M. MARICHAND vs HTC SOFTWARE DEVELOPMENT CENTRE PRIVATE LIMITED

THE complainant in C.O.P. No. 119/2000 on the file of the District Forum, Chengalpattu is the appellant herein.

HIS case was as follows : The complainant, a qualified software engineer with a first class in B.E. Computer Science and additional qualification of first class M.B.A. Degree, responded to a publicity given by the opposite party for a ''SAP-in-house training programme''. He was selected for 4 months'' in-house training and an order was issued by the opposite party on 23.3.1998 to the following effect : "The training period will be 4 months. A deposit of Rs. 1,75,000 to be made in two instalments and a further deposit to be made for Rs. 75,000 at the time of placement in U.K., U.S.A., or Singapore offices of the opposite party at the end of the training programme. The entire deposit would be refunded at the end of one year working with the opposite party on SAP Projects. At the end of the programme, contingent upon the performance of the trainees the opposite party would provide placement in their offices in U.K., U.S.A., or Singapore. During the training period after the first month for the second, the third and the fourth months, a monthly stipend of Rs. 5,000 would be given for three months. After the four months training till placement is made at the overseas offices, a salary of Rs. 10,000 per month would be paid."

The complainant accepted the above terms and made payment of Rs.1,75,000 by availing loan from a commercial bank and private sources through his father. He joined the programme on 24.3.1998. He successfully completed in-house training on 23.7.1998 along with 17 other candidates. As per the terms of the agreement a sum of Rs. 5,000 was paid as stipend for the second, the third and the fourth months training. From the 1st of August, the complainant was asked to attend work in the office of the opposite party. He worked till the end of December, 1998. The opposite party did not however pay the salary stipulated in the agreement between the parties. There was also no indication of any placement overseas to the complainant. Many of the trainees left the opposite party seeking employment elsewhere. The complainant approached the opposite party in the last week of December with a request to confirm whether he would be placed in the overseas offices cf the opposite party or he was to find out any employment on his own. The opposite party advised the complainant to take up assignment with any other company since the opposite party was not in a position to offer placement after completion of the training. The opposite party also agreed to refund the deposit amount of Rs. l,75,000 and the arrears of salary of Rs. 50,000. The complainant left authorisation letter dated 30.12.1998 to his father to get the refund of the the amounts and left for Mumbai to attend an interview. HIS father wrote letters dated 7.1.1999 and 22.1.1999 to the opposite party for refund of amount. There was no response or reply. HIS father approached the opposite party in person on 30.1.1999 and 10.2.1999 and also on telephone requested for refund of the amount as promised. The opposite party without refunding the amount issued a letter dated 28.12.1999 in a cover having the postal seal dated 10.2.1999 through ordinary post with a mala fide intention to deliberately refuse the refund of deposit as promised since they were not able to provide overseas placement to the complainant. The complainant sent a letter dated 23.2.1999 putting forth the correct factual position and requested for refund of the amount. HIS father also sent a letter dated 16.3.1999 and also as reply to the letter of the opposite party dated 10.3.1999. The opposite party sent a reply dated 23.3.1999 for the first time claiming that the complainant had not accepted the appointment given to him and, therefore, the opposite party was not liable to refund the amount. A lawyer notice was issued on 23.1.2000. A reply was sent on 7.3.2000. In the reply the opposite party pleaded a new case that the complainant had not completed the training successfully in 4 months and hence from September he was permitted second training on humanitarian ground and on completion of the second training, he was issued appointment order dated 28.12.1999 and since he had not joined and worked for 2000 hours, he was not entitled to refund of the amount. The stand of the opposite party was wrong inasmuch as the complainant had permitted to sign in the muster rolls for the months of August, September and October, 1998 along with other employees and he had also secured 78 marks for his training. Further the muster roll members mentioned in the muster rolls were paid salaries. Another muster roll member Mr. Jose Francis who had also secured the same mark as the complainant had been employed and was also paid salary. Similarly the other members, who had not secured mark, had also signed as employees in the muster rolls. They were also paid salaries. The candidate T. Sivakumar, who had worked only for two months was refunded with Rs. 75,000 by the opposite party. In these circumstances, the complaint came to be filed for a direction to the opposite party to refund the deposit of Rs. 1,75,000 with a compensation of Rs. 2 lakh and Rs. 50,000 towards salary for 5 months totalling in all Rs. 4,25,000. The defence set up was as follows : The complainant was not a consumer within the meaning of the Act. He was neither in the employment of the opposite party for a period of one year not worked for 2000 hours. The complaint was liable to be dismissed. The complaint was also barred by limitation. The complainant was not successful in completing the training programme within the stipulated period of 4 months. The complainant made numerous requests to the opposite party to provide training for the second time. On humanitarian grounds the opposite party permitted the complainant to have further training free of cost. During the months from August to December, 1999, neither the complainant nor his father asked for his stipend amount. After the complainant completed the training programme, he was appointed as "SAP Consultant'' vide letter dated 28.12.1998. The clause ''contingent upon HIB visa and their clients'' acceptance'' was an essential clause". The opposite party had spent a sum of Rs. 1,87,915.40 on the complainant''s training for the first round and Rs. 1,62,640.40 for the second round of training. On receipt of the letter of appointment the complainant instead of joining services with the opposite party authorised his father to collect deposit which he had made, which would show the ulterior purpose of the complainant. As the complainant had not worked for one year after the completion of the training, the opposite party did not respond to the complainant father''s letter dated 7.1.1999 and 22.1.1999. On 10.2.1999 the complainant''s father with an Assistant Inspector of Factories and other persons approached the opposite party and he was informed that the letter of appointment was addressed to the complainant on 28.12.1998, but he refused to receive the appointment letter but threatened to staff of the opposite party with dire consequences. In order to secure their safety, the opposite party was forced to lodge a complaint with the Sub-Inspector of Police, Tambaram through the General Manager against the father of the complainant. The complainant was not entitled to refund of the deposit. The complaint was liable to be dismissed.

