The Complainant has filed this case against the O.Ps  under section 35 of  C.P. Act 2019 and praying for the order/reliefs:                                                                                                                                                                                                                                                                                                         

1. Direction against the O.P. to supply or provide the bilateral agreement existing between O.P. and the Complainant.
2. Direction against the O.P. to supply or provide the salary statement standing due to the Complainant since the Year 2019-2021.
3. Direction against the O.P. to supply the release certificate in due official manner from the firm of the O.P.
4. Direction against the O.P. to pay a sum of Rs. 1,50,00/- (Rupees One Lakh Fifty Thousand) only for harassment, suffering, agony to the Complainant by the acts of the O.P.s
5. Direction against the O.P. to pay Rs. 3,00,000/- (Rupees Three Lakh) only for practicing deficiency in service and unfair trade practice.
6. Direction against the O.P. to pay a sum of Rs. 10,000/- (Ten Thousand) towards the cost of legal proceedings.
7. Direction against the O.P. s to pay the Complainant the interest accrued on awarded amount @ 6% per annum from the date of cause of action till the date of actual realization.     

BRIEF FACT OF COMPLAINT

1. The Complainant is a permanent resident of the address mentioned in the cause title who is a registered pharmacist bearing registration no. A10522 of the West Bengal Pharmacy Council valid upto 31.12.2024.
2. That, the Complainant is not employed under any Govt. or Govt undertaking organization till date but trying to get a suitable and better work under any Govt. or Govt undergtaking Organization.                                                                                                 
3. That, as per the provision of Rule 65(15) of the Drugs and Cosmetics Rules 1945 the Complainant has been working as registered pharmacist in charge at the facility of the O.P. on whole time basis.  
4. That, prior to 30.06.2021 the Complainant was working as pharmacist to capsule pharmacy under Pro O.P. of Hirak Ray and the said pharmacy runs in the name of Capsule Pharmacy situated at B.S Road near Shila Nursing Home PO & PS Coochbehar, Dist Coochbehar. Pin- 736101.
5. That, since last 30.06.2021 the Complainant is no way or any means has been attached with the said capsule pharmacy and as the Complainant as a registered pharmacist presently working as a Pharmacist-in-Charge at Pradhan Mantri Bharatiya Janaushadhi Kendra, Jalpaiguri under proprietorship of Ranjit Pal at Ajit Chakraborty Lane Jalpaiguri with effect from 01.07.2021 to 31.07.2022 as whole time basis in the facility of Ranjit Pal (Pro O.P. No 1)
6. That, the Complainant on and after 01.07.2021 had started to work as a Pharmacist-in-Charge to the facility of P.O.P. No 1 at Pradhan Mantri Bharatiya Janaushadhi Kendra, Jalpaiguri which was verbally conveyed or informed in toto to the O.P. wherein the Complainant stated his unwillingness to further work under the proprietorship of O.P. as well as the Complainant had seeked his release in necessary official manner from the O.P.
7. That, the Complainant through an affidavit sworn before the Executive
   Magistrate, Jalpaiguri Sadar on 30.06.2021 declared that the Complainant is a registered pharmacist having Registration No A10522 of WB Pharmacy Council valid upto 31.12.2024 and he is not under employment of Govt Institutions or Govt. Undertaking Organization as on date.
8. That, the Complainant had been appointed as a registered Pharmacist-in-Charge on whole time basis in terms and provisions of Rule 65(15) of the Drugs and Cosmetics Rule 1945 under P.O.P. No. 1 Ranjit Pal w.e.f 30.06.21 to 31.07.2022 onwards and declared that he at the same time not attached as a pharmacist anywhere and any other capacity and also declared that the statements of the declaration are correct and true to the best of his knowledge.
9. That, on 11.11.2021 the Complainant lodged a written communication with the Kotwali PS for lodging a general diary to the effect that the Complainant being a pharmacist attached with Pradhan Mantri Bharatiya Janaushadhi Kendra, Jalpaiguri which is a retailed medical shop vide Drug License No. WB-JAL-1051-S and WB-JAL-1052-SB on monthly salary and he bears the pharmacist license no A10522 who intend not to use the said license to other shop and the said written complaint was received by the Police of Kotwali PS on 11.11.2021
10. That, the Complainant thereafter sent a mail on 25.11.2021 as well as hardcopy addressing to the P.O.P. No. 2 seeking and requesting him to look into the matter and necessary arrangements with regard to release order from the O.P Hirak Ray.
11. That, in response to the email sent by the Complainant the P.O.P. No. 2 made a reply asking for submitting a release certificate from the firm  where he was.
12. That, again the Complainant sent another mail to the P.O.P. No. 2 on 17.02.2022 for the same purpose.
13. That, the Complainant duly informed the latest joining place/ working place to the P.O.P. No. 2 and inform his unwillingness and seeking release in official manner from P.O.P. No. 2 as working with Capsule Pharmacy under Proprietorship of Hirak Ray and thereafter sent a mail as well as hardcopy addressing to Addl. Director Of Drug Control, Dist Coochbehar requesting for looking into the matter.
14. That, the Complainant received a reply of the said mail where the Complainant was required to have the release order from the O.P. Hirak Ray.
15. That, on 24.01.2022 the Complainant sent legal notice to the O.P. as well as P.O.P. No. 2 and 3 through Ld. Advocate by speed post, which was delivered to the O.P. on 27.01.2022 and to the P.O.P. 2 on 25.01.2022 and to the P.O.P. No. 3 on 24.01.2022.
16. That, the Complainant received no response from O.P. and as well from the P.O.P. No 2 and 3.
17. That, the Complainant has entered as a registered pharmacist with O.P. working under the Proprietorship of Capsule Pharmacy in the month of April 2019 by strength of a bilateral agreement between themselves and wherein the terms and condition of salary was mentioned but the O.P. did not pay proper salary to the Complainant from 2019 to 2021.
18. That, at the time of execution of agreement, the O.P. assured the Complainant to supply the copy of said agreement but till date he have not given the same and the said acts of the O.P. tantamount to gross and deliberate deficiency in service, unfair trade practice and thus the Complainant was undergoing pain, agony, as the Complainant was suffering from financial loss by the O.P.
19. That, the cause of action of the case Firstly arose on 30.06.2021 when the affidavit was sworn before the Ld. Executive Magistrate, Jalpaiguri Sadar, Secondly on 11.11.2021 when general diary was lodged with the Kotwali PS, Thirdly on 25.11.2021 when the mail was sent to the P.O.P. No. 2, Fourthly on 24.01.2022 when the legal correspondence was sent by the ld. Advocate of the Complainant, Fifthly on 27.01.2022 when the O.P. received the legal correspondence dated 24.01.2022 and Finally on 03.02.2022 when the stipulated time given in the correspondence was over.
20. That, the Complainant is a resident of Dist Jalpaiguri where the cause of action arose and he is a Consumer within the meaning and definition of the C.P. Act 2019 and the rules framed thereafter. By filing the Complaint the Complainant prayed for relief from this Commission.

In support of the complaint the Complainant filed the following documents:

1. Photocopy of affidavit dated 30.06.2021.
2. Photocopy of written complaint regarding general diary addressing to IC Kotwali , Jalpaiguri dated 11.11.2021.
3. Photocopy of mail dated 25.11.2021.
4. Photocopy of legal correspondence dated 24.01.2022
5. Photocopy of postal receipt dated 24.01.2022 to O.P., P.O.P. 2 & 3 collectively.
6. Photocopy of track consignment dated 27.01.2022 to O.P.
7. Photocopy of Registration No./ Identity proof dated 11.07.2017 with endorsement of licensing authority Assistant Director of Drug Control cum Licensing Authority Govt. of WB Jalpaiguri.

Notice was sent from this Commission upon the O.P.s. On receipt of notice the O.P. No. 1 and Pro O.P. No. 2,3 appears before this Commission through Vokalatnama, filed their W/V, denied all the material allegations of the Complainant.

The O.P. No. 1 Hirak Ray in his W/V has stated that the instant case is barred by the principle of estoppels, waiver and acquiescence and barred by law of limitation/ the Complainant has no cause of action to file the case/ the Complainant has no locus stadi to file the case/ the Complainant is not a Consumer of the O.P. No 1 within the meaning and definition of Consumer under the provision of Section 2 (7) of the CP Act 2019. The O.P. no 1 has also stated that with malafide intention the Complainant has filed this case by suppressing the material facts for wrongful gain with and ulterior intention of harassing the O.P. No. 1. The O.P. No. 1 has stated the contents of Para No. 1 to 3 of the complaint are matter of record, Para No. 4 is more or less true, Para No. 5,6 are not true and the O.P. No. 1 denied the same/ Para No. 7 of the complaint mere disclosure of facts containing personal information of the Complainant being matters of record and not within the knowledge of the O.P. No. 1. The O.P. No. 1 has also stated Pradhan Mantri Bharatiya Janaushadhi Kendra is not a Govt Undertaking, it is merely licensee under the Govt. and the Complainant has willfully committed a serious breach of contract by violating the terms and conditions of the agreement (chuktinama) dated 30.04.2019. The O.P. No 1 has also stated that Para No. 8 of complaint is not true and denied by the O.P. No. 1 and the Complainant had been working under O.P. No. 1 as his

                   pharmacist at his Capsule Pharmacy till the month of Dec, 2021 and not before 30.06.2021 as alleged by the Complainant. The O.P. No. 1 has also stated the chuktinama dated 30.04.2019 is an agreement where both the parties had mutually agreed upon its various term and conditions and had entered into a contract which was a personal contract and as such the Complainant is not a Consumer of the O.P. No. 1. It is also stated by the O.P. No. 1 in the W/V that the contents of Para no. 9,10,11,12,13,14,15 of the complaint are mere disclosure of the fact containing personal information of the Complainant which are not within the knowledge of the O.P. no. 1. The Contents of Para no 16,17 of the complaint are not true and denied by the O.P. No. 1. It is further stated by the O.P. No 1 that during mid session ofyear 2021 the Complainant all on a sudden started availing unwarranted leaves from his job upon his various personal grounds and kept himself detached from his job/service with the O.P. No.1, when the O.P. No. 1 made several calls to the Complainant the Complainant stated that since he had been badly engaged towards the treatment of his ailing father he was not been able to join his workplace and thereby the Complainant breaches the terms and condition of the contract, making willfully relinquishment from his service and as a such bitter consequence of which, the O.P. No. 1 has suffered pecuniary loss with tremendous harassment for no wrong committed on his part. The O.P. No. 1 denied the contents of Para No. 19 of the complaint and stated that on 18.04.2019 the Complainant accepted an advance amount to the tune of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) only from the O.P. No. 1 and willfully /voluntarily agreed to work as registered pharmacist at  the O.P. No 1’s Capsule Pharmacy and subsequently the Complainant and O.P. No. 1 had mutually entered into a agreement dated 30.04.2019 where in as per bilateral agreement the O.P. No. 1 had agreed to pay the Complainant a lumpsum amount to the tune of Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand) only for five years which the Complainant had duly accepted. The O.P. No. 1 has also stated in his W/V that the contents of Para no. 20 & 21 are absolutely false and denied by him and no cause of action arose on any day as alleged by the Complainant. By filing the W/V the O.P. No. 1 praying for dismissal of the case.

To falsify the case of the Complainant the O.P. No. 1 files the following documents:

1. Photocopy of agreement (chuktinama) dated 30.04.2019
2. Photocopy of screenshot of whatsapp message dated 06.04.2022.

The Pro O.P. No. 2 files separate W/V and denied all the allegation of the Complainant and has stated that there is no cause of action for filing of the present case against the Pro O.P. No. 2, the instant case is bad in law, bad for waiver , estopples, and acquiescence, bad for misjoinder of parties and the Complainant has not presented his case on clean state as required and by suppressing the actual fact the Complainant has filed this case against the Pro O.P. No. 2 with an ulterior motive. The Pro O.P. No. 2 in its W/V has also stated that contents of Para no. 1 to 10 are all matter of record and the pro O.P. no. 2 does not admit the same. The P.O.P.                                                                        

No. 2 has also stated that, the Complainant used to act as pharmacist at PMBJOK, NatunPara, Jalpaiguri and PO.P. No. 1 Ranjit Pal owner of PMBJOK had released the Complainant on 30.04.2018, the Complainant thereafter submitted an intimation of release from PMBJOK Jalpaiguri on 03.01.2019. The P.O.P. no. 2 has also stated that, the contents of Para no 11 to 17 of the complaint are all issues of lies having know ring of truth in it being engineered for the purpose of this case. It is also stated by the PO.P. no. 2 that as per norms of granting licenses the pharmacist registration certificate from WB pharmacy council has to be produced at respective district drug control office along with current renewal certificate from WB Pharmacy Council for grant of retail licenses and to comply the rule 65(A) of D & C Rules, 1945, the applicant has to submit an affidavit of pharmacist, appointment cum acceptance letter of registered pharmacist retail trade, record form and released letter of the pharmacist from the employer if applicable and the licensing authority on verification of such documents as per rule 65(A) through inspection by drug inspector and on the basis of correctness of the statement the licensing authority grant drug license and recommend for retention/ renewal of licenses. It is also stated by the P.O.P. No. 2 that the Complainant has to obtain the released certificate from its earlier employer and such copy should be produced at district drug control office with an intimation of such release but the pharmacist Sameep Bhattacharjee has not submitted mandatory released certificate of District Drug Control Office, Coochbehar till date and that’s why no action can be initiated until submission of the copy of release certificate at respective drug control office and it is also stated that the Complainant had been appointed at facility of PO.P. No. 1 Ranjit Pal from 30.06.2021 to 31.07.2022 and the said matter was communicated P.O.P. No. 2 office email on 25.11.2021 after a gap of five months and appointment of a pharmacist in a registered retail pharmacy as per law is at the mutual agreement of the proprietor owner of the firms and the pharmacist but the licensing authority is a facilitator for grant of license subject to the correctness of papers/ documents of registered pharmacist submitted through verification by respective area ID. The P.O.P. No. 2 has also stated that the contents of Para no 18 to 20 of the complaint are the disputes between the Complainant and O.P. No. 1 and Pro O.P. no. 2 has nothing to say on the employer and employee disputes and it also stated that the statements of Para no 21 to 25 there is no real cause of action has been set out in the plaint against the Pro O.P. No. 2. By filing the W/V PO.P. No. 2 praying for dismissal of this case.

The P.O.P. No. 3 by filing an application has stated that the defense taken by the P.O.P. No. 2 are also the defense of Pro O.P. No. 3.

Having heardthe Ld. Advocate of all the parties and on perusal of the plaint, written version, documents filed by the parties the following points are taken up by this Commission for consideration.

                          Points for consideration 

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the C.P. Act  2019?                                                                                                                                                                                                        
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint? 

Decision with reasons:-

     The Complainant was given opportunity to prove its case by adducing evidence. Accordingly the Complainant has filed his written deposition in the form of an affidavit. In the written deposition the Complainant has specifically corroborated the contents of his Complaint. In the written deposition the Complainant has stated since when he was working under the O.P. No. 1 as a registered pharmacist and on which day he sent written complaint to the Police of Kotwali P.S. for lodging general diary and on which day he sworn an affidavit before the Ld. Executive Magistrate, and on which day sent email, legal demand notice, written communications to the O.P. No. 1 as well as to the proforma O.P. No. 2 and 3. He also specifically stated in his written deposition regarding specification of his license. By filing the written deposition as well as filing documents the Complainant praying for relief as per the prayer of his complaint.

     Ld. Advocate of the Complainant has also filed written  notes of argument. In the written notes of argument the Complainant has again corroborated the contents of his plaint. The Complainant in his written notes of argument has stated that, he is a Consumer within the meaning and definition of the Consumer Protection Act, 2019. He also argued that, he sent resignation letter addressed to the O.P. on 30.07.2021 which is annexure-3 and he filed annexure-3/A which is seeking release certificate from the P.O.P. No. 2. He further argued that, the Complainant sent legal correspondence through his Ld. Advocate on 24.01.2022 through speed post to the O.P. Hirak Ray and forwarded the same to the P.O.P. No. 1 and P.O.P. No. 2 but of no result. By filling the written notes of argument the Complainant has stated that, he has sufficient cause of action to prefer this complaint against the O.P. and he is entitled to get the relief as prayed for.

     Ld. Advocate of the O.P. Hirak Ray has also filed his written deposition in the form of an affidavit and also files written notes of argument to falsify the case of the Complainant. In the written deposition and written notes of argument the O.P. Hirak Ray has stated that, the Complainant has no locus-standi to file this complaint against him and the Complainant has filed this case by suppressing the actual fact. He also stated in his written deposition as well as in the written notes of argument that, the Complainant is not a Consumer of the O.P. and the Complainant was working under him as his pharmacist at his Capsule Pharmacy till the month of December 2021 though the Complainant and the O.P. Hirak Ray entered into a agreement (chuktinama) on 30.04.2019 in which the Complainant voluntarily agreed to work as registered pharmacist under the O.P. Hirak Ray for a period of 5 years. To Substantiate the said claim the O.P. filed the Xerox copy of the agreement dated 30.04.2019. The further argument of the O.P. Hirak Ray is that, as per the said bilateral agreement the Complainant and the O.P. had mutually agreed upon its various terms and conditions and they had entered into a contract which was a personal contract and as such the Complainant is not a Consumer of the O.P. No. 1 within the meaning and definition of the term Consumer under the provisions of section 2(7) of the Consumer Protection Act, 2019. The O.P. Hirak Ray has also argued that, the Complainant never informed the O.P. regarding his unwillingness to further work under the proprietorship of Hirak Ray and the Complainant has filed this case to extort money from the O.P. by hook or crook.

