BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 48/2001 Filed on 27.01.2001 Dated : 31.01.2009 Complainant:
Arvind Gopalakrishnan, Mundanad House, Valiasala, Thiruvananthapuram – 695 036.
(By adv. K. Krishna Kumar)
Opposite parties:
M/s Geosoft Technologies Ltd., 649/650, V.P. Complex, Aurobindo Marg, 11th Main, 5th Block, Jaya Nagar, Bangalore – 560 041. M/s Geosoft Technologies Trivandrum Pvt. Ltd., 235, NLA, Technopark Campus, Trivandrum- 695 581.
(By adv. Sandeep T. George) This O.P having been heard on 21.01.2009, the Forum on 31.01.2009 delivered the following: ORDER SMT. S.K.SREELA: MEMBER
The facts of the case in brief are as follows: As per the advertisement published in the 'HINDU' dated September 16, 1998 the opposite parties 1 and 2 invited Engineering Graduates with minimum 5 years experience to join the SAP R/3 implementation team of their company as consultants in different fields including SAP Project Systems and accordingly the complainant who was already in service by then in M/s Kitti Steels Ltd. Hyderabad as Manager, Marketing sent in his application to the office of the 2nd opposite party at Thiruvananthapuram as specified hoping to pursue highly dynamic, challenging and rewarding assignments. The complainant was selected as consultant trainee – SAP Project Systems and as per the terms and conditions of employment notified, the complainant was required to deposit Rs. 2 lakhs as lumpsum including initial payment of Rs. 30,000/- as security deposit before commencement of six months training at the office of the 2nd opposite party at Thiruvananthapuram. The remaining amount of Re. 1 lakh towards security deposit was to be adjusted/deducted against the payment of stipend/salary payable by the company. The complainant complied with all the requirements stipulated in the subsequent appointment letters dated 5th December 98 and 31st December 98 regarding payment of security deposit exercising option under Appendix-II to make the total security deposit of Rs. 3 lakhs. The stipend promised by the opposite parties for the months of January 99 to March 99 is Rs. 7500/- per month and from April 99 to June 99 Rs. 12,500/- per month. The complainant was thereafter eligible to draw salary at the rate of Rs. 25000/- per month from July 99 to December 99 with deduction towards security deposit. He is eligible to draw full salary of Rs. 25000/- per month with permissible deductions from January 2000. The complainant has already fulfilled his part of the contract entered into with the opposite parties regarding remittance of Rs. 3 lakhs as security deposit in full by December 1999. The opposite parties had gone back on their promise as they have failed to pay any stipend from the month of February 99 onwards and any salary from the month of July 99 onwards. The total amount thus payable works out to Rs. 1,03,263/-. Unfortunately he was paid stipend only for one month, i.e., for January 1999 and thereafter no payment whatsoever has been made to him by the company till date. It is submitted that the complainant had occasion to approach the authorities of the company several times even after his continuation till December 1999 for getting the unpaid stipend and salary released in vain. The opposite parties are liable for committing gross deficiency of service by their failure to honour the terms and conditions of contract entered into with the complainant. Hence this complaint for refund of Rs. 300000/- kept with the company as security deposit, Rs. 1,03,263/- being the arrears of stipend and salary till December 1999 along with compensation.
The 2nd opposite party has filed their detailed version and among other contentions raised the question of maintainability of the complaint on the following grounds:- This dispute is of civil nature, which is to be filed before a competent civil court. The complainant became the trainee of M/s Geosoft Technologies Ltd., Bangalore, the 1st opposite party. He had received stipend from the employer i.e; M/s Geosoft Technologies Ltd., Bangalore and was a trainee-employee. The complainant is not a consumer and no consumer dispute is attracted as envisaged under the Consumer Protection Act. The cause of action alleged to have been occurred is at Bangalore, thus exhausting the jurisdiction of this Hon'ble commission. Moreover this is essentially a labour dispute against other opposite party as per the complaint itself and ought to have filed before labour dispute forum. The Hon'ble Kerala State Consumer Disputes Redressal Commission by virtue of a judgement dated 09.04.2002 in O.P. No. 74/99 which is a similar complaint in which this opposite party was arrayed as the 3rd opposite party, held that there is no consumer relationship and that this is an employee-employer relation and that this being a contract of service it is excluded from the definition of service under Sec. 2(i)(o). It was further stated that the complainant if so advised may approach the civil court for his grievance. It is also submitted that this Hon'ble Forum by an order dated 04.08.2000 in O.P 285/99 which was also a similar complaint exonerated this opposite party from all liabilities. Hence the issue to be considered is whether the complaint is maintainable before the Forum.
