PRESENT:-
Complainant by Adv Wankhede
Opponent1 to 3 by Adv. Nilesh Parte.
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
The complainant has filed this complainant under Section 12 of the consumer protection Act, against the opponents for getting compensation, alleging deficiency of service on the part of opponent No. 1 to 3.
Facts giving rise to the present complaint in short are as under.
Opponent No. 1 is the company registered under the company Act and opponent No. 2 & 3 are its directors.
The complainant was in the employment of the opponent and has completed continuous service for more than 25 years. In the year 2000-2001 the complainant was asked to resign from his services which complainant did so. Thereafter the complainant has asked for his service dues. It is the contention of the complainant that, after harassing the complainant his dues for provident fund and pension amount was paid by the opponents but the amount of gratuity remains unpaid. According to the complainant for his claim of gratuity amounting to Rs.2,21,000/- he was required to run from pillar to post but opponent did not pay him his legal dues. According to the complainant the alleged act on the part of opponents amounts to deficiency of service therefore he has filed his complaint and claimed compensation for deficiency of service.
Opponents have resisted the complaint by filing their separate written statement and contended that complainant’s complaint is barred by limitation. It is also contended by the opponent that, the complainant does not fall within then definition of consumer since, he has resigned his services. It is also contended that the claim of the complainant for gratuity does not lie within the jurisdiction of consumer Forum. Moreover, complainant’s prayer for money claim is the outside the scope of jurisdiction of this forum. It is further contended that, the complainant was involved in illegal gratification which caused losses to opponent No. 1 and therefore the claim for the gratuity of the complainant was not settled. Therefore opponents deny any deficiency of service and pray to reject the claim.
On respective contentions of the parties following point arise for our considerations. Our findings are recorded against the same.
POINTS
- Does the complainant prove that, the opponents have indulged in deficiency of service by not paying his amount of gratuity? Yes
- Whether complainant is entitled to get compensation? Yes
- What order? As per final order.
Perused pleadings of the both parties and their written argument. We also heard both of them. The main contention for resisting the claim of the complainant for gratuity based on three points 1) claim is barred by limitation 2) Jurisdiction of this Forum 3) Involvement of complainant in illegal activities. We would like to take point of jurisdiction first. We do admit that, the amount of gratuity is considered under Gratuity Act. However, the said Act does not prohibit the jurisdiction of Consumer Forum to entertain and decide the point of gratuity. Our view has been fortified by the judgment of National Commission in the case of Kumar Dwiwedi V/s. JIilha Sahakari Kendriya Bank reported in (2012) CPJ Page 12 (NC), Wherein,the Hon’ble National Commission while confirming the judgment of State Commission have observed that amount of gratuity can be withheld only to the extent of amount defalcated by the employee. Now in present case though the opponents have come with the case that, the complainant has involved in illegal activities due to which huge loss of Rs.8/- was caused to the opponents. Admittedly no documents about any enquiry or criminal prosecution against the complainant have been filed on record. On the contrary the complainant was asked to resign his services which he did so. Even after the resignation of the complainant no action either civil or criminal is initiated against the complainant. Therefore, the contention of the opponents that, claim of gratuity cannot be entertain by Consumer Forum any merit.
Though, much argued by the opponents about the limitation point for filing claim of gratuity, we are of the clear opinion that, the claim for gratuity is the statutory claim of employee. The employer can the same only when some action is initiated against the employee. In present case though alleging huge loss to the opponents due to the illegal act of the complainant no satisfactory record is forthcoming. Therefore considering the gratuity claim as a statutory though complainant has come to the forum after two years his claim cannot be defeated. By applying the same analogy we are of the view that the claim of the complainant being statutory claim it cannot be equate for simple money claim.
In view of discussion on point No. 1 no further explanations is require for point No. 3.
Therefore, we have no hesitation to conclude that, the opponents, by not paying the amount of gratuity to the complainant have indulged in deficiency of service. WE therefore decide point No. 1 & 2 in affirmative and pass following order.
ORDER
- Complaint is allowed.
- It is hereby declared that, opponent No. 1 to 3 have indulged in deficiency of service by not paying Rs.2,21,000/- towards his claim for gratuity.
- Opponents are directed to pay Rs.2,21,000/- to the complainant with 10% Interest on its from the date of complaint till date of realization.
- Opponents are further directed to pay Rs.50,000/- towards compensation for mental agony and Rs.5,000/- towards cost of litigation.
