IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.313 of 2007 1.S.R.S.KRISHNAN, President, Kalyanpur Cement Ltd. Resident of Banjari, P.S. Banjari, Dist. Rohtas 2.S.M.Jha, General Manager, Kalyanpur Cement Ltd. Resident of Banjari, P.S. Banjari, Dist. Rohtas 3.Sri Ranjit Singh, the Director, Kalyanpur Cement Ltd., Maurya Centre, P.S. Kotwali, Dist.Patna-petitioners Versus 1.THE STATE OF BIHAR through Secretary, Home Department Govt. of Bihar 2.The District Consumer Forum, Rohtas through its President 3.Md.Ishaque son of Azimmuddin Ansari, resident of Village Patkholiya, P.S. Rohtas,Dist.Rohtas-respondents ----------- For the petitioners:M/S Chittranjan Sinha,Sr.Advocate Md.Faiz Ahmad,Advocate For the State :Mr.Tejendra Singh,AC to GP 18 For respondent no.3:Mr.Bijay Kumar Pandey,Advocate ---- 3. 20.4.2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the respondent No.3. The petitioners seek quashing of the order dated 1.7.2006 passed by the District Consumer Forum, Rohtas in Complaint Case No.57 of 2005 by which it has directed the petitioners to deposit cheque in the Forum regarding dues of the complainant-respondent No.3 with the Company of which the petitioners are President, General Manager and Director respectively. The short facts of the case are that the respondent No.3 Md.Ishaque filed a complaint case bearing Complaint Case No. 57 of 2005 on 18.5.2005 before the District Consumer Forum for payment of his provident fund, gratuity, salary of 19 months 2 under V.R.S. scheme and payment of medical bills amounting to Rs.7 lacs in all. His claim was that he was working in Kalyanpur Cement Limited as a Driver of heavy vehicle in the Transport Section and had offered to resign from service on 24.5.2004 under the Voluntary Retirement Scheme which was accepted on 28.5.2004, but his dues had not been paid by the Company. In the said complaint the petitioners were made parties but the petitioner’s Company itself was not made an opposite party. The petitioners appeared before the District Consumer Forum and took a stand, inter alia, that the dispute under the complaint petition is between the employee and employer relating to the terms and conditions of services, salaries and perquisites to its employees and such dispute will not amount to consumer dispute and only on the said ground the complaint case should be dismissed as it is outside the jurisdiction of the District Consumer Forum. However, on the merits of the case it was admitted by the petitioners that certain amounts were due to the respondent No.3 and the petitioners were ready to make payment to the complainant, but instead of accepting the payment he had chosen to enter into a vexatious litigation. Other pleas were also 3 taken. Instead of deciding the question of jurisdiction at the outset the Forum has taken note of the submission that the petitioners are ready to make payment to the complainant and therefore directed them to deposit cheque in the Forum. It is also stated in the order that if the case is not to be disposed of on the basis of non- deposit of cheque in the Forum and as the Forum is expected to decide the case summarily, the opposite parties may raise the legal jurisdiction matter at the time of final hearing of the case. Against the said order the present writ petition is filed. By a supplementary affidavit the petitioners have brought on the record an order dated 26.11.2009 passed by the District Consumer Forum for initiation of certificate case under Section 27 of the Consumer Protection Act against the petitioners for compliance of order dated 1.7.2006. Again a show cause notice dated 27.3.2010 was issued to the petitioner No.2 under Section 27 of the Consumer Protection Act as to why the warrant of arrest be not issued for non- compliance of the order dated 1.7.2006. Learned counsel for the petitioners submits that it is evident from the admitted facts stated 4 by respondent No.3 in the complaint that there was no consumer dispute as defined in Section 2(1)(e) of the Consumer Protection Act, 1986 between the parties since the respondent No.3 is not a consumer within the meaning of Clause (d) of sub- section(1) of Section 2 of the Act and hence the complaint filed by the respondent No.3 before the Consumer Forum does not come within the definition of complaint under Section 2(1)(c) of the Act. It is thus submitted by learned counsel that the Consumer Forum had no jurisdiction to entertain the said complaint and take any action even if certain facts were admitted in the written statement filed on behalf of the petitioners. It is further submitted that the said matter which went to the root of the jurisdiction of the District Consumer Forum to entertain the complaint ought to have been decided initially before any order could have been passed by the Forum, but the same was not done and by the impugned order dated 1.7.2006 the Forum held that the same would be decided at the time of final hearing. But surprisingly instead of deciding the same the Consumer Forum has directed the filing of a certificate case and further has taken steps under Section 27 of the Act for issuing warrant of 5 arrest. It is urged by learned counsel that all these actions are wholly illegal and without jurisdiction. Learned counsel for the respondent No.3, on the other hand, submits that the facts having been admitted by the petitioners they ought to have deposited the cheque before the Consumer Forum. It is further submitted that the orders of the District Consumer Forum are appealable before the State Consumer Disputes Redressal Commission and thus for the said reason the writ petition is barred by the existence of alternative statutory remedy. It is urged that the petitioners have been given an opportunity in the impugned order itself to raise the question of jurisdiction at the time of final hearing and they should have availed of the same. Learned counsel for the petitioners in reply submits that the existence of alternative remedy cannot debar a party from invoking the jurisdiction of this Court under Article 226 of the Constitution where the jurisdiction of the statutory authority to entertain a dispute itself is in question. In support of the said proposition he relies upon a decision of the Supreme Court in the case of Whirlpool Corporation vs. Registrar of 6 Trade Marks, Mumbai and others : AIR 1999 SC 22, in paragraphs 