Anoop Kumar Mendiratta, Member

The maintainability of the complaint filed by the employees has been challenged by the opposite party/IDBI Bank Ltd. primarily on the ground that the complainants cannot be regarded as consumers within the meaning of Section 2(7) of the Consumer Protection Act, 2019 (hereinafter referred to as 'the Act'). The complaint is further stated to be not maintainable in representative capacity under Section 35(1)(c) of the Act.

2. In brief, complainants have preferred the complaint in representative capacity under Section 58(1)(a)(i) and Section 35(1)(c) of the Consumer Protection Act, 2019 seeking inter alia declaration that complainants and all other ex-employees of erstwhile United Western Bank (UWB), which was merged with opposite party herein (IDBI Bank Ltd.) and were denied the second option of pension scheme, are eligible for the second option of pension, as beneficiary of the said pension scheme. Also, direction has been sought to extend such benefits of the pension scheme with retrospective effect from the date of retirement, resignation/voluntary retirement/termination etc. of the respective employees. The complainants further claim to represent the body of retired employees of erstwhile United Western Bank (UWB) who had opted for provident fund and presently seek to be declared eligible for option of pension allegedly available under the IBA (Indian Banks Association) Joint Notes and Settlements.

3. The facts fall within a narrow compass. As per the complainant, the opposite party IBDI Bank Ltd. is a scheduled bank as notified by the Reserve Bank of India. United Western Bank (UWB) was a private sector bank headquartered in Maharashtra which was amalgamated with Industrial Development Bank of India (IDBI Bank Ltd./opposite party herein) by virtue of Scheme of Amalgamation effective from 03.10.2006. In terms of the scheme all the employees of erstwhile UWB automatically became the employees of IDBI Bank Ltd./(opposite party) and their services continued without any break or interruption. Further erstwhile United Western Bank was a member of the Indian Banks' Association but was not a party to the industry with respect to settlements about pay structure, allowances and schemes. However, the same were adopted by way of agreements between the management and the workers union/officers' association as the case may be. In nutshell, the employees' service conditions in all aspects were decided by the industrial level agreement which were entered. By virtue of Banking Industry Settlement arrived at on 29.10.1993, a Pension Scheme, 1993 was introduced in lieu of Contributory Provident Fund (CPF) and a settlement was arrived at for implementation of the said pension scheme w.e.f. 03.09.1998. It is further the case of complainant that Chapter II sub clause 3.2 of the Scheme of Amalgamation with IDBI Bank approved by the Government of India states that all contracts/agreements executed by UWB before amalgamation are binding on IDBI Bank Ltd. However, opposite party/IDBI Bank failed to give the second option to Provident Fund (PF) optee employees of erstwhile United Western Bank to opt for Pension Scheme of IDBI Bank. It is emphasized that a settlement was arrived at industry level on 27.11.2009 and on 27.04.2010 whereby one more option for opting pension was offered to bank employees who were party to the said industry level settlement but OP neither provided option to join the pension scheme of IDBI Bank nor gave the benefits of the said industry level settlement for opting under pension scheme. It may be noticed at this stage that employees of IDBI Bank were earlier getting pension as per its Defined Pension Scheme (later notified as Pension Rules, 2004) whereby employees were given option to opt for pension in 2001.

4. It is further the case of complainants that Employees Pension Scheme, 1995 (under Employees' Provident Fund and Miscellaneous Provisions Act, 1952), is mandatory to all establishments who have not established and obtained exemption for its own Pension Scheme and it is not known to complainant if any such exemption has been sought by the opposite party under Section 17(1C) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 read with para 39 of the Employees' Pension Scheme, 1995. The opposite party is stated to be duty-bound to implement the Banking Industry Level Pension Scheme, 1993 akin to Employees Pension Scheme, 1995 under Section 17(IC) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.

5. Complainants further aver that one of the erstwhile employees of United Western Bank, namely, Mr. Diwanji had filed a consumer complaint before District Consumer Disputes Redressal Commission, Kolhapur (CC No.18/187) which was partially allowed in his favour on 31.01.2020 and on the basis of same, the other employees along with complainants had requested individually for extending the benefits but the same has not been acted upon by the opposite party. Complainants claim parity for being treated as consumers and further submit that payment of contributions of their share of PF amount is the consideration. Complainants and other ex-employees are further stated to be willing to refund the amount of employer's contribution to PF along with interest or the same may be recovered from the arrears of pension and commutation.

6. Complainants also point out that, in addition to present complaint, a Writ Petition was filed by the United Western Bank Officers' Organization, United Western Bank Karma Chari Sangh and United Western Bank Retired Employees Organization before the Hon'ble Bombay High Court wherein United Western Bank Retired Employees Organization claimed corrected pension and difference in case of retirees during the year 1998-2005. The said Writ Petition is stated to be pending before Hon'ble Bombay High Court since 2014/2015. Since then, the Officers' Organization and United Western Bank Retired Employees Organization is stated to have requested the bank for correction of payment of arrears since 2014 but bank refused to do the same. It is also stated by complainant that Hon'ble Supreme Court of India passed an order, upholding the claim of the bank employees represented by the all bank employees and thereafter the Bank paid about 304 employees of erstwhile UWB the difference of pension, from 01/05/2005 till the date of payment in 2019.

7. It is further the case of complainants that Pension Scheme, 1993 is in lieu of Contributory Provident Fund and is a social security measure and all the employees who are members of the Provident Fund are eligible to be the members of the Pension Fund as per the provisions of Employees' Provident Funds and Miscellaneous Provident Act, 1952 amended by substituting new Section 6A in place of existing Section 6A, which came into effect from 16/11/1995. The Pension Scheme is stated to be within ambit of definition of Section 2 (7) of the Consumer Protection Act, 2019. Reference in this regard is made to Regional Provident Fund Commissioner v. Shiv Kumar Joshi 2000(1) SCC 98, Regional Provident Fund Commissioner v. Bhavani (2008) 7 SCC 111 and Order passed by National Commission in State Bank of Mysore v. S. K. Vidya, Revision Petition No. 2798/2011. The present complaint under Section 35(1) of the Consumer Protection Act, 2019 has been preferred by 8 complainants out of 309 (Three Hundred and Nine) ex-employees who were denied the second option of pension.

8. Learned counsel for the opposite party challenges the maintainability of the complaint on two primary issues: (i) Whether the complainants can be regarded as Consumers' within the meaning of Section 2(7) of the Consumer Protection Act? and (ii) Whether the preconditions for invoking Section 35(1)(c) of the Consumer Protection act, 2019 including proof of 'sameness of interest', proper authorization and representative capacity stands satisfied?

He submits that when the employees of erstwhile United Western Bank became employees of IDBI Bank pursuant to the scheme of 2006 they were to be governed by service conditions of IDBI Bank including relating to remuneration structure and retirement benefits. The IDBI Bank is stated to have prescribed 01.04.2008 as the notified date for officers, and 01.10.2009 for workmen employees from which the continuing employees of UWB stood migrated and fully integrated into the remuneration structure and service conditions of IDBI. As such, the pre-existing settlements, contracts and arrangements earlier application to UWB employees stood superseded, extinguished and rendered inoperative. Further, post harmonization, employees who were members of UWB Provident fund became members of the IDBI Bank's Provident Fund, 2004 and employees who were members of UWB's Pension Fund became members of the IDBI Bank's Pension Fund, 2004. The complaint is stated to have been filed on mistaken assumption that Indian Banks' Association (IBA) settlements of 2010 or pre-amalgamation arrangements by UWB with its Employees Union outside IBA arrangement, entitle them to reopen their option and demand pension post amalgamation. It is emphasized that opposite party was not a signatory to IBA arrangement of 1998 and also of 2009 and no such right accrued to the complainants under the amalgamation scheme, nor such right existed under the contractual or statutory terms of service with UWB or under any binding settlement. The claim by the complainants is stated to be by way of new right beyond the terms of the scheme and the option for PF scheme was consciously adopted by the employees, which continued after they migrated to IDBI bank.

9. Learned counsel for the opposite party further submits that IDBI Bank while it was a financial institution had introduced its own Defined Benefit Pension Scheme w.e.f. 01.01.1993 which was later notified as IDBI Pension Rules, 2004 whereby the employees of IDBI had been given option for pension in 2001. No further pension option was extended even to IDBI's own employees after 2001. Present complaint seeking a second pension option is stated to be beyond the jurisdiction, as the Commission is not vested with powers to declare or create any service rights particularly those arising out of employment or service conditions and the same can be adjudicated only before a Civil Court or an Industrial Forum.

He further contends that the relationship between the complainants and IDBI Bank is one of master and servant/employer and employee arising out of a 'contract of personal service' which came to an end post termination/retirement of employees and falls outside the ambit of the Consumer Protection Act. Further no consideration is stated to have been paid to the opposite party for any alleged service for the dispute to fall within ambit of Section 2(7) of the Act. The pensionary benefits are claimed to be governed by statutory entitlement and specific regulations which cannot equated with commercial or consumer services. Reliance is further placed upon Kishore Lal v. Employees State Insurance Corporation, (2007) 4 SCC 579 and Indian Medical Association v. V. P. Shantha, (1995) 6 SCC 651.

10. Learned counsel for opposite party further emphasized that complainants not being pension optees, during their service with UWB cannot seek the right to exercise the option for pension long period after retirement from service or even during service, unless the option is uniformly offered to all employees by the opposite party. It is urged that contribution, if any, made by the complainant towards provident fund cannot be considered as Consideration' as the contributions were statutory obligations under the Employees' Provident and Miscellaneous Provisions Act, 1952. With reference to reliance placed by the complainants on decision of this Commission in Consumer Case No. 22 of 2022, it is pointed out that the same has been stayed by the Hon'ble Supreme Court in Civil Appeal No. 7389 of 2024 (ICICI Bank Ltd. v. Sheela Bhalchandra Vatve & Ors.) and has no binding precedential value. Even on facts, the said case is stated to be distinguishable as the dispute does not relate to deficiency in provident fund management but about the existence of a right to opt for a pension scheme postretirement. The disputes concerning pension provident fund or other retrial benefits is stated to lie outside the jurisdiction. Reliance is further placed upon Krishan Kumar Gupta v. General Manager, Bank of India and Ors., MANU/CF/0578/2002, Zila Sahakari Kendriya Bank Ltd. v. Hari Narayan Bhargava, (2011) SCC OnLine NCDRC 448, Ministry of Water Resources v. Shreepat Rao Kamde, MANU/SC/1842/2019, Kondareddy Adinarayana Reddy v. State Bank of Hyderabad, 2022 SCC OnLine NCDRC 797, Jagmittar Sain Bhagat and Others v. Director, Health Services, Haryana and Others, (2013) 10 SCC 136, Laxmi Mahila Sahakari Bank Ltd. v. Chavan, MANU/CF/0128/2024, ICICI Bank Ltd. v. Digamber Vaman Gurjar, (2023 SCC OnLine NCDRC 1318), Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 and Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159.

11. Learned counsel for OP further emphasizes that complaint is barred by limitation assuming that complainants had the right to opt for pension on the basis of Joint Notes or Bi-partite Settlement during the period 1998-2000. It is urged that limitation cannot be extended till 2021, when the complaint was preferred. The claim is stated to be barred as it is even beyond the period of two years from the date of amalgamation in 2006. Learned counsel for the opposite party also points out that the issues in the present complaint have already been subject matter of Writ Petition No.214 of 2016 filed by IDBI Officers Organization and United Western Bank Retired Employees Organisation before the Hon'ble Bombay High Court, wherein identical reliefs were sought for extending a second pension option, along with consequential benefits to all PF optees of United Western Bank and to allow them to join pension fund with retrospective effect. The said Writ Petition is stated to have been dismissed by the Hon'ble Bombay High Court on the ground of non-maintainability of Writ Petition under Article 12 of the Constitution of India since opposite party is a private sector bank and with the observations that the employees could institute appropriate proceedings in accordance with law before Civil court, if so advised. The said matter is stated to be further pending for consideration before the Hon'ble Supreme Court in Civil Appeal No.398 of 2023 on an appeal preferred by the employees.

12. Learned counsel for IDBI further contends that the present complaint has been filed by only 9 individuals out of approximately 309 ex-employees and a minuscule 2.91% of total employees cannot in law claim to represent the entire body of ex-employees. Reliance is further placed upon Brigade Enterprises Limited v. Anil Kumar Virmani and Others, (2022) 4 SCC 138 to contend that there is no sameness of interest.

