State Consumer Disputes Redressal Commission
Superindtendent Of Post Office vs Ram Piari And Others on 21 May, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1233 of 2013
Date of Institution: 12.11.2013
Date of Decision: 21.05.2015.
1. Superintendent of Post Office, Ferozepur Division, Ferozepur.
2. Director Post Office, Section-17, Chandigarh.
3. Post Master General, Punjab, Sector-17, Chandigarh.
.....Appellants/opposite parties
Versus
1. Ram Piari W/o Sh. Parkash Chander,
2. Sushil Kumar Ahuja S/o Sh. Parkash Chander, both R/o
Village Khai Phemeke, now Chuhi Chowk, Ferozepur, Tehsil
and District Ferozepur.
.....Respondents/complainants
Present:-
For the appellants : Sh. R.P. Singh, Advocate
For respondents : Ms. Aanchal Thakur, Advocate
First appeal against order dated
19.07.2013 passed by the District
Consumer Disputes Redressal
Forum, Ferozepur.
AND
2) First Appeal No.1234 of 2013
Date of Institution: 12.11.2013
Date of Decision : 21.05.2015
1. Superintendent of Post Office, Ferozepur Division, Ferozepur.
2. Director Post Office, Section-17, Chandigarh.
First Appeal Nos. 1233 & 1234 of 2013 2
3. Post Master General, Punjab, Sector-17, Chandigarh.
.....Appellants/opposite parties
Versus
Tarun Ahuja S/o Sh. Sushil Ahuja R/o Village Khai Phemeke, now at
Chuhi Chowk, Ferozepur Tehsil and District Ferozepur.
.....Respondent/complainant
Present:-
For the appellants : Sh. R.P. Singh, Advocate
For the respondent : Ms. Aanchal Thakur, Advocate
First appeal against order dated
19.07.2013 passed by the District
Consumer Disputes Redressal
Forum, Ferozepur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
We intend to dispose of the above referred two separate appeals by this common order on account of identical questions of facts and law in them. The order will be pronounced in main first appeal no.1233 of 2013.
First appeal no.1233 of 2013
2. The appellants of this appeal (the opposite parties in the complaint) have filed this appeal against the respondents herein (the complainants in the complaint), challenging order dated 19.07.2013 of District Consumer Disputes Redressal Forum Ferozepur (in short, "the District Forum"), accepting the complaint of the complainants, First Appeal Nos. 1233 & 1234 of 2013 3 directing the OPs to pay the amount of Rs.2,00,050/- to the complainants alongwith interest prevailing on the post office savings account from time to time from 10.02.2010, besides Rs.5000/-, as compensation for harassment and Rs.3000/- as litigation expenses.
3. The complainants have filed the consumer complaint no.22 of 2013 under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that they opened joint saving account number 549232 with Sub Post Master, Post Office Khai Phemeke, which was running under the control and supervision of OPs. The complainants had old account with above said post office and they have been depositing and withdrawing the amounts therefrom. Sh. Rakesh Kumar was the Incharge/Sub Post Master of the post office Khai Phemeke. The complainants have credit balance of Rs.2,00,050/- and Rakesh Kumar played a fraud with the Post Office Department and FIR no.164 of 2011, under Section 420 IPC was registered against him by the concerned postal authorities. The complainants deposited the above referred amount with the Postal Department, which were their hard earned money. The complainants have thus filed the complaint against the OPs directing them to return the amount of Rs.2,00,050/- alongwith interest at the prevailing rate to the complainants, besides Rs.50,000/- for mental harassment as well as Rs.7700/- as litigation expenses.
First Appeal Nos. 1233 & 1234 of 2013 4
4. Upon notice, OPs appeared and filed joint written reply, raising preliminary objections that complex questions of facts and law are involved in this case, which cannot be adjudicated in plain summary proceedings by the Consumer Fora. A detailed enquiry is required to be conducted and elaborate evidence needs to be recorded in this case for adjudication of the case. The complainants have not come to the Forum with clean hands. Sh. Rakesh Kumar Branch Postmaster Khai Phemeke played a fraud with some depositors and wide publicity was made in the village and depositors were requested to get their accounts verified from main Post Office. A public notice was published twice in Daily Jagbani Newspaper on 26.10.2011 and on 06.03.2012 and depositors was requested to get their accounts verified upto 13.03.2012. The complainants never approached the Department for verification of their passbook. On merits, it was admitted that the complainants opened saving account with Rs.50/- and thereafter no transaction was made in above said saving account of the complainant. Balance in this account as per record of the Post Office is Rs.56/- only. All the entries in the passbook were suspected being apocryphal and were not admitted, as genuine. The OPs prayed for the dismissal of the complaint.
