Friday, February 2, 2024

Restoration Application in Consumer Case

Before the Hon’ble National Consumer Disputes Redressal Commission, Upbhokta Naya Bhawan, ‘F’ Block, GPO Complex, INA, New Delhi – 110 023.

M.A. no. _____________of 2013.

( From the Order dated 12.11.2013, in First Appeal No. FA/464/2013, of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi )

In the matter of :

An application for restoration and/or recalling the Order dated 12-11-2013, passed by the Hon’ble National Consumer Disputes Redressal Commission, in F.A. no. 464 of 2013{ Smt. Aruna Srinivasan, represented through her Constituted Attorney Smt. Sandhya Suresh, - Versus – Sri Shyamalendu Roy and others }, filed as on 17-06-2013;

A N D

In the matter of :

Smt. Aruna Srinivasan, Wife of Sri Shrinivasan Kulathu Iyer, presently residing at premises being Unit – 10, 2-6, Priddle Street, Westmead, NSW, 2415, Australia, and Permanent Address at Premises being No. 29, Naresh Mitra Sarani, ( Beltola Road ), Flat no. 5, Kolkata – 700 025, being represented herself through her Constituted Attorney Smt. Sandhya Suresh, Wife of Jayaraman Suresh, residing at Premises being No. 29, Naresh Mitra Sarani, ( Beltola Road ), Flat no. 5, Kolkata – 700 025.

__________Appellant / Petitioner.

- Versus –

1. Sri Shyamalendu Roy, Son of Late Sudhendu Ranjan Roy, residing at premises being no. 2 / 104, West Putiary, Thakurpukur, Kolkata - - 700 041.

2. Smt. Nilima Roy, Wife of Late Chittaranjan Roy, residing at premises being no. 63D, Road No. 1, Ashok Nagar, Post Argora, Ranchi, Pin – 834002, State – Jharkhand.

3. M/s. Shelter, a Sole Proprietorship Firm, having it’s Office at premises being no. 7 / 6, Poddar Nagar, Police Station – Jadavpur, Kolkata – 700 068, represented by it’s Sole Properitor Sri Asish Bal, Son of Late Sukumar Bal, residing at premises being no. 7 / 6, Poddar Nagar, Police Station – Jadavpur, Kolkata – 700 068.

__________Respondents / Opposite Parties.

To,

The Hon’ble President and his companion Members of the National Commission.

The restoration application in First Appeal of the appellant / Petitioner above named most respectfully Sheweth as under :-

This is an application for restoration and / or recalling the Order dated 12-11-2013, passed by the Hon’ble National Consumer Disputes Redressal Commission, in F.A. no. 464 of 2013, { Smt. Aruna Srinivasan, represented through her Constituted Attorney Smt. Sandhya Suresh, - Versus – Sri Shyamalendu Roy and others }, filed as on 17-06-2013.

That on 12-11-2013, the First appeal being FA/464/2013, has been listed under heading ( ADMISSION HEARING ( AFTER NOTICE ) ), in Serial number 14, before Hon’ble Bench No.1, and Before the Hon’ble Mr. Justice D.K. Jain, President, Hon’ble Mrs. Vineeta Rai, Member, and Mr. Vinay Kumar, Member, and whereas the Learned Advocate of the appellant / petitioner could not appear before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, due to his suffering from high fever, and whereas the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, was pleased to pass necessary order and dismiss the said Appeal for non-attendance.

That the Petitioner states and submits that as the Learned Advocate was suffering from high fever during such period, he communicated through his Letter being reference no. AKS / AS / 1798 / 13, dated 11^th day of November’ 2013, addressed to the Hon’ble Registrar, Hon’ble National Consumer Disputes Redressal Commission, New Delhi, vide Speed Post and Courier services, and whereas such services did only cause upon the Hon’ble Registrar, Hon’ble National Consumer Disputes Redressal Commission, New Delhi, on 13^th day of November’ 2013, and therefore the said communication of the Learned Advocate, did not reach on 12^th day of December’ 2013, and thus the same has not been communicated and or placed before the Hon’ble Bench no.1, of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, resulting which, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, was pleased to pass necessary order and dismiss the said Appeal for non-prosecution.

