PER JUSTICE J.M. MALIK

1.           The key question which falls for consideration is whether

Section 6 of the Post Office Act strikes a snap in adjucating the case by the Consumer fora?

2.           Counsel for the parties present.  The case of Ajay Pal,

complainant is as follows.    He sent his application form for the Post of Inspector to Staff Selection Commission through Speed Post on 13.04.2011 through OP.  The last date of receipt of application form was 18.04.2011, but the Head Post Office, Rohtak Division failed to deliver the said article to its destination within the due date prescribed by the authorities.  Consequently, application moved by the petitioner was rejected.  The complainant alleged deficiency in service on the part of the Post Office, Railway Station, Rohtak-the OP.

3.      The counsel for the respondent admits that the complainant had booked the article by speed on 13.04.2011.  Counsel for the respondent also admits that it was delivered to the destination on 20.04.2011.  The defence set up by the OP was that on 14.04.2011 this article was despatched and the same reached New Delhi Speed Post Hub on 16.04.2011.  Being Saturday & Sunday 16.04.2011 & 17.04.2011 were public holidays.  Consequently, the article was delivered on 20.04.2011. They denied any kind of deficiency of service.

4.      The complaint was filed before the District Forum.  The District Forum accepted the claim and granted Rs. 15,000/- alongwith Rs. 2,000/- as litigation expenses in favour of the complainant.  Aggrieved by that, the respondent preferred an appeal before the State Commission.  The State Commission accepted the appeal after placing reliance upon various authorities reported in the case of “The Post Master Imphal & Others versus Dr. Jamini Devi Sagolband, 2000(1) CLT 577, this commission’s judgment  in Revision petition No. 15 of 1997  No. 1006/2001,  No. 1035/2002 decided on 18-09-2002 and Revision Petition No. 114 of 2005 titled as Union of India Versus Puran Chandra Joshi, 2006(3) CLT 47.

5.      We have heard the counsel for the petitioner.  He has invited our attention towards the fact that Section 6 of the Indian Post Offices Act, 1898 is not a bar but rather supports the case of the petitioner.  Section 6 of the Indian Post Offices Act, 1898 runs as follows:-

“6.  Exemption from liability for loss, misdelivery, delay or damage- 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 wilful act or default.”

6.      Counsel for the petitioner contended that his case is covered within the term default.  We are of the considered view that this means willful act or willful default.  Counsel for the petitioner further submits that willful default is not to be defined as by criminal court.  It should be decided as per the Provisions of Consumer Protection Act.

7.      He has also cited an authority which is reported in M. Sambandam vs The Deputy Registrar (Credit) (1999) 3 MLJ 310 wherein it was held:-

“11……………………………..Ananthanarayanan, C.J., in Durairaj vs. Rathnabai (1967) 1 M.L.J. 324, pointing out that there is a sharp distinction between the ‘default’ and wilful default’ quoted with approval the following observation made by Ramamurthi, J. in Khivraj Chordia v. Maniklal Bhattad, I.L.R. (1966)1 Mad. 431.  “The principle that emerges from the several decisions is that for default is that for default to be regarded as wilful default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rents or a reckless indifference.  “Ramaprasada Rao, J., as he then was, in Rajagopal v. Saraswathi Ammal (1977) 2 M.L.J. 8. Explained the above words ‘wilful default’ occurring in the said Act, as follows: “Repeatedly the Courts here and else where have taken the view that the expression ‘wilful default’ is not an expression of art but a meaningful phraseology used by the statute with a definite purpose.  The default committed by a tenant should be so telling and conspicuous that any reasonable person apprised of such circumstances and having the occasion to adjudicate upon such facts should come to the conclusion that the tenant was recalcitrant and supremely indifferent and purposely evading the performance of his legitimate obligation of sending the rents to the landlady in time.  The wilfulness should be the result of recalcitrancy and deliberate-ness.” Having regard to the interpretations and discussions in respect of term ‘wilful’ appearing in various enactments, as found in the case-law decided by the learned English and Indian Judges which serve as a guide to the construction of the term ‘wilful’ used in Section 71(1) of the Act.  I am of the view that in order to pass a surcharge order under that section against a person entrusted with the organisation and management of a co-operative society or an officer or servant thereof, such person, should have done an actionable wrong, either by commission or omission, in a deliberate and reprehensible manner, with reckless callousness and with…. a supine indifference (but not by accident or inadvertence), without taking due care and precaution ordinarily expected from a reasonable and prudent man under those existing circumstances, that is to say, not caring what the result of his carelessness would be.  To make it explicit, it may be stated that he should have acted in breach of legal obligations or in conscious disregard of duty or with an intentional failure to perform the manifest duty, in the performances of which the public have an interest and that such commission should be the proximate cause of the loss or deficiency in question.”

8.      This may be mentioned here that this order was passed under Tamilnadu Co-operative Societies Act 1961.  Counsel for the petitioner also pointed out that the District Forum has clearly stated that the respondent has not come to the Court with clean hands.  It decided that their affidavit is wrong.  The relevant part of the order of District Forum is reproduced as follows:-

“From the perusal of record, it is revealed that the postal article which the respondent has received on 13.4.2011 has been sent for its further transmission on 19.4.2011 from Rohtak itself as per Ex. P-2.  It is further revealed that in para No. 5 of the written statement on merit, the respondent has pleaded that it was Sunday on 15.4.2011 whereas on 15.4.2011 it was Friday and as such, wrong written statement on record has been filed by the respondent and similarly the affidavit Ex. R-1 of the respondent confirming the written statement is also false.  Therefore, the deficiency in service and negligence on the part of the respondent stand proved.  It is further proved that the article which was to be delivered till 18.4.2011 to the Staff Selection Commission, New Delhi has been admittedly received by the postal authorities on 13.4.2011 and has been delivered to the addressee on 20.4.2011.  The false written statement and affidavit filed by the respondent itself is evident of patent negligence and deficiency in service on the part of the respondent.”

9.      Learned counsel for the petitioner further submits that this Post Office Act was created at olden time when Post Office’s exposed the sloth and callousness in their actions.  The post offices used to take enough time in delivering the articles.  At that time idea of speed post had not come into their mind.  He contends that Section 6 is otherwise not applicable to the facts of this case.

10.    All these arguments lack conviction.  The authority cited by the Learned counsel for the petitioner hardly dovetails with the facts of this case.  After having subjected the judgment to a closet scrutiny it rather transpires that authority rather supports the case of opposite party. We are of the considered view that Section 6 of the Post office Act is still applicable.  It has neither been abridged nor repealed.  The Apex Court in an authority reported in the case of Union of India versus Mohd. Nazim, AIR 1980 Supreme Court 431, was pleased to hold:-

“These are only some of the provisions of the Act which seem to indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee.  It is really a branch of the public service, providing postal services subject to the provisions of the India Post Office Act and the rules made thereunder.  The law relating to the post office in England is not very much different from that in this country.  In Triafus and Co. Ltd. v. Post Office (1957) 2 QB 352, the court of appeal held that the post office is a branch of revenue and the Post Master General does not enter into any contract with a person who entrusts to the post office a postal packet for transmission overseas.  This decision approves the observations of Lord Mansfield in Whitfield v. Le Despencer (1778) 2 Cowp. 754.  In the course of his judgment, Lord Mansfield said, “The Post Master has no hire, enters into no contract, carries on no merchandize or commerce.  But the post office is a branch of revenue, and a branch of police, created by Act of Parliament.  As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund.  As a branch of police it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under government, and entrusts the management and direction of it to the crown, and officers appointed by the crown.  There is no analogy therefore between the case of the Post Master in a common carrier.”

11.    We have also perused Section 6.  There is not even an iota of evidence that the loss was caused fraudulently or by postman’s willful act or default.  Mere negligence does not suffice.  The element of mens-rea is conspicuously missing under section 6.  It is the loss of the Government and not loss to the owner of the postal articles.  The liability of Government of India for loss or mis-delivery of insured articles and loss in the course of transmission by post is not contractual but purely statutory in nature.  This commission in its 4 Bench members in the case of The Presidency Post Master and another versus Dr. U. Shanker Rao, (N.C.), Revision Petition Nos. 175 and 247 of 1992, Decided on 15.4.1993, were pleased to hold that “services rendered by the Post Office are merely statutory and there is no contractual liability.  Establishing the Post Offices and running the postal service the Central Government performs a governmental function and the Government does not engage in commercial transaction with the sender of the article through post and the charges for the article transmitted by post is in the nature of charges posed by the State for the enjoyment of the facilities provided by the Postal Department and not in consideration of any commercial contract.  The Post Office cannot be equated with a common carrier.”

11.    The revision petition being sans merits and therefore, the same is dismissed.  No costs.