Secr., Board
of Secon. Edu., Orissa Vs. Santosh Kumar Sahoo & ANR. [2010] INSC 467 (7
July 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 4967 OF 2010 (Arising out of SLP(C) No.
13872 of 2009) Secretary, Board of Secondary Education, Orissa .....Appellant
Versus Santosh Kumar Sahoo and another ....Respondents
G.S.
Singhvi, J.
1.
Leave granted.
2.
Whether the District Consumer Disputes Redressal Forum, Phulbani
(for short, `the District Forum') had the jurisdiction to entertain and allow
the complaint filed by respondent No.1 for correction of his date of birth
recorded in the matriculation certificate and whether the National Consumer
Disputes Redressal Commission (for short, `the National Commission') committed
an error by refusing to consider report dated 31.10.1995 2 submitted by Deputy
Secretary of the appellant Board on the issue of eligibility of respondent No.1
to take supplementary examination are the questions which arise for
consideration in this appeal.
3.
Respondent No.1 appeared in the supplementary examination
conducted by the appellant in 1983 as an Ex-student of G. Udayagiri Hubback
High School. In the Admission Card and Provisional Certificate issued by the
appellant, the date of birth of respondent No.1 was shown as 10.05.1964.
However, in the matriculation certificate his date of birth came to be recorded
as 10.05.1961. Upon receipt of the matriculation certificate, respondent No.1
contacted Headmaster of the school (respondent No.2) who is said to have
assured him that he will write to the appellant for making necessary
correction. Thereafter, respondent No.1 met the concerned officers of the
appellant and handed over the matriculation certificate and letter written by
respondent No.2. Respondent No.2 is said to have written another letter dated
19.8.1998 to the appellant for making necessary correction in the date of birth
recorded in the matriculation certificate of respondent No.1, but without any
result. On its part, the appellant is said to have sent 2-3 communications to
respondent No.2 between 1988 and 1991 requiring him to furnish the admission
register and copy of the cancelled transfer certificate for the purpose of
verification of the date of birth of 3 respondent No.1 but the latter did not
respond. On 30.6.1992, the appellant returned original certificate of
respondent No.1 without making correction and directed respondent No.2 to
submit the relevant records at the certificate distribution camp for checking
the date of birth of respondent No.1.
4.
After 12 years of his appearing in the examination and more than 3
years of the return of original certificate to respondent No.2, respondent No.1
filed complaint under Sec.12 of the Consumer Protection Act, 1986 (for short, `the Act') for issue of a direction to the
appellant to correct his date of birth recorded in the matriculation
certificate and also pay compensation for mental and physical agony and loss of
his employment prospects by claiming that he was a consumer and there was
deficiency of service on the appellant's part. Respondent No.1 pleaded that he
had suffered incalculable loss because his candidature was rejected by various
recruiting agencies/authorities on the ground of non-production of original
matriculation certificate.
5.
In the counter filed on behalf of the appellant, it was averred
that instructions were issued to respondent No.2 vide letter No.7279 dated
27.11.1988 to attend document distribution centre at Phulbani but he did not
comply with the same. It was further averred that vide letter dated 4
27.07.1989 respondent No.2 was asked to submit the admission register for the
purpose of verification of the exact date of birth of respondent No.1 but he
did not do the needful and did not attend the camp organized for the purpose of
checking the original documents. According to the appellant, the same story was
repeated when the camp was held in July 1992 in the premises of Balliguda High
School and AJO High School, Phulbani.
6.
In his counter, respondent No.2 shifted the entire blame on the
appellant by stating that he had forwarded the original certificate for
correction of the date of birth along with the relevant papers but necessary
action was not taken by the appellant. Respondent No.2 also denied the receipt
of the communications sent by the appellant.
7.
By an order dated 15.09.1995, the District Forum allowed the
complaint and directed the appellant and respondent No.2 to carry out necessary
correction in the date of birth recorded in the matriculation certificate of
respondent No.1 and issue revised certificate within 45 days.
The
District Forum also awarded compensation of Rs.10,000 against the appellant and
Rs.2,000 against respondent No.2 apart from the cost of Rs.1,000.
8.
After the decision of the District Forum, Deputy Secretary of the
Board conducted an inquiry to verify the correct date of birth of respondent
No.1 and submitted report dated 31.10.1995 to the Secretary of the Board with
the finding that respondent No.1 had taken admission in Class X at Hubback High
School, Udayagiri on the basis of fake transfer certificate which was issued in
favour of Santosh Kumar Pradhan s/o Appa Rao Pradhan of Sujeli, G. Udayagiri,
who had studied upto IX Class at Government High School Balliguda. The
conclusion recorded by Deputy Secretary of the Board reads as under:
"From
the annexure 4 & 1 it is ascertained that TC No.63/24.6.78 had been issued
in favour of Santosh Kumar Pradhan, S/o. Appa Rao Pradhan of Sujeli, G.
