UNION OF INDIA vs CHAIRMAN, MADRAS PROVINCIAL CONSUMER ASSOCIATION

THIS Revision Petition has been preferred by the Union of India represented by the General Manager, Southern Railway, Madras against an order passed by the State Commission, Madras whereby in modification of the order of the District Forum appealed against before it, the State Commission has issued a direction that "the Railways will see that there is availability of drinking water in suitable containers in every compartment of the train, instead of supplying water in satchels alongwith curd rice as directed by the District Forum." Subject only to this modification, the appeal filed by the Railway was dismissed on the order passed by the District Forum was confirmed.

THE complaint before the District Forum was filed by a Consumer Organisation by name, Madras Provincial Consumers" Association. The grievance put forward in the complaint was that while the Southern Railway through its Catering Department serves three types of lunch to passengers namely, vegetarian meal, non-vegetarian meal and curd bhath, it discriminates against passengers ordering only curd bhath by not supplying to them drinking water alongwith the curd bhath whereas those who order vegetarian meal and non-vegetarian meal are served drinking water in polythene satchets. The relief prayed for in the petition was that the Railway Administration should be ordered to supply drinking water in polythene satchets alongwith curd bhath also at par with the treatment given to those who are served vegetarian meal/non-vegetarian meal. The District Forum by its order dated December 19, 1990 held that the sale of curd bhath without supply of drinking water in polythene satchets amounts to supply of "defective goods" within the meaning of Consumer Protection Act, 1986 (hereinafter called the ''Act''). On this view, it issued a direction to the Southern Railway to supply drinking water in 500 ml. satchets to passengers purchasing economy meal namely curd bhath in running trains from 1.1.1991 onwards. After issuing the said direction it incorporated a further paragraph in the order which runs as follows: "In default of compliance of the above orders we punish and sentence Mr. R. Narasimhan, the General Manager, Southern Railway, Madras-600 003 to one year simple imprisonment under Section 27 of the Consumer Protection Act, 1986".

THE Railway Administration challenged not merely the legality of the direction issued for the supply of drinking water in satchets to passengers purchasing curd bhath but a specific challenge was also raised against the legality and propriety of the procedure adopted by the District Forum in proceeding to punish and sentence in advance the General Manager, Southern Railway by name to one year simple imprisonment in purported exercise of the powers conferred by Section 27 of the Act without affording him any opportunity to show cause against it.

UNFORTUNATELY , the State Commission completely overlooked the second point raised in the appeal and has dealt with only the question as to whether drinking water should be supplied in satchets. Accordingly it disposed of the appeal by merely modifying the directions issued by the District Forum without making any advertence to the legality, propriety and correctness of the action of the District Forum in imposing an advance sentence of punishment on the General Manager, Southern Railway without even observing the principles of natural justice. The reliefs that can be legally granted under the Act are only those enumerated in Clauses (a) to (d) of Sub-section (1) of Section 14 of the Act. In the event of the Redressal Forum coming to a conclusion that the goods supplied to a consumer suffered from any ''defects'' it can only direct the Opposite Party under Clauses (a) and (b) of Section 14(1) to remove the defect from the goods or to replace the goods with new goods of similar description which are free from any defect.

WE are wholly unable to appreciate the reasoning given by the District Forum in support of the conclusion recorded by it that "the sale of curd bhath without water in satchet are defective goods sold by the railways to its passengers/consumers in running trains". Curd bhath is sold as a distinct item of food. It cannot be regarded as defective unless there is any fault, imperfection or shortcoming in its quality, potency, purity or standard which is required to be maintained by or under any law or as is claimed by the trader. On application of this test it is manifest that the aforesaid conclusion recorded by the District Forum is erroneous and unsustainable. It is only on the basis of the said faulty finding that the District Forum proceeded to issue a direction to the Railway Administration to supply water in 500 ml. satchets alongwith the economy meal, namely curd bhath, with effect from 1.1.1991.

BEFORE the State Commission, the complainant who was the respondent is seen to have submitted that it is not necessary to supply the water in satchets as it would push up the price and it was enough if water is provided in every second class and first class compartment in well maintained containers. Thus the only relief prayed for in the complaint petition was virtually not pressed by the complainant at the stage of appeal since it was apparently realised that insistence on supply of drinking water in satchets would necessarily lead to an increase in the sale price of curd bhath. It is seen from the record that shortly after the impugned order was passed by the District Forum, the Southern Railway issued an order dated January 7, 1991 introducing the supply of ozanised water in 250 ml. satchets alongwith "economy meal" and revising the tarrif for curd bhath from the existing price of Rs. 5/- to Rs. 5.50/-. Thus the Railway had fully given effect to the direction given by the District Forum. This fact does not seem to have been noticed by the State Commission while disposing of the appeal under the impugned order.

