Wednesday, November 30, 2011

General Manager, Telecom Vs. M.Krishnan & Another

The case following is about whether the consumer forums have jurisdiction to decide telecom disputes and there are many different views regarding this are seen,and this is important when Honorable Supreme Court also opined that the arbitration act being a special enactment has  upperhand to general laws.
 
 
 
 
 
 
 
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
QUORUM
                                    President                  :           Shri Sanjay Garg
                                    Member                    :           S. Tarlok Singh
C.C. No.180 of 2009
                                                                                    Date of Institution: 9.4.2009
                                                                                    Date of Decision: 11.9.2009 
Lakhbir Singh, 
aged about 34 years, son of Mohinder Singh 
son of Harnam Singh, 
resident of Basti Kamboj Nagar, Ferozepur City.                   ……. Complainant 
                                                Versus 
1.        Aman Arora Telecom, Dulchi Ke Road, Opposite Guruduwara
Market, Basti Kamboj Nagar, Ferozepur City, Tehsil and District 
Ferozepur, through its Proprietor Aman Arora. 
2.        Bharat Sanchar Nigam Limited, Telecom (Mobile), Ferozepur Cantt,
through its General Manager.
                                                                                                      ……… Opposite parties
                Complaint under Section 12 of the Consumer Protection Act, 1986.
 