That the petitioner states that the Learned Advocate of the petitioner could not came into the knowledge about such dismissal order dated 12-11-2013, as the same has not been updated at the Website of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, and whereas only on 17^th day of December’ 2013, while the updation regarding the case matter has been given as Disposed off, though the detailed order has not been given and or updated, therefore the Learned Advocate, tried and contacted the office of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, over phone, and thereby came to know that the matter has been dismissed on 12-11-2013 by Their Lordships, the Hon’ble Mr. Justice D.K. Jain, President, Hon’ble Mrs. Vineeta Rai, Member, and Mr. Vinay Kumar, Member, due to non-attendance of the case.

That the petitioner is enclosing herewith a print out copy of the case status as has obtained from the web site of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, on 17^th day of December’ 2013, which shows as “Disposed off”.

That the petitioner is enclosing herewith the Learned Advocate’s Letter being reference no. AKS / AS / 1798 / 13, dated 11^th day of November’ 2013, and postal receipt, courier receipt and acknowledgment of services, download from the website, collectively.

That the petitioner placed his unconditional apology for such non appearance of the Learned Advocate, in his appeal being FA / 464 / 2013, called on hearing on 12-11-2013, due to suffering of his Learned Advocate from illness of high fever, which was beyond his control.

That That the Petitioner states that when the said appeal matter was called for hearing on 12-11-2013 by Their Lordships, the Hon’ble Mr. Justice D.K. Jain, President, Hon’ble Mrs. Vineeta Rai, Member, and Mr. Vinay Kumar, Member, the matter was dismissed due to non-attendance of the case.

That the petitioner states that The Learned Advocate appearing on behalf of the appellant / petitioner could not attend The Court on 12-11-2013 due to his illness of high fever.

That the petitioner states that until and unless said Appeal being FA/464/2013, is restored and/or recalled the Order dated 12-11-2013, the petitioner will suffer irreparable loss and injury apart from prejudice.

That the petitioner / appellant states that there were no willful larches on behalf of the appellant / petitioner.

That the present application is made bona fide and for the ends of justice.

Under the aforesaid circumstances, Your petitioner appellant most humbly prays that Your Lordships may graciously be pleased to pass an order by recalling the Order dated 12-11-2013, in FA / 464 / 2013, passed by Their Lordships, the Hon’ble Mr. Justice D.K. Jain, President, Hon’ble Mrs. Vineeta Rai, Member, and Mr. Vinay Kumar, Member, and/or to restore the appeal being FA / 464 / 2013, and/or to pass such other Order/Orders as to Your Lordships may deem fit and proper.

And for this act of kindness, Your petitioner, as in duty-bound shall ever pray.

AFFIDAVIT

Affidavit of Smt. Sandhya Suresh, Wife of Jayaraman Suresh, aged about _______ years, by faith Hindu, by Occupation Service, residing at Premises being No. 29, Naresh Mitra Sarani, ( Beltola Road ), Flat no. 5, Kolkata – 700 025.

I, the above named deponent do hereby solemnly affirm and declare as under :-

1 : That I am the Constituted Attorney of the Appellant / petitioner in the above case, thoroughly conversant with the facts and circumstances of the present petition, and am competent to swear this affidavit.

2 : That the facts contained in my application for restoration, the contents of which have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge.

DEPONENT

Verification

I, the above named deponent do hereby solemnly verify that the contents of my above affidavit are true and correct to my knowledge, and no part of it is false and nothing material has been concealed therein.

Verified this ………….the day of …………….2013, at the Alipore, Kolkata, South 24-Parganas.

DEPONENT

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated :……………………………2013.

Place : Alipore, South 24-Parganas.

N O T A R Y

Before the Hon’ble National Consumer Disputes Redressal Commission, Upbhokta Naya Bhawan, ‘F’ Block, GPO Complex, INA, New Delhi – 110 023.

M.A. no. _______________of 2013.

( From the Order dated 12-11-2013, in FA / 464 / 2013, passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi )

In the matter of :

Smt. Aruna Srinivasan.