THE District Forum has recorded a finding that water is the most essential part of food whether it is curd bhath or casserole meal and the sale of curd bhath without water in satchet is ''defective goods'' sold by the Railways to its passengers/ consumers in running trains. Non-supply of certain goods for which no consideration has been paid or promised to be paid cannot lead to the goods not supplied, however, essential they might be from the point of view of the consumers, being defective in accordance with the provisions of the Consumer Protection Act. If no water was supplied with the curd bhath and the consideration charged was for the curd bhath exclusively without water, non-supply of water with curd bhath cannot render the goods (curd bhath) as defective under the provisions of the Consumer Protection Act. We, however, do not find it expedient to set aside this order of the District Forum as it has already been implemented.

REACTING to the submission made before the State Commission by the complainant (respondent) that instead of supplying water in satchels, it was enough if water is provided in every second class or first class compartment in well maintained containers, the Counsel appearing for the Railway is stated to have assured the State Commission that the Railways will see that there is drinking water facility in every compartment at all times. It was apparently on the basis of the said submission made by the Counsel appearing for the Railways that the State Commission proceeded to issue a direction that "the Railways will see that there is availability of drinking water in suitable containers in every compartment of the train instead of supplying water in satchets alongwith curd bhath as directed by the District Forum/'' In our opinion, the issuance of such a direction by the State Commission was not warranted under any of the Clauses (a) to (d) of Section 14(1) of the Act. All that the State Commission could legitimately have done in the circumstances of the case was to record the assurance given by the Counsel appearing for the Railways and let matters rest there. As noticed already, the prayer in the complaint petition was only for a direction for the supply of drinking water in satchets to passengers going in for the ''economy meal''. Rightly or wrongly this prayer had been granted by the District Forum, and the directions issued by the District Forum had been already implemented by the Railway Administration. A modification of the said direction issued by the District Forum at the instance of the complainant while disposing of the appeal filed by the Railway Administration was clearly illegal and without jurisdiction. We have to express our strong disapproval of the procedure adopted by the District Forum in proceeding to pass an order of punishment and sentence of imprisonment on the General Manager, Southern Railway, Madras, mentioning him by name, even at the stage of grant of relief on the complaint petition. The question of punishment or sentence can arise only when there has been a disobedience of an order already passed by the Forum or non-compliance with an order passed by the concerned Forum within the time limit specified by it or within a reasonable time. It is not open to a Redressal Forum constituted under the Act to anticipate that such a disobedience will take place and pass in advance an order of punishment and imposition of a sentence of imprisonment on the Opposite Party even while disposing of the main complaint. At the most what can be said in propriety with the main order disposing of the complaint petition is that in case the order is not complied with within the time stipulated therein, action under Section 27 of the Act will be initiated.

IF action is to be taken under Section 27 of the Act natural justice requires that the person sought to be proceeded against should be issued a notice and his explanation should be heard before any conclusion is reached that an order of punishment and imposition of any sentence is called for. Without observing this procedure it was totally improper on the part of the District Forum to specify a high rankirig official by his name (a wholly uncalled for step) and pass a sentence of imprisonment against him stating that such sentence should become operative in default of compliance with the direction contained in the very order. The District Forum had acted with manifest illegality and impropriety and wholly without jurisdiction in incorporating in its order dated December 19, 1990 the paragraph stating that in default of the compliance of the said order, the Forum punishes and sentence Mr. R. Narasimhan, General Manager, Southern Railway, Madras to one year simple imprisonment under Section 27 of the Act.

IT is unfortunate that despite the specific challenge that part of the order in the appeal filed before the State Commission this important aspect having a vital bearing on both procedure and jurisdiction escaped the notice of the State Commission and the appeal was disposed of by it without making any advertence to this aspect. In so omitting to consider the material point arising in the case, the State Commission failed to exercise the jurisdiction vested in law and also acted with material irregularity in relation to the disposal of the appeal. In the result, the impugned direction issued by the State Com Mission will stand set aside but in its place there will be an order recording the aforesaid assurance given to the State Commission by the Counsel who appeared before it on behalf of the Railways.

THE order of the District Forum in so far as it proceeded to impose punishment and sentence on the General Manager of Southern Railway in purported to exercise of the powers conferred under Section 27 of the Act even at the stage of disposal of main complaint petition will also stand set aside.

THE Revision Petition is allowed to the extent indicated above. There will be no order as to costs.