Before the District Consumer, Dispute Redressal, Forum, Panchkula. Consumer Complaint No. : 02 of 2018 Date of Institution; : 01.01.2018 Date of Decision : 14.03.2019 Satish Kumar Saini S/o Late Sh. Sant Ram Saini, R/o H. No. 198, Sadashiv Enclave, Baltana, Derabassi, Distt. S.A.S Nagar . .Complainant Versus M/s Sarthak Logistic Pvt. Ltd., Plot No.361, 1 Floor Phase-1, Industrial area, Panchkulast (Haryana) through its Director Sh. Rajat Saini
Before the District Consumer, Dispute Redressal, Forum, Panchkula. Consumer Complaint No. : 02 of 2018 Date of Institution; : 01.01.2018 Date of Decision : 14.03.2019 Satish Kumar Saini S/o Late Sh. Sant Ram Saini, R/o H. No. 198, Sadashiv Enclave, Baltana, Derabassi, Distt. S.A.S Nagar . .Complainant Versus M/s Sarthak Logistic Pvt. Ltd., Plot No.361, 1 Floor Phase-1, Industrial area, Panchkulast (Haryana) through its Director Sh. Rajat Saini 2 Address:- Mr. Rajat Saini, Director of M/s Sarthak Logistic Pvt. Limited, H.No.61, Sector 12,nd Panchkula (Haryana). .Opposite Party Complaint under Sec.12 of the Consumer Protection Act, 1986 Before : Mr.Satpal, President. Dr.Pawan Kumar Saini, Member. Dr.Sushma Garg, Member. For the Parties: Mr.A.K.Malhotra, Advocate for the complainant. OP already ex-parte vide order dated 29.10.2018. Order ( )SATPAL, president
1. The brief facts of the present complaint as alleged in the complaint are that the complainant has been in the service of M/s Sarthak Logistic Pvt Limited M/s Plot No.361, 1 Floor,st Phase-I, Industrial Area, Panchkula (Haryana) (OP) as Regional Manager (Operation and Sales) w.e.f. 17.05.2011 and resigned from the services of the company on 17.12.2016 by giving one months notice in advance as required as per the terms and conditions of the appointment and was relieved from the services of the company on 08.01.2017 and served continuously for more than 5 years. The complainant approached the office of the OP number of times and requested for payment of gratuity amounting to Rs.65,770/- as the complainant had worked for more than five years continuously and was in receipt of salary of Rs.22800/- p.m., but the OP flatly refused to pay the amount of gratuity to the complainant. The complainant is entitled for payment of gratuity amounting to Rs.65,770/- under Section 4 of the Payment of Gratuity Act, 1972. Despite numerous requests made by the complainant to the OP, the OP did not pay any heed and finally on 18.11.2017, the OP refused to pay the amount of gratuity amounting to Rs.67,500/- to the complainant. In this regard the complainant also got served legal notice dated 20.11.2017 through his counsel upon the OP. Despite repeated requests by the complainant to the OP and the notices served upon OP through registered post, the OP did not pay any heed and he has not made any positive response so far; this act and conduct of the OP amounts to deficiency in service on its part; hence, this complaint.
2. Notice was issued to the OP through registered post on 20.09.2018 vide registered post No.EH768813608IN and EH768813611IN (at both the addresses of OP). Notice issued at second address i.e. Mr.Rajat Saini, Director of M/s Sarthak Logistic Pvt. Limited, H.No.61, Sector 12, Panchkula (Haryana) was not received back either served or unserved despite the expiry of 30 days from the issuance of notices 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 29.10.2018.
3. To prove his case, the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement.
4. We have heard the learned counsel for the complainant and gone through the record carefully and minutely. It is evident that the complainant was employed with Op as Regional (Operation & Sales) Manager w.e.f. 17.05.2011 till 08.01.2017. It is also evident that the complainant resigned vide letter dated 12.12.2016 (Annexure C-2) from the said post by giving one month prior notice as required as per terms and conditions of the appointment letter (Annexure C-1). The complainant claiming the gratuity amounting to Rs.65,770/- has also got served legal notice dated 20.11.2017 (Annexure C-3) 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 accepted the request of the complainant regarding the release of gratuity amounting to Rs.65,770/- despite the legal notice dated 20.11.2017 (Annexure C-3) sent to the Op requesting for the release of gratuity amount. Regarding jurisdiction of this Forum, the learned counsel has contended that the Consumer Forum has jurisdiction to decide the complaint as held by the Honble National Commission in case titled as decided on 28.11.2007.Venkatesh and Ors. Vs. Vishwanath and Ors.
5. 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 inHonble National Consumer Disputes Redressal Commission case titled as wherein the Honble NationalVenkatesh and Ors. Vs. Vishwanath and Ors., 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 Honble Apex Court in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi III (1999) . Further it would be relevant to mention hereCPJ 36 (SC), CA No.411 of 1997 dated 30.01.1996 that the while deciding theHonble State Consumer Disputes Redressal Commission Punjab First Appeal No.1047 of 2015 in case titled as Managing Director Kudos and anr. Vs. Bharat vide order dated 09.06.2016 has also placed reliance upon the observation made by theBhushan Honble National Commission in para 5 of its order dated 28.11.2007 in the said case of Thus, the legal preposition has been well settledVenkatesh and Ors. Vs. Vishwanath and Ors. 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. 17.05.2011 to 08.01.2017 as is evident from Annexure C-1. 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- On his superannuation, or On his retirement or resignation, or On his death or disablement due to accident or disease. 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. Moreover, it is not the case of the Op that gratuity amount as claimed by the complainant was ever forfeited by them. Thus, we find no justification on the part of the Op to withhold the payment of gratuity amount as claimed by the complainant.
6. As a sequel to the above discussion, we allow the present complaint of the complainant by directing the Op to pay Rs.65,770/- on account of gratuity amount payable to the complainant along with interest @9% per annum from the date of filing of the present complaint i.e. 01.01.2018 till 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.5,000/- as cost of litigation charges.
7. The OP shall comply with the order within a period of 30 days from the date of preparation of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 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 14.03.2019 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. Satpal President