D.K.SOOD vs SULTANJEE ENTERPRISES

THE difference of opinion between two Members with respect to both the unfair trade practice and the compensation application has necessitated me to give my opinion on both the issues.

IT appears that a Notice of Enquiry for indulgence in unfair trade practices on the part of the respondent came to be issued on 24th February, 1989 pursuant to the docket order passed by the Division Bench of this Commission on 7th February, 1989 in this case. By an interim order simultaneously passed on that day in that very order, the respondent was restrained from continuing with tall and false claims in its publicity campaign with regard to securing jobs abroad for doctors and others. It would be quite proper to look at in a nutshell the facts giving rise to the proceeding against the respondent. Pursuant to one advertisement issued in the Hindustan Times of 7th May, 1988 announcing vacancies of doctors at Yemen Arab Republic, one Dr. Sood and his wife (the informants for convenience) appear to have approached the respondent. It may be mentioned at this stage that the respondent has obtained registration to function as a recruiting agent for the purposes of the Emigration Act, 1983 (the Emigration Act for brief). He had issued the advertisement in question. It appears that both the informants were doctors and were willing to accept the respective assignment at Yemen A.R. It appears that their bio-data were sent to one Sheikh Yahya Alkomati (the Sheikh for convenience). He requisitioned inter alia services of such doctors for his Alkomati Clinic (the Clinic for convenience) in Yemen A.R. Thereupon separate agreements were entered into between the informants on the one hand and the Sheikh on the other regarding their services at the clinic in Yemen A.R. It appears that the original agreements were in Arabic. Their authentic English translations are on record at pages 138 and 139 of the Paper Book. It appears that the doctor couple did not find working conditions in the clinic to be quite congenial. They, therefore, returned to India some time in November, 1988 within nearly two months from reaching at Yemen A.R. They thought they were duped by the respondent. They lodged the complaint with the police against the respondent persuemably for cheating. They also moved the Protector General of Emigrants under the Emigration Act voicing their grievances against the respondent inter alia for charging more than the prescribed fees in contravention of the terms and conditions to the Certificate of Registration. They also moved this Commission on 25th January, 1989 by means of a complaint charging the respondent with adoption of unfair trade practice within the meaning of Section 36A of the Monopolies & Restrictive Trade Practices Act, 1969 (the MRTP Act for brief). They simultaneously moved an application under Section 12A thereof for some interim relief. They also simultaneously moved this Commission with a compensation application under Section 12B thereof for the total compensation in the sum of Rs. 88,440/- from the respondent. Pursuant thereto a Notice of Enquiry was ordered to be issued by the order passed by the Division Bench of this Commission on 7th February, 1989 as aforesaid.

The respondent has filed his reply to all these proceedings. He has denied indulgence in any kind of unfair trade practice on his part.

IT appears that by a separate docket order passed on 7th February, 1989 with respect to the unfair trade practice proceeding, a copy of the order of issue of a Notice of Enquiry was directed to be given to the Director General of Investigation and Registration (the DG for convenience). IT appears that the DG thereafter took over the matter and the complainants were regarded only as informants for the purpose of these proceedings. The necessary issues were, framed. Both the documentary and the oral evidence came to be recorded. After hearing arguments, two Members comprising the Division Bench of this Commission differed with respect to their opinion on conclusion of the enquiry proceedings. Hon'ble Member Mr. Sardar Ali was of the opinion that the respondent did not indulge in any unfair trade practices as alleged in the Notice of Enquiry. Hon'ble Member Dr. S. Chakravarthy took exactly the contrary view. He was of the opinion that the unfair trade practices on the part of the respondent were proved and that the informants were entitled to the total compensation in the sum of Rs. 72,640/-. Since both the Hon'ble Members differred in their opinion, the matter was referred to Hon'ble Member Mr. U.P. Singh for his opinion in die case. It appears that Hon'ble Member Mr. U.P. Singh thought it fit that the matter should be decided by the Chairman of this Commission. Apropos, the matter was referred to me for giving my opinion on the merits of the case.