On the side of the complainant, Ex. Al to Ex. A24 were marked while on the side of the opposite party, Ex. Bl to Ex. B20 were marked.

THE District Forum framed the following two points for determination : (1) Whether there is deficiency in service on the part of the opposite party? (2) Whether the complainant is entitled to the refund of the deposit amount and salary?

The District Forum found that as per the terms of the appointment order, Ex. A1, the complainant had not established that the opposite party agreed for the complainant seeking employment overseas himself and for refund of the security deposit and in the absence of any evidence to show that the opposite party agreed with the complainant to refund the amount of deposit of Rs. 1,75,000 and salary of Rs. 50,000 in spite of his not serving the opposite party for one year as per Ex. A1, the order of appointment there was no alternative other than to accept the conditions stipulated in Ex. Al, appointment order. The District Forum also found that as on 30.12.1998 the complainant was satisfied with the opposite party for giving him SAP in-house training programme and there was no grouse about the non-payment of salary from August to December, 1998 and in fact, there was no claim of salary at all in the letter marked as Ex. A5 bearing date 30.12.1998. The District Forum also found that there was categorical admission by the complainant that he was under training till 30.12.1998 as, according to the District Forum, the letter Ex. A5 dated 30.12.1998 merely thanked the opposite party for giving the complainant SAP in-house training programme in the opposite party''s organisation and there was no claim made for salary. To entitle the complainant to get the refund, he had to make a further deposit of Rs. 75,000 for being sent to US and this additional deposit had not been made by him. The second condition that the complainant had to work at the office of the opposite party or his client for 2000 hours was also not satisfied. In that view of the matter, the District Forum dismissed the complaint.

