State Consumer Disputes Redressal Commission
Godrej Consumer Products Ltd vs Mr Vipin Dwiwedi on 13 October, 2017
A/14/775 1/8
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/14/775
(Arisen out of order dtd.15/07/2014 in Complaint No.168 of 2010 of
Additional Consumer Disputes Redressal Forum, Mumbai Suburban District )
1, Godrej Consumer Products Ltd.,
Acting through it's constituted Attorney
Mr. Rathnakar Salian,
Office at Pirojshnagar, Eastern Express
Highway, Vikroli, Mumbai - 400 079.
2. Mr. Adi B. Godrej,
Director, Office at Pirojshnagar,
Eastern Express Highway,
Vikroli, Mumbai - 400 079.
3. Mr. Nadir Godrej,
Director, Office at Pirojshnagar,
Eastern Express Highway,
Vikroli, Mumbai - 400 079. .....Appellant(s)
Versus
MR. Vipin Dwiwedi,
702-B, Aditya, Gulmohar,
Cross Road No.7, J.V.P.D. Scheme,
Vile Parle (W), Mumbai - 400 009. ......Respondent.
BEFORE: Justice Mr.A.P.Bhangale, President
Mr.A.K. Zade, Member
PRESENT: Advocate Mr.Anand V. Patwardhan for appellant.
Respondent/Original Complainant in person.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This is an appeal filed by the Appellants/Original Opponents against the order of Additional Consumer Disputes Redressal Forum, Mumbai A/14/775 2/8 Suburban District dtd.15/07/2014 in which the Ld.District Forum allowed the complaint, declared the Opponent Nos.1 to 3 indulged in deficiency of service by not paying Rs.2,21,000/- towards gratuity claim and directed the Opponents to pay the said amount of gratuity to the Complainant alongwith interest @ 10% from the date of complaint till the date of realization. The Ld.District Forum also directed the Opponents to pay an amount of Rs.50,000/- towards compensation for mental agony and Rs.5,000/- towards cost of litigation.
2) As per the Complainant, the facts of the case are as given below -
The Complainant/Respondent was in the employment of the Opponents and has completed continuous service for more than 25 years. In the year 2000-2001 the Complainant was asked to resign from his services which Complainant did so. Thereafter, the Complainant has asked for his service dues however, the Complainant received his dues and provident fund and pension amount from Opponents after lot of harassment by them but the amount of gratuity of Rs.2,21,000/- remained to be paid. Alleging the same as deficiency in service, the Complainant filed the instant Consumer Complaint before District Forum praying for payment of above said amount of gratuity alongwtih interest @ 21% from July 2001 till date of realization and also compensation of Rs.5 Lacs for mental agony and harassment and Rs.50,000/- towards cost.
3) The Opponents resisted the claim of the Complainant by filing their written statements. The contentions of the Opponents were that the Complainant's complaint is barred by limitation and that the Complainant does not fall within the definition of consumer. It was also contended by the Opponents that the claim of Complainant for gratuity does not lie within the jurisdiction of Consumer Forum and also that Complainant's prayer for money claim is outside the scope of jurisdiction of Consumer Forum. It was also contended on behalf of Opponents that the Complainant involved in A/14/775 3/8 illegal gratification which caused losses to Opponent No.1 and therefore, the claim for gratuity of Complainant was not settled. The Opponents therefore, denied any deficiency in service. After hearing the arguments on behalf of the parties and on the basis of documents and evidence filed by the parties, the District Forum passed the impugned order against which the instant appeal has been preferred.