                                              O R D E R
SANJAY GARG, PRESIDENT:-
                        Complainant Lakhbir Singh has filed the present complaint against Aman Arora Telecom (herein after referred to as opposite party No.1) and Bharat Sanchar Nigam Limited (herein after referred to as opposite party No.2) pleading that the complainant got a mobile telephone connection No.94645-59188 from opposite party No.1 after paying Rs.200/- on 6.2.2009 and at that time the complainant had given his proof of identity i.e. one snap and photo copy of voter card to opposite party No.1. Opposite party No.1 issued a SIM card of the above said mobile connection to the complainant and told that the validity of the same would be three months with the value of Rs.100/- talk time. After that the said mobile connection was activated and it was running up to 1.3.2009, but on 2.3.2009, opposite party No.1 disconnected the connection of the complainant. On enquiry, the complainant came to know that his mobile connection has been disconnected for want of identity proof. On 3.3.2009, the complainant again submitted the same proof i.e. one snap and one photo copy of the voter card to the opposite parties and opposite party No.2 promised that the mobile connection in question will be activated again up till evening of the same day. Thereafter, the complainant made several requests to the opposite parties, also served a legal notice dated 28.3.2009 upon the opposite parties regarding the above said negligence and deficiency in service, but the opposite parties have neither paid any heed to the requests of the complaint nor given any reply to the notice. Pleading deficiency in service on the part of the opposite parties, the complainant has claimed Rs.20,000/- as compensation for mental agony, pain and harassment and Rs.2200/- as litigation expenses. 
2.    Notice of the complaint was given to the opposite parties, who appeared and filed their separate written replies to the complaint. Opposite party No.1, in its written reply, has pleaded that the complainant got a mobile telephone connection No.94639-59188 from opposite party No.1 on 6.2.2009 and had given his identity proof i.e. one snap and photo copy of voter card and opposite party No.1 issued SIM card of the mobile connection and told that as per the norms and conditions of the company, the validity was of three months with talk time worth Rs.100/-. After obtaining the proof required for the connection, the same was forwarded to BSNL for activation of the connection and the said connection was activated. It has been further pleaded that after submission the identity proof, the connection in question was activated by the BSNL and opposite party No.1 has got no role to play thereafter. The verification of the identity proof is done by the company and in case of negative verification, the company can seek the identity proof other than the furnished at the time of getting the connection. Denying any deficiency in service on the part of opposite party No.1, dismissal of the complaint has been prayed for.
3.    Opposite party No.2, in its written reply, has pleaded that opposite party No.1 is not an authorized agent of opposite party No.2 rather M/s Aneja Enterprises, Jalalabad (W) is the authorized dealer. Prepaid mobile connections are given to consumers after the completion of requisite formalities and the dealer is to activate the same. The SIM in question was given to M/s Aneja Enterprises and not to opposite party No.1. It has been further pleaded that the said SIM is in working condition. Other allegations of the complaint have been denied.
4.  Parties led evidence.
5. We have heard the complainant in person and learned counsel for the opposite parties and have also gone through the file.
6.  At the outset, the learned counsel for opposite party No.2 has produced a recent judgement of the Hon’ble Supreme Court of India styled as General Manager, Telecom Versus M. Krishnan & Another, Civil Appeal No.7687 of 2004, decided on 1.9.2009 and submitted that in view of the above said authority, this Forum has no jurisdiction to entertain and decide the present complaint. 
7.  So before adjudicating the matter on merits, it has become necessary to decide as to whether this Forum, established under the Consumer Protection Act, has jurisdiction to entertain the disputes relating to mobile connections. The Hon’ble Supreme Court of India in the above said judgement has held that under Section 7-B of the Indian Telegraph Act, 1885, the disputes concerning any telegraph line, appliance or apparatus are required to be referred to an Arbitrator appointed by the Central Government. Relying upon another authority of the Hon’ble Supreme Court styled as “Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479”, the Hon’ble Supreme Court of India has further held that special law overrides the general law.
8.  In full respect to the Hon’ble Supreme Court of India, before relying upon the above said authority, we would like to discuss another law/legislature enactments made by the Parliament and also the various other authorities on the question relating to the jurisdiction of the Consumer Forums. 
9.  So far the provisions of The Indian Telegraph Act, 1885 are concerned, under Section 3 (1AA), the word ‘Telegraph’ has been defined as under:- 
   “telegraph” means any appliance, instrument, material or apparatus used or capable of use for transmission or  reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic,
Explanation – “Radio waves” or “Hertzian waves” means electro magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide.” 
10. The instrument named telephone, through which one person could directly talk with another person at a distant place without seeing personally face to face, was invented by Alexander Graham Bell in the year 1876. In 1878, the first telephone exchange was established at New Haven. In the year 1882, first telephone exchange was opened at Calcutta in India having only 93 subscribers. In the year 1885, when the Indian Telegraph Act was enacted, telephone facility was not available to the people at large in India. Through telegraph system, certain messages were used to be conveyed through signs, signals and sounds etc. Even the facility was not available to people at large, but was used in emergency cases through the specialized facility offered by the Government authorities. With the advancement of  technology, new inventions were made and landline telephone services were made available to the consumers at large. Thereafter, mobile telephone technology stepped into to serve the people and it was indeed a revolution in the field of telecommunication. 
11.  Section 3 (1AA), as reproduced above, was introduced in the said Act in the year 1961 by way of amendment to the parent Act of 1885. In the year 1961, the mobile technology had not been developed in India. Mobile phones were formally launched in India in August, 1995. With the advancement of the technology, the facility of phones reached to the consumers at large. With the changed circumstances, the law relating to telecommunication has also been changed and it must be changed with the changed circumstances, otherwise the legal system would fall flat and the people would become violators of law. 
12. Several mobile service providers have been granted licenses to provide mobile telephone services to the consumers. To regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interest of service providers and consumers of the telecom sector and for matters connected therewith, the Parliament has passed “The Telecom Regulatory Authority of India Act, 1997”. Under the Telecom Regulatory Authority of India Act, 1997, the ‘telecommunication services’ have been defined, which for the purpose of facilitation is reproduced as under:-
   “2.      Definitions.-(1) In this Act, unless the context otherwise requires - 
    (k) “telecommunication service” means service of any  description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means   but shall not include broadcasting services:
Provided that the Central Government may notify other service to be telecommunication service including broadcasting services.”
13.   Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under:- 
“14. Establishment of Appellate Tribunal – The Central Government shall, by notification, establish an Appellate  Tribunal to be known as the Telecom Disputes Settlement  and Appellate Tribunal to –
(a)              adjudicate any dispute –
(i)                between a licensor and a licensee;
(ii)              between two or more service providers;
(iii)            between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to -
(A)      the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(B)      the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C)    dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885)”.
14.  From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more Cellular mobile telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the previous Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
15. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to –
“(a)     all service providers including Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited, being the companies registered under the Companies Act, 1956 (1 of 1956) providing –
                        (i)        Basic Telephone Service;
                        (ii)       Unified Access Services;
                        (iii)      Cellular Mobile Telephone Service.” 
The ‘Basic Telephone Service’ has been defined under Section 2 (g) of the above said Regulations. The meaning of ‘consumer’ has also been defined. For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are reproduced as under :-
   “2. Definitions – In these se regulations, unless the context otherwise requires - 
      (d)   “Basic Telephone Service” covers collection, carriage, transmission and delivery of voice or non-voice  messages over licensee’s Public Switched Telephone  Network in licensed service area and includes provision  of all types of services except those requiring a separate licence;
       (g)       “Cellular Mobile Telephone Service” - 