______Appellant / Petitioner.

- Versus –

Snri Shyamalendu Roy and Others. _______Respondents / Opposite Parties.

RESTORATION APPLICATION

Advocate – On – Record :

Ashok Kumar Singh, Advocate.

High Court Bar Association Room No. 15, High Court at Calcutta.

Mobile No. 9883070666 / 9836829666. E-mail : aksinghadvocate@rediffmail.com

Typed copy of First Information Report

TYPED COPY OF FIRST INFORMATION REPORT

W.B.R. Form No. 27

FIRST INFORMATION REPORT

27202

First Information of a cognizable crime reported under section 154 Cr.P.C.

1. Dist : South West Division, Kolkata, Sub Divn. Ld. A.C.J.M., Alipore, P.S, Haridevpur[Sec. HDV] year 2013, FIR No. 541 / 2013, Date 10-11-2013.

2. (i) Act IPC, Section 384 / 388 / 500 / 506 (II) / 120B,

(ii) Act – Section - ,

(iii) Act – Section –

3. (a) General Diary Reference : Entry No. 760, Time 12:45 hrs.

(b) Occurance of Offence : Day (i) Between 9A.M. on 07-10-2013 to 10-10-2013, (ii) Again on 24/10/2013 and 25-10-2013,

4. Type of Information : Written / Oral : Typed and signed four pages letter of complaint.

5. Place of Occurance : (a) Direction and Distance from P.S. (i) Around 2000 Km from the P.S., (ii) 5 Km from the P.S.

(b) Address (i) UTI AMC Ltd. Corporate Office UTI Tower, Gn Block, Bandra Kurla Complex, Bandra East, Mumbai – 400 051, (ii) D-403, Ganapati Enclave, 117A, Santosh Roy Road, Kolkata – 700 008, P.S. HDV.

(c) In case outside limit of this Police Station, then the name of P.S. Except offence u/s. 506(II) IPC rest major portion offence u/s. 384 / 388 / 500 / 506 (II) IPC took place at B.K.C. [ Bandra Kurla Complex ] PS, Mumbai-51.

6. Complainant / Informant :

(a) Name ..Satya Narayan Gayen,

(b) Father’s / Husband’s Name … S/O. Shri Atul Chandra Gayen,

(d) Nationality.. Indian,

(e) Address.. D-403, Ganapati Enclave, 117A, Santosh Roy Road, P.S. Haridevpur, Kol – 08.

7. Details of Known / suspected / unknown / accused with full particulars : (1) Mr. Leo Puri, Managing Director, (2) Mr. S.L. Pandian, Chief Operating Officer, (3) Debashis Mahanty, Executive Vice President & Country Head – Retail Chanel, (4) R.Subramaniam, SVP – HR, all of UTI AMC Ltd. Corporate Office, UTI Tower, Gn Block, Bandra Kurla Complex, Bandra East, Mumbai – 400 051, (5) one unknown messanger of abovestated Sl. No. (3) and any other unknown persons and Company itself.

8. Reasons for delay in reporting by the Complainant / Informant :

…………………………………………………

9. Particulars of Properties stolen involved : ( Attach separate sheet, if required ) : i) Rupees 13,45,937.00 vide Cheque no. 177312 of Axis Bank (ii) Rupees 9,88,479.82, vide Cheque no. 513745 of ICICI Bank both dated 15/10/13, (iii) one unadressed letter, (iv) one statement of confessions.

10. Total Value of Properties stolen / involved : Twenty three lacs thirty four thousand four hundred and sixteen rupees and eighty two paise [ Rs. 23,34,416.82 /- ]

11. Inquest Report / U.D. : Case No. if any :

……………………………………………………………………………………….

12. FIR Contents : ( Attach separate sheets, if required ) : The above noted accused persons entered into criminal conspiracy and thereafter threatened the complainant to falsly implicate in case of “misappropriation by broker / agent” and thereby dishonestly induced him to deliver Rs. 23,34,416.82/- by two cheques and then compelled the complainant to execute one “unadressed letter” and another “statement of confession” declaring that the complainant had misappropriated company’s commission and thus committed extortion between 7/10/13 and 10/10/13, at Mumbai, [ Particularly mentioned at column 5(a)(i) ]. Accused no. (3) and (5) continued to threat the Complainant on 24/10/13, and 25/10/13, at Kolkata, [ Particularly stated at Column 5 (a) (ii) ] for resignation.

