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Judgment
K.B.K. Vasuki, J—This writ petition is filed, for quashing the impugned order of the fourth respondent Post Master, thereby informing the petitioner about the recovery of Rs. 23,27,142/-.
The circumstances under which the writ petition came to be filed are as follows:
"The petitioner has been running a business in the name and style Amudha Stores at Radhapuram. In the course of his business activities, the petitioner used to send large number of postal covers, parcels through ''Express Parcel Post service'' in the local post office. The petitioner originally used to send bulk mails under Book now pay late scheme (shortly referred to as BNPL Scheme), in and under which, the customer who provides monthly business of Rs. 50,000/- and above, gets 10% of rebate. The petitioner used to make prompt payment for entire postal charges availed by him, as per the calculation made by the postal authorities. While so, the petitioner was approached by the postal authorities for joining Express Parcel Post Scheme (hereinafter shortly referred to as EPP Scheme), which is prompt, safe and speedy in nature. When the petitioner has been repeatedly approaching the authorities for providing him 10% rebate for his business already carried on under BNPL Scheme, the petitioner also joined EPP Scheme and started doing bulk mailing to the tune of Rs. 10 lakhs in average per month. Inspite of the petitioner''s repeated representation, and inspite of the authorities admitting return of 10% rebate, the postal authorities did not settle the petitioner''s claim for 10% rebate to the tune of Rs. 70,84,947/- under BNPL scheme and the same compelled the petitioner to approach this court by way of W.P. No. 6463/2009 for recovery of Rs. 70,84,947/-. During the pendency of the writ petition, the petitioner was settled Rs. 33 lakhs through cheque vide memo dated 03.08.2009."
In the mean while, the petitioner received a communication dated 11.08.2003 from the third respondent, Senior Superintendent of Post offices, Tirunelveli, stating that the petitioner was liable to compensate the loss sustained by the postal authorities by way of short collection of postage to the tune of Rs. 23,20,012/- on EPP articles booked by him. The petitioner was in the notice dated 11.08.2003 received on 13.08.2003, further directed to credit the amount either in lump sum or in reasonable installments. The petitioner, on receipt of such notice, replied by denying the theory of short collection of postage and denying his liability to pay any amount. Thereafter, the said amount is sought to be recovered from the petitioner by deducting the same from the balance rebate amount due to the petitioner. The first respondent, Chief Post Master General has, while sanctioning the balance rebate amount, directed the fourth respondent Post Master, by way of two separate memos, to recover the same from the amount due to the petitioner and the fourth respondent in-turn sent the impugned order, enclosing four UCR receipts for the total sum of Rs. 23,27,142/- to the petitioner stating that recovery has been made, as ordered by the first respondent Chief Post Master General. Aggrieved by the same, the petitioner has come forward with the present writ petition.
The learned counsel for the petitioner would attack the propriety, validity, legality and enforceability of the impugned order on the following grounds: (i) the same is in contravention of Section 11 of the the Indian Post Office Act 1898 (hereinafter shortly referred to as ''Act''), as per which, the liability for payment of deficit postage is on the addressee on his accepting delivery of the postal article; and (ii) the impugned recovery i.e., two years after completion of the business transaction, that too without any notice furnishing details and without any opportunity of personal hearing to the petitioner is illegal, arbitrary and against the principles of natural justice and also tainted with malafide.
Per contra, the learned standing counsel for the respondents would defend the recovery proceedings by resorting to Section 12 of the Act.
Heard the rival submissions made on both sides and perused the relevant file and other documents produced before this Court.
The impugned recovery of Rs. 23,27,142/-, according to the respondents represents deficit postage collected from the petitioner for the bulk mailings done by him for nearly 14 months between 14.7.2000 to 25.9.2001. The specific contention of the petitioner that under EPP Scheme, the customer is required to pay the postage as claimed by the postal authorities and the petitioner is in no way responsible for the short collection, is no where denied on the side of the respondents. The short collection of postage in EPP articles was reported to be noticed by the Assistant Superintendent of Post Offices, Tirunelveli Division during his visit to Tirunelveli RMS on 14.9.2001 and his visit to Radhapuram SO on 27.9.2001, while making check on few parcels and the same was thereafter reported to the third respondent Senior Superintendent of Post Offices, Tirunelveli, who in-turn reported the same to the second respondent, Post Master General, Madurai. The second respondent, after having examined the possibility of waiver of short collection, by letter dated 6.3.2002 directed the third respondent to recover the amount from the sender of the EPP by way of monthly installments and the same was followed by notice issued to the petitioner.
As far as the first ground raised on the side of the petitioner against the mode of recovery is concerned, the same is in violation of section 11 of the Act. While according to the petitioner, the relevant provision of law applicable for recovery of postage due is section 11 of the Act, according to the learned standing counsel for the respondents, the relevant provision of law is section 12 of the Act. For better appreciation, Sections 11 and 12 are extracted hereunder:
"11. Liability for payment of postage - (1) The addressee of a postal article on which postage or any other sum chargeable under this Act is due, shall be bound to pay the postage or sum so chargeable on his accepting delivery of the postal article, unless he forthwith returns it unopened:
Provided that, if any such postal article appears to the satisfaction of the Post Master General to have been maliciously sent for the purpose of annoying the addressee, he may remit the postage.
(2) If any postal article on which postage or any other sum chargeable under this Act is due, is refused or returned as aforesaid, or if the addressee is dead or cannot be found, then the sender shall be bound to pay the postage or sum due thereon under this Act."
