AGARWAL SALES CORP. vs JAGDISH PRASAD VYAS

THIS appeal inter alia, raises an interesting but difficult question whether an appeal lies under Sec. 15 of the Consumer Protection Act, 1986 ("The Act") against the imposition of penalty by the District Forum in exercise of its power under Sec. 27 of the Act.

THE material facts leading to this appeal are these: THE complainant-respondent filed a complaint under Sec. 12 of the Act against the opposite party-appellant before the District Forum, Tonk praying that the opposite party-appellant may be directed to replace the tyre purchased by him or refund its price Rs. 135/-. THE District Forum, Tonk by its order dated 25.5.91 directed the opposite party-appellant either to refund Rs. 135/- or replace the tyre within one month from the date of the order. A copy of the order was sent to the opposite party by registered post on 25.7.91 which was received by him. THE opposite party did not comply with the order. THE complainant submitted an application dated 30.8.91 before the District Forum, Tonk under Sec. 27 of the Act praying that the order dated 25.5.91 may be got complied with and penalty be imposed. A notice was issued to the opposite party to show cause as to why proceedings be not taken under Sec. 27 of the Act. THE notice was not received after service on 25.9.91 and so it was awaited. It was recorded in the proceedings dated 15.10.91 that A.D. has been received after service but the opposite party has not appeared. THE application was posted for orders on 25.10.91. THE District Forum vide the order under appeal came to the conclusion that the opposite-party-appellant had disobeyed its order deliberately and proceeded to impose the penalty of three months'' imprisonment against the appellant under Sec. 27 of the Act. A warrant of arrested was ordered to be sent to S.H.O. Malpura for sending him to Jail. Aggrieved by the said imposition of penalty this appeal purporting to be under Sec. 15 of the Act has been preferred. A notice was issued to the complainant respondent. He has sent a reply to the appeal dated 15.1.92 opposing it. It was inter alia submitted in the reply that appeal against the order dated 25.10.91 is not maintainable under Sec. 15 of the Act and that on merits the order imposing penalty is correct and justified. The issue of the very maintainability of the appeal has cropped up at the threshold. The penalty has been imposed and the question is whether this is within the wide-ranging ambit of Sec. 15 of the Act. The question had, therefore, to be examined on the larger scheme and language of the Act and on general principles.

The Act is a public welfare legislation. The purpose of the act is to secure supply of standard unadulterated and qualitative articles of consumption and service. A well set paramedical apparatus has been set up for the redressal of the grievances. The various provisions of the Act would be rendered otiose and the very purpose of the Act would be frustrated if the orders of the Redressal Forums are not enforced under the pa in of penalty. Certain strict liabilities are, therefore, imposed by a public welfare legislation persons which must be observed by them. These duties are made statutory liabilities of the persons, the breach whereof is made punishable in order to ensure strict enforcement thereof. The object of Sec. 27 of the Act is to provide sanction against the breach of duties on the person against whom complaints are made. Failure or omission to comply with an order of a Redressal Forum falls under the category of "administrative penal law" or "Public welfare offences." Friedmann in his book Law in a General Society has stated "on a balance of social interest the wide spread though by no means universal tendency of modern statutes to impose strict liability for violation of public welfare laws is, therefore, justifiable. Bearing this in mind the scheme for enforcement of the orders of the redressal agencies under the Act has to be viewed in a larger perspective. Sec. 25 and Sec. 27 of the Act are as follows: "25. Every order made by the District Forum, the State Commission of the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the Court within the local limits of those jurisdiction,- (a) in the case of an order against a company the registered office of the company is situated, or (b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated. and thereupon, the Court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution."

Where a trader or a person against whom a complaint is made fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission as the case may be, such trader or person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both: Provided that the District Forum, the State Commission or the National Commission as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount specified in this section."

IT is clear from the above two sections that they are directed towards the speedy enforcement of the orders passed by the redressal forums. Sec. 25 of the Act contemplates the enforcement of such orders by a civil process as if they were decrees or orders made by a Court of law. Sec. 27 of the Act provides a quasi-criminal sanction for the enforcement of the orders for enforcement by way of punishment with imprisonment or imposition of fine. Normally orders passed during execution proceedings are not appealable. Secs. 15, 19 and 23 of the Act deal with appeals under the Act. They are as follows: "15. Any person aggrieved by an order made by the District-Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed: Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period."

Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by Sub-clause (1) of Clause (a) of Section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed: Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period." "23. Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by Sub-clause (i) of Clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period."

