employer bank itself is administering the Pension Scheme, it is a service and employer is a service giver and any deficiency in such service can be rendered under Consumer Protection Act.  The State Commission has properly exercised its jurisdiction vested in it by law and has passed a valid order and directed the parties to appear before District Forum and give equal opportunity to both the parties for leading their evidence.  The case is to be decided finally before District Forum, Revision Petition is not maintainable, there is limited scope under revision and it will not be proper to interfere in the decision of State Commission.  Relying on judgment of Hon’ble Supreme Court in Rajeev Hitendra Pathak & Ors vs Achyut Kashinath Karekar & Anr (2011) 9 SCC 541, the Respondents argued that Consumer Forum has no jurisdiction or power to pass any interim order pending for disposal of original complaint before it.  The State Commission has granted the relief prayed by both the parties in the common order.  Since the order of State Commission setting aside the order of District Forum dated 17.07.2019 is exactly as prayed by the Petitioner herein before the State Commission, there is no scope for Revision Petitions.  The order of State Commission dated 29.11.2019 is a speaking order and does not suffer from any legal infirmity or material irregularity as alleged by the Petitioner herein.  No harm caused to either parties by the common order of the State Commission.  The Respondents contended that proceedings under Consumer Protection Act are summary in nature and there is no provision in Consumer Protection Act for preliminary issue.  The judgment of Hon’ble Supreme Court in K. Sagar Case (supra) cannot be said to be ratio decidendi, in the facts and circumstances of the case, this judgment is not applicable. 

17.     Respondents argued that most of the contentions of the Petitioner are in fact touching the merits of the case which are beyond the scope of revision under Section 21(b).  Respondents contended that they (Respondents) were the employees of two scheduled commercial banks in private sector incorporated under Companies Act, 1956.  They were the members of Contributory Provident Fund.  They are/were not government employees.  The Petitioner is trying to create a wrongful impression that Respondents are government employees and have cited the case laws relating to government servants, which are totally irrelevant.  Under the Consumer Protection Act, jurisdiction is considered on only two issues, territorial jurisdiction and pecuniary jurisdiction.  What is excluded from the definition of service is the service under contract of service which is rendered by the respondent employee(s).  Any deficiency in service cannot be brought before Consumer Fora by ICICI Bank, the employer, for obvious reasons.  The complaint is based on Employees’ Pension Scheme 1993 and services given by person responsible for payment of pension i.e. employer in this case, comes under the jurisdiction of Consumer Fora, except government servants, who have separate machinery available for redressal of their grievances.  Respondents are members of Contributory Provident Fund.  On the introduction of Employees Pension Scheme 1995 w.e.f. 16.11.1995, all the employees who are members of provident fund under Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 are entitled for Pension Scheme under the said Act.  ICICI Bank is the person responsible for working of the Bank Employee’s Pension as per rules.  Hence, ICICI Bank is the service provider and complainants are the potential users of the said service.  The Respondents have given assurance to refund the employer’s contribution to Provident Fund along with interest and requested to give them pensionary benefits. Bank Employees Pension Scheme is in lieu of contributory Provident Fund, by affixing the adjective ‘personal’ to the word ‘service’, the nature of contracts which are excluded, is not altered.  The expression contract of personal service in exclusionary part in Section 2 (1) (o) must, therefore, be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of expression ‘service’.  As the pension schemes  come under the definition of service as has been held by the Apex Court time and again and more particularly by NCDRC in State Bank of Mysore Vs. S.K. Vidya (RP No. 2798/2011 decided on 22.07.2011). 

18.     We have carefully gone through the rival contentions of parties on the maintainability of the complaint before the  Consumer Fora  as well as various case laws cited by the parties and all other relevant case record and tend to agree with the contentions of the Petitioner herein that Consumer Fora under the Consumer Protection Act do not have jurisdiction to adjudicate the present complaint(s) as the parties are in a master-servant/employer-employee relationship and the employer/Petitioner herein has not provided ‘service’ as defined under the Act to its erstwhile employees/Respondents herein.  Hence, the dispute/case in question does not constitute a consumer dispute and Respondents herein cannot be said to be consumer of any service provided by the Petitioner herein. In fact, the Respondents (Complainants) in their written arguments admit that they are the potential users of the service. Currently, they are not the members of the Pension Scheme. The Petitioners in their written arguments have stated that Complainants were not making payment of any expenses/contribution towards administration of Pension Fund. We do agree with the contentions of Complainants that the exclusionary part of Section 2(1)(o) under a contract of Personal Service is in the context of services provided by an employee to its employer. However, we are of the view that the principles contained in various citations, pertaining to employer-employee relationship in government Sector or Public Sector PSUs/Banks would be equally applicable to the employees of private/commercial scheduled banks like the ICICI or erstwhile Sangli Bank. Hence, the complaint(s) of the Respondent(s) herein are not maintainable before the Consumer Fora at District/State level as well as this Commission. 

19.     Having decided the maintainability issue of the case as a consumer complaint as above, and concluding that case is not maintainable and Respondents are not consumers under the Consumer Protection Act, it is not necessary to go into the second issue of limitation and/or merits of the case. 

20.     Accordingly, all the Revision Petitions covered under this order viz. RP/28/2020, RP/29/2020, RP/30/2020, RP/31/2020, RP/32/2020, RP/33/2020, RP/34/2020 and RP/225/2020 are allowed, orders dated 29.11.2019 and 27.01.2020 of the State Commission and orders dated 16.05.2019 and 17.07.2019 of District Forum are set aside, complaint(s) of complainants (Respondents herein) are dismissed.  Complainants/Respondents are free to approach appropriate authority/Fora of the Bank for redressal of their grievance and/or any other appropriate Fora other than Consumer Commission, and/or approach the Civil Court for adjudication of their case/Redressal. 

21.     Parties to bear their respective litigation costs. 

22.     The pending IAs in the case, if any, also stand disposed off.