Destination One Pvt. Ltd. vs Punit Pal Kaur Guron

PETITIONER /Opposite Party No. 1 has filed this revision petition Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'') challenging order dated 15.11.2007, passed by State Consumer Disputes Redressal Commission, Union Territory, Chandigarh(for short, ''State Commission'').

BRIEFLY stated the facts are that Respondent No. 1/Complainant had taken admission at the Institute of the Petitioner and Respondent No. 2/Opposite Party No. 2, vide agreement dated 18.07.2005. According to the said agreement, there was training of six months and after conclusion of the training, petitioner was to provide job to respondent no. 1, within 9 months of the signing of the contract, failing which it was liable to refund the whole amount to her. It is further stated that respondent no. 1 completed six months training on 18.01.2006, starting from 18.07.2005. A certificate in this regard was issued by the petitioner. However, as per terms and conditions of the agreement, it failed to provide her job. Alleging deficiency in service, a complaint was filed by respondent no. 1 praying that directions be issued to the petitioner as well as respondent no. 2, to refund the entire amount which was paid by her during the training, besides Rs. 3,000/ - as costs of litigation.

PETITIONER and respondent no. 2 contested the complaint and filed written replies taking identical pleas. The petitioner took preliminary objection stating that the complaint is not maintainable as it pertains to the breach of contract of personal service. However, petitioner has admitted that respondent no. 1 had taken admission on 18.07.2005 and executed the agreement. It is asserted that, she was offered the job by Firmware Embedded Systems(P) Ltd., but she did not join there and insisted for a job outside Chandigarh. Similarly an offer was made by HCL but respondent no. 1 was rejected because of her performance. It is further stated that her batch mates had already got good jobs but respondent no. 1 was not sincere in getting the job and was only interested to get back her money. Thus, there was no deficiency in service and complaint should be dismissed.

DISTRICT Consumer Disputes Redressal Forum -II, U.T., Chandigarh (for short, ''District Forum''), vide order dated 16.5.2007 accepted the complaint and ordered as under; "i) The OP -1 is directed to refund Rs. 75,000/ - along with interest @ 9% from the dates of respective deposits till realization.

ii) The OP -1 is also directed to pay Rs. 5,000/ - as compensation for mental agony and harassment etc.

iii) The OP -1 is further directed to pay costs of litigation which are quantified at Rs. 2,500/ -."

Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission, which concurred with the reasoning given by the District Forum and dismissed the appeal.

NOW petitioner has approached this Commission by filing the present revision.

NOTICE of revision petition was issued to the respondents. Initially, Sh. Ravi Kant, Advocate for respondent no. 1 appeared but later on, he absented. However, all parties have filed their respective written submissions. We have heard the learned counsel for petitioner as well as counsel for respondent no. 2 and gone through the record.

IT has been contended by learned counsel for the petitioner that respondent no. 1 does not fall within the ambit of term "Consumer" as is defined under Section 2(d) of the Act. Neither does the service provided by the petitioner, fall within the scope of "Service" as defined under Section 2(o) of the Act.

FURTHER , it is contended that respondent no. 1 even during her training, was offered the job but she declined the offer. Thus, there is no deficiency on the part of the petitioner and it was respondent no. 1 who herself was not interested in job. The District Forum, while allowing the complaint of respondent no. 1 has held; " The OP -1 admitted the receipt of Rs. 75,000/ - from the complainant for the services to be rendered as pleaded to in the complaint. The complainant then has placed on record the copies of the receipts dated 19.07.05, 19.08.05 and 21.09.05 for Rs. 25,000/ - each, a perusal of which shows that the complainant did pay Rs. 75,000/ - as fee to the OP -1 for the promised services. The complainant therefore, is to be held entitled to refund of Rs. 75,000/ - because as per the agreement which was duly executed between the parties, in case the OP has failed to provide her a job as discussed above, the total amount was to be refunded by the OP -1 to the complainant".

THE State Commission, while dismissing appeal concurred with the reasonings of the District Forum and observed; "11. The case of respondent No. 1 is that she had approached the appellant several times for getting the job but it failed to provide a job to her and as such she was entitled to refund of the amount of Rs. 75,000/ -.

Now the question to be seen is whether appellant had provided job to her or it failed to provide the job. The first appointment letter annexure R -1 is dated 7.5.2006 while appellant was provide job to respondent No. 1 till 18.4.2006. According to agreement, appellant had already committed default which made it liable to refund the amount. Annexure R -2 dated nil is not any copy of the appointment letter but it is intimation by Mascot Networks Pvt. Ltd. that respondent no. 1 had appeared for interview in Mascot and she had successfully cleared three rounds of interview. It is not mentioned in it that how many rounds were to clear and whether after three rounds she was entitled to appointment or not. Thus, it is of no use. Annexure R -3 is copy of fax message from other candidates and not from any company. Again annexure R -4 is not an appointment letter. It is intimated in this message that Info Security workshop was scheduled for 28.09.2006. Thus, appellant had failed to provide job to respondent no. 1 in terms of the contract dated 18.7.2005.

Counsel for appellant next contended that it was contract of personal service and as such it was enforceable under the contract Act. In our opinion, contention of learned counsel is not tenable. There could be contract of personal service if there is relationship of master and servant i.e. between the doctor and employer. In that event service provided by the doctor would be excluded from the purview of Section 2(1)(o) of the Consumer Protection Act. If through agreement annexure A -1 appellant had guaranteed to provide service to respondent no. 1 after completion of the training i.e. to provide service then it is not case of personal service then it is not case of personal service.

COUNSEL for appellant next contended that affidavit of Ashwani Kumar S/o Sh. Naresh Kumar proved that appointment letter annexure R -4 was sent to respondent No. 1 by respondent No. 2 through him. Of course Ashwani Kumar stated that he has been serving as peon since June, 2004 and letter annexure R -1 was sent to respondent No. 1 by respondent no. 2 through him and he had gone to deliver on 07.05.2006 in the evening at her resident House No. 3335, Sector -46 -C, Chandigarh and her father Sh. Sikander Singh was also present but respondent No. 1 declined to take delivery of the letter by telling her father that she had already got another offer in Chandigarh. This affidavit cannot be believed in view of the certificate annexure A -8 issued by Vivek Madaan, Sqn. Ldr. of Indian Air Force. In the affidavit dated 5.2.2007 respondent No. 1 had stated on oath that her father was a member of the Indian Air Force as a Master Warrant Officer and was on active duty on 1.5.2006 to 31.5.2006 and he was not granted any leave during the said period. Certificate A -8 to that effect has been issued by Vivek Madaan Sqn. Ldr. which is countersigned by Wing Commodore, commanding officer. Therefore, in view of this certificate the affidavit of Ashwani Kumar cannot be believed. We occur with the reasoning given by the District Consumer Forum and hold that there is no force in the appeal and consequently, it is dismissed ".

It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under Section 21 of Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

The Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. : 2011 (3) Scale 654 has observed; " Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".

IN the present case, there are concurrent findings of fact given by both the fora below that no job was offered by the petitioner to respondent no. 1, during the period specified in the agreement. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21(b) of the Act. Since, the fora below have given cogent reasons in their order, which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

IT is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning. Thus, the present revision petition having no merits is hereby dismissed.

NO order as to cost.