Udayagiri in class IX from Govt. High School, Balliguda, whereas Annexure-2
reveals that Santosh Kumar Sahoo, S/o. Appa Rao Sahu of Sujeli, G. Udayagir was
admitted at Hubback High Schoo, G. Udayagiri on 14.7.78 in class X which
totally differs from Annexure-4 & 1.
It
clearly indicates that Santosh Kumar Sahoo, S/o. Appa Rao Sahoo who took
admission vide TC No.63/ dt.24.6.78 of Govt.
High
School, Balliguda is a forged candidate at Hubback High School, G. Udayagiri on
14.7.78 is a forged candidate.
Further
Santosh Kumar Pradhan was issued TC in class IX, where as Santosh Kumar Sahoo
took admission at Hubback High School, G. Udayagiri in Class IX.
So, the
admission of Santosh Kumar Sahu at Hubback High School, G. Udayagiri is
completely illegal and forged and so, the original pass certificate issued to
him may please be cancelled and necessary steps in the matter please be taken.
6 Further
as ascertained Prafulla Kumar Das, in-charge headmaster, issued TC at Govt.
High School, Balliguda vide TC No. 63/24.6.78 on the basis of which Santosh
Kumar Sahu took admission at G. Udayagiri. So necessary disciplinary measures
please be taken against Sir P.K. Das under intimation to higher
authorities."
9.
In the appeal filed against the order of the District Forum, the
appellant made specific mention of the enquiry report and pleaded that in view
of the finding recorded by the Deputy Secretary that the very admission of respondent
No.1 was based on a fake document, his prayer for correction of the recorded
date of birth should be rejected. This is clearly borne out from paragraph `g'
of the memo of appeal, which is reproduced below:
"g)
For that in absence of a finding by the learned Forum below that the real date
of birth of the complainant-respondent No.1 was 10.5.1964 and not 10.5.1961,
the finding that the complainant suffered for non-correction of the said
certificate is illegal and arbitrary and thus liable to be set aside.
It may
incidently been mentioned that in view of the controversy, the Secretary of the
Board requested the Deputy Secretary of the Berhampur Zone for conducting a
thorough enquiry in the matter and find out the truth or otherwise with regard
to the exact date of birth of the complainant. In course of enquiry made by the
Deputy Secretary many interesting facts have come to the light which is felt
necessary to be brought the notice of the Hon. Commission. It is found from the
spot enquiry that:
a) It is
revealed from the T.C. No.63 dated 24.6.1978 that it has been issued in favour
of Santosh Kumar 7 Pradhan S/o. Aprarao, Pradhan of Sujeli in Class-IX from
Govt. Boys High School, G. Udayagiri on 14.7.1978 in Class-X. On the basis of
the T.C. issued to one Santosh Kumar Pradhan, one Satosh Kumar Sahoo could not
have taken admission. The circumstances under which the admission was made and
the complainant took admission in the said school is mysterious. A copy of the
report furnished by the Deputy Secretary of Berhampur Zone is annexed hereto as
Annexure-B."
10.
The State Commission did not advert to the report of the Deputy
Secretary and dismissed the appeal by observing that respondent No.1 had been
subjected to unwarranted harassment. The State Commission also enhanced the
compensation awarded by the District Forum from Rs.10,000 to Rs.20,000 so far
as the appellant is concerned and from Rs.2,000 to Rs.5,000 qua respondent
No.2.
11.
The National Commission overruled the objection taken by the
appellant that the complaint filed by respondent No.1 was not maintainable by
observing that the counsel who appeared on its behalf before the District Forum
had agreed for disposal of the complaint on merits. The National Commission
rejected the report of the Deputy Secretary by making the following
observations:
"Counsel
for the petitioner then referred to a Report of the Deputy Secretary of the
Board of Secondary Education, Orissa to contend that Transfer Certificate No.63
dated 24.06.1971 had been issued in favour of one Santosh Kumar Pradhan s/o
Appa Rao Pradhan of Sujeli in G. Udayagiri in Class IX from 8 Government High
School Balliguda whereas the respondent/ complainant is Santosh Kumar Sahoo s/o
Appa Rao Sahu of Sujeli was admitted in Hubback High School, G. Udayagiri on
14.07.1978. According to him, the respondent got admission in Hubback High
School, G. Udayagiri fraudulently on the basis of the Transfer Certificate
issued to Santosh Kumar Pradhan.
This
report is of the year 1995. No such defense was taken by the petitioner-Board
in its written statement. Petitioner cannot be permitted to plead a new fact,
which was not taken by it either in the written statement or before the
District Forum or before the State Commission. Moreover, as stated above, this
is a Report of 1995 whereas the original certificate was issued in the year
1985. This seems to be clearly an afterthought to cover up deficiency committed
by the petitioner in showing an incorrect date of birth of the respondent,
which has resulted in miscarriage of justice."
12.
Learned counsel for the appellant assailed the impugned order and
argued that the complaint filed by respondent No.1 should have been dismissed
at the threshold because there was no deficiency of service on the appellant's
part. He further argued that the complaint filed in 1999 with the prayer for
issue of a direction to the appellant to correct the date of birth recorded in
the matriculation certificate issued in 1983 was hopelessly barred by time and
the District Forum committed a jurisdictional error by entertaining the same and
granting relief to respondent No.1. Learned counsel then referred to the report
submitted by the Deputy Secretary of the Board to show that respondent No.1 had
secured admission by playing fraud and argued that the State Commission and the
National Commission committed serious error by ignoring the findings recorded
by the Deputy 9 Secretary on the issue of entitlement of respondent No.1 to
take the supplementary examination. Learned counsel for respondent No.1 argued
that the District Forum did not commit any error by entertaining the complaint
because the appellant was guilty of gross deficiency of service.
Learned
counsel laid considerable emphasis on the fact that respondent No.2 had
supported the cause of respondent No.1 by writing letters to the appellant for
making correction in his recorded date of birth and argued that the failure of
the appellant to carry out necessary correction was per se illegal and
unjustified necessitating an order to this effect by the District Forum which
was affirmed and upheld by the State Commission and the National Commission.
13.
We have considered the respective submissions. In our view, the
impugned order is liable to be set aside because all the consumer forums failed
to consider the issue of maintainability of the complaint in a correct
perspective. Before the District Forum could go into the issue of correctness
of the date of birth recorded in the matriculation certificate of respondent
No.1, it ought to have considered whether the so called failure of the appellant
to make correction in terms of the prayer made by respondent No.1 amounted to
deficiency of service. The District Forum, the State Commission and the
National Commission also overlooked that despite 10 repeated communications
sent to him, respondent No.2 did not produce the original documents including
the admission register so as to enable the appellant to verify the correctness
and genuineness of the assertions made by respondent No.1 regarding his correct
date of birth. In our view, the District Forum should have taken cognizance of
the communications sent by the appellant to respondent No.2 requiring him to
produce the original records and called upon him to explain his position in the
backdrop of the fact that on the one hand, he was writing letters to the
appellant for correcting the date of birth recorded in the matriculation
certificate of respondent No.1 and, on the other hand, he resolutely avoided
production of the original records.
The
report of the Deputy Secretary substantially aggravates the suspicion that
respondent No.1 and respondent No.2 were hand in gloves in allowing the former
to take the supplementary examination on the basis of the documents which
belonged to someone else. In the memo of appeal filed against the order of the
District Forum, the appellant has made a specific mention of the report of the
Deputy Secretary but the State Commission ignored the same. The National
Commission brushed aside the report of the Deputy Secretary by describing it as
an afterthought ignoring that the same was based on a comprehensive analysis
and evaluation of the documents made available by the authorities of the
concerned schools. We have no doubt that if the National Commission had
carefully examined the report, it 11 would have certainly called upon
respondent No.1 to explain his position on the issue of obtaining admission on
the strength of fake documents and then decided whether the direction given by
the District Forum, which was upheld by the State Commission was legally
sustainable. Its failure to do so has resulted in miscarriage of justice.
14.
In the result, the appeal is allowed. The impugned order of the
National Commission as also the orders passed by the District Forum and State
Commission are set aside and the matter is remitted to the District Forum for
fresh adjudication of the complaint filed by respondent No.1. The District
Forum shall decide the objection raised on behalf of the appellant to the very
maintainability of the complaint as also the issue of limitation. The District
Forum shall also consider the report of the Deputy Secretary of the Board after
giving an opportunity to respondent No.1 to submit his reply in the context of
the findings and conclusion recorded therein and then pass appropriate order.
The parties are left to bear their own costs.
................................J. [G.S. Singhvi]
...............................J. [Asok Kumar Ganguly]
New Delhi,
July 7, 2010.
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