REVISION PETITION NO. 1397 OF 2014
WITH (I.A. NO.1682 OF 2014, FOR STAY)
(Against the order dated 09.12.2013 in Complaint Case No.515/2013 of the State Commission, UT, Chandigarh)
1. M/s Ganga Immigration & Education Services Pvt. Ltd.
SCO No.13-14-15, Ist Floor, Sector – 34-A, Chandigarh
2. Shri Rajan Verma Authorized Signatory and MD of
Ganga Immigration & Education Services Pvt. Ltd.
SCO No.13-14-15, Ist Floor, Sector – 34-A, Chandigarh ……. Petitioners
1. Smt. Reena Pandey
W/o Shri Rahul Pandey
R/o H. No.443 – A,
Kharar, Mohali, SAS Nagar – 143301
2. Shri Rahul Pandey
S/o Ashutosh Kumar Pandey
R/o H. No.3158, Sector-40D,
Presently residing at Dashmesh Nagar,
Kharar, Mohali, SAS Nagar – 143301 …… Respondents
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. M.U. Khan, Advocate
ORDER Pronounced on : 1st April, 2014
1. Revision Petition No. 1397 of 2014 has been filed against the order dated 9.12.2013, passed by State Consumer Disputes Redressal Commission, UT, Chandigarh (short, “State Commission”) in First Appeal No.515 of 2013.
2. The brief facts of the case are that the respondents/complainants entered into an Agreement dated 18.10.2012. As per agreement, the processing fee will be 100% refundable if work provided by petitioners/opposite parties is not to the satisfaction of the respondents.
3. The petitioners had given an assurance of salary of MR-1200 to 1500. The total cost for work permit is Rs.1.5 lacs per member which includes the work permit for two years with food, accommodation, insurance and air fare. That in the meantime, respondents inquired from their sources that the petitioners are authorized by the Ministry of Labour to provide permits.
4. On 13th December, petitioners informed the respondents that their visa was confirmed and their flight was book for 26.12.2012 for that they have to deposit the balance amount with Rajan Verma, MD of the firm. When the respondents approached Rajan Verma, he stated that there were some difficulties in getting the work permit so they would have to go on a tourist visa and same would be converted into a work visa within 15 to 30 days by their employee Ms.Shradhya Dass, who will accompany them to Malaysia. On the assurance given by Rajan Verma, they paid a sum of Rs.90,000./- as part payment through cheque no.40887 dated 13.12.2012 drawn on SBI, Sector 41, Branch, Chandigarh and the same was cleared by the petitioners from their Bank and balance amount was to be paid at the time when the work permit was provided by the petitioners.
5. On 26.12.2012, they took a flight to Kuala Lumpur along with Ms. Shradhya and two other male members. The tickets of Malaysia Airlines were provided by petitioners and same were return ticket according to which the departure was from Delhi and the arrival at Mumbai. The respondents had exchanged the money through Paul Merchants. The respondent no.1 exchanged Rs.28,410/- into MR and the respondent no.2 had exchanged Rs.28,281/-.
6. The respondents when they reached Kuala Lumpur were asked by Ms. Shradhya, who accompanied the respondents to pay Rs.50/- MR as room rent whereas the accommodation was to be provided free of cost by petitioners. On 27.12.2012, she introduced them to one Mr. Rahul Negi, who took their passport for getting the work permits. They were roaming around the city with their luggage. In the evening they had to stay in a room on the 5th floor with two other guys in the same room. It was very embarrassing for both of them as they had been promised for separate accommodation. On next day in the evening, they were put on work in a courier company in night shift. The respondent no.1 was given a job of data entry operator and other two guys along with respondent no.2 were forced to do labour work, whereas, it was promised by the petitioners that they would give jobs as per their qualifications and experience. Moreover, all facilities like free accommodation, food, medical insurance and overtime which was promised by the petitioners was given to them. Besides all this, the respondents were forced to do labour work on a very cheap salary.