For a proper interpretation, we may read Secs. 13 and 14 of the Act. Sec. 13 provides for the procedure on the receipt of a complaint by the District Forum. Sec. 14 relates to the findings of the District Forum in its final order after following the procedure prescribed. Thereafter Sec. 15 follows and lays down that any person aggrieved by an order made by the District Forum may prefer an appeal against it to the State Commission. Reference of Sec. 14 is implicit in the provision. Appeal is a substantive right and this right is conferred by Sec. 115. It is directed against an order made by the District Forum under Sec. 14 of the Act. It has also to be remembered that expression used in Sec. 15 is "an order" and "any order" or "every order". The words "an order" cannot be construed as "any order." This interpretation will lead to an absurdity. for in that case every order whether interim or allowing time or adjournment made by the District Forum would fall under Sec. 15 of the Act. It is firmly established that where two interpretations are possible the one which leads to absurd or mischievious results is to he avoided. The cannons of construction of statutes do not permit to take reasonableness or unreasonableness of the consequences of a particular interpretation as it is in substance a question of expediency for the legislature.

IT will be pertinent to examine Sec. 19 and Sec. 23 reproduced herein above. A right of appeal under Sec. 19 has been conferred to an aggrieved person against the order of the State Commission passed by it in exercise of its powers conferred by Sub-cl. (1) of C1. (a) of Sec. 17 to the National Commission. Any other order passed by the State Commission in exercise of its appellate and revisional jurisdiction is not appealable under Sec. 19. An order under Sec. 17(a)(i) is a substantive one which is passed in exercise of original jurisdiction on a complaint directly preferred before it. Sec. 19 is expressly confined to the appellate power against the exercise of jurisdiction by the State Commission under Sec. 17(a)(i) only. IT is thus clear that whenever the State Commission chooses to impose a penalty under Sec. 27, the order would not be appealable. Similarly appellate power of the Supreme Court under Sec. 23 is limited to the exercise of jurisdiction conferred by Sec. 21(a)(i) of the Act. Sec. 21(a)(i) deals with exclusively to original complaints instituted before the National Commission. IT is quite apparent that no other order of the National Commission is made appealable. IT, there- fore, follows that whenever the National Commission chooses to take action under Sec. 27 and imposes a penalty thereunder, the same cannot be assailed by filing an appeal before the Supreme Court. If that is so, it is not reasonable to interpret and construe that the same power when exercised under Sec. 27 by the District Forum would become appealable under Sec. 15 of the Act. Sec. 27 is specific inasmuch as the failure or omission to comply with any order made by the three redressal agencies under the Act becomes the subject of penalty thereunder. The three redressal agencies are on the same footing. How can the order passed under Sec. 27 of the Act by the District Forum become appealable when such orders when passed by the State Commission and National Commission are not appealable. IT is to be remembered that right of appeal is not a mere matter of procedure but is a substantive rights. The right is to be conferred by a statute. Chapter III of the Act deals with Consumer Disputes Redressal Agencies. The provisions of appeals to the State Commission, National Commission and Supreme Court are contained in it. The heading of Sec. 27 is "Penalties". IT is followed by Sec. 26 which deals with frivolous or vexatious complaints. Sec. 25 is with respect to the enforcement of the orders. A careful study of the scheme of the Act shows that Secs. 15,19 and 23 are confined to the appeals against orders passed on the original complaints. This strengthens our conclusion that no right of appeal has been conferred by the Act against an order of imposition of penalties, We are in agreement with the view taken in Kohinoor Carpets Panipat and Ors. v. Mr. Rajendra Arora [II (1991) CPJ 429]. IT is held that no appeal under Sec. 15 lies against the imposition of penalty by the District Forum in exercise of its power under Sec. 27 of the Act. Learned Counsel for the appellant had, however, urged that in the event of non-maintainability of the appeal, the proceedings of this appeal may be treated as revision in the alternative under Sec. 17(b) of the Act. Sec. 17(b) of the Act is as follows: "17. Subject to the other provisions of this Act, the State Commission shall have jurisdiction- (a) . . . . . (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."

The State Commission has the power to call for the records and pass any appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the state on fulfilment of the conditions mentioned therein. The revisional powers have been conferred in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. The State Commission possesses a general power of revision. It can at any stage of its own motion, if it so desires and certainty when illegality or irregularities resutling in injustice are brought to its notice, call for the records and examine them. The discretion in the exercise of revisional jurisdiction should be exercised within the four corners of C1. (b) of Sec. 17. Sec. 17(b) enables the State Commission to correct and when necessary certain clauses of error of jurisdiction committed by the District Forum and the object behind it is to provide the means to an aggrieved to obtain rectification of non-appealable order in exceptional cases.

