State Consumer Disputes Redressal Commission
Shri Ganesh Madhavrao Maslekar vs Shri Sandeep V.Marne, Adv. on 3 October, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE FIRST APPEAL NO.1537/2008 Date of Filing:-04/12/2008 IN CONSUMER COMPLAINT NO.14/2008 Date of Order:-03/10/2009 DISTRICT CONSUMER FORUM, CENTRAL MUMBAI Shri Ganesh Madhavrao Maslekar, Residing at D-02, AIR Staff Quarters, Jalna Road, Aurangabad-431 005 Tah-Dist-Aurangabad ... Appellant (Org. Complainant) -Versus - Shri Sandeep V.Marne, Adv. 10, Sai Sadan, 4th Floor Near Hutatma Chowk, Fort, Mumbai-400 001 ... Respondent (Org. Opponent) Corum :- Mr.P.N.Kashalkar,Honble Presiding Judicial Member, Mr.S.R.Khanzode, Honble Judicial Member Present :- Appellant present in person Mr.Uday Warunjikar, Adv.for the Respondent. O R D E R
Per Mr.P.N.Kashalkar,Honble Presiding Judicial Member
1) This is an appeal filed by the original complainant whose Consumer Complaint No.14/2008 was dismissed by the Central Mumbai District Consumer Forum by its order dated 22/5/2008.
2) Facts to the extent material may be stated as under :
3) Complainant had filed consumer complaint against Mr.Sandeep V.Marne, Adv. alleging deficiency in service on the part of O.P. He pleaded in his complaint that he was working as Transmission Executive in All India Radio Aurangabad. On 23/4/2002, the Director of AIR, Aurangabad informed him that he has been transferred to Dhule. On his request, for 8 months, he was retained at Aurangabad and on 7/11/2002 he was relieved from Aurangabad.
Hence, he filed O.A.No.970/2002 in Central Administrative Tribunal, Mumbai. He had engaged O.P. Adv.Mr.Marne as his advocate to argue the case. The CAT was pleased to hear both the parties on his petition and on 28/3/2003 his petition was rejected. While rejecting his petition, the Central Administrative Tribunal opined that after transfer, at his request, he was given 8 months to join the new posting and thereafter he was challenging the transfer order which was not permissible in law. The CAT also observed that over the transfer of officers the CAT can not sit as a court of appeal. After his rejection of petition, he had asked O.P. to file review petition but he was advised by O.P. that instead of review petition which would be heard by the same Bench, it would be better if he filed writ petition in Honble High Court. Hence, as per advice given by the O.P., he filed Writ Petition No.1973/2003 in Aurangabad of Bombay High Court. But on 3/6/2003, the Honble High Court was pleased to reject his petition and therefore he felt aggrieved against O.P./advocate and filed consumer complaint alleging that in the petition preferred by O.P. there were several typing and computer mistakes which were not rectified by learned Adv./the O.P. herein. He further listed the grievances that on 6/2/2003, his matter came before the Honble Member Smt.Shanta Shastri of the CAT Bench. But, the O.P. sought adjournment and after seven days his petition came before another Honble Member (Shri S.L.Jain) who was pleased to reject his petition. His further grievance is that after his petition was rejected O.P. was duty bound to file review petition but he did not do so. His further grievance is that complainants rejoinder was not read over before the Bench of CAT in the course of arguments advanced by the O.P. Yet another grievance of the complainant against the O.P. was that without his suggestion the O.P. argued that complainant should have been transferred to Nanded, Osmanabad or Beed. The complainants further grievance against the O.P. was that for the merit, success of the petition, the O.P. was solely and exclusively responsible. His another grievance against the O.P. was that while filing petition in CAT the O.P. had not challenged the order of transfer dated 7/3/2002 but had challenged his relieving order dated 17/9/2002. His last grievance was that in the course of argument the O.P. had not brought to the notice of the court the legal provisions and that is why he suffered in the litigation. He therefore claimed an amount of Rs.4,99,999/- from the O.P.