5. The complainants tendered in evidence affidavit of Ram Piari Ex.C-1 alongwith documents Ex.C-2 to C-4 and closed the evidence. As against it, the OPs tendered in evidence affidavit of M.S. Negi Superintendent, Post Office Ferozepur Ex.R-1 alongwith First Appeal Nos. 1233 & 1234 of 2013 5 document Ex.R-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainants.
First appeal no.1234 of 2013
6. The appellants of this appeal (the opposite parties in the complaint) have filed this appeal against the respondent herein (the complainant in the complaint), challenging order dated 19.07.2013 of District Consumer Disputes Redressal Forum Ferozepur (in short, "the District Forum"), accepting the complaint of the complainant, directing the OPs to pay the amount of Rs.99,950/- to the complainant alongwith interest prevailing on the post office savings account from time to time from 23.02.2010, besides Rs.5000/- as compensation for harassment and Rs.3000/- as litigation expenses.
7. The complainant has filed the consumer complaint no.23 of 2013 under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he opened a saving account number 549245 with Sub Post Master, Post Office Khai Phemeke, which was running under the control and supervision of OPs. The complainant had old account with above said post office and he has been depositing and withdrawing the amounts therefrom. Sh. Rakesh Kumar was the Incharge/Sub Post Master of the post office Khai Phemeke. The complainant has credit balance of Rs.99,950/- and Rakesh Kumar played a fraud with the Post Office Department and FIR no.164 of 2011 under Section 420 IPC was got First Appeal Nos. 1233 & 1234 of 2013 6 registered against him by the concerned postal authorities. The complainant deposited the above referred amounts with the Postal Department, which were his hard earned money. The complainant has, thus, filed the complaint against the OPs directing them to return the amount of Rs.99,950/- alongwith interest at the prevailing rate to the complainant, besides Rs.50,000/- for mental harassment as well as Rs.7700/- as litigation expenses.
8. Upon notice, OPs appeared and filed joint written reply, raising preliminary objections that complex questions of facts and law are involved in this case, which cannot be adjudicated in simple summary proceedings by the Consumer Fora. A detailed enquiry is required to be conducted and elaborate evidence needed to be recorded in this case for adjudication of the case. The complainant has not come to the Forum with clean hands. Sh. Rakesh Kumar Branch Postmaster Khai Phemeke played a fraud with some depositors and wide publicity was made in the village and depositors were requested to get their accounts promptly verified from main Post Office. A public notice was published twice in Daily Jagbani Newspaper on 26.10.2011 and on 06.03.2012 and depositors was requested to get their accounts verified upto 13.03.2012. The complainant never approached the Department for verification of his passbook. On merits, it was admitted that the complainant opened saving account with Rs.50/- at Khai Phemeki Post Office and thereafter no transaction was made in above said saving account. First Appeal Nos. 1233 & 1234 of 2013 7 Balance in this account as per record of the Post Office is Rs.56/- only. All the entries in the passbook were inauthentic and were not admitted, as genuine. The OPs prayed for the dismissal of the complaint.
9. The complainant tendered in evidence affidavit of Tarun Ahuja Ex.C-1 alongwith documents Ex.C-2 to C-4 and closed the evidence. As against it, the OPs tendered in evidence affidavit of M.S. Negi Superintendent, Post Office Ferozepur Ex.R-1 alongwith document Ex.R-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant.
10. Dissatisfied with the above said orders of District Forum, the opposite parties of both the consumer complaint no.22 of 2013 and consumer complaint no.23 of 2013, have preferred the above referred two appeals.
11. We have heard the learned counsel for the parties and have also examined the record of the above referred cases and hence both the appeals are being disposed of together by us in this case. The District Forum found that OPs are deficient in service and accordingly ordered to refund the amount embezzled by Rakesh Kumar, an employee of the OPs. We have carefully gone through the pleadings of the parties, as well as the evidence placed on the record by them. There is no dispute about this fact that Rakesh First Appeal Nos. 1233 & 1234 of 2013 8 Kumar was the employee of the OPs and he embezzled the amounts of the above referred complainants. Rakesh Kumar Branch Post Master Khai Phemeke embezzled the amounts of the complainants and had not deposited these amounts in the post office account of the OPs. Now the question which debouched for disposal before us in this case is whether the Postal Authorities are liable to refund the amount embezzled by its employee or not, as referred to above. FIR no.164 dated 21.10.2011 at Police Station Sadar Ferozepur in this case was registered against Rakesh Kumar, vide Ex.C-4. The complainants relied upon the passbook Ex.C-2, we find that there is seal impression of Post Office on it and sealing impression could have been easily put by Rakesh Kumar, who was the employee of the OPs and was in the control of the seal. The simple point for adjudication is whether a statutory employer is vicariously liable for the wrongful acts of its employee or not. Admittedly, there is no relationship of principal and agent between OPs and Rakesh Kumar so as to bind the OPs by the acts of Rakesh Kumar regarding embezzlement of the amounts, which dehors the public duties of Rakesh Kumar. Rakesh Kumar himself embezzled the amounts of