K. NEELAMBARAN vs POST MASTER, URUKUNNU

THE complainant had applied for the post of a driver in the Housing Board. He appeared for the Selection examination (written) held by the Kerala Public Service Commission (PSC for short) in that regard on 18.6.1988 and according to him passed the examination with a fairly high rank. His admission ticket number was 392. THE practical examination for the post was held in September 1989 but he did not receive the relative memo from the P.S.C. His original address was Pumala Kunnil house, Urukunnu but subsequently (in November, 1989) he shifted his residence to Usha Bhavan, Anchal. At that time he requested the 2nd opposite party the local Postal Mistress that letters received to his address be served on his sister (Omana PW2) at her house in the same village. (Her address was also given to the postal Mistress).

AS he did not receive the memo he made enquiries when the 2nd opposite party denied receipt of the memo at the post office. But the postman the 3rd opposite party told him that the memo had been returned to the P.S.C. as the date of the examination was over. On being questioned about the source of his knowledge of the contents of the memo, the postman replied that he had torn the memo to pieces and that he (the complainant) might file a case. Getting suspicious the complainant searched the waste paper dump near the post office and recorded some parts of the torn memo cover sent by the P.S.C. in which his number 392 was clearly printed and the words "Left Station Redirected" were written, indicating that the cover contained the memo.

Subsequently the 3rd opposite party sent him a letter on 12.10.1989 admitting these facts and requesting him not to file any complaint.

THE complainant thereafter sent a petition to the Post Master General, Thiruvananthapuram on 25.10.1989. To this he was given a reply that the matter was under enquiry. Later on the Assistant Post Master General sent him a reply dated 22.5.1990 which confirmed his suspicions. He filed several petitions before the P.S.C. asking for a chance for interview but they were rejected.

THE complainant alleges that he would have got the job but for the loss of the memo and being only 29 years old he could have continued in the job for 25 years. He had also lost the chance to apply for a new job. He claims a compensation of Rs. 2 1/2 lakhs under the following heads -1 lakh for loss of earnings for 25 years due to the loss of the job (at the rate of Rs. 600/- a month) Rs. 500/- for expenses, Rs. 50,000/- as pensionary benefits and Rs. 19, 500/- as compensation for pain and suffering. The first opposite party Post Master General, Thiruvananthapuram-representing the Union of India in his version has said: The petition filed by the complainant in his office was enquired into through the Inspector of Post Office. The complainant was not residing at Urukunnu then or when the memo was said to have been received at the Urukunnu Post Office. He had lived in Pumala Kunnil House but had left it some 4 years back. While leaving the place he had given no instructions to any one in the post office for the redirection of letters addressed to him. Nor had he given instructions authorising any other person to receive his mails. As no record is kept for the disposal of unregistered articles it was not known whether any letter addressed to the complainant were received after he had left the place and if received how they were disposed of. The Pumala Kunnil house was being served by one Salaludeen, an Extra Departmental Delivery Agent (EDDA for short). Salaludeen was on leave from 1.9.1989 to 19.10.1989. Acting under the rules Salaludeen nominated the 3rd opposite party to officiate in his place during this period. In the course of the Departmental enquiry the 3rd opposite party admitted that one cover was received at the Post Office during the period and on enquiry it was learnt that the addressee had left the place. He therefore, recorded the remark, "addressee left station". The letter with this remark was to have been returned to the Post Office for being forwarded to the sender, but neither the 2nd nor the 3rd opposite party know anything about the disposal of the letter. According to them they had not destroyed the letter. As the complainant says that he was in possession of portions of the cover, it has to be inferred that the cover might not have been duly returned. Since the conduct of the 3rd opposite party was suspicious strict instructions were issued not to engage him further in any capacity. The complainant was not entitled to get the letter from the Urukunnu Post Office as he had left without instructions and even if he had given any instructions for the redirection letters, such instructions would be valid only for three months. The complainant had left the place about four years back. For nonreceipt of the letter the postal department was not liable; it was due to the complainant''s own failure to leave correct and valid instructions or to furnish correct address at the P.S.C. Complainant is not entitled to any damages. Further the Government is exempted from liability under Sec. 6 of the Post Office Act. The 2nd opposite party''s version can be summarised as follows: She does not know the complainant nor had he written to her or told her about the change of residence. He had not also told her about the non receipt of the memo from the P.S.C. The story attributed to 3rd opposite party about the destruction of the memo is false and it has been cooked up by the complainant and the 3rd opposite party who are friends. The 3rd opposite party was only a substitute and did not know his duties and responsibilities properly. The letter alleged to have been sent by the 3rd opposite party was not genuine; it bears all the marks of unreality. The story of the recovery of the torn pieces of a cover from the waste paper dump is absolutely false. There was no such dump at the post office. Apart from other things the torn cover bore only a stamp worth 50 paise, at the relevant period stamps worth 60 ps had to be affixed. The cover does not also bear the seal of Urukunnu Post Office, thus disproving all connections with the post office. The cover does not also contain the name and address of the complainant Even the cover is thus a fabricated one. The complaint is the result of a collusion between the complainant and the 3rd opposite party. As for herself she has done nothing as alleged in the complaint and she is not liable for any compensation. The compensation claimed is also unreal and imaginary and none of the heads of the claim is allowable.

