BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 141/2007 Dated : 31.03.2010 Complainant: C. Madhavan Pillai, Mini Vihar, T.C 7/1127, Koora-33, Kottamvila Road, Vattiyoorkavu P.O, Thiruvananthapuram-13.
(By adv. S. Ranganathan) Opposite parties :
General Manager (Kerala), Food Corporation of India, Regional Office, Kesavadasapuram, Thiruvananthapuram-4. Area Manager, Food Corporation of India, District Office, Valiyathura, Thiruvananthapuram.
(By adv. G.V. Sudheer Kumar)
This O.P having been heard on 15.02.2010, the Forum on 31.03.2010 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant retired as Assistant Manager(Accounts) on 29.02.2004 from the Food Corporation of India, District Office, Thiruvananthapuram, that as part of the terminal benefits, encashment of earned leave for 185 days was sanctioned on 09.02.2004, that opposite party withheld the same and released it to the complainant only on 22.10.2005, that interest for the released amount was not given to the complainant, and complainant is entitled to realise an amount of Rs. 15,463/- towards interest at the rate of 9% per annum from 29.02.2004 to 22.10.2005. Even after repeated representations made by the complainant opposite parties did not respond positively. Hence this complaint to direct opposite parties to pay a sum of Rs. 15,463/- together with 9% interest and a compensation of Rs. 50,000/- together with cost of Rs. 2,000/- to the complainant. Opposite parties field version contending that the complaint is not maintainable either in law or on facts, that complainant is not a consumer as defined in the Consumer Protection Act, that the issue involved in this case is not a dispute as defined in the Act, that there was only employer-employee relationship between opposite parties and the complainant, that the contract of personal service cannot be specifically enforced through Consumer Protection Act. It is further averred in the version that the alleged delay in payment of earned leave encashment was occurred due to valid reasons, that Food Corporation of India vide its proceedings Nos. WRC/1/18/97/PF and WRC/1/18/97/PF-Vol. II stepped up the pay of the complainant and others on par with the pay of their junior Sri. Rajan. C. Abraham with effect from 02.01.1993, that thereafter the said proceedings had withdrawn as per the direction of the Head Quarters of FCI, that there was also a direction to recover the excess amount paid to the said employees in pursuance of the said stepping up of salary, that, whileso, complainant along with 21 persons had filed an O.P before the Hon'ble High Court as O.P. No. 13651/2001 challenging the above said proceedings of FCI, that said O.P was allowed and Hon'ble High Court vide its judgement dated 20.10.2003 quashed the proceedings initiated by opposite parties withdrawing the stepping up of pay given to the complainant and others, that opposite parties preferred writ appeal against the said judgement as W.A. No. 293/2004 before the Division Bench of the Hon'ble High Court, that in the meanwhile complainant had retired from service on superannuation, that as per standing instructions of the opposite parties if any recovery proceedings are pending against an employee at the time of retirement on superannuation, the respondents are entitled to withhold the whole or part of the amounts equivalent to leave salary to meet the recoveries from the said employee at the conclusion of the said proceedings. All terminal benefits were paid to the complainant at the time of retirement except his earned leave encashment. It is further averred in the version that Writ Appeal preferred by FCI was dismissed by the Hon'ble High Court vide its judgement dated 02.06.2005 and the Special Leave petition filed against the said judgement before the Supreme Court was also dismissed on 18.10.2005, that immediately after the dismissal of the said SLP opposite parties had taken urgent steps to release the earned leave encashment to the complainant and the same has paid to him on 22.10.2005. There is neither deficiency in service nor unfair trade practice on the part of the opposite parties. Hence opposite party prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the complainant is a consumer as defined in the Consumer Protection Act? Whether the complainant is entitled to get interest of Rs. 15,463/-? Whether there is deficiency in service on the part of the opposite parties? Whether the complainant is entitled to get compensation? If so, at what amount? Whether the complainant is entitled to get costs? If so, at what amount?
In support of the complaint, complainant has filed affidavit in lieu of chief examination and Exts. P1 to P8 were marked. Complainant has been cross examined by opposite parties. Opposite parties did not adduce evidence either oral or documentary. Points (i) to (v):- Admittedly, complainant was an employee who retired on 29.02.2004 from the opposite parties' office. The first point to be considered herein is whether the complainant is a consumer of opposite parties. As per Sec. 2 (1) (d) of the Consumer Protection Act, consumer means any person who buys any goods or avails of services for consideration. It also includes any person uses goods other than buyer or beneficiary of services other than hirer, but does not include a person who obtain such goods for resale or for any commercial purpose. In this case, complainant has never availed any service from opposite parties, rather it is the opposite party, employer, who has availed service from the complainant/employee. Hence it is purely a matter of employer-employee relationship. The contract herein is of a contract of personal service. It is argued by the learned counsel appearing on behalf of opposite parties that what the complainant claims is interest on delayed payment of earned leave encashment that by surrendering the earned leave, what the complainant gets is wage or salary from the opposite parties. It is pertinent to point out that wage is the price paid for the service of labour availed by the employer. Employer avails service of labour from the employee in the course of his employment and employee gets wages/salary in return. Employee's service to the employer cannot be treated as a good or service as defined in the Consumer Protection Act. In this case, complainant has never purchased any goods or service from the opposite parties in order to attract any provisions of the Consumer Protection Act. As such, there is much force in the argument of the opposite parties that complainant is not a consumer as stipulated in the Consumer Protection Act. In view of the above, we find complainant is not a consumer and complaint is not maintainable under the Consumer Protection Act. In the light of the findings on the first point, we need not discuss other points under consideration. Complaint has no substance which deserves to be dismissed. In the result, complaint is dismissed. Parties are directed to bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of March 2010.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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C.C. No. 141/2007 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Madhavan Pillai II COMPLAINANT'S DOCUMENTS : P1 - Original Prodgs. No. PF/11/CMP/2002/DMT dt.09.02.2004 P2 - Photocopy of circular No. EP 17(2)/94 dated 08.04.1999 P3 - Copy of letter dated 26.10.05 addressed to opposite party P4 - Copy of letter dated 05.02.07 addressed to opposite party P5 - Photocopy of letter dated 15.03.2007 addressed to complainant. P6 - Photocopy of letter dated 11.05.2007 addressed to complainant. P7 - Photocopy of decision taken by AGM vide notice No. Fin/6(a)/Genl.2007-08 dated 05.05.2007 P8 - Copy of affidavit filed by the 3rd respondent before the Hon'ble High Court of Kerala, Ernakulam. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL
PRESIDENT
| | HONORABLE President, President | HONORABLE Sri G. Sivaprasad, PRESIDENT | HONORABLE Smt. Beena Kumari. A, Member | |
