State Consumer Disputes Redressal Commission
1. The Secretary,South India Workers ... vs N.I. Perumal, 22, Pattalamman Koil 3Rd ... on 21 December, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.627/2007, F.A.628/2007 & F.A.629/2007 (Against the order in OP.200/2005, OP.196/2005 & OP.153/2005 on the file of DCDRC, Coimbatore) DATED THIS THE 21st DAY OF DECEMBER 2010 COMMON ORDERF.A.627/2007
1. The Secretary, | Appellants / Opposite Parties South India Workers Association, | C.10, Cheran Ma Nagar, | Coimbatore 641 035. | |
2. N. Rangaraju, | Steel Authority of India Ltd., | 2nd Floor, Cheran Towers, | Coimbatore 641 018. | Vs. N.I. Perumal, | Respondent/ Complainant 22, Pattalamman Koil 3rd Street, | Pillamedu, | Coimbatore. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a total sum of Rs.4,46,200/- on various heads. The District Forum allowed the complaint, against the said order, this appeal is preferred, praying to enhace the order of the District Forum dt.05.07.2007 in C.C.200/2005.
FA.628/20071. The Secretary, | Appellants / Opposite Parties South India Workers Association, | C.10, Cheran Ma Nagar, | Coimbatore 641 035. | |
2. N. Rangaraju, | Steel Authority of India Ltd., | 2nd Floor, Cheran Towers, | Coimbatore 641 018. | Vs. G. Arjunan, | Respondent/ Complainant 23A-67, Murugan Nagar, | Pillamedu, | Coimbatore 641 014. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a total sum of Rs.4,46,500/- on various heads. The District Forum allowed the complaint, against the said order, this appeal is preferred, praying to enhace the order of the District Forum dt.05.07.2007 in C.C.196/2005.
FA.629/20071. The Secretary, | Appellants / Opposite Parties South India Workers Association, | C.10, Cheran Ma Nagar, | Coimbatore 641 035. | |
2. N. Rangaraju, | Steel Authority of India Ltd., | 2nd Floor, Cheran Towers, | Coimbatore 641 018. | Vs. C. Jayaraman, | Respondent/ Complainant 38, MGR Nagar, Gold Wings, Civil Post, | Coimbatore 641 014. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a total sum of Rs.4,32,325/- on various heads. The District Forum allowed the complaint, against the said order, this appeal is preferred, praying to enhace the order of the District Forum dt.05.07.2007 in C.C.153/2005.
This appeal coming before us for hearing finally on 07.12.2010, upon hearing the arguments of the counsels on eitherside and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants/ O.Ps. : Mr.J.Abdul Hadi, Advocate.
Counsel for the R/ Complainant :
Mr.E.D. Sethupathi, Advocate.
M. THANIKACHALAM J. PRESIDENT
1. The opposite parties in Ops.200/2005, 196/2005 and 153/2005 are the appellants in FAs.627/2007, 628/2007 and 629/2007 respectively.
2. As agreed by the parties, all the appeals are taken together and common order is passed, which shall dispose all the appeals.
3. The complainant(s) as shown in the table below, were employed along with others in LMW, Coimbatore, as Security Officers. All the complainant(s) were compulsorily retired by the Administration, against which, the complainant(s) have filed Industrial Dispute, as shown in the table, which were entrusted to the opposite party, for conducting the cases, for which, the complainants have paid amount also, through Mr.Jayaraman, [who is the complainant in OP.153/2005]. Though three years lapsed, there was no information and the opposite parties have failed to perform their service, as agreed, having received consideration.
In the month of November 2004, the complainant(s) was informed, that some of the employees have received a sum of Rs.5,000/- and later enquiry revealed, the ID was dismissed on 10.11.2004, as if, not pressed, at the instance of the opposite parties, without the consent of the complainants, which should be construed as negligent act. One Sivasamy, who is the representative of the opposite parties, in order to have unlawful gain against the rights of the employees, appears to have not pressed the cases, thereby caused not only monetary loss, but also mental agony, for which, totally the complainant(s) are entitled to the claim as per the table given:-
Sl.No. Complainant Name O.P.No. Appeal No. ID No. Date of disposal of ID Total amount claimed in the O.P.
01.
N.I. Perumal 200/2005 627/2007 233/2001 10.11.2004 4,46,200/-
02. G. Arjunan 196/2005 628/2007 134/2001 10.11.2004 4,46,500/-
03. C. Jayaraman 153/2005 629/2007 137/2001 10.11.2004 4,32,325/-
Hence, the claim.
