National Consumer Disputes Redressal
Post Master, Gju Post Office, Hissar vs Guru Jambeshwar University, Hisar on 6 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 3428 of 2011 (From the order dated 25.02.2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. no. 132 of 2008) 1. The Post Master G J U Post Office, Hissar 2. The Post Master Head Post Office, Hissar 3. The Chief Post Master General Haryana Circle, Mahatama Gandhi Road Ambala 4. The Manager Speed Post Centre, New Delhi Petitioners 5. The Chief Post Master General Delhi Circle, New Delhi Versus Guru Jambeshwar University, Hissar Through : Its Registrar Respondent BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr R N Singh, Advocate For the Respondent Mr Sanjay Singh, Caveator Pronounced on 6th September 2013 ORDER
REKHA GUPTA Revision petition no. 3428 of 2011 has been filed against the order dated 25.02.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (the State Commission) in appeal no. 132 of 2008. The brief facts of the case as given by the respondent/complainant are that:
On 31.05.2004 the Controller of Examination of the complainant/ respondent University sent the parcel containing 43 answer sheets to Professor Mrs Saroj Aggarwal, Dean Department of Basic and Application Sciences, GGSIPU, New Delhi by Speed Post vide receipt no. 101 dated 31.05.2004, from the office of respondent no. 1/ Petitioner no.
1.
After some days, the respondent enquired about the said parcel from Professor Saroj Aggarwal whether the parcel has been received by her or not. The respondent University got stunned when Professor Saroj Aggarwal told that no such parcel was received by her. Professor Saroj Aggarwal also gave in writing to this effect vide letter dated 29.07.2004.
The Deputy Superintendent (Secy.) of the respondent- University moved an application to the Post Master G J U Post Office, Hissar on 20.07.2004 and requested him to intimate the whereabouts of the said parcel containing answer sheets.
The matter was enquired from Head Post Office, Hissar and they informed that the said parcel had been sent to petitioner no. 4 for onward delivery to the concerned addressee.
Thereafter the matter was further enquired from petitioner no. 4 by the respondent University and they informed the University that the said packet vide SPA no. 101 dated 31.05.2004 has been delivered at Akashwani Bhavan, New Delhi. They further inquired from petitioner no. 4 along with the area postman at Akashwani Bhawan and they informed that they did not receive such packet addressed in the name of Professor Mrs Saroj Aaggarwal for delivery.
Thereafter, the University moved an application to the Post Master General, North West Circle, Mahatma Gandhi Road, Ambala Cantt., on 02.09.2004 mentioning all the above facts therein, but the petitioner no. 3 could not prove helpful and could not find out the whereabouts of the said packet.
At last the Post Master, Hissar vide his letter dated 11.03.2006 sent a chque no. M 907238 dated 16.02.2006 of Rs.120/- only.
The respondent - University has claimed compensation to the tune of Rs.5,000/- per answer sheet i.e., Rs.2,15,000/- from the petitioner along with interest @ 18% per annum from the date of speed post i.e., 31.05.2004 till its final realisation.
In their written reply, the petitioner/ opposite party have taken the preliminary objections that the present complaint is not maintainable in view of the provisions of Section 2 (d) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act, 1986) as the remedy is barred under Section 6 of the Post Office Act, 1898, which exempts the respondents for the loss on account of misdelivery of the letter during the course of transmission by post.
The present complaint is hopelessly time barred and as such the same is liable to be dismissed on this score alone.
The contents of paragraph no. 8 of the complaint were admitted to the extent that on receipt of enquiry the records maintained at Speed Post Center, New Delhi were thoroughly checked and stated that the SPA No. 101 was received from SPC Hissar at SPC, New Delhi . On going through the dispatch side it was found to entered Manolfest for New Delhi Head Office for delivery. The SPA no. 101 was delivered at Akashvani Bhavan.
In reply to the contents of paragraph no. 10 of the complaint it was submitted that as per rules of the Post Office a sum of Rs.120/- were returned to the respondent University.
The District Consumer Disputes Redressal Forum, Hisar, Haryana vide their order dated 13.12.2007 held as under:
So, in view of the above discussion, we are of the considered view that it is a clear case of gross deficiency in service and negligence on the part of the respondents. Therefore, there is merit in this complaint which is hereby accepted. The respondent nos. 1 and 2 are hereby directed to make the payment of Rs.50,000/- as compensation to the complainant on account of deficiency and negligent services provided to the complainant. There is no order as to costs. Compliance of this order be made within a period of two months, failing which the respondents would be liable to pay interest @ 9% per annum over this amount from the date of default till its payment.
Aggrieved by the order of the District Forum, the petitioners filed an appeal before the State Commission. The State Commission observed as under:
The parcel containing answer books of students who appeared for M Sc Examination 4th Semester of Chemistry Paper, were sent by speed post by the University to the examiner. The said parcel did not reach its destination and despite efforts being made by the OPs- appellants petitioner as well as University the appellants/ petitioner were not in a position to trace the same. The appellants/petitioner finally regretted the non-delivery by sending a cheque of Rs.120/- to the complainant/ respondent. The appellant/ petitioner did not realise the importants of the things that the parcel contained answer-sheets of students and its non-delivery not only led to delay in the declaration of final examination result and result of number of candidates but in some cases it may have adversely affected their future also. The University has to declare their result on the basis of average marks obtained by the students in other papers. It was certainly an action of intentional negligence and may be at instance someone interest who may have appeared and interested in misplacing the parcel. Learned counsel for the appellants/petitioner have placed on record Honble Supreme Court Judgment in Union of India vs Mohd. Nazim, AIR 1980 SC 431 but this judgment is not applicable in the present case. The District Forum rightly allowed the complaint. Therefore, we do not find any illegality in the finding of the District Forum.
Thereafter, it dismissed the appeal.
Hence, the present revision petition.
Along with the present revision petition the petitioner has filed an application for condonation of delay of 79 days in filing the present revision petition. The reasons given in the application for condonation of delay are as follows:
The copy of the order dated 25.02.2011 was prepared by the office of this Honble Commission on 22.04.2011 and the same was received by the petitioners herein on or after 28.04.2011.
After receipt of the impugned order dated 25.02.2011, the same was examined at the various level of the petitioner as required in the official functioning of the Government and thereafter the opinion of the Government Counsel conducted the case before the ld. Commission was also sought and after receipt of the opinion, the matter was sent on 16.05.2011 to the office of Chief Post Master General, Ambala.
The Chief Post Master General, Ambala vide his letter no. CPT/ 8 1/ 6/ 2006 dated 31.05.2011 forwarded the copy of the order with opinion of the Government Counsel and the brief facts to Shri Arun Malik, ADG (PG), Dak Bhavan, New Delhi for his decision qua the filing of revision petition in the matter.
The matter was examined at various level in the office of the ADG (PG), Dak Bhawan, New Delhi and the opinion of Ministry of Law and Justice was sought who finally gave its opinion dated 25.08.2011 that the department should file the revision petition before this Honble Commission and in view of the opinion of the Ministry of Law and Justice, the competent authority took decision to file the present revision petition before this Honble Commission and thereafter the Ministry of Law was requested vide letter dated 30.08.2011 for appointment of Government Counsel for drafting and filing of the revision petition.
The Ministry of Law and Justice vide its letter dated 06.09.2011 appointed the present counsel and the factum of the appointment of Government counsel was informed to the petitioners herein by ADG (PG) Dak Bhavan vide its letter no. 26-25/2011 PG dated 21.09.2011 and after receipt of the information, the officer of the petitioner herein contacted the Government counsel on 04.10.2011 and provided the necessary documents for drafting of the present revision petition.
We have heard the learned counsels for the parties and have also gone through the records of the case carefully.
There is nothing in the application to explain the gap of day to-day delay between 31.05.2011 to 25.08.2011. In the application the day to-day reasons for the delay has not been explained.
The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide sufficient cause for the delay of 79 days. This view is further supported by the following authorities.
The apex court in the case of In Anshul Aggarwal v.
New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005].
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors.
AIR 1994 Punjab and Haryana 45, it has been laid down that;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
Recently, Honble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.
The Court further observed;
It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
In view of our conclusion on Issue
(a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.
Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.
Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act.
It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning.
It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.
Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
The present case is fully covered under the case laws cited above Supra.
Accordingly, we find that there is no sufficient cause to condone the delay of 79 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 25th October 2013 for compliance.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish