# Deputy G. M., Bhartiya Door Sanchar Nigam Ltd v. Ram Kumar Sharma and others

- **Citation:** (2011) 3 ILRA 1247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-17
- **Case number:** Civil Misc. Writ Petition No. 58289 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deputy-g-m-bhartiya-door-sanchar-nigam-ltd-v-ram-kumar-sharma-and-others-41958
- **Pages:** 6

## Headnote

Indian Telegraph Act 1885-Section7-Bjurisdiction of permanent Lok Adaalat-a
creation
of
statute-order
passes
by
P.L.A.-not simply arbitration award-but
adjudicationary roll to play-warrants nor
interference

Held: Para 6

It is contended that Indian Telegraph
Act, 1885 (hereinafter referred to as "Act
1885") is a special Act and if there is any
deficiency on account of system failure,
no compensation is payable unless it is
1248 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
shown
that
there
is negligence
of
departmental
officials.
He
also
contended further that in view of Section
7B of Act 1885, dispute could have been
referred to Arbitration, and, Permanent
Lok Adalat had no jurisdiction in the
matter. Reliance is placed on Apex
Court's
decision
in
Civil
Appeal
No.7687/04 decided on 1st September,
2009 (General Manager, Telecom Vs.
M.Krishnan & Anr.) wherein Apex Court
held that in view of remedy provided
under Section 7-B of Indian Telegraph
Act,
the
remedy
under
Consumer
Protection Act by implication is barred.
Indian Telegraph Act is special Act and
Legal Services Authorities Act, 1987 is
general Act as such special law overrides
general
law.
Relying
thereon
it
is
contended that Permanent Lok Adalat
had
no
jurisdiction
to
adjudicate
regarding compensation. In this regard
reliance is also placed on Apex Court's
decision
in
Chairman,
Thiruvalluvar
Transport
Corporation
Vs.
Consumer
Protection Council, 1995(2) SCC 479. It
is thus contended that the impugned
order is wholly without jurisdiction.
Case law discussed:
Civil Appeal No.7687/04 decided on 1st
September, 2009 (General Manager, Telecom
Vs. M.Krishnan & Anr.); 1995(2) SCC 479;
JT2008(6) SC 517

## Text

3 All] Deputy G. M., Bhartiya Door Sanchar Nigam Ltd V. Ram Kumar Sharma and others
1247
Laxmi Devi and others (supra) has
considered Rule 2 (a) (iii) of the Dying in
Harness Rules, 1974 and has held that the
daily wager not employed in regular
vacancy is not a Government servant
under Rule 2 (a) (iii) of the Dying in
Harness Rules, 1974 and the dependants
of such daily wagers are not entitled to be
considered
for
compassionate
appointment.
The
word
"regular
vancancy" has been interpretated as
means the vacancy which occurs against a
sanctioned post of a cadre strength. It has
been further held that regular vancancy
cannot be filled up except in terms of the
recruitment rules as also upon compliance
with the constitutional scheme of equality.
In view of the Explanation appended to
Rule 2 (a), for the purpose of this case
would, however, assume that such regular
appointment was not necessarily to be
taken recourse to. In such an event subclause (iii) of clause (a) as also the
Explanation appended thereto would be
rendered unconstitutional. The provision
of law which ex facie violates the equality
clause and permits appointment through
the side-door being unconstitutional must
be held to be impermissible and in any
event requires strict interpretation. It was,
therefore, for the respondents to establish
that at the point of time the deceased
employees were appointed, there existed
regular vacancies. The apex Court further
held that merely because the deceased
was drawing salary on a regular scale of
pay, the same would not mean that there
existed a regular vacancy.

8. The Full Bench of this Court in
the case of Pawan Kumar Yadav vs. State
of
U.P.
and
others
(supra)
on
consideration of Rules 5 (1) and 2 (a) of
the Dying in Harness Rules, 1974 has
held that the dependants of the daily
wager or work charge employee not
holding any post either substantive or
temporary and not appointed in any
regular vacancey; even if he worked for
more than three years before the death is
not
entitled
for
appointment
on
compassionate ground.

9. In view of the above, I do not find
any merit in the claim of the petitioner
and is liable to be rejected. The writ
petition is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 58289 of 2011

Deputy General Manager, Bhartiya Door
Sanchar Nigam Ltd.

 ...Petitioner
Versus
Ram Kumar Sharma and others

 ...Respondents

Counsel for the Petitioner:
Sri K.N. Mishra
Sri Abhishek Mishra

Counsel for the Respondents:
......................................

