National Consumer Disputes Redressal
Dr. Manjula Rohatgi & Anr. vs Monika Pankaj Bhattad on 7 September, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 236 OF 2022 (Against the Order dated 23/02/2022 in Appeal No. 93/2017 of the State Commission Maharashtra) 1. DR. MANJULA ROHATGI & ANR. ...........Petitioner(s) Versus 1. MONIKA PANKAJ BHATTAD ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Petitioner : For the Petitioner : Dr. G.N. Shenoy, Advocate For the Respondent : For the Respondents : NEMO
Dated : 07 Sep 2022 ORDER
The Revision Petition No. 236 of 2022 has been filed by Dr. Manjula Rohtagi and 'Shonali' Rohatgi Nursing Home against the Order 23.02.2022 passed by the State Consumer Disputes Redressal Commission, Maharashtra State, Circuit Bench, Nagpur Maharashtra (hereinafter referred to as State Commission) in Consumer Complaint No. CC/17/93, whereby the State Commission by following its Order passed on 22.02.2022 in another case, has held that the learned Advocate Dr. G.N. Shenoy shall not appear in this case since he had been a Member of District Commission Sub-Urban Mumbai, whereas Revision Petition No. 237 of 2022 has been filed by Dr. Manoj Dayalal Singrakhia and Shanta Spine Institute against Dinesh Manikrao Mane and Imaging Point, against the Order dated 22.02.2022 passed by the State Commission in Consumer Complaint No. CC/13/60, whereby the State Commission had directed that Advocate Dr. Gopinath Shenoy, shall not appear in this matter henceforth and also shall not appear and practice before any of the Consumer Commissions in the State of Maharashtra from date of this Order, i.e., today 22.02.2022 and a copy of the Order was directed to be sent to all the Consumer Commission in the State of Maharashtra for compliance.
In both these Revision Petitions the question in issue is as to whether the State Commission was justified in directing that Dr. G.N. Shenoy shall not appear in those matters henceforth and shall not appear and practice before any Consumer Commissions in the State of Maharashtra. For ready reference, the relevant portion of the Order dated 22.02.2022 passed by the State Commission is reproduced below:-
".......It needs to be noted that the learned advocate for the opposite party Nos. 1&2 Adv. Dr.G.N. Shenoy has worked as theLearned Member in Mumbai Sub Urban District Consumer Disputes Redressal Forum from 1997 to 2002 which is also admittedby the learned advocate for the opposite partyNos. 1&2before the bench.As per provision in the Consumer Protection(Salary, allowances and conditionsof serviceof Presidentand Members of the State Commission and District Commission) Model Rules,2020, Rule No.11(2),Member or President of the Forum or Commission who has worked in the Forum or Commission shall notappearandpractice before any of the Consumer Commissions as per this provision whichreadsas under:
Rule No. 11.(2)The Presidentor member shall not practice beforethe National Commission, the State Commission or the District Commission after retirement from the service of theState Commission or the District Commission as the case maybe.
In view of theprovisionas above, we holdthat,learned advocate Dr.Mr. Gopinath Shenoy shall not appear in this matter henceforthand alsoshall not appear and practice before any of the Consumer Commissions in the State of Maharashtra from date of this order i.e.today 22/02/2022.. All the Consumer Commissions in the State of Maharashtra should take note of this order and copy of this orderbe sent to all the Consumer Commissions for compliance. Inform Registrar (Legal) of the State Consumer Commission, for action.Stand over to 04/03/2022 for hearing this complaint finally."
I have heard Dr. G.N. Shenoy, learned Counsel appearing on behalf of the Petitioner, perused the impugned Orders passed by the State Commission as also the grounds taken in the Memo of Revision Petitions and the documents filed alongwith it.
Dr. G.N. Shenoy, learned Counsel appearing on behalf of the Petitioner submitted that the State Commission has wrongly interpreted Sub Rule-2 of Rule 11 of the Consumer Protection (Salary, Allowances and conditions of Service of President and Members of the State Commission and District Commission) Model Rules, 2020 (hereinafter referred to as the Model Rules, 2020), which have come into force with effect from 20.07.2020. According to him on a correct reading of the aforesaid Sub Rule-2 of Rule 11, the President or the Members, who had been a Member of any Commission, cannot practice before the District Commissions or the State Commission or the National Commission after retirement from service of that Commission, as the case may be. According to him, he had retired as a Part-Time Member from the Consumer Disputes Redressal Forum, Mumbai Sub Urban District in the year 2002, i.e. about 20 years back, and the Model Rules, 2020, which have come into force w.e.f. 20.07.2020, do not have any retrospective operation, meaning thereby it shall apply to only such Members/Presidents, who retire/demit Office on or after 20.07.2020 and not to persons who have retired/demitted Office before 20.07.2020. He further submitted that the restrictions contained in Sub Rule 2 of Rule 11 of the Model Rules, 2020 will be applicable to that Commission where he had held the Office as a Member/President and not to all the State Commissions and the District Commissions situated in the entire country.
It may be mentioned here that prior to coming into force of the Consumer Protection Act, 2019 (hereinafter referred to as the 2019 Act), which came into force with effect from 20th / 20th July 2020, the provisions of the Consumer Protection Act, 1986, (hereinafter referred to as the 1986 Act) were in force.
Sub Section (1A) of Section 10 of the 1986 Act gave powers to the State Government to make appointment of President and Members of the District Forum on the recommendations of the Selection Committee constituted under Sub Section (1A) of Section 10 of the 1986 Act. Under Sub Section 3 of Section 10 of 1986 Act, the State Government was empowered to prescribe the salary or honorarium and other allowances payable to and the other terms and conditions of the Members of the District Forum. Sub section (1A) of Section 16 of the 1986 Act gave powers to the State Government to make appointment of the President and the Members of the State Commission on the recommendations of the Selection Committee constituted under Sub Section (1A) of Section 16 of the 1986 Act. Sub Section 2 of Section 16 of the 1986 Act, empowered the State Government to prescribe the salary or honorarium and other allowances payable to, and the other terms and conditions of the Members of the State Commission. However under the Proviso to Sub Section (2) of Section 16 of the 1986 Act the appointment of a Member on whole time basis had to be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the State Commission.
Section 107 of the 2019 Act repealed the 1986 Act with certain safeguards. It may be mentioned that the 2019 Act came into force with effect from 20th / 24th July 2020.
Section 29 of the 2019 Act empowered the Central Government to make rules for providing the qualifications, method of recruitment, procedure for appointment, term of office, resignation and removal of the President and Members of the District Commissions. However, Section 30 of the 2019 Act empowered the State Government to make rules to provide for salary and allowances and other terms and conditions of service of the President and Members of the District Commission. Similarly, Section 43 of the 2019 Act empowers the Central Government to make rules to provide for the qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission. Section 44 of the 2019 Act gives powers to the State Government to make rules to provide for salaries and allowances and other terms and conditions of service of the President and Members of the State Commission. Section 31 of the 2019 Act provides that any person appointed as President or, as the case may be, a Member of the District Commission immediately before the commencement of this Act shall hold office as such as President or, as the case may be, as Member till the completion of his term for which he has been appointed. Similarly, Section 45 of the 2019 Act, provided that any person appointed as President or, as the case may be, a Member of the State Commission immediately before the commencement of this Act shall hold office as such, as President or member, as the case may be, till the completion of his term. For ready reference, Sections 29, 30, 31, 43, 44 and 45 of the 2019 Act are reproduced below:-
"Section 29. Qualifications, etc., of President and members of District Commission. - The Central Government may, by notification, make rules to provide for the qualifications, method of recruitment, procedure for appointment, term of office, resignation and removal of the President and members of the District Commission.
Section 30.Salaries, allowances and other terms and conditions of service of President and members of District Commission - The State Government may, by notification, make rules to provide for salaries and allowances and other terms and conditions of service of the President, and members of the District Commission.
Section 31. Transitional provision. - Any person appointed as President or, as the case may be, a member of the District Commission immediately before the commencement of this Act shall hold office as such as President or, as the case may be, as member till the completion of his term for which he has been appointed.
Section 43. Qualifications, etc., of President and members of State Commission. - The Central Government may, by notification, make rules to provide for the qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission.
Section 44. Salaries, allowances and other terms and conditions of service of President and members of State Commission - The State Government may, by notification, make rules to provide for salaries and allowances and other terms and conditions of service of the President and members of the State Commission.
