SAMIKSHA BHATTACHARYA,  MEMBER 

The instant Appeal has been directed by the appellant/complainant under Section 41 of the CP Act, 2019  against  the order dated 01.03.2023  passed by the Ld. District Commission, Hooghly, in  Complaint Case  being No. CC/109/2021.

The order dated 01.03.2023 passed by the Ld. District Commission, Hooghly, in CC/109/2021 is  reproduced as under:

“Order No. 14, dated 01.03.2023

Today is fixed for receiving order in respect of M.A. Case No. 76 of 2022.

Ld. Advocates  of both sides are present.

The case record of M.A. Case No. 76 of 2022 has been tagged with the case record  of CC/109/2021 wherefrom  it appears that the M.A Case No. 76 of 2022 has been allowed  on contest. It is held that the CC case No. 109 of 2021is not maintainable and this District Commission has no jurisdiction to try this case.

In view of the order of MA case No. 76 of 2022 this CC case No. 109 of 2021 be and the same is dismissed on contest.

No order passed as to costs.”

Being aggrieved  by and dissatisfied with the  aforesaid order, the complainant/appellant has filed the instant Appeal praying for setting aside the order dated 01.03.2023 in connection with the Complaint  Case being No.  CC/109/2021 passed  by the Ld. DCDRC, Hooghly, and to call upon the respondent/OP  to show-cause why the order should not be set aside and/or call for record and pass such order/orders and  direction/directions which the Commission may deem fit and proper.

The  facts of the case, in brief, are that the appellant/complainant (hereinafter referred to as  the ‘complainant’) is a public limited company duly registered  under Companies Act.  The complainant has also stated that  the   OP is a dangerous person and local rowdy. On 01.04.2001, the OP was appointed as worker under the company.  He was appointed as monthly salaried person for providing   his service to the company. However,  this service was very poor  and he was wilfully neglecting to provide service to the company since from  the beginning. Although, the company/complainant was  paying  him  on monthly basis for  his default service. From the  2^nd week of June, 2001,  the OP with local goons, was creating nuisance in the campus of the company and he was threatening other  labours of the company putting them into fear, forcibly  stopped company’s manufacturing process. The OP also gave slogans against the company which badly  affected the company’s goodwill. The several investors refused to work with the company and the company faced huge monetary losses. On 20.07.2021, the OP along with other  demolished  the main gate of the company. On 27.07.2021, the complainant  issued  show-cause  notice to the OP with some allegations. Although the show-cause notice was  received by OP on 28.07.2021 but the OP did not reply to the notice. Then the complainant/company sent a legal notice dated 02.08.2021 to OP. The complainant  has stated that the complainant/company is not satisfied  with his entire service and the OP is wilfully the defaulter in his service since his joining in the company. Therefore, the complainant/company claimed Rs.10,00,000/-  as compensation from the OP. This letter was also not replied by the OP. Accordingly,  on 16.08.2021, the complainant/company duly terminated  him from the service.

The complainant has stated in the petition  that since the complainant/company has been depriving  from taking proper  service from the OP, the company is  covered  under Section 35 of CP Act, 2019 and hence the complainant/company  filed a  complaint petition before  the Ld. District Commission praying for  compensation of Rs.10,00,000/-.

 The respondent/OP (hereinafter referred to as the ‘OP) filed written version before the Ld. DCDRC. In  the written version, OP has stated that the dispute between the parties is within the purview of  Factory Act and  dispute in between employer and employee  are not within the purview of  Section  35 of CP Act. All the allegations against the OP  were denied by the OP in the written version.

The OP has stated that the   Ld. District Commission has no jurisdiction to try any dispute between the employer and labour and actually the dispute  should be resolved within the purview of Factory Act and the  labour officer is the competent person. Hence, he has prayed for dismissal of the  complaint case.

After filing of  evidence on affidavit  by the complainant, OP has also filed a maintainability petition  being No. 76/2022 challenging the maintainability of the case. In the maintainability petition, the OP has stated that the dispute is not  under the purview  of Section 35 of CP Act and the dispute between the labour and the factory owner falls under the specific Act and the District Commission has no jurisdiction to try the matter, as such, OP has prayed for dismissal of the complaint case with cost.

The  Ld. District Commission has tagged the MA case being No. 76/2022 with the case record of CC/109/2021 and  has observed that the case is not maintainable and  accordingly the complaint case was dismissed on contest.

On the date of  admission hearing of the Memo of Appeal, Ld. Advocate for the appellant has submitted before us that the OP is obviously an employee and  he was  employed  to give service  to the company. Since he has neglected and failed to provide service to the  complainant/company, therefore,  the OP  is a service provider and  complainant is   a consumer.

As per Section 2 (5) of the CP Act, 2019,  “complainant” means –

1. a consumer; or
2. any voluntary consumer association registered under any  law for the time being in force; or
3. the Central Government  or any State Government; or
4. the Central Authority; or
5. one or more consumers, where there are  numerous consumers having the same interest; or
6. in case of death of a consumer, his legal heir or  legal representative; or
7. in case of a consumer being a minor,  his parent or  legal guardian;

As per Section 2 (7) of the CP Act, 2019 “consumer” means  any person who –

1. 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
2. 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 de3ferred 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 thepurposes of this clause,-

1. the expression “commercial  purpose” does not include use 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;

As per Section 2(42) of the CP Act, 2019 “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, telecom, boarding 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;

As per Section 2 (11) of the CP Act, 2019, “deficiency” means any fault, imperfection, shortcoming  or inadequacy  in the quality, nature and manner of performance  which is required to be maintained  by or  under any law for the time being in force or has been undertaken to be performed by a person  in pursuance  of a contract or otherwise  in relation to any service and includes –

1. any  act of negligence or omission  by such person  which causes loss or injury to the consumer; and
2. deliberate  withholding of relevant information by such person to the consumer;

As per averments made in the petition of complaint, the OP is simply an employee of the complainant/company, and the complainant  is the employer of the OP. Therefore, the relationship simply falls  under the employer and employee relationship which is beyond the purview of the CP Act.  In no stretch of  imagination, as per above quoted sections of C.P. Act , it is needless to say  that the  complainant/company is not a  consumer of   its employee/OP. The alleged dispute mentioned in the petition of complaint is a not a consumer dispute but  it is a service dispute between the employer and the employee. The reason being that an employer  cannot be  regarded as  consumer in respect of the  services rendered by its employee in pursuance of a contract of  employment.   In the  complainant/company employees  OP in lieu of salary. The ‘salary’  cannot be termed as   ‘consideration’. The dispute between the employer  and employee cannot be resolved by a Consumer Commission.  Therefore, the Ld. District Commission has rightly dismissed the complaint  since the relationship  does not come under the purview of CP Act.

In view of the discussion above, there being no jurisdictional error or  miscarriage  of justice  apparent in the impugned order of the  District Commission which could have warranted the  State Commission to have taken a different view than what was taken by the District Commission.  Hence, there is no need to interfere  with the impugned order  passed by  the Ld. District Commission.

The order of the Ld. DCDRC  is hereby affirmed.

Consequently, the  Appeal is dismissed being not admitted.

There is no order as to costs.

Thus, the  instant Appeal is disposed of accordingly.

Let a copy of this order be transmitted to the Ld. District Commission, Hooghly,   by the Office.