H.S.E.B And OTHERS vs PIRTHI SINGH

THE true purpose and scope of Section 27 of the Act is the crucial issue herein. THE ancillary question is whether total compliance with the substantive order of the redressal agency would be an extenuating factor for modifying the rigour of a penal order passed under Section 27 of the Act. THEse significant issues arise out of this set of two connected revision petitions directed against the same order of the District Forum.

THE facts are not in serious dispute. Pirthi Singh had preferred a complaint before the District Forum, Kaithal on the 6th of June, 1992 against the petitioner Haryana Electricity Board (here in after called the Board). THE said complaint was allowed on the 30th of September, 1992 with the direction that the Board through its Sub Divisional Officer, Pundri shall release the electric connection to the tubewell of the complainant against the earlier test reports within three weeks of the order. Both the Board and the complainant preferred separate First Appeals Nos. 346 of 1992 and 352 of 1992, respectively against the said order. This Commission by its order dated the 15th of December, 1992, rejected the First Appeal No. 346 of 1992 with costs whilst allowing the complainant''s First Appeal No. 352 of 1992 & awarded compensation to the tune of Rs. 10,000/- only as additional relief. If was in terms directed that the order shall be complied with within one month from the date of its pronouncement on pain of enforcement under Section 27 of the Act. The Board did not choose to comply with the order aforesaid within the prescribed time till the 15th January, 1993. Pirthi Singh, complainant consequently preferred an application under Section 27 of the Act before the District Forum for necessary action. On notice being issued to the Board and its officials namely the Executive Engineer, Pundri and S.D.O., Pundri an assurance was given on the 16th of February, 1993. On that date an undertaking to comply with the order by the 18th of February, 1993 was categorically given. However, when the matter came up before the District Forum on the said date, the a foresaid two officials merely chose to make a submission before the forum enumerating some lane excuses for not energising the tubewell of the complainant takingshelter on the ground that an appeal had been preferred before the National Commission though admittedly the same had not even come up for motion hearing nor any stay order had been granted. It was also stated that the Board was proposing only as yet to deposit the amount of compensation on certain terms and conditions.

The District Forum came to the firm conclusion that the substantive order stood affirmed and, further the orders of this Commission were patently not being complied with despite mandatory directions and express opportunities given therefor. It was noticed that the mere preferring of an appeal/revision before the National Commission would not absolve the Board or its officials from complying with the orders in the absence of any stay of the same. Consequently the District Forum proceeded to punish the S.D.O. of the Board namely Shri Suresh Bansal to undergo imprisonment for a period of one year and to pay a fine of Rs. 2,000/- or in default to undergo R.I. for two months more. Aggrieved thereby Revision Petition No. 1 of 1993 has been preferred by the Board as also its Executive Engineer and the Sub Divisional Officer. On the other hand, Pirthi Singh has preferred Revision Petition No. 2of 1993 seeking that penal action against Shri T.C. Gupta, Executive Engineer may also be taken and his implicit exoneration by the District Forum be set-aside.

IT would appear that in pursuance of the order of the District Forum under revision Shri Suresh Bansal, afore-mentioned was taken into custody to undergo the imposed imprisonment. This seems to have at once quickened the pace of compliance with the substantive order earlier of the District Forum as up-help and modified by this Commission. Almost immediately the tubewell of the consumer-complainant was thereafter energised. The sum of Rs. 22,200/- was forthwith tendered by cheque No. 217597 dated the 18th of February, 1993 to the complaint and was duly accepted by him. By our order dated the 22nd of February, 1993, we admitted the revision petition and directed the release of Sh. Suresh Bansal, S.D.O. on his furnishing a personal bond for the sum of Rs.5,000/- only in view of the aforesaid factors. Mr. T.C. Gupta, appearing on behalf of the Board in the absence of their Counsel had faintly argued that the order of the District Forum and this Commission should have been executed as a decree under Section 25 of the Act and there was no occasion for the exercise of the power under Section 27. In the alternative, it was submitted that the substantive orders having been now complied with in toto, the penalty imposed under Section 27 be wholly set aside. On the other hand, Prithi Singh-respondent appearing in person sought the maintenance of the order under appeal and further equally punitive action against Shri T.C. Gupta, Executive Engineer of the Board.