Section 45. Transitional Provision - Any person appointed as President or, as the case may be, a member of the State Commission immediately before the commencement of this Act shall hold office as such, as President or member, as the case may be, till the completion of his term."
Section 101 of the 2019 Act gives power to the Central Government to make Rules for carrying out any provisions contained in the Act whereas Section 102 gives the power to the State Government to make Rules for carrying out the Provisions of the Act.
Exercising powers under the Proviso to Sub-Section (1) of Section 102 of the 2019 Act, the Central Government had framed the Consumer Protection (Salary, Allowances and Conditions of Service of President and Members of the State Commission and District Commission) Model Rules, 2020 (hereinafter referred to as the Model Rules 2020), which came into force w.e.f. 20.07.2020. However, under the Sub-Rule 2 of Rule 11 of the Model Rules 2020 which dealt with other conditions of service, it has been provided that the President or Member shall not practice before the National Commission, the State Commission or the District Commission after retirement from the service of the State Commission or the District Commission, as the case may be. For ready reference Rule 11 of the Model Rules 2020 is reproduced below:-
"11. Other conditions of service- (1) The terms and conditions of service of the President or member with respect to which no express provision has been made in these rules, shall be such as are admissible to a Group 'A' officer of the State Government of a corresponding status.
(2) The President or member shall not practice before the National Commission, the State Commission or the District Commission after retirement from the service of the State Commission or the District Commission, as the case may be.
(3) The President or member shall not undertake any arbitration work while functioning in these capacities in the State Commission or the District Commission, as the case may be.
(4) The President or member of the State Commission or the District Commission, as the case may be, shall not, for a period of two years from the date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any person who has been a party to a proceeding before the State Commission or the District Commission:
Provided that nothing contained in this rule shall apply to any employment under the Central Government or a State Government or a local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013 (18 0f 2013)."
It may be mentioned here that the Central Government exercising the powers conferred by Section 3 of the Tribunal Reforms Act, 2021 and in supersession of the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2020 except as respects things done or omitted to be done before such supersession, framed the Rules, namely, the Tribunal (Conditions of Service) Rules, 2021, which has come into force on the date of the publication in the Official Gazette. Section 16 of the Tribunal (Conditions of Services) Rules, 2021 provides for other conditions of service. Sub Rule 2 of Section 16 provides that the Chairperson or Member shall not practice before the Tribunal, after retirement from the service of that Tribunals. For ready reference Rule 16 of the Tribunal (Conditions of Service) Rules, 2021, is reproduced below:-
"16. Other conditions of service.-(1) The terms and conditions of service of a Chairperson, or Member with respect to which no express provision has been made in these rules, shall be such as are admissible to a Government of India officer holding Group 'A' post carrying the same pay.
(2) The Chairperson, or Member shall not practice before the Tribunal, after retirement from the service of that Tribunals.
(3) The Chairperson, or Member shall not undertake any arbitration assignment while functioning in these capacities in the Tribunals.
(4) The Chairperson, or member of the Tribunal, shall not for a period of two years from the date on which they cease to hold office accept any employment in, or connected with the management of administration of any person who has been a party to a proceeding before the Tribunal:
Providing that nothing contained in this rule shall apply to any employment under the Central Government or State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013 (18 of 2013)."
Clause (e) of Section 2 of the Tribunal (Conditions of Service) Rules, 2021 defines "Tribunal" to have the same meaning as assigned to it in Clause (e) of Section 2 of the Tribunal Reforms Act, 2021. Clause (e) of Section 2 of the Tribunal Reforms Act, 2021, defines 'Tribunal' to mean a Tribunal, Appellate Tribunal or Authority as specified in Column (2) of the First Schedule. In the First Schedule Sl. No. 13 mentions the National Consumer Disputes Redressal Commission.
Thus, from the perusal of the statutory provisions, reproduced hereinabove, the following principles emerge:-
(i) The State Government had been given power under Sub Section (1A) of Section 10 of the 1986 Act to make appointment of the President and Members of the District Forum on the recommendations of the Selection Committee constituted under Sub Section (1A) of the aforesaid Act.
(ii) The State Government had been given power under Sub Section (3) of Section 10 of the 1986 Act to prescribe the salary or honorarium and other allowances payable to and the other term and conditions of the Members of the District Forum.
