DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 8th day of June, 2020
C.D Case No. 32 of 2019
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Arnapurna Rout
W/o Giridhari Rout
At: Bijayagangadharpur
Po: Aharpada,
Via: Gujidarada,
Ps: Bhadrak (R),
Dist: Bhadrak, Odisha
……………………. Complainant
(Versus)
1. Department of India Post,
Represented by Postmaster of Bhadrak Division (Head Office) Bhadrak,
At/Po/Ps/Dist: Bhadrak
2. Sub-Post Master of Gujudarada Post Office (Sub-Office) under Bhadrak Division (Head Office),
At/Po: Gujidarada,
Ps: Bhadrak (R),
Dist: Bhadrak, Odisha
3. Sub- Post Master of Aharpada Post Office,
(Branch Office) under Gujidarada Sub- Post Office,
At/Po: Aharpada,
Via: Gujidarada,
Ps: Bhadrak (R),
Dist: Bhadrak, Odisha
……………………..Opp. Parties
Counsel For Complainant: Mr. Gopinath Dash, Adv
Counsel For the O.Ps: Sri D. P. Ray Mohapatra, Govt. Standing Counsel
Date of hearing: 22.01.2020
Date of order: 08.06.2020
BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps.
The facts of the case as narrated in the complaint are to the effect that the complainant is a lady savings depositor under the O.Ps as she is having a savings account pass book bearing No. 774275 with Aharpada Branch Post Office which was opened on 21.01.2008. The complainant as a depositor makes frequent deposit and withdrawals as and when necessary for her own purpose. Whenever she goes to the branch post office for deposit or withdrawal, she hands over the deposit challan/withdrawal slip, duly filled in by putting her thumb impression on those papers as she is incapable of signing her name being illiterate women, to the branch post master Sri Kamalakanta Nayak who was in habit of retaining the pass book for effecting necessary entry in support of the deposit tendered/ withdrawal made. The complainant having heard the news of suspension and arrest of branch post master, Aharpada, rushed to the post office to withdraw the amount but failed to get the withdrawal as the person in position of post master refused to allow the withdrawal unless the misappropriation matter is completely resolved. Since then the complainant has been running from post to pillar to get back her money amounting to Rs 24,063.50p/- but none of the authorities of postal department in the District paid any heed to his sincere requests as a result of which the poor lady depositor did not yield any positive result. That apart the postal authorities have also conducted enquiry where the complainant was given opportunity to put forth her allegation and the complainant has also submitted written statement as dictated by the enquiring officers. Despite all the attempts made by the complainant to withdraw her money deposited with the post office but failed to get the same due to gross negligence of the postal authorities. When all of the attempts failed, being disheartened and disappointed, the complainant took shelter in this Forum and filed a dispute praying for a direction to the O.Ps to allow withdrawal of the balance amount in account together with cost and compensation.
O.Ps represented through their standing Govt. counsel (Central Govt.) who strongly objected the claim of the complainant and contested the case. In the written version, the O.Ps raised the question of maintainability on the ground of cause of action and the status of the complainant as a consumer. It is further also raised that the complainant is not a consumer within the meaning of CP Act. The answering O.Ps have also raised that the transactions effected in the pass book have not been taken into post office account and some transactions effected in the post office account have not been posted in the pass book. It is also disclosed in the preliminary inquiry report submitted by Gujidarda Sub-post office that the branch post master Sri K. K. Nayak has committed misappropriation in maximum accounts maintained with Aharpada Branch Post Office (BPO) and after such misappropriation the BPM absconded from the post office and his village as a result of which a squad was formed consisting of some officers to conduct a detailed inquiry into the matter. During inquiry the complainant, being present before the enquiring officers, submitted her pass book and has also given a written statement mentioning the detail facts wherein she admitted to have made the transaction as mentioned in the pass book but did not agree the withdrawal of Rs 1,900/- made in the books of accounts on 21.07.2009. Further it is also stated by the O.Ps that the complainant claimed to have deposited of Rs 20,500/- in her account on 13.12.2011 but the Branch Post Master (BPM) has subsequently rounded up the posting made on the said date mentioning deposit amount of Rs 2,000/- instated of Rs 20,500/-. The complainant have also stated in the written version that the further inquiry is required to derive the truth which is time consuming. The O.Ps have also mentioned that the criminal proceeding has also been initiated against the BPM Sri K. K. Nayak which is still pending in the Court of S.D.J.M, Bhadrak. The O.Ps also stated that since the criminal case is pending for disposal in the Court of S.D.J.M Bhadrak, the complainant is not at liberty to raise a dispute in Consumer Fora and as such the case is not maintainable. They have also further taken the plea that due to noncooperation committed by the BPM the complainant is not cooperative in the process of inquiry, the matter has not yet been resolved for which the O.Ps are not responsible. It is also further stated by the O.Ps in citing the provision of Section- 3 of CP Act that the present case of the complainant is not maintainable in the Consumer Forum. Finally it is also stated by the O.Ps that since the process of inquiry is still continuing, the payment of the claim of the complainant cannot be considered until and unless, the said complainant cooperates in the inquiry process.
Gone through the complaint of the complainant, written version filed by the counsel of O.Ps, heard the counsels of all the parties, perused material evidence on record and observed that the following issues need to be discussed threadbare to derive the conclusion.
Admittedly the complainant is a bonafide depositor of the O.Ps and had been depositing and withdrawing the amount as reflecting in the pass book. It is also a fact that the then BPM has misappropriated the deposited amount of the complainant by manipulating the pass book and books of accounts of the post office.