IT is as against that the present appeal has been filed. Mr. R. Devaprasad, learned Counsel for the complainant/appellant made the following submissions : The opposite party claimed to have sent letter dated 28.12.1998 stating that the complainant was being given employment. This letter purported to bear date December 28, 1998. This letter was not served on the complainant. After the complainant''s father sent letters and also made personal visits, the opposite party purported to have sent this letter on 10.2.1999 under cover Ex. A8 bearing seal dated 10.2.1999. This would clearly show that such an appointment letter had not at all been sent by the opposite party on 28.12.1998 as claimed. It had been created for the purpose of defeating the claim of the complainant. The opposite party could very well have given this so-called appointment letter to the complainant in person when he had attended the office of the opposite party on 28.12.1998 or later or at least as reply to Ex. A6 and Ex. A7 sent by the complainant''s father on 7.1.1999 and 22.1.1999 respectively. Later when the date of sending Ex. A3 was found to be 10.2.1999, the opposite party responded by saying that it was another copy of appointment letter sent for the second time at the instance of the complainant''s father. This was also demonstrated to be false as Ex. A3 was sent in original by cover dated 10.2.1999 and it was ununderstandable as to how the opposite party did not find out as to why the complainant had not joined the company when, according to the opposite party, they had sent the letter even on 28.12.1998. As per the agreement between the parties the opposite party promised to arrange overseas placement after in-house training to the complainant. According to the opposite party, the complainant did not successfully complete the in-house training and on humanitarian considerations, he was given a second training. Such a stand had been taken by the opposite party only in Ex. A15, the reply to the notice of the complainant dated 23.1.2000. Further the exhibits produced, particularly the muster roll register, would clearly show that the complainant had been employed by the opposite party from August to December. He had also signed in the muster roll. Unless he was employed by the opposite party during the relevant period, there would have been any occasion for the complainant to sign in the muster roll. Again, according to the opposite party, the complainant had secured only 78 marks and that would show that he had not been successful in his training. The District Forum omitted to note that another person, who had secured the same number of marks namely Mr. Jose Francis had also signed in the muster roll, Ex. A21 and Ex. A22 as employee and was also paid salary as evidenced in Ex. B3. Equally, members like G. Krishnamurthy, T.S. Ravikumar, R. Muralidharan and S. Vijayaraghavan who had not been shown as having secured any marks had also signed as employees in Ex. A21 and Ex. A22 and had also been paid salary as could be seen from Ex. B3. One other candidate Mr. T. Sivakumar, who had worked only for two months was refunded with Rs. 75,000 as could be seen from Ex. A23. Ex. A20 to Ex. A22 were furnished to the complainant by the opposite party before the police authorities. These coupled with the fact that there was no reply to the letters Ex. A6 and Ex. A7 by the opposite party would show the mala fide intention on the part of the opposite party in concocting Ex. A3 to deprive the complainant from getting the refund of the deposit. The opposite party had also not taken any stand prior to filing the version that he had spent for the complainant''s in-house training and, therefore, not liable to receive the deposit amount. This was also not supported by any documentary evidence. The further deposit of Rs. 75,000 would arise only if the complainant got any overseas placement through the opposite party. In such circumstances, the stand of the opposite party that the complainant had not made a further deposit of Rs. 75,000 has no substance. The District Forum had clearly erred in accepting the case of the opposite party and dismissing the complaint. Per contra, Mr. V.R. Thangavelu, learned Counsel for the opposite party vehemently submitted as follows : The complainant was not a consumer. Since he had not been in employment with the opposite party for a period of one year as per Ex. B1, the letter of enrolment dated 23.3.1998 and he also did not make additional deposit of Rs. 75,000. The acts of the opposite party would not fall within the purview of deficiency of service. The complainant had not joined the service of the opposite party inspite of opportunities having been given to him vide letter dated 28.12.1998 (Ex. B2) letter of MEPZ Deputy Commissioner dated 22.2.1999 marked as Ex. B6, offer given in the opposite party letter dated 23.3.1999 marked as Ex. B13. The complainant failed to avail the opportunities given to him. In such circumstances, the District Forum was perfectly justified in holding against the complainant. The complainant had not made a grievance against training or stipend. The opposite party had given given placement which was not utilised by the complainant. The complainant had been given employment, he did not avail the opportunity. Under Ex. B13 dated 23.3.1999 the opposite party had given time of 7 days to the complainant to join the opposite party. This was not utilised by the complainant. Only if the complainant had worked for one year or 2000 hours of billable work with the opposite party, there was any question of refund of deposit. The complaint was also barred by limitation. The grievance of the complainant was that the opposite party had failed to comply with the contractual obligations. The proper Forum was the Civil Court and not the Consumer Court. In the notice issued on behalf of the complainant it had been stated that the transaction was commercial in nature. There could be no redressal before the Consumer Forum in this regard. The order/letter of appointment bore the signature of the Director, who was in USA on 10.2.1999; it was inconceivable as to how he would have sent the letter of appointment on 10.2.1999 as alleged. It was not disputed that the Director was in USA at that point of time. It would therefore mean that the letter was very much there in December itself and the same had been sent to the complainant. It was also for the complainant to establish that he suffered any loss due to the alleged delay in the issuance of appointment letter. No materials had been placed before the Consumer Fora that he had suffered any loss on account of this.

