COMPLAINT FILED: 27.05.2009

DISPOSED ON:10.04.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

10^th DAY OF APRIL 2012

       PRESENT:- SRI. B.S.REDDY                PRESIDENT                        

                         SRI.A.MUNIYAPPA                   MEMBER

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint u/s. 12 of the C.P. Act of 1986, seeking direction against Opposite Party (herein after called as OP) to refund a sum of Rs.1,00,000/- together with interest at 24% to pay compensation of Rs.1,00,000/- on the allegations of deficiency in service on the part of the OP.

2. The case of the complainant to be stated in brief is that:-

OP is a company engaged in training the Software Engineers and after evaluating performance of each individuals provide them placement opportunities of their clients and in case of not appointed for a job with any of their clients, OP were to absorb them with certain terms and conditions. The complainant was selected for the Job Guaranteed Mainframe Training Programme conducted by OP on the assurance that he would be guaranteed job on completion of three months training. The complainant was asked to pay sum of Rs.1,00,000/- for the course fee which has been paid in three installments. The complainant successfully completed the training in three months in September – 2008. He waited for nearly two months for a call letter to attend the interview of OP’s clients. There was neither a letter for appointment from the OP also. In terms of the agreement, OP was to provide necessary placement in one of its client’s company or else to absorb him on a monthly salary of Rs.6,000/-. Till today there has been no response from the OP. The complainant got issued legal notice on 20.11.2008; OP has not sent any reply for the said notice. OP has neither complied with the said notice nor replied to the same; hence OP is liable to compensate the complainant. The act of OP amounts to unfair trade practice. The complainant has incurred heavy expenses and sustained loss due to deficiency of service. OP also failed to act in conformity with the terms of agreement which amounts to deficiency in service rendered by OP. The complainant had to undergo undue hardship, mental agony, suffering inconvenience and harassment due to the deficiency in service rendered by OP and unfair trade practice. The complainant is entitled to claim Rs.2,00,000/- as punitive damages and Rs.1,00,000/- together with interest at 24% from 01.08.2008 till the date of payment. Thus the complaint seeking necessary relief’s as stated above.

3. On appearance, OP filed version through its duly authorized Sri. Suresh Babu D.V. its Chief Financial Officer. The allegation that the complainant is a consumer is denied, the agreement entered between the parties is in respect of a commercial purpose and the agreement is not entered by complainant exclusively for the purpose of earning his livelihood by means of self employment, hence the complaint is not maintainable. OP company on successful completion of training provides with a job assurance and towards this purpose the company shall identify potential employers and help in attending the interviews. It is denied that OP agreed, in the event of not being appointed for a job with any of clients, absorb within it as per the terms and conditions agreed. The allegation that the complainant was selected for the Job Guaranteed Mainframe Training Programme conducted by OP on the assurance that he would be guaranteed job on completion of three months training is not fully correct. It is submitted that on successful of training company provides with a job assurance and towards this purpose the company shall identify potential employers and help in attending the interviews. In the event of not being appointed for a job with any clients of company, the company shall absorb within it as per the terms and conditions agreed prior to the training. It is denied that the complainant has successfully completed the training in three months in September–2008. The complainant was frequently absent from training and in fact in the month of September – 2008 he was present for only 4 days. The attendance sheets are produced to show the absence of the complainant. Thereafter the complainant was though not agreed in the terms and conditions was provided additional training with no additional cost by the company to enable the complainant to effectively get trained and the additional training was provided till 12.10.2008 and thereafter complainant was issued a training completion certificate. The complainant was repeatedly communicated by telephone, mobile and e-mails to attend personal meetings and for face to face discussion to further improve his skills and to attend interviews with clients of OP. When the complainant was grossly negligent and careless in responding to the communications made by the OP, the OP was forced to further issue communication sent by e-mail dated 03.11.2008. The complainant continued to be callous, irresponsible and utterly negligent and was not communicating with the officers of the OP. OP in fact asked the complainant to attend interviews offered to him. The complainant was finally issued an e-mail communication dated 28.11.2008 directing him to meet the officers of OP on 11.12.2008 failing which is JGIT agreement with company will be terminated. The complainant having thus being solely responsible for not attending interviews has now chosen to make the utterly false and baseless allegation that he has waited for nearly 2 months to attend on interview of the OP’s clients. The complainant having failed to communicate and himself act as per terms and conditions of the agreement and through his acts and deeds giving no opportunity to OP to act as per the agreement is now making baseless allegations. OP has not received any legal notice. In fact repeated e-mail and telephonic communications were made by OP to the complaint. Hence OP is not liable for any compensation, the allegation that the act of OP amounts to unfair trade practice as defined is false. There is no any deficiency of service. OP has been able to offer interviews to all its trainees. The allegation that the complainant has incurred heavy expenses and sustained loss due to alleged deficiency of service and OP failed to act in respect of the terms of the agreement which amounts to deficiency of service is all false and denied. The allegation that the complainant is entitled for Rs.2,00,000/- as punitive damages and for refund of Rs.1,00,000/- with interest at 24% p.a. is baseless. Hence it is prayed to dismiss the complaint.   