4. The opposite parties, by filing separate Written Version, identical in nature, opposed the claim of the complainants, inter alia, contending that as requested by the complainants, they undertook to conduct the case on their behalf, not for consideration, but freely, since the Association was formed for the welfare of the employees, that when the cases were pending, some of the employees, who had challenged the voluntary retirement, not pressed the claim, having received a sum of Rs.5,000/- each, from the Administration of LMW, that when the cases were posted on 10.11.2004, Mr. Jayaraman had received a sum of Rs.20,000/- on behalf of all the complainants, promising to get independent receipts, that taking advantage of the fact, receipts were not obtained, now they have filed a false case, as if, the cases were withdrawn as not pressed, without the consent of the complainants, that against the dismissal of the ID, if at all, the complainants should have filed the appeal, before Labour Court and as such, complaints are not maintainable and that since the opposite parties have not committed any deficiency in service and the complainants are not consumers, all the cases filed, are not maintainable for want of jurisdiction, thereby praying for the dismissal of the complaints.
5. The District Forum by its independent separate order dated 5.7.2007, has come to the conclusion that the opposite parties have committed deficiency in service in not pressing the ID without the consent of the complainants, thereby they have committed deficiency in service. In this view, the District Forum has ordered the payments, said to have been paid by each complainant as consideration, in addition to, a sum of Rs.25,000/- as compensation along with cost of Rs.1,000/- each, thereby causing grievance to the opposite parties, resulting these appeals as indicated above.
6. The complainants in all the cases were employed in LMW, Coimbatore. As seen from Ex.A8, LMW have formulated a voluntary retirement scheme, for its employees. Under the said scheme, the complainants were permitted to go on retirement, voluntarily. But, aggrieved by the said voluntary retirement order, as indicated in the table above, the complainants have filed ID. In order to conduct the said IDs, admittedly, the complainants, engaged the services of the opposite parties, for which, authorizations were also given, not only to the second opposite party by name Rangaraju, but also to one Sivasamy. It appears, the said Sivasamy, who was entrusted, to conduct the case, not pressed the IDs, resulting dismissal of the said cases, on 10.11.2004.
7. The main grievance of the complainants, as seen from the complaints, are that though the opposite parties have received various amounts as consideration for rendering service, or conducting the cases, they have committed deficiency while doing service, not pressing the ID, without the consent of the respective complainants. It is also not in dispute, even as recorded by the District Forum, only at the instance of Sivasamy, all the cases filed by the complainants, namely IDS, were dismissed as not pressed. According to the opposite parties, as per the settlement reached between the Management and the Employees, the employees have agreed to receive Rs.5,000/- each and on that basis alone, as per the authorization given, IDS were not pressed. But, unfortunately, Mr.Jayaraman, who received the amount on behalf of other complainants, failed to get receipts.
8. In these cases, we feel, it may not be necessary, for us to go into detail, whether the case was not pressed by Sivasamy or by the opposite parties, unauthorizedly or without the consent of the complainants, since we feel the complainants are not consumers and therefore, they cannot invoke the jurisdiction of the Consumer Forum. The District Forum more or less, in the identical order, has recorded a finding, that without the consent of the complainants, IDs were dismissed as not pressed which should be construed as deficiency in service. As seen from the Written Version, it is the repeated cry of the opposite parties, that as the Workers Association, they did their service in conducting the case, free of cost and therefore, the complainants cannot be construed as consumers. In this way, they want to oust the jurisdiction of the Consumer Forum.
9. As defined under Section 2 (d)(ii) of the Consumer Protection Act, consumer means, any person, who hires or avails of any services for a consideration, which has been paid or promised or partly paid or partly promised, including deferred payment.
Therefore, if the opposite parties are to be construed as service providers or the complainants are to be considered as Consumer then there should be consideration that is payment. Realizing this fact, the complainant in O.P.200/2005 has pleaded that as service charges, he has paid a sum of Rs.1,200/- to the opposite parties through Jayaraman. In O.P.196/2005, the complainant therein pleaded, as seen from Para 2, on three occasions, he has paid a total sum of Rs.1,500/- not only though Jayaraman, but also directly when he went to see the opposite parties, to enquire about the status of the case.