13. Learned counsel for the complainant vehemently opposes the contentions raised on behalf of opposite party and emphasizes that that in terms of clause 3.2 of the Scheme of Amalgamation (Chapter II) all the agreements entered into between UWB and its employees' unions are binding on IDBI Bank. He reiterates that cause of action arose when DCDRF, Kolhapur passed an Order dated 31.01.2020 based upon which Complainants sent legal notices to the Bank and after receipt of replies dated 08.04.2021 from the Bank present complaint was preferred in the year 2021. A total of 309 employees are stated to be sufferers and had paid contribution towards PF approximating Rs.37,85,67,520/-. Learned counsel for complainant further points out that IDBI Bank had even before issuance of letter dated 27.04.2010 by Indian Banking Association (IBA), had already given option thrice to its own employees to opt for pension on 01.02.1996, 29.01.1999 and 27.03.2001. However, the employees from United Western Bank were not given such an option after the merger with opposite party which amounted to disparity with the employees of UWB absorbed in IDBI Bank. He further submits that IBA Agreements are binding on IDBI since the recent wage revision agreement (9th Joint Note) dated 08.03.2024 was signed by IBA and employees' unions in which IDBI Bank was one of the parties. He further contends that right of pension is a part of expansive right under Article 21 of the Constitution of India and relies upon D.S. Nakara v. Union of India, (1983) 1 SCC 305 and Ashwani Kumar v. Union of India, (2019) 2 SCC 636. He points out that though the proceedings in case No.22 of 2022 referred to above have been stayed but there is no stay to the Order or findings passed in the said Order.

14. We have given considered thought to the contentions raised and perused the record carefully.

The IDBI Bank Ltd., earlier known as Industrial Development Bank of India is a company incorporated under the Companies Act, 2013 and a banking company within the meaning of Section 5(c) of the Banking Regulation Act, 1949. The erstwhile Union Western Bank (UWB), a private sector bank amalgamated with Industrial Development Bank of India (opposite party) in terms of the Scheme of Amalgamation sanctioned by Government of India effective from 03.10.2006 under Banking Regulation Act, 1949. Employees of UWB automatically became the employees of IDBI Bank and their services continued without any break or interruption. It is pertinent to note that the settlement scheme has a force of statute and the rights and liabilities are strictly governed in terms of the scheme. Concomitantly, in terms of the scheme, the employees of erstwhile UWB are to be governed by the service conditions of IDBI Bank including those relating to remuneration and retirement benefits. In view of amalgamation, members of UWB's Provident Fund became members of IDBI Bank's Provident Fund, 2004 and the employees who had opted for UWB's Pension Fund simultaneously became the members of IDBI Bank's Pension Fund, 2004.

The present complaint has been filed by nine employees out of the strength of 309 employees of UWB on the premise that preamalgamation arrangements of UWB with its employees union, outside the Scheme of Amalgamation entitles them to re-open their option and seek pension post amalgamation with IDBI Bank.

The contention is opposed by IDBI Bank on the ground that no such right existed in terms of the service conditions with UWB and neither any such right evolved upon the employees on amalgamation, nor there is any binding settlement in this regard. The pensionary right by PF optees is claimed to be beyond the scheme of amalgamation in 2006. It is further the case of IDBI Bank that having consciously opted for provident fund scheme and continued under the same arrangement after amalgamation with IDBI, the complaint preferred in the year 2021 is barred by limitation as well as does not fall within the ambit of Section 2(7) of the Consumer Protection Act, 2019. It is also the case of IDBI that the complaint is not maintainable in representative capacity under Section 35(1)(c) of the Consumer Protection Act, 2019.

15. The significant question which has been raised on behalf of the opposite party is, if the dispute regarding grant of option for pensionary benefits pursuant to amalgamation of UWB with IDBI can be branded as deficiency in service under Section 2(o) of the Consumer Protection Act, 1986.

