w w w . L a w y e r S e r v i c e s . i n

Principal, L.D.R.P. Institute of Technology And Research, Gujarat v/s Apoorv Sharma

    Revision Petition No. 2006 of 2019
    Decided On, 11 October 2022
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Petitioner: Vivek Beniwal, Ankit Anandraj Shah, Advocates. For the Respondent: Nemo.

Judgment Text
The present Revision Petition has been filed by the Principal, LDRP Institute of Technology and Research, Gandhinagar, Gujarat (hereinafter referred to as the Petitioner Institute), the Opposite Party in the Complaint, against the Order dated 01.07.2019, passed by the Gujarat State Consumer Disputes Redressal Commission at Ahmedabad (hereinafter referred to as the State Commission) in Civil Misc. Application No. 240 of 2019, by which the State Commission has refused to condone the delay of 63 days in filing the Appeal, preferred by the Petitioner Institute. The Appeal had been filed against the Order dated 11.12.2018, passed by the District Consumer Disputes Redressal Commission, Gandhinagar (hereinafter referred to as the District Commission) in Consumer Complaint No. 80 of 2018, whereby the District Commission had partly allowed the Complaint, filed by the Complainant/Respondent herein, and directed the Opposite Party, the Petitioner herein, to pay Rs.20,000/- with interest @ 9% from the date of deposit of fee within 30 days as also Rs.2,500/- as compensation for harassment suffered.

The facts in brief are that in the Gujarat Common Entrance Test (GUJCET) 2017, the Complainant/Respondent herein had been allotted the Course of Electronics and Communication Engineering in the Petitioner Institute. The Complainant/Respondent deposited the Tuition Fee of Rs.20,000/- with the Petitioner Institute on 11.07.2017. However, subsequently the Complainant/Respondent neither participated in the admission procedure nor submitted any documents nor appeared for verification thereof, which was a mandatory requirement for confirmation of admission. The Complainant/ Respondent withdrawn the seat allotted to him before completion of admission procedure and commencement of new session of the Petitioner Institute. The Complainant/Respondent had taken admission in Medicaps University, Indore on 20.07.2017 and had informed about the same to the Petitioner Instituted on 24.07.2017, with a request to cancel his admission and refund the fee deposited. Though the Petitioner Institute cancelled the admission but did not refund the fee deposited. On 11.05.2018 the Complainant/Respondent also sent a notice in this behalf but all in vain. The Complainant/Respondent filed the afore-noted Complaint before the District Commission, praying for the reliefs stated in the Complaint.

There was no representation on behalf of the Petitioner Institute before the District Commission and, therefore, the District Commission set the Petitioner Institute ex-parte and vide Order dated 11.12.2018 partly allowed the Complaint and issued the aforesaid directions to the Petitioner Institute.

Feeling aggrieved with the Order passed by the District Commission, the Petitioner Institute filed the Appeal before the State Commission with a delay of 63 days. The State Commission by the Impugned Order has refused to condone the said delay. Hence, the present Revision Petition by the Petitioner Institute.

It is stated by the learned Counsel for the Petitioner Institute that the State Commission has grossly erred in not appreciating the vital facts of the Case that there was a delay of 63 days, which was only a technical delay, and all bonafide attempts were made to obtain the copy of the Order dated 11.12.2018 passed by the District Commission. The same was received on 03.04.2019 and, therefore, there was no delay in filing the Appeal. The delay was neither intentional nor deliberate. Further, while taking various other grounds, the learned Counsel for the Petitioner Institute states that the Impugned Order passed by the State Commission be set aside and/or the matter be remanded to the District Commission.

Heard the learned Counsel for the Petitioner Institute and gone through the material on record.

The Hon’ble Supreme Court in “Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., (1987) 2 SCC 107” has laid down the principles, on which matters of condonation of delay should be considered.

For ready reference, relevant portion of Paragraph-3 of the Judgment in the aforementioned Case is reproduced below:

“3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits.”

The Hon’ble Supreme Court in “Hemlata Verma versus M/s. ICICI Prudential Life Insurance Co. Ltd. & Anr.” [Civil Appeal No. 5131 of 2019 decided on July 1, 2019], has held that the Commission should have taken not of the subsequent decision of this Court on the issue of condonation of delay.

For ready reference paragraph 9 of the aforementioned Judgment is reproduced below:

“9. We may consider it apposite to observe that the Commission while declining to condone the delay placed reliance on the decision of this Court in Ramlal vs. Rewa Coalfields Ltd., AIR 1962 SC 361. However, the later decision of this Court in Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., (1987) 2 SCC 107 has held that in matter of condonation of delay, the Court should take liberal view. In our view, the Commission should have, therefore, taken note of subsequent decisions of this Court on the issue of condonation of delay.”