1. As regards maintainability of the case the counsel for O.Ps argued that under the provisions of Section- 3 of CP Act the present case is not maintainable on the ground of cause of action as the complainant is not a consumer. On the contrary the complainant argued in citing the exact provision of Section- 3 as “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”. Applying the ordinary prudent it is understood that this provision is not relevant in the context of present case as understood by the O.Ps. Secondly the cause of action is a bundle of facts, not a single cause, which arose from the date of the fact of misappropriation, was disclosed and continues till the process of inquiry is completed. Here in the present case the cause of action stated on the date of misappropriation and also continues so long as the final findings of enquiry have not come out. Further about the status of the complainant as a consumer it is also submitted that the complainant is entitled to avail the services as required. Therefore the objections of the O.Ps are not sustainable. On perusal of materials on record and after hearing of counsels of both the parties, this Forum arrived at the conclusion that the case is maintainable in the present Forum.
2. The counsel for O.Ps argued that the postings made in the postal account are not consistent with the postings made in the pass book. The withdrawal of Rs 1,900/- posted in the books of accounts of Sub-post Office, Gujidarada is not reflecting in the pass book retained with complainant. Therefore it is construed that the complainant has withdrawn the amount from her savings account and that much of amount is treated as withdrawn. On the other hand the counsel of complainant argued that if it is a fact the O.Ps have to produced the relevant withdrawal slip before the Forum for examination. On perusal of materials on record it is observed that the O.Ps have not adduced such evidence till the final hearing is over. Therefore it is believed that the complainant has not withdrawn the amount as claimed by the O.Ps.
3. As regards allowing withdrawal to the complainant from her savings account the counsel of O.Ps argued that the process of inquiry by the enquiring officer/officers, the withdrawal or final closer of account cannot be allowed as the inquiry process is still continuing due to noncooperation of the complainant. On the contrary the complainant argued that she has attended the inquiry on the notice of postal authorities and has submitted the original copy of the pass book of the account holder on receipt of a copy with proper acknowledgement. Hence no evidence is there about noncooperation of the complainant in the process of inquiry and the objection filed by them is fake and frivolous. Further the complainant also argued on the point of payment of the claim cannot be made, unless the process of inquiry is over, is not genuine as the amount deposited by the complainant is her hard earned money saved for rainy days. If the amount will not paid, the poor complainant will be severely prejudiced. It is also admitted by the preliminary enquiring officer that the amount has been misappropriated by the Ex- BPM which clears all the hindrances for payment of withdrawals but the postal authorities intentionally and deliberately with hold the payment which is illegal. After having heard the counsels of both the parties and on perusal of materials on record it is observed that the objections of the O.Ps on this point are irrelevant and not sustainable.
4. The O.Ps, in course of hearing, have raised that a criminal proceeding is still continuing and pending in the Court of S.D.J.M Bhadrak for which no other case can be filed and adjudicated in other Courts. In challenging the submission of O.Ps complainant submitted that a lot of decisions of the Hon’ble Apex Court are available wherein it has been decided that one more cases of civil nature can run simultaneously in other course even during the pendency of criminal case. Secondly the complainant is not a party in the said criminal case and the matter of the said criminal case is absolutely dealing with the misappropriation of public money. Hence the present case is maintainable in this Forum. On perusal of records and examination of relevant documents adduced by O.Ps and complainant it is held that the objections of O.Ps are not tenable.
5. Finally the complainant also cited the decisions of the Hon’ble National Commission in citing a directive issued by Govt. of India in respect of First Appeal No. 366 of 2001 as “provisions of paragraph 24A of the OM no. F 1 (53) NS/57 dated 31.12.1959 on Standardised Agency System issued by the Ministry of Finance (DEA) and Special Circular No. 66 dated 04.03.1960 of the Director General, Posts, as amended from time to time, are as under:
“24A. Misappropriation of Investors’ money by the agents:- In case of misappropriation of Investors’ money by the agents, the Appointing Authority concerned should deal with the matter and take suo motu prompt action in the matter and see that investigation of the cases is not delayed in any circumstances. It is the duty of the Appointing Authority to obtain information, ascertain the extent of such misappropriation, locate the defrauded investors, realize the losses from the agents and/or their sureties and also take steps for issue/antedated certificates, etc. The Paying Authority is also responsible for proper payment of commission.” In view of the said decision the O.Ps have no right to with hold payment of hard earned deposited money of the complainant and liable to pay the amount outstanding in her account immediately.
In view of the facts and discussions made in foregoing paragraphs we are of the opinion that the O.Ps have grossly neglected in performing their duties with regards to payment of deposited amount outstanding to the complainant which amounts to deficiency of service and the postal authorities (O.Ps) are liable to pay immediately.
ORDER
In the result, the complaint be and the same is allowed against the O.Ps. The O.Ps are directed to pay Rs 25,063.50/- to the complainant after correction of balance casting for the year 2011-12 together with interest as applicable in respect of Fixed deposit account with effect from July, 2014 till the date of payment. Further the O.Ps are also directed to pay compensation of Rs 3,000/- for mental agony and harassment and Rs 3,000/- for cost of litigation within a period of 30 days. Failure to comply this order by the O.Ps within the mentioned period, will further attract interest @ 6.3% P.A from the date of order till the date of payment.
This order is pronounced in the open Forum on this day of 8th June, 2020 under my hand and seal of the Forum.