The point:- As per the pleadings in the complaint, he has been selected as a consultant trainee-SAP Project Systems and as per the terms and conditions of employment, the complainant was required to deposit 2 lakhs as lumpsum including initial payment of Rs. 30,000/- as security deposit before commencement of six months training and the remaining Rs. 1 lakh was to be adjusted/deducted against the payment of stipend/salary payable by the company. Accordingly the complainant had fulfilled his part of the contract. But the opposite parties have failed to pay any stipend from February 99 onwards and any salary from the month of July 1999 onwards. As per the terms and conditions of his appointment, the complainant was eligible to receive Rs. 7500/- per month as stipend during the period of training and thereafter Rs. 25,000/- per month as salary with effect from July 1999. It is further pleaded that the stipend for the month of January 1999 alone was paid and thereafter no payment whatsoever has been made to the complaint till date. The reliefs claimed by the complainant are refund of arrears of stipend and salary and refund of Rs. 3 lakhs the fixed deposit and compensation.
The main contention of the 2nd opposite party is that there is no consumer relationship between the complainant and this opposite party. It is further contended that in a similar complaint, the Hon'ble State Commission of Kerala held that there is no consumer relationship and that this is an employee-employer relationship and that this being a contract of service it is excluded from the definition of service under Sec. 2(i)(o) of the Act. We have carefully gone through the pleadings in the complaint in detail and the contentions in the version. The basic aspect to be looked into at this juncture is whether the complainant has availed any service of the opposite parties by paying consideration as envisaged in the Consumer Protection Act. As per Sec. 2(1)(d) “consumer” means any person who – 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 [hires or avails of] any services 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 services 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 availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation: For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;] and as per Sec. 2(i)(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.
Undisputedly, the complainant was in the employment of the opposite parties and was also assured stipend and salary for the same. According to the complainant, he has been paid stipend for only one month, i.e; for the month of January 1999, thereafter no amount has been paid to the complainant by the opposite parties. Thus in view of these allegations it is clear that the complainant was an employee of the opposite parties and the opposite parties have taken the service of the complainant. It is not the case of the complainant that he had hired the services of any one of the opposite parties and he had suffered due to any deficiency. The grievance of the complainant is that on account of delay in making the payment i.e; stipend/salary, he is entitled to the amounts mentioned in the complaint. For the purpose of payment of the salary or stipend by no stretch of imagination it can be said that the complainant has hired the services of the opposite parties for consideration. A dispute between an employee and employer relating to terms and conditions of service, salaries or stipend will not amount to consumer dispute. We have gone through the decision produced by the 2nd opposite party in O.P. No. 90/00, in which the Hon'ble Consumer Disputes Redressal Commission, Kerala has observed in a similar case that “we may point out here that the relationship of parties was employer and employee and in an employee-employer relationship, service is rendered by the employee to the employer and he/she is paid wages or salary for rendering service by the employer. It is the employer who availed of the service or hired the service of the employee and paid consideration for availing service. No service is rendered by the employer to the employee and on that ground we hold that complainant is not a consumer”. The present complaint before us, cannot be legally sustained since the essential pre-requisite of the existence of an arrangement of hiring of service for consideration is totally lacking in this case. The case of the complainant for non-payment of stipend/salary will not be covered under the definition of any service to be rendered.
Such being the case, it goes without saying that the complaint as instituted by the complainant before the Forum is not at all maintainable. We are of the opinion that the complainant is not entitled to maintain his complaint before this Forum for he is not a consumer. When he is not a consumer it is not necessary to consider whether on account of delay in making the payment, the complainant has suffered any loss or not, due to the negligence of the opposite parties which according to the complainant constitute deficiency in service. So far as this Forum is concerned, the complaint could be entertained only if the complainant was a consumer.
In the result, the complaint is dismissed as not maintainable. The complainant is at liberty to seek redressal if any before appropriate authority.
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 day of 31st January 2009.
S.K.SREELA : MEMBER
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