the complainants and had not deposited these amounts in the record of the postal office. The counsel for the complainants, now respondents in the above referred appeals was specifically asked by the Bench as to whether statutory employer would be liable for the wrongful acts of the statutory employee under him or not. The First Appeal Nos. 1233 & 1234 of 2013 9 counsel for the complainants referred to law laid down in "Union of India and another Vs. Gurvinder Singh" rported in 2008(II) CPJ- 256 by Uttarakhand State Consumer Disputes Redressal Commission, Dehradun. In this authority, it has been held that in the case of banking and financial services, embezzlement and fraud in matter of deposits and withdrawals. CBI investigation pending. Repeated entries in passbook, having postal stamp of same date found. Forum not justified directing payment of amount as per deposit entries. Order modified in appeal. Postal Department held liable to make payment of admitted amount of recurring deposits with interest. Complainants at liberty to file civil suit for recovery of remaining amount, which was disputed, if any. Even, Uttarakhand State Consumer Commission also held that complainant is at liberty to file civil suit for recovery, as complicated question of law and fact, involving submission of forged withdrawal forms and fraud, which cannot be adjudicated in summary proceedings. The counsel for OPs also referred to law laid down in "Central Bank of India Vs. Byu Hazarika" reported in 2003(I) CPJ (NC)-178 by the National Commission. This judgment is of Central Bank of India and not of Post Office, which is government instrumentality and is part of State under Article 12 of the Constitution of India. We find that this is governmental instrumentality and would fall within the definition of State under Article 12 of Constitution of India. Consequently, this authority on the face of it, is not applicable to the case in hand, First Appeal Nos. 1233 & 1234 of 2013 10 because it pertains to a dispute with Central Bank of India, which is not State.
12. We have thus, come to the conclusion that other than the entries of Rs.50/-, the other entries have been alleged forged and fabricated by the OPs in the complaints The OPs contended that Rakesh Kumar, an employee had embezzled the amount and criminal case has been registered against him for embezzlement. Our own State Commission has held in "Superintendent Post Offices, Ludhiana Vs. Darshan Singh" in first appeal no.468 of 1999, decided on 09.05.2000 that such type of cases, where an embezzlement was involved, FIR has been lodged, it would be advisable to knock at the door of Civil Court or Criminal Court to redress their grievances. This is the judgment of our own State Commission on this point, which is applicable to the controversy of above referred cases. The National Commission has held in "Smt. Aysha Vs. Supdt. Of Post Office Ludhiana" in revision petition no.2253 of 2000, decided on 16.09.2002 that when the entries were alleged to be fake and forged and there were no correspondence entry in the Post Office record and forgery was involved and hence it was advisable to the complainants to approach Civil Court or Criminal Court for redressal of their grievances. Our own State Commission has also examined in "The Superintendant General Post Office Ferozepur Vs. Baldev Raj and others" in first appeal no.461 of 2006, decided on 10.04.2007 that in such First Appeal Nos. 1233 & 1234 of 2013 11 type of matter, it is advisable to approach the Civil Court for their grievances.
13. In view of our above referred discussions, as complex questions of facts and law involving forgery, fraud and embezzlement of the amounts in above referred cases are involved, we have come to this conclusion that this matter cannot be adjudicated by us in summary proceedings, as it would entail examination, cross-examination, re-examination of witnesses including the evidence of hand writing expert witnesses as well. Voluminous evidence is to be required to be recorded to settle this controversy, which cannot be permitted in this type of summary proceedings. The District Forum has not appreciated the controversy in the proper perspective and accepted the above referred complaints of the complainants. The orders of the District in above referred complaints are not sustainable and are ordered to be set aside in these appeals.
14. As a result of our above discussions, we hereby accept the above referred both the appeals by setting aside the orders of the District Forum Ferozepur dated 19.07.2013, resultantly the above referred both the complaints filed before the District Forum are hereby dismissed. The complainants in them are at liberty to approach the Civil/Criminal court to redress their grievances. First Appeal Nos. 1233 & 1234 of 2013 12
13. The appellants of First Appeal no.1233 of 2013 had deposited an amount of Rs.25,000/- with this Commission, at the time of filing the appeal and further deposited Rs.95,650/-, as per direction of this Commission. Both amounts be remitted by the registry alongwith interest, which accrued thereupon, if any, to appellant no.1 in this appeal within 45 days.
14. The appellants of First Appeal no.1234 of 2013 had deposited an amount of Rs.25,000/- with this Commission, at the time of filing the appeal and further deposited Rs.37,190/- in compliance of order of this Commission. Both amounts be remitted by the registry alongwith interest, which accrued thereupon, if any, to appellant no.1 in this appeal within 45 days.
15. Arguments in both the appeals were heard on 18.05.2015 and the orders were reserved. Now the orders be communicated to the parties. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER May 21, 2015.
(MM)