Chairman, Board of examinations,Madras 
Vs 
Mohideen Abdul Kader

Dr. (Mrs.) R.Thamarajakshi, Member.

Revision Petition No. 545 of 1994 has been filed by the Chairman, Board of Examinations, Department of Technical Education, Madras against the order dated 13th December, 1993 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu in Appeal No.23/93 wherein the Revision Petitioner - herein had appealed against the order dated 10th December, 1992 of the Tirunelveli Kattabomman District Consumer Disputes Redressal Forum, Tamil Nadu. The Respondent - Complainant before the State Commission is the Respondent before us, while Chairman, Board of Examination, Department of Technical Education, Madras, Principal, S.A.Raja's Polytechnic, Vadakkankulam and Correspondent, S.A.Raja's Polytechnic, Vadakkankulam were respectively Opposite Party No.1, Opposite Party No.2 and Opposite Party No.3 before the District Forum.

The facts of the case, as available from the records, are briefly as follows: When the Complainant, a student of the Diploma course in Electrical Engineering in S.A.Raja's Polytechnic went to the examination hall on 22nd October, 1991 to write his III Semester Examination in Production Technology - I, the Hall Supervisor told that the Code Number of that examination paper was 1 while the Complainant's hall ticket gave the number as 2 and that he was not eligible to write the examination. He could not, therefore, write the examination. On subsequent verification, however, it was found that the code Number for that paper was only 2 and it had been correctly entered in the hall ticket. It was the Complainant's case that the Invigilator had committed the mistake and the Opposite Parties were vicariously liable for the negligence; he claimed Rs. 25,000/- as compensation for the same. The contention of the Opposite Party was as follows: The Complainant was in a confused state of mind in regard to the subject code. Due to this confusion, he had tampered with the hall ticket and he was asked to get the initials of the Chief Superintendent who after warning him made necessary corrections and put his initials. However, when the Complainant went to the examination hall, he told the Invigilator that he was going to write paper with Code No.1 instead of Paper with Code No.2 and the Invigilator told him that there was no examination for paper with Code No.2 on that day. The case of the Opposite Parties was that the mistake was due to the confusion on the part of the Complainant and that, therefore, there was no deficiency of service and negligence on the part of the Invigilator. On the basis of oral and documentary evidence produced by the Complainant and affidavits filed by the Opposite Parties, the District Forum found that there was deficiency of service and negligence on the part of the Invigilator in refusing to allow the Complainant to write the examination on 22nd October, 1991 and granted compensation of Rs.2,000/- and costs of Rs. 200/- against the Opposite Parties.

Separate appeals against this order of the District Forum were filed before the State Commission by Opposite Party No.1 (A.P.23/93) and Opposite Party No.2 & 3 (A.P.52/93). On an examination of the case, the State Commission observed that as far as the corrections/tampering in the hall ticket were concerned, the Chief Superintendent had made the necessary corrections made thereon. The State Commission further held that whereas the Complainant had examined himself as PW1 and another student who took the examination on that day as PW2 to show that it was the Invigilator who told the Complainant that the examination was paper with Code No.1 and did not allow the Complainant to write his examination because his hall ticket mentioned Code No.2, the Opposite Party 1 had not chosen to examine the particular Invigilator to substantiate the contention that it was the Complainant who was in a state of confusion regarding the code number nor had filed any affidavit from the Invigilator. The State Commission thus concluded that the testimony of PW1 and PW2 that it was the Invigilator who informed the Complainant that the examination on that day was for paper bearing Code No.1 and sent out the Complainant stands unrebutted. The State Commission, therefore, confirmed the findings of the District Forum but held that the Opposite Parties 2 & 3 had absolutely nothing to do with the conducting of examination except placing the college premises at the disposal of the Opposite Party No.1. In the result, the State Commission held that there was gross deficiency on the part of Opposite Party No.1 and confirmed the award of compensation of Rs. 2,000/- and costs of Rs. 200/- against the Opposite Party No.1, while doing so, the State Commission considered in depth the larger issue of whether education is a service maintainable under the Consumer Protection Act and answered the same in the affirmative.

In the Revision Petition before us also, the main contention are : i) whether a candidate appearing at an examination could be said to hire the services of the examining body for holding an examination ii) whether holding an examination in discharge of statutory functions could be said to be rendering service for consideration and iii) whether matters relating to the holding of an examination are within the purview of the Consumer Redressal Forum.

In my view, these are specific issues and are integral components of the basic issue of whether imparting of education per se is within the purview of Consumer Protection Act; the specific issues and the basic issue are inseparable and therefore cannot be delinked. To be able to satisfactorily handled the aforesaid specific contentions in the Revision Petition, the basic issue whether imparting of education is covered under the Act as a service has to be first dealt with. It is, therefore, proposed to consider the issues in an integrated way.

Education is imparted through schools, colleges, institutions and Universities, and the educational institutions may be private, government or autonomous bodies. Imparting of education is a composite activity consisting of several components, namely, admission to these institutions, teaching and instruction, conducting of examinations, evaluation of performance of students in the courses they have undergone, issuance of certificates and diplomas of achievement and mark sheets, etc., which require payment of prescribed fees (consideration) by the students/candidates to the educational authorities unless specified as "free".

To examine whether imparting of education is a service under the Act, the definitions of "Consumer" "Service" and "Deficiency" therein are relevant.

Section 2(1)(d) of the Act defines Consumer as meaning :

"(i) any person who buys any goods for a consideration etc ; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

Section 2(1)(o) of the Act defines "Service" as meaning :

"Service of any description which is made available to potential users and includes 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 contract of personal service." 

Section 2(1)(g) of the Act defines 'deficiency' as meaning :

" any fault. imperfection, shortcoming 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"

The above definitions of "Consumer" "Service" and "Deficiency" are seen to be intended to have wide scope of interpretation. The words "any services for a consideration" in the definition of "Consumer" points to the generally non-restrictive nature of the definition in relation to service. The scope of definition of 'service' in the Act has been discussed in extenso by the Supreme Court in Lucknow Development Authority Vs. M.K.Gupta 1986 - 95 Consumer 278 (NS) and more recently in Indian Medical Association Vs. V.P.Shantha & Others. 1986 - 95 (Supp.I) Consumer 1569 (NS). After pointing out that the definition of 'service' in the Consumer Protection Act is in three parts, the Supreme Court has observed in the former case :

"The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to many service made available to potential users. The words "any" and "potential" are significant. Both are of wide amplitude. The word "any" dictionarily means "one or some or all". In Black's law dictionary it is explained thus, word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and subject matter of the statute. The use of the word "any" in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all."

Referring to the inclusive part of the definition, the Supreme Court in the above said case observed :

"The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a contract of personal service is included in it."

The Supreme Court also made observations in the same caseon the larger issue whether the public authorities under different enactments are amennable to jurisdiction under the Act. Referring to the arguments placed before them in that case that the local authorities or Government bodies develop land and construct houses in the discharge of their statutory functionns and that therefore, they could not be subjected to the provisions of Act, the Court observed:-

"In fact the Act requires the provider of service to be more objective and care taking. It is still more in public services."

They further observed:- "Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and the spirit behind it."

The words "avails of" in Section 2(1)(d)(ii) as alternative to "hires" in the same section as also the words "has beenn undertaken to be performed in pursuance of a contract or otherwise in relation to any service" in Sectionn 2(1)(g) have the effect of bringing under the purview of the Consumer Forum, services rendered by bodies like universities which are established for rendering specified services and which services are availed of for a consideration, even in the absence of any arrangement or contract to hire such services.

I would also like to discuss the question of the Doctrine of Stare Decises vis-a-vis the instant case. The Doctrine of Stare Decises is defined in Black's Law Dictionary as follows:

"To abide by, or adhere to decideed cases. Policy of courts to stand by precedent and not to disturb settled point. Neff V.George, 364 III 306, 4 N.E. 2d 388, 390, 391. Doctrine that, when court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and applyit to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. Horne V Moody, Tex.Civ.App., 146 S.W. 2d 505, 509 and 510. Under doctrine a deliberate or solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy. State V Mellenberger, 163 or 233, 95 P2d, 709, 719, 720. Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognised and followed, though later found to be not legally sound, but whether previous holding of court shall be adhered to, modified, or overruled is within Court's discretion under circumstances of case before it. Ottar Tail Power Co. V. Von Bank, 72N.D 497, 8N.W. 2d 599, 607. Under doctrine when point of law has been settled by decision, it forms precedent which is not afterwards departed from, and while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. The doctrine is not ordinarily departed from where decision is of long-standing and rights have been acquired under it, unless consideration of public policy demand it. Colonial Trust Co. V. Flanagan 344 Pa. 556, 25A, 2d, 728, 729. The doctrine is limited to actual determination in respect of litigated and necessarily decided questions and is not applicable to "dicta or obiter dicta". (Black's Law Dictionary, Sixth Edition, Centennial Edition 1891 1991 Page 1406).