7. When they asked for separate accommodation the agent told that they would have to pay 700 MR for that. When they refused to work as labourers the agent asked them to vacate the room immediately in the night. They had to stay in a hotel since that night i.e. 27.12.2012 to 9.1.2013 in Jalan Sultan, 25 k.m. away from Shah Alam and they spent 80 MR on taxi to reach that place. In the morning of 28th Dec. when they asked Rajan Verma and Rahul Negi to give back their passports Ms. Shradhya warned them that they can’t go back to India and that they would have to work there whatsoever be the conditions or job. Otherwise they would have to pay US Dollars 500 each. Then they lodged a complaint with police. They had spent at least Rs.40,000/- there for accommodation, food, as well as for transportation. The respondents had in all by now had spent Rs.1,40,000/- i.e. amounts paid to the petitioners and Rs.40,000/- they spent during their stay in Malaysia for accommodation, food as well as for transportation.
8. The respondents then made up their mind to come back to India as their condition was humiliating and miserable as their funds were insufficient and food accommodation and transportation were very costly, but petitioner’s agents denied to give back their passport so they should had to approached the Indian High Commission who issued them emergency certificate dated 3.1.2013 on which they travelled back to Mumbai as the return ticket was of Mumbai. The respondents on returning back to India approached the petitioners to pay back their amount but he tried to make fool of the respondents and delaying the matter on one other pretext, but on the other hand, he continues to expand his business by giving advertisements in the HT classified dated 13.4.2013 for staff required.
9. On the wrong and fake commitments of the petitioners, the respondents had to leave their job which they were doing here in India and were still unemployed as such the respondents had suffered a huge loss and also sold their jewelry and motor cycle to settle abroad. The acts of omission and commission on the part of the petitioners amounts to deficiency in service and unfair trade practice. The petitioners should have put to exemplary cost so that they cannot exploit the conditions of the unemployed youth.
10. The petitioners in their written statement, have made the preliminary objections, which reads as under ;
· That there is no deficiency on the part of the petitioners. At the time of agreement respondents agreed to perform the duties as assigned by their employer. But when they reached Malaysia, they wanted officer/high rank jobs and refused to perform the work as assigned by the employer and returned to India on their own. As per the agreement, Petitioners perform their part of contract but respondents were negligent to perform their part of contract.
· It was admitted that the respondents made payment of Rs.50,000/- to the petitioners. From Rs.50,000/- petitioner’s spend more amount on Visa, airport picking charges and rest of the amount processing fee.
· The petitioners admitted that the respondents had entered into an agreement dated 18.10.2012. There is no clause in the agreement vide which petitioners assured 100% refund of amount in case they were unable to provide work to the satisfaction of the respondents.
· The petitioners admitted that the respondents paid a sum of Rs.90,000/- to them. The amount of Rs.90,000/- was spend by them on the Air Tickets purchased for the respondents. On the request of the respondent no.2, petitioners converted the visa into tourist visa.
· As per terms and conditions of the agreement, Petitioners were not bound to provide the separate accommodation free of cost, food, medical insurance, over time etc.
11. District Consumer Disputes Redressal Forum-I, UT, Chandigarh, vide their order dated 25.10.2013 observed that ;
“The copy of police report Annexure C-10 made by the complainant No.2 with the police at Malaysia shows that Mr.Rahul Negi had taken their passports and they were forced to work in night shift in Kangaroo Couriers (P) Ltd. in Shah Alam for one day. When they asked him to give their passports back he intimidated them. Complainant No.2 also alleged that on 31.12.2012 Mr.Rahul Negi with that lady (Ms.Shradhya Dass) said that they could not leave for their country and had to work there according to their terms. He alleged that they were cheated by Ms.Shradhya Dass and Mr.Rahul Negi. OPs have nowhere mentioned in the written statement that they had no concern at all with Mr.Rahul Negi and Ms.Shradhya Dass. In this view of the matter, it is proved that Mr.Rahul Negi had taken the passports of the complainants and Mr.Rahul Negi was introduced to the complainants by Ms.Shradhya Dass, who was the employee of the OPs. Thus, these circumstances also point out towards unfair trade practice and deficiency in service on the part of OPs.