4) The O.P. filed written statement and pleaded that even before filing petition in CAT he had told the complainant that CAT would be very shy in interfering with the order of transfer passed by the department. He further pleaded that the complainant had approached other advocates but since he could not afford to pay their exorbitant fees, he approached to him and agreed to pay his fees of Rs.5,000/- but actually paid only Rs.3,000/- and till the filing of the written statement in the Forum below he had not paid him remaining fees of Rs,2,000/-. Despite this fact the O.P. had argued the case of the complainant sincerely and honestly. The O.P. pleaded that before filing of the petition in CAT, the complainant had already joined at Dhule and at the instance of senior officers, his transfer was kept in abeyance for eight months. Even before filing of the complaint, he was transferred from Dhule to Nagpur where he had joined. Therefore, the O.P. pleaded that by filing petition in CAT complainant had not suffered any loss, damage or inconvenience. According to O.P., the complaint as filed by the complainant was hopelessly time barred. The O.P. further pleaded that the typing mistakes found in the petition presented in the CAT had not at all affected the case of the complainant even in the least. The complainant had signed it after thoroughly reading it and then it was presented in the CAT. Before signing, it was his duty to rectify the mistakes if he had noticed. Only mistake found inadvertently in the petition was that Respondent No.3 in the petition was mentioned as Station Director, A.I.R. Pune in place of Station Director, A.I.R. Aurangabad. The O.P. pleaded that all the three respondents were represented by one advocate so that mistake had not affected the merit of the case. He also pleaded that simply because he had sought adjournment of seven days that itself was not responsible for the rejection of the petition. On 6/2/2003, the O.P. was present in the court of CAT. He ridiculed the claim of the complainant that had a particular Bench heard the petition on 6/2/2003 his petition would have been allowed. He stated that once his petition was rejected, his power to represent the party comes to an end and complainant could have engaged another lawyer to file review petition. He also insisted that he should have read rejoinder before the CAT. But, the Tribunal had not permitted him to read his rejoinder which is their sole discretion. While filing writ petition, this point was raised specifically in the writ petition but that writ petition too was rejected by the Honble High Court. The complainant himself in his petition before the CAT and in the writ petition mentioned that he should have been transferred to Nanded, Osmanabad or Parbhani. When this was his stand it is improbable that he (O.P.) would have argued this point on his own accord without feedback of the complainant. The O.P. further pleaded that initially relieving order of the complainant was challenged before the CAT but thereafter amendment was made and transfer order was also challenged. So, there was no substance in the complaint filed by the complainant and therefore the O.P. pleaded that complaint should be dismissed with compensatory cost of Rs.10,000/-.
5) On considering documents and affidavits placed on record and after hearing both the parties extensively and after reading complaint and written statement thoroughly (complaint running into 343 pages and written statement running into 306 pages ) and also after perusing CAT order and order of the Honble High Court passed in writ petition, the Forum below held that petition of the complainant in the CAT and writ petition of the complainant in the Honble High Court was rejected not because of professional deficiency in service on the part of O.P. On merits those petitions were rejected. The Forum below in its judgment also discussed at length various points raised by the complainant and held that O.P. had not committed deficiency in service in rendering professional service to the complainant. His complaint was rejected on merits and not on typing or computer mistakes as alleged by the complainant and that the O.P. had argued most of the points before CAT as well as before the Honble High Court to the extent he was permitted to do so by both the Benches and both authorities turned down his plea. Therefore, the Forum below was pleased to dismiss the complaint by writing seven paged order. Aggrieved thereby, this lengthy appeal has been filed by the original complainant.
6) At the stage of admission we heard appellant in person and Mr.Uday Warunjikar, Adv. for the respondent. We may mention here that we gave full chance to the appellant to argue his case since he was arguing his case personally.
7) Even after hearing him extensively and perusing his lengthy appeal compilation of 847 pages, we are finding that by very short order we can dispose off this appeal without any legal hitch. The order passed by the Forum below running into seven pages is quite exhaustive one and the learned District Forum has discussed major issues raised by the complainant and has rightly dismissed the complaint by giving good reasons as to why it was not accepting the case of the complainant.
