HEM RAJ vs SR. SUPERINTENDENT POSTS

THIS case represents a sad spectacle where the concerned officers of the Post and Telegraphs Department of the Union Government of India have exhibited a colossal despotic attitude for not redressing a genuine grievance of the appellant herein who himself had served during his prime youth in the Central Government and long ago retired as J.E. Electric Maintenance. The relevant facts of the case are that on 29.7.2003 he booked a Speed Post Parcel with respondent No. 2 herein which was to be delivered to C.E.N.C. c/o 56 A.P.O. The weight of the speed post parcel was 100 gms and the permissible fee chargeable was Rupees thirty but respondent No. 2 had charged Rupees fifty. On previous two occasions the appellant had also booked speed post parcels (the particulars whereof are given in the impugned order) and they too were also addressed to the same addressee i.e. C.E.N.C. c/o 56 APO, but respondent No. 2 had charged the permissible fee. The case of the appellant is that when he detected the mischief, he immediately approached respondent No. 2 for the refund of Rupees twenty, which was the excess amount charged but in lieu thereof the latter directed him to approach the Post Office of Gandhi Nagar, Jammu. The appellant went there but got the direction to approach respondent No. 1. After many more visits finally on 5.7.2004, respondent No. 1 ordered an inquiry which remained pending without any results. The appellant waited for more than one year and finally on 25.7.2005 filed Complaint No. 560/2005 in the Divisional Consumer Protection Forum, Jammu (hereinafter to be referred to as the Forum).The Forum issued notice to the respondents for appearance. THIS act of the Forum made the respondents to wake up from the deep slumber and Senior Postmaster Jammu Headquarter vide his registered letter No. SPC/Refund/2005/03 Jammu dated 30.8.2005, asked the appellant to accept the enclosed cheque No. 183095 dated 30.8.1995 for Rupees twenty on account of "refund of excess amount charged while booking a speed post article on 29.7.2003". The said letter was received by the appellant on 31.8.1995 and he did not accept the cheque but placed the same on the record of the complaint. The claim was contested before the Forum. The Forum arrived at the conclusion that over-charging was a bona fide mistake committed by the employee of the Central Government which caused no wrongful loss or wrongful gain to either of the parties of the case. That the concerned clerk who had charged the excess amount could not suo motu refund the amount of Rupees twenty because prior permission was required to be obtained from the Competent Authority which normally is a time consuming process. The delay of more than one year in not settling the claim of the complainant by respondents was shielded by the Forum by holding that "respondent No. l: Senior Superintendent of Post at Amphalla had ordered an inquiry in the matter on 5.7.2004; the complainant without waiting for a reasonable time has approached this Forum within twenty days thereafter". The Forum has further gone to the extent of holding that "this was a matter of trivial nature and there was no merit in the complaint itself". After dismissing the complaint, the appellant was directed to collect the cheque in question against proper receipt if he chose so.

BEFORE the Forum, the appellant had personally contested the case. In the Commission too he has not sought any legal help from a lawyer. In the memo of appeal, he has challenged the order of the Forum on the grounds that he waited for about two years to know about the result of the inquiry and when nothing was heard, he approached the Divisional Forum for the refund of Rs. 20.That he has suffered great mental agony as it was not a simple question of refund of the amount but inhuman and recalcitrant treatment of the concerned officials who had made him a shuttle cock to be tossed from pillar to post to seek justice. Had the respondents been sincere in assuaging his hurt feelings, the grievance would have been settled amicably. To add insult to the injury, the Forum has also failed to appreciate the real point as to whether the appellant was made to suffer mentally in respect of refund of petty amount of Rs. 20 charged in excess. The Forum on the basis of no evidence has wrongly held that the concerned clerk had committed a bona fide error in making the calculations of the charges. This fact was not even pleaded on affidavit by the concerned clerk. Heard the arguments.

Mr. Harsh Vardhan, Advocate, has very succinctly argued that the conduct of respondent No. 2 falls within the ambit of Section 6 of the Indian Post Office Act because there was no allegation of any wilful default or fraud on his part. This was a bona fide mistake committed by him and this fact has been correctly appreciated by the Forum. The argument has been countered by the appellant by showing some receipts of over-charging allegedly issued by respondent No. 2 to other customers. Since, those receipts were not tendered in evidence at the proper stage so they cannot be taken into consideration.

WE have considered the respective contentions of the Counsel of the respondents and the appellant as well as gone through the record. The appellant who is a respectable senior citizen of India on 20.7.2003 was deprived of Rupees twenty by respondent No. 2 by charging excess rate of postal parcel fee. This mistake was immediately brought into the notice of the concerned authorities. Instead of redressing his genuine grievance he was being dictated to move from office to office least knowing the nature of official duty that even a bona fide mistake requires immediate rectification. A careless or mala fide over charging was not permitted under the Service Conduct Rules. On 5.7.2004, the appellant lodged a formal complaint with respondent No. 1 who failed to take any action up to 25.7.2005 when appellant filed complaint in the Forum. When process was issued by the Forum, vide cheque No. 183095 dated 30.8.2005 payment of Rs. 20 was made on 31.8.2005 which was not accepted by the appellant. WE are reminded of the words of Mahatma Gandhi (the father of the Nation), when decades before the passing of the Consumer Protection Act, he had realized the importance of a consumer because he had put the consumer as the focal point of our development efforts, pointing out that the consumer is the most important person and stated that they are the future of the democracy. John F. Kennedy, the then President of the United States informed the U.S. Congress in 1962 that "consumer", by definition, include us all. They are the largest economic group in the economy, affecting and affected by almost every public and private economic division ......... but they are the only important group whose views are often not heard". He had made a declaration of basic consumer rights, namely, the right to safety; the right to information; the right to choice and the right to representation. In the year 1983, United Nations formally declared 15th March as "World Consumers Day". Thereafter, the United Nations passed a resolution in the year 1985 laying down the guidelines to be adopted by the developed and developing Nations for protection of consumer rights. Since then, recognition of consumer rights has taken off around the World. In our country the Central Government passed the Act for the protection of the consumers immediately in the year 1985 and in our State, J&K State Consumer Protection Act was passed in the year 1987. In the whole country Consumer Fora are exercising equitable jurisdiction to render justice to little man, namely, the consumer, who is object of exploitation by the producers or service providers for years together. The word "service" has the relevancy under Section 2(g) of the J&K Consumer Protection Act, 1987 (hereinafter to be referred to as the Act). Section 2(g) defines "deficiency" which means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any Act for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services. Section 2(1)(d) defines the word "consumer" and gives wide meaning by providing that a person is a consumer: (a) who buys any goods for consideration and also includes user of such goods, and (b) who hires any services for consideration and includes beneficiary of such services.