(iii) The State Government had been given power to under Sub Section (1A) of Section 16 of the 1986 Act to make appointment of the President and Members of the State Commission on the recommendations of the Selection Committee constituted under Sub Section (1A) of the aforesaid Act. However, under the Proviso to Sub Section (2) of Section 16 of 1986 Act the appointment of a Member on whole time basis had to be made by the State Government on the recommendations of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the State Commission.
(iv) The State Government had been given power under Sub Section (2) of Section 16 of the 1986 Act to prescribe the salary or honorarium and other allowances payable to and the other term and conditions of the Members of the State Commission.
(v) The 1986 Act had been repealed by Section 107 of the 2019 Act. (vi) The 2019 Act came into force with effect from 20th / 24th July 2020. (vii) The Central Government has been given power under Section 29 of the 2019 Act to make rules for providing the qualifications, methods of recruitment, procedure for appointment, term of office, resignation and removal of the President and Members of the District Commission.
(viii) The State Government has been given powers under Section 30 of the 2019 Act to make rules to provide salary and allowances and other terms and conditions of service of President and Members of the District Commission.
(ix) The Central Government has been given power under Section 43 of the 2019 Act to make rules for providing the qualifications, methods of recruitment, procedure for appointment, term of office, resignation and removal of the President and Members of the State Commission.
(x) The State Government has been given powers under Section 44 of the 2019 Act to make rules to provide salary and allowances and other terms and conditions of service of President and Members of the State Commission.
(xi) Section 31 and 45 of the 2019 Act saves and continues the appointment of the Members and President of the District Commission and the State Commission respectively who have already been appointed when 1986 Act was in force.
(xii) The Model Rules, 2020 came into force with effect from 20th July 2020. It does not have any retrospective effect.
(xiii) Under Sub Rule (2) of Rule 11 of the Model Rules, 2020 a restriction has been imposed on practicing by the President or Member before the National Commission, the State Commission or the District Commission after retirement from service of the State Commission or the District Commission as the case may be.
(xiv) The President and the Members of the State Commission and the District Commissions if they have retired or demitted their office prior to 20th July 2020, i.e., the date when the Model Rules, 2020 came into force shall not be governed by Sub Rule 2 of Rule 11 of the Model Rules 2020 and it will apply prospectively with effect from 20th July 2020 to the President and members of the State Commission / District Commission, who retire on or before 20th July 2020.
(xv) The Provisions of the Model Rules 2020 is not retrospective in operation.
(xvi) The provisions of Sub Rule (2) of Rule 11 of the Model Rules 2020 does not put any restriction on the President and the Members of the State Commission and the District Commission as the case may be, from practicing before all the State Commissions and the District Commissions throughout the country but the restriction to practice by the President and the Members who retire on or after 20th July 2020 shall apply to only such State Commission or the District Commission from where they were appointed or had worked.
(xvii) There is no restriction from practicing/appearing before the National Commission by the President and the Members of the State Commission and the District Commission who have retired on or after 20th July 2020, i.e., on or after the date of coming into force of the Model Rules, 2020 as the Central Government had specifically provided for in Sub Rule 2 of Rule 16 of the Tribunal (Conditions of Service) Rules, 2021, wherein a restriction has been imposed on the President and the Members of the National Commission from practicing before the National Commission after their retirement In view of the forgoing discussions, I am of the considered view that the aforesaid Principles fully apply to the facts of the present case as indisputably Dr. G.N. Shenoy, Advocate had worked as a Part Time Member of the Consumer Disputes Redressal Forum, Sub-urban District Mumbai and had retired in the year 2002, i.e., about 18 years ago when the Model Rules 2020 was not in force as it had came into force with effect from 20th July 2020. Therefore, the impugned Orders dated 22.02.2022 and 23.02.2022 passed by the State Commission putting the restriction on Dr. G.N. Shenoy, Advocate from appearing before any District Commissions or State Commission in the State of Maharashtra was not at all called for. Accordingly, the Impugned Orders dated 22.02.2022 and 23.02.2022 passed by the State Commission are set aside. Consequently, both the Revision Petitions succeed and are hereby allowed.
Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.
......................J R.K. AGRAWAL PRESIDENT