POST MASTER GENERAL
West Bengal Circle, General Post Office (G.P.O.), "Yogayog Bhavan", P-36, Chittaranjan Avenue
Kolkata - 700027
West Bengal                                                           ...........Petitioner(s)
                                                       Versus    
DIPAK BANERJEE & ANR.
Vill. & P.O.: Garalgacha, Police Statio: Chanditala
Hooghly
West Bengal                                                           ...........Respondent(s)

BEFORE:    
     HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT
     HON'BLE MRS. M. SHREESHA, MEMBER

Dated : 02 Jul 2015
 
D.K. JAIN, J., PRESIDENT

1.       The short question for consideration in the present Revision Petition, preferred by the Postmaster General, West Bengal Circle, Kolkata (for short “the Postal Department”), is whether or not the Postal Department is liable to pay compensation on account of delay of over 20 days in delivery of an article in the course of transmission by post?

2.       The issue arises in the following set of facts:

          The Complainant, Respondent No.1 herein, an unemployed educated youth, got himself registered with the Employment Exchange.  Sometime, in the year 2007, Respondent No.2, a Public Sector Undertaking, issued an advertisement for the post of Journeyman (Welder). Since the Complainant was possessing the requisite qualifications, he applied for the said job.  On the basis of a written test, held on 22.09.2007, out of 40,000 applicants, he was declared as one of the successful applicants. Respondent No. 2 sent to the Complainant, a call letter on 01.10.2007, through speed post, from Garden Reach Post Office, Kolkata, requiring him to appear for the Trade Test on 11.10.2007 at 2:00 p.m. at Kolkata.  However, the said letter was delivered by the Petitioner to the Complainant, at Village and Post Office, Garalgacha, District Hooghly, on 22.10.2007, i.e. 21 days after its posting, with the result that the Complainant missed the said test and a chance to get the job.

3.       Contending that it was because of the failure of the Postal Department, in not delivering the said Article within 72 hours, as stipulated under the provisions of the Indian Postal Rules and Regulations, a wrongful loss was caused to him, as he was unable to appear in the Trade Test on the notified date and time, and consequently lost the job/employment, the Complainant made representation to the Petitioner for adequate compensation, but without any success.

4.       Alleging deficiency in service on the part of postal department in delay in delivery of article in collusion with Respondent No.2, the Complainant filed a Complaint, being No.456 of 2007, before the District Consumer Disputes Redressal Forum, Unit-II at Kolkata (for short “the District Forum”), praying for a direction to the Postal Department to pay a compensation of ₹9,60,000/- for wilful and deliberate delay on its part, besides litigation costs. As regards Respondent No.2, with whom the Complainant had applied for the post advertised, it was prayed that they may be directed to keep one post vacant for the Complainant till the disposal of the Complaint.

5.       Both the Postal Department and Respondent No.2 contested the Complaint before the District Forum.  In its written version, the Petitioner contended that the speed post letter, booked by Respondent No.2, was delivered to the Complainant on 18.10.2007 and not 22.10.2007, as alleged by him; as per the relevant Scheme, the speed post charges would be refunded to the Complainant because of delay in delivery; and further, in view of the provisions of Section 6 of the Indian Post Office Act, 1898, the Postal Department was not liable to pay any compensation for the delay in delivery of an Article.  The stand of Respondent No.2 was that it was not responsible for the delay in delivery of its letter, sent by speed post; and since the selection process was over, the same could not be reversed and that no post could be kept vacant for the Complainant at that stage.

6.       Upon consideration of the evidence adduced by the parties, including Manual No.4 of Indian Post, which, while stipulating for delivery norms for various postal services, postulates that the mails, having destination within city/town/district, had to be delivered within two days of the date of posting, the District Forum held that since the Petitioner had taken 21 days in delivering the letter in question within the city, it was liable for deficiency in service. So far as Respondent No.2 was concerned, the District Forum did not find it liable for any deficiency in service. Accordingly, while dismissing the Complaint against Respondent No.2, and allowing it against the Postal Department, the District Forum directed the latter to pay a compensation of ₹2,00,000/- to the Complainant within a period of one month from the date of the order.  In default, the said amount was to carry interest @ 12% p.a. from the date of filing the complaint till realization.

7.       Questioning the correctness and legality of the order passed by the District Forum, the Postal Department preferred Appeal (No. 199 of 2009), before the State Consumer Disputes Redressal Commission, West Bengal (for short, “the State Commission”).  By the impugned order, though the State Commission has affirmed the finding of deficiency in service on the part of the Postal Department, but has reduced the compensation, to be paid by the Postal Department, to ₹1,00,000/-. Hence, the present Revision Petition by the Postal Department under Section 21 (b) of the Consumer Protection Act, 1986 (for short, “the Act”).

8.     Learned Counsel appearing for the Petitioner assailed the order on the sole ground that in view of clear statutory provisions contained in Section 6 of the Indian Post Office Act, 1898, both the Fora below committed a patent illegality in awarding compensation against the Postal Department. In support, Learned Counsel placed reliance on the decisions of this Commission, rendered in Head Post Master, Post Office Railway Road Kurukshetra, Haryana & Ors. Vs. Vijay Rattan Aggarwal, etc. - RP No. 15 of 1997, and Postmaster, Imphal and others Vs. Dr. Jamini Devi Sagolband - I (2000) CPJ 28 (NC). It was asserted that for the delay in delivery of the letter, in question, to the Complainant, no element of willful neglect or default could be attributed to the Postal Department.

9.     Per contra, learned Counsel appearing for the Complainant argued that inordinate delay of 21 days in delivery of the letter, in question, per se tantamounts to willful default on the part of the employee(s) of the Postal Department and therefore, the Petitioner cannot escape its liability to pay compensation for the loss suffered by the Complainant on account of the said serious lapse, by taking shelter under Section 6 of the said Act.

10.   In order to appreciate the rival stands, it would be necessary to analyze the scope of Section 6 of the said Act, which reads as follows:-

 “       The Government shall not incur any liability by reason of the loss, misdelivery or delay of, or damage to, any Postal article in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided, and no officer of the Post Office shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.”

11.    The Section is in two parts. The first part provides for a complete immunity to the Government, unless some liability is undertaken by the Government under the statute in express terms. Similar immunity is extended to the officers of the post office. The second part carves out an exception to the blanket immunity to its officers and provides that they can incur liability if it is shown that the loss, misdelivery, delay or damage, etc. had been caused fraudulently or by the wilful act or default of such an employee. Thus, a plain reading of the Section leaves little scope for doubt that unless it is proved that the loss, misdelivery or delay has been caused fraudulently or by a wilful act or default on the part of its officer, no claim would lie against the Postal Department merely by reason of the loss, misdelivery or delay or damage to the postal article, as the case may be, in the course of transmission of the article by post. In other words, the provision, an antiquated piece of legislation, dating back to the year 1898, grants total immunity to the Postal Department from incurring any liability for delay in delivery of the article in the course of its transmission by post, unless a fraud or willful act or default on the part of its employee is proved.

12.     The object and reach of Section 6 of the said Act, was elaborately explained by a five member Bench of this Commission in Post Master, Imphal & Anr. Vs. Dr. Jamini Devi Sagolband –I (2000) CPJ 28 (NC), with copious references to English and Indian Decisions by the Hon’ble Supreme Court and various High Courts.  It was held that the relationship between the sender of a postal article and the post office is governed by the Indian Post Office Act and not by Law of Contract or Tort, and that there is no liability at all for loss or non-delivery of a postal article except in so far as specifically provided by the Statute under Section 33 and Section 6 or any other regulation or rule.

13.     Therefore, the question is whether the Complainant has proved that the delay in delivery of the letter, transmitted by speed post for delivery, was due to wilful act or default on the part of an employee of the Postal Department?

14.     It is a cardinal principle of law that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it.  Nevertheless, there is distinction between the phrase ‘burden of proof’ and ‘onus of proof’. Explaining the said fine distinction, in A. Raghavamma and Anr. Vs. A. Chenchamma and Anr.   AIR 1964 SC 136, a three Judge Bench of the Hon’ble Supreme Court held that “there is essential distinction between burden of proof and onus of proof. Burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts.  Such a shifting of onus is a continuous process in the evaluation of evidence.

15.     It is manifest from the statement of Objects and Reasons and the scheme of the Act that its main objective is to provide for better protection of the interests of the consumer. To achieve that purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act, by establishing quasi-judicial forums at the District, State and National level, with vide range of powers vested in them. The rigors of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 are not applicable to the proceedings before these quasi-judicial bodies. Therefore, having due regard to the scheme and the purpose sought to be achieved, viz. better protection of the interest of the consumers, the provisions of the Act have to be given purposive, broad and positive construction, more so, when Section 3 of the Act provides that the remedy under the Act is in addition to and not in derogation of any other provision of law.

16.     In order to give effect to the said objective of the Act, in our view, if an addressee of the letter is able to create a reasonable degree of probability that there was wilful default on the part of an employee of the Postal Department, the onus would shift on to the said department to discharge the onus to prove its denial, particularly when the addressee, the aggrieved party, does not have any access to the internal working of the post office.

17.     In the instant case, having missed the opportunity to appear for Trade Test on account of delay in delivery of the said letter, the Complainant lodged a Complaint against the concerned Post Office, with the Director of Consumer Affairs and Fair Business Practices, Government of West Bengal. Vide letter dated 03.12.2007, the said Department sought explanation from the Post Master, Garden Reach Post Office, Kolkata, on the Complaint.  It appears that not being satisfied with the explanation, the said department, addressed yet another letter, dated 01.01.2008, to the Post Master General, West Bengal, G.P.O, Kolkata, to direct the concerned Postal Authority to submit its written version on the Complaint. For the sake of ready reference, relevant portion of the said letter is extracted below:-

