MR. SHYAMAL KUMAR GHOSH, MEMBER

1. The instant Revision Petition has been preferred by the revisionist / opposite party no – 1 challenging the order impugned being no – 4 dated 30/08/2022 passed by the Ld Trial Commission, Howrah in connection with MA case being no – MA/09/2022 (arising out of consumer case being no – CC/06/2022) wherein the Ld. Trial Commission has been pleased to dismiss the MA case filed by the opposite party on the ground of non-maintainability. Being aggrieved and dissatisfied with such order, the revisionist/opposite party no – 1 has preferred the aforesaid Revision Petition before this Commission praying for setting aside the order impugned being no – 4 dated 30/08/2022 passed by the ld Trial commission, Howrah.
2. The fact remains that the complainant is an employee under the opposite parties’ hospital viz Shree Shree Jain Hospital and Rrsearch Centre since last twenty five consecutive years at a monthly salary of Rs.11,800/- only. The complainant has been terminated by the termination letter dated 18/10/2021 issued by the ops during the period of Covid – 19 pandemic on the ground of his absenteeism. This termination is totally illegal as the ops have clearly violated the order being D.O. no – M-11011/08/2020 issued by Ministry of Labour & Employment, Government of India. The complainant has sent a legal notice to the opposite parties’ office to that effect but in vain. Not only that the opposite parties have failed to pay his arrear salary and compensation. Accordingly, the complainant has come before the ld Trial commission for getting relief/reliefs as prayed for against the opposite-parties.
3. During pendency of the aforesaid consumer case, one MA case being no – MA/9/2022 has been filed by the revisionist/ opposite party no - 1 and he has argued that the instant consumer case is not maintainable at all. Accordingly he has prayed for dismissal of the instant consumer case.
4.  Having heard the ld advocate appearing for both sides and upon careful perusal of the materials available on the record, the ld Trial commission has been pleased to reject the aforesaid MA case without any order as to costs.
5. Hence Revision Petition filed by the revisionist/opposite party no – 1 before this Commission.
6. We have heard the ld advocate appearing for both sides at length and in full.
7. We have considered the submissions of both sides.
8. We have also meticulously perused all materials available on the record.
9. At this juncture we think that the moot question/issue raised in the instant Revision Petition as to whether the relationship between the employer and employee comes well within the purview of the consumer Protection Act 2019 or not that should be decided by this Commission in order to adjudicate the matter for the sake of both parties.
10. What is salary- As per Income Tax Act the existence of ‘Master-Servant’ or ‘Employer-Employee’ relationship is absolutely essential for taxing income under the head Salaries. Only those payments which have a nexus with the employment are taxable under the head Salaries. The salary includes wages, annuity or pension, any gratuity, any fee or commission, any advance salary, bonus, leave salary, dearness allowance etc. Certain perquisites are also valued with reference to the salary of the employee. For this purpose salary includes pay, allowances, bonus or commission payable monthly or otherwise or any monetary payment, by whatever name called from one or more employers, as the case may be, but it does not include the retirement benefits/terminal benefits such as employer’s contribution to the provident fund. In pursuant to the above discussion it appears to us that the salary is a form of periodic payment from an employer to an employee, which may be specified in an employment contract. It is a fixed amount of money or compensation paid to an employee by an employer in return for work performed in any organisation/institution/company.
11. From the above discussion it is crystal clear to us that the aforesaid issue/question is certainly related to the service matter and it is settled principle of law that the issue/question relating to the relationship of employer and employee (as well as master and servant) does not come well within the purview of the Consumer Protection Act 2019. In this regard we can safely rely upon the decision taken in Revision Petition being no – 71/2013 in Kondareddygari Adinarayanareddy vs State Bank of Hyderabad & Anr wherein the Hon’ble NCDRC has been pleased to hold that in so far as the question of jurisdiction is concerned, the time-honoured remedial measure adopted by Government or Public Sector employees having any grievance in regard to a service matter has been to seek redressal of such service matters before the competent Services Tribunal or Civil Court.
12. Actually the benefit of salary is, generally, provided by the employer of any company/concerned organisation and through rendering service to the employer, the aforesaid benefits are received by the employee of the said company/organisation. In the instant case the relationship of employer and employee is obviously persisted and upon the said views the employer-employee relationship has a clear bar to enter into the purview of the Consumer Protection Act, 2019.
13. Be it mentioned here that the Employees’ Provident Fund Scheme comes well within the purview of the Consumer Protection Act 2019 and an employee-member of the said scheme is to treated as ‘consumer’ as per the aforesaid Act which has already been decided by the Apex Court in Regional Provident Fund commissioner vs Shiv Kumar Joshi reported in (2000) 1 SCC 98 and in Jagmittar Sain Bhagat & ors vs Director Health Services Haryana & Ors reported in (2013)10 SCC 13. But the instant case is not related with the dispute regarding provident fund and as such it would be better at the behest of the complainant to approach before the proper and appropriate Forum for getting her relief/reliefs as prayed for against the opposite parties.
14. In pursuant to the above discussions in detail there is no hesitation to hold that the instant RP has enough merit and justification in order to reach proper conclusion of the aforesaid matter. The appropriate Forum for redressal of any of her grievance may be the State Administrative Tribunal, if any, or the Civil Court but certainly not a Consumer Forum under the Consumer Protection Act, 2019.
15. Considering all aspects from all angles and keeping in mind the present provisions of law and regard being had to the aforesaid citations of Hon’ble Supreme Court and National Commission we are constrained to allow the instant Revision Petition against the respondents without any order as to costs and set aside the order impugned dated 30/08/2022(arising out of CC case being no – CC /6/2022)
16. The ld District Commission is directed to dispose of the CC case pursuant to the above observations and ultimate conclusion.
17. The instant Revision Petition stands disposed of.
18. Note accordingly.
19. Let a copy of this order be transmitted to the concerned Trial commission for compliance and for necessary action.