Bharat Sanchar Nigam Ltd. vs IMPETUS MARKETING PVT. LTD.

WHEN this case was taken up on 28.9.2006 Mr. Verma appeared and case was adjourned for today. We have heard learned Counsel for both the parties at the admission stage, as both of them submitted that they are prepared to argue the case on merits also.

ADMITTED facts giving rise to this case are that subscriber of telephone No. 2652526 is M/s. Impetus Marketing Pvt. Ltd. This phone was disconnected by the appellants on the ground that the Managing Director of this Company while working as Branch Manager of M/s. Byfords Limited, and as sole proprietor of one firm Akash Deep Electronics was in default qua telephones obtained by the said Company and the Firm. It is not disputed that so far as amount in relation to M/s. Akash Deep Electronics is concerned, it has been squared by said Sh. Rakesh Bhatnagar, Managing Director of respondent who was the Branch Manager of Byfords Limited and sole proprietor of this firm. Further, facts have been noted in detail in the impugned order by the District Forum below, so we are not repeating those. Reason being that only question which needs consideration in this appeal is whether under Rule 443 of the Indian Telegraph Rules, 1951 appellants could have disconnected the telephone of respondent the subscriber of phone No. 2652526 for default another subscriber where the Managing Director of respondent was merely an employee that was installed in the same premises where its Managing Director was residing.

Mr. Sharma, learned Counsel for the appellant forcefully urged that there was direct nexus between the users of the defaulting subscriber of telephone Nos. 6557 and 2652526. We may observe that admittedly the respondent is subscriber of phone No. 2652526 had nothing to do with the subscriber of this phone No. 6557, i.e. M/s. Byfords Ltd. Admittedly this subscriber was in default in the sum of Rs. 67,838 as per bill Annexure R-4/5. However, because of commonality of user in the same premises, according to Mr. Sharma, his clients were thus justified in disconnecting the telephone No. 2652526 and he prayed for allowing this appeal by setting aside the impugned order. He placed reliance on a number of decisions in support of his submissions to which a reference will he made hereinafter.

ON the other hand Mr. Verma learned Counsel for the respondent, controverted all the pleas and submitted that mere commonality of user, even if be assumed for the sake of argument without conceding is there, unless direct nexus was further shown between two subscribers, i.e. the respondent and M/s. Byfords Ltd., the disconnection of telephone No. 2652526 is neither authorized by law nor can be justified in any circumstances whatsoever. Therefore, he prayed for dismissal of this appeal with punitive costs besides allowing compensation to his client for being unnecessarily harassed. When reference is made to Rule 443 of the Indian Telegraph Rules, copy whereof is placed on record as Annexure R-5/2 by the appellant, we are satisfied that on its plain reading it deals with a case of defaulting subscribers. For ready reference this rule is extracted hereinbelow: "THE INDIAN TELEGRAPH RULES 1951 RULE-443 If, on or before the due date, the rent or other harges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (local and trunk) or phonogram or other dues from the subscriber are not duly paid by him, any telephone or telephones or any telex service rented by him may be disconnected without notice. The telephone or telephones or the telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex remains disconnected) as may be prescribed by the Telegraph Authority from time-to-time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time-to-time.

(Emphasis supplied)

WHILE not disputing that of the disconnected telephone No. 2652526 subscriber is the respondent, who is not a defaulter it was reiterated by Mr. Sharma that the appellants are justified in disconnecting the same for its user because of default of the other subscriber i.e. Byfords Ltd. At the risk of repetition we may again notice that in the former Rakesh Bhatnagar is the Managing Director, whereas in the latter he was merely an employee. And in either case he incurs no personal liability. As both are separate entities in law being incorporated under the Companies Act, 1956. So far as a company whether private or a public incorporated under the Indian Companies Act, 1956 is concerned, it is well known and well settled that these are separate entities from its directors. Both types of Companies can sue and be sued in their own name, they can hold the property. In the defaulting Company who was subscriber of telephone No. 6557, Managing Director of the respondent was merely an employee. In the aforesaid background and in the facts of the present case it appears that the appellants have disconnected telephone No. 2652526 of the respondent subscriber on the assumption that since Rakesh Bhatnagar is its Managing Director and in the other he was the employee despite being not a subscriber of the either, nor there being any nexus and commonality of use of telephone, between the respondent and the defaulting Company, this in our opinion is beyond what Rule 443 supra envisages.

