Presented by:
Minakshi Chakraborty, Presiding Member.
BRIEF FACTS OF THE CASE:
F I N A L O R D E R
This case has been filed by the complainant 35 of the C.P. Act, 2019. The fact of the case in a nutshell is that the complainant was a labour under the Company of Op. no.1 herein and retired from his service in the year 2016. After his retirement O.p. no.1 issued three cheques towards final payment of gratuity in the name of the complainant being cheque nos.511582 dated 06/08/2022 amounting to Rs.1,61,050/-, cheque no.511585 dated 16/08/2022 amounting to Rs.1,81,070/- and cheque no.511588 dated 26/08/2022 amounting to Rs.1,49,923/-. O.p. no.1 through its authorized person sent one letter dated 06/08/2022 to the certificate Officer, Office of the District Magistrate and Collector, Certificate Department under Certificate Memo No.464/G-135/16/DLC/HOW date 26/02/2022 with an intimation for the aforesaid cheques. According to the complainant, after receiving all those three cheques he deposited the two cheques to his bank for clearance one by one as per date mentioned in the said cheques but unfortunately the cheque being No.511588 dated 26/08/2022 was misplaced by the complainant at the time to going his bank in Liluah Bazar area. Complainant lodged one GDE before the Local Police Station, Liluah being G.D.E. No.83 dated 02/11/2022.
Complainant went to the Office of the O.p. and narrated the matter about misplacement of the said cheque and the concerned Office assured the complainant that they will issue a fresh cheque in favour of the complainant amounting to Rs.1,49,923/-. In spite of repeated request O.p. no.1 did not issue any receipt copy though they took all the papers from the complainant and after lapse of some days O.p. no.1 informed the complainant that it is not possible for them to issue fresh cheque in favour of the complainant for which complainant sent one Advocate’s letter on 07/11/2022 to O.p. no.2 being the authorized person of O.p. no.1 with a demand for making payment for his gratuity amount within three days from the date of receiving of the said letter.
As per submission of the complainant, the conduct of the O.ps clearly indicating that they are guilty of gross negligence, deficiency of service and unfair trade practice has been practiced by the O.ps. for which the complainant prays for compensation to the tune of Rs.1,00,000/- direction upon the O.ps. to make payment of complainant’s gratuity amount of Rs.1,49,923/- alongwith litigation cost of Rs.20,000/-.
DEFENCE CASE:
O.p. nos.1 & 2 entered their appearance by filing their w.v. and additional w.v. denying inter alia all material allegations labeled against them. As per submission of the O.ps., the application filed by the complainant is not entertainable by this Commission and they further state that this matter should be deal by the respective court and or by the authority. As per submission of the O.ps. the certificate Memo No.464/G-135/16/DLC/HOW date 26/02/2022 was issued by the Ld. Controlling Authority under the Payment of Gratuity Act, 1972 to the Ld. Certificate Officer and the same was already executed by the Ld. Certificate Officer as per certificate office letter Memo being No.516/Cert/How dated 22/07/2022 which the O.ps. have annexed with their w.v.
As per submission of the O.ps., the prayers made by the complainant, there is no cogent ground to heard this matter for which they prayed for dismissal of the instant complaint case.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition. No evidence on affidavit and B.N.A. have been filed by the O.ps.
Argument highlighted by the ld. Lawyers of the parties
Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
The case is running ex-parte against both the O.ps. vide order no.7 dated 07/09/2023 vital question involved in this case is whether the complainant is consumer or not?
The complainant has submitted that the O.ps. have issued three number of cheques in his favour in respect of final payment of gratuity. It is an admitted fact by the complainant is that the complainant has misplaced the cheque at the time of going to the Bank for which he lodged one General Diary before the Liluah P.S. and he further requested the O.ps. to issue one fresh cheque in his favour. To substantiate his case the complainant has filed the photocopies of cheuqes alongwith photocopy of advocate’s letter. On the other hand the O.ps. appeared and alongwith their w.v. they have filed some documents showing that they have issued the cheque in favour of the complainant and the complainant received those cheques by putting his signature. Now as per Section 2(7) of the Consumer Protection Act, 2019
"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.
Here, O.ps. have issued the cheques in favour of the complainant which complainant has misplaced for his own ignorance. So, question of deficiency in service or unfair trade practice or negligence on the part of the O.ps. do not arise at all and complainant has miserably failed to prove his case. Moreso, from the reading of this Section 2(7) of the Consumer Protection Act, 2019 alongwith the complaint petition the Commission does not find any reason to hold the instant complainant as consumer.
As per view of this Commission has no jurisdiction to entertain this instant complaint case as it is a dispute between employer and employee and non issuance of duplicate cheque can never be treated as Consumer Dispute.
The instant case is not maintainable before this Commission constituted under the said Act. This issue is thus disposed of. As the complainant is not a consumer so rest of the issues are needless to be discussed.
Hence,
O R D E R E D
That the C. C. Case No. 338 of 2022 be and the same is dismissed ex-parte with no order as to costs.
However, the complainant would be at liberty to approach the appropriate Forum for redressal of his grievances.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website Dictated and corrected by
(Minakshi Chakraborty)
Mmber
D.C.D.R.C., Howrah