ANY order that determines or adjudicates some rights or obligations on the parties in controversy would only be revisable.

THE proceedings commenced on the application of the complainant under Sec.27 of the Act after the adjudication of the consumer dispute as the opposite party appellant failed to comply with the order for refunding Rs. 135/- or replacing tyre. On the application after the decision of the consumer dispute order under appeal was passed. If the conditions mentioned in Sec. 17(b) are satisfied, order can be revised by the State Commission. As stated above the District Forum proceeded to impose penalty of three months'' simple imprisonment against the opposite party-appellant. It is not the case of the opposite party-appellant that the District Forum has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested. THE contention raised on behalf of the appellant is that it has exercised jurisdiction illegally or at any rate with material irregularity and so the State Commission should interfere with the order. It was strenuously urged that the District Forum has arbitrarily imposed the penalty of three months'' imprisonment against the appellant. We have given due consideration to this submission. It has been laid down by the Supreme Court that any arbitrary exercise of power by a judicial or quasi-judicial authority would be an improper exercise of jurisdiction vested in such authority by law. It may be recalled that by the order dated 25.5.91, the District Forum has directed the opposite party-appellant to replace the tyre purchased by the complainant-respondent or refund its price Rs. 135/- within one month from the date of the order. This order was not complied with. There was thus failure on the part of the opposite party- appellant to comply with the order of the District Forum, Tonk. As held above Sec. 27 of the Act is merely an administrative penal law or at the most public welfare offence. It is quasi-criminal in nature. In I (1992) CPJ 386, the State Consumer disputes Redressal Commission, Delhi has observed that proceedings under Sec. 27 of the Act are criminal in nature. No mens rea is necessary under Sec. 27 of the Act. We have not been able to persuade ourselves to agree in entirety with the observations made in the above case in para 5 of the report which are as under: "The proceedings under Sec. 27 of the Act are criminal in nature. If was the duty of the Forum to provide adequate opportunity to the appellant to defend himself. It is true that no procedure has been prescribed in the Act for trial of the cases under Sec. 27. However, the Forum could adopt any procedure to deal with the case provided it was fair and just for the appellant. It is well-settled that if a person is being tried for an offence, which prescribes a sentence of imprisonment or fine he should be given a reasonable opportunity to defend himself. He cannot be sentenced to undergo imprisonment or pay fine without affording such an opportunity. It is also well-settled that an accused cannot be convicted in-absentia. Therefore, it was the duty of the Forum to secure the presence of the appellant before an action could be taken against him. If his presence could not be secured by summons, it should have been secured by issuing bailable warrants. If after service of the warrants he absented himself non-bailable warrants could have been issued against him. In the present case the learned Forum did not do so. Thus it acted illegally in convicting and the sentencing the appellant. Consequently, the order of conviction is liable to be set-aside."

It is correct that the word punishable has been used in Sec. 27 of the Act but by this it is not necessary to infer that proceedings under it are criminal in nature. A person against whoman action is proposed to be taken under Sec. 27 has to be afforded a reasonable opportunity to defend himself. But such a person is not an accused who is being tried in a criminal case. He is merely a contemner who has not obeyed the order of a redressal forum under the Act and his position is analogous to that of a person who has committed civil contempt under the contempt of Court Act, 1971. In the case on hand the opposite party-appellant was afforded a reasonable opportunity to defend himself.

HOWEVER, the question is whether the sentence of three months'' imprisonment passed against the opposite party is just and proper of the facts and circumstances of the case. The order has now been complied with. The order passed was with regard to replacement of a tyre or to refund Rs. 135/-. The District Forum has exercised its power arbitrarily. We are of considered opinion that the order under appeal (revision) has to be modified. The appeal which has been treated as revision is partly allowed and the order dated 25.10.91 passed by the District Forum, Tonk in complaint Case No. 178/91 is modified. The penalty of fine of Rs. 2,000/- is imposed on the appellant Shikhar Chand Jain, Proprietor M/s. Aggarwal Sales Corporation, Malpura, District Tonk instead of three months imprisonment awarded by the District Forum, Tonk. Shri Shikhar Chand Jain states that he deposited Rs. 2,000/- with the District Forum, Tonk in pursuance of the interim order dated 31.10.91 passed by the State Commission. The deposited amount will be taken as payment of fine. He need not appear before the District Forum, Tonk or the State Commission in connection with this case. His undertaking is discharged. Revision partly allowed.