Haryana

Panchkula

CC/226/2019

REENA ARORA. - Complainant(s)

Versus

MANAGING COMMITEE.ST.VIVEKANANAD MILLENNIUM SCHOOL. - Opp.Party(s)

R.S SATHI & ROBIN SATHI

06 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	226 of 2019
Date of Institution	:	10.04.2019
Date of Decision	:	06.06.2023

 

Reena Arora D/o Late H.B.Arora, Aged 42 years, R/o House No.191, Himshikha Colony, Pinjore, District Panchkula.

                                                                         ..….Complainant                                                 Versus                                                                  

Managing Committee, St.Vivekanand Millennium School, H.M.T.  Township Pinjore, Tehsil Kalka, District Panchkula through its Authorised Signatory.

                                                                         ……Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Sh.R.S.Sathi, Advocate for the complainant.

                        Sh.Piyush Punj, Principal along with Sh.Sukhdev Singh Saini, Advocate for the OP.

 

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that  the complainant was appointed as librarian with Opposite party(hereinafter referred to as OP) and joined her duty as librarian on 08.08.2006 in the basic pay scale of 5500+admissible allowances per month(wrongly mentioned the joining date as 9.8.2006 with the salary of 3500 per month). The complainant served with the OP w.e.f. 08.08.2005 till 14.03.2008 and her work and conduct during this period was upto the mark as no explanation, whatsoever, was ever called by OP. The complainant had served the prior notice of three months about her resignation from the post of librarian. A new librarian, namely, Neenu Panwar, was appointed by the OP in place of the complainant on 09.03.2018 and charge of all stocks including books and registers etc. was handed over to her. It is stated that no short comings of books or any property, which was under the charge or control of the complainant, was pointed out by Mrs. Neeru Panwar, newly appointed librarian. It is stated that the complainant had not been granted earned leave as admissible to her under law during her tenure as librarian. The OP has even deducted one month salary as the security from the salary of the complainant. The OP did not pay the security amount to the complainant after her resignation, which was accepted by the OP w.e.f. 14.03.2018. The complaint was filed by the complainant before Labour Inspector, Village Maheshpur, Sector-21, Panchkula for delivery of experience certificate, reliving letter, salary, security, P.F. and Gratuity. During the proceedings of the said complaint, security amount of one month i.e. Rs.29095/- was paid to the complainant vide cheque no.799773 dated 05.10.2018. It is averred that the OP did not deposite the EPF amount with EPF Department since the date of joining of the complainant whereas the EPF amount was deducted from her salary. It is stated that the OP had deposited the EPF amount from 01.01.2017 till 14.03.2018. The last pay of the complainant was Rs.29,095/- per month and so payment of gratuity amount, earned leave and salary from 01.03.2018 to 14.03.2018 are payable to the complainant as per law, details of which  are given as under:-

A.	Gratuity Amount from 09.08.2006 to 14.03.2018(11 years 7 months 5 days)	Rs.1,74,570/-
B.	Dues/Wages of Earned Leave from 09.08.2006 to 14.03.2018(11 years 7 months 5 days)	Rs.1,74,570/-
C.	Salary from 01.03.2018 to 14.03.2018	Rs.13,140/-
	Total amount	Rs.3,62,280/-

 

Due to the act and conduct on the part of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.Upon notice, the OP has appeared through counsel and filed an application seeking dismissal of the complaint on the ground that the complainant does not fall under the category of consumer as she has neither purchased any goods nor hired any services from the OP. The complainant contested the application by filing reply to the said application on 29.05.2019. The OP has also filed the written statement contesting the complaint by raising preliminary objections that the complainant does not fall under the category of consumer; the disputed question of law and facts are involved in the present complaint, which cannot be decided in summary proceedings.

