State Consumer Disputes Redressal Commission
Arvind Arora vs Governing Council Managing Lyallpur ... on 26 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1088 of 2010.
Date of Institution: 23.06.2010.
Date of Decision: 26.09.2011.
Arvind Arora W/o Sh. R.S. Arora, Advocate, 19, Green Model Town,
Jalandhar.
.....Appellant.
Versus
1. Governing Council managing Lyallpur Khalsa College For Women,
Jalandhar through its Secretary.
2. Lyallpur Khalsa College For Women, Cantt. Road, Jalandhar through
its Acting Principal.
.....Respondents.
First Appeal against the order dated
19.05.2010 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. R.S. Arora, Advocate.
For the respondents : Sh. Harsh Bunger Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.1088 of 2010 (Arvind Arora Vs Governing Council managing Lyallpur Khalsa College For Women, Jalandhar & Anr.) and First Appeal No.1096 of 2010 (Governing Council managing Lyallpur Khalsa College For Women, Jalandhar & Anr. Vs. Arvind Arora), as both the appeals are directed against the same impugned order dated 19.05.2010 passed by the District Consumer Disputes Redressal Forum, Jalandhar (in short "District Forum"). The facts are taken from 'First Appeal No. 1088 of 2010' and the parties would be referred by their status in this appeal. First Appeal No.1088 of 2010 2
2. Facts in brief are that Mrs. Arvind Arora, appellant/complainant (hereinafter called as "the appellant") filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, on the grounds that on 31.08.2005, she retired as Acting Principal of respondent no.2. Respondent no.1 manages the affairs of respondent no.2. As per the rules, gratuity was to be given to the appellant on her retirement and was required to be calculated at the rate of half of the Last Pay Drawn for each completed year of service and was to be paid on 31.08.2005.
3. The appellant served for 38 years and was entitled to receive a sum of Rs.5,59,800/- on 31.08.2005 as the Last Pay Drawn was Rs.29,463/-. The respondents made part payment on 04.12.2007 of Rs.1.00 lac and on 20.12.2008, another Rs.1.00 lac and on 03.02.2009, sum amounting to Rs.1,01,950/-. The respondents were required to pay Rs.6,24,221/-, but paid only Rs.3,01,950/- and replied the communications of the appellant, stating that the said amount has been received as full and final settlement as gratuity and the appellant was not entitled to demand any further dues.
4. This plea is wrong as the appellant mentioned on the vouchers that she was receiving the amount under protest. The appellant also wrote a letter dated 01.01.2009 to respondent no.1, pointing out the wrongful and irregular payments. Appellant received no payment in full and final settlement and after the payment, a letter was written to respondent no.1 on 09.02.2009. The appellant was constrained to sign some papers as the gratuity was withheld from 31.08.2005. The appellant is a consumer and there is deficiency in service on the part of the respondents and is also entitled to compensation and prayed that the respondents be directed to pay Rs.6,24,221/- along with interest @ 18% p.a. from 03.02.2009 till realization, Rs.50,000/- as compensation for harassment and mental tension and Rs.10,000/- as costs of litigation.
5. In the written statement filed on behalf of the resondents, it was admitted that the appellant retired as Acting Principal and served for 38 years, First Appeal No.1088 of 2010 3 but she was not entitled to a sum of Rs.5,59,800/-, as she had received Rs.3,01,950/- as full and final amount of gratuity and executed an affidavit dated 15.09.2005 to that effect. The said payment was not received under protest and the present complaint has been filed just to harass the respondents. The respondents were also interested to pay the dues in time. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
6. The parties led evidence in support of their respective versions by way of affidavits and documents.
7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum allowed the complaint, directing the respondents to pay the remaining amount of gratuity to the tune of Rs.1,84,189-50 in addition to the payment already made, along with simple interest @ 18% p.a. on the principal amount w.e.f. 01.09.2005 till realization. Rs.10,000/- were awarded as compensation and Rs.2000/- as litigation expenses.
8. Aggrieved by the impugned order dated 19.05.2010, the appellant-Arvind Arora has come up in the present appeal with a prayer to modify the impugned order and allow the complaint in toto.
9. Whereas, the respondents have also filed cross appeal i.e. First Appeal No.1096 of 2010 titled as (Governing Council managing Lyallpur Khalsa College for Women, Jalandhar & Anr. Vs. Arvind Arora), praying that the impugned order be set aside and the complaint be dismissed.
10. We have gone through the pleadings of the parties, examined the record of the District Forum, perused the written arguments filed on behalf of the appellant and heard the arguments advanced by the learned counsel for the respondents.
11. It was contended on behalf of the appellant that the appellant retired on 31.08.2005 after serving for 38 years and the gratuity was to be paid at the half of the rate of Last Pay Drawn which comes to Rs.29,463/-, but First Appeal No.1088 of 2010 4 the respondents have paid only Rs.3,01,950/- and the District Forum has not allowed the entire amount of gratuity as calculated vide Ex.C3 and has also not awarded compensation and the cost as demanded by the appellant. It was further contended that the affidavit Ex.O4 was not executed as full and final payment of gratuity, but it was under duress and coercion that the respondents obtained the signatures on the pretext of payment of gratuity and later on, fabricated it as full and final settlement and the complaint be allowed in toto and the amount demanded by the appellant as per her complaint may be awarded. Learned counsel for the appellant has relied upon the case law which has been discussed in the later part of the judgment.