Lastly, the copy of agreement Annexure C-3 also shows that the terms mentioned therein are quite vague. The document shows that even the name and designation of the officer of Ganga Immigration & Education Services (P) Ltd. who affixed his signature on it are not mentioned nor there are detailed terms and conditions of the total amount and the services to be provided by the OPs. The only condition mentioned is that the processing fee will be 100% refundable except under the following conditions :
If any one of your document found fake.
Refused to pursue after getting the confirmation from employer.
In the instant case, it is nowhere the plea of the OPs that any of the documents of the complainants was found fake. So far as the second condition that the complainants refused to perform work assigned by the employer, the OPs have not produced any such documentary evidence that the complainants refused to perform the work as assigned by the employer. They have not produced any such evidence as to what sort of work was assigned to the complainants in Malaysia, for which, the minimum salary was 1200 MR. As already mentioned, OPs also did not provide food, accommodation, insurance and over time to the complainants. The evidence on record shows that OPs gave a rosy picture of working conditions in Malaysia to the complainants and gave false promises of food, accommodation, insurance, over time and air fare and a salary between 1200 to 1500 MR but they did not fulfill their promise. Rather, the agent of the OPs took their passports and intimidated them and they had to get emergency certificate from Indian High Commission and to come back to Mumbai on the return ticket. As the affidavit of the complainants shows the OPs made wrong and fake commitments, due to which, they left their job and they sold their jewelry and motor cycle to settle abroad. Though the circumstances prima facie also point out fraud and cheating by the OPs yet without going into those allegations (because the allegations relating to fraud and cheating require detailed evidence), we find that there is sufficient evidence of deficiency in service and unfair trade practice on the part of OPs.
For the reasons recorded above, we find merit in the complaint and the same is allowed. The OPs are directed :-
(i) To make payment of an amount of Rs.1,40,000/- paid by the complainants to them plus an amount of Rs.40,000/- spent by them at Malaysia total Rs.1,80,000/-.
(ii) To make payment of an amount of Rs.50,000/- to the complainants for harassment and mental agony.
(iii) To make payment of an amount of Rs.11,000/- to the complainants towards litigation expenses.
The liability of the Ops shall be joint and several”.
12. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission. The State Commission dismissed the appeal being devoid of merit at the preliminary stage and in their order held as under ;
13. After giving our thoughtful consideration to the submissions made by the Counsel for the Appellants/ Opposite Parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. It is evident from Annexure C-3 that processing fee was refundable except in case any of the documents of the complainants were found to be fake or if the complainants refused to pursue/perform work assigned after getting confirmation from the employer. In the instant case, none of these eventualities arose. Neither any document submitted by the complainants was found to be fake nor did they refused to perform work assigned by the employer for which minimum salary was 1200 MR. The payment of a sum of Rs.1,40,000/- by the respondents/complainants is not disputed. The District Forum in para 7 of its order held that some persons, on behalf of the Opposite Parties, signed the receipts Annexure C-1 and C-2 and agreement Annexure C-3, and non-production of affidavit of any other official except Mr.Rajan Verma warranted an adverse inference, against the Opposite Parties.
14. The averments of respondents/complainants in para 4 of the complaint about difficulty in obtaining work visa and assurance by Mr.Rajan Verma that their employee Ms. Shradhya Dass will accompany them to Malaysia, has not been denied by the appellants/Opposite Parties in their written statement. Perusal of Annexure R-1 produced in evidence by the appellants/Opposite Parties fortifies the contention of the respondents/complainants that there being difficulty in getting the work permit, they were sent on tourist visa with the assurance that the same would be converted into work visa within 15 to 30 days, upon which they (respondents/complainants) were to make the remaining payment of Rs.1,65,000/-. This commitment was not fulfilled by the appellants, and as alleged by the complainants, Mr.Rahul Negi, who was introduced by Ms.Shradhya Dass took their (complainants) passports. It was also specifically stated by the respondents/complainants, in the complaint, that they had to stay in a room with two other guys, which was very embarrassing, for them, and, separate accommodation, as promised was not provided. It was also specifically stated by the complainants, in the complaint, that they were forced to do labour work and the facilities of free accommodation, medical insurance and overtime, promised by the Opposite Parties, were not provided. This averment of complainants has remained un-rebutted by cogent evidence. In such a situation, the respondents/ complainants apparently felt dissatisfied with the service of the Opposite Parties and were mentally harassed. The complainants were forced to lodge a complaint with the Police and to seek the intervention of Indian High Commission to come back to Mumbai on return ticket. One can imagine the plight of the persons, who despite paying hard earned money, were not provided the promised work and facilities and were kept in lurch at a place, which was entirely a new and unknown to which they were not acquainted. The sequence of events clearly indicates deficiency in rendering service and indulgence into unfair trade practice by the Opposite Parties.