WE might also note briefly the version of opposite party No. 3, although he did not appear at the hearings or take any part in the proceedings. He admits that he had worked as EDDA at the post office for about 3 1/2 months but contents that the complainant had gone away from Urukunnu 10 to 15 years back. He does not know whether the complainant had made any representations to the 2nd opposite party about his letters or whether he is related to K. Omana. He was not working as EDDA on 18.6.1989 but only from 29.6.1988 till 19.10.1988. He is not aware whether the complainant had passed any examination conducted by the P.S.C. as alleged. However he has a recollection that an envelope sent by the P.S.C. had reached the Post Office and that inspite of repeated attempts he could not serve it as the addressee had left Urukunnu years before. So he endorsed that fact on the cover and returned it to the 2nd opposite party. Subsequently he came to know that there was an altercation between the complainant and the 2nd opposite party. The 3rd opposite party was not aware of the contents of any memo nor did he tell the complainant that the date of the examination was already over; nor did he tear out any letter or memo or ask the complainant to go and file a case. The post office is adjacent to the residence of the 2nd opposite party but it is utter falsehood to say that the complainant recovered a torn out memo addressed to him. After the quarrel with the 2nd opposite party the complainant requested him to serve the letters. Believing that the complainant had lost a chance to get a job he developed some sympathy for him. Subsequently an envelope addressed to the complainant reached the post office and on the complainant''s request it was served on K. Omana. After some days the complainant asked him to redirect his letters to an address at Pattashi which he gave. Subsequently an intimation addressed to the complainant was received at the Post Office and this was redirected to the said address with a letter dated 12.10.1989. The complainant has misinterpreted the letter. He (the 3rd opposite party) was not liable to pay any compensation and the damages claimed were baseless, remote and unreal.

PARTIES have led oral and documentary evidence. The complainant examined himself as PW1, his sister Omana as PW2 and the Secretary of the P.S.C. as PW3. On behalf of the 1st opposite party the Assistant Post Master General (complaints) Thiruvananthapuram gave evidence as PW1. The second opposite party examined herself as PW2. The 3rd opposite party did not enter the witness box and none sought his examination. The documentary evidence consists of Exts C1 to C15 for the complainant.

On the question whether the complainant appeared for the P.S.C. examination and passed it the evidence in all in his favour. As PW1 the complainant has sworn that the written examination was on 18.6.1988, that his admission number was 392, that he passed the examination and that his rank was 20. To the same effect is the testimony of PW3, the Secretary of the P.S.C. He does not know the complainant and his evidence is based on the register Ext. C14. He has said that Neelambaran whose admission number was 392 passed the drivers'' test held on 18.6.1988 and became qualified for the practical test and thai his rank number was 20.

THE next question and the more important question is, whether any memo was issued by the P.S.C. to the complainant to appear for the practical test. PW3 swears that after the written test memos would be issued to the successful candidates for the practical test, that the fact would be published in the office of the PSC and the District Offices and also in news papers. None of these records has been produced nor sought to be produced to prove that memo had been issued to the complainant. While it has been elicited from PW3 that the candidate with number 392 (Neelambaran) was absent at the interview which was on 26.8.1989 and that there is a list in the office showing the candidates summoned for the interview, that list too has not been brought into the evidence. THE register Ext. C 14 only proves his appearance and possibly his success at the written examination but does not prove that any memo was issued to the complainant. It is not clear why the best evidence like the dispatch register that would have proved this basic fact was not summoned although pieces of paper which are stated to be remnants of the envelope in which the memo is said to have been sent have been proved, inspite of the fact that they do not prove that the envelope contained the memo. Counsel for the complainant however sought to invoke support to fill this gap from certain other circumstances. The most important of them was Ext. C7, a letter dated 12.10.1989 alleged to be written by the 3rd opposite party to the complainant telling him inter alia, that he was sorry for depriving him of a chance and that if he sent any complaint he (the 3rd opposite party) who was only officiating as postman during the period would be subjected to an enquiry. He however told the complainant that he might do as he deemed fit. Counsel wanted to draw from this letter an inference that it contained an implied reference to the memo and to its loss or destruction. This is too far-fetched an argument for there is utterly no reference in the letter to any memo or communication. What is more important there is no proof that the letter was written by the 3rd opposite party. It is also not clear why he should write such a letter long after the alleged event. What is more significant is that it does not contain the 3rd opposite party''s signature. The envelope of the letter is also not in evidence. The 3rd opposite party officiated as EDDA for a short period and there is no definite evidence when exactly the memo reached the post office or whether it was during the period when the 3rd opposite party was acting as EDDA.

