DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.588/2008

Sh. Sanjay Singh

Village Shyam Nagaria

PO- Gonda, Dist.- Aligarh,

U.P. 202123                                                                  ….Complainant

Versus

1.      STC Technologies (P) Ltd.

          (through its Principal Officer)

          E-14, 4^th Floor,

          South Extension-Part-II,

          New Delhi-110049

2.      STC Third Eye Technology India (P) Ltd.

          (through its CEO)

          E-14, 4^th Floor,

          South Extension-Part-II,

          New Delhi-110049                                         ….Opposite Parties

                                                  Date of Institution      :      12.09.2008              Date of Order    :               21.12.2017

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Case of the Complainant, in nutshell, is that the complainant was looking for an institute for providing a Certified Software Testing Professional course and in the month of September, 2007 he came to know about the institution of OPs and on the assurance made by the representative of OP No.1 he took admission in OP No.1 institution and paid the entire of fee Rs.13500/- in three installments in the following manner:-

1. Rs.1000/- on 21/08/2008 vide receipt No.512.
2. Rs.4000/- on 01/09/2008 vide receipt No.576.
3. Rs.8500/- on 06/09/2017 vide receipt No.595.

It is further stated that after completion of the aforesaid course the complainant was pursuaded by the staff of the OPs to get admission in the OP No.2 institution. On enquiry, the complainant was informed by the staff of the OPs that entire fee for the practical training rendered by the OP No.2 would be Rs.75,000/- out of which Rs.50,000/- was refundable after 18 months of joining the course and the OP No.2 will retain the rest of the amount of Rs.25,000/- as training fees.  OP No.2 also promised to pay a minimal amount to the complainant during his training period as trainee fee as follows:

“ (i) 2^nd – 12^th Months @ Rs.6,000/- p.m.

 (b) 13^th – 18^th Months @ Rs.12,000/- p.m.

 (c)  19^th – to 24^th Months @ Rs.18,000/- p.m.”

It was further stated that OP No.2 would provide the opportunity of actual project work and organize special interviews for the complainant to get better job opportunities. Accordingly, the complainant paid the entire amount of Rs.75,000/- vide receipt dated 17.12.2007. It is submitted that subsequently the complainant received a letter (offer letter) dated 01.01.2008 from OP No.2 wherein the complainant was offered a post of Test-Engineer-Trainee at Delhi and it was also stated that the complainant would be on probation for a period of 30 days from the date of joining which was  contrary to the representation made to the complainant and as such the complainant visited the office of OP No.2 and it was made clear that the complainant had taken in OP organization for the practical training and accordingly paid the fee for the same and he was not supposed to be treated as employee of OP No.2 and the staff of OP No.2 again re-assured earlier promises made to the complainant and further requested to sign letter stating that the letter was formal in nature and the complainant  should not worry about the same and ultimately the complainant signed the letter.  It is submitted that the representations made by the OP proved to be false as the complainant joined OP No.2 with sole objective to have the project work in the esteem organization but on the other hand the OPs only provided to do the Demo Project work instead of actual project work as promised by the OPs. It is submitted that the complainant was asked to submit the relevant papers for opening the PF account and subsequently OP No.2 deducted the PF contribution from the payment made to the complainant but the OPs had failed to provide the details of PF account. It is submitted that around one year had passed but the complainant was not provided any opportunity to do an actual project work and the purpose of taking such course was frustrated and thus the complainant asked the OPs to return the consideration and other dues like deduced amount of PF etc but the OPs did not do so. Hence, pleading unfair trade practice and deficiency in service on the part of the OPs, the complainant has filed the present complaint for the following directions:  

1. direct the OP No.2 to refund the consideration of Rs.75,000/- taken from the complainant as consideration for training alongwith interest @ 18% and/or;
2. direct the OP No.2 to refund to the complainant Rs.396/- p.m. deducted towards PF alongwith interest as per prevailing PF rate and/or;
3. direct the OPs to pay jointly and severally an amount of Rs.50,000/- as compensation  for mental agony and harassment caused to the complainant by the OPs.

OPs in their written statement have inter-alia stated that the complainant had completed the course of  Software Testing from OP No.1 and, hence,  there is no deficiency in service on the part of OP No.1; it is, however, stated that the work of performance of the complainant with the OP No.2 was not upto the mark and he was average and he was warned to improve his  work performance but he  miserably failed.  It is submitted that the complainant was directed to report on 15.09.09 but the complainant vide his email communication dated 14.09.2008 (sic) declined to report and admitted the fact that he was not able to report on 15^th September and was searching a job.  Vide the said email,  the complainant also  admitted that he would resign from the company. It is stated that the present complaint is liable to be dismissed as the Annexure C-2 filed by the complainant itself demonstrates that there was an  employment contract dated 01.01.2008 between the OP No.2 and the complainant  and he was offered to work as Test Engineer-Trainee at OP No. 2 company. The relevant clause of the terms and conditions (Annexure-A) reads as under:-

“1.     Employee shall pay Rs.75,000/- (Rupees Seventy Five Thousand only) as Retention Deposit. On successful 18 months   continuous service with the Employer, the Retention Deposit amount of Rs.50,000/- only will be refunded at the end of 18^th month.

