DHIRENDRA NATH BOSE vs CHIEF PMG CALCUTIA CIRCLE, GPO

THIS is an execution case against the order dated 2.12.1993 in S.C. Case No. 284/A of 1993 passed by this Commission affirming the order dated 14.5.1993 of the Calcutta District Forum in C.D.F. Case No. 989/92.

IN the said order of the Calcutta District Forum, it was awarded that the opposire party G.P.O., Calcutta Circle, representing through Chief P.M.G. would pay Rs 1,000/- as compensation due to contributory negligence on its part and also return the undelivered registered cover to the complainant/petitioner and the same was affirmed by this Commission extending time for said compliance. Supsequently to the said Judgement, we have delivered another Judgement in S.C. Case No. 505/A of 1993 between Dilip Kr. Sengupta v. Chief Post Master General, W.B. where we have dislodged and disclaimad the grievances of the compainant in respeet of alleged deficiency in service relying on decision in the case of The Presidency Post Master & Anr. v. Dr. U. Shankar Rao, reported in II (1993) CPJ 141 (NC) and Section 6 of Indian Post Office Act and clause 84 of the Indian Post Office guide Part-I framed by the Central Govt, by virtue of rule making power under Sec 21(1) of the said Indian Post Office Act, 1878.

The said provisions of law are reproduced here for the sake of convenience. Clause 84 of the Post Office Guide Part-I reads as follows:- "Indian Post Office is exempted by law from all responsibility in the case of (1) loss, mis -delivery or delay of or damage to any postal articles in course of transmission by post and (2) wrong payment or delay in payment by foreign postal administration of money orders issued in India. In the case of money orders paid in India and of insured letter and parcels, the extent of the liability of the Indian Post Office will be found in the rules regarding these classes of business."

SECTION 6 of Indian Post Office Act, 1878 is reproduced as follows:- "The government shall not incur any liability by reasons of the loss, mis-delivery or delay or damage to, any postal articles in course of transmission by post except in so far as such liability made in express terms be undertaken by the Central Government and hereinafter provided and no Officer of the post office shall incur any liability by reason of any such loss, misdelivery delay or damage unless he has caused the same fraudulently or by his wilful act or default."

Further in the case of the Presidency Post Master (Supra) it was inter alia contended that no claim will lie against Postal Department or its Officers merely on the ground that there has been loss, misdelivery, delay or damage to any Postal article in the course of transmission by the Postal Department unless the same has been caused fraudulently by the Officer complained against of the Post Office or by his wilful act or any default. Under the scheme of the Act the claim for compensation will lie at the instance of the Consumer only if there is deficiency in service. According to the Revision Petitioners the statutory protection to the Central Government which is in absolute terms stands as an exception to the general law relating to the commercial carriers, Post Office is a branch of public service functioning under a statute and the liability for misdelivery or late delivery of an article can be fastened on the Postal Department or its officers only on the basis of express provisions of the Post Office Act. The services rendered by the Post Office are merely statutory and there is no contractual liability. Establishing the Post Offices and running the postal service the Central Government performs a government function and the Government does not engage in commercial transaction with the sender of the article through post and the charges for the article transmitted by post is in the natrue of charges imposed by the State for the enjoyment of the facilities provided by the Postal Department and not in consideration of any commercial contract. The post office cannot be equated with a common carrier.

IN that context, the National Commission held that the complaint petition filed by the complainant was not maintainable in view of Section 6 of the INdian Post Office Act. As noticed that there was no allegation that the loss, misdelivery or delay occurred on account of fraudulent or wilful act of any particular postal employee. IN the instant case there is no such allega -tion of fraudulent or wilful Act of any particular postal employee only allegation about nondelivery of the postal article where the foreign post offices as well as INdian Post Offices are involved and no allegation about a particular postal employee for his fraudulent and wilful act of negligence or deficiency in service. The aforesaid provisions of law were neither pleaded by the postal authority in the written statement or memo of appeal nor argued by the advocate appearing on behalf of the opposite party, postal authority at the time of hearing of the case to enable the Commission to come to a fair decision as such the complaint petition and appeal entertained were not warranted by law or under mistaken view of law. It is also to be noted that the compensation of Rs. 1000/- awarded for alleged contributory negligence of the Postal Department without fixing the liability of any particular postal employee where the employees of both Foreign Postal Department as well as Indian Postal Department are involved suffers from absurdity in its root. Hence the orders put under execution in this case are inexecutable orders and are dropped hereby. Execution inexecutable.