BOTH the learned Members have elaborately dealt with the evidence, both documentary and oral, in the light of the issues framed in the proceedings. However, it would be quite proper for me to refer to the issues in this case. The issues as framed read as under ; 1. Did the respondent indulge in unfair trade practices as alleged in the application of the applicant as well as NOE? 2. In case Issue No. 1 is decided against the respondent, are unfair trade practices prejudicial to public interest ? 3. Relief. In the compensation application, the following issues were framed: 1. Did the respondent indulge in the unfair trade practices as alleged in the application of the applicant ? 2. If issue No. 1 is decided in favour of the applicant, did they suffer any loss or damage as a result of the aforesaid unfair trade practices and if so, how much and to what amount of compensation are the applicants entitled? 3. Is the counter-claim of the respondent legally maintainable in these proceedings ? 4. Relief. My answers to the above issues are as under, qua the unfair trade practice proceeding: 1. In the negative 2. Does not survive 3. No relief qua the compensation application: 1. In the negative 2. Does not survive 3. In the negative 4. No relief.

Since, the entire case hinges on the finding on issue No. 1 which is common in both the proceedings, it would be quite proper to deal it at this stage. According to the informants, the respondent represented to them that their jobs in Yemen A.R. would inter alia be on the following terms and conditions: 1. The contract would be for a period of one year. 2. The salary for the surgeon would be 10,000 Ryals per month plus 500 Ryals per surgery and the salary for the lady doctor would be 700 Ryals plus 500 Ryals per surgery. 3. Free accommodation and food would be provided.

ACCORDING to the complainants, the respondent charged from them a sum of Rs. 32,640/- for securing jobs for them in Yemen A.R. ACCORDING to the complainants, they have not been paid salary. No free education was provided for their children. The accommodation was only one room. No separate payment was made for surgery. Their another grievance was that the clinic was ill-equipped with no facilities available. No food arrangements were made for them. A car was also not provided to them.

THERE are on record certain letters written by the informants to the father of informant No. 2. In their separate letters of 25th and 26th September, 1988 both had admitted that the Sheikh had provided accommodation with basic facilities such as fridge, TV, Video etc. No grievance was made that they were required to dump themselves into one room in either of the aforesaid two letters. It is unfortunate that both the husband and his wife in their respective sworn statements have stated that they were required to dump themselves into one room. This shows to what extent they have tried to exaggerate their so-called sufferings in Yemen A.R. As pointed out hereinabove, copies of the separate agreements between the informants and the Sheikh are at pages 138 and 139 of the Paper Book. It is not in dispute that there were two translations of the original agreements in Arabic. The authentic ones are at pages 138 and 139 of the Paper Book. The Sheikh had agreed to provide a furnished house with water and electricity supply for the doctor couple. As pointed out hereinabove, in their separate letters of 25th and 26th September, 1988 they had admitted the the basic facilities like refrigerator, TV, video, etc. were provided by the Sheikh. The contract is silent as to the provision for any food arrangement for the doctor couple or their children or any education arrangement for their children. In fact, the agreement nowhere mentions that the doctor couple were to carry their children also in Yemen A.R. The agreement is also silent with respect to provision for a car to be placed at the disposal of the doctor couple. It is not the case of the doctor couple that they were or either of them was illiterate or uneducated.

The first informant is stated to be a surgeon having his Post-graduate qualification in Surgery. The second informant is stated to be a Gynaecologist. By no stretch of imagination they can be said to be illiterate or uneducated. They have signed the agreement with open eyes. It is true that the respective agreements were in Arabic. If they signed them without getting the agreements translated in the language known to them by some reliable person, they have to thank themselves. But they cannot pass on the buck to the respondent for any misrepresentation in that regard. They ought to have refused to sign the agreements unless the authentic English translations thereof were supplied to them. It does not lie in the mouth of any highly educated person to say that he signed the agreement without knowing its import or scope.