4. The complainant in order to substantiate the complaint averments filed affidavit evidence.  The Chief Financial Officer-OP filed affidavit evidence in support of defence version and produced documents marked as Annexure-R1 to R8. Further OP also produced documents with Memo on 27.11.2009 along with additional affidavit.

5. Both parties filed Written Arguments, Arguments heard on both sides.

6. Points that arise for our consideration are:-

Point No.1 :- Whether the complainant has proved

                    the deficiency in service on the part of

                     the OP?

     Point No.2 :- If so, whether the complainant is

                   entitled for the relief’s now claimed?

     Point No.3 :- To what Order?

7. We record our findings on the above points:

    Point No.1:- Negative

           Point No.2:- Negative

           Point No.3:- As per final Order.

R E A S O N S

8. At the out set it is not at dispute that the complainant selected for the job guaranteed Mainframe Training Program conducted by the OP and paid the course fee of Rs.1,00,000/- in three instalments and completed the training. The grievances of the complainant is that  as per the terms and conditions of the contract entered into between the parties on successful completion of training OP-Company assured to provide job and towards that purpose OP-Company shall identify potential employers and help in attending the interviews. In the event of not being appointed for a job with any of its clients, OP shall absorb within it on monthly salary of Rs.6,000/-. Even after completion of training in September-2008. OP has not sent any call letter to attend the interview of any of its clients and there is no any placement in Ops clients. OP has also not issued any letter to absorb him on a monthly salary of Rs.6,000/-. Thus it is stated that the complainant got issued legal notice dt.20.11.2008, OP has neither complied the demand nor replied for the same as such there is unfair trade practice on the part of the OP and also deficiency in service, the complainant is entitled for refund of the course fee paid along with compensation of Rs.1,00,000/-.

9. OP along with affidavit evidence produced the documents marked as Annexures-R1 to R8. Annexure-R2 is the terms and conditions with regard to the selection of the complainant for the course. The training program was for a total duration of 3 months but it appears that the complainant has not completed the same within 3 months and the Training was for the period 23.06.2008 to 12.10.2008. Therefore the claim of the complainant that he has completed the Training Course in the month of September-2008 is not correct. OP has produced Annexure-R1 the Extract of Register of Attendance to show that the complainant in violation of the agreed terms and conditions was frequently absent from the training and in fact in the month of September-2008 he was present for only 4 days. Clause-5 of Annexure-R2 reads;

            “You herein agree that placement opportunities may be provided to you in ProEd or in any other organization at any location in India or Overseas depending on your performance in training, performance in interview, and the availability of job opportunities. You agree that the decision regarding the same is solely at the discretion of ProEd. Your have been made aware that it is vital that your succeed in the job opportunity provided to you. It is a condition in the agreement that all contractual obligations of ProEd to provide you Job shall be deemed to have ended with the providing of the first job opportunity. Your failure to qualify/to get selected will/may lead to termination solely at the discretion of ProEd. Further opportunities if provided by ProEd, will be done solely at the discretion of ProEd and do not form part of the terms of this contract”.

