Madras High Court
G. Rajamani vs Petchimuthu, M. Sudalaiyandi, ... on 10 December, 2002
Equivalent citations: (2003)1MLJ432
ORDER R. Balasubramanian, J.
1. Originally there were six respondents. However, the records show that respondents 2 to 6 had been given up. Therefore the revision survives only against respondent No. 1. Respondent No. 1 had been served and he is neither appearing in person nor engaged any counsel.
2. Normally in exercise of the power under Article 227 of the Constitution of India, I would not have interfered with the order passed by the State Consumer Disputes Redressal Commission, Chennai in R.P. No. 21 of 2001, as there is a further remedy available under the Consumer Protection Act before the National Commission. But at the same time, it must be noticed that mere availability of an alternative remedy does not by itself disable this court from exercising the power under Article 227 of the Constitution of India, if a glaring injustice is brought to its notice. This court is fully aware that it has no unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the court or Tribunal. It is a settled position in law that exercise of power under Article 227 of the Constitution of India must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law and in cases where it is imminent that grave injustice would be done unless the High Court interferes. A patent or flagrant error in procedure or an order resulting in manifest injustice are recognised grounds to exercise the power under Article 227 of the Constitution of India. See (TRIMBAK GANGADHAR TELANG v. RAMACHANDRA GANESH BHIDE).
Having the well settled principles in law, I applied my mind to the illegality brought out in the order of the District Consumer Disputes Redressal Forum, Tuticorin, which had been affirmed by the State Commission. The respondent filed C.O.P. No. 149 of 1996 before the Original Authority alleging deficiency in service against six people. On 24.1.1997, an award was passed directing the opposite parties in that proceedings to pay a sum of Rs. 50,000/= with interest at 12% from a specified date till the date of payment. The sixth opposite party filed an appeal in A.P. No. 221 of 1997 before the State Commission. That appeal was allowed as far as the appellant in that appeal alone is concerned and the matter was remanded back for fresh consideration in so far as that party alone is concerned. After remand, the Original Authority passed an award on 16.12.1999 apportioning the liability of the sixth opposite party. I appears that the said award had become final. To execute that award against all the six apposite parties, the complainant filed E.P. No. 7 of 2000. That petition was filed under Section 27 of the Consumer Protection Act. The relief prayed for in that petition is as follows:-
"Therefore it is prayed that this Honourable Forum may be pleased to direct the respondents to pay Rs. 74,750/= and further issue warrant and punish the respondents by detaining them in prison for failure to comply with the order of the forum and thus render justice."
That Execution Petition was ordered on 25.1.2001. It shows that respondents 2,3 and 4 therein (the fourth respondent is the revision petitioner) were served in the proceedings and they remained ex parte. After going into the various materials available on record, the execution petition was dismissed as against the sixth opposite party therein namely, the appellant in A.P. No. 221 of 1997. The Execution Petition against the second opposite party was also dismissed. Finding that opposite parties 3,4 and 5 were wilful in their conduct in not complying with the award passed, the Original Authority passed the following order.
"In the result, opposite parties 3,4 and 5 are convicted and sentenced to undergo rigorous imprisonment for six months."
3. The petitioner is one of the convicted persons. The petitioner filed a revision before the State Commission. The State Commission dismissed the revision in-limini by passing the following order:-
"We are of the view that on the facts and in the circumstances of the case that the requisite and necessary parameters for the entertainment of the Revision Petition under Section 17(b) of the Consumer Protection Act, 1986 (for short, "The Act") are not satisfied and therefore it is, the Revision Petition deserves to be rejected in-limini and we accordingly do so."
As already stated, it is this order that is in challenge in this revision filed under Article 227 of the Constitution of India.
4. The arguments advanced by Mr. V. Balaji, learned counsel appearing for the petitioner about the illegality of the order of conviction passed by the Original Authority, cannot be easily brushed aside. The power to convict and sentence is available to the Court under Section 27 of the Consumer Protection Act, 1986. However, it must be noticed that in exercise of that power, the Forum can impose the sentence of imprisonment for a term, which shall not be less than one month but which may extend to three years or with fine, which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both. Therefore the Forum is given the power either to impose imprisonment or fine or both. Under the proviso to Section 27 of the Act, the Forum is given the power, if circumstances of any case so require, to impose a punishment lesser than the prescribed one. Inasmuch as the proviso to section 27 enables a lesser sentence to be imposed if the circumstances of any case so require, it is needless to state that those circumstances are circumstances which could be brought to the notice of the court by the opposite parties. Therefore it is clear that the Forum has got the judicial discretion to be exercised in imposing an appropriate punishment. If this legislative command is to be given effect to, then it is clear that before actually imposing the punishment namely, either the sentence of imprisonment or sentence of fine, the Forum must hear the convicted person. It is a well settled principle in criminal jurisprudence that before a person is sentenced on the finding of guilt, he will be heard. There is no reason as to why the said sound principle in law should not be incorporated into the power of the Forum also before awarding the actual sentence. This has not been done in this case. If it had been done, the revision petitioner would have been in a position to bring to the notice of the Forum some mitigating circumstances, so that the Forum would be in a position to apply its mind to those circumstances and award an appropriate punishment. If the petitioner had been heard by the Forum before imposing the punishment, the ground brought to the notice of this court by him to the effect that he and the complainant had entered into a settlement, by the complainant accepting a sum of Rs. 10,000/= in full and final settlement of his claim against the opposite party, would have entered the mind of the Forum in awarding appropriate punishment. It is true that the settlement is after the order in the Execution Petition. The petitioner remained absent, assuming he had been served in the Execution Proceedings (This is a matter to be verified from the records of the District Forum). Even if he had been served and remained absent in the course of hearing in the Execution Petition, the Forum after recording the finding about the opposite parties not complying with the award, would have been well within its jurisdiction to issue either a bailable warrant or non-bailable warrant to secure the presence of the opposite parties and after doing so, the opposite parties would have been heard on the question of sentence. As already stated, when such a power is available to the Forum namely, the Original Authority, the order imposing the sentence of imprisonment on the revision petitioner without even hearing him on the question of sentence, definitely offends the principles of natural justice as well as procedural law relating to conviction and sentence. The District Consumer Forum had not only denied to itself hearing the opposite parties on the question of sentence but also by doing so, it had denied the opposite parties a valuable right to bring forth any mitigating circumstance that may be available to the accused, which may enter the area of consideration while deciding to impose the sentence. Such a violation committed by the District Forum had definitely resulted in grave miscarriage of justice to the opposite parties. These material aspects had escaped the attention of the State Commission while dismissing the revision even in the admission stage itself.
5. Under these circumstances, I have no hesitation at all in setting aside the order in challenge and remit E.P. No. 7 of 2000 in C.O.P. No. 149 of 1996 to the file of District Consumer Disputes Redressal Forum, Tuticorin for disposal in accordance with law. The order in challenge of the District Forum shows that the petitioner was set ex parte. If the petitioner can make out a case for setting aside the ex parte order, it is open to him to move an appropriate application before the District Forum and if so moved, the District Forum shall consider it in accordance with law and on merits. If in that application, an order in favour of the revision petitioner is passed, then there shall be a denovo enquiry in E.P. No. 7 of 2000 as far as the petitioner is concerned. However, if he fails in that application or if the petitioner does not want the entire proceedings to be re-opened, but only wants to be heard on the question of sentence, then the District Forum may hear him on that only and pass appropriate orders.
6. The revision is disposed of accordingly. Consequently, the connected C.M.P. No. 17983 of 2002 is closed.