                On merits, it is admitted that the complainant was appointed as librarian with OP and she joined her duty on 08.05.2005 on the basic pay of Rs.5500 plus admissible allowance  per month  in the pay scale of 5500-175-9000 and not on 09.08.2006 at the salary of Rs.3,500/- per month as alleged. It is denied that the work and conduct of the complainant during her tenure was up to the mark, as she used to leave the school one hour before here duty time and failed to maintain the library properly and number of books were found missing from the library during her tenure. It is admitted that the complainant served notice about resignation on 09.12.2017. It is denied that complainant handed over charge of all the stocks including books and registers etc. and it is also wrong to allege that there were no short comings of books. It is submitted that number of books were found missing from the library and thus, she failed to give proper charge to new librarian. Regarding the earned leave, it is submitted that the complainant was non-vacation staff and she had consumed her earned leave by taking leave during summer and winter vacations and thus, the complainant was not entitled for earned leave. It is denied that the OP had deducted one month salary as security from the salary of the complainant. It is correct that the resignation of the complainant was accepted w.e.f. 14.03.2018. It is submitted that no security amount of the complainant was due towards the OP. It is submitted that at the time of resignation of the complainant, number of books were found missing from the stock, therefore, no proper charge was given by her and the complainant never gave account of missing books from the library. It is denied that the complainant was directed by the OP not to come to school after 14.03.2018. The complainant used to visit school number of times after resignation. It is further submitted that payment of EPF is not under the control of OP and gratuity can’t be released to the complainant till clearance of dues including recovery of cost of missing books etc. in the library under her control.  The complainant was not eligible to be member of EPF as per EPF Act as per her salary. As a gesture of goodwill, the complainant was made member of EPF by the OP from 01.01.2017. The complainant had not cleared the stock of missing books from the library; therefore, Gratuity was not paid to her. The complainant is non-vacation staff and she had consumed her earned leave by taking leave in summer and winter vacation; therefore, she was not entitled for encashment of Earned leave if due. The OP has paid the salary to the complainant, which is claimed by her. It is denied that the OP has been negligent and deficient. No cause of action has accrued in favour of the complainant and further, the complainant does not fall under the category of the consumer and thus, prayed that there is no deficiency in service on the part of the OP and the complaint of the complainant is liable to be dismissed.

3.Replication to the written statements of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP.

 4.To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP has tendered affidavit Annexure R-A along with documents as Annexure R-1 to R-10 and closed the evidence.

4. We have heard the learned counsels for the both the parties and gone through the entire record available on file, minutely and carefully.

5. In the present complaint, the following relief has been claimed by the complainant:-

a.       To make payment of

          i.        Gratuity amount of Rs.1,74,570/-.

          ii.       Salary/Dues/Wages of earned leave of Rs.1,74,570/-

          iii.      Salary from 01.03.2018 to 14.03.2018 of Rs.13,140/-

          Total (i)+(ii)+(iii) = Rs.3,62,280/-

b.       To pay 24% interest of total amount of Rs.3,62,280/- from 15.03.2018       to till its final payment made by OP to the complainant.

c.       To direct the OP to deposit the amount of EPF from 09.08.2006 till     31.12.2016 along with share of complainant in the EPF account of    complainant along with 24% interest from the date of due till its   payment.

d.       To pay Rs.1,00,000/- as compensation on account of mental agony, trauma and harassment.

e.       To pay Rs.22,000/- the litigation  expenses.

                                      And/or

          Any other order or direction which this Hon’ble Forum may deem fit and proper peculiar facts and circumstances in favour of complainant against the OPs.

6.During the pendency of the complaint, a sum of Rs. 1,54,815/- was paid by the OP to the complainant vide cheque no.73369 dated 28.011.2019, drawn at the Punjab National Bank, qua gratuity amount, after making a deduction of Rs.39,689/- on account of missing books etc. under the control of the complainant.