6.      Employee will be governed by the service rules of Employer as may be applicable to you from time to time.”

It is further submitted that the complainant accepted the offer letter  after  going through all the contents and terms and conditions of the same and thus  he made no complaint against the said offer letter and now in order to cover up  his own wrongs the complainant is taking a false plea and is attempting to mislead the Forum by making wrong and incorrect statements. The complainant cannot be allowed to take the advantage of his own wrongs. It is submitted that thereafter in violation of the employment contract the complainant stopped attending the OP No.2 and violated the terms and conditions of the same.  Due to illegal acts and conducts of the complainant the OP No.2 suffered huge losses and they are going to file separate proceedings against the complainant for recovery of damages in the competent court of law.  It is submitted that the complainant of his own accord opted not to join the OP No.2 and abandoned his job and now by levelling baseless, false and vexatious allegations he is attempting to extract some unwarranted money  from the OPs.  The OP No.2 never refused the complainant to perform his usual work as per the contractual agreement arrived between the parties.  It is specifically denied that the OPs have indulged in unfair trade practice or extracted the hard earned money of the complainant on false pretext. According to them, there was a relationship of employer and employee between the parties. There is no deficiency in service on the part of the OPs and the complaint of the complainant is without any cause of action. OPs have prayed for dismissal of the complaint.

          Complainant has filed a rejoinder.  In reply to P.O. No.8 it is inter-alia stated as under:-

 “…It is submitted that taking  account of the facts that the O.P. no.2 is providing the service in lieu of consideration, timing of the said practical course i.e. 8.30 am to 1.30 pm and organizing the interview for the student, clearly proof that the relationship between the Complainant and the Ops was a consumer and the service provider. It is submitted that the Ops with ill motive and malafide intention turned the relationship of the Complainant and the  same has employer – employ relationship which   shows the unfair trade practice adopted by the Ops….”

In reply to para 3I on merits it is inter-alia stated as hereunder:-

“…It is further pertinent to mention here that one student namely Minakshi Kalra who joined the Bangalore Centre got refund Rs.50,000/- after filing the FIR by the police against the OPs. It is further submitted that complainant has also additional remedy to the criminal complain for cheating, misappropriation alongwith other applicable provisions of IPC against the OPs, their director and its employee”

Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. J. Saravanan, Director has been filed in evidence on behalf of the OPs.

Written arguments have been filed on behalf of the complainant.

No one has appeared on behalf of the parties to address oral arguments.

We have gone through the file very carefully.

There is no evidence except the bare averments made in the complaint and in the affidavit that the Complainant had infact taken admission in OP No.2 institute for taking practical training or that he was infact forced to sign the appointment letter/service contract.  Ex. CW/3 (Annexure R-1) is the copy of offer of appointment sent by the OP No.2 to the Complainant. The same is dated 01.01.08 and vide this letter the Complainant was asked to join his duty as Test Engineer – Trainee w.e.f. 07.01.08. The same has been admittedly signed by the Complainant.  Therefore, we are not inclined to believe that the Complainant had been forced to sign the employment contract with OP No.2.

According to the Complainant, as per the employment contract during the training period he was to be paid the trainee fee of Rs.6000/- per month for 2^nd to 12 months, Rs.12,000/-  per month for 13^th to 18^th months and Rs.18,000/- per month from 19^th to 24 months. Therefore, this fact also fortifies our belief that the Complainant had infact accepted the employment offer from OP No.2 on finding that he would be paid handsome amount during the period of his training.

 Now, according to the complainant, the OP No.2 had to refund Rs.50,000/- after 18 months of joining of the course and was to retain the amount of Rs.25,000/- as training fee. On the other hand, the OPs have simply denied this fact. Let us presume that the version made by the complainant in this regard is true.  However, the fact remains the same that the Complainant had accepted the offer of OP No.2 to join the OP No.2 as Test Engineer – Trainee after depositing the amount of Rs.75,000/-. As per the employment letter [copy not exhibited by the complainant] (Annexure R-1) the salary to be paid to the Complainant was inclusive of 1.75% ESIC on gross pay and 12% of PF on basic pay between 1-30 months (Annexure R-2). Now the complainant is estopped from pleading that the deduction of the PF contribution from his salary was wrong. The Complainant has filed the copy of an e-mail dated 28.03.08 1:22 p.m. as Annexure CW/5 in which all members of STC Testing Trainees, Delhi  (time 8.30 a.m. to 1.30 p.m.) had complained against the behaviour and attitude of their current Corporate Trainer. This document clearly proves that the Complainant had infact been working as an employee with OP No.2 on 28.03.08.  The OPs have filed a copy of the email sent by the Complainant to the Country Head of OP No.2 on Sunday, September 14, 2008 from his email ID jitender.delhi@stcthirdeye.com to mahesh@stcthirdeye.com in response to a letter received by the Complainant as Annexure R-5. The Complainant had informed the Country Head of the OP No.2 to be not able to report on 15 September and that he was searching for a job and also that his interview will be conducted in the last week of September and first week of October for which reason he was not able to relocate another location because of preference of NCR region.  He also informed that he needed one month’s time and also 18 month’s experience and that after conducting an interview he will resign from the Company.  This is the most clinching documentary evidence on the record to prove that there was infact a “relationship of employer and employee” between the OP No.2 and the complainant. Therefore, we do not feel any hesitation in saying that the Complainant has distorted the facts and has filed the present complaint based on untrue facts. There being a relationship of employer and employee between the complainant and OP-2 and complaint is governed under the Labour Law and hence is not a consumer.

In view of the above discussion, we hold that there was no deficiency in service or unfair trade practice on the part of the OPs.  Accordingly, we dismiss the complaint with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 21.12.2017.