ANOTHER grievance voiced by the informants at trial was that their passports were recovered by the Sheikh. It transpires from the material on record that their work permits had to be obtained when they reached Yemen A.R. for doing their jobs. With a view to getting such work permits for them, their passports had to be sent to the concerned department. The Sheikh appears to have collected their passports for the purpose. It is unfortunate that the doctors have given a distorted and twisted version to the whole episode for the purpose of invoking undue sympathy of this Commission. So far as charging of Rs. 32,640/- from them by the respondent is concerned, the matter was required into by the Protector General of Emigrants under the Emigration Act. It appears that, acting on the basis of the complaint, the Registration Certificate of the respondent came to be suspended by the order passed by the Protector General of Emigrants on 12th April, 1989. The respondent carried the matter in appeal before the Appellate Authority under Section 23 thereof. The decision of the Appellate Authority is on record at Exhibit R-l. The order of suspension of the Registration of the respondent passed by the Protector General of Emigrants on 12th April, 1989 came to be set aside. Under Section 23(6) of the Emigration Act a finality is attached to the appellate order. Under Section 39 thereof, an overriding effect is given to the relevant provisions of the Emigration Act if provisions of any other law were found to be inconsistent therewith. In that view of the matter, this Commission need not inquire into the socalled overcharging of Rs. 32,640/- from the informants by the respondent.

ATTORNEY for the DG Mr. Gupta has submitted that the appellate order at Exhibit R-l was passed behind the back of the informants inasmuch as they were not parties thereof. Since the matter was between the respondent and the authorities under the Emigration Act, the informants could not legitimately claim to be parties to the appellate proceeding. Even otherwise, the Appellant Order at Exhibit R-l had admittedly come on record as early as in 1992. The informants have not chosen to challenge it before any forum by means of an appropriate proceeding for the purpose. In that view of the matter, the aforesaid submission urged by Mr. Gupta becomes insignificant. It appears that the police investigated into the complaint lodged by the informants against the respondent presumably for cheating and charging more than the prescribed fee under March, 1989 addressed by the Deputy Commissioner of Police (Crime), Delhi to the Protector General of Emigrant, the opinion is given that no offence was found to be committed by the respondent herein. That is another reason why the case of overcharging need not be examined by this Commission. Besides, the Appellate Authority in the order at Exhibit R-l under Section 23 of the Emigration Act has clearly found that no case of charging more than the prescribed fee by the respondents was proved. In view of my aforesaid discussion, I am of the opinion that no unfair trade practices are found to have been indulged in by the respondent qua securing jobs for the informants in Yemen A.R. I accordingly answer issue No. 1 in both the proceedings in the negative and against the informants through the DG. Once the aforesaid issue is answered in the negative, no question of payment of any compensation or grant of any relief in the unfair trade practices proceeding would arise. It may be mentioned at this stage that learned Member Dr. S. Chakravarthy has opined inter alia for award for return tickets of Rs. 10,000/- to the informants and their children. The first informant in his cross-examination has clearly admitted that the return tickets from Yemen A.R. to Delhi for himself, his wife and his children were purchased by the Sheikh. This admission in the cross-examination of the first respondent appears to have been lost sight of by learned Member Dr. S. Chakravarthy. If his attention was drawn to the aforesaid statement made by the first respondent in his cross-examination, I am sure learned Member Dr. Chakravarthy would not have thought it fit to have opined for award of Rs. 10,000/- towards the return passage. In view of my aforesaid discussion, I agree with the view taken by Hon'ble Member Mr. Sardar Ali in this proceeding. The matter will now go before the Bench comprising Hon'ble Members Mr. Sardar Ali and Dr. S. Chakravarthy for pronouncing the judgment in accordance with Section 6 of the MRTP Act. It will be placed before that Bench on 7th July, 1997 for directions. Complaint dismissed.