CHIEF POST MASTER GENERAL vs Chandni Kr. Rani Garai

ABOVE noted revision petitions have been filed by petitioners/OPs challenging order dated 28.5.2012, passed by State Consumer Disputes Redressal Commission, Kolkata (for short, ''State Commission '').

BRIEF facts are that respondents/complainants invested certain amounts under Monthly Income Scheme of the Post Office for six years. After maturity, they visited concerned Post Office and as per instructions completed the formalities for withdrawing the maturity amount and deposited their pass-books of the MIS Account with withdrawal slip duly signed with the Post Master. Respondents were asked to receive the cheque after few days. Thereafter, they visited numerous times to the Post Master and asked him to take steps for early payment of their maturity amount but in vain. Then respondents approached Assistant Director of Postal Service but they did not get any satisfactory reply. Accordingly, respondents filed complaints under Section 12 of the Consumer Protection Act, 1986 (for short, ''Act '') alleging deficiency in service against petitioners/OPs. Petitioners in its written statement denied any deficiency of service. It is stated that in the present cases payments were made in the cash in violation of the order and rules of the Postal Department. As such departmental proceedings have been started against the erring officials. Since, payment has already been made and account was closed on 19.12.2008, petitioners were not liable to make any further payment.

DISTRICT Forum, vide its order dated 15.12.2010, allowed the complaints of the petitioners.

AGGRIEVED by the order of District Forum, petitioners filed appeals before the State Commission. Along with appeals, applications seeking condonation of delay of 161 days were also filed. State Commission, vide impugned order dismissed the applications for condonation of delay. Consequently, appeals of the petitioners were dismissed being barred by limitation.

HENCE , these revision petitions.

IT is contended by learned Counsel for the petitioner that petitioner is a Govt. Department and file has to be moved from one place to another for taking decision. Therefore, delay in filing the appeals before the State Commission was inevitable. State Commission ought to have taken liberal and lenient approach in the matter. The delay in filing the appeal before the State Commission was only due to the fact that matter has to be dealt with at different level and there was no intention to delay the matter. The impugned order is liable to be set aside, since entire payment has been made to the complainants. On the other hand, it has been contended by learned Counsel for the respondents that there is no illegality or infirmity in the impugned order passed by the State Commission. Admittedly, there was long delay of more than five months in filing the appeals. Moreover, no sufficient cause has been shown by the petitioner for not filing the appeals within the period of limitation.

STATE Commission in its impugned order has observed: "We have perused the petition for condonation of delay and oral objection thereto and heard arguments advanced by the learned Counsel for the parties. It is seen by that the learned Forum below has passed the impugned on 14.9.2011 in the case No. 436 of//2010, application was made for the certified copy of the said judgment by the Appellants on 15.9.2011 and on the same date the certified copy was delivered to the Appellants and the present appeal was filed on 29.3.2012 before this Commission. Hence there is delay of 196 days in preferring this appeal from the date of passing the judgment by the learned Forum below. Out of the aforementioned days the Appellants are entitled to get the benefit of the statutory period of limitation i.e. 30 days and one day for collection of the certified copy of the impugned judgment. Hence the Appellants are under obligation to give explanation for 165 days towards actual delay excluding the statutory period of limitation. It is pertinent to mention that the Appellants are not liable to give explanation for the statutory period of limitation. It is true that the Appellants being a Department of the Central Government cannot take any decision in respect of filing an appeal or revision as per its own choice and will and the Appellants are under obligation to take approval from the Higher Authorities for preferring an appeal and moreover in this respect permission of the Ministry of Law and Justice is also mandatory. It is also well settled that for getting such approval from the Higher Authority several formalities should be complied with and for this purpose admittedly consumption of some time is necessary. But it is also true that in respect of explaining delay sufficient and cogent explanation should be made. In the instant petition though after obtaining the certified copy of the impugned judgment the same was forwarded to the Department concerned and thereafter the same was provided for seeking legal opinion in respect of preferring an appeal on 19.9.2011, but the meeting was held by and between the Senior Superintendent of Post Offices, Central Kolkata Division and the PMG, Kolkata Region on 3.11.2011. We have noticed that there is no explanation in the petition for condonation of delay from 19.9.2011 to 3.11.2011. Though the Post Office is a Government Department and some time is necessary for file pushing from one table to another table, but there should an explanation in the delay condonation petition. We have noticed that by issuing a letter dated 3.11.2011 approval was given by the Higher Authority for preferring an appeal. It is seen by us that the letter of approval was received by the Senior Superintendent of Post Offices, Central Kolkata Division on 8.11.2011 but abovementioned person addressed a letter to the Deputy Legal Adviser, MOL on 21.11.2011 requesting for engagement a Government Counsel for preferring this appeal. In this respect why 13 days were taken only for the purpose of issuing a letter by the SSPs, the reason has not been assigned. In the paragraph Nos. 7, 9, 10, 11 and 12 though explanations have been made out, but in support of such explanation no evidence has been adduced. As the Appellant is a Government concern without any minutes or resolution no decision can be taken. Though in the above-mentioned paragraphs the Appellants have mentioned that on 18.1.2012 and 22.2.2012 two meetings were held, but no documentary evidence has been filed in this context by the Appellants. Lastly we have noticed that from 14.3.2012, when the papers and documents were handed over to the Government Counsel till filing of this appeal i.e. 29.3.2012 there is no explanation in the instant petition. The learned Advocate for the Appellants has relied on the judgment passed by the Hon ''ble Supreme Court in the case between State of Haryana v. Chandra Mani and Others, reported in AIR 1996 SC 1623, wherein it has been held that when the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. We have perused the judgment relied on by the Appellants. Within the four corners of the judgment we are unable to find out that the Hon ''ble Court has held that in respect of delay, explanation is not necessary. We have noticed that the Hon ''ble Supreme Court has held in the said judgment that where the State is an Applicant-Appellant in that respect delay in filing an appeal or revision is not unnatural as in a very slow pace the file is processed from one table to another and for this reason some delay may occur. But nowhere it is mentioned that explanation for delay is not necessary. In the instant case we have noticed that the Appellants did not give any explanation for about 68 days towards delay. Furthermore, though in several paragraphs some explanations are given, but no evidence has been adduced in support of such averment. We have noticed that request was made by the SSPs, Central Kolkata Division to the Deputy Legal Adviser for engage of a Government Counsel in connection with this appeal on 21.11.2011, but the papers and documents were handed over by the Department concerned on 27.2.2012. In this respect also why such abnormal delay to engage a Government Counsel, no explanation is given in the said petition. The Hon ''ble Supreme Court has held that the State cannot be put on the same footing as an individual as the individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Having regard to the aforemen-tioned contention of the Hon ''ble Supreme Court we are to say that the Hon ''ble Court was not pleased to hold in the said judgment that the State is not under any obligation to give explanation for delay. We have discussed earlier that being a State there may occur some delay, but there should be explanation for such delay. In the recent judgments passed by the Hon ''ble Supreme Court and the Hon ''ble National Commission wherein it has been held that in respect of delay sufficient and cogent explanation is necessary. In the instant petition there is not at all any explanation for 68 days towards delay, we are not inclined to allow this petition. It is necessary to mention that justice is to be done to the both sides equally. Where the Complainants got a decree in their favour, it is the duty of the State to be more vigilant in respect preferring an appeal. Going by the foregoing discussion hence, it is ordered that the petition for condonation of delay is dismissed on contest without any cost and the appeal be dismissed being barred by limitation. "