8) We are finding that basically the complainant had no case to get any relief either from the Bench of CAT or from the Bench of Honble High Court. He had challenged the order of transfer passed by the Director General of Prasar Bharti (A.I.R.) In number of cases the Honble Supreme Court has laid down that Courts and Tribunals should not normally interfere in the administrative actions of the departments lightly. The Honble Supreme Court had also held that transfer is the incidence of government service and it is for the department or employer to decide where to post a particular employee in the course of his service. Normally, as such, the CAT or Honble High Court is always reluctant to interfere with the order of transfer of the employee. In this case, the complainant had challenged the order after he had joined at Dhule. He had initially challenged his relieving order and then by amendment he had also challenged the order of transfer. After hearing complainants counsel (who was O.P. herein) the Honble Member of the CAT found that his petition was meritless and as such he was pleased to dismiss it. We have perused the order of learned Member of the CAT which is annexed as page 348 to 352. We are finding that the points raised by the O.P. as a counsel for the petitioner was considered and turned down by the Honble Bench of CAT. The transfer order was challenged on the ground that it was malafide. This was argued by the counsel for the complainant before the CAT but it was not found favour by the Honble Member of the CAT. So, on merit, after hearing counsel for the complainant his petition was dismissed by the Honble CAT Mumbai Bench. Likewise his writ petition No.1973/2003, argued by complainant himself was rejected by the Honble High Court summarily since it was held that his services was transferable at any place in Maharashtra and he had already reported at the transfer posting and distance between Aurangabad and Dhule was about 150 Kms. The Honble High Court on merits held that allegations of malafides could not be considered unless officer concerned was impleaded by name. The Honble High Court was pleased to summarily reject writ petition only on the ground that his services was transferable and its saw no reason to interfere with the decision of the employer particularly when petitioner was already granted extension of stay of eight months. Thus, we are finding that basically complainant had no case when he approached initially to CAT through Adv. Marne or when he further approached in person before Honble High Court at Aurangabad. What is pertinent to note is that fact that he himself argued writ petition before Honble High Court. We are sure that he must not have left any point unargued when he argued his writ petition before the Honble High Court at Aurangabad. But, he did not succeed in the Honble High Court for the simple reason that he had not established malafides on the part of his superiors. Secondly, he had already sought eight months extension of stay at Aurangabad and before approaching the CAT he had already reported for duty at A.I.R. Dhule. Lastly, as per Honble High Court his services was transferable through the Maharashtra and there was no reason to interfere with the employers desecration of transferring his employee and he was transferred at the nearest place from Aurangabad. So, he was unsuccessful either in CAT or in the Honble High Court not because of deficiency in service on the part of O.P., not because of professional ineptness on the part of Adv.Marne but his petition was rejected simply because he had no case on merits. This finding is recorded by the Honble Member of CAT. This is finding Honble High Court recorded after hearing complainant extensively and therefore no fault can be found with the professional service rendered by the O.P./respondent herein. The Forum below rightly dismissed the complaint being without any substance. It has given all the reasons why it was dismissing the complaint. We are fully agreeing with the reasons and the findings recorded by the learned District Forum while dismissing this complaint. There was no reason for the complainant to feel aggrieved by the order passed by the District Forum dismissing his complaint. The complainant had absolutely no merit when he filed complaint against Adv.Marne before the Forum below. The Forum below rightly dismissed the complaint but not satisfied with the verdict given by the District Forum he has filed this appeal having compilation of 847 pages. Now after hearing him thoroughly, we are finding that his appeal is devoid of any merit. Order of the Forum below was quite right and it is sustainable in law. There was no reason for the complainant to file this appeal but he filed this appeal just to take revenge of O.P./respondent and without any basis he is alleging professional mishandling of case by the respondent herein. We reiterate that there is no substance in the appeal filed by the complainant. It is appearing to be groundless. He has filed this frivolous appeal just to take revenge of his advocate. We go a step further to mention that his case before Honble CAT and before the Honble High Court was such that even the best and leading advocate would have met the same fate if he would have argued on behalf of the complainant. So, in the totality of the circumstances we are finding that appeal is devoid of any substance and as such while dismissing this appeal we are inclined to impose some heavy cost on the appellant for having filed false and vexatious appeal against the respondent herein. In the result we pass following order.
O R D E R 1) Appeal is dismissed 2) Appellant is directed to pay cost of Rs.10,000/- to the respondent and bear his own costs. 3) Copies of this order be sent to the parties free of cost. ( S.R.Khanzode ) (P.N.Kashalkar ) Judicial Member Presiding Judicial Member A. Malve/