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2004 DIGILAW 279 (KER)

Christ Nagar S. S. School v. Union of India

2004-06-23

K.BALAKRISHNAN NAIR

body2004
Judgment :- K. Balakrishnan Nair, J. The very same point is raised in these two Writ Petitions. Therefore, they are heard and disposed of together. W.P.(C)No.6584/04 2. The petitioner is the Manager of Christ Nagar Senior Secondary School, Thiruvallom, Thiruvananthapuram. This Writ Petition is filed by him, challenging Ext.P4 order passed by the 3rd respondent District Consumer Disputes Redressal Forum, on a complaint filed by the 4th respondent. The brief facts of the case as stated by the petitioner, are the following:- 3. The petitioner is running a C.B.S.E. School at Thiruvananthapuram. A Parent- Teacher Well-wishers' Association is functioning in the school. The said Association decided to celebrate the jubilee year of the parent school of the petitioner's new school. In connection with that, it was decided to raise a fund for improving the functioning of the said old school. The decision was to collect Rs.1,000/- from each student. Many of the parents gave the donation as desired by the Association. But, since some difference of opinion was voiced by some of the parents, the amount so collected was refunded. The parents of a few students were working against the interest of the school. Therefore, it was decided to request those parents to get the TC of their children from the school. In the above background, the 4th respondent herein, who is the father of a student, filed Ext.Pl complaint dated 15.05.2002, before the 3rd respondent District Consumer Disputes Redressal Forum. The points raised in Ext.Pl were the following:-1.The petitioner collected an amount of Rs. 1,0007- towards the Jubilee Fund. 2.A T-shirt worth Rs.40/- was compulsorily sold to the children at the rate of Rs.105/-. 3. The 4th respondent's child was removed from the rolls of the school. The petitioner filed a statement, containing his version of the incidents, a copy of which is produced as Ext.P2 in this Writ Petition. He submits that the amount collected was refunded and the purchase of the T-shirt was only optional. The 4th respondent's child was permitted to continue in the school also. Therefore, according to the petitioner, no cause of action survived, to proceed with Ext.Pl complaint, by the District Forum. 4. While so, owing to some misunderstanding, the petitioner's Counsel, who was appearing in the District Forum, relinquished his vakalath, by Ext.P3 letter. The 4th respondent's child was permitted to continue in the school also. Therefore, according to the petitioner, no cause of action survived, to proceed with Ext.Pl complaint, by the District Forum. 4. While so, owing to some misunderstanding, the petitioner's Counsel, who was appearing in the District Forum, relinquished his vakalath, by Ext.P3 letter. The petitioner took the entire files from him and gave them to his Counsel at Ernakulam, with the intention of entrusting the case to the said Counsel. But, because of some communication gap, the Counsel at Ernakulam thought that the files were brought to him only for consultation. Therefore, there was no appearance for the petitioner in the District Forum. In his absence, an award was passed against him. The petitioner came to know of it, only when the order was communicated to him. The copy of the award is Ext.P4. It is submitted, he received it by post on 10.1.2004. This Writ Petition is filed, challenging Ext.P4. 5. The case of the petitioner is that the President of the District Forum was not present, when Ext.P4 order was passed. According to him, the presence of the President is mandatory for the hearing and disposal of complaints filed by consumers. Reliance is placed on S.14(2) of the Consumer Protection Act, 1986. S.221), which is recently introduced, enabling the senior-most Member of the District Forum to function as the President of the Forum in his absence, is attacked as unconstitutional. So, the petitioner submits, in the absence of the President, the Forum was incompetent to pass Ext.P4. The President alone is the judicially trained person in the Forum, which is competent to decide the rights of parties. Going by the scheme of S.14 of the Consumer Protection Act, in the absence of the President, the Forum cannot discharge any judicial function. S.22D should be read down as authorizing the senior-most Member of the Forum to exercise the administrative functions of the President and not judicial. Any other interpretation will make the said provision unconstitutional, as being violative of the rights of the petitioner under Art.21 of the Constitution of India, it is contended. The 4th respondent has filed a detailed counter affidavit, supporting the impugned order and meeting the contentions of the writ petitioner. I heard the learned Counsel on both sides. S.10 of the Act deals with the composition of the District Forum. The 4th respondent has filed a detailed counter affidavit, supporting the impugned order and meeting the contentions of the writ petitioner. I heard the learned Counsel on both sides. S.10 of the Act deals with the composition of the District Forum. The President shall be a person, who is or has been or is qualified to be a District Judge. The two other Members shall be graduates with certain qualifications, prescribed in Cl.