IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 13906 OF 2013
PETITIONER:
U.GOPAL MALLER
PUBLISHER,KESARI WEEKLY
19/1831,SWASTHIDISHA,MADHAVAN NAIR
ROAD,CHALAPURAM.P.O,KOZHIKODE-673002.
BY ADVS.
SRI.T.A.UNNIKRISHNAN
SRI.K.S.PRAVEEN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY,
DEPARTMENT OF POSTS,GOVERNMENT OF INDIA,
NEW DELHI-110001.
2 CHIEF POSTMASTER GENERAL
KERAL CIRCLE,THIRUVANANTHAPURAM-695033.
3 SENIOR SUPERINTENDENT OF POST OFFICES
CALICUT DIVISION,CALICUT-673003.
BY ADV SRI.MANU.S, DSGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.12.2022, ALONG WITH WP(C).38301/2017,
41750/2017, THE COURT ON 3.2.2023 DELIVERED THE FOLLOWING:
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 38301 OF 2017
PETITIONER:
P.K. SREE KUMAR,AGED 51 YEARS
S/O.KRISHNAN NAMBOOTHIRI, PUBLISHER, K
ESARI WEEKLY, FOR HINDUSTHAN PRAKASAN TRUST
19/1449, SWASTHIDISA, MADHAVAN NAIR ROAD,
POST CHALAPURAM, KOZHIKODE-673002.
BY ADVS.
SRI.T.A.UNNIKRISHNAN
SRI.K.K.AKHIL
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF POSTS, GOVERNMENT OF INDIA,
NEW DELHI-110001.
2 THE CHIEF POST MASTER GENERAL KERALA CIRCLE
THIRUVANANTHAPURAM-695033.
3 THE POST MASTER GENERAL
NORTHERN REGION, CALICUT-673011.
4 THE SENIOR SUPERINTENDENT OF POST OFFICES
CALICUT DIVISION, CALICUT-673005.
BY ADV SRI.K.SHRI HARI RAO, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.12.2022, ALONG WITH WP(C).13906/2013 AND CONNECTED
CASES, THE COURT ON 3.2.2023 DELIVERED THE FOLLOWING:
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 41750 OF 2017
PETITIONER:
P.K. SREEKUMAR
AGED 51, S/O KRISHNAN NAMBOOTHIRI, PUBLISHER,
KESARIWEEKLY FOR HINDUSTHAN PRAKASAN TRUST
19/1449,SWASTHIDISA, MADHAVAN NAIR ROAD,
POST CHALAPURAM, KOZHIKODE.673002
BY ADV SRI.K.K.AKHIL
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF POSTS,GOVERNMENT OF INDIA,
NEW DELHI.110001
2 THE CHIEF POST MASTER GENERAL
KERALA CIRCLE, THIRUVANANTHAPURAM.695033
3 THE POST MASTER GENERAL
NORTHERN REGION, CALICUT.673011
4 THE SUPERINTENDENT OF POSTS OFFICES RMS
CALICUT DIVISION, CALICUT.673005
BY SRI.S.MANU, DSGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.12.2022, ALONG WITH WP(C).13906/2013 AND
CONNECTED CASES, THE COURT ON 3.2.2023 DELIVERED THE
FOLLOWING:
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
4
MOHAMMED NIAS. C.P.,J
-----------
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
- - - - - - - - - - - - - - - - - - ----
Dated this the 3rd day of February, 2023
JUDGMENT
The publisher of 'Kesari', a Weekly publication by Hindustan Prakasham Trust, Kozhikode, has filed these writ petitions.
2. WP(C)No.13906 of 2013 is filed stating that it is a Weekly newspaper published from Kozhikode, which started publication in 1951, and has a circulation of around 65,000 copies. The Weekly is directly being delivered to the subscribers through the Indian Postal Service based on Ext.P1 instructions, while stand-sale is comparatively low. Normally, the Weekly is published on all Sundays and posted at Calicut RMS on every Friday and Saturday. In August and September, 2012 the Weekly was published on 12.8.2012, 19.08.2012, 26.8.2012, and after that, on 2.9.2012, and the index pages of the said issues are marked as Exts.P2 to P5. While issuing Ext.P2, the third respondent informed the petitioner that Ext.P3 issue of the Weekly violates the instructions as the same is posted as the Annual issue and not as a Weekly issue. Petitioner denied the allegation stating that it was in fact, a Weekly issue and as the weight of the said Weekly issue was WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 5 more, higher postage at Rs.1.10 was paid. This was intimated to the third respondent by Ext.P6, who then required the petitioner to submit a representation before the second respondent, which was done as per Ext.P8. By Ext.P9, the third respondent issued a letter stating that the concessional postage cannot be allowed as in the issue of 'Kesari' dated 19.08.2012 and 26.8.2012, the weekly period was not printed anywhere and therefore it was treated as unregistered parcel/Book post. Challenging Ext.P9, WP(C)No.13906 of 2013 is filed. It is the specific contention of the petitioner that the publication is as a Weekly and not as an Annual issue and for the extra weight in the Weeklies, additional postage was also remitted, and as such, there is no violation.