            On the basis of the above said clause it is contended for the OP that to enable the complainant to effectively attend interviews, he was repeatedly communicated by telephone, mobile and e-mails to attend personal meetings and for face to face discussion to further improve his skills and to attend interviews with clients of OP, Annexure-R4 is the e-mails dt.22.10.2008 sent to the complainant. The complainant was negligent and careless in responding to the communications made by the OP. OP issued further communication on 03.11.2008 as per Annexure-R5 email, the complainant continued to be callous, irresponsible and utterly negligent and was not communicating with the officers of the OP. Further as per EX.R6 email dt.25.11.2008, the complainant was informed about the interview call by 3.p.m on that day but the complainant has not attended the said interview. Further the complainant has not replied to the communication dt.28.11.2008 marked as Annexure-R7. Thus it is contended that the complainant having not adhering to the terms and conditions of the agreement is not entitled to seek any relief’s. There is no any unfair trade practice or deficiency in service on the part of the OP. The complainant has not availed the opportunity to attend the interview fixed on 25.11.2008. Thus Op is not liable to pay any amount as compensation or refund the amount.

10. As per Clause-5 of the terms and conditions stipulated in Ex.R2 the contractual obligations of OP end with the providing the first job opportunity. The complainant failed to avail the interview opportunity which was communicated to him through email dt.25.11.2008 as per Annexure-R6. In view of the same it cannot be said that OP has not fulfilled its obligation of providing assistance for attending interview of its clients.

11. It appears that the complainant was provided additional training at additional costs to the Op-company to enable the complainant to effectively get trained and the additional training was provided till 12.10.2008 and thereafter the complainant was issued training completion certificate the copy of which is marked as Annexure-R3. We are unable to accept the contention of the complainant that during the meeting held on 24.10.2008 as per Annexure-R4, OP insisted the complainant to surrender the original confirmation letter and further that even subsequent email sent OP insisted over telephone to come with the original confirmation letter issued to him hence he did not attend the meeting held on 05.11.2008. We are also unable to accept the other contention that on receipt of the email dt.25.11.2008 he approached the OP but he was informed that his name is not in the list of candidates who were called for interview. It may be noted that in case if the complainant was insisted to surrender original confirmation letter in the meeting held on 24.10.2008 and even subsequently over telephone and after receipt of email dt.25.11.2008 as per Annexure-R6, the complainant approached the OP and he was informed that his name is not in the list of candidates called for interview nothing prevented him from pleading these materials facts in his complaint. The points urged at para-3 and 4 of the Written Arguments of the complainant are neither pleaded in the complaint nor stated in the affidavit evidence of the complainant or in the legal notice stated to have been issued to the Op. Without there being any pleadings and affidavit evidence with regard to these points urged in the written arguments. We are of the view that these points are only after thought to overcome the defence setout by OP.

12. As per the complaint averments, the main grievances of the complainant is he completed his training in Septermber-2008, he waited for nearly 2 months for a call letter to attend the interview of OP’s clients, there was no any letter for appointment from Op. It is pertinent to note that if the complainant had attended the meeting dt.24.10.2008 and he was informed that he was not short listed for the interview as shown in reply email sent on 26.11.2008 as per Ex.P7, he could have pleaded these material facts in his complaint and state the same in the legal notice issued and affidavit evidence filed.

13. Further it may be noted that the complainant has not replied to emails dt.28.11.2008 sent by OP as per Annexure-R7. Even the complainant has not produced any material to show that the legal notice dt.20.11.2008 was issued to the OP and OP neither complied the demand nor replied for the notice. The Postal Authority issued an endorsement with regard to the information sought under RTI Act regarding the said notice stating that the complainant has not furnished the registered number of RPAD Office booking and the exact date of booking. Hence it is practically not possible to reply to the RTI query, the information cannot be given. The counsel for the complainant filed affidavit stating that the legal notice was got issued by the complainant by RPAD to OP, the office clerk who had sent the RPAD has misplaced the acknowledgment and the receipt while shifting the office. In our view, in case if the notice was received by OP there was no reason in not replying the said notice. Hence, we are unable to accept that the notice has been issued to the Op and Op in spite of receipt of the notice failed to reply for the same. Therefore, on the basis of the said notice the cause of action stated to have been arisen to the complainant cannot be accepted. Under these circumstances, we are of the view that in spite of opportunity afforded to attend the interview as per Annexure-R6 the complainant has not availed the same. The complainant has not approached this Forum with clean hands he cannot be allowed to take advantage of his own negligence in not attending the interview. There is no any unfair trade practice or deficiency in service on the part of the Op. The complaint is devoid of merits, the same is liable to be dismissed. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed. Considering the nature of dispute there is no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 11^th day of APRIL-2012.)

MEMBER                                                        PRESIDENT