4) One of the grounds of appeal is that, District Forum has erred in holding that it has jurisdiction to hear and decide the matter even though it related to the payment of gratuity. It is the contention of Appellants that in many judgments, the Hon'ble Courts have held that the Gratuity Act is a complete Code which sets forth the basis for payment of gratuity and the remedies related thereto in the event gratuity has been withheld and/or wrongfully denied to an employee and therefore, the Complainant has erred in approaching the wrong Forum for relief. It is also contended by the Appellants that the relief for payment of gratuity can only be granted as per the provisions of the Gratuity Act. Another ground in preferring appeal by the Appellants is that the complaint is filed beyond the statutory period of limitation under the Consumer Protection Act, 1986. It is the contention of the Appellant that the cause of action arose on July 23, 2001 and more than six years period is over before filing of the said complaint and the Respondent/Complainant has willfully neglected to show sufficient cause for the said delay but the impugned order does not provide any reasoning for condonation of delay in filing the complaint and instead held that the said complaint is within limitation on a baseless ground that the Complainant's claim is a statutory claim. It is also the ground of the Appellants that the instant dispute is not a consumer dispute within the meaning of the Act and that the Respondent/Complainant is not the Consumer defined in the Consumer Protection Act. It is also contended that there is no deficiency of service on the part of Appellants/Opponents or that they have not committed A/14/775 4/8 any unfair trade practice in the instant case as required under the provisions of Consumer Protection Act. The Appellants further contend that the Respondent/Complainant is neither a consumer nor was any service provided to him by Appellants/Opponents nor any deficiency suffered by him as defined under the said Act and also the reliefs sought by the Respondent/Complainant do not fall within the ambit of the said Act as the prayer for payment of gratuity can only be sought under the Gratuity Act and therefore, the Ld.District Forum erred in granting the prayers sought by the Respondent/Complainant. It is also contended by the Appellants that the District Forum has wrongly opined that the Appellants had not initiated any proceedings whether civil or criminal against the Respondent. In fact, owing to the Respondent's malafide conduct and in view of his admission of having received illegal gratification which consequently caused losses of Rs.7 to 8 Lakhs to the Appellant No.1, criminal proceedings were lodged against the Respondent/Complainant and Criminal Complaint No.90/S/2003 was filed in the 34th Metropolitan Magistrate Court at Vikhroli, Mumbai and which is pending for final hearing. It is also contended by Appellants that the Respondent's written admission by his two letters of dtd.23/07/2001 of usurping Appellant No.1's money and his acceptance that he would not be entitled to any payments by way of gratuity or provident fund from Appellant No.1 was ignored by the Ld.District Forum. However, the said letters of Complainant dtd.23/07/2001 do not seem to have been filed before the District Forum and therefore, the Ld.District Forum could not consider the same while passing the impugned order.
5) Another ground put forth by the Appellants that the District Forum has incorrectly applied the ratio in the Hon'ble National Commission's judgment passed in the case of Saroj Kumar Dwiwedi V/s. Jillha Sahakari Kendriya Bank reported in (2012) CPJ page 12 (NC) in favour of the Respondent as the Respondent's claim for gratuity was Rs.2,21,000/-
A/14/775 5/8with interest, while the amount which the Respondent had admittedly defalcated amounted to Rs.7 to 8 Lakhs and as in the said judgement, the Hon'ble National Commission upheld the view of the State Commission that "......gratuity could be withheld only to amount said to have been defalcated and therefore remaining amount to be paid ...." and dismissed the revision petition. It is also contended by the Appellants that the District Forum wrongly held that while alleging huge loss to the Opponents due to illegal acts of Complainant, no satisfactory record is forthcoming. It is the contention of the Appellants that on the contrary the company has maintained a record of the wrongdoings of the Respondent and has even sought criminal action against him and all this was amply clear but the impugned order miserably fails to take into consideration all and/or any of the said facts. It is also contended by the Appellants that the complaint was bad for misjoinder of parties as Appellant Nos.2 & 3 are only Directors of Opposite Party No.1 and they have no direct role in the present matter and that no specific averment have been made against them throughout the said complaint. The Appellants also contend that the Complainant had not approached the authorities of Appellant No.1 at any point of time under the Gratuity Act nor he had made a formal application seeking payment of the gratuity amount due. The Appellants further contend that the Respondent is guilty of suppression of material facts and that the said complaint was filed solely with a view to fraudulently snatch orders from the Hon'ble Commission, in gross abuse of the process of this Hon'ble Commission. The Appellants therefore, prayed for setting aside the impugned order with cost.