3. WP(C)No.38301 of 2017 is filed challenging Ext.P3, a demand issued alleging improper pagination. The petitioner submits that copy of the Weekly published on 25.8.2017 was sent to the subscribers through post. Due to an inadvertent omission while printing this Weekly, the first 6 pages were not numbered, numbering started from the 7th page only and it was numbered as 3rd page, while according to the petitioner was nothing but an oversight and not purposeful at all. Ext.P3 was issued quantifying the amounts declining the concessional postage tariff to the petitioner.
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 6
4. WP(C)No.41750 of 2017 is filed challenging Exts.P2 and P3 and also for a declaration that condition No.14 in Ext.P1 cannot have any force of law. By Exts.P2 and P3 the petitioner was informed by the 4th respondent that the issued of 'Kesari' Weekly publication dated 1.2.2017 and 8.12.2017 contained a printing 'posted at Calicut RMS on every Friday and Saturday ' on the last page of the issue which it is alleged is in violation of the condition for availing concessional postage facility leading to a demand declining concession.
5. A counter affidavit was filed on behalf of the respondents in WP(C)No.13906 of 2013, stating that the issues dated 19.8.2012 and 26.8.2012 are Annual issues and a perusal of the copy of the RNI Certificate obtained by the publisher revealed that the Magazine is published on all Sundays. Since the publisher committed a violation, he was mulcted with the penalty. It is also argued that the action of the publisher violates the Indian Post Office Act and Rules.
6. In WP(C)No.38301 of 2017, the contention of the respondent is that there was an anomaly in pagination in the issue dated 25.8.2017 and essentially, pages 1 and 2, consecutive two pages contained advertisements and inserted without continuous page numbers and the 7th page is numbered page 3 and this was against the Rules for availing concessional postage rate. Since there was a violation the concessional WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 7 rate was withdrawn and the penalty imposed.
7. In WP(C)No.41750 of 2012 the respondents have filed a counter affidavit stating that the petitioners have violated conditions by printing 'posted at Calicut RMS on every Friday and Saturday' , thus, violating condition No.14 in Ext.P1, the printing of these words on the RNP shows the date of posting which is a case of infringement of condition, and accordingly, the petitioner was taxed.
8. Heard Sri.T.A.Unnikrishnan, the learned counsel for the petitioners in all cases, Sri.S.Manu, Sri.Shrihari Rao and Sri.Jaishakar V. Nair, the learned counsel for the respondents.
8. As noticed above, the penalty levied and impugned in WP(C)No.13906 of 2013 is on the basis that the Weekly published on 12.8.2012, 19.08.2012, and 26.8.2012 were shown as Annual editions, which according to the respondents is a violation that led to the penalty Admittedly, concessions were given on the ground that the publication was a Weekly. Whether the petitioners have exceeded the number of Weeklies possible and permissible if a whole year is taken would clinch the issue. In case the same has been exceeded, then it may be a case of violation. It is the specific case of the petitioners that they have not published more editions than what is permissible in a year. Certainly, it WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 8 is a matter the respondents will have to consider. Much more than the nomenclature used in the Weekly, what is relevant is to find out whether they have exceeded the number of permissible editions in the whole year. I find force in the contention of the learned counsel for the petitioners that Ext.P1 actually does not mention the penalty for the violations and what has been awarded is the maximum penalty, namely, withdrawing the benefit of the entire concession itself. It is also to be seen that there was no reasonable opportunity of hearing afforded to the petitioners before the impugned demand was made.
9. As far as WP(C) No.38301 of 2017 is concerned, the penalty was levied solely on the ground of improper pagination, which the publisher asserts is nothing but an oversight and was not purposeful at all. Here also, the maximum penalty was levied namely withdrawing the concession in full. I find force in the contention of the learned counsel for the petitioners that the penalty awarded is totally disproportionate to the alleged violation. The respondents will also consider whether the petitioners have derived any advantage from the alleged mistake committed. In this case, also there was no proper opportunity of hearing was afforded to the petitioner before the impugned penalty was ordered.
