SENIOR SUPERINTENDENT POST OFFICES vs BALBIR SINGH

WHETHER Sections 6 and 48 of the Indian Post Office Act confer an absolute exemption from liability on the appellant-department for the delayed payment or delivery of a Money Order? This is the core question in this appeal.

IN view of the pristinely legal question aforesaid the facts pale into in-significant. These may therefore be noticed with utmost brevity. The gravamen of the respondent, Balbir Singh''s complaint was that on the 30th of October, 1992 he had sent Rs. 1,000/- by Money Order to his wife Jasbir Kaur at Hoshiarpur. However, the said money order was not delivered to the addressee till more than three months thereafter, on the 16th of January, 1993. In defending the complaint the appellant-department candidly admitted the broad factual position. The sending of the Money Order was admitted. It was however pleaded with some candour that owing to inadvertence the payment thereof could only be made on the 16th of January, 1993.

On the basis of the aforesaid pleadings the District Forum with total alacrity held that the respondent must be compensated for the harassment meted out to the respondent''s wife because of the delay in the payment of the Money Order and forthwith directed compensation to the tune of Rs. 1000/- only.

MR. I.S. Sidhu, the learned Counsel for the appellant-department is a spritied argument had first contended and made submissions on the factual aspect. It was pointed out that as soon as the fact of the Money Order having not reached the addressee was brought to the appellants notice a prompt enquiry was made and the original Money Order being untraceable, a duplicate Money Order was forthwith issued and finally delivered to the respondent-consumer''s wife. It was the plea that in these circumstances there was no intentional delay and consequently no liability would fall upon the appellant. As a question of law it was highlighted that the present case was not one of non-delivery altogether of the Money Order but merely of delayed delivery thereof. It was submitted that the relevant Clause (C) of Section 48 of the Indian Post Office Act is in express terms and covers the matter. It is the stand that this provision confers an absolute immunity in favour of the appellant on this score. Submission was that the services of the postal department were extended out as a matter of law on the statutory conditions made manifest under Sections 6 and 48 of the Indian Post Office Act and, therefore, no deficiency in such services could possibly be attributed to the department.

ON the other hand Mr. R.S. Sohata learned Counsel for the respondent has primarily peggal himself on Section 3 of the Act. It was contended that the remedy under this beneficent statute are additional remedies altogether apart from the Indian Post Office Act. Reliance was placed on the exhaustive order of this Commission in I (1991) CPJ 273, Jagdamba Rice Mills v. Union of India, Ministry of Telecommunications. There can possibly be no quarrel with the aforesaid submission of Mr. Sonata that the consumer jurisdiction provides an additional remedy super-added to all the existing ones and in no way in derogation of any other law for the time being in force. However, the question still remains whether this particular lis comes with the four corners of the consumer jurisdiction, however, wide-ranging it may be. Herein it is patent that the focal question is with regard to the services undertaken by the appellant-department and any patent deficiency therein. By now it is well settled that the postal services as its very terminology indicates would squarely comes within the definition of Services as defined in Clause (O) of Sub-Section (1) of Section 27 of the Act. It is true that postal service is not in terms enumerated as such within that definition. However, it comes squarely within the generic definition of a service of any description which is made available to potential users. There is no gain-saying the fact that the appellant-department extends out its services to its customers with regard to the carriage of postal articles and of Money Order etc. Once that is so, it is evitable that the question of deficiency in the service and the whole controversy herein must revolve around the particular provision of the statute. Therefore, it is not only apt but indeed necessary to notice the language of Sections 6 and 48 of the Indian Post Office Act which are the sheetanchor of the appellant''s stand. "Section 6. Exemption from liability for loss, mis-delivery, delay or damage-The Government shall not incur any liability by reason of the loss, mis-delivery or delay of, or damage to, any postal article in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided, and no officer of the Post Office shall incur any liability by reason of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default."

Section 48. Exemption from liability in respect of Money Order. "No suit or other legal proceeding shall be instituted against the Government or any officer of the Post Office in respect of:- (a) anything done under any rules made by the Central Government under this Chapter; or (b) the wrong payment of a money-order caused by incorrect or incomplete information given by the remitter as to the name and address of the payee, provided that, as regards incomplete information, there was reasonable jurisdiction for accepting the information as a sufficient description for the purpose of identifying the payee; or (c) the payment of any money-order being refused or delayed by, or on account of, any accidental neglect omission or mistake, by, or on the part of an officer of the Post Office, or for any other cause whatsoever, other than the fraud or wilful act or default of such officer; or (d) any wrong payment of a money-order after the expiration of one year from the date of the issue of the order; or (e) any wrong payment or delay in payment of a money-order beyond the limits of India by an officer of any Post Office, not being one established by the Central Government."

It is in the light of the aforesaid provisions that the question of deficiency in the service within the consumer jurisdiction has to be adjudicated. Inevitably this has to be on the firm foundation of the definition of the word deficiency in Clause (g) of Section 2(1) of Act, which is as under:- "2(1)(G) "deficiency" means any fault, imperfection, short-coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service"

IT would be plain from the above that the true test of deficiency even though it is some-what widely defined, is two fold. Either it has to be what is required to be maintained by or under any law of the time being in force/or in the alternative it has to be with regard to what has been undertaken to be performed by a person in pursuance of a contract or otherwise.

NOW it seems some-what elementary that in the extending out of postal service by the appellant-department, barring exceptions, there is no contractual agreement betwixt its customer and the postal department. The consumer merely avails, the services extended out, by virtue of the statutory provisions of the Post Office Act. To put it tersely, the services rendered by the Post Office are primarily statutory and there is no element of contractual liability therein. Way back nearly a century ago when the Post Office Act, 1898 was enacted, the running of postal services was not only a governmental function, but by virtue of Section 4 thereof was an exclusive privilege and protection of the Government. The services for the purpose were governed by its statutory provisions alone, and it, therefore, follows that in the present context there is no question of any deficiency with regard to any undertaking to be performed in terms of any contract or otherwise in the context of the postal services generally, and for conveying of a money-order in particular. In view of the above, what remains is the question whether there is deficiency with regard to what is required to be maintained under any law for the time being in force. In the present context, therefore, it would mean only what is so required by the Post Office Act. It seems elementary that the postal services extended out are subject to and rooted in the relevant provisions of the said Act.

With this prologue one may now turn to Section 6 afore quoted on which primal reliance was placed by Mr. I.S. Sidhu. This would show that the corner-stone thereof is a postal article in course of transmission by post. Therefore, the relevant question is whether a money-order or payment thereof is a postal article within the meaning of Section 6.

AT the very outset we may opine, that we do not think so. Inevitably to determine this question one has to go through the definition of postal article, expressly defined in Clause 1(i) of Section 2 of the Indian Post Office Act, which is in the following terms:- "the expression "postal article" includes a letter, postcard, newspaper, book, pattern or sample packet, parcel and every article or thing transmissible by post."

From the above, it is plain that the money-order as such does not come within the expressly enumerated postal articles in the aforesaid definition. Nor in our view does it come within the generic sense of an article or thing transmissible by post. It would be plain that the actual amount of the money-order which is to be delivered to the addressee is received separately alongwith the document of the money-order and the said amount in specie is not transmissible by post stricto-sensu nor can the word money order in ordinary parlance or its dictionary meaning of the word necessarily a postal article. This seems to be so that even if Clause 1(i) afore quoted is given the widest interpretation because it is only an inclusive definition and nor a juridical one. Now apart from the above, the Post Office Act further gives a patent indication that the money-orders have not been treated as postal articles. This is so because of the particular provisions of Section 48 of the Act. This expressly pertain to, as its heading shows to exemption from liability in respect of money-orders. If a money-order was covered as a postal article by Section 6 then this Section 48 would be redundant and pointless provision. One may recall the hallowed rule that the legislature does not waste its words nor incorporates, otiose provision in a statute when the matter is already covered by an earlier one. It is, therefore, has to be held that Section 6 would not be applicable to the money-orders. It is only Section 48 which would apply thereto. Equally that the special excludes the general.

TURNING now to the larger perspective of Section 48 It seems to follow that money-orders are plainly being carried on in terms and conditions specified therein. A look at the Section shows that the wrong payment of a money-order caused by incorrect or incomplete information has been dealt separately in Clause (b). Accidental neglect or delay in the payment of the same is covered only by Clause (c) thereof, which are as follows :- Section 48(b) "The wrong payment of a money-order caused by incorrect or incomplete information given by the remitter as to the name and address of the payee, provided that, as regards incomplete information, there was reasonable justification for accepting the information as a sufficient description for the purpose of identifying the payee."

Section 48(c) "The payment of money-order being refused or delayed by, of on account of, any accidental neglect, omission of mistake, by, or on the part of an officer of the Post Office, or for any other cause whatsoever, other than the fraud or wilful act or default of such officer."

However, it may be noticed that the last Clause (e) of Section 48 provides as an exceptional case of money-orders beyond the limits of India and indeed altogether in a different situation, deals both with the matter of delay and wrong payment thereof. Leaving the same out of consideration it is evident that Clause ''C'' aforesaid alone governs delayed payment of money-orders. Now once that is so, it seems manifest that the money-orders are carried by the Post Office on the express condition of an exemption from liability in the event its being delayed or refused. It is indeed a far cry from actual truth, yet everybody is presumed to know the law. Consequently the carriage of money-orders and their exemption from liability are presumed to be in the knowledge of the consumer availing of such services. The postal service in this context is extended out and maintained by or under the law laid down in the Indian Post Office Act in the context of a deficiency in the consumer jurisdiction. Therefore any accidental neglect, omission or mistake resulting in the delayed payment of a money-order is exonerated from liability, barring exceptional case of a fraud or wilful act or default of the officer of the postal department. It follows that unless it is established that the delay in payment of the money-order was caused by a fraud or a wilful act of employees of the department, it will be not liable by virtue of Clause ''C'' of Section 48. Consequently, if postal services are availed by a consumer on the condition laid down in Section 48 it follows necessarily that there is no deficiency in the service so extended out. Having dealt with the matter on principle and the relevant provision of the statue one must now turn to precedent nearer whom one may first refer to the order of this Commission in 1993 CPC 397, Union of India & Others v. Raj Kumar of Ambala City wherein the somewhat analogous provision of Section 9 of the Indian Telegraph Act had fallen for construction. It was concluded as follows in that context:- "In the wake of the aforesaid discussion, the answer to the question posed at the outset is rendered in the affirmative it is held that Section 9 of the Indian Telegraph Act confers absolute immunity on the Government against any loss or damage arising from the non-transmission or non-delivery of a telegraphic message."

THE view we are now inclined to take stands buttressed in the revision petition No. 175 of 1992, General Post Office v. Dr. U. Shanker Rao decided on 15th of April, 1993. THErein Section 6 of the Indian Post Office Act had come up for consideration. THE National Commission concluded as under:- "We are of the opinion that both the claim petitions referred to above are not maintainable in view of Section 6 of the Indian Post Office Act. As noticed earlier therein no allegations that the loss, mis-delivery or delay occurred on account of fraudulent or wilful act of any particular postal employee."

IN all fairness we must refer to I (1991) CPJ 521 Surinder Singh v. Post Master General, Panaji which though not cited by the Counsel had subsequently come to our notice independently. Therein the Goa State Commission granted relief in the context of delayed payment of a telegraphic money order. There is no gain-saying the fact that this judgment would go in favour of the respondent. However a perusal thereof would indicate that the learned Counsel for the parties were sorely remiss in not bringing to the notice of the Commission the provision of Section 48 of the INdian Post Office Act. The said provision which is the core of the matter for its construction is conspicious by its absence altogether in the order. It would appear that the said judgment has been rendered in omission of a binding statutory provision and is therefore, per in curiam. With deep deferance to the Goa State Commission, we are constrained to record our dissent there from. Even otherwise, it appears to us that the said order is no longer good law in view of the ratio in National Commission''s case General Post Office Madras v. Dr. U. Shanker Rao (Supra). In the wake of the aforesaid somewhat exhaustive discussion, the answer to the question posed at the outset is rendered in the affirmative. It is held that Section 48 of the Indian Post Office Act confers absolute exemption from liability on the appellant-department for the delayed payment of a money-order, unless it is occasioned by fraud or wilful act of a particular postal employee.

Once it is held as above, it would be manifest that the appellant-department must succeed. It was not even the allegation of the respondent-consumer that there was any fraud or wilful act on the part of any officer of the Post Office. That being so the delay in the payment of the money-order was exempted from liability under Clause (c) of Section 48 of the Indian Post Office Act. This appeal is hence allowed and we are constrained to set aside the order of the District Forum and dismiss the complaint preferred by the respondent-consumer without any order as to costs. Appeal Allowed.