UNION OF INDIA vs RAMESH KUMAR

THESE are the Revision Petitions arising out of the common order dated March 9, 1994 passed in First Appeal Nos. 29,30,32,33,39,45,46,47,48 and 49 of 1994 by the State Consumer Disputes Redressal Commission, Punjab, by which all those appeals were dismissed on the ground that those were barred by time. Feeling aggrieved against that order, the Union of India has filed these Revision Petitions.

ALL those appeals before the State Commission arose out of the Orders dated November 10,1993 passed by the District Forum, Faridkot in the various complaints. From the order of the State Commission, it is not clear on which date the appeals were presented before it. However, according to it, the appeals were filed after 63 days of the expiry of the prescribed time of 30 days under Section 15 of the Consumer Protection Act, 1986 and as such those were barred by time. It was further remarked by it that the Punjab Consumer Protection Rules, 1987 vide Sub-rule (4) of Rule 8 in express term provides that whenever a memorandum of appeal is preferred beyond the prescribed time, the same must be accompanied by an application for condonation of delay showing sufficient cause for the delay and should also be supported by an affidavit there for. As no such application has been preferred, the question of condonation of delay did not arise and hence there was no option but to hold that the appeals must fail on the bar of limitation. The learned Counsel appearing for the Revision Petitioners pointed out that though the order of the District Forum was passed on 10th November, 1993 but the copy of the orders were not supplied in the various complaints till 21st January, 1994 despite personal visits and oral requests and written requests dated 30th November, 1993 and thus the appeals could not be filed before 10th February, 1994. According to the Counsel for the Revision Petitioner there was no delay in filing the appeals and moreover the oral requests for condonation of delay or to grant time for making applications for condonation of delay made before the State Commission should not have been turned down.

AFTER going through the records of the case and hearing the learned Counsel for the Revision Petitioners we are of the opinion that in the present case the State Commission has acted with material illegality while dismissing the various appeals without ascertaining if there had been any delay in filing the appeal after the order of the District Forum had been communicated to the Department. Under the Rules framed under the Consumer Protection Rules by the various State Governments, it has been made incumbent that the order of the Forum constituted under the Act should be communicated to the parties free of charge. This Commission has consistently held in various cases that the time spent for obtaining the copy of the order should be excluded while computing the period of limitation of 30 days prescribed under the Act for filing the appeal. Thus the time for filing the appeal will run only from the date on which the order is communicated to the party. The aggrieved party can file an appeal within 30 days from the date of such communication. In the present case the orders of the District Forum show that those were attested on 21st January, 1994 and according to the Revision Petitioners the appeals were filed on 10th February, 1994. Thus there was no delay in filing the appeals before the State Commission as those were filed within 30 days of the communication of the orders by the District Forum. Hence the State Commission, in the present case, was not justified in dismissing the appeals on the ground of limitation.

FURTHER , the State Commission has also relied on Sub-rule (4) of Rule 8 of the Punjab Consumer Protection Rules, 1987 which provides that when an appeal is presented after expiry of the period of limitation as specified thereunder, the memorandum shall be accompanied by an application supported by an affidavit setting form the fact on which the appellant relies to satisfy the State Commission that he has sufficient cause for not preferring the appeal within the period of limitation. According to the State Commission, that provision is mandatory and as there was no application supported by an affidavit alongwith the appeal memorandum for condonation of delay, the delay could not be condoned. It is well settled that Rules are hand made for doing justice. In the present case, the Petitioners'' contention is that a request was made for filing such an application but the request was not granted. Inadvertently when any memorandum of appeal is not supported by an affidavit for condonation of delay, the Forum has powers to permit the party to file such an application supported by an affidavit at a later stage. Thus, on the grounds mentioned above, the orders of the State Commission cannot be upheld. However, instead of remanding the various appeals to the State Commission for fresh disposal on merits, we dispose of these Revision Petitions on merits. By remanding the cases the parties will be put to unnecessary expenses.

ALL these Respondents in these Revision Petitions are running STD / PCO under an agreement of franchise from the Telecom Department. These respondents at the time of grant of franchise had deposited some amounts as security. Later on the Telecom Department asked for additional security. These Respondents in their complaints filed before the District Forum had challenged this demand of additional amount of security. Counsel appearing the Revision Petitioners argued that in the light of the agreement entered into between the parties there is a provision under which the franchise holder had undertaken to pay the additional security whenever raised by the Department of Telecommunications. Reference was made to the copy of the agreement appended to Revision Petition No. 299 of 1994 and it was urged on behalf of the petitioners that similar agreements were executed by the franchise hold in other case also. However, we feel that the precise terms of agreement between the Telecom Department and the franchise holders are not relevant for the purpose of the disposal of these Revision Petitions because in the view of this Commission franchise holder is not a consumer. In this respect reference can be made to the General Manager, Madras Telephones & Ors. v. R. Kannan, (Revision Petition No. 262 of 1993 decided on 22.10.93, 1 (1994) CPJ 14 (NC) where it is held that: "A franchise holder is only a licencee of the grantor of the franchise for operating in this case the STD/PCO and collecting the call charges on behalf of the franchiser. It is the franchise holder who is rendering service to the granter of the franchise inasmuch as he runs and maintains STD/PCO relieving the Telecom Department of the responsibility for providing and maintaining Public Call Offices. The franchise holder performs two functions; (a) establishes and runs a Public Call Officer; and (b) collects the call charges on behalf of the department. For rendering these services the franchiser, the franchise holder, gets a commission. The mere fact that the franchise holder has been described as the hirer of the PCO does not make him a person who renders service to the Revision Petitioner, Telecom Deptt. Consequently, the fact that he has been described as hirer in the agreement would not mean that he is rendering a service to the Telecom Department for consideration. A franchise holder renders service to those who use the Public Call Office which is performed by the Telecom Department directly wherever there is no franchiser to manage a Public Call Office. Consequently, it is erroneous to hold in this case that the franchise holder, who is maintaining and running a STD/PCO Office, is a consumer vis-a-vis the Revision Petitioner, Telecom Deptt." In the light of the above view of this Commission, the franchise holder who is maintaining and running a STD/PCO is not a consumer as defined in the Consumer Protection Act and hence is not entitled to maintain the complaint under the Act.

THE State Commission in the exercise of its revisional jurisdiction ought to have revised the order of the District Forum as there was no consumer dispute between the parties and thus, the order of the District Forum was without jurisdiction. For the reasons given above, we accept these Revision Petitions and set aside the orders passed by the State Commission and the District Forum and dismiss the various complaints filed by the respective respondents in the District Forum. However, we make no order as to costs.