The appellant in the present case had hired the services of Post & Telegraph Department for consideration by paying Rs. 50 as fee for the speed post parcel and under Section 2(1)(d) he was a "consumer". There was admitted fault of over-charging an amount of Rs. 20. The injurious nature of the "fault" could be mitigated had it been a result of bona fide mistake which required immediate redressal after its detection. The facts of the case depict that respondents had started treating the appellant as a needy beggar oftenly approaching them at their whims and caprices for getting alms or distribution of State largesses of Rupees twenty. A wrongful loss of Rupees twenty was caused to him on 29.7.2003 and it took about two years to refund the same when vide cheque No. 183095 dated 30.8.2005 it was received by him on 31.8.2005 through registered post. The filing of the complaint on 25.7.2005 in the Forum had compelled the respondents to offer the repayment as is borne out from the record. On a formal complaint being made by the appellant on 5.7.2004 before respondent No. 1 no action was taken upto 30.8.2005. This sorry state of official inaction and apathy makes one to believe that administrative accountability in the Post and Telegraph Department in the State of Jammu and Kashmir is a thing of the past which would not have undergone un-noticed during British Rule. It is for the higher-ups in the administrative hierarchy to educate such like erring officials that in a democratic country like India, the people of India are supreme as they have given the constitution to the country which in its preamble inter alia has recorded to secure to all its citizens justice, social, economic and political. They are the servants of the people to serve them within statutory limits and not their masters. The conduct exhibited by them in this case for not redressing a genuine grievance of a consumer for a considerable period of more than one year makes the mistake of over-charging not as bona fide but mala fide and cannot attract the protection of Section 6 of the Post and Telegraph Act.

BE that as it may, we have to add and state that in a fast growing society, law should grow as a living organ of the society and the Consumer Fora should do justice on the basis of equity and good conscience without bothering for red-tapism but these principles are found to have been given a go-by by the Forum. By twisting the factual matrix traversity of justice has been made and thereby injustice perpetuated on the appellant which is most unfortunate aspect to shake the confidence on the justice delivery system. We have failed to understand from where the Forum has held that "respondent No. 1, Senior Superintendent of Post at Amphalla has ordered the inquiry in the matter on 5.7.2004, the complainant without waiting for a reasonable time has approached the Forum within twenty days". The fact of the matter is that appellant had approached the Forum on 25.7.2005 i.e. after one year and twenty days. In the same manner, the Forum has held that no wrongful loss was caused to the appellant and no wrongful gain to the respondents. It is not understandable how a loss of Rs. 20 caused by over-charging on 29.7.2003 was ignored as not a wrongful loss and correspondingly a wrongful gain. Lastly, the Forum in the concluding part of the impugned order has held "that we do not find any merit in this complaint and in the opinion of the Forum the matter is trivial." The facts have established that respondents from 29.7.2003 to 31.8.2005 had illegally retained the amount of Rs. 20 and denied the speedy justice to him when there is constitutional guarantee to get speedy equitable justice. His statutory rights available under the Act had been trampled and whittled for which legal remedies are available to him. By no stretch of reasoning it could be held that it was a trivial matter. All these facts and circumstances have established that the impugned order suffers from patent inherent, factual and legal infirmities and illegalities which cannot withstand the legal scrutiny. In this view of the matter, we accept the appeal and set aside the impugned order. We appreciate the conduct of the appellant who despite old age had valiantly fought against the infringement of his statutory rights and perpetuation of injustice from 29.7.2003 till date, i.e. for four years. For all this period, he has mentally, physically and financially suffered a lot. Being a bona fide consumer, he suffered on account of deficiency of service. Taking stock of all such surrounding facts and circumstances we award him a compensation of Rs. 15,000 (Rupees fifteen thousand), which is inclusive of litigation charges. We direct the respondents and their employer Union Government of India to make the payment of the said amount within 30 days from today failing which interest at the rate of 9% per annum shall become payable from the date of making the complaint in the Forum which is 25.7.2005. The Union Government through concerned Secretary has not been made as a party in the proceedings but being master/ employer it cannot escape its liability which is joint and several. We also direct that the Union Government i.e. Secretary, Ministry of Post & Telegraph Department, Government of India, New Delhi, shall hold an inquiry and ultimately recover the claim amount from the salary of the delinquent officials on account of their misconduct, the public money of the tax payer should not be allowed to be drained out. A copy of this order be given free of cost to the appellant and a copy be sent to the Secretary, Ministry of Post & Telegraph Department, Government of India, New Delhi, for necessary action. Record of the Divisional Forum be returned immediately. Appeal allowed.