DHIRAJLAL JAIN vs BHARAT DYERS And DRYCLEANERS

THIS instant execution case has been filed by the petitioner/decree holder against the order dated 30.7.1993 passed in S.C. Case No. 107/A of 1993 as per majority opinion whereby the appeal was allowed and the respondent was directed to pay a compensation of Rs. 500/- to the appellant but the President as a member differed from the judgment passed by the majority members and delivered her own judgment dismissing the appeal.

THE moot question arises whether the judgment passed by the majority members of this Commission deferring from that of the President-Member if such order of the majority members is valid or not. We are of opinion that after amendment of the Consumer Protection Act which came into force on and from 18th June, 1993 inserting a new section namely Section 29A makes it abundantly clear that the order passed by this Commission constituted of two members is a valid order, in view that Section 29A provides "no act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy among its members or any defects in the Constitution thereof". As per definition of "Member" under, Section 2(1)(jj) "Member" includes the President and member of the National Commission or State Commission or a District Forum as the case may be. So the existence of vacancy among its members including President as a member does not invalidate the order passed by the State Commission constituted of two members. The Sub-rule (2) of Rule 15A of the Consumer Protection Rules which came into force from 14.8.1992 (1991) provides that every order made by the National Commission shall be signed by the President and at least two members who conducted the proceeding and if there is any difference of opinion among themselves the opinion of majority shall be the order of the National Commission. The proviso of the said Sub-rule 2 of Rule 15A provides that where the proceeding is conducted by the President and three members thereof and they differ on any point or points they shall state that point or points on which they differ and refer the same to the other member for hearing on such point or points and such point or points shall be decided, according to the opinion of the majority of the National Commission. Further Rule 6(9) and Rule 7(5) of the West Bengal Protection Rules provides as follows:

Rule 6(9): Where any such vacancy occurs in the office of the President of the State Commission, the senior-most (in order of appointment) member, holding office for the time being shall discharge the function of the President until a person appointed to fill such vacancy assumes the office of the President of the State Commission.

RULE 7(5): No act or proceeding of the State Commission shall be invalid by reasons only or the existence of any vacancy among its member or any defect in its constitution thereof. From the foregoing discussion, it is clear that the order passed by the State Commission constituted of two members without President as a member is valid order as per amended provisions of the Consumer Protection Act and the Rules framed thereunder. It is also clear that in a sitting consisting of President as a member and other two members if any member differs from the order passed by the majority opinion, the order passed by the majority member shall be the order of the National Commission or the State Commission or the District Forum as the case may be. As the final order in S.C. Case No. 107/A of 1993 was passed on 30.7.1993 after the amended Act came into force from 18.6.1993, the order passed by the majority members is a valid order, although the President as a member differed from it. In the premises, the argument made by the respondent in this regard has got no application in the present case as the ratio in the concerned case was decided long before the amended provisions of the Consumer Protection Act came into force on 18.6.1993. As such the principle laid down in the said case is no longer a good law.

HENCE, we allow the execution case and direct the respondent to pay the awarded sum of Rs. 500/- to the appellant within 7 days from the date of this order. There will be no further order as to the cost. Mr. Justice A.K. Bhattacharjee, President- I have seen the judgment written by Prof. S.K. Kar. As it raises an intricate question of interpretation of some provisions of the Consumer Protection Act, 1986, I prefer to record a separate judgment giving my own interpretation of the relevant provisions of the Act and the corresponding rules. The question has arisen out of an order passed on 30.7.1993 in S.C. Case No. 107/A/ 93 in which two of the Members of the Commission allowed an appeal by setting aside the order of the Calcutta District Forum and allowing an amount of compensation to the complainant-appellant. A dissenting order was passed by the then President Mrs. J. Nag dismissing the appeal and upholding the order of the District Forum. A question has arisen if the order is a valid order and executable as such. The order of the President is found on a separate sheet but not dated as required under Sub-rule (10) of Rule 7 of the West Bengal Consumer Protection Rules, 1987. Generally a final order under Sub-section (1) of Section 14 of the Consumer Protection Act, 1986 (hereinafter called the Act for the sake of brevity) should be delivered by all the Members simultaneously and the omission of the signature of the President and the Member or Members conducting the proceeding is fatal as it offends against the provisions of Sub-section (2A) of Section 14 of the Act. Here the President has signed the order but without any indication that it was recorded on a continuation order sheet. The recognised procedure in a Court where a Bench sits is to give the date of delivery of judgment which means that the said date is the date of signing the order. There is, however, no bar to the giving of date by each Member of the Bench while signing the judgment. So far as the West Bengal Consumer Protection Rules, 1987 (hereinafter referred to as the Rules) are concerned. Sub-rule (10) of Rule 7 referred to above specifically provided that each order should be signed and dated by the Members of the Commission. The practice prevalent in this Commission is to give a single date showing the date of passing the order. Without having anything to the contrary we may accept that the entire order was passed on a day and the order of the President is a continuation of the order.