                   Section 2(o) defines the word 'service' as follows:-

                   'Section 2(o):

                   'service' means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;'

                   Section 2(o) clearly provides that the expression 'service' does not include rendering of any service free of charge or under a 'contract of personal service'. A distinction has to be drawn between a 'contract for service' and a 'contract of service'. A complaint may be maintainable in case of contract for service but is not maintainable in the case of 'contract of service', which entails a relationship of master and employee. The issue whether in respect of retiral dues, the matter can be maintained before a Consumer Forum, arose in case of Jagmittar Sain Bhagat and Others v. Director, Health Services, Haryana and Others (supra). The appellant therein claimed that he had not been paid his retiral benefits and penal rent had been deducted from his dues of retiral benefits without any show-cause notice to him. Hon'ble Apex Court concluded that by no stretch of imagination, a government servant can raise any dispute regarding his service conditions or for payment of gratuity or GPF or any other retiral benefits before any Consumer 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 Consumer Protection Act, 1986 and such government servant is entitled to claim his retiral benefits strictly in accordance with his service conditions or regulations or statutory rules framed for that purpose. The aforesaid judgment also notices the series of cases decided by Hon'ble Apex Court, wherein the claims had been made under the provisions of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 in respect of employees of establishments covered under the schedule to the said Act.

                   A similar dispute relating to payment of retiral dues and other benefits came up for consideration before the Hon'ble Apex Court in Ministry of Water Resources and Ors. v. Shreepat Rao Kamde (supra). Noticing the ratio in Jagmittar Sain Bhagat and Others v. Director, Health Services, Haryana and Others (supra), Hon'ble Apex Court held that the complaint was not maintainable before the District Forum under the Consumer Protection Act. The cases relating to the employees availing EPF scheme under the Employees Provident Fund Scheme are generally 'consumers' qua the Commissioner of Provident Fund but the issue regarding grant of pensioner benefits as involved in the present case falls within the service jurisprudence and complainant bank cannot bed considered to be service provider to cover the dispute within the ambit of 'consumer' under the Consumer Protection Act.

16. We are of the considered view that grievance regarding grant of option of pension post-amalgamation of erstwhile UWB with opposite party is a 'service matter' entailing dispute as to 'contract of service', which is governed by statutory scheme of amalgamation and redressal of the same is required to be made before the competent Civil Forum. The complaint does not fall within the ambit of consumer disputes under Section 2(7) of the Consumer Protection Act, 2019.

17. It may further be observed that the Consumer Forum is duty bound to determine whether the complaint has been filed within the limitation period under Section 24A of the Consumer Protection Act as the same is a legislative mandate as observed in State Bank of India v. B S Agriculture Industries (I), (2009) 5 SCC 121. Admittedly, in the present case, cause of action arose post-amalgamation of UWB with the complainant bank in 2006.

18. The amalgamation scheme itself was notified on 30.09.2006 and the complainants retired during the course of service. No issue having been raised during the period of two years from the cause of action (i.e. the scheme of amalgamation), the present complaint filed in 2021 is clearly barred by limitation under Section 24A of the Consumer Protection Act, 1986 and Section 69 of the Consumer Protection Act, 2019.

19. It may also be noticed that the present complaint has been apparently filed after the similarly placed employees raised identical disputes before Hon'ble Bombay High Court and the Writ was held to be not maintainable. The matter is further stated to be pending consideration before the Hon'ble Apex Court in Civil Appeal preferred by the employees Unions. In the facts and circumstances, parallel proceedings claiming identical reliefs in Consumer Forum cannot be permitted.

20. Apart from above, it cannot be ignored that the present complaint is sought to be instituted only by nine individuals out of approximately 309 employees which constitutes a mere 2.91% of the total impacted persons. In our considered opinion, each case needs to be determined by virtue of option for pension/PF exercised by the concerned employee at the relevant time and, as such, 'sameness of interest' which is a sine qua non for invoking the provisions of Section 35(1)(c) of the Consumer Protection Act, 2019 is missing. Hon'ble Apex Court in Bridage Enterprises Limited v. Anil Kumar Virmani and Others (supra), categorically observed that sameness of interest is distinct from the sameness of actions and complaint filed by a few individuals cannot automatically be treated as a representative complaint unless all legal requirements are fulfilled. The option exercised by the individual complainants at the relevant time for the pension scheme/provident fund cannot be dealt with by way of summary proceedings in the present complaint.

21. For the foregoing reasons, we hold that the present complaint is not maintainable and is accordingly dismissed with liberty to the complainants to avail the remedy before the appropriate civil forum in accordance with law.

Nothing stated hereinabove, shall tantamount to an expression of opinion on the merits of the complaint. A copy of this Order be provided to both the parties, by the Registry.