(i)        Means telecommunication service provided by means of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy where every message that is conveyed thereby has been, or is to be, conveyed by means of a telecommunication system which is designed or adapted to be capable of 
being used while in motion;
(ii)       Refers to transmission of voice or non-voice messages over Licensee’s Network in real time only but service does not cover broadcasting of any messages, voice or non-voice, however, Cell Broadcast is permitted only to the subscribers of the service,
(iii)      in respect of which the subscriber (all types, pre-paid as  well as post-paid) has to be registered and authenticated at the network point of registration and approved numbering plan shall be applicable;
(h)        “consumer” means a consumer of a service provider falling in clause (a) or clause (b) of sub-regulation (3) of  regulation 1 and includes its customer and subscriber.”
16.   Section 25 of the above said Regulations is very much relevant, which for the sake of convenience is reproduced as under:-
      “25.    Right of consumers to seek redressal under the Consumer Protection Act, 1986 or any other law for the time being in force – 
(1) The provisions of these regulations are in addition to any right conferred upon the consumers under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force.
  (2)       Any consumer may, at any time -
              (a)       during pendency of redressal of his grievance, whether by filing of complaint or appeal, under these regulations;
or
(b)       before or after filing of complaint or appeal, under these                       regulations, exercise his right conferred upon him under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force and seek redressal of his grievance under that Act or law.” 
17.  Section 27 of the above said Regulations is also very much important, which for the sake of convenience is reproduced as under:-
         “27.    These regulations not to apply in certain cases –
         Nothing contained in these regulations shall apply to any matter or issue for which –
(a)    any proceedings, before any court or tribunal or under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force, are pending; or
(b)  a decree, award or an order has already been passed  by any competent court or tribunal or authority or forum or commission, as the case may be.”
18.    From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
19. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10”, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
20.   So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Hon’ble Supreme Court of India has given its view in various authorities, some of which we will discuss hereinafter. However, before discussing the authorities, we would like to discuss certain provisions of the Consumer Protection Act, 1986. 
    “1.      Short title, extent, commencement and application – 
                   (1)       This Act may be called the Consumer Protection Act,1986.
   (4)       Save as otherwise expressly provided by the Central                       Government by notification, this Act shall apply to all goods and services.
              2.    Definitions – (1) In this Act, unless the context otherwise                                     Requires --
(o)      “service” means service of any description which is made available to potential users and includes, but not limited to, the 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 of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
3. Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
21.    So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation. 
22.     The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others, 2004 (1) CLT 456”, wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Hon’ble National Commission was held right in holding that the view taken by the Hon’ble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Hon’ble Supreme Court in the above said authority. The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed as under:-
“(11)  From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever ‘appropriate, compensation to the consumers and to impose penalties for non-compliance of their orders.
(12)  As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar”.
So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation of any other law in force. 
                        It was further held by the Hon’ble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
23.    The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 2005 (3) CLT 30”, in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another statute are available. 
24.  In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10” (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force. The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
25.    In “State of Karnataka Versus Vishwahharathi House Building Coop. Society and others, 2003 (2) CLT 3”, where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, (1996) 6 SCC 385” and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter. 
26.  The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. 
27.    In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the Hon’ble Apex Court has observed:-
“It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be construed  liberally so as to bring many cases under it for their speedy    disposal. The Act being a beneficial legislation, it should receive a liberal construction.”
28.   The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Versus N.K. Modi, III (1996) CPJ 1 (SC)” has held:-
    “Accordingly, it must be held that the provisions of the Act  are to be construed widely to give effect to the object and   purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in   derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words “in derogation of the provisions of any other law for the time being in force”would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of  the provisions of the Arbitration Act. Prima facie, the  contention appears to be plausible but on construction and  conspectus of the provisions of the Act we think that the  contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of  the Code of Civil Procedure i.e. to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy”.
The Hon’ble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.
29.  The Hon’ble Supreme Court of India in “Lucknow Development Authority Versus M.K. Gupta, 1994 (1) CLT 1” has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
30.  In “General Manager, Telecom Versus M. Krishnan & Others” (supra), the Hon’ble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgements, reference of which has been given above, the Hon’ble Supreme Court has declared the Consumer Protection Act as a special legislation.  Time and again it has been held by the Hon’ble Apex Court of country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise. 
  His Lordship Markandey Katuj, J. in “State of U.P. Versus Jeet S. Bisht” (supra), in para No.66 and 67 of the judgement has observed as under :-
“66.    It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme  Court lays down a principle of law that it will amount  to a precedent. 
67.  In Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision  is binding. In State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that  everything in a decision is not a precedent. In Delhi Administration Vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC vs.ahadeva Shetty, 2003 (7) SCC 197, this Court observed as follows: 
“….. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope  and authority of a precedent should never be expanded  unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent  judge is the principle, upon which the case was decided…..”. 
31.     The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
32.    Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State. 
33.  The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/enactments relating to telecommunication. So we hold that the Fora established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications. 
34.  Now coming to the merits of the case, the connection of the complainant was disconnected without any notice. However, opposite party No.1, who is the dealer, has pleaded that he has no role to play in the disconnection of the connection of the complainant after the activation of the same. The disconnection, if any, has been done by opposite party No.2. Opposite party No.2 i.e. Bharat Sanchar Nigam Limited, who is the telecom service provider, has pleaded that in fact the connection is working and it was Charged/extended for validity in last month. However, no reason has been given as to why the connection of the complainant was disconnected. After the filing of the present complaint, opposite party No.2 has restored the services, but without any intimation to the complainant and the complainant could not use the said connection because he was under the impression that his SIM is not working. The complainant has definitely suffered loss and harassment at the hands of opposite party No.2. Opposite party No.2 has failed to give any explanation for the deficiency in service on their part. Opposite party No.2 is thus grossly deficient in service and is liable to be burdened with exemplary costs. In view of this, this complaint is allowed and opposite party No.2 is directed to activate the connection of the complainant for a period of another three months with due intimation to the complainant without charging any extra sum for the same. Opposite party No.2 is further directed to pay a sum of Rs.10,000/- to the complainant for the loss and harassment suffered by him. Opposite party No.2 is further directed to pay a sum of Rs.2000/- as litigation expenses to the complainant. The orders be complied with within a period of thirty days from the date of receipt of its copy. File be consigned to the record room. 
Pronounced  11.9.2009 
                                              (Sanjay Garg)                                         (Tarlok Singh) 
                                                 President                                                 Member
courtesy: advantage consumer.com 

