PRESENT : Shri HARADHAN MUKHOPADHYAY PRESIDENT
: SHRI NIROD BARAN ROY CHOWDHURY MEMBER
Case No. CC/74/2021
COMPLAINANT :1. Sri Susajjit Basu,(Aged about 38 yrs.),
Son of Sri Subir Basu,
Of 10 D.P.C Bose Lane, Ukilpara,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia, Pin-741101 .
V-E-R-S-U-S
OPPOSITE PARTIES / 1. The H.D. Consortium India Limited,
A-11, 1st Floor Okhla Industrial Area,
Phase-I, New Delhi-110020,
Represented by its Managing Director,
Sri Manash Pratim Baruah,
S/O Lt. Paramananda Baruah,
2. Executive Director, Ms. Bornali Borpujari,
H.D. Consortium India Limited,
of A-11, Okhla Industrial Area,
Phase-I, New Delhi-110020.
.
3. The Zonal Manager,
H.D Consortium India Limited,
4, Dr. Suresh Sarkar Road,
4th. Floor, Amontran House,
Kolkata-700014.
4. Mr. Partha Banik(Regional Manager),
H.D Consortium India Limited,
4, Dr. Suresh Sarkar Road,
4th. Floor, Amontran House,
Kolkata-700014.
Ld. Advocate(s)
For Complainant: Prodip Banerjee
For OP/OPs : Shiva Das
Date of filing of the case :10.09.2021
Date of Disposal of the case :17.01.2024
Final Order / Judgment dtd.17.01.2024
The financial disputes between the complainant and the Ops dragged the complainant to this Commission for redressal of his grievance. The crux of
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the case of the complainant in a few words is that the complainant Susajjit Basu was appointed as Service Engineer by the OP No.1 H.D Consortium India Limited on 26.12.2006 at Kolkata Branch. Subsequently, he was transferred to Siliguri and he had to visit Bihar, Jharkhand, Nepal and Bhutan. Lastly he worked at Guwahati Branch as Area Manager (Sales and Services). Due to some family trouble the complainant resigned from this service on 31.10.2019 with due intimation through e-mail on 12.10.2019 to Senior, Mr. Partha Banik (Regional Manager). The complainant has not yet received his salary for the month of the October, 2019, T.A for September and October, 2019, D.A for Rs.44,302/- and incentive of Rs.5,07,604/- from the Ops. The complainant also has not received gratuity for which he sent e-mail on 26.11.2019 requesting the Ops to release his said outstanding money. It is pertainent to mention that the salary of the complainant did not increase from May, 2018. The complainant rendered his service with the Ops for about 12 years 7 months. The complainant handed over all his belongings of the company to the Regional Manager and General Manager on 30.10.2019 at Kolkata office. The said Regional Manager Mr. Partha Banik deleted all company related data from the Laptop of the complainant which he handed over to Mr. Partha Banik in presence Mr. Bidyut Kumar Maity and Mr. Gopal Kumar Sharma (General Manager). The Ops denied to pay the complainant’s dues which tantamounts to harassing and thus the Ops have caused harassment, mental pain and agony to the complainant. The complainant is entitled to get Rs.5,07,604/- towards incentives, Rs.34,849/- towards salary and Rs.44,302/- towards travelling expenses along with D.A and Gratuity with interest. Therefore, the complainant sent a legal notice through his Advocate on 15.07.2021 which the Ops received but did not take any steps, so the Ops have adopted unfair trade practices. The complainant prayed for an award for Rs.5,07,604/- towards incentives, Rs.34,849/- towards arrear salary , Rs.44,302/- towards travelling expenses plus D.A plus Gratuity and Rs.5,00,000/- towards mental pain suffering, pecuniary loss and harassment along with litigation cost.
The OP No.1-4 contested the case by filing W/V wherein they denied the major allegations and challenged the case as not maintainable . The positive defence case of the OPs in brief is that it is admitted that the complainant was appointed as Service Engineer by the OP No.1 H.D Consortium India Limited, New Delhi. He was also transferred to the Siliguri and lastly to Guhwati. Another employee namely Rana Bir Pal and Bishnu Das was spread rumours of closure of OP No.1 company. The complainant might have joined the said Ranabir Pal. The complainant was duly apprised by letter dated 30.11.2019 to refrain from misusing confidential information.