NOW we shall deal with case law cited by Mr. Sharma in support of this appeal.

MR. Sharma referred to the decision of National Commission in General Manager, Telecom v. Narsingh Das, II (2002) CPJ 53 (NC) and urged that action of his clients is legal and is as per law. When a reference is made to the facts of this case, it was by invoking Rule 443 (supra), because of default of one telephone the disconnection of the other was upheld by the National Commission. This decision is distinguishable for the simple reason that it was the complainant who was having two telephone connections as a ''subscriber'' in his own name and qua one he was in arrears, therefore, disconnection of second telephone was upheld. There can hardly be any dispute with this legal proposition. Next decision relied is in the case of The Accounts Officer, O/o Telecom District Engineer, Bankura (WB) v. Krishna Trading Company, II (1999) CPJ 29 (NC). Here the dispute related to the disconnection of two telephone numbers on the ground of non-payment in respect of another telephone all being in one name. Therefore, this decision is again distinguishable being on its own facts. Reason being that in the appeal before us admittedly Rakesh Bhatnagar was not the subscriber of either telephone No. 6557 for the arrears in respect whereof, telephone No. 2652526 of which respondent is the admitted subscriber has been disconnected. As such no benefit can the derived from this decision by the appellant.

Mr. Sharma further referred to a decision of the Delhi State Commission in Neeta Gupta v. Mahanagar Telephone Nigam Limited, II (2003) CPJ 120. He laid great emphasis on the following observation relied upon by the Commission of the Delhi High Court in CWP No. 6343/1998 in the case of Rajiv Gosain v. Mahanagar Telephone Nigam Ltd. ".......... once the Department is able to establish that there is commonality of user and there is nexus between the defaulting subscribers as well as the subscribers whose telephone is sought to be disconnected, the Department can resort to invocation of Rule 443 to protect its interest."

ANOTHER decision of the said Court was also relied on by the Delhi State Commission in its order. In order to take benefit from this decision, it had to be established by the appellants that there was element of user of nexus and commonality between the defaulting subscriber i.e. M/s. Byfords Ltd. and the respondent Company. That is not the case of the appellants. Moreover, the above extracted observation of the Delhi High Court, in our view supports the submission of Mr. Verma as it refers to commonality of user and there being nexus between the defaulting subscriber and the subscriber whose number is to be disconnected. Faced with this situation Mr. Sharma pointed out that since both these telephones were installed at the same premises, therefore it can safely be inferred that there is not only commonality of user but there is direct nexus between the two defaulting subscribers and this fact can be ascertained by tearing the veil to do complete justice between the parties.

THIS plea has been raised simply to be rejected. If the appellant wanted to succeed on this plea, it was bound to establish on record by some reliable and acceptable evidence that between the Byfords Ltd. and the respondent, a Private Limited Company there was some element of commonality in it. There is no such material on record produced by the appellants. Lastly reliance was placed by Mr. Sharma on a decision of Jharkhand High Court in Gyarsi Devi v. Union of India, I (2004) CPJ 241. In this case facts were that a new telephone connection was applied in the premises whereas outstanding dues standing against the telephone in the same premises were there and thus fresh connection was denied. High Court in these facts had justified that in the same premises where already defaulted telephone was existing. In the context of the present appeal before us, we may reiterate and repeat that this is not the factual position in the present appeal because admittedly the telephone that was in default had been disconnected as far back as in the year 1993 was not now installed in the premises where telephone No. 2652526 of respondent is installed so after a gap of almost about 10 years, the telephone No. 2652526 of the respondent was being disconnected when there was nothing common between the defaulting subscriber and the respondent. A reference was made by Mr. Sharma to a decision of this Commission in Appeal Nos. 22, 23/2004 decided on 2.8.2006. We have gone through this order. Here the telephone of the father was disconnected for default of the son both connections being in the same premises, thus again it is a decision on its own facts and therefore this also does not advance the case of the appellants.

NO other point is urged.

IN view of the aforesaid discussion there is no merit in this appeal which is accordingly dismissed with costs quantified at Rs. 1,500. The amount tendered with this appeal will be deposited with PNB Kasumpti, Shimla-9. Office will make available a copy of this order to the parties free of costs as per rules. Appeal dismissed.