     Ld. Advocate of the proforma O.P. No. 2 has also filed written notes of argument and has stated that, the Complainant has no cause of action to file this case against the P.O.P. No. 2 by suppressing the actual fact the Complainant has filed this case for gaining unlawfully and he praying for dismissal of this case. At the time of argument Ld. Advocate of the P.O.P. No. 2 and 3 referred decisions reported in (2022) 5 SCC 42 and Ganesh Lal -vs- Shyam (SC) dated 26.09.2013.

     Having heard the Ld. Advocate of all the parties and on perusal of the plaint, written version, evidence of the parties, documents filed by them it is admitted fact that, the Complainant being a registered pharmacist was working under the O.P. Hirak Ray. It is also admitted fact that, the Complainant and the O.P. No. 1 Hirak Ray entered into an Agreement (Chuktinama) dated 30.04.2019 where both the parties had mutually agreed upon the various terms and conditions. It is further admitted fact that, the agreement between them shall be continued for a period of 5 years from the date of its execution. It is further admitted fact that, the said period of 5 years is still continuing but the Complainant is not working as registered pharmacist under the O.P. No. 1 Hirak Ray. It is                                                                                                          

further admitted fact that, the Complainant as per the terms of the agreement received a sum of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) only from the O.P. Hirak Ray.

     From the photocopy of Agreement (Chuktinama) dated 30.04.2019 which has been filed by the O.P. No. 1 Hirak Ray it reveals that, the said Agreement was notarized on 30.04.2019 which was executed on 18.04.2019 where in both the parties to the Bilateral Agreement had mutually agreed upon its various terms and conditions and had entered into a contract which was a personal contract. Hon’ble Supreme Court in the case of Shrikant G. Mantri -vs- Punjab National Bank held in (2022) 5 SCC 42 dated 22.02.2022 has held that, in a case of contract the relation is

purely business to business relationship and the transaction would clearly  came within the ambit of commercial purpose. It cannot be said that the service were availed exclusively for the purposes of earning his livelihood by means of self employment. If the interpretation sought to be placed by the appellant is to be accepted, then the business to business disputes would also have to be constructed as Consumer Disputes, thereby defeating the very purpose of providing speedy and simple redressal to Consumer disputes. Similarly the disputes between the Complainant and the O.P. No. 1 Hirak Ray is purely civil in nature and the jurisdiction rest with civil court only. It was also held in Ganesh Lal vs Shyam (SC, 26.09.2013) that, the Consumer Court has no jurisdiction to entertain complaint seeking specific performance of agreement. The jurisdiction rest with the civil court only.

Now let us see whether the Complainant of this case is a Consumer under the O.P. No. 1 Hirak Ray or not. From the definition of Consumer as depicted in section 2(7) of the Consumer Protection Act 2019, 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 ser­ vices 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 ser­ vices for any commercial purpose,

Explanation.-for the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earn­ing his livelihood by means of self ­em­ployment,

In view of the above, definition of Consumer and considering the agreement (chuktinama) executed by and between the Complainant and the O.P. No. 1 we are of  the view that, the Complainant has failed to                                                                                    

prove the fact before this Commission that, he was a Consumer under the O.P. No. 1 Hirak Ray. On the other hand the O.P. No. 1 Hirak Ray by producing the agreement (chuktinama) has been able to prove that the relations between them was business to business relationship and Complainant could have turned up before a competent civil court for redressal of his alleged grievances if any. Considering all we are of the view that, the Complainant has failed to prove the case against the O.P.

Hence,

            It is therefore,

O R D E R E D

That, the instant Consumer Case No. 17/2022 is hereby dismissed on contest but without any cost.

Let a copy of this order be given to parties free of cost.