Haryana

Panchkula

CC/562/2019

SALIM KHAN. - Complainant(s)

Versus

THE MANAGING DIRECTOR,EEE& CEE PRESSINGS PVT.LTD. - Opp.Party(s)

26 Jul 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

                                                              

Consumer Complaint No	:	562 of 2019
Date of Institution	:	24.09.2019
Date of Decision	:	26.07.2021

 

Salim Khan S/o Sh.Aslam Din, H.No.1137, Gobindpura, UT, Manimajra Chandigarh.

                                                                                      ….Complainant

                                    Versus                                                                  

The Managing Director, EEE & CEE Pressings (Pvt. Limited), Plot No.169, Phase-l, Industrial Area Panchkula (Haryana)

                                                                                    ….Opposite Party

COMPLAINT UNDER SEC. 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:    Sh.A.K.Malhotra, Advocate, counsel for the complainant.  

                           OP already ex-parte vide order dated 19.11.2019.

                          

ORDER

(Dr.Pawan Kumar Saini, Member)

1.               The brief facts of the present complaint as alleged are that the complainant was appointed as Office Assistant and had been in the employment of OP from 02.06.2008 and worked up to 31.10.2017 and submitted resignation dated 03.10.2017 but was relieved on 31.10.2017. He was in receipt of on last salary drawn of Rs.13,500/- per month. The OP never issued any appointment letter, but maintained the record in Adult Worker Register which is to be maintained under the provisions of the Factories, Act, 1948. The complainant is entitled for payment of Gratuity U/s 4 of the Payment of Gratuity Act, 1972 as the complainant had completed more than 5 years continuous service and have resigned from the service of the company which has been duly accepted by the OP. The OP despite numerous requests did not remit the amount of gratuity to the complainant to which he is legally & lawfully entitled as per the provisions of the Payment of Gratuity Act, 1972. Further, as per the policy of the company the gratuity under the Payment of Gratuity Act, 1972 is being paid on full wages i.e. including all allowances. The complainant served the OP for more than 9 years and the last salary drawn was Rs.13,500/-P.M. and therefore the complainant is entitled for payment of gratuity amounting to Rs.70,096/- alongwith 18% interest therein besides compensation of Rs.50,000/-and cost of litigation of Rs.15,000/-. The complainant also got served notice dated 10.09.2019 through his counsel.  Due to the act and conduct of the OP, the complainant has suffered a great financial loss and mental agony, harassment. Hence, the present complaint

2.               Notice was issued to the OP through registered post (vide registered post No.CH025499437IN) on 16.10.2019 to OP, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP; hence, it was deemed to be served and thus, due to non appearance of Op, he was proceeded ex-parte by this Forum vide its order dated 19.11.2019.

3.               The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement.

                  During the course of arguments, the learned counsel for the complainant has submitted the copy of Section 4 of the Payment of gratuity act clarifying the amount of gratuity admissible to the complainant. The aforesaid copy is taken on record for the adjudication of the dispute in a proper and fair manner as Mark ‘A’. 

4.               We have heard the learned counsel for the complainant, considered the written arguments filed by the ld. counsel for the complainant and gone through the record minutely and carefully

5.               It is evident that the complainant was employed with OP as Office Assistant on 02.06.2008(Annexure C-1). The date of joining of the complainant w.e.f. 02.06.2008 is well proved from a bare perusal of (Annexure C-1) i.e entry in Adult Worker Register, Employees Provident Fund Slip(Annexure C-2), Employees State Insurance Identity Card (Annexure C-2) and. As per (Annexure C-2(colly)) i.e. Salary slip for the month of Sep.2017, the complainant was drawing a salary amounting to Rs.13,500/- per month. It is also evident that the complainant resigned vide letter dated 03.10.2017 (Annexure C-4) from the said post. Further, The complainant claiming the gratuity amounting to Rs.70,096/-has also got served legal notice dated 10.09.2019(Annexure C-5) upon the OP requesting him for the release of gratuity amount. The learned counsel for the complainant has contended that as per Section 4 of Payment of Gratuity Act, 1972, the complainant is entitled to the payment of gratuity as he had served with the OP for more than 5 years. The learned counsel contended that the OP has not acceded to the request of the complainant regarding the release of gratuity amounting to Rs.70,096/- despite the legal notice dated 10.09.2019 (Annexure C-5) sent to the OP. Regarding jurisdiction of this Commission, the learned counsel has contended that the Consumer Commission has jurisdiction to decide the complaint as held by the Hon’ble National Commission in case titled as Venkatesh and Ors. Vishwanath and Ors. decided on 28.11.2007.