PROF. Kar has, however, tried to justify the validity of the order even if it be accepted as a separate order passed by only two members. The matter requires an analytical interpretation of certain provisions of the Act and the Rules.

PROF. Kar has tried to justify an order passed by only two Members on the strength of the newly inserted Section 29A of the Act, read with Section 2(1)(jj). Section 29A reads as follows: "29A. No act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the Constitution thereof." Section 29A should be read along with Section 18A of the Act. The said section is as follows: "18A. When the office of the President of the District Forum or of the State Commission, as the case may be, is vacant or when any such President is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such person, who is qualified to be a President of the District Forum or, as the case may be, of the State Commission, as the State Govt. may appoint for the purpose."

The qualifications of the President of a District Forum and of a State Commission have been mentioned in Section 10(1)(a) and Section 16(1)(a) of the Act.

Section 2(1)(jj) defines a member as including the President and Member of a National Commission or a State Commission or a District Forum, as the case may be.

PROF. Kar has argued that in view of Section 29A read with Section 2(1)(jj) an order passed by only two members including the President is valid. But Section 29A as quoted above cures the invalidity of an order on account of "the existence of any vacancy amongst the members or any defect of the Constitution thereof". In the instant case there was no existence of any vacancy amongst the members (including the President if he is treated as a member), nor there was any defect in the Constitution of the State Commission. Hence the argument of PROF. Kar does not apply here. Here the invalidity, if any, consists in the ommission of the signature of the President which is compulsory in view of the provisions of Sub-section (2A) of Section 14 of the Act (inadvertently referred to as Sub-rule (2) of Rule 15A of the Consumer Protection Rule). If there is any such omission it cannot be validated by Section 29A as pointed out above.

PROF. Kar has also referred to Rule 6(9) of the Rules. The vacancy referred in Rule 6(9) is a vacancy caused by resignation or removal of the President or any other member of the State Commission. No such vacancy occurred here. Hence this sub-rule is not relevant here. In fact Sub-rules (9) and (10) have been superseded by the provisions of Section 18A of the Act to the extent the provisions of the rules are inconsistent with those of the Act. I, however, find that there are some discrepancies in the provision of Section 18A and Section 29A of the Act, Section 18A makes provision for the performance of the duties of a President of the District Forum and the State Commission when the offices of such President are vacant or the President in question is by reason of absence or otherwise unable to perform his duties. Section 14(2A) on the other hand provides that every order made by the District Forum shall be signed by the President and the member or members who conducted the proceeding (this provision applies to the proceeding of a State Commission also by virtue of Section 18 of the Act). Thus an order without the signature of the President is invalid. So no valid proceeding is possible when the office of the President is vacant. I have already pointed out that the provisions of Sub-rules (9) and (10) of Rule 6 of the West Bengal Consumer Protection Rules, 1987 have been superseded by the provisions of Section 18A of the Act. So the defect, if any, in the Constitution of a District Forum or a State Commission if it relates to the appointment of a President (such appointment being contrary to the provisions of the Section 18A) is fatal and is incurable. But if the defect in the Constitution of the Forum or the State Commission be in respect of other members the defect is curable under Section 29A. It is the only harmonious interpretation of the newly inserted Sections 18A and 29A. For removing all doubts Section 29A should be amended by adding an Explanation to the effect that in the said section the word "members" does not include the President of a District Forum or a State Commission. However, as in my opinion, the order passed by the then President Mrs. Nag forms part of the main order, the same should be deemed to have been signed by the President and all the members. Execution allowed.