State Consumer Disputes Redressal Commission
Surinder Kumar Mittal vs State Government Of Haryana on 3 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 76 of 2013 Date of Institution : 20.02.2013 Date of Decision : 03.04.2013 Surinder Kumar Mittal, H.No.306, Sector 12, Panchkula (on behalf of Late Mr. Rajesh Kumar Goela, through his heir Ashok Kumar Goyal (presently representing heirs of Ashok Goyal) Appellant/complainant V e r s u s State Government of Haryana, through 1. The Chief Secretary to Government of Haryana, Civil Secretariat, Chandigarh. 2. The Financial Commissioner and Principal Secretary to Government of Haryana, Department of Higher Education, New Civil Secretariat, Sector 17, Chandigarh. 3. The Director, Deptt. of Higher Education, Shiksha Sadan, Sector 5, Panchkula. 4. The Principal, Government College, Narnaul. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: None for the appellant.
Sh. Ram Kumar, Accounts Officer alongwith Smt. Rita Sharma, Deputy Superintendent, on behalf of respondents no.1 to 3.
Sh. Des Raj Yadav, Principal, Government College, Narnaul, respondent no.4, in person.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 28.12.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed Consumer Complaint No.646 of 2012, for non-prosecution.
2. The facts, in brief, are that, Mr. Rajesh Goela (now deceased), was a lecturer, in Govt. College of Narnaul, who retired on 31.12.1999, whereafter, he applied for retiral benefits, as also submitted an application for final withdrawal of his GPF, in September 1999, with the Opposite Parties. It was stated that, despite submitting all the relevant documents, to the Opposite Parties, Mr. Rajesh Goela, was not sanctioned the amount of Rs.9,18,453/-, which had accrued in his GPF account. It was further stated that Mr. Rajesh Goela, was also harassed, by the Opposite Parties, on account of miscalculations, with regard to the release of other monetary retiral benefits. It was further stated that, on 07.01.2003, Mr. Rajesh Goela, suffered from paralysis, and passed away, leaving behind arrears of gratuity, including interest on pension, GPF etc. It was further stated that thereafter, after much persuasion, Mr. Ashok Goyal, brother of Mr. Rajesh Goela, succeeded to get the partial amount, aforesaid, from the Opposite Parties. It was further stated that, no interest was paid by the Opposite Parties, for about twelve and a half years, on the pending amount, aforesaid, the period, during which the said amount was illegally withheld by them. It was further stated that despite several efforts and requests, the Opposite Parties, failed to pay the balance monetary benefits, alongwith interest, to the legal heirs of Mr. Rajesh Goela. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the legal heirs of Mr. Rajesh Goela, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3. The complaint was, for the first time, presented before the District Forum, on 28.12.2012, for admission hearing, when it (complaint case) was called many times, by it (District Forum), but neither the complainant nor any authorized person, put in appearance, as a result whereof, it was dismissed, for non-prosecution.
4. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
5. On 03.04.2013, when the appeal was fixed for arguments, none put in appearance on behalf of the appellant. We, however, thought it fit to decide the appeal, on merits, as per Rule 8(6) of the Chandigarh Consumer Protection Rules 1987.
6. We have heard Sh. Ram Kumar, Accounts Officer alongwith Smt. Rita Sharma, Deputy Superintendent, on behalf of respondents no.1 to 3, and Sh. Des Raj Yadav, Principal, Government College, Narnaul, respondent no.4, in person, and have gone through the record of the case, carefully.
7. The appellant/complainant, in the memorandum of appeal, submitted that, on 28.12.2012, when the complaint case was fixed, for admission hearing, he had communicated, on phone, on the same day, at 10.15 A.M., to the District Forum, that on account of exigencies, he would not be in a position, to attend the hearing, and requested for a date, but the same was declined by it (District Forum), as a result whereof, when none put in appearance, on his behalf, when the complaint was called, the same was dismissed, for want of prosecution. It was further mentioned in the memorandum of appeal that the District Forum, however, did not grant even a single opportunity to the complainant, and, it straightway, dismissed the same (complaint), for want of prosecution. He further stated that the absence of the complainant on 28.12.2012, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further stated that miscellaneous application No.05 of 2013, for restoration of the complaint, was also moved, in the District Forum, but the same was dismissed by it, on the ground, that it had no Jurisdiction, to review its own order, in view of the judgment rendered by the Honble Supreme Court, in case titled as Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar and Anr., IV (2011) CPJ 35 (SC). It was further stated that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellant/complainant, as, in that event, he would be condemned unheard. It was further stated that, thus, the order of the District Forum, being illegal, is liable to be set aside.
8. On the other hand, the Accounts Officer and the Deputy Superintendent of respondents no.1 to 3 and respondent no.4, submitted that the absence of the complainant (now appellant), on 28.12.2012, in the District Forum, was intentional and deliberate. They further submitted that the complainant had the remedy of filing a fresh complaint, on the same cause of action. They further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
9. After giving our thoughtful consideration, to the contentions, referred to above, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, for the reasons, to be recorded hereinafter. As stated above, the complaint was, for the first time, presented before the District Forum, on 28.12.2012, for admission hearing, when it (complaint case) was dismissed, for non-prosecution. Since, on 28.12.2012, no effective proceedings were required to be conducted, in the complaint, the District Forum could adjourn the same (complaint), to some other date, for the purpose, but it apparently resorted to shortcut method by dismissing the same, for non-prosecution, at the initial stage only. No doubt, there was negligence, on the part of the complainant, as it was required of him, to reach the District Forum, on the date fixed i.e. on 28.12.2012, and if, he was having some problem, he could have authorized somebody else, to put in appearance, and request the District Forum, for a short date, for the purpose, but he failed to do so. Since, the complainant did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and substantial justice, are pitted against each other, then the latter shall prevail, over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. Therefore, in our considered opinion, an opportunity should be afforded to the complainant, to pursue the complaint, so that the same could be decided, on merits, and the rights of the Parties, are determined by one Forum finally, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
10. On account of the inadvertence or negligence of the complainant, the delay in the disposal of the complaint, on merits, was caused.
According to Section 13 (3A) of the Act, every complaint is required to be decided, within three months, from the date of service of the Opposite Party(ies), except the one, in which the goods are required to be sent to the Laboratory, for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(ies). The complaint was instituted on 19.12.2012. A period of three months has already lapsed. For causing delay, in the disposal of complaint, on merits, the appellant is required to be burdened with costs.
11. The Accounts Officer and the Deputy Superintendent of respondents no.1 to 3, as also respondent no.4, however, submitted that the appellant/complainant, has the remedy to file a fresh complaint, and, as such, the order impugned cannot be set aside. The submission of the Accounts Officer and the Deputy Superintendent of respondents no.1 to 3, as also respondent no.4, in this regard, does not merit acceptance. Since, the complaint was dismissed, for want of prosecution, on 28.12.2012, the appellant has availed of the legal remedy of filing the instant appeal, against the said order. Once, he chose the remedy, which was available to him, by way of filing an appeal, against the order dated 28.12.2012, it would not be, in the fitness of things, to direct him to withdraw the appeal, and file a second complaint, on the same cause of action. The submission of the Accounts Officer and Deputy Superintendent of respondents no.1 to 3, as also respondent no.4, in this regard, being devoid of merit, stands rejected.
12. For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed for non-prosecution, and decide the same, on merits, in accordance with the provisions of the Act. However, the appellant/complainant is burdened with costs of Rs.1000/-, for causing delay, in the disposal of complaint, on merits. The costs be deposited with the Consumer Legal Aid Account No.32892854721, State Bank of India, Sector 7, Madhya Marg, Chandigarh, in favour of the Secretary, State Consumer Disputes Redressal Commission, U.T., Chandigarh.
13. The Parties are directed to appear, before the District Forum (II) on 15.04.2013, at 10.30 A.M., for further proceedings.
14. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 15.04.2013, at 10.30 A.M.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The appeal file be consigned to the Record Room, after due completion.
Pronounced.
April 3, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg