BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.82/2017

DATED ON THIS THE 24^th November 2017

Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT  

    2) Smt. M.V.Bharathi                   

                                   B.Sc., LLB., -  MEMBER

    3) Sri. Devakumar.M.C.                

                                            B.E., LLB., PGDCLP,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite parties to refund Rs.8,90,566/- towards PF and ESI and deduction of unethical quantum of penalty and the wages for short deployment of man power of Rs.6,47,180/- and refund of service tax of Rs.3,09,122/- with other reliefs.
2.     Both opposite parties appeared through their respective advocates and filed their independent version.  The version of opposite party No.1 –railways is as follows:- The complaint is not maintainable.  The relationship between complainant and opposite party No.1 is contractual in nature through an agreement for cleaning work under a cleaning contract.  Under the complainant, there are 60 to 70 workers.  Opposite party No.1 availed the service from the complainant and not visa-versa.  Thereby, complainant is not a consumer.  The agreement period for one year from 29.09.2010 to 28.09.2011.  No explanation is given with regard to limitation.  The complaint ought to have been filed well within two years.  Thereby, the same is barred by limitation and liable to be dismissed.  The narration of dismissal of MFA on 09.12.2016 does not give rise to any cause of action to the complainant for a ground to file this complaint at belated stage. 
3.    In fact before the Arbitrator, the District Judge and the Hon’ble High Court has passed the considered order.  Thereby, complainant cannot re-agitate the settled matter and the same is barred by principles of res-judicata.  The action taken by opposite party No.1 against complainant is correct.  As such, opposite party No.1 is sought for dismissal of this complaint.
4.    The version of opposite party No.2 runs as follows;- The Employees Provident Fund and Miscellaneous Provisions Act 1952 is a social security legislation for providing security to employees working in any establishment engaging 20 or more persons on any day.  It provides for compulsory deduction of PF from employees and the contribution from employer which is deducted in the workers account in the Employees Provident Fund office.
5.     The contract between complainant and opposite party is for one year from 29.09.2010 to 28.09.2011.  The complainant has obtained the PF code number in his name under the employees Provident Fund Act and he has engaged the service of 20 or more persons.  Thereby, he becomes the employer and he is liable to pay the contribution towards EPF of each employee.  There is no deficiency in service on the part of opposite party No.2.  As such, the opposite party No.2 sought for dismissal of this complaint. 
6.      On the above contentions, this matter is set down for evidence.  During evidence, on behalf of complainant, complainant has filed his affidavit evidence and relied on documents.  Further evidence closed.  Likewise, the representative of opposite party No.1 – railways filed its affidavit evidence. Even the officer of opposite party No.2 also filed the affidavit evidence.   Further evidence closed.  After hearing arguments, this matter is set down for orders.      
7.      The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant establishes that there is deficiency in service on the part of opposite parties, thereby, he is entitled for the relief sought for?
3. To What order?

8.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- Do not survive for consideration.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

9.    Point No.1:- Of course, complainant has not pleaded any where that he has instituted 3 more complaints earlier in CC 645/2015, 654/2015, 773/2015 and pre-litigation proceedings before District Legal Service Authority in PLC No.3052/2015 and all these proceedings are between same parties.  In CC 645/2015 the complaint was return to the complainant for presentation before the proper Forum for want of pecuniary jurisdiction.  Whereas in CC 654/2015 is dismissed on 19.10.2015 as the claims is barred by limitation and another complaint in CC 773/2015 is withdrawn by the complainant himself.  Even Pre-litigation case No.3052/2015 also dismissed as withdrawn.  So in 2015 itself the present complainant has made efforts to pursue his remedy before this Forum as well as before Loka Adalath in PLC 3052/2015. CC 654/2015 the complaint was dismissed on the ground of limitation by means of detailed order dated 19.10.2015. That order is not challenged by the present complainant.  On the other hand, the present complaint is filed showing the different cause of action in para 12 of the complaint which reads that the cause of action for the complaint aroses on and from 09.12.2016 and subsequently.  In the complaint itself in para 7 and 8 it is admitted that there was arbitration proceedings in which award was passed directing the present complainant to pay sum of Rs.18,46,868/-.  The said proceedings are challenged before the Principle District Judge, Mysuru in Arbitration suit No.2/13.  The same was resisted by the complainant for releasing security deposit and performance of guarantee awarded in favour of the complainant, and the complainant filed cross-objection in the said arbitration suit No.2/2013 to set aside the dismissal order of the arbitration in respect of penalty and deduction of wages for short deployment of man power and reimbursement of PF and ESI. The district Judge dismiss the Arbitration suit as well as cross objection of this complainant in AS No.2/2013 dated 21.11.2015.  Even the complainant has filed pre-litigation No.3052/2015.  But, during the pendency of the said PLC, the complainant preferred the MFA No.3184/2016 on the file of Hon’ble High Court of Karnataka and the same was dismissed on 09.12.2016 i.e. cause of action alleged by the present complainant.  But, complainant knowing fully well his remedies are reached finality in MFA 3184/2016 has come before this Forum with a new complaint to over come the earlier order passed in CC No.654/2015 on the point of limitation.  Under this circumstances, the present complaint filed by the complainant cannot be entertained since the remedy has been exhausted by the complainant in the arbitration proceedings, in arbitration suit and in MFA.  Thereby, present complaint is not maintainable and the liable to be dismissed.  Accordingly, point No.1 is answered in the negative.
10. Point No.2:- In view of the findings on the point of maintainability in point No.1, this point No.2 relating to the merits of the case does not survive for consideration.
11. Point No.3:-  In view of the findings on point No.1, the complaint is not maintainable and it is liable to be dismissed.  Hence, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed as not maintainable.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 24^th November 2017)