15. The District Forum correctly evaluated the evidence and its order is just and correct. Undoubtedly, the appellants/opposite parties were deficient in rendering service and indulged into unfair trade practices.
16. No other point, was urged, by the Counsel for the appellants.
17. The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld”.
13. Hence, this revision petition.
14. We have heard learned counsel for the petitioner and gone through the record.
15. The main grounds for the revision are that ;
“The learned State Commission has not legally exercised its jurisdiction resulting in the passing of the impugned order dated 9.12.2013 which is liable to be set aside/quashed forthwith.
Grave miscarriage of justice is occasioned to the appellant/revisionist as the result of the illegal order dated 9.12.2013.
That learned State Commission, Chandigarh in disallowing the appeal of the appellant herein and upholding the order of the District Consumer Forum, will fasten the liability on the revisionist which was not due and recoverable from him against the fact and the evidence on record, would the evidence ought to have been appreciated by District Consumer Forum.”
16. It is indisputed fact that respondents had hired the services of the petitioners for getting work permit for Malaysia for livelihood and betterment of life. They had entered into an agreement dated 18.10.2012 and paid a total sum of Rs.90,000/- as part payment on 13.12.2012. They were taken to Malaysia by Ms.Shradhya, an employee of the petitioners. It is not understood as to why they were provided with the return tickets with their departure from Delhi to Kuala Lumpur on 26.12.2012 and return from Kuala Lumpur to Mumbai on 9.1.2013. The respondents had availed their services for immigration and work permit to work in Malaysia . It is also apparent that the petitioners compelled the respondents to agree to travel on tourist visa, with the assurance that it would be converted into work visa within 15 to 30 days. This was a patently unfair trade practice. It is also seen that the agreement reads as under ;
18TH OCTOBER, 2012
Received with thanks as retaining amount from MR. RAHUL PANDEY S/O MR. A.K. PANDEY R/O 443 A, DASHMESH NAGAR KHARAR, MOHALI. MR. RAHUL PANDEY and his wife MRS. REENA PANDEY rtained for Malaysia as categorized in general pass.
The processing fee will be 100% refundable except under the following conditions ;
1. If any one of your document found fake.
2. Refused to pursue after getting the confirmation from employer.
GANGA IMMIGRATION & EDUCATION SERVICES (P) LTD.
SCO NO. 13-14-15, SECTOR 34-A, CHANDIGARH”
17. It is extremely vague and general. It gives no indication as to the services to be rendered by Ganga Immigration & Education Services P. Ltd. and the amounts to be paid, the terms and conditions of the agreement. This is also an unfair trade practice. We have no doubt that the petitioners have taken unfair advantage of the respondents by indulging in unfair trade practices to collect money from the unsuspecting respondents showing them dreams of much better job opportunities in Malaysia and having collected their money abandoned them to their own devices after taking their passports. They forced them to do labour work on very cheap salaries. Petitioners promised them to give all other facilities like accommodation, food, medical insurance etc. which they also denied them. So the petitioners are guilty not only of unfair trade practice but also deficiency in service. The petitioners must have also similarly duped other individuals with their misleading advertisements and glib promises.
18. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have given detailed and reasoned orders which do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with costs of Rs.1,00,000/- (Rupees One Lakh only).
19. Out of the above costs, Rs.25,000/- (Rupees Twenty Five Thousand only) each be paid by way of demand draft in the name of respondent No.1 and 2 respectively. The remaining cost of Rs.50,000/- (Rupees Fifty Thousand only) to be deposited in the ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.
20. List on 9.5.2014 for compliance.