In my considered opinion, sufficient cause has been made out by the Petitioner Institute. The delay in filing the Appeal should have been condoned by the State Commission. Accordingly, the delay of 63 days in filing the Appeal is hereby condoned and the Impugned Order passed by the State Commission is set aside. However, for the reasons recorded hereinafter, no fruitful purpose would be served by remanding the matter to the District Commission, as prayed for by the Petitioner Institute.

From a perusal of the Orders passed by the District Commission and the State Commission as also the Memo of Revision Petition and the documents filed along with it, I find that the Preliminary Issue as to whether Educational Institutions providing Education and other Incidental Activities to the students come within the purview of the Consumer Protection Act, 1986 or not arises in this Case and the said issue is squarely covered by the decision of a Larger Bench of three Members of this Commission in the case of Manu Solanki and Others Vs. Vinayak Mission University and other connected cases, 1(2020) CPJ, 2010, wherein the Larger Bench has held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the Complaint is not maintainable. Relevant portion of the Order is reproduced below for ready reference :-

“37. The following legal issues arise from the submissions made by the rival parties and the aforenoted decisions of the Hon’ble Supreme Court:

* Would any defects/ deficiency/ unfair trade practice indulged by the Educational Institutions post admission, which does not fall within the ‘course of imparting knowledge’ till the degree is conferred, falls within the ambit of the definition of Education?

* If we apply the definition of Education, imparting knowledge for full potential, will that criterion apply to the admission stage, when the foundation for admission itself is deficient?

* Would preferential activities for extracurricular activities, which do not have a direct nexus with admission fees, syllabus etc. be defined as Core Education? For Example if students go for a picnic and a mishap happens, does it fall within the definition of deficiency of service and is it part of Core Education? Do educational tours fall within the ambit of the definition of ‘Education’.

* Another example, if a school has a swimming pool and students of that institution drown on account of some deficiency or negligence of the authorities, would swimming in the school campus fall within the ambit of Core Education? Does maintaining a swimming pool and teaching swimming be considered as a part of Core Education?

* Does defect/ deficiency in service of any boarding/ hostel facilities rendered fall within the umbrella of ‘Education’?

* Do coaching centers/ institutions fall within the ambit of the Definitionof ‘Educational Institutions’.

* Do institutions involved in vocational training like, nursing, designing etc. strictly fall within the definition of ‘Educational Institutions’.

38. Learned Counsel appearing for the Petitioners in Revision Petition Nos. 2955 to 2963 of 2018 submitted that once the University is declared as ‘Deemed University’ all functions and activities governed by the University Grants Commission Act (UGC Act), fall within the definition of ‘Authority’ within the meaning of Article 12 of the Constitution and would be amenable only to the jurisdiction of the High Court. It is contended that even if the Education Institutions do not have a proper affiliation, Consumer Fora do not have jurisdiction to entertain the same. In our view even if an Institution imparting education does not have a proper affiliation in imparting education, it is not rendering any service and, therefore, will be out of the purview of the Consumer Protection Act, 1986.

39. Learned Counsel appearing for the Petitioner in Revision Petition No. 222 of 2015 vehemently contended that the Complainant had taken admission in B. Ed. course of the Opposite Party on the assurance that the said college was recognized by National Council of Technical Education (NCTE) and affiliated with the Opposite Party No. 2, Uttrakhand Technical University, who subsequently came to know that the Institute was not recognized by NCTE and therefore sought for refund of the fees. Whether such an unfair trade practice post admission would fall within the ambit of the Act needs to be seen. As the Institution is imparting education though it has been not recognized by the National Council of Technical Education, it would not make any difference because it will be covered under the education. Thus, the said Institute would not be rendering any service as defined in the provisions of the Consumer Protection Act, 1986.

40. There may be instances where there may be defect/deficiency of service in pre-admission stages by an educational Institution but as the educational Institutions are not rendering any service by imparting education, these instances will also not give any right for a person to approach the Consumer Fora under the provisions of the Consumer Protection Act, 1986.

41. Learned Counsel for the Educational Institution in Revision Petition No. 1731 to 1733 of 2017 argued that imparting education in a school is not limited to teaching in a class room and involves within its ambit other co-curricular activities including taking out the students for educational trips etc., for their overall growth and development and improvement of their faculties. In that matter, the children were taken by the Respondents for an “educational excursion trip” to a place of historical importance, and it was contended that, any shortcoming or negligence during the course of such an act falls within the definition of imparting education and therefore shall not fall within the domain of the Consumer Protection Act. 1986. Another issue which was raised is with respect to any defect or deficiency which may arise on account of a student drowning in a swimming pool maintained by the Educational Institution. We are of the considered opinion that such incidental activities of an Educational Institution while imparting education would also not amount to rendering any service under the provisions of the Consumer Protection Act, 1986.

42. Another relevant issue which was raised during the course of arguments was with respect to any defect or deficiency in the transportation which is provided by the schools/colleges. School buses are vehicles hired by the Institutions and in most schools is made compulsory with, the prescribed fees including the cost of transportation. Children come in their own vehicles also and we are of the view that any defect or deficiency in transporting the children to the school does fall within the definition of ‘imparting knowledge’ and, therefore, the Consumer Fora has no jurisdiction to entertain such Complaints arising out of these issues.

43. Now we address ourselves to the submissions made by the Learned Counsels in Revision Petition No. 462 of 2013 with respect to Coaching Institutions. The question which arises here is whether the Coaching Institutions fall within the definition of “Educational Institution”. Learned Counsel appearing for the Coaching Centres vehemently contended that though the Coaching Centres are not conventional Educational Institutions, since they are providing Coaching and training to students of an Educational nature same principles that apply to the Educational Institutions would also apply to these Institutions and that this view had been taken by this Commission in Fitjee Limited Vs. Minathi Rath I (2012) CPJ 194 NC. In this case it has been held that Complainants were consumers who sought to avail services for consideration and that Fitjee is the provider of the services and that they are Consumer Disputes. The issue that has been raised is that if the Coaching Centres were treated at par, as observed in this order, to be providing Coaching and training, to students of an Educational nature, then they too fall within the definition of ‘Education’ and, therefore, the services rendered by Coaching Centres cannot be construed to be ‘Service’ as defined under Section 2(1)(o) of the Act.

44. Learned Counsel appearing for the Complainants submitted that there is no Regulatory Mechanism applicable to the Coaching Institutes. He contended that Coaching Centres are promoting rote learning and not imparting actual knowledge. He vehemently contended that they are running for a commercial purpose with a single aim of making profit and are expanding using the franchise route.

45. We are of the considered view that conduction of Coaching Classes does not fall within the ambit of definition of ‘Education’ as defined by the Hon’ble Seven Judge Bench of the Supreme Court in P.A. Inamdar (Supra). Coaching Centres cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities. Therefore, strictly speaking Coaching Centres cannot fall within the definition of ‘Educational Institutions’. We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in ‘rote learning’.

46. For all the afore-noted reasons, we are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does fall within the jurisdiction of the Consumer Fora.

47. Learned Counsel appearing for the Petitioner in Revision Petition Nos. 3383 and 3384 of 2018 submitted that student, who took admission in Multimedia Diploma and Certificate Courses in 3D Animation, Visual Effects, Video, Editing, Graphic Designing and Web Designing, though fall within the definition of Vocational training, the programs are recognized by Karnataka State Open University and withdrawal of any such program cannot fall within the jurisdiction of the Consumer Fora.

48. At the outset, a broad definition of all that comprises ‘Vocational Courses’ needs to be seen. Generally speaking, there is a three tier system in HR Vocational Training program in India, which involve Certification level for 10+2 students, Diploma level Graduation program and Post-Graduation programs. For example vocational program include courses in areas of agriculture, automobiles, information technology, air conditioning, lab technician, live stock management, films and television, tourism etc. The Hon’ble Supreme Court in State of Punjab & Ors. Vs. Senior Vocational Staff Masters Association & Ors., 2017 (9) SCC 379, in para 22 observed that Vocational Courses are those Courses in which

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teaching is not on regular basis, though they play an important role in the grooming of students in the different fields. Vocational education can also be termed as job oriented education and trains young people for various jobs and helps them acquire specialize skills. 49. The Union Cabinet has approved a merger of the existing Regulatory Institutions in the skills space — National Council for Vocational Training (NCVT) and the National Skill Development Agency (NSDA) into the National Council for Vocational Education and Training (NCVET). 50. The main purpose and objective of NCVET is to recognize and regulate and assess the skill related service regulators. It is clarified that even if there is any defect/deficiency/unfair trade practice in the services offered by private bodies in offering these courses and are not regulated and do not confer any Degree or Diploma recognized by any Approved Authority do fall within the ambit of definition of ‘Educational Institutions’ and hence the Consumer Fora have no jurisdiction to entertain the same. 51. In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986.“ Admittedly, the Petitioner Institute is rendering Education to all the persons, including the Complainant/Respondent, and is not running a Coaching Institute. Therefore, the law laid down by the Larger Bench of this Commission in the Case of Manu Solanki (Supra), which I am bound to follow, is fully applicable and the Institute does not fall within the purview of the Consumer Protection Act, 1986 as it is not rendering any services. In view of the foregoing discussion, the Order passed by the District Commission is also set aside. The Complaint filed by the Complainant/Respondent is dismissed and the Revision Petition is allowed.