Sunday, November 27, 2011

Regulations for Advocates

The rules of the Bar Council of India prohibits lawyers from advertising and soliciting work from public domains through communications.This blog is meant to give good free information on various laws prevailing in India and to create legal awareness and not primarily used for advertising.

Like this there are many regulations are there for advocates which are strictly applicable to advocates practicing in India and all should abide those rules and regulations made by the BCI in short .You can go through the regulations and also get more information in advocates act about the rules to be followed.

Further regulations are there about dress to be worn by men and women lawyers.Again regulations are also about your signboard which lawyers put in front of their offices.There are also rules about whether advocates can do other works along with practice of law.Getting informed well is good so budding lawyers should go through the regulations of Bar Council of India and Advocates Act.

Thursday, November 10, 2011

component makers will be heard by court..TATA singur case

The Calcutta HC on Tuesday allowed component makers of Tata Motors, who were allotted land in Singur, to be heard in litigation between the auto maker and the West Bengal govt



The Calcutta high court on Tuesday allowed component makers of Tata Motors Ltd, who were allotted land in Singur, to be heard in litigation between the auto maker and the West Bengal government.



Tata Motors, India’s biggest truck maker, in 2008 moved its small-car factory to Sanand in Gujarat from Singur following violent local protests. TheTrinamool Congress administration, after coming to power in May, enacted a law to take back the land alloted to Tata Motors and its parts suppliers.



Tata Motors challenged the constitutional validity of the Singur Act, and in a letter to West Bengal Industrial Development Corp. said its component suppliers have collectively spent Rs. 171 crore at Singur, while pegging its own sunk cost on the abandoned factory at Rs. 440 crore.

The Supreme Court on 29 June asked the state government not to distribute land in Singur.

A division bench of the high court, comprised of justices Pinaki Chandra Ghose and Mrinal Kanti Chaudhuri, will continue to hear the case on Wednesday.



The disputed law does not provide for any compensation to be paid to the parts makers. It, however, says Tata Motors will be compensated, but does not specify the method of arriving at a specific amount.



Calcutta high court judge Indra Prasanna Mukerji had on 28 September upheld the constitutional validity of the Singur Act, but stayed his judgement till 2 November to give time to Tata Motors to appeal against it.



Mukerji had pointed out in his order that the state’s proposal to compensate Tata Motors was “vague and uncertain”.



The car maker moved the division bench of the high court late last month with a two-pronged challenge. It appealed against Mukerji’s interpretation of the disputed Singur Act and said it was a victim of “hostile discrimination” for not being able to commission its small-car factory within the envisaged deadline.



Tata Motors has in its appeal cited examples of at least seven-eight companies to whom the state government had allotted land for projects that never took off, but the land was still not taken away, according to Siddhartha Mitra, a counsel for the firm.

source-http://www.lawyersclubindia.com/news/Component-makers-to-be-heard-by-court-13463.asp?utm_source=newsletter&utm_content=news&utm_medium=email&utm_campaign=nl_09_11_2011

for more legal news click here

Saturday, November 5, 2011

AJAY KUMAR DAS ..... APPELLANT VERSUS STATE OF JHARKHAND & ANR. ..... RESPONDENTS

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

1

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NO. 1735 OF 2011
ARISING OUT OF S.L.P. (CRL.) NO. 10005 OF 2009


AJAY KUMAR DAS ..... APPELLANT
VERSUS


STATE OF JHARKHAND & ANR. ..... RESPONDENTS


J U D G M E N T


1. Leave granted.
2. This appeal is directed against the order dated
19th August, 2009 passed by the Jharkhand High Court
dismissing the petition filed by the appellant herein
praying for quashing of the entire criminal proceedings
of Balumath P.S. Case No. 68 of 2006 (corresponding to
G.R. Case No. 445 of 2006) in which cognizance was taken
of the offence under Section 304B read with Section 34 of
the Indian Penal Code against the appellant and others.
3. The informant filed a First Information Report
that his daughter was married to the appellant herein in
the year 2002, as per the Hindu rites and custom and that
at the time of her marriage, informant had given
sufficient dowry. It was stated therein that the

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

2

informant's daughter complained about the torture meted
out to her by the father-in-law and the mother-in-law to
her husband, the present appellant who allegedly did not
pay any heed. It was also alleged that on 29th
September, 2006, father-in-law and the mother-in-law
talked to the accused on telephone and in a well-planned
conspiracy caused death of the daughter of the informant.
On receipt of the aforesaid information a case was
registered, thereafter the police started investigation.
After the completion of the investigation, a charge sheet
was filed on 14th April, 2001. An order was also passed
on 17th April, 2007, by the Magistrate taking cognizance
which is also assailed in the present case. The
appellant was granted bail by the High Court on 10th
April, 2007.


4. After submission of the aforesaid charge sheet and
passing of the order taking cognizance, the appellant
filed a petition under Section 482 of the Code of
Criminal Procedure praying for quashing of the proceeding
in the aforesaid manner. The High Court considered the
pleas raised by the parties and thereafter held that the
case is a case of dowry death and that the appellant is
the husband. It was also held that the points taken by
the appellant before the High Court are rather a defence
case and that the same relates to factual dispute. The

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

3

Court also referred to the decision of this Court in
State of Haryana v. Bhajan Lal reported in 1992 Suppl. 1
SCC 335 and also to the settled position of law that
genuineness of the allegations/charge is an issue to be
tried and the Court in exercise of its jurisdiction under
Section 482 of the Code of Criminal Procedure cannot
delve into such factual controversy so as to quash the
proceedings.


5. Learned counsel appearing for the appellant has
challenged the legality of the aforesaid order passed by
the High Court on the ground that no case is made out
against the appellant either under Section 304B or under
Section 34 of the Indian Penal Code as according to him
there is no such allegation in the First Information
Report specifically against the appellant. He has also
submitted that the order taking cognizance is wrong and
disclosed non-application of mind by the Magistrate for
even prior to passing of the said order charge sheet was
already filed. He also took us through the contents of
the case diary wherein statements of seven witnesses have
been recorded to substantiate his submission as
aforesaid.
6. Counsel appearing for the respondents, however,
submits that this is not the stage when this Court should
embark upon a factual inquiry as regards the materials on

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

4

record. It is also pointed out to us that in fact the
appellant would have such an effective opportunity even
at the stage when charges are framed. Counsel also
submits that it is possible and also permissible to alter
the charges and frame charges under some other provisions
of law if it appears to the Court that material for
framing such charge under other sections are also
available on record.


7. Having heard the learned counsel appearing for the
parties, we may appropriately refer to a decision of this
Court in Shanti & Another v. State of Haryana reported in
AIR 1991 SC 1226. What was considered in that case by
this Court was a case of dowry death under Section 304B
and also a case of 498A of the Indian Penal Code. While
dealing with the aforesaid provisions, this Court has
held that the two sections are not mutually exclusive.
It was also held that a person charged and acquitted
under Section 304B could be convicted under Section 498A
without charge being there if such a case is made out.
This Court, however, hastened to add that to avoid
technical defects it is necessary in such cases to frame
charges under both the sections and that if the case is
established then they can be convicted under both the
sections but no separate sentences need be awarded under
Section 498A in view of the substantive sentences being

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

5

awarded for the major offence under Section 304B. In
that decision, this Court considered the scope and ambit
of Section 304B IPC and also of Section 498A IPC.
Reference was also made to provisions of Section 113B of
the Evidence Act. It was held that Section 113B of the
Evidence Act lays down that if soon before the death such
woman has been subjected to cruelty or harassment for or
in connection with any demand for dowry then the Court
would presume that such a person has committed the dowry
death. It was also held that the meaning of 'cruelty'
for the purpose of this Section has to be gathered from
the language as found in Section 498A and as per that
Section 'cruelty' means 'any wilful conduct which is of
such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman or
harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security
or is on account of failure by her or any person related
to her to meet such demand.'


8. Our attention is also drawn to the decision of
Mahbub Shah v. King Emperor (1945) 72 Indian Appeals 148.
In the said decision, it was held that to invoke the aid
of Section 34 IPC exclusively it must be shown that the

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

6

criminal act complained against was done by one of the
accused persons in furtherance of common intention of all
and if that is shown then the liability for the crime may
be imposed on any one of the persons in the same manner
as if the acts were done by him alone. It was further
held that it is difficult if not impossible to procure
direct evidence to prove the intention of an individual;
in most cases it has to be inferred from his act or
conduct or other relevant circumstances of the case.


9. This Court in the decision of Bengai Mandal alias
Begai Mandal v. State of Bihar reported in (2010) 2 SCC
91 after referring to some allied decisions of this Court
held that the position with regard to Section 34 IPC is
crystal clear and that the existence of common intention
is a question of fact. It was held that since intention
is a state of mind it is, therefore, very difficult if
not impossible to get or procure direct proof of
intention and, therefore, courts in most cases have to
infer the intention from the act or conduct of the party
or other relevant circumstances of the case.
10. Counsel appearing for the appellant also drew our
attention to the same decision which is relied upon in
the impugned judgment by the High Court, i.e. the case of
State of Haryana v. Bhajan Lal and others reported in
1992 suppl. 1 SCC 335. In the said decision, this Court

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

7

held that it may not be possible to lay down any specific
guidelines or water tight compartment as to when the
power under Section 482 Cr.P.C. could be or is to be
exercised. This Court, however, gave an exhaustive list
of various kinds of cases wherein such power could be
exercised. In paragraph 103 of the said judgment, this
Court, however, hastened to add that as a note of caution
it must be stated that the power of quashing a criminal
proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases
for the Court would not be justified in embarking upon an
inquiry as to the reliability or genuineness or otherwise
of the allegations made in the First Information Report
or in the complaint that the extraordinary or the
inherent powers do not confer an arbitrary jurisdiction
on the Court to act according to its whim or caprice.


11. Keeping the aforesaid legal principles in our
mind, we now proceed to examine the contentions raised by
the counsel appearing for the appellant in order to
ascertain and find out whether a case for quashing is
made out in the facts of the present case. In the First
Information Report, there is an allegation that the two
other accused persons namely Ishwar Das and his wife
Sunita Devi on the fateful day after talking to the
present appellant over telephone in a pre-determined

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

8

manner killed the informant's daughter Bimla Devi by
pushing her into a well. Counsel appearing for the
appellant even sought to counter the said allegation by
referring to a document issued by the Commanding Officer
to the appellant dated 19th November, 2006. In the said
note, which was sent to the Superintendent of Police, it
is mentioned that as per the statement of the appellant
his wife Bimla Devi fell inside the well. The aforesaid
document is in the nature of a defence and could be
looked into by the appropriate Court at the appropriate
stage and not now. What we are required to look at this
stage is the allegations made in the complaint and in the
First Information Report. He also referred to some of
the statements made in the case diary to justify the
stand that no case against the appellant is made out.


12. We are, however, unable to accept the said
contention at this stage for we find that there was a
demand for giving cows, motor cycle and other goods. All
these allegations will have to be dealt with by the Court
at different stages for which liberty would be available
to the appellant. In our considered opinion, this is not
the stage when the Court would make an inquiry into the
factual position to find out as to whether or not the
appellant is guilty of the charges or not. The
appellant, in our considered opinion, will have

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

9

sufficient opportunity to place his entire case before
the Court at the time of framing of the charge since
charge sheet has already been filed against the appellant
also holding that a case under Section 304B and Section
34 is made out. We do not wish to enter into the factual
details for any discussion on them at this stage as the
same may prejudicially affect the case of the appellant.
We are, however, of the considered opinion that on a
reading of the First Information Report and the materials
that are available in the case file of the appellant that
no case is made out so as to quash the entire proceeding.
Therefore, while rejecting the contention of the counsel
appearing for the appellant so far quashing of the
proceedings is concerned we give him the liberty to raise
all his defence as may be available to him in accordance
with law at the time of framing of the charge and at that
stage the Court shall consider the material on record as
also the contentions raised by the appellant in proper
perspective and decide the matter in accordance with law.
We also make it clear that any observation made by us
herein would not be in any manner construed as our
observations or views with regard to the merit of the
case or the defence of the appellant.


13. In terms thereof, we dismiss the appeal but with
the aforesaid liberty granted to the appellant. The stay

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

10


of further proceedings before the trial court granted
vide this Court order dated 22nd October, 2010 stands
vacated.

.......................J
[Dr. MUKUNDAKAM SHARMA]


NEW DELHI


........................J
[ANIL R. DAVE]
SEPTEMBER 6, 2011.

Wednesday, November 2, 2011

Whether presidents and members of consumer forums can be transferred?

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6733 OF 2003

[Arising out of SLP (C) No.13683/2001]




State of Rajasthan & Ors. …Appellants
Versus

Anand Prakash Solanki ...Respondent




J U D G M E N T

R.C. Lahoti, J.





The questions arising for decision in this appeal are: Whether a President or a Member of the District Forum, constituted under Section 10 of the Consumer Protection Act, 1986 (hereinafter ‘the Act’, for short) can be transferred and, if so, which is the competent authority to transfer them? These questions are of significance inasmuch as the answers are likely to have far reaching implications on the working of District Fora under the Act.



Shri Anand Prakash Solanki, the respondent herein, was an officer belonging to the cadre of Rajasthan Higher Judicial Services. In the year 1996, he was working as a Special Judge in the cadre of Addl. District & Sessions Judges in the State of Rajasthan. He was appointed as President, District Consumer Protection Forum, Pali vide order dated 9.2.1996. While he was discharging the function as President of the Forum, sometime in the month of November, 1999 he was informed telephonically by the State Government that he was being transferred and posted as President, District Consumer Protection Forum, Jalore and in his place another person was appointed/posted as the President of the Forum at Pali. This telephonic communication was followed by a written communication dated 15.11.1999 appointing him as President, District Consumer Protection Forum, Banswara in supersession of the earlier orders.