“        In inviting your kind attention to the captioned subject this is to inform you that Sri Dipak Banerjee of Village & Post – Goralgacha, Dist – Hooghly lodged a complaint with this office to the effect that Garden Reach Shipbuilders & Engineers Ltd. of 43/46, Garden Reach Road, Kolkata – 700 024 sent him a letter on 11.10.2007 through Speed Post from Garden Reach Post office for appearing at a Trade Test on 11.10.2007 at 14.00 hrs. for the Post of Journeyman (Welder). But, the said letter reached Sri Banerjee on 22.10.2007 for which he could not sit for the said test. As complained by Sri Banerjee, the matter of delay in delivering the letter sealed his future because had the letter been delivered to him in time, he could have appeared at the said test and might have been selected for appointment. Copy of letter of Sri Banerjee along with the copy of both sides of the envelope are enclosed as ready reference. The alleged negligence on the part of service provider has apparently amounted to a ‘deficiency in service’ towards the Complainant being the ‘beneficiary’ in the instant case. Accordingly, the Post Master, Garden Reach Post Office was requested to submit his written version of the case (copy enclosed). But, reply of the Sub Post Master, Garden Reach Post Office appears to be cryptic.

          Under the circumstances, you are requested to ensure submission of the written version of the case by the concerned postal authority mentioning therein the scope and opportunity for making good the loss and injury suffered by the Complainant within the frame work of the rules and regulations.”

18.     Evidently, there was no response by the Post Master General of the State to the communication received from the State Government.  Surprisingly, even in its cryptic two page written version, filed in the District Forum, the Postal Department, except for taking shelter under Section 6 of the Act, has not even attempted to furnish any explanation for the inordinate delay of 21 days in the delivery of letter, within the State. There is not even a whisper in the reply as to whether any enquiry was conducted by the Postal Department into the cause for the delay in delivery of the subject letter.  In our opinion, the stubborn attitude of the Postal Department is deliberate attempt to hide the real reason for the wrong doing of its employee(s), in not delivering the letter within the norms prescribed by the Postal Department itself. Such recalcitrant conduct of the Postal Department, leads to an irresistible conclusion that there was wilful default on the part of its official(s) which was not being disclosed and, therefore, the case of the Complainant falls within the ambit of the exception, carved out in Section 6 of the said Act. Having held so and there being clear “deficiency”, as defined in Section 2 (1) (g) of the Act, we are of the opinion that the Forums below were justified in awarding compensation to the Complainant in terms of Section 3 of the Act, for the mental agony suffered by him for losing a valuable chance of getting a job, because of delay in delivery of the call letter from Respondent No.2.

19.     Support is lent to our view by a five member decision of this Commission in Post Master Ranipet HO & Anr. Vs. Shri N.B. Janakiraman – 2001 (3) CPR 189 (NC). In that case, a money order sent by the Complainant was delivered to the payee after two months. In a Complaint filed by him, the Postal Department took the plea that the Complaint was barred under Section 48 (c) of the Indian Post Office Act, which provides that no suit or other legal proceedings shall be instituted against the Government or its officer, inter-alia, for delay in payment of any money order, other than the fraud or willful act or default of such officer.  The State Commission, however, rejected the contention and directed payment of compensation to the Complainant. Being aggrieved, Postal Department preferred Appeal to this Commission. Dismissing the appeal, the Bench, inter-alia, held as under:-

  “      A bare perusal of Section 48 (c) would show that it does not give blank immunity to the appellants.  If there is a fraud or wilful act or default on the part of any officer of the Post Officer, appellants will certainly be liable.  It may be that fraud or wilful act has to be proved by the complainant and so also the default.  But when the default is so extensive like in the present case no proof or evidence on the part of complainant is required to prove the default on the part of the Post Office. As to what is the wilful or default, we need not go to any treatise on the interpretation of these terms or to any judgment for the purpose.  We have to see from a consumer point of view as to what is wilful or default when interpreting a particular provision.  As a matter of fact default of two months in sending the telegraphic money order could also be a wilful act.  No circumstance has been brought on record by the appellants to show that there has not been any wilful act or default on the part of any of its officers.  For this gross act of default in not sending the telegraphic money order in time after receiving charges of the same, respondent has certainly suffered a great deal of anguish and mental harassment”.

20.     Section 6 being in pari materia with Section 48 (c) of the said Act, the decision is on all fours on facts at hand.

21.     For the aforegoing reasons, we do not find any jurisdictional error in the impugned order, warranting interference in our limited Revisional Jurisdiction.  Consequently, the Revision Petition is dismissed with costs, quantified at ₹10,000/-.

22.     Vide order, dated 21.07.2010, passed by this Commission, the Petitioner was directed to deposit a sum of ₹50,000/- with the District Forum, Kolkata Unit-II.  The said amount, if deposited by the Petitioner, shall be released in favour of the Complainant along with interest accrued thereon by the District Forum. The balance amount in terms of the order passed by the District Forum, shall be paid by the Petitioner to the Complainant within six weeks from the date of receipt of a copy of this order, failing which, it shall carry interest @ 9% p.a. from the date of this order till realization.