"12. Recovery of postage and other sums due in respect of postal articles: If any person refuses to pay any postage or other sum due from him under this Act in respect of any postal article, the sum so due may, on application made by an officer of the Post office authorized in this behalf by the written order of the Post Master General, be recovered for the use of the Post Office from the person so refusing, as if it were a fine imposed under this Act, by any Magistrate having jurisdiction where that person may for the time being be resident; and the Post Master General may further direct that any other postal article, not being on (Government) service, addressed to that person shall be withheld from him until the sum so due is paid or recovered as aforesaid."
The combined appreciation of sections 11 and 12 would reveal that the addressee of the postal article unless it is returned unopened, is liable to pay the postage or sum so chargeable on his accepting delivery of the the postal article and the sender is liable to pay the postage or sum due thereon, only if the postal article on which postage or any other sum chargeable is due, is refused or returned, or if the addressee is dead or cannot be found. Section 12 provides for the manner of recovery of postage and other sums due in respect of postal articles, from the person, who refuses to pay the same. In the event of either the addressee or sender refuses to pay any amount, an application is made by an officer of the Post office authorised in this behalf by the written order of the Post Master General, to the jurisdictional Magistrate, where that person may for the time being be resident, who in-turn passes the order to recover the same from the person so refusing as if it were a fine imposed under this Act. Section 12 further says that the Post Master General may also direct any other postal article addressed to that person to be withheld from him, until the sum so due is paid or recovered as aforesaid.
That being the procedure laid down under the Act, the recovery proceedings initiated by the postal authorities against the sender without firstly approaching the addressee, who received the postal article, is certainly contrary to the procedure laid down under law. Under section 11(2), the sender is liable to pay the postage or sum due thereon, only under any of the contingencies contemplated under the same. Section 12 does not, as contended by the learned counsel for the respondents, provide for straight away initiating action against the sender. On the other hand, the same provides for the action to be taken first against the addressee who refuses to pay any postage or other sum due from him.
In this case, the postal authorities admittedly did not take any steps to collect the particulars of the addressee, either from the records available in the office or from the sender and to issue notice to them, who are large in number, to ascertain as to whether the addressee is likely to pay any amount or not. Without taking any such effort, the amount is straight away sought to be recovered from the sender/petitioner, that too, without any notice or without giving him any opportunity of personal hearing to him, for short collection of postage for the period from 14.7.2000 and 25.9.2001. The petitioner was first time issued notice during 2003 and further action was taken in 2006 and thereafter during 2009. As rightly pointed out by the learned counsel for the petitioner, as the petitioner was handicapped for want of any particulars regarding the addressee, at this length of time, he is unable to collect the amount from the addressee. Further, the petitioner was also not furnished with the details regarding as to how the amount is arrived at. Further as the amount of postage paid by him is as fixed by the postal department the petitioner cannot be found fault with for any short collection.
At this juncture, it is but relevant to point out that the portion of the report of the Investigating Team headed by the Assistant Superintendent of Post Office (outdoor) contained in the file proceeds to say that the short collection is due to failure on the part of the concerned officials of the postal department, who failed to point out the deficiency during the time of booking. The report further says that as the revenue leakage is caused due to lack of supervision on the part of the officials who failed to watch the destination and as it is not possible to recover huge amount from the officials, the short collection may be recovered from the sender, who is still doing the same business by using EPP service. The report also says that disciplinary action was recommended against the official at fault. That is how, the liability is fastened on the sender, without reference to the addressee. That being so, this Court finds greater force in the argument advanced on the side of the petitioner that had the postal authorities duly informed about exact amount of postage, the petitioner would then and there remit the same and no liability can be fastened on him, on the failure of the postal officials either to check the same at the time booking or to collect the same from the addressee at their residence.
The perusal of the records also reveals that a sum of Rs. 23,27,142/- is not the exact amount determined by the postal department on the basis of the available materials. The short collection is, as per the original report stated to be Rs. 23,20,012/- in the letter dated 11.8.2003. Whereas, what was sought to be recovered from the petitioner is Rs. 23,27,142/-. Though the file contains Annexure-I showing month wise short collection from 14.7.2000 to 25.9.2001, the materials based on which the same was ascertained, is not made available in the same. The learned counsel for the respondents is unable to explain the manner in which the leakage was ascertained and the materials based on which the amount is ascertained. In the absence of such particulars, the petitioner is unable to effectively defend his plea of denial of liability and the same is hence in violation of the principles of natural justice and vitiates the entire proceedings.
Even otherwise, the recovery of the amount representing the short collection of postage allegedly due from the petitioner cannot be suo motu recovered from the balance rebate amount due to the petitioner under the BSNL scheme. When section 12 lays down the procedure for collection of the amount due from the petitioner, the same cannot be given a go by and no short cut method can be adopted for recovery of the amount due from the petitioner by deducting the amount due to the petitioner. That way also, the mode adopted by the postal department is contrary to law and the impugned proceedings is hence liable to be set aside.
It may be true that the loss caused to the department is huge, however, that by itself will not justify the recovery proceedings initiated against the sender, for the discussions held above and the action so taken is, in my considered view, arbitrary, bad in law and is legally and factually unsustainable and is hence liable to be quashed.
In the result, the writ petition is allowed and the impugned proceedings of the fourth respondent dated 23.9.2009 stands quashed. The respondents are directed to pay a sum of Rs. 23,27,142/- to the petitioner within 8 weeks from the date of receipt of the copy of this order. No costs.