The respondent filed a writ petition challenging the order of his transfer. A Division Bench of the Rajasthan High Court held that the concept of transfer is unknown for the President and members of District Fora in the scheme of the Consumer Protection Act, 1986 and, therefore, a person appointed as President of any District Forum cannot be transferred by the State Government. The order of transfer was directed to be quashed. Feeling aggrieved by the decision of the High Court, the State of Rajasthan has preferred this appeal by special leave. During the pendency of the petition, the respondent has retired and, having lost interest in contesting the matter, he has chosen not to make appearance. We requested Mr. Pallav Sishodia, Advocate, to assist the Court as an amicus curiae, which he agreed to do.



We have heard Shri Ranji Thomas, the learned counsel for the State of Rajasthan and Shri Pallav Sishodia, the learned amicus.



Leave granted.



A complete hierarchy of Commissions and Fora has been constituted from the national level to the district level by the Consumer Protection Act, 1986. There is a National Commission at the national level constituted under Section 20 of the Act and State Commissions constituted for the States under Section 16 of the Act. District Fora are constituted under Section 10 of the Act. These are the three-tier agencies established for the purposes of the Act as contemplated by Section 9. Each State Commission consists of a person, designated as President, who is, or has been, a Judge of a High Court, appointed by the State Government after consultation with the Chief Justice of the High Court. Then there are the members. Section 17 confers on the State Commission appellate and supervisory jurisdiction over the District Fora in quasi-judicial matters. Section 24B inserted by Act No.50 of 1993 w.e.f. 18.6.1993 provides as under:-

“24B. Administrative control.__ (1) The National Commission shall have administrative control over all the State Commissions in the following matters, namely:-



(i) calling for periodical return regarding the institution, disposal, pendency of cases;



(ii) issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents;



(iii) generally overseeing the functioning of the State Commission or the District Fora to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.





(2) The State Commission shall have administrative control over all the District Fora within its jurisdiction in all matters referred to in sub-section (1).”



(underlining by us)



Each District Forum in a State is constituted under Section 10 of the Act which reads as under:-

“10. Composition of the District Forum.__



(1) Each District Forum shall consist of, __



(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;



(b) two other members, who shall be persons of ability, integrity and standing, and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.



(1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:-



(i) the President of the State Commission - Chairman



(ii) Secretary, Law Department of the State - Member.



(iii) Secretary, incharge of the Department dealing with consumer affairs in the State - Member.



(2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier, and shall not be eligible for re-appointment:



Provided that a member may resign his office in writing under his hand-addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by the appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who has resigned.



(3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.”



It is clear from a bare reading of the abovesaid statutory provisions that though a District Forum is to be constituted and its President and members are to be appointed by the State Government, the power to appoint is exercisable only on the recommendation of a selection committee consisting of the President of the State Commission and two Secretaries of the State as provided by sub-Section (1A) of Section 10. The concept of appointment by transfer is not unknown to service jurisprudence. A power to appoint includes a power to revoke an appointment, and so also a power to make an appointment includes a power to make an appointment by transfer, subject to satisfying the requirements of Section 10 of the Act. The expression ‘appointment’ takes in appointment by direct recruitment, appointment by promotion and appointment by transfer. (See Indra Sawhney & Ors. Vs. Union of India & Ors., 1992 Supp. (3) SCC 217, para 827, per Jeevan Reddy, J.). In K. Narayanan & Ors. Vs. State of Karnataka & Ors., 1994 Supp.(1) SCC 44, the term ‘recruitment’ came up for the consideration of this Court and it was held that it is a comprehensive term which includes any method provided for inducting a person in public service such as appointment, selection, promotion and deputation which are all well known methods of recruitment and even appointment by transfer is not unknown. In Union of India Vs. A.R. Shinde & anr., (1987) 2 SCC 1, this Court noticed three modes of making recruitment, i.e. promotion, deputation and direct recruitment and at the same time held that an appointment by transfer too was unexceptionable.