7.Initiating the arguments, the learned counsel for the complainant stated that the complainant has no grievance  towards the  release of EPF amount but the learned counsel has reiterated the averments as made in the complaint as also in the affidavit of the complainant Annexure C-A qua the release of remaining/balance gratuity amount i.e. Rs.39,689/-, which was deducted by the OP from the total payable gratuity amount on the ground  that some books etc. were found missing during the tenure of the complainant. It is contended that, in addition to balance gratuity amount, the complainant is also entitled to the payment of an amount on account of earned leave and salary from 01.03.2018 to 14.03.2018 amounting to Rs.13,140/-. Concluding the arguments, the learned counsel has prayed for acceptance of the complaint by granting the relief as prayed for during the submissions made above.

8.On the other hand, the OP has resisted the complaint by raising preliminary objections that the complainant does not fall under the category of consumer. Apart from it, it is contended that the complicated question of facts and law are involved in the present complaint, which requires elaborate evidence in the shape of examination, cross-examination of witnesses, which is not feasible under the summary procedure being adopted under the Consumer Protection Act. On merits, it is contended that a sum of Rs.39,689/- was deducted on account of value of missing books, which were under the control of the complainant and thus, there is no deficiency on the part of the OP.

9.Admittedly, there is no dispute qua the release of EPF amount between the parties. In so far as the release of gratuity amount is concerned, the Hon’ble National Commission, vide its order dated 20.07.2022 in Revision Petition no.71 of 2013  titled as  Kondareddygari Adinarayanareddy Vs. State Bank of Hyderbad & Anr. & Anr.  has held that matter relating  to gratuity are not covered under the purview of Consumer Protection Act. The relevant para is reproduced as under:-

        “As far as gratuity is concerned, it is undisputedly a service matter and as such it is not within the purview of the Consumer Protection Act, 1986”.

10.Though some consumer complaints pertaining to gratuity has been allowed earlier by the Commission but the same were decided prior to the law laid down by the Hon’ble National Commission in case supra. The law laid down  by the Hon’ble Apex Court in the matter of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi(2000) ISCC 98 (2013) and (2008) 7 SCC lll Regional Provident Fund Commissioner Vs. Bhayani relates to EPF under the EPF Act. The issue of gratuity was not involved in the aforesaid cases. Now, we advert to the definition of the consumer, which is given in Section 7 of Consumer Protection Act, 2019 as under:-

(7) “consumer” means any person who-

(i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

ii.hires  or avails  of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service  other than  the person  who hires  or avails  of the services  for consideration  paid or promised  or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of  the first  mentioned  person, but does  not include a person  who avails  of such service for  any commercial purpose.  

Explanation:- For the purpose  of this clause,-

1. The expression “commercial purpose” does not include  by a person  of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
2. The expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through  electronic means       or by teleshopping  or direct selling or multi-level marketing;

 

11.From the definition as reproduced above, it is amply clear that a person who buys goods or hires any service for consideration is covered under the definition of consumer but in the present complaint, the complainant has neither bought any goods nor hired any services from the OP, therefore, as per law laid down by the Hon’ble National Commission in the Revision Petition(supra), the complainant does not fall under the category of consumer. Moreover, the adjudication of the present complaint involves complicated questions of laws and facts, wherein examination and cross examination of the witnesses is required, which is not permissible under summary procedure being adopted in the adjudication of the consumer complaint under CP, Act.   Therefore, the present complaint is not maintainable under the Consumer Protection Act. However, in the interest of justice, without commenting on the merits of the case, we deem it appropriate to dispose of the present complaint with the direction to the complainant to approach the appropriate Tribunal/Authority/Court as per law if she is so advised. The complainant shall be at liberty to file an application before the concerned Court/Authority/Tribunal under Section 14 of the limitation Act for excluding the period spent before this Commission for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”.

12.The original papers/documents, if any, attached with the present complaint be returned to complainant on her request after retaining the photocopy of the same on record. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.  

Announced on: 06.06.2023

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                       Member                  President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President