THE aforesaid stand of the parties brings to the fore the executory process for the orders of the redressal agencies under the consumer jurisdiction. Since the controversy would necessarily revolve around Section 25 and 27 of the Act, it is apt to notice both these provisions in extenso : Section 25 : " Enforcement of orders by the Forum, the State Commission or the National Commission : Every order made by the District Forum, the State Commission or the National Commission may been forced 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 whose jurisdiction- (a) in the case of an order against a company, the registered office of the company in 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 and if it were a decree or order sent to it for execution. Section 27 : Penalties : 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 thr case may be, such trader or person shall be punishable with imprisonment for a term which shall not be less than one month by 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 and 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 somewhat elementary that the aforesaid provisions are the primal and indeed the only provisions for executing the orders of the redressal agencies within the consumer jurisdiction. Inevitably both of them have to be construed together. Equally it is the soundest can on of construction that the provision of a statute are not to be viewed in isolation, but always within the mosaic of the larger scheme and the purpose of the Act. This has rightly come to be called the schematic concept of interpretation. In the light of the above what first meets the eye is the fact that the present Act is in true assence a public welfare legislation. It has almost become hackneyed by now that it is a beneficent jurisdiction designed expressly in the interest of the otherwise hapless consumers. The hall marks of this jurisdiction have rightly been highlighted as the simplicity and inexpensive nature thereof, the summary procedure provided for trials therein; and the expeditious disposal of the consumer disputes within a time bound frame. Inevitably in this context, the executory process or the enforcement of the orders of the redressal agencies under Act have to be equally expeditious and prompt, If any meaningful purpose is to be served by this jurisdiction. If the orders of redressal agencies were to be inflexibly converted only into decrees and orders which are to be executed only in the manner as if they were by a Civil Court, then perhaps the very purpose of the whole jurisdiction would be defeated and it would cut at the roots of the consumer movement. The classic dictum of an eminent Chief Justice which has become hallowed now is that in India the travails of the litigant only begin after he has successfully obtained a decree in his favour in a Civil Court. This bane would consequently become equally applicable to the consumer jurisdiction, if the orders of its redressal agencies were left to be executed only in the same manner as if they were decrees or orders made by the Civil Court. That to our mind would be the very opposite of what Parliament had intended for an expeditious beneficient and inexpensive jurisdiction.

IT is against this background that the language of Section 27 has to be construed. On a higher philosphic plane the purpose and necessity of Section 27 is well explained by the authoritative treatise of Dr. Friedmann ''La win a General Society''. On the indicia given therein Section 27 would naturally fall under the category of administrative penal law or public welfare offences. IT bears reiteration that the Act is essentially a public welfare legislation. Dr. Friedman in this context opined as follows : " 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. That we have to accept an occasional injustice to the individual is part of the price, we have to pay for living in a highly mechanised closely settled kind of society in Which the health safety and well being of each member of community depends upon a vast number of other persons and institiir tions."

IN the light of the aforesaid authoritative observations with which we entirely agree, it seems unnecessary to overly elaborate the matter. INdeed on a large perspective view, it appears to us that the provisions of the Act would be rendered otiose and the entire purpose of the statute might stand wholly frustrated if the final substantive orders of the redressal agencies are not enforced under pain of the penalty under Section 27. If these are to be relegated only to be enforced as decrees or orders of a Civil Court in the tortuous and tardy executory process therein with the hierarchy of appeals and revisions under the Civil Procedure Code, then the consumer jurisdiction would again get enmeshed into the same labyrinth from which it was sought to be rescued by the Act. The significance of Section 27 and its language cannot indeed be over emphasised. The very opening part thereof virtually lays a mandatory duty on the trader or a person against whom a complaint is made to comply with the orders of the redressal agencies forthwith. Either a failure or omission to do so ipso-facto renders him liable to be punished with either imprisonment or fine. Thus in a way a unilateral obligation arise on such a person or a trader to comply with the orders on pain of the sanction laid out in the later part of the Section. On such failure or omission the redressal agency then steps in to bring into play the quasi criminal sanction for pre-emptory enforcement of orders. It appears to us that Section 27 is thus the king-pin of the consumer jurisdiction which stands proudly apart from the ordinary and now notoriously the tardy civil process. Without the sanction of this Section perhaps the consumer jurisdiction would only be a paper-tiger lacking teeth altogether. It deserves highlighting that this is one of the rare provisions in the civil jurisdiction where the penal sanction of imprisonment and fine in terms is provided for compliance with the orders of the Consumer Courts. Not only that, Parliament in its wisdom has even prescribed the minimum sentence of not less than one month and a fine of not less than Rs. 2,000/- unless the conditions of the proviso to the Section are satisfied. The language employed is pre-emptory and the imposition of imprisonment and fine have nuances of criminal punishment for an offence. It is however, plain that Section 27 does not create an offence stricto-sensu, but is only a methodology of stringent penalty on pain of which the orders of the redressal agencies are to be complied with expenditiously. It appears from the tenor of the Section that the obligation of compliance with the orders of the redressal agencies lies immediately and squarely on the traders or a person against whom the same has been passed. The intent of the Section is plain that the moment he slips in this mandatory duty, he automatically invites the rigour of the penalty under this provision. Consequently in our view the primal mode of enforcement and execution of orders by the redressal agencies is enforcing a mandatory compliance therewith by invoking the virtually automatic attraction of the penalty under Section 27.

Once it is held as above, the provisions of Section 25 seem to fall in their proper perspective. Though the primal mode of expenditious compliance is as mentioned above, the sentence of imprisonment or imposition of fine may still some time leave the order not fully complied with. An example is provided where a heavy amount of compensation say to the tune of Rs. one lac has been awarded in favour of the complainant. The sentence of imprisonment or the levy of fine on the recalcitrant trader or the person against whom the order has been passed would not be itself give the desired compensation to the successful consumer-complainant. In this situation resort would necessarily have to be made to Section 25 to execute what in terms may become a money decree by sale or attachment of the judgment debtors property etc. It bears repetition that this has to be resorted to in the event of the person not complying with the order and the inability of the redressal agency to execute otherwise.