It cannot be lost sight of that the National Commission, State Commissions and District Fora have all been constituted to exercise jurisdiction over such grievances of the aggrieved persons which were earlier available to be raised before the conventional courts established under the Constitution and/or the laws. Inasmuch as the persons appointed to discharge functions under the Act at whatever level exercise judicial powers and are expected to function judicially consistently with the procedure as laid down by the Act or Rules framed thereunder, the very nature of the functions discharged by them needs them to be insulated from the control of, or interference by the Executive. So far as the District Fora are concerned, the purpose is sought to be achieved by sub-Section (1A) of Section 10 as also by Section 24B of the Act. Every appointment under sub-Section (1) of Section 10, though made by the State Government, is dependent on the recommendation of a selection committee which is headed by the President of the State Commission who is, or has been, a Judge of a High Court. The administrative control over all the District Fora within the State has been vested in the State Commission in all the matters contemplated by clauses (i), (ii) and (iii) of sub-Section(1) of Section 24B. The power conferred on the National Commission by clause (iii) of sub-Section (1), exercisable by the National Commission over the State Commissions and District Fora, read mutatis mutandis confers the same power on the State Commission qua District Fora within the State by virtue of sub-Section (2). Keeping in view the purpose sought to be achieved by these provisions, Section 24B has to be so construed as to spell out administrative control in favour of the National Commission over all the State Commissions and District Fora and in favour of the State Commission over all the District Fora within its jurisdiction, whenever there is any doubt. In other words, clauses (i), (ii) and (iii) abovesaid have to be liberally and widely interpreted.



It is true that there is no cadre as such of the President and the members of the District Fora contemplated by the Act and this is the principal consideration which has prevailed with the High Court for holding that the President and members of District Fora are not liable to be transferred inasmuch as there is no single cadre of such persons in the State. We cannot subscribe to that view. The existence of one cadre is not essential and is not the sine qua non to make available the power of transfer. As District Fora, more than one, are constituted within the State, there is nothing wrong in the President or members of one District Forum being appointed by transfer to another District Forum, subject to the requirement of sub-Section (1A) of Section 10 being satisfied. Such appointment by transfer shall be made by the State Government but only on the recommendation of the committee consisting of the President of the State Commission and two Secretaries, i.e. the committee composed as per sub-Section (1A) of Section 10. Such appointment by transfer cannot be a frequent or routine feature. The power is there but is meant to be exercised sparingly and only in public interest or in such exigencies of administration as would satisfy the purpose of constituting the District Forum. The broader concept of ‘transfer’ is a change of the place of employment within an organization. Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out. The power, like all other administrative powers, has to be exercised bona fide.



The High Court has in its judgment referred to two decisions of this Court namely General Officer Commanding-in-Chief & Anr. Vs. Dr. Subhash Chandra Yadav & anr., (1988) 2 SCC 351 and Om Prakash Rana Vs. Swarup Singh Tomar & Ors., (1986) 3 SCC 118.



Dr. Subhash Chandra Yadav’s case (supra) is one where the Central Government proposed to transfer the person in employment of one Cantonment Board to another Cantonment. This Court held that under the Cantonments Act, 1924 each of the Cantonment Boards is an autonomous body and the employees of one Cantonment Board cannot be transferred to another Cantonment Board inasmuch as the service under the Cantonment Board is not a centralized service or a service at the State level. The law so laid down has no applicability to the facts of this case. The President and members of the District Forum are in the employment of the State Government and all the Presidents and members of the District Fora within one State serve under the same employer at the State level.



In Om Prakash Rana’s case this Court was mainly concerned with the impact of the Services Commissions Act on the provisions of the Education Act and held that after the commencement of the Services Commissions Act, it was not permissible to invoke the provisions of the Education Act and regulations framed thereunder for the purpose of transferring a Principal from one institution to another because the subsequent Act had superseded the provisions of the earlier Act in that regard. During the course of its judgment the Court held that the scheme under the relevant statutory enactments envisaged the appointment of a Principal in relation to a specific college and to no other. Different colleges may be owned by different bodies or organizations so that each Principal serves a different employer. On appointment as a Principal to a college a contract of employment with a particular employer comes into existence. The Court further held __

“There is no State-level service to which Principals are appointed. Had that been so, it would have been possible to say that when a Principal is transferred from one College to another no fresh appointment is involved. But when a Principal is appointed in respect of a particular College and is thereafter transferred as a Principal of another College it can hardly be doubted that a new appointment comes into existence. Although the process of transfer may be governed by considerations and move through a machinery different from the considerations governing the appointment of a person ab initio as Principal, the nature of the transaction is the same, namely, that of appointment, and that is so whether the appointment be through direct recruitment, through promotion from the teaching staff of the same institution or by transfer from another institution.”



The abovesaid decision is partly distinguishable inasmuch as the transfer therein involved a change of employer which is not the case at hand. The principle laid down by this Court in Om Prakash Rana’s case (supra) rather supports the view which we have taken inasmuch as the Court has clearly spelled out that the process of transfer may involve the same considerations as governing a fresh appointment and there can be an appointment by transfer.



The scheme of the Act does not prohibit or exclude the exercise of power to transfer the President or members from one District Forum to another District Forum within the State. Power to transfer vests in the State Government as employer and is available to be exercised on the recommendation of committee contemplated by sub-Section (1A) of Section 10 of the Act. The view to the contrary taken by the High Court cannot be countenanced.



The appeal is allowed. The judgment of the High Court is set aside.



We place on record the appreciation of valuable assistance rendered by the learned amicus to the Court.





……….....................J

( R.C. LAHOTI )







...........……………….J.

( ASHOK BHAN )

sponsors ads