COUNSEL for the complainant sought particular support from the letter Ext. C II dated 22.5.1990 from the Assistant Post Master General (PW 1) in reply to the complainant''s petition dated 25.10.1989. The letter states, inter alia, that the memo received at the post office could not be delivered to him as he had already left his address (Pumalakunnil Veedu) that it could not be redirected to his revised address at Pattazhi as he had not given any instructions in that regard and that it was regretted that the memo was also not duly returned to the sender. COUNSEL argued that this letter makes specific reference to the memo and to the fact that it had not been delivered to the complainant. The probative value of these references disappears when it is remembered that the enquiry officer - the Postal Inspector and Postal Superintendent Pathanamthitta - had themselves not seen the memo. It also lends no support to the theory that it was destroyed and disproves the complainant''s version that he had left instructions about the redirection of his mail. In any case the letter Ext. C 11 does not prove the complainants'' case about the destruction of the memo. It is also difficult to believe that the Post Mistress PW2 who has been working in that post office for several years and the 3rd opposite party-a neighbour of PW2 would conspire and jointly destroy a memo addressed to the complainant. No motive whatever has been attributed to them in the complaint and nothing whatever has been suggested to PW2. The 3rd opposite party did not care to examine himself; the complainant could and should have examined him and if necessary cross examined him on the memo and the letter Ext. C7. The complainant himself does not speak to any motive for opposite party number 2 or 3. The complainant has a case that he had instructed the 2nd opposite party to deliver the articles addressed to him, to his sister (PW2) when he left the locality and settled at Anchal. The 2nd opposite party denies that she had been so instructed. Ext. C11 also shows that there were no such instructions. The complainant has nothing to support his claim. Further his evidence is that he left Pumala Kunnil House towards the end of 1987. Even if he had given any instruction at that time as he alleges it would be valid and operative only for a period of 3 months unless renewed with in that time. There is no renewal pleaded or proved. The P.S.C. examination was on 18.6.1988 and the relative memo for the interview would have come only months later long after the instruction to the 2nd opposite party had lapsed or ceased to be operative. There was thus no valid or live direction to entrust the letter to PW2 or to forward it to any other address at the relevant time. No dereliction in that regard can be attributed to the postal department.

IT now remains to deal with the claim of immunity raised by the 1st opposite party on the basis of S. 6 Post Office Act. That Section which is headed "Exemption from liability for loss, misdelivery, delay or damage" provides, so far as material that "The Government shall not incur any liability by reason of the loss, misdelivery or delay of or damage to any postal article in course of transmission by post", except in so far as such liability is expressly undertaken by the Central Government 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 wilful act or default". IT is obvious that the liability of the Government stems from the Act and its rules. IT is not the complainant''s case that the Government has expressly undertaken any liability to attract the first part of Section 6. The only other possible ground on which liability can be fastened on defendant 2 or 3 and thereby on the Government is that the loss or misdelivery or default was caused fraudulently or wilfully. As pointed out in the recent case, Union Bank of India v. Union of India, 1990 (2) KLT 508 "Under the second part of S. 6, the Postal Department or its employees also cannot be held liable on account of the immunity for action which are not fraudulent or by wilful act or default. The Government or the Postal Department can incur statutory liability only under special circumstances, provided, otherwise the working of the postal department itself will become impossible. The restrictions are imposed by way of public policy. Fraud or wilful act or default, which forms exception to the immunity under Sec. 6, are matters to be specifically alleged with sufficient details and proved, if denied." By this test, there is neither specific pleading on these grounds nor evidence in the case. At best the evidence and circumstances emphasised by Counsel for the complainant raise a doubt or case a veil of suspicion but doubt or suspicion is no ground to upset the statutory immunity conferred on the Government. That immunity has been granted for reasons of public policy and a Court or Tribunal must be cautions to breach that immunity except where the grounds are well established. We are not satisfied on the pleadings and the materials on record that there is reason enough to hold that the Government is liable for the loss or destruction of the memo.

IN view of this conclusion it is unnecessary to investigate and adjudicate upon the compensation claimed by the complaint under various heads. We dismiss the complaint but in the circumstances without costs. Complaint dismissed.