INDIRA GANDHI NATIONAL OPEN UNIVERSITY vs SURINDER PAL AHIR

BY this order two appeals i.e. Appeal No. 1008 of 1996 "Indira Gandhi National Open University v. Surinder Pal Ahir" and Appeal No. 1009 of i996 "Indira Gandhi National Open University v. Prithvi Chander Pal" are being disposed of. In Appeal No. 1008 of 1996, the order of District Forum, Jalandhar dated 30.10.1996 in Complaint No. 137 of 1996 and in Appeal No. 1009 of 1996 order of the same date passed by the same Forum in Complaint No. 138 of 1996 have been impugned by the appellant, who was opposite party before the District Forum, Jalandhar, who has allowed the complaints and has directed the opposite party/appellant to refund/pay Rs. 4,000/- in both the cases and in addition to this the opposite party has been directed to pay Rs. 500/- as costs. In fact, both the complaints i.e. Nos. 137 and 138 of 1996 have been decided by one order of the District Forum.

THE undisputed facts are short. THE grievances in both the complaints is that the opposite party/appellant Indira Gandhi Open University, New Delhi offered vide letter dated 28.11.1995 for Post-Graduate Diploma in Computer without going through any Entrance Test. Accepting the offer, a fee of Rs. 4,000/- by each of the complainants was sent for Post- Graduation Computer Application. THE Post- Graduation Course consists of two semesters. THE first semester was from January to June, 1996 and second semester from July to December, 1996. Study material was despatched to both the complainants in May, 1996. On the late submission of the study material, assignments by the complainants could not be submitted and they could not be expected to pass the first semester examination. The complainants have filed their own affidavits and the opposite party has filed the affidavit of K.K. Bhat, Regional Director/Regional Centre, Karnal.

Both the appeals have been filed before this Commission on 20.12.1996 and in both the appeals, application for condonation of delay has been filed. It has been submitted in the applications that the order of the District Forum, dated 30.10.1996 was received on 21.11.1996. It has been further submitted in the application that the matter was referred to the Legal Advisors who recommended the filing of the appeal vide their communication dated 13.12.1996. Final authorisation of the Competent Authority was received by the Regional Director at Karnal on 17.12.1996, who engaged Lawyer on 18.12-.1996 and the appeal was filed on 20.12.1996. The applications are supported by affidavit of Sh. K.K. Bhatt/Regional Director. It has now been settled that the limitation for filing the appeal before this Commission starts from the receipt of the certified copy of the order (impugned) sent by the District Forum. Hence on the facts stated above, it cannot be construed that the appeal filed before this Commission is time barred. In any way, in view of the facts stated in the application and supported by the affidavit, which remain unrebutted, we are of the view that there are sufficient reasons for condoning the delay/ if any, in filing the appeal. Consequently, the applications for condoning delay in filing the appeal are being allowed and i t has been ordered that the cases be heard on merits.

IT has been contended by placing reliance upon the judgments of this Commission that matter relating to the conduct of examination, evaluation and declaration of results did not constitute service under Section 2(1)(o) of the Consumer Protection Act, 1986 and as such the complaints were not maintainable under the Act. There was no arrangement of hiring of services for the students/complainants. In support of the contention, photocopy of the judgment passed by the Hon''ble National Commission, New Delhi in Revision Petition No. 372 of 1992 decided on 18.3.1993, The Director of Technical Education, Madras & Anr. v. A Siraj Basha has also been filed. We have gone through the judgment of the Hon''ble National Commission in case of A. Siraj Basha (supra). By placing reliance upon the judgment of the National Commission, this Commission in a catena of judgments has also held that there is no arrangement of hiring of service for consideration for the students at the time of conducting examinations. The facts in the present appeals are quite distinguishable. The case in hand is not of conducting the examination. Rather, it is a case of conducting the study course and sending the study material through correspondence. At the time of conducting examinations the institution may be performing a statutory function or Governmental in character. It may not be in conducting the study course.

IT may be relevant to reproduce here the definition of ''service'' as contained in Section 2(1)(o) of the Consumer Protection Act, 1986, hereinafter called the Act. "Service" means service of any description which is made available to potenlial users and includes me provision of facilities in connection with banking, financing, insurance/transport, processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment, amusement or the purveying the news or other information but does not include the rendering of any service free of charge or under a contract of personal service." The definition is inclusive and not exhaustive. The inclusive clause widens the scope of definition. The Supreme Court in AIR 1978 SC 548, Banglore Water Supply and Sewerage Board v. A. Rajappa and Others, held that Education is an ''industry'' and ''pre-eminently service''. In its majority view of three, the National Commission Disputes Redressal Commission, New Delhi in National Commission on Consumer Law Cases 1986 96 Part II 1911 (NS), Chairman, Board of Examinations, Madras v. Mohideen Kadar, observed in para 17 of the reporter as under : "We must make it clear that in this case or in the earlier cases this Commission did not consider the general question whether the imparting of education for consideration would come or not within the ambit of the service under the Act. Whether a University or an institution affiliated to it imparting education is within the arena of consumer jurisdiction is a question which this Commission will consider and decide when it directly arises before it. What this Commission has decided in earlier cases is that a University or the Board in conducting public examinations, evaluating answer papers, announcing the results thereof and thereafter conducting rechecking of the marks of any candidate on the application made by the concerned candidate is not performing any service for hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by Section 2(1)(o) of the Act. A candidate who appears for the examination can not be regarded as a person who had hired or availed of the services of the University or Board for consideration".

The majority consisting of two Members categorically held that imparting of education is a service under the purview of the Act.

IT has not been disputed that for conducting the study course and sending study material consideration is being charged from the students and in fact Rs. 4,000/- from each of the complainants/students have been charged. In our view, at the time of conducting the study course, the institution cannot be said not to have rendered the service to the students as defined under Section 2(1)(o) of the Act. The students/ complainants have availed/hired the services of the institution after paying the consideration to the institution and the institution after the receipt of the amount/consideration cannot be permitted to run the course at its whims and caprice to mar career of the students.

IT cannot be denied that by the late submission of the study material by the appellant/University to the students, their studies had suffered, the latter had been incapacitated to send the assignments well in time and they had suffered to their detriment. IT is the admitted case that the first semester consisted of January to June. The study material was despatched to the complainants in May, 1996. IT is well nigh impossible for the students to submit the assignments in time and to prepare for the examination. From the facts stated above, it is crystal clear that at the time of sending the study material and in conducting the course, the University has apparently rendered deficient service to me students and in any way cannot be permitted to deny the refund of Rs. 4,000/- accepted from the students. IT may be observed that the change of the schedule by the University without any cogent explanation will not absolve the University of the charge of deficiency of service. For the reasons recorded above, we do not find any modicum of merits in the present appeals and the same are dismissed. The order of the District Forum directing the refund of Rs. 4,000/- to the students/complainants and awarding of modest costs of Rs. 500/- is totally legal and justified. Both the appeals arc dismissed with costs and the same are assessed at Rs. 500/- in each case. Appeal dismissed with costs.