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The complainant was requested to obtain his employment dues subject to return of all company confidential information. But he did not adhere to the same. The OP No.1 company also replied to the legal notice by their letter dated 10.08.2021 and advised for amicable resolution of the matter but the complainant neglected to comply. The OP No.1 came to know also that the complainant left the service on personal grounds. The complainant has committed breach of duty. There is no document as regards the claim relating to TA, DA which are inflated . The complainant neglected to recover the money from the third party customer. The complainant deliberately has written off some claim of about 4 to 5 lakhs from the customers. The said claim will be higher than the calculated incentives claimed by the complainant. So the OPs claimed that the case should be dismissed with cost.
Conflicting pleadings of the both the parties led this Commission to ascertain the following points for determination.
Points for Determination
Point No.1.
Whether the present case is maintainable in law.
Point No.2.
Whether the complainant is entitled to get the relief claimed.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1,2 & 3.
All the points are very closely interlinked in this case and as such these are taken up together for brevity and convenience of discussion.
The present case has a chequered history. If we look into the background of this case, it would be found that the OPs after being appeared , filed one petition challenging the maintainability of the case which was registered as MA application vide MA/04/2022. The OPs in that petition challenged the legality and validity of the case invoking section 2 (42) C.P Act on the ground that it does not come under the definition of the service. From the definition of service it is pleaded that contract of service is excluded from the definition of service. So, there was no relationship between the parties under the C.P Act. The OPs also pleaded that Hon’ble Supreme Court excluded the contract of service from the purview of C.P Act. Therefore, the
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dispute arising from contract of personal service could not be tried by the Consumer Commission. The OPs therefore, prayed for dismissal of the complaint with cost.
The complainant filed written objection against the said petition of the OPs by filing W/O on 27.06.2022.
This Commission after hearing both the parties passed the order no. 11 dated 06.12.2022 with the observation that :-
“Hence,
It is
Ordered
that the present MA case No.MA/04/2022 is dismissed on contest but without any order as to costs.”
Subsequently, the OPs challenged the said order of the Commission dated 06.12.2022 before the Hon’ble S.C.D.R.C which was registered as revision petition No. RP/21/2023 arising out of order dated 06.12.2022 in case no.CC/74/2021.
Hon’ble S.C.D.R.C after hearing both the parties allowed the revision petition with certain observation as under:-
“... The moot question raised in the revision petition as to whether the amounts towards incentives Travelling Expenses, Dearness Allowances and Gratuity come within the purview of the C.P Act, 2019 or not that should be decided by this Commission in order to adjudicate the matter for the sake of both the parties.
What is incentives- As per Income Tax Act incentives paid to the employees fully taxable and form-a part of taxable salary.
Travelling Expenses- Travelling expenses include the entire cost of conveyance, business trips and other incidental charges relating to the various conveyance expenses to be paid by the employer to the employee during the period of business of office trips.
Dearness Allowances- Dearness Allowances is a part of the salary given to employees by the Commission or private sector employers to compensate for the rising cost of living due to inflation.
Gratuity- Gratuity is monetary and terminal benefit given by the employer for rendering services for equal to or more than 5 years . It is paid as part of salary.
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From the above discussion it is crystal clear 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 does not come well within the purview of the Consumer Protection Act, 1986 as well as Act, 2019....”
The Hon’ble S.C.D.R.C also held that there is no hesitation to hold that the instant RP is allowed without any order as to costs and set-aside the order impugned dated 06.12.2022 passed in MA being no. MA/04/2022 arising out of CC/74/2021.
Thus having perused the order of the Hon’ble S.C.D.R.C in RP/21/2023 this Commission finds that Hon’ble S.C.D.R.C has prevented this Commission to entertain this complaint case further. Ld. Senior Advocate for the complainant argued that the entire matter is left at the discretion of this Commission and he does not want to argue on merit.
There is clear finding of the Hon’ble S.C.D.R.C that question relating to relationship between the employer and employee does not come within the purview of C.P Act. So the complaint case should be dismissed .
The finding of the Hon’ble S.C.D.R.C is taken into consideration and the Commission comes to the finding that the nature of the dispute raised by the complainant does not come within the purview of the C.P Act of 2019. So, the present case is not legally maintainable and the complainant is not entitled to get the relief claimed.
Consequently, point No.1,2 and 3 are answered in negative against the complainant.
In the result the complaint case fails.
Hence,
It is
Ordered
that the complaint case no.CC/74/2021 be and the same is dismissed on contest without any costs.
All Interim Applications (I.A) stand disposed of accordingly.
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D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
........................................
MEMBER
(NIROD BARAN ROY CHOWDHURY)