Indian Telegraph Act 1885-Section7-Bjurisdiction of permanent Lok Adaalat-a
creation
of
statute-order
passes
by
P.L.A.-not simply arbitration award-but
adjudicationary roll to play-warrants nor
interference

Held: Para 6

It is contended that Indian Telegraph
Act, 1885 (hereinafter referred to as "Act
1885") is a special Act and if there is any
deficiency on account of system failure,
no compensation is payable unless it is
1248 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
shown
that
there
is negligence
of
departmental
officials.
He
also
contended further that in view of Section
7B of Act 1885, dispute could have been
referred to Arbitration, and, Permanent
Lok Adalat had no jurisdiction in the
matter. Reliance is placed on Apex
Court's
decision
in
Civil
Appeal
No.7687/04 decided on 1st September,
2009 (General Manager, Telecom Vs.
M.Krishnan & Anr.) wherein Apex Court
held that in view of remedy provided
under Section 7-B of Indian Telegraph
Act,
the
remedy
under
Consumer
Protection Act by implication is barred.
Indian Telegraph Act is special Act and
Legal Services Authorities Act, 1987 is
general Act as such special law overrides
general
law.
Relying
thereon
it
is
contended that Permanent Lok Adalat
had
no
jurisdiction
to
adjudicate
regarding compensation. In this regard
reliance is also placed on Apex Court's
decision
in
Chairman,
Thiruvalluvar
Transport
Corporation
Vs.
Consumer
Protection Council, 1995(2) SCC 479. It
is thus contended that the impugned
order is wholly without jurisdiction.
Case law discussed:
Civil Appeal No.7687/04 decided on 1st
September, 2009 (General Manager, Telecom
Vs. M.Krishnan & Anr.); 1995(2) SCC 479;
JT2008(6) SC 517

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard Sri K.N.Mishra, learned
counsel for the petitioner and perused the
record.

2. The writ petition is directed
against order dated 30th August, 2011
passed by Permanent Lok Adalat, Aligarh
holding petitioner liable for payment of
damages to the tune of Rs.5,000/- besides
expenses to respondent No.1.

3. The facts in brief given rise to the
present dispute are as under:

4. The respondent No.1 booked a
telegram on 17th June, 2011 at Lucknow
to transmit a massage to Senior Treasury
Officer, Aligarh for extension of his
earned leave from 18th June, 2011 to 28th
June, 2011. The said telegram was not
delivered till 14th July, 2011 as a result
whereof
respondent
No.1
suffered
deduction of salary for the period of
absence
and
therefore
he
claimed
damages/ compensation.

5. The defence taken by petitioner is
that telegram which was received at
Aligarh, was illegible and therefore was
returned
to
Lucknow.
The
Central
Telegraph office was also informed of the
situation. Thereafter on 9th July, 2011 the
matter was examined and technical fault
in the system was rectified whereafter
telegram
was
obtained
in
legible
condition and handed over to one Sri
Jabar Singh (T.M.) for distribution.
However, he could not distribute the same
being second Saturday and Sunday and
thereafter from 11th to 13th July, 2011 he
was absent due to illness. He could
distribute the telegram on and after 14th
July, 2011 after rejoining service.

6. It is contended that Indian
Telegraph Act, 1885 (hereinafter referred
to as "Act 1885") is a special Act and if
there is any deficiency on account of
system failure, no compensation is
payable unless it is shown that there is
negligence of departmental officials. He
also contended further that in view of
Section 7B of Act 1885, dispute could
have been referred to Arbitration, and,
Permanent Lok Adalat had no jurisdiction
in the matter. Reliance is placed on Apex
Court's
decision
in
Civil
Appeal
No.7687/04 decided on 1st September,
2009 (General Manager, Telecom Vs.
3 All] Deputy G. M., Bhartiya Door Sanchar Nigam Ltd V. Ram Kumar Sharma and others
1249
M.Krishnan & Anr.) wherein Apex
Court held that in view of remedy
provided under Section 7-B of Indian
Telegraph
Act,
the
remedy
under
Consumer Protection Act by implication
is barred. Indian Telegraph Act is special
Act and Legal Services Authorities Act,
1987 is general Act as such special law
overrides general law. Relying thereon it
is contended that Permanent Lok Adalat
had no jurisdiction to adjudicate regarding
compensation. In this regard reliance is
also placed on Apex Court's decision in
Chairman, Thiruvalluvar Transport
Corporation Vs. Consumer Protection
Council, 1995(2) SCC 479. It is thus
contended that the impugned order is
wholly without jurisdiction.

7. However, I find no force in the
submission.

8. So far as applicability of Section
7B of Act 1885 is concerned, I do not find
that the same has any application in a case
like the present one.

9. Section 7B of Act 1885 reads as
under:

"Arbitration of disputes: (1) Except
as otherwise expressly provided in this
Act, if any dispute concerning any
telegraph line, appliance or apparatus
arises between the telegraph authority
and the person for whose benefit the line,
appliance or apparatus is, or has been
provided, the dispute shall be determined
by arbitration and shall, for the purposes
of such determination, be referred to an
arbitrator appointed by the Central
Government either specially for the
determination of that dispute or generally
for the determination of disputes under
this section.

(2) The award of the arbitrator
appointed under sub-section (1) shall be
conclusive between the parties to the
dispute and shall not be questioned in any
court."

10. Here is not a case raising a
dispute
relating
to
telephone
bills.
Whenever an adjudicatory forum is
provided in a statute, which is a Special
Act, scope of adjudicatory power under
such special Act will confine to the
provision concerned and shall not be
stretched to the cases which are not
apparently covered thereby.

11. In the case in hand petitioner's
services were availed by an individual but
the petitioner committed default in
rendering such service. It could not render
service in the manner it was expected.
The sufferer therefore has come up for
claiming damages on account of failure
on the part of petitioner to serve the
individual concerned against payment it
had received for rendering a particular
service. Such matter apparently would not
fall within the scope of Section 7B of Act
1885 and therefore it cannot be said that
decision of Apex Court in General
Manager, Telecom (supra) would be
applicable to the case in hand.

12. Coming to the question whether
the matter in question would be within the
ambit of Permanent Lok Adalat, it would
be appropriate to have a bird eye view of
the provisions of the relevant statute. The
Legal Services Authorities Act, 1987
(hereinafter referred to as "Act 1987")
was enacted with an object to secure
operation of legal system and promoting
justice on the basis of equal opportunity.
Section 22B talks of establishment of
Permanent Lok Adalats for exercising
1250 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
such jurisdiction in respect of one or more
"public utility services" and for such areas
as may be specified in the notification.
The term "Public Utility Service" has
been explained in Section 22A(b) of Act
1987 and reads as under:

"public utility service" means any-

(i) transport service for the carriage
of passengers or goods by air, road or
water; or

(ii)postal, telegraph or telephone
service; or

(iii)supply of power, light or water to
the public by any establishment; or

(iv)system of public conservancy or
sanitation; or

(v)service in hospital or dispensary;
or

(vi)insurance service.

and includes any service which the
Central
Government
or
the
State
Government, as the case may be, may, in
the
public
interest,
by
notification,
declare to be a public utility service for
the purpose of this chapter."

13. It clearly includes postal,
telegraph
and
telephone
service.
Therefore, the petitioner is a service
covered by the term "Public Utility
Service" under Section 22A(b) of Act
1987 and therefore Permanent Lok Adalat
created under Section 22B of Act 1987
would have jurisdiction thereupon.

14. It is not the case of the petitioner
that in the notification issued by the
competent authority creating Permanent
Lok Adalat there is no mention of postal,
telegraph or telephone service or that the
petitioner's
public utility
service
is
excluded therein. On this aspect in fact
there is no challenge or no averment in
the entire
writ
petition. The only
challenge is vis a vis Section 7B of Act
1885 and legal Services Authorities Act,
1987. In view of specific inclusion of
petitioner as "public utility service" under
Section 22A(b) of Act 1987 in respect
whereto a Permanent Lok Adalat can be
established under Section 22B of Act
1987, it cannot be said that jurisdiction
can be excluded. A dispute can be raised
before Permanent Lok Adalat provided
the parties had not already taken up their
matter
before
any
Court.
Making
observation
in
the
context
of
the
provisions of Permanent Lok Adalat in
Act 1987, the Apex Court in para 16 of
the judgment in Inter Globe Aviation
Ltd. (supra) said:

"But in this case, the Respondent did
not approach a "court". The claim was
filed
by
the
Respondent
before
a
Permanent Lok Adalat constituted under
Chapter VI-A of the Legal Services
Authorities Act, 1987 ('LSA Act' for
short). Section 22C provides that any
party to a dispute may, before the dispute
is brought before any court, make an
application to the Permanent Lok Adalat
for settlement of the dispute. When the
statement, additional statements, replies
etc., are filed in an application filed
before it, the Permanent Lok Adalat is
required
to
conduct
conciliation
proceedings between the parties, taking
into account, the circumstances of the
dispute and assist the parties in their
attempt to reach an amicable settlement
of the dispute. If the parties fail to reach
3 All] Deputy G. M., Bhartiya Door Sanchar Nigam Ltd V. Ram Kumar Sharma and others
1251
an agreement, the Permanent Lok Adalat
is required to decide the dispute. The
Permanent Lok Adalats are authorized to
deal with and decide only disputes
relating to service rendered by notified
public utility services provided the value
does not exceed Rupees Ten Lakhs and
the dispute does not relate to a noncompoundable
offence.
Section
22D
provides that the Permanent Lok Adalat
shall, while conducting the conciliation
proceedings or deciding a dispute on
merit under the LSA Act, be guided by the
principles of natural justice, objectivity,
fair play, equity and other principles of
justice and shall not be bound by the
Code of Civil Procedure, 1908 and the
Indian Evidence Act, 1872. Section 22E
provides that
every
award
of
the
Permanent Lok Adalat shall be final and
binding on the parties and could be
transmitted to a civil court having local
jurisdiction for execution. Each and every
provision of Chapter VIA of LSA Act
emphasizes that is the Permanent Lok
Adalatis a Special Tribunal which is not a
'court'. As noted above, Section 22C of the
LSA Act provides for an application to the
Permanent Lok Adalat in regard to a
dispute before the dispute is brought
before any court and that after an
application is made to the Permanent Lok
Adalat, no party to the application shall
invoke the jurisdiction of any court in the
same dispute, thereby making it clear that
Permanent Lok Adalat is distinct and
different from a court. The nature of
proceedings before the Permanent Lok
Adalat is initially a conciliation which is
non-adjudicatory in nature. Only if the
parties fail to reach an agreement by
conciliation, the Permanent Lok Adalat
mutates into an adjudicatory body, by
deciding the dispute. In short the
procedure adopted by Permanent Lok
Adalats is what is popularly known as
'CON-ARB' (that is "conciliation cum
arbitration") in United States, where the
parties can approach a neutral third party
or authority for conciliation and if the
conciliation fails, authorize such neutral
third party or authority to decide the
dispute itself, such decision being final
and binding. The concept of 'CON-ARB'
before a Permanent Lok Adalat is
completely different from the concept of
judicial adjudication by courts governed
by the Code of Civil Procedure."

15. In United India Insurance Co.
Ltd. Vs. Ajay Sinha and Anr. JT 2008
(6) SC 517 the role of Permanent Lok
Adalat has been described by the Court as
borne out from a reading of the various
provision in Chapter VIA of Act 1987 as
under:

"26. Here, however, the Permanent
Lok Adalat does not simply adopt the role
of an Arbitrator whose award could be
the subject matter of challenge but the
role of an adjudicator. The Parliament
has given the authority to the Permanent
Lok Adalat to decide the matter. It has an
adjudicating role to play."

16. Since in the present case learned
counsel for the petitioner has not
advanced any other submission except the
issue that in view of Section 7B of Act
1885, Permanent Lok Adalat had no
jurisdiction in the matter which has
already discussed above, I am of the view
that the order impugned warrants no
interference. The writ petition, in the
circumstances, deserve to be dismissed in
limine.

17. Dismissed accordingly.
---------
1252 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 65844 of 2008

Vaibhav Tewari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

U.P. Recruitment of Dependents of Govt.
Servants (Dying in Harness Rules) 1974-
Rule-5-compassionate
appointment
petitioner's father working as Police
Constable missing from 31.01.1998-FIR
lodged
on
17.09.1998-treating
civil
death after 7 years all benefits givenclaim
for
appointment
rejected
on
ground of absnece of specific provisionheld-not
proper-under
rule
no
description
of
nature
of
death
or
difference
between
death
and
civil
death-entitled for appointment.

Held: Para 6

From a perusal of the above Rules, it is
clear that where a Government servant
dies in harness, a member of the family
could be given appointment under the
Rules. The Rules do not contemplate
death of any particular kind in order to
benefit the heirs. It only provides that in
case a Government servant dies in
harness, one member of the family
would be entitled to be considered for
grant of compassionate appointment.
The Rules do not specify the manner of
death
that
would
qualify
any
employment to the heirs. The language
of the Rules clearly suggests that all kind
of death caused by every possible
manner, would be included under the
Rules and the benefit of employment has
to be given to the dependants of the
person, who dies in harness and the
cases where civil death is presumed in
law, are not liable to be excluded.
Case law discussed:
[(2005) 1 UPLBEC 858]; [2009 (6) ADJ 591]

(Delivered by Hon'ble Krishna Murari, J. )

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the respondents.

2. Petitioner's father was working as
a Constable in Civil Police. He went
missing from 31.01.1998. When there was
no trace of his whereabouts, the mother of
the petitioner lodged a First Information
Report on 17.09.1998 at Police Station
Kotwali, District Ballia. After expiry of
period of 7 years, his civil death was
presumed and the respondents treating
him to be dead, proceeded to sanction and
release family pension to the mother of
the petitioner and also released Gratuity,
General Provident Fund and Group
Insurance etc. Mother of the petitioner
moved an application dated 28.07.2005
before the Superintendent of Police for
giving compassionate appointment to the
petitioner. When no action was taken,
another application dated 27.12.2006 was
moved
before
the
U.P.
Police
Headquarter.
Vide
letter
dated
23.06.2007, Deputy Inspector General
(Establishment),
Police
Headquarter
called
for
a
report
from
the
Superintendent of Police, Ballia. The
petitioner's request for compassionate
appointment was rejected vide order dated
20.11.2008 on the ground that there is no
provision under the Dying-in-Harness
Rules, 1974 (for short the Rules) to give