10. The penalty in WP(C)No.41750 of 2017 was ordered on the WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 9 allegation that the publications dated 1.2.2017 and 8.12.2017 contained a printing 'posted at Calicut RMS on every Friday and Saturday'. Here also the maximum penalty possible namely, withdrawal of the entire concession was ordered again without affording a proper opportunity of hearing to the petitioners.
11. The respondents will consider the purpose for granting concessional tariff to the Weekly in question and also find out the advantage that the petitioners could have got on committing the alleged violation. The penalty in all the cases was to the maximum namely withdrawing the entire concessional tariff on the ground of the alleged violations, In none of the above cases there is any allegation that the postage required to be paid for the weightage was not paid.
12. Under the above circumstances, the impugned orders are quashed and the respondents are directed to afford a reasonable opportunity of hearing to the publisher of the Weekly and to take an appropriate decision in the light of the observations contained above. This exercise shall be done within an outer limit of four months from the date of receipt of a copy of this judgment.
The writ petitions are allowed as above.
Sd/- MOHAMMED NIAS C.P., JUDGE dlk/23.01.2023 WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 10 APPENDIX OF WP(C) 38301/2017 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE MEMO DATED 29-12-2014, TECH/1/9/KKD/WPP/08 ISSUED BY THE ASSISTANT DIRECTOR OF THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE MEMO DATED 20-11-2017, TECH/1/9/KKD/WPP/08 ISSUED BY THE ASSISTANT DIRECTOR OF THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SAID COMMUNICATION NO.G 25/8 DATED 17-11-2017 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 11 APPENDIX OF WP(C) 41750/2017 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE MEMO DATED 29.12.2014, TECH/1/9/KKD/WPP/08 ISSUED BY THE ASSISTANT DIRECTOR OF THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 13.12.2017 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 15.12.2017 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE OUTER PAGES OF THE WEEKLY CONTAINING THE STATUTARY PRINTING.
EXHIBIT P5 TRUE COPY OF THE EXPLANATION AND REQUEST SUBMITTED BY THE PETITIONER TO THE POST MASTER GENERAL DATED 18.12.2017.
RESPONDENTS EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE LICENSE CONDITIONS ISSUED BY DEPARTMENT OF POSTS DATED 20.11.2017.
EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 3.2.2012. EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 16.1.2015.
EXHIBIT R1(D) TRUE COPY OF THE LETTER DATED 14.3.2012.
EXHIBIT R1(E) TRUE COPY OF THE LETTER DATED 11.2.2013.
EXHIBIT R1(F) TRUE COPY OF THE LETTER DATED 29.12.2014.
EXHIBIT R1(G) TRUE COPY OF THE LETTER DATED WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 12 20.11.2017.
EXHIBIT R1(H) TRUE COPY OF THE LETTER DATED 17.11.2017.
EXHIBIT R1(I) TRUE COPY OF THE DECLARATION DATED 3.10.2017.
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017 13 APPENDIX OF WP(C) 13906/2013 PETITIONER'S EXHIBITS EXHIBIT-P1 TRUE COPY OF THE INSTRUCTIONS DATED 29.11.2012 ISSUED BY THE 3RD RESPONDENT EXHIBIT-P2 TRUE COPY OF THE INSTRUCTIONS DATED 01.01.2013 ISSUED BY THE 3RD RESPONDENT EXHIBIT-P3 TRUE COPY OF THE INDEX PAGE OF KESARI ISSUES DATED 19.08.2012 EXHIHIT-P4 TRUE COPY OF THE INDEX PAGE OF KESARI ISSUES DATED 26.08.2013 EXHIBIT-P5 TRUE COPY OF THE INDEX PAGE OF THE KESARI WEEKLY DATED 19.05.2013.
EXHIBIT-P6 TRUE COPY OF THE LETTER DATED 05.01.2013 SUBMITTED TO THE 3RD RESPONDENT EXHIBIT-P7 TRUE COPY OF THE LETTER NO.G 25/MISC DATED 23.01.2013,OF THE 3RD RESPONDENT EXHIBIT-P8 TRUE COPY OF THE REPRESENTATION DATED 05.01.2013 TO THE 2ND RESPONDENT EXHIBIT-P9 TRUE COPY OF THE LETTER NO.G 25/MISC DATED 16.05.2013 OF THE 3RD RESPONDENT EXHIBIT-P10 TRUE COPY OF THE COMMUNICATION FROM THE 3RD RESPONDENT DATED 28.11.2014.