20 & 21 of which it has been held as follows : “20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “TRIBUNAL”.” On a consideration of the rival submissions of learned counsels for the parties, this Court finds sufficient force in the submission of learned counsel for the petitioners. For the decision of this case it may be relevant to quote Section 2(1)(b),(c),(d) & (e) of the Consumer Protection Act, 1986, which are as follows : “S.2(1)(b) “complainant” means- (i) a consumer; or 7 (ii)any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii)the Central Government or any State Government; or (iv)one or more consumers, where there are numerous consumers having the same interest; (v)in case of death of a consumer, his legal heir or representative, who or which makes a complaint; (c) “complaint” means any allegation in writing made by a complainant that – (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; (ii) the goods bought by him or agreed to be bought by him suffer from one or more defects; (iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; (iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price- (a) fixed by or under any law for the time being in force; (b) displayed on the goods or any package containing such goods; (c)displayed on the price list exhibited by him by or under any law for the time being in force; (d)agreed between the parties; (v) goods which will be hazardous to life and safety when used are being offered for sale to the public,- (a) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force; (b) If the trader could have known with due diligence that the goods so offered are unsafe to the public; (vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such 8 person could have known with due diligence to be injurious to life and safety; with a view to obtaining any relief provided by or under this Act; (d) “consumer” means any person who,- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; (e) “consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.” From a perusal of the definitions it is evident that before a complaint could be filed by a person he must, inter alia, be able to satisfy the Consumer Forum that the services hired or availed of by him suffer from deficiency in any respect. He must also show that he can be the complainant since 9 a complaint could only be filed by, inter alia,a consumer. The consumer in turn has been defined in the relevant Clause (d)(ii) as a person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services also. In the case of an employer-employee relationship it would be fantastic and preposterous to hold that an employee hires or avails of the services for consideration of its employer. In any case, such a dispute involving the relationship of employer and employee can never come under the category of a consumer dispute as provided under the said Act. In the absence of such a consumer dispute and the person concerned not being a consumer there can be no occasion for him to file a complaint before the Consumer Forum and similarly there would be no occasion for the Consumer Forum to entertain such complaint. In the present case, this Court is surprised at the approach of the District Consumer Forum, Rohtas at Sasaram to entertain the complaint filed before it despite the challenge to its jurisdiction having been raised at the outset in the reply filed by the petitioners before it. That being the 10 position and there being absence of jurisdiction in the Forum, it was not open to it to have issued any direction to the petitioners even if there was admission of the facts regarding dues of the complainant. This Court is further surprised that even though the Forum had permitted the petitioners to raise the dispute regarding jurisdiction at the time of final hearing but instead of proceeding to final hearing, it has further acted in the matter by directing initiation of certificate case and further issuing show cause as to why warrant of arrest be not issued under Section 27 of the Act for non-compliance of the order dated 1.7.2006. The same appears to be a clear case of abuse of power by the Consumer Forum by proceeding to exercise a jurisdiction which has not been conferred upon it under the Consumer Protection Act, 1986. So far as the direction for payment of the dues of an employee is concerned, the Consumer Protection Act does not provide any such power for the redressal of the same and it is not within the purview of the Consumer Forum to entertain such dispute. With respect to the challenge to the maintainability of the writ petition on the ground 11 of existence of alternative remedy of appeal, the law on the point has been settled by the Apex Court right from the inception of the Constitution and it has been held that the mere existence of alternative statutory remedies is no bar to the exercise of power under Article 226 of the Constitution. Alternative remedies can never be a complete bar upon exercise of such jurisdiction by this Court and it is only a matter of practice and discretion that this Court may not interfere when there is adequate alternative remedy. Where the matter goes to the root of the jurisdiction of a statutory authority which has not been given the power to entertain the dispute of a particular nature, then in such circumstances despite the existence of alternative remedy the jurisdiction under Article 226 can be availed of by filing a writ petition. The said proposition has been clearly dealt with by the Supreme Court in the case of Whirlpool Corporation (supra) cited by learned counsel for the petitioners. For the said reason the objection regarding maintainability of writ petition is rejected. Mr.Chittranjan Sinha, learned Senior Counsel for the petitioners, fairly submits that the petitioners are at all times ready to pay the 12 admitted dues of the respondent No.3 and he has only to approach the authorities of the Company for the same and if the respondent No.3 does so then the same would be paid to him within a period of two months. In the light of the aforesaid discussions, the writ application is allowed and the order dated 1.7.2006 and the consequential orders passed by the District Consumer Forum, Rohtas at Sasaram as also the entire proceedings of Case No. 57 of 2005 pending before the District Consumer Forum, Rohtas at Sasaram are quashed. (Ramesh Kumar Datta,J.) Spal/