IT is well settled that "sufficient cause " for condoning the delay in each case is a question of fact. In Ram Lal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361, it has been observed; "It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. "

SIMILARLY , in Oriental Insurance Co. Ltd. v. Kailash Devi and Ors., AIR 1994 P and H 45, it has been laid down that: "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence. "

IN R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)=I (2009) SLT 701=2009 (2) Scale 108, it has been observed: "We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. "

Further, Hon ''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation, reported in II (2010) SLT 205=I (2010) CLT 333 (SC)=(2010) 5 SCC 459, as under: "We have considered the respective submissions. The law of limitation is founded on public policy. The Legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause " employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate -Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106. "

APEX Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has observed: "It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras. "

RECENTLY , Hon ''ble Supreme Court in Post Master General and Others v. Living Media India Ltd. and Another, I (2012) CLT 338 (SC)=II (2012) SLT 312=(2012) 3 SCC 563, has held: "24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under: "29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 30. Public interest undoubtedly is a paramount consideration in exercising the Courts '' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the Courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to Courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest. " The Court further observed: "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with Court pro-ceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to consi-derable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. Considering the fact that there was no proper explana-tion offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. 31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case. 32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs. "

Petitioners herein, are officials functioning in a Government Department which is having full-fledged legal department under its command comprising of large number of legal personnel. In spite of having all the resources at its command, if the Govt. department takes about six months in filing the appeals, then it can only be said that how inefficient, careless and negligent are the Govt. departments. Despite having all the facilities and infrastructures under it, petitioner ''s officials have acted in a very casual and negligent manner for the purpose of filing the appeals before the State Commission.

OBSERVATIONS made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

THUS gross negligence, deliberate inaction and lack of bona fides are imputable to the petitioners. State Commission has rightly dismissed the appeals on the ground of limitation as no sufficient cause is made out for condoning the delay of about six months. Even on merits, petitioners have no case as they have admitted in their written statement that payment had been made to the complainants in cash, in violation of the order and rules of the Postal Department. By not following the rules and violating the same, petitioners cannot deprive the complainants of their legitimate dues and legal rights.

ACCORDINGLY , I do not find any infirmity or ambiguity in the impugned order passed by the State Commission. Hence, all these petitions are dismissed with cost of Rs. 5,000 (Rupees five thousand only) each. Entire cost shall be paid to the respondents.

PETITIONERS are directed to deposit the total costs of Rs. 20,000 (Rupees twenty thousand only) in the above petitions by way of demand draft, in the name of respondents, within eight weeks from today. In case, petitioners fail to deposit the costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 1.2.2013 for compliance. Revision Petitions dismissed.