6.               As mentioned above, the OP has not appeared to rebut or controvert the version of the complainant. Before proceeding further to discuss the merits of the case, we deem it appropriate to discuss the legal issue whether the complainant falls under the category of consumer and whether this Forum has jurisdiction. Regarding the status of the complainant as consumer, we may rely upon the orders passed by the Hon’ble National Consumer Disputes Redressal Commission in case titled as Venkatesh and Ors. Vs. Vishwanath and Ors., wherein the Hon’ble National Commission in Para No.5 of its order dated 28.11.2007 has observed that the question of complainant falling under the category of consumer has been well settled by the Hon’ble Apex Court in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi III (1999) CPJ 36(SC), CA No.411 of 1997 dated 30.01.1996. Further it would be relevant to mention here that the Hon’ble State Consumer Disputes Redressal Commission Punjab while deciding the First Appeal No.1047 of 2015 in case titled as Managing Director Kudos and anr. Vs. Bharat Bhushan vide order dated 09.06.2016 has also placed reliance upon the observation made by the Hon’ble National Commission in Para 5 of its order dated 28.11.2007 in the said case of Venkatesh and Ors. Vs. Vishwanath and Ors. Thus, the legal preposition has been well settled that a person claiming the amount of gratuity under the payment of Gratuity Act falls under the category of a consumer and thus we have jurisdiction to decide this case. Now adverting to the merits of this case, we find that the complainant has served with the OP w.e.f. 01.04.1999 as is evident from Annexure C-1 to Annexure C-4. As per Section 4 of the Gratuity Act, 1972, an employee is entitled to the payment of gratuity, who has rendered continuous service for a period of more than 5 years. For the sake of convenience, Section 4 of the Gratuity Act is reproduced as under:-

“Payment of gratuity-(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years-

1. On his superannuation, or
2. On his retirement  or resignation, or
3. On his death or disablement due to accident or disease.

7. Further, we find that the gratuity of an employee may be forfeited by the employer under sub clause 6 of Section 4 of the Payment of Gratuity Act. However, the OP has not appeared in this case to controvert and rebut the version of the complainant and thus the version of the complainant goes unrebutted and uncontroverted. For the want of any challenge to the version of the complainant, the same is taken to have been proved. Therefore, we may safely conclude that gratuity amount as claimed by the complainant was never forfeited by OP. Thus, we find no justification on the part of the OP to withhold the payment of gratuity amount as claimed by the complainant.

8.               In view of the aforesaid discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the OP while not releasing the amount of gratuity to the complainant; hence, the complainant is entitled to relief. In this regard, the total payable gratuity amount comes out as Rs.70,096/- on the basis of following calculations:-

Rs.13,500(last salary drawn)/26*30days=Rs.15577/- per month. The complainant was employed for more than 9 years with OP w.e.f. 02.06.2008 to 31.10.2017 and therefore, the amount comes out as Rs.15577*9 years=Rs.1,40,193/-. The amount is payable for 15 days only per month and thus, the total amount for 4 ½ years (i.e. for completion for 9 years of service) comes to Rs.70,096/-.

9.               As a sequel to the above discussion, we allow the present complaint of the complainant by directing the OP to pay Rs.70,096/- on account of gratuity amount payable to the complainant alongwith interest @9% per annum from the date of filing of the present complaint  i.e. 24.09.2019 till its realization. The OP is further directed to pay a sum of Rs.10,000/- on account of mental agony and harassment and further  to pay Rs.5,500/- as cost of litigation charges.

10.             The OP shall comply with the order within a period of 45 days from the date of preparation of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:26.07.2021

 

 

Dr.Sushma Garg           Dr. Pawan Kumar Saini          Satpal           

         Member                   Member                            President

 

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                    Dr. Pawan Kumar Saini

                                             Member