The complainant in OP.153/2005 that is Mr.Jayaraman would contend, that totally he has paid a sum of Rs.4,200/- to the opposite parties, on various dates, as seen from Para 2 of the complaint. To evidence the said payments, by the complainants, no document has been produced. In fact, in support of the two complainants in O.P.200/2005 and OP.196/2005, Mr.Jayaraman has not filed any affidavit as if he received the amount paid to opposite parties. In O.P.153/2005 also, the said Jayaraman has not stated, that on behalf of others also, he has received the amounts and paid to the opposite parties. When the opposite parties have totally stoutly denied the payments, considering the purpose of the Association and the object of the Association, as seen from the documents, we cannot say, that they would have collected payments, for conducting the case and if at all, as the President of the Association or the Vice-President of the Association, to help the employees, they should have rendered their service free of costs.
The learned counsel for the complainants/respondents would contend that the undertaking to conduct the case itself should be taken as consideration, which we are afraid to endorse. As defined under the Act, there should be consideration, thereby excluding free service, that is the settled position of law also.
10. It may be argued, that between the employees, having faith, while giving money, receipts would not have been issued, obtained. When the dispute had arisen, even after going on voluntary retirement under the Scheme, it is impossible to believe, that the employees should have paid so much of amount even without taking acknowledgement, from the opposite parties, for their services, were hired for consideration. In this context, we have to see the exchange of notices between the parties, as well as affidavits, which are essential to prove the case, in a summary nature.
11. As seen from the affidavit of the complainant in O.P.200/2005, we find no whisper about the payment said to have been made by him namely Rs.1,200/-, which is not even, dated as seen from Para 2 of the complaint. Therefore, the payment of consideration for rendering service, as alleged remained as dead letters. Similarly in O.P.196/2005 also, in the affidavit filed on behalf of the complainant, though question has been raised, how the opposite parties had undertaken to conduct the case without consideration, no plea that he had paid the amounts as detailed in Para 2 of the complaint. In O.P.153/2005, we are unable to find any Proof Affidavit also, to prove the case.
12. Before filing of the cases, more or less same kind of notices were issued to Rangaraju-second opposite party, wherein also, there is no mention or communication, about the alleged payments, for conducting the case on behalf of the complainants. If really, amounts were paid, certainly they would have certainly raised the same, in the notice, accusing, having received consideration, they failed to conduct the case properly, which is not so. In fact, they have questioned the authority of Sivasamy, in not pressing the case, as well as the non-payment of Rs.5,000/-, which was settled according to the opposite parties, for not pressing the cases. Thus, it is seen from the records, which came into existence before the filing of the cases, at no point of time, the complainants have stated, about the payment of fees/consideration, for conducting the case by the opposite parties. Only in order to vest the jurisdiction, with the Consumer Forum, a belated plea of payment of consideration was invented and that is why it does not find place in the previous communications. Thus, all the complainants have failed to prove about the passing of consideration, for conducting the case, in order to bring them within the definition of the Consumer as well as bringing the opposite parties within the meaning of service provider and therefore, the Consumer Forum has no jurisdiction, to find out the deficiency if any, said to have been committed by the opposite parties.
13. The District Forum though concentrated in the dismissal of the IDs, as not pressed, failed to consider, which is essential to invest the jurisdiction about the fact, whether the complainants are consumers or not, whether they availed the service of the opposite parties, for consideration or not and therefore, the presumption, as if, the complainants are consumers, is not acceptable to us, and in this way, we conclude, the District Forum has passed an order without jurisdiction, which should be set aside, as non-erst. If at all, the opposite parties or its representatives had not pressed the case of the complainants, without consent, they ought to have agitated the same before the Labour Court or they should have approached the same authority, for restoration of the case and they are not entitled to agitate, before the Consumer Forum, since they are not consumers for the reasons recorded by us supra. For these reasons, all the appeals deserve to be accepted.
14. In the result, all the appeals are allowed, the order of the District Forum in OP No.200/2005, 196/2005 and 153/2005 dt. 05.07.2007 are set aside, and the complaints are dismissed. Considering the peculiar circumstances of the case, there will be no order as to cost throughout.
15. The Registry is directed to handover the Fixed Deposit Receipts, made towards the mandatory deposit, to the appellants in F.A.627/2007, F.A.628/2007 and F.A.629/2007 duly discharged, since appellants succeeded, and there is no need to retain the FDR.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER II PRESIDENT INDEX : YES / NO Ns/mtjCoop.