WE have carefully gone through the materials on record and we are satisfied that the District Forum had not approached the question from a proper perspective. As per the terms of the contract between the parties, the complainant was to pay Rs. 1,75,000. He would be given training and if he got placement he would pay an additional sum of Rs. 75,000 and after serving for one year or 2000 hours whichever was earlier, the complainant would be refunded the amount/amounts paid by him. There is no dispute with regard to these things. The question is whether the complainant did not complete the training satisfactorily and whether he was to be given a second training by the opposite party. A perusal of the records in this case clearly shows that the opposite party had not been truthful. The muster roll register clearly shows that the complainant had signed as employee as others. According to the opposite party, he secured only 78 marks and, therefore, it was found that he had to undergo training once again. A perusal of Ex. A21 and Ex. A22 would clearly show that another gentleman similarly placed and who had secured 78 marks had not been subjected to a second training; instead he had signed in the muster roll. There are other persons shown in the muster roll and against their names no marks had been shown. These discrepancies have not been explained to our satisfaction on behalf of the opposite party. The stand of the opposite party that the complainant had not satisfactorily completed his training cannot therefore be accepted. He had signed in the muster roll and he was entitled to be paid salary @ Rs. 10.000 per month.

NOW coming to the alleged appointment order dated 28.12.1998, it is to be noted that all correspondence between the parties had been sent either by Registered Post with Acknowledgement Due or ''under Certificate of Posting". It passes one''s comprehension as to why the alleged appointment order had not been sent either by RPAD or by Courier or ''under certificate of posting''. May be the appointment order had been prepared even in December, 1998, but not been handed over to the complainant. In any event, there is nothing to show that the complainant was aware that he had been given appointment by the opposite party. The complainant had left a letter of authorisation dated 30.12.1998 to his father. His father had also been writing letters to the opposite party for refund of Rs. 1,75,000. No doubt he had not asked for salary for the months the complainant was employed by the opposite party. That by itself would not mean that the complainant had to undergo training a second time or that he had not satisfactorily completed his training. May be the Director concerned was in USA on 1.2.1999, when the oposite party sent the alleged appointment order by ordinary post. But as already noted the appointment order might have been prepared earlier and possibly not given to the complainant for reasons best known to the opposite party. The fact remains that the opposite party did not honour the terms of the agreement between the parties. We are not willing to accept the argument on behalf of the opposite party that there was no proof of any loss caused to the complainant on account of non-delivery of the appointment order by the opposite party immediately after the allged date namely 28.12.1998. In our view, the opposite party had not acted fairly towards the complainant. They had discriminated. They had made payment to a similarly placed person in a sum of Rs. 75,000. Even that amount had not been offered to the complainant. The stand of the opposite party was that the complainant had been offered employment and only he did not accept employment and sought opening elsewhere. Since we are not accepting the case of the opposite party that the complainant was indeed offered employment by them as per the terms of the contract betwen the parties in December 1998 the opposite party would be liable to refund the amount of Rs. 1,75,000 paid by him initially. However in the course of agruments, it was brought ot our notice that the complainant''s father had filed a clarification memo to the effect that Mr. Sivakumar, who left the opposite party in November, 1998 and had not worked for one year as per contract was refunded in April 1999 a sum of Rs. 75,000 and that the same yardstick with reference to time limit could be adopted in the case of the complainant.

In view of the discussion above, we set aside the order of the District Forum dismissing the complaint, allow the complaint in part and direct the opposite party to pay Rs. 75,000 with interest at 9% per annum from the date of the complaint till payment. The Appeal is allowed as indicated above. There will be no order as to costs. Appeal allowed.