IT is against the aforesaid background that the language of Section 25 has now to be construed; Indeed an incisive and in depth reading of the same would make it manifest that the primal duty IIaid on the redressal agencies is to execute their substantive orders themselves and not to shift that burden on to the Civil Courts. This is manifest by the meaningful words-" 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 such order to the Court within the local limits of whose jurisdiction. " To our mind the real clue is provided to the intent of the legislature by the words-" in the event of its inability to execute it ". The plain import thereof is that the primal duty of the redressal agencies is to enforce their orders themselves and only in the event of their inability to do so, it is lawful to make resort to the Civil Court for execution.

THE aforesaid view which we are inclined to take is manifest from the opening part of the Section as well which only gives a discretion to the redressal agencies by employing the word ''may''. It is not that this provision says that such orders can only be enforced as decrees or orders or that this is the only methodology for their enforcement. THE employment of the word ''may'' is significant and it is well settled that unless indicated otherwise it has to be so construed. Patently there is nothing herein to read the word ''may'' as ''shall''. Once that is so it has to be held that Section 25 confers a discretion on the redressal agencies to enforce their orders as decrees of a Civil Court only in the event of their inability to execute it themselves. Had it been otherwise, then Parliament in its wisdom would have employed categoric terminology that the order of the redressal agencies can be only enforced as civil decrees and not otherwise. THErefore, Section 25 when broadly construed in the scheme of the Act is an enabling provision conferring a discretion on the redressal agencies to enforce their orders through the Civil Court and that only in the event of their inability to execute themselves. THE submission on behalf of the petitioner-Board that the order of the District Forum could only be executed under Section 25 and not otherwise, therefore, merits a categoric rejection. To conclude on this aspect, it appears to us that the true purpose and scope of Section 27 is to lay a statutory duty on the on the trader or a person against whom an order has been passed by a Consumer Court to comply therewith expeditiously. Failing that, it equally casts a duty on the redressal agencies to enforce compliance under the conferred section of imprisonment and fine, if necessary. The view, we are inclined to take is buttressed by the observations of the Maharashtra State Commission in II (1992) CPJ 786 M/s. Rajani Gas Company v. V.P. Jawalekar. Therein it has been categorically concluded as under : " Section 27 of the Consumer Protection Act has been introduced with a view to punish those traders and persons against whom a complaint is made fail or omit to comply with any order passed by the District Forum or the State Commission or the National Commission. The purpose behind the provisions contained u/Sec. 27 of the Consumer Protection Act is to seek compliance of the order passed by the District Forum. We, therefore, find that this is a fit case in which the District Forum, Yavatmal has taken correct view to impose the penalty as there is flagrant violation of the order of the District Forum, Yavatmal by the appellant, We, therefore, dismiss this appeal."

IN the wake of the somewhat exhaustive discussion aforesaid, we must observe that the District Forum was eminently right in resorting to Section 27 for the compliance of its order as up-held and modified by this Commission, This however, brings us to the somewhat ticklish question of the quantum of penalty imposed. It had been persistently submitted on behalf of the petitioner-Board that now the order has been fully complied with and the executory process has been completed, the rigour of the sentence of imprisonment atleast may be softened.

WE find some modi-cum of merit in the plea taken on behalf of the petitioner-Board. As would appear from the earlier discussion, the primal premise underlying Section 27 is the expeditious compliance of the orders of the redressal agencies and not the creation of an offence which has to be inflexibly vested with the criminal sanction of imprisonment and fine. Whilst in a particular case such punitive action may also be necessitated, the present one does not necessarily appear to be of that kind. Here in extenuating fact or now do seem to exist. As noticed already one the order under revision was passed there was not the least delay in attempting full compliance therewith. Admittedly the electric energy to the consumer-complianant''s tubewell was forthwith restored and the payment of compensation tendered unconditionally. It was stated at the bar that not only was the cheque, therefore, duly accepted but the some has been subsequently encashed by the consumer. On principle also, we are inclined to answer the question posed at the out-set in the affirmative to the effect that a total compliance with the substantive order of the redressal agency would be an extenuating factor for modifying the penal order passed under Section 27 of the Act. In the light of the above, we are inclined to take a somewhat charitable view, particularly so in the context of an unconditional apology tendered on behalf of the petitioner-Board for ant unwitting infraction or delay in compliance with the orders of the District Forum and subsequently that of this Commission. It appears to us that in the present case the ends of justice may well be satisfied if the quantum of imprisonment imposed is modified. Consequently, whilst upholding the order under revision, we reduce the term of imprisonment to that already undergone by Shri Suresh Bansal whilst maintaining the fine of Rs. 2,000/-. The revision Petition No. 1 of 1993 is thus disposed of in these terms.

In revision Petition No.2 of 1993, we have heard Mr. Prithi Singh-petitioner in person. On an appraisal of the whole matter, we do not find any error of jurisdiction or material irregularity, which can possibly merit interference under Section 17-B of the Act. The said revision petition is, therefore, dismissed in limni. Petition dismissed.