State Consumer Disputes Redressal Commission
Controller Of Examinationa vs Sri Koushik Kundu on 16 December, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/96/2014 (Arisen out of Order Dated 20/12/2013 in Case No. Complaint Case No. CC/109/2013 of District South 24 Parganas) 1. Controller of Examinationa Netaji Subhas Open University, 1, Woodburn Park, Kolkata - 700 020, P.S. - Kalighat. 2. Co-ordinator, Netaji Subhas Open University G.M.S.M. College Centre, Bireswarpur, South 24 Pgs. ...........Appellant(s) Versus 1. Sri Koushik Kundu S/o Late Arabinda Kundu, Vill. - Mazilpur Bhattacharjee Para, P.O. Joynagar Mazilpur, P.S. - Joynagar, Dist. South 24 Pgs. 2. Collector, Gour Mohan Sachin Mondal Mahavidyalay Library Bireswarpur, South 24 Pgs. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Alok Mukhopadhyay Mr. Souvik Chatterjee Mr. Udayan Roy, Advocate For the Respondent: Mr. Partha Sarathi Banik, Advocate ORDER Dt. 16.12.15 JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, dated 20.12.13, passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in CC Case No. 109 of 2013, whereby the compliant was allowed on contest against the OP Nos. 1 and 2 and ex parte against OP No. 3 with cost.
The Complainant's case, in brief, was as follows:
The Complainant was admitted in BPP Course ( Bechaler's Preparatory Programme ) in Netaji Subhas Open University after payment of Rs.800/- to OP No.1. Identity card was issued from the Study Centre. Admit card was issued. The Complainant appeared at BPP term examination in December 2005 and became successful. Result card dated 28.04.2006 was obtained from OP No.3. He then joined in Degree Course Programme by paying admission fee and annual charge. He appeared at the first examination and became successful. He requested the OPs to issue the certificate of the BPP but the same was not issued inspite of repeated requests. The OPs assured the Complainant about issue of certificate in January 2013, but lastly on 02.03.2013, the OP refused to issue BPP certificate. In such situation, the Complainant filed a complaint before the Ld. Forum below with prayer for direction upon the OPs to issue the BPP certificate and to pay Rs.85,000/- as compensation Rs. 10,000/- as litigation cost and Rs. 10,000/- as punitive charges.
The complaint was contested by the OP Nos. 1 and 2 . In their W.V it was contended that the University does not issue any certificate upon completion of the course in which the Complainant was admitted, as mentioned in the prospectus of Netaji Subhas Open University. It was also denied that the petitioner requested the OP Nos. 1 and 2 for obtaining the certificate. There was no deficiency in service on the part of the OP Nos. 1 and 2 and hence, the complaint was liable to be dismissed.
Ld. Forum below observed that non-issuance of certificate to the successful candidate was an example of unfair trade practice and though the University issues certificate , if necessary , the OP No.1 has not taken any step for issuing certificate to the Complainant. The complaint was allowed on contest with direction upon the OPs to issue certificate of BPP and to pay a cost of Rs. 10,000/-, compensation of Rs. 90,000/- and also the punitive damage to the tune of Rs. 5,00,000/-. The entire amount was directed to be paid within one month from the date of order.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OP- turned-Appellant has come up before this Commission with prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed together with the copies of the impugned order , the petition of complaint , the W.V. filed by OP Nos. 1 and 2 and also copies of receipt of Rs. 800/- by Netaji Subhas Open University and the prospectus of Netaji Subhas Open University for Certificate, Diploma, PG. Diploma and BPP courses.
Ld. Advocate appearing for the Appellant submitted that the subject of the complaint was related to education and such complaint is not a consumer complaint as education is not a commodity and educational institutions do not provide any service. It was argued that the complaint was filed against the Controller of Examination and other parties, but not against Netaji Subhas Open University, though he got training of BPP from the said University. Further, the amount was paid to the University and if there is at all any deficiency in service , the complaint should have been brought against the University. The training as received by the Complainant is neither a Degree nor a Diploma. As such, the question of issuing certificate does not arise. The privity of contract, if at all, was between the University and the Complainant. The compliant was bad for non-joinder of necessary party. Ld. Forum below failed to appreciate that the issuance of marksheet is sufficient and if at all necessary, the University on getting written application may consider the prayer. The order is bad in law and deserves to be set aside.
Ld. Advocate appearing for the Respondent submitted that the Respondent /Complainant not being issued the certificate of BPP, inspite of repeated requests, discontinued his Bechalaor's Degree Programme and as such the Complainant sustained monetary loss amounting to more than Rs. 10,000/- including admission charge and annual charge in the Degree Course. This was a clear deficiency in service on the part of the OPs and an act of unfair trade practice . Hence, the compensation for the loss and injury suffered by the Respondent /Complainant was demanded apart from punitive charges and litigation cost. Ld. Forum below examined the materials on record and rightly concluded that the OPs not having issued the certificate in BPP programme showed gross deficiency in service and passed the impugned order allowing the complaint.
The point for consideration is whether the impugned order suffers from material irregularity or jurisdictional error.
Decision with Reasons :
The main grievance of the Respondent Complainant is that though he was admitted in Bachelors Preparatory Programme and successfully completed the programme , he was not issued any certificate by the OPs .
It is a fact that there is no provision in the prospectus of the University that any certificate would be issued to the candidates being successful in the said BPP. It is stated in the prospectus of the Netaji Subhas Open University under clause 7 as follows:
7.1 Bachelors Preparatory Programme (BPP) "The course has been designed to create opportunities for higher education for those students who could not pass the 10 + 2 examination for some reasons or other. By passing BPP students will have direct entry into Arts and Commerce Bachelor's Degree Programme (BDP) of Netaji Subhas Open University".
If at all necessary , the University may be approached for such certificate with written application. In fact, the Respondent/Complainant does not appear to have submitted any written application for issuance of the certificate in question . Further, the BPP course is an internal arrangement of the University facilitating admission of successful candidates in the BA/B Com. Programme of the University which implies that the certificate will have no relevance in case of admission elsewhere in other Universities. Still, however, such certificate could be issued by the University if there was written application for the same. In the absence of submission of such application , the certificate was not issued as claimed by the OPs. In that view of the matter , it may be held that there was no deficiency in service on the part of the OPs.
It is obvious that the programme in question is designed to be a facilitating step for admission in Arts and Commerce Bachelor's Degree Programme of Netaji Subhas Open University only. There is no universal acceptability of the BPP passed candidate in persuing BA , B Com. Courses elsewhere in other Universities . Again , no authority has been given to the coordinator of a study centre to issue BPP pass certificate to any candidate, which means if the certificate was at all necessary by the Complainant , he should have approached the University which does not appear to have happened.
The Hon'ble Supreme Court held in Maharshi Dayananda University -vs- Surjit Kaur 2010 (11) SCC 159 that education is not a commodity . Educational Institutions are not providing any kind of service, therefore, in matter of admission , fees etc. there can not be a question of deficiency of service. Such, matters can not be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
Going by the above discussion we are of the considered view that the impugned order suffers from material irregularity and legal infirmity . The appeal, in the result, succeeds. Hence, Ordered That the appeal be and the same is allowed. The impugned order is set aside. The complaint stands dismissed. There shall be no order as to costs. However, the Complainant shall have liberty to move an appropriate Civil Court / Forum for redressal of his grievance. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER