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M.P. Singh Rathore v/s Little Flowers Public School, Through Its Manager, Shivaji Park Shahdara, Delhi & Others

Company & Directors' Information:- INDIA FLOWERS LIMITED [Strike Off] CIN = U01119TN1995PLC033137

Company & Directors' Information:- LITTLE INDIA PRIVATE LIMITED [Active] CIN = U55101AS1999PTC005875

Company & Directors' Information:- A SCHOOL INDIA PRIVATE LIMITED [Active] CIN = U80211TN2011PTC079455

Company & Directors' Information:- DELHI PUBLIC SCHOOL PRIVATE LIMITED [Strike Off] CIN = U80212BR2007PTC013022

    Revision Petition No. 1932 of 2019

    Decided On, 15 June 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: In person. For the Respondents: ------

Judgment Text

This revision petition has been filed by the petitioner M.P.Singh Rathore against the order dated 16.05.2019 of the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) assed in Appeal No.415 of 2010.

2. Brief facts of the case relevant for disposal of the present revision petition are that a complaint was filed by the complainant before the District Forum, District North-East, Nand Nagri (in short ‘the District Forum’) that his son was wrongly failed by the opposite parties/respondent school. The complainant filed a consumer complaint bearing No.39/06 before the District Consumer Disputes Redressal Forum Delhi, (in short the ‘District Forum’). The District Forum vide its order dated 17.04.2010 partly allowed the complaint and passed the following order:-

“Therefore, we are empowered to give the findings that prima-facie criminal case is made out against the OPs for tampering and manipulating the report card of Vishal Rathore on the basis of the order passed by Learned magistrate dated 23.6.2007 and Ld. Hon’ble High court dtd. 23.3.2009 which are already on the record.

Thus, we hold OPs guilty of deficiency of service and as such there is some force in the complaint which is liable to be allowed partly.

We direct OP-I, II and III jointly or severely to pay Rs.50,000/- compensation to the complainant for his physical and mental harassment as well as Rs.10,000/- cost of litigation.”

3. Aggrieved by the order of the District Forum, the opposite parties preferred appeal before the State Commission being FA No.415/2010. The State Commission vide its order dated 16.5.2019 set aside the order of the District Forum and dismissed the complaint and hence the present revision petition.

4. Heard the petitioner in person. The petitioner stated that his son was failed in Class XI deliberately by the respondent School. His report card was tampered with by the School authorities and the District Forum, finding this to be correct, allowed the complaint and directed the School to pay a compensation of Rs.50,000/-. In the appeal filed by the opposite parties, the State Commission has allowed the appeal and dismissed the complaint on the ground that respondent School is not a service provider and the complaint against the respondent school is not maintainable. The petitioner pointed out that a Seven Judges Bench of the Hon’ble Supreme Court in The Bangalore Water Supply & Sewerage Board Vs. A. Rajappa and others, etc., AIR 1978 SC 548 has observed the following:-

“Despite the width of the definition it could not be the intention of the Legislature that categories 2 and 3 of the charities alluded to by our learned brother Krishna Iyer in his judgment, hospitals run on charitable basis or as a part of the functions of the Government or local bodies like Municipalities and educational and research institutions whether run by private entities or by Government and liberal and learned professions like that of doctors, lawyers and teachers, the pursuit of which is dependent upon an individual’s own education, intellectual attainments and special expertise should fall within the pale of the definition.”

5. Learned counsel further stated that in the same judgment there is a reference of the following as well:-

“179. It may be pertinent to mention in this connection that the need for excluding some callings, services and undertakings from the purview of the aforesaid definition has been felt and recognised by this Court from time to time while explaining the scope of the definition of “industry”. This is evident from the observations made by this Court in State of Bombay vs. the Hospital Mazdoor Sabha (AIR 1960 SC 610), (supra), Secretary, Madras Gymkhana Club Employees Union v. Management of the Gymkhana Club (1968) 1 SC R 742: (AIR 1968 SC 554) and Management of Safdargung Hospital New Delhi V. Kuldip Singh Sethi (1971) 1 SCR 177: (AIR 1970 SC 1407). Speaking for the Bench in State of Bombay V. The Hospital Mazdoor Sabha (AIR 1960 SC 610) (supra) Gajendragadkar, J (as he then was) observed in this connection thus: (at Pp. 614-15).

“It is clear however, that though S. 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even services rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word “service” is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in S.2(j); and that no doubt is a somewhat difficult problem to decide.”

6. On the basis of the above, learned counsel emphasised that educational institutions are also to be covered within the purview of the Consumer Protection Act, 1986. The judgment of the Hon’ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and P.T.Koshy & anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 09.08.2012 are not the decision of the larger bench of the Hon’ble Supreme Court and therefore, decision of the Hon’ble Supreme Court in The Bangalore Water Supply & Sewerage Board Vs. A. Rajappa and others, etc., (supra) will prevail. Thus, respondent School cannot get exemption from the applicability of the provisions of the Consumer Protection Act,1986.

7. I have carefully considered the arguments advanced by the petitioner and examined the record. First of all, it is seen that the matter of correction in the report card has already been taken up by the criminal courts as observed by the District Forum as under:-

“The findings is still awaited against the OPs, finally, whether they have actually tampered and manipulated the report card of the complainant’s son or not. Thus specific findings can only be given by criminal court regarding forgery, tampering and manipulation etc. against the OPs. This findings cannot be passed or to be given by this Forum because it a Court of summary trial. But however, this court can very well observed whether any deficiency of service is found on the part of OPs towards result of the son of the complainant i.e. Vishal Rathore. No doubt the Hon’ble High Court vide its order of division bench as well as Supreme Court of India has not accepted the contention of the complainant that his son has been wrongly deliberately failed by the OPs and his report card has been tampered deliberately but it is not necessary that when any criminal proceedings is pending in court, the forum cannot decide the case in civil side..”

8. On the basis of the above observations of the District Forum, it seems that the criminal complaint lodged by the complainant is still pending and even the order passed by the Hon’ble High Court and Hon’ble Supreme Court have not found the opposite parties guilty for tampering with report card. In these circumstances, there was no justification for the District Forum to have arrived at the conclusion that the opposite parties were guilty of tampering with the report card and awarding compensation to the complainant. The Hon’ble Supreme Court in a series of its judgments has taken a view that the education is not a commodity and student is not a consumer as well as the educational institutions are not service provider. The petitioner has stated that the School is recognised by the competent authority and therefore, this is a proper educational institution recognised under the law of the land. The Hon’ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur, (supra) has taken a view as following:-

“Consumer Protection-consumer/Consumer dispute/Locus standi-Generally- University- if covered-Direction to issue BEd degree against rules of examination-Legality-Held, respondent as a student is neither consumer nor University is rendering any service to its students-Hence, Consumer Fora have no jurisdiction to entertain complaint-Respondent pursued MA and BEd simultaneously contrary to general rules of examination which prohibits pursuing two courses simultaneously-She had chosen to continue MA, while admission to BEd was cancelled-Without disclosing the said fact, respondent managed to appear for supplementary examinations for BEd, and passed, which results were withheld on detecting the mischief-Complaint filed for direction to award BEd degree- Held, claim of respondent was for a direction to appellant to act contrary to its own rules-No court has competence to issue direction contrary to law nor can direct an authority to act in contravention of statutory provisions-Hence, National Commission should not have issued direction to appellant to act contrary to statutory provisions-Also, respondent cannot plead estoppel either by conduct or against statute so as to gain any advantage just because she was erroneously allowed to appear in the examination-Consumer Protection Act, 1986-Ss. 2(1)(o) and 2(1)(d)(iii)”

9. Hon’ble Supreme Court in P.T.Koshy & anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 09.08.2012 has observed the following:-

“In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.”

10. In Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC), it has been held that:-

“(i) Consumer Protection Act, 1986- Sections 2(1)(d), 2(1)(g), 2(1)(o), 11,19, 23- Education Result not published- Complainant had to re-appear in exams- Loss of one year suffered- Compensation granted by Consumer Forum- Order upheld by State and National Commissions- Civil appeal filed- Examination Board while conducting examination, in discharge of statutory function, does not offer ‘services’ to candidates- Examination fee paid by student not consideration for availment of service, but charge paid for privilege of participation in examination- Board not ‘service provider’- Student appearing in examination, not ‘consumer’- complaint under Consumer Protection Act not maintainable against Board/University- Orders of Consumer Fora set aside.”

11. From the above authoritative judgments of the Hon’ble Supreme Court, now it is established that for the purpose of standard of teaching

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and examination etc. recognised educational institution is not a service provider and the student is also not a consumer. Learned counsel for the petitioner has referred to the judgment of a larger Bench of the Hon’ble Supreme Court in The Bangalore Water Supply & Sewerage Board Vs. A. Rajappa and others, etc., (supra) to demonstrate that education is covered under the Consumer Protection Act, 1986. The argument of the learned counsel for the petitioner is totally misconceived as the judgment of the Hon’ble Supreme Court in The Bangalore Water Supply & Sewerage Board Vs. A. Rajappa and others, etc., (supra) is a judgment given prior to the inception of the Consumer Protection Act, 1986 and this judgment relates to question of different sectors/services to be considered within the definition of “Industry”. Thus, the judgment referred to by the learned counsel for the petitioner is not in relation to Consumer Protection Act, 1986, therefore, the same is not applicable in the present case. 12. Based on the above discussion, I do not find any opportunity to interfere with the order dated 16.05.2019 passed by the State Commission and accordingly the revision petition No.1932 of 2019 is dismissed in limine.