12. On the other hand, learned counsel for the respondents argued that whatever the amount was due as gratuity, was paid to the appellant and she executed the affidavit Ex.O4 as full and final settlement and the order of the District Forum is against the said full and final settlement which has not been taken into consideration and the appellant is not entitled to any other amount. She is not entitled for 38 years of service because as per the rules, gratuity upto 33 years of service can only be paid. It has been further contended that the payment of gratuity and the dispute related thereto does not fall within the ambit of District Forum in view of the Section-7 of the Gratuity Act, 1972 and the appeal is liable to be dismissed.
13. We have considered the submissions made by the learned counsel for the parties and have examined the entire record minutely.
14. We will take up first the question of maintainability of the complaint. The Hon'ble Supreme Court in case "Regional Provident Fund Commissioner Vs Shiv Kumar Joshi", III(1999) CPJ-36(SC), interpreted Section-3 of the Act and held that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force.
15. In case "Venkatesh & Ors. Vs Vishwanath & Ors.", 2006(1) CPR-473(NC), Hon'ble National Commission held that the Consumer Forum First Appeal No.1088 of 2010 5 has the jurisdiction and the complaint is maintainable for seeking the relief of payment of gratuity. Relying upon this authority, Hon'ble State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No.FA/266/2009 titled as "The Ganges Manufacturing Co. Ltd. Vs Noor Hosain" decided on 16.11.2009, observed that the complaint is maintainable under the Act for claim of gratuity.
16. This Commission in First Appeal No.654 of 2008 "Municipal Corporation, Bathinda Vs Amarjit Kaur", decided on 10.12.2008, allowed the interest on the delayed payment of gratuity.
17. Learned counsel for the respondents has relied upon "Central Bank of India Vs Dil Bahadur Singh", III(1993) CPJ-319(NC) and "Mohamad Ibrahim Shekh Muneer Vs Pulgaon Cotton Mill Limited", II(2006) CPJ-391(Maharashtra State Consumer Disputes Redressal Commission, Mumbai).
Both these authorities of the Hon'ble National Commission and the Hon'ble Maharashtra State Commission, Mumbai are not applicable in view of the latest proposition of law laid down by the Hon'ble Supreme Court and the Hon'ble National Commission. It is, therefore, concluded that the complaint filed by the appellant is maintainable.
18. The next question arises as to whether the appellant is entitled to the relief claimed in the complaint and what is the effect of affidavit Ex.O4?
19. The appellant herself has placed on file document Ex.C7 as per which, the net payable amount comes to Rs.1,87,012/- but in Ex.C3, the amount payable on 31.08.2005 has been shown by the appellant herself as Rs.4,86,139-50 and out of this amount, appellant has received Rs.3,01,950/- and the remaining amount comes to Rs.1,84,189-50 and the District Forum has calculated the same correctly.
20. So far as the affidavit Ex.O4 is concerned, this cannot be taken into consideration because this seems to be fabricated after making payment of Rs.3,01,950/- in order to avoid the full payment of gratuity. No prudent man First Appeal No.1088 of 2010 6 will accept the less amount of gratuity after rendering a service of 38 years in a college and the respondents have failed to bring on record any cogent or convincing evidence to prove that the affidavit Ex.O4 was executed by the appellant in full and final settlement of her claim. As such, this affidavit cannot be taken into consideration and the District Forum has rightly ignored it. The District Forum has awarded the interest @ 18% p.a. which is sufficient to compensate the loss suffered by the appellant, but the interest and the compensation cannot be awarded at the same time. However, the cost awarded is less. Therefore, the appellant is not entitled to record Rs.10,000/- by way of compensation from the respondent, as such, this part of the impugned order is liable to be set aside. However, cost is enhanced from Rs.2000/- to Ex.5000/-.
21. In view of above discussion, the appeal i.e. F.A. No.1088 of 2010 filed by the appellant/complainant Arvind Arora is partly accepted and the impugned order dated 19.05.2010 under appeal passed by the District Forum is modified to the extent that compensation of Rs.10,000/- awarded by the District Forum is set aside, whereas cost is enhanced from Rs.2000/- to Rs.5000/-. Remaining part of the impugned order is affirmed and upheld. F.A. No.1096 of 2010:-
22. In view of the reasons and discussion held in F.A. No.1088 of 2010, this appeal i.e. F.A. No.1096 of 2010 (Governing Council managing Lyallpur Khalsa College for Women, Jalandhar & Anr. Vs. Arvind Arora), is partly accepted and the impugned order under appeal passed by the District Forum is modified to the extent the compensation of Rs.10,000/- awarded by the District Forum in favour of the appellant/complainant is set aside, whereas cost is enhanced from Rs.2000/- to Rs.5000/-. Remaining part of the impugned order is affirmed and upheld.
23. The respondents-Governing Council, Managing Lyallpur Khalsa College for Women, Jalandhar and Anr. had deposited an amount of Rs.25,000/-- with this Commission in F.A. No.1096 of 2010 at the time of filing First Appeal No.1088 of 2010 7 of the said appeal. This amount with interest accrued, if any, be remitted by the registry to Mrs. Arvind Arora, appellant/complainant by way of crossed cheque/demand draft after the expiry of 45 days under intimation to the District Forum and to the respondents.
24. The respondents- Governing Council, Managing Lyallpur Khalsa College for Women, Jalandhar & Anr. shall pay the remaining amount of gratuity with interest as per the order of the District Forum, along with costs of Rs.5000/- to the appellant/complainant within two months from the receipt of copy of the order.
25. Arguments in both the appeals were heard on 19.09.2011 and the order was reserved. Now the order be communicated to the parties.
26. The appeals could no be decided within the stipulated timeframe due to heavy pendency of Court cases.
27. Copy of this order be placed in F.A. No.1096 of 2010 (Governing Council managing Lyallpur Khalsa College For Women, Jalandhar & Anr. Vs. Arvind Arora).
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member September 26, 2011.
(Gurmeet S)