6) Perused the record and heard arguments on behalf of the parties. The reasons given by the Ld.District Forum are that the Gratuity Act does not prohibit the jurisdiction of Consumer Forum to entertain and decide the point of gratuity. The Ld.District Forum relied on the judgment Saroj A/14/775 6/8 Kumar Dwiwedi V/s. Jillha Sahakari Kendriya Bank mentioned above. We have gone through the judgment cited above. By the said judgement Revision Petition filed by the Revision Petitioner - Claimant against the order of the State Commission reducing the amount of gratuity granted by the District Forum was dismissed. It is mentioned by the District Forum in the impugned order that in the present case though the Opponents have come-up with the case that the Complainant was involved in illegal activities due to which huge loss of Rs.7 to 8 Lakhs was caused to the Appellants/Opponents, no documents about any enquiry or criminal prosecution against the Complainant have been filed on record. There is no reason for us to dispute this observation of District Forum. In the absence of any such document, the District Forum cannot be expected to give any finding in that respect.
7) The Appellants have contended that the Ld.District Forum have wrongly opined that no civil or criminal proceedings were initiated against the Complainant and in fact, the Appellants had as early as 2003 lodged criminal proceedings and filed Criminal Complaint No.90/S/2003 in the 34th Metropolitan Magistrate Court at Vikhroli, Mumbai which was pending for final hearing. However, it is not the case of Appellants that these documents were filed on record before the District Forum and because of this reason only, the Ld.District Forum must have made the said observation. A bunch of documents regarding the criminal proceedings alongwith the said two letters of Complainant have been filed on behalf of Appellants in this appeal before us. But the same do not seem to have been filed before the District Forum to enable the District Forum to give its finding after perusing them. We therefore, find it necessary to remand the instant matter back to the Ld.District Forum with direction to allow both parties to adduce additional evidence on affidavit and to decide the complaint on merit afresh on the basis of evidence including the additional evidence, if any filed by the A/14/775 7/8 parties on affidavit, their written arguments including additional written arguments if any and hearing of arguments.
8) On the point of limitation it is alleged by the Appellants that the Complainant has not made the formal application for payment of gratuity and first time by way of notice and the instant consumer complaint filed in 2010, the Complainant has asked for the gratuity claim while the Complainant has resigned in the year 2001. The Complainant has alleged that he has asked for his service dues but received provident fund and pension amount after lot of harassment but amount of gratuity remained to be paid. It is therefore, necessary to examine afresh as to when the cause of action for the said claim of gratuity arose and whether the claim of gratuity was made earlier or not and whether the complaint filed for the alleged claim of gratuity is within limitation or not. The point of limitation is therefore, kept open and the Ld.District Forum is directed to examine the same in light of the above discussion and give its findings with detailed discussion and appropriate reasoning.
9) Regarding the contention of the Appellants that the instant dispute is not a consumer dispute within the meaning of the Act, the Ld.District Forum has not given any specific finding on this point although the same was raised by Opponents in their written statement. In our opinion this point was required to be determined by the Ld.District Forum. However, the Ld.District Forum without giving its finding on this point for determination have gone ahead to decide the issue of deficiency in service. For this reason also, we find it necessary to remand the instant matter back to Ld.District Forum to decide as to whether the Complainant is a consumer or not and whether the Opponents are traders or service providers or not and whether the instant dispute is a consumer dispute or not within the meaning and provisions of the Act.
A/14/775 8/8In light of the above discussion, we pass the following order -
ORDER
(i) Appeal is partly allowed.
(ii) The order of Additional Consumer Disputes Redressal Forum,
Mumbai Suburban District, dtd.15/07/2014 is set aside and the consumer dispute is remanded back to it to decide afresh on merits on all points including the point whether the Complainant is a consumer or not and whether the instant dispute is a consumer dispute or not after giving opportunity to both parties to lead additional evidence on affidavit and to make additional pleadings if any.
(iii) No order as to costs.
(iv) The parties are directed to appear before the Ld.District Forum on
13/11/2017 at 10.30 a.m.
(v) Copies of the order be furnished to the parties.
Pronounced on 13th October, 2017.
[Justice A.P.Bhangale]
President
[A.K.Zade]
Member
aj