The doctrine applies in regard to decided cases. In so far as the National Commission has not decided on the basic question of whether education is a service under the purview of the CPA (from which question the specific questions in the Revision Petition arise), the doctrine is not applicable to the case on hand. A careful reading of the above definition of the doctrine shows that flexibility is given to the adjudicating bodies in dealing with different cases. This is clear from the following relevant extracts from the definition; i.e. "whether previous holding of court shall be adhered to, modified, or overruled is within court's discretion under circumstances of case before it". "While it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice". It may be mentioned that in the recent decision of the Supreme Court in Civil Appeal No.11603/95 S.P.Goel vs. Collector of Stamps, Delhi, the Supreme Court has specifically considered the scope, object and purpose of the Registration Act, 1908 and the Indian Stamps Act, 1899 vis-a-vis the Consumer Protection Act and have held that the former two Acts deal with State Revenue and pointed out that :

" The Registration Act as also the Stamp Act are meant primarily to augment the state revenue by prescribing the stamp duty on various categories of instruments or documents and the procedure for collection of stamp duty through distress or other means including criminal prosecution as non-payment of stamp duty has been constituted as an offence. Payment of registration fee or registration charges including charges for issuing certified copies of the registered documents or fee for the inspection of various registers or documents kept in the Registrars or Sub-Registrars office etc. constitute another component of state revenue. In this situation, therefore, the person who presents a document for registration and pays the stamp duty on it or the registration fee, does not become a consumer nor do the officers appointed to implement the provisions of the two Acts render any service within the meaning of Consumer Protection Act. They only perform their statutory duties (some of which, as earlier indicated, are judicial or, at least, quasi-judicial in nature) to raise and collect the State revenue which is a part of the sovereign power of the State." 

The Supreme Court has further observed as under :
"We have already indicated above that under the Registration Act as also under the Stamp Act, the officers, apart from performing administrative duties, also, at times, perform quasi-judicial functions. The Courts are also involved at some stage in the matter of determination of stamp duty. The Courts and the officers are thus component of one and the same set up under these Acts. The Presiding Officers of the Courts are protected under the judicial officers (Protection) Act, 1850, read with the Judges (Protection) Act, 1985. But, so far as the officers are concerned the position is a little different. Since 'Collector' has been specifically mentioned along with Judges, Magistrates and Justices of Peace in the Judicial Officers (Protection) Act, 1850, it is obvious that immunity from legal action contemplated by this Act will also be available to him."

From the aforesaid, it is obvious that since the fee collected in respect of educational institutions is not in the nature of State revenue and the officers of these institutions cannot, therefore, be educated to the Collector/Registrar under the respective Acts, the decision of the Supreme Court in S.P. Goel Vs. Collector of Stamps, Delhi is not applicable to the matter on hand. The Consumer Protection Act (1986) is an important social welfare legislation aiming 'to provide for the better protection of the interests of Consumers'. Consumer legislation in India is in an evolutionary stage and it is only in November, 1995 that the Supreme Court has said the final word on the applicability of the Act to consumers of medical services. A positive approach is needed in interpreting the provisions of the Act to capture to a maximum extent the spirit underlying the enactment to render natural justice to consumers and also to make those rendering these services accountable. In the light of the aforesaid discussion, the answer to the basic question whether imparting of education is a service under the purview of the Act is in the affirmative and therefore the answers to the specific issues in the Revision Petition -which are operational aspects of the basic question - are also in the affirmative. It has been seen above that this conclusion based on the integrated examination of the basic and specific issues does not upset the doctrine of Stares Decises. I am therefore, of the opinion that the order of the State Commission, Tamil Nadu does not suffer from any error of jurisdiction or material irregularity and that it does not call for any interference in the hands of this Commission. Revision Petition is accordingly dismissed. No costs.

Sd/- (R.Thamarajakshi).....Member 
I agree
Sd/- (S.P.Bagla) .............Member