(iii) of S.10(1)(b). Ss.14(2) and (2A) are the provisions mainly relied on by the petitioner in support of his contentions. They are extracted below for convenient reference: "14(2). Every proceeding referred to in sub-s.(1) shall be conducted by the President of the District Forum and at least one member thereof sitting together: Provided that where a member, for any reason, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceeding from the stage at which it was last heard by the previous member. (2 A). Every order made by the District Forum under sub-s.(1) shall be signed by its President and the member or members who conducted the proceeding: Provided that where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum." As per sub-s.(2), the presence of the President is necessary for the conduct of business of the Forum. Further, as per sub-s.(2A), every order of the District Forum shall be signed by the President and the Member or Members, who conducted the proceedings. S.22D reads as follows:- MD. Vacancy in the office of the President -- When the office of the President of a District Forum, State Commission or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise unable to perform the duties of his office, these shall be performed by the senior-most member of the District Forum, the State Commission or of the National Commission, as the case may be." 6. The first contention of the petitioner is that S.22D should be read down as authorizing the senior-most Member of the Forum to discharge the administrative functions of the President, in his absence. But, the golden Rule of Interpretation is that the Courts should give the natural meaning to the words used by the Legislature. S .22D expressly enables the senior-most Member to perform the duties of the office of the President, in his absence. His duties will include those relating to judicial functions also. In other words, the duties under Ss.14(2) and 14(2A) can also be discharged by the senior-most Member, by virtue of S.22D. 7. The second contention of the petitioner is that S.22D is unconstitutional, for being opposed to Ss. 14(2) and (2A). A newly introduced statutory provision cannot be declared as unconstitutional, for being opposed to an existing provision in the statute. If there is conflict, the Rules of Interpretation say that the newly introduced provision will prevail, because it represents the latest expression of the will of the Parliament. 8. The third contention of the petitioner is that the authority given to a Member, who does not have the judicial experience to sit in judgment over the rights of parties under S.221), is unconstitutional, as the said provision violates the rights of the petitioner under Art.21 of the Constitution of India. In many statutes, including those relating to imposition of taxes, we find that judicial functions like deciding the rights of parties and hearing the appeals from the decisions of lower authorities, are entrusted with Department Officers. Those provisions cannot be attacked on the ground that those Officers are not legally trained persons. So, the absence of a judicially trained person in a Forum, deciding the rights of parties, will not affect the validity of the proceedings. The provision enabling such adjudication cannot be declared as unconstitutional also. The contention of the petitioner that such a provision will violate his rights under Art.21 of the Constitution, cannot be accepted. Here, the arrangement under S.22D is concerning a stop-gap-arrangement, when the President of the Forum is not available. If an Officer is put in charge of an Officer on leave, the former can exercise all the functions and powers of the latter. This position is permissible, in the light of S.19 of the General Clauses Act, 1897. Here, the arrangement under S.22D is concerning a stop-gap-arrangement, when the President of the Forum is not available. If an Officer is put in charge of an Officer on leave, the former can exercise all the functions and powers of the latter. This position is permissible, in the light of S.19 of the General Clauses Act, 1897. Similar provisions are contained in the Interpretation and General Clauses Act of our State, meant for interpreting State Enactments. Ss.13(2) and 18 deal with such contingencies. 9. Apart from that, S.29A of the Act will save the awards passed, even if there is a vacancy in the District Forum. The said provision reads as follows:? "29A. Vacancies or defects in appointment not to invalidate orders. -No Act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof." The Member mentioned is S.29A will include the President also, in the light of the definition of member contained in S.20j) of the Act, which reads as follows:? "2(j) "Member" includes the President and a member of the National Commission or a State Commission or a District Forum, as the case may be." The provisions of S.14 applicable to the District Forum will apply mutatis mutandis to the State Commission by virtue of S.18 of the Act. Interpreting Ss.14(2) and 14(2A) read with S.18, the Apex Court, in Gulzari Lal Agarwal v. Accounts Officer ((1996) 10 SCC 590), had held that the vacancy of President of the State Commission will not invalidate the award passed by it. The relevant portion of the said judgment reads as follows:- "17. After giving careful thought to the rival contentions raised before us, we are of the considered opinion that the relevant provisions which we have quoted hereinabove will have to be construed harmoniously to promote the cause of the consumers under the Act. As indicated earlier, the definition of member includes the President and a member of a District Forum/State Commission. It is true that sub-s.(2) of S.14 read with S.18 requires that every proceeding referred to under sub-s.(1) shall be conducted by the President of the District Forum/State Commission and atleast one member thereof sitting together. As indicated earlier, the definition of member includes the President and a member of a District Forum/State Commission. It is true that sub-s.(2) of S.14 read with S.18 requires that every proceeding referred to under sub-s.(1) shall be conducted by the President of the District Forum/State Commission and atleast one member thereof sitting together. Sub-s. (2A) is consequential in the sense that every order made by the State Commission under sub-s.(1) shall be signed by its President and the member or members who conducted the proceeding. The procedure applicable to the District Forum is made applicable to the State Commission vide S.18 with such modifications as may be necessary. Plain reading of sub-s.(2) and (2A) of S.14 may support the view taken by the National Commission but if these provisions are read with S.29A of the Act and sub-rr.(9) and (10) of R.6, it would be quite clear that it could never be the intention of the Legislature to stall or render the State Commission nonfunctional in the absence of the President either having not been appointed in time due to some valid reasons or if the President is on leave due to certain reasons beyond his control". This decision squarely covers the point raised by the petitioner. 10. In view of the above position, the challenge against Ext.P4 on the ground that it has been passed without competence, cannot be accepted. Therefore, the Writ Petition fails and it is accordingly dismissed. 11. It is made clear that I have not expressed any opinion on the merits of the decision contained in Exf.P4, The grievances of the petitioner that the matters raised in Ext.P 1 are not matters, which can be adjudicated under S. 14(1) and that the decision on facts is unsustainable, etc., are kept open. If so advised, the petitioner may invoke the appellate remedy available to him before the State Commission. In that event, the period, this Writ Petition was pending before this Court, shall be excluded while computing the period of limitation in invoking the appellate remedy before the State Commission. 12. The petitioner herein is the petitioner in W.P.(C) No.6584/04. The 4th respondent herein is the parent of another student in this school. Ext.P4 order, passed by the 3rd respondent District Forum, is under challenge in this Writ Petition. The points raised in this Writ Petition are identical to those raised in W.P.(C) No.6584/04. 12. The petitioner herein is the petitioner in W.P.(C) No.6584/04. The 4th respondent herein is the parent of another student in this school. Ext.P4 order, passed by the 3rd respondent District Forum, is under challenge in this Writ Petition. The points raised in this Writ Petition are identical to those raised in W.P.(C) No.6584/04. So, the decision in that Writ Petition will govern this case also. Accordingly, the Writ Petition is dismissed without prejudice to the right of the petitioner to invoke the appellate remedy before the State Commission. The period, this Writ Petition was pending before this Court, shall be excluded, while computing the period of limitation in invoking the appellate remedy.