13. Action taken : Since the above report reveals commission of offence(s) u/s…. 384 / 388 / 500 / 506 (II) / 120B IPC, SI A.S. Mukherjee, Sec. HDV…… registered the case and took up the investigation. FIR read over to the Complainant / Informant.

Admitted to be correctly recorded and a copy given to the complainant free of cost.

The attached original four pages typed

and signed letter of complainant of

the above noted complaint has been

treated as FIR of the case.

{ illegible }

10/11/13

{illegible }

Signature of the Officer-in-Charge, Police Station with

Name .. SANJIB BHATTACHARYA

Rank .. Inspector / Officer – in – Charge

Number, if any : .. Haridevpur Police Station

Seal { Officer-in-Charge, Haridevpur Police Station, Kol – 53 }

Signature / Thumb Impression of the Complainant.

writ pwtition

DISTRICT: KOLKATA

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

W. P. No. (W) of 2013

Subject Matter relating to: -

Under Group VI of the Classification List.

Cause Title

Shri Satya Narayan Gayen,

………… Petitioner.

Versus

Unit Trust of India Asset Management Company Limited, and others.

……….Respondents.

Advocate on Record:

Ashok Kumar Singh

Advocate

Bar Association, Room No. 15

High Court, Calcutta.
DISTRICT: KOLKATA

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

W. P. No. (W) of 2013

In the Matter of:

Shri Satya Narayan Gayen,

………… Petitioner.

Versus

Unit Trust of India Asset Management Company Limited, and others.

……….Respondents.

I N D E X

Sl. No.	Particulars of Papers	Annexure	Page
1.	List of Dates		C
2.	Points of Law		D - E
3.	Writ Application		1 - 19
4.	Xerox copy of employment status.	P₁	20
5.	Xerox copy of the letter dated 22/10/2013 sent to the respondent no. 2.	P₂	21 - 24
6.	Photocopies of the GDEntry, written complain and the First Information Report.	P₃	25 - 33
7.	Photocopies of The Office Order No. 99 of 2013-14 along with the suspension letter.	P₄	34 - 36

LIST OF DATES


10-12-1990	Joining employment under Respondents.
07-10-2013	Respondent no.4, directed your petitioner to report on urgent, at Mumbai Office.


08-10-2013 to 10-10-2013	Interrogated your petitioner under threat, coercion and induced and extort confession, by the respondents.
22-10-2013	Letter / Representation to M.D. UTI AMC Limited.
28-10-2013	General Diary made at Police Station about threat of Respondent, and Written Complaint submitted.
10-11-2013	General Diary and F.I.R. made at Police Station.
11-11-2013	Suspension Order being Order no. 99 of 2013 – 14, and Letter of Suspension, being no. UT/O-DHRD-1558/ IR-5(4) / 2013 – 14, dated November 11, 2013.

POINTS OF LAW INVOLVED IN THIS INSTANT WRIT APPLICATION

I. Whether the impugned actions/inactions are wholly illegal and without jurisdiction and ultravires the Article 14, 16, 21, and 311 of the Constitution of India.

II. Whether the impugned actions on part of the respondent authorities are colourable, arbitrary and discriminatory.

III. Whether a person can be removed from his service by a letter of suspension, which has been issued by a person, who is not superior to him.

IV. Whether a person can be suspended except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

V. Whether the respondent authorities ought to have held proper enquiry before taking such a harsh step against the petitioner, i.e. suspension from employment.

VI. Whether the purported acts and or omissions of the Respondent Authorities, has ever been well described as per provisions of UTI Asset Management Company ( Staff ) Rules’ 2003.

VII. Whether where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse.

VIII. Whether in the instant case as the conclusion of the respondent authorities has been based on conjecture and surmises and mere ipse dixit of the competent authority, the same ought to be quashed forthwith.

IX. Whether the petitioner has been a victim of executive fiat.