ASHOK CHAWLA vs KAILASH BAHL DAV CENTENARY PUBLIC SCHOOL

THIS appeal has been directed by the complainant against order dated 17.1.2007 passed by Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as District Consumer Forum), vide which his complaint was dismissed being meritless.

BRIEFLY stated the facts are that appellant (complainant) Sh. Ashok Chawla was appointed as TGT ( Math teacher) at Kailash Bahl DAV Centenary Public School, Sector 7-B, Chandigarh at a salary of Rs. 55001759000 + DA. He joined the service on 3.5.2003. Initially he was appointed on probation of one year. After expiry of one year, his services were continued i.e. he was appointed on the same post with enhanced salary on probation on regular basis. After one year, another appointment letter was issued on 2.4.2004 with continuation of service. After one year, he resigned due to non-allowing of ordinary sick leave to him but the Principal insisted continuing with his service and the terms and conditions of service mentioned by the appellant were accepted in toto. Since, attitude of OPs was indifferent and as such he was again forced to submit his resignation on 22.11.2004 which was duly received but they asked him to continue further due to non-availability of the teacher. He continued for sometime and again was compelled to submit his resignation on 21.9.2005. The said resignation was sent by registered post but the Principal refused to accept the resignation. Alleging deficiency in service, the complaint was filed.

Ops contested the complaint and stated that the complainant was not consumer and further he was barred by his own act and conduct from filing the complaint. They further stated that complainant was required to take ''no due certificate'' from the office of Principal by clearing accounts by getting officially relieved which he did not get and the complaint was filed with mala fide intention. They further denied the allegations and stated that the appellant had not given three months'' notice as required. They next stated that no amount due to the appellant had been withheld and the amount could only be calculated after the requirement of the management are completed by the appellant and the appellant himself was responsible for not complying the requirements of management. Thus, they prayed that the complaint should be dismissed with exemplary costs.

PARTIES adduced their evidence by way of affidavits. After hearing Counsel for the parties, District Consumer Forum vide order dated 17.1.2007 dismissed the complaint being merit less.

AGGRIEVED by the said order, complainant has filed the present appeal. Mr. Deepak Arora, Advocate had appeared on behalf of respondents but none appeared on behalf of respondents on 20.4.2007 and as such it was adjourned to 25.5.2007 for arguments. We have heard Counsel for appellant Mr. Sandeep Khungar and carefully gone through the file. It is an admitted fact that appellant (complainant) was appointed as TGT (Trained Graduate Teacher) Math''s teacher in the grade of Rs. 55001759000 +DA on adhoc basis from 8.4.2003 to 31.3.2004 vide letter Annexure P-1 dated 7.4.2003. He joined his duty on 3.5.2003 vide Annexure P-2. After the expiry of one year, he was appointed on probation of one year with effect from 1.4.2004 vide letter dated 29.3.2004 with initial start of Rs. 5,675 per month plus admissible allowances as sanctioned by DAV College Managing Committee. He joined on 1.4.2004 vide annexure P-3. On 2.4.2004 another extension letter for appointment was issued and he was appointed till 31.3.2005. He resigned the post on 22.11.2004 on account of personal problem and stated that he would not continue in job after June, 2005 vide annexure 5-A. Since, he was not allowed sick leave, so, he again submitted another resignation on 21.9.2005 to the Principal Annexure P-6/B which was allegedly refused by the management. The services of appellant were well recognized by the school authorities as he was awarded a Shawl and cash prize of Rs. 1,100 on the birth anniversary of Dr. Radha Krishanan.

FINALLY he submitted his resignation dated 21.9.2005 and sent it to the Principal through registered post. The copy of the resignation letter is Annexure P-6/B. However, the Principal refused to accept the registered letter containing the resignation vide refusal report dated 22.9.2005 Annexure P-6/A. Therefore, it will be presumed that the period for three months for resignation of appellant started with effect from 22.9.2005, on which date it was refused by the Principal because it shall be presumed that the Principal had knowledge that the envelope contained resignation. Therefore, notice period was to expire on 21.12.2005 but the appellant left the school on 10.12.2005. Hence, the management at best could deduct the salary of appellant for a period of 12 days from 10.12.2005 to 21.12.2005 because three months'' period would have expired on 21.12.2005.

THE appellant vide registered letter dated 22.12.2005 had requested the Principal to settle his account with respect to provident fund etc. THE Principal had received two letters dated 12.12.2005 and 13.12.2005 which are at pages 36 and 37 of District Forum file. THE Principal had taken the objection that since appellant had not submitted ''No due certificate'' and further he was required to deposit three months'' salary according to terms and conditions of appointment letter and as such his resignation was not proper and appellant was not entitled to get refund of provident fund etc. In our opinion, contention of Principal is not correct. It is stated by the appellant that he was not incharge of any library and had not taken any library book. Further he was not incharge of any fund, etc. ''no due certificate'' was to be issued by the Principal. THE Principal should have issued ''no due certificate'' after taking report from the office. If any amount was due from the appellant then it could have been deducted and the balance amount of provident fund etc. should have been refunded to the appellant. It has been observed by Hon''ble Supreme Court of India in Gorakhpur University & Ors. v. Dr. Shitla Prasad Nagendra & Ors., V (2001) SLT 648=2001 (5) Supreme 798 that withholding of retrial benefits on the ground of "No dues" or "No liability" certificate obtained is not proper. Similarly it has been observed by Hon''ble Supreme Court in Smt. Kusum Gupta v. Haryana State Small Industries and Export Corporation, Chandigarh, AIR 1986 SC 1905 that under bye laws of Corporation termination of service can be passed only by giving one month''s notice or on payment of salary in lieu of notice and the employer was not entitled to withhold one month''s salary on ground of non-production of ''no due certificate'' by employee, whose services had been terminated. In the end, it has been observed as under ; "It would not be open to the employer to insist upon the production of ''no dues certificate'' by the employee. In fact, we fail to see how the employer can insist upon the production of a ''no dues certificate'' by the employee when the certificate has to be given by the employer. The employer is the person who is in the know of things whether any amount is due from the employee or not. The employer cannot certainly take advantage of his failure to give a certificate to the employee and claim that he was entitled to withhold the one month''s pay and allowances payable in lieu of one month''s notice on the ground of non-production of non dues certificate by the employee We have no hesitation in allowing this appeal. The judgment and decree of the high Court are set aside. The judgment and decree of the Trial Court are restored with costs throughout. "

Therefore, respondents were not entitled to withhold the provident fund of the employee i.e. appellant on the plea that ''no due certificate'' had not been obtained by the appellant. It was duty of the Principal to get ''no due certificate'' issued and he cannot take advantage of his failure to give certificate to the employee. At best, he could have deducted 12 days'' salary from the provident fund of the appellant and would have refunded the remaining amount. Thus, certainly there is deficiency in service on the part of respondents. It further amounted to unfair trade practice on their behalf. Therefore, they were deficient in dealing with the appellant.

HENCE, appeal is accepted with costs of Rs. 1,000 and the impugned order of District Consumer Forum dated 17.1.2007 is set aside. Respondents are directed to issue ''no due certificate'' to the appellant and if some amount due is to be deducted from the appellant, same should be deducted from the provident fund and the cheque for the remaining amount be issued within one month. If not issued, the amount would carry interest @ 9% p.a. They are also directed to pay the amount on other counts due to the appellant, within a period of one month, besides Rs. 10,000 for mental agony and harassment. Copies of this order be communicated to the parties, free of charge. Appeal allowed.