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Judgment
THE complainant/petitioner who is the appellant in the instant case alleged of excess billing for his Telephone No. 35-2369 for Cycle Nos. 9/89, 11/89, 1/90, 3/90 and 5/90 for Rs. 1,560/-, Rs. 3,349/-, Rs. 1,900/-, Rs. 4,336/-, Rs. 2,881/- respectively.
ACCORDING to the said complaint, the Ld. Calcutta District Forum passed in an order dated 17.1.1991 directing the telephone authorities for restoration of the telephone line within 7 days from the date of order but the respondents did not comply with the said order. Subsequently the Ld. Calcutta District Forum again directed on 22.2.1991, the telephone authorities to restore the telephone line within 3 days but the telephone line could not be restored within 3 days due to several defects as alleged by the respondents. Ultimately the telephone number was changed from 35-2369 to 36-3069 on 17.2.1991. It is further contended by the appellant that as the STD facility was barred, the charging on account of STD calls was wrong and unwarranted, accordingly the complainant/petitioner prayed for cancellation of the charges on account of STD calls in the telephone bills of the disputed cycles. The telephone authorities did not file the written objection in the said complaint before the Ld. Calcutta District Forum and upon oral submission made on 16.9.1992 on behalf of the telephone authorities, the dispute about the excess billing was referred to arbitration by the Calcutta District Forum by its order dated 16.9.1992.
The contention of the complainant/ appellant is that the telephone department in supercession of Section 7(B) of the Indian Telegraph Act issued circular bearing No. 13324/ ARB/88-TR dated 13.4.1989 wherin it has been stipulated that in cases of dispute in excess billing the matter is to be referred to arbitration only where the complainant makes specific request to the Tribunal/Court for referring the complaint to an arbitration and in that case the Tribunal/Court is bound to refer the matter to an arbitration otherwise the matte could not be referred to arbitration.
IT is alleged by the appellant that for the same matter once the consumer would apporoach before the Tribunal/Court then again if the matter is referred to the arbitration he has again to approach before the arbitrator who is ipso-facto the person of the telephone department and as there was no prayer or request on behalf of the complainant/appellant for appointment of an arbitrator in the dispute of the excess billing, the Ld. District Forum has no right to make a reference of the dispute to the arbitration. It is contended that when the telephone department having collected fees for barring the STD facility under any circumstances, the concerned telephone authority cannot charge on account of the STD calls.
IT is further contention of the appellant that the Ld. District Forum have grossly erred by passing an order for making a reference of the dispute to the arbitration and ought to have been decided the matter on merit by the Ld. District Forum itself. The complainant/petitioner prayed for setting aside the order of the Ld. District Forum whereby the matter of dispute regarding excess billing was referred to arbitration and further prayed for cancellation of the charges on the disputed bills for the Cycle Nos. 9/89, 11/89, 1/90, 3/90 and 5/90 on account of the STD calls and also prayed for an order to refund the rental for the period during which the telephone remained disconnected. The appellant further prayed for an appropriate compensation for suffering illegal disconnection for such a long period since 21.3.90 to 17.2.1991.
THE Telephone Authorities filed a written objection in the appeal wherein it contended that the meter recording against the billing period for Cycle Nos. 9/89, 11/89, 1/90,3/90 and 5/90 was investigated and examined thoroughly.
IT was observed by the Investigator that although the line was STD barred with effect from 14.12.1982 even then the meter calls were rising from July, 1989 as such the line of the said telephone was placed under observation in the end of February, 1990 when STD calls to Bombay, Kanpur and Jalandhar were recorded on the basis of maturity of STD calls from the said telephone line as such no rebate could be given for those cycles and due to nonpayment of the bills against the aforesaid cycles the telephone was put under temporary disconnection effective from 21.3.1990 while it was restored on 22.1.1991. The Telephone Authority contended that the exparte order dated 17.1.1991 passed by the Single Member of the Calcutta District Forum was illegal and incompetent as per provision of Sections 13 and 14(2) of the Consumer Protection Act, 1986, the said order was not valid binding upon the telephone authority. The Ld. District Forum was pleased to fix 16.9.1992 for hearing in presence of both the parties when it was heard and after going through the documents and materials on record and hearing the submissions of the Opposite Party/Telephone Authority, the Ld. District Forum passed final order on the same day on 16.9.1992.
The Telephone Authority further contended that the Ld. District Forum while passing the order on 16.9.1992 directed it to refer the disputed bills for Cycle Nos. 9/89,11/ 89, 1/90,3/90 and 5/90 to the arbitration proceeding for adjudication of the dispute for excess billing as per provision of Section 7B of the Indian Telegraph Act, 1985. The respondent/Telephone Authority referred to a decision in the case of District Manager, Telephone v. Niti Saran reported in I (1991) CPJ 48 (NC) and argued that the National Commission in the said case directed to refer the matter for adjudication in the arbitration as per Section 7B of the Indian Telegraph Act.
THE respondent/Telephone Authority admitted the circular dated 13.4.1989 and contended that the complainant/appellant mislead the State Commission by not disclosing the last paragraph of the said circular which made it clear that the dispute could be referred to arbitration even without intervention of the Court. Futher, the respondent/telephone authority reiving upon a decision reported in 1993 (1) CPR 185 passed by the National Commission contended that in absence of any finding whether disputed bills was right or wrong it could not be said, there was any deficiency in service and restoration therefor is bad in law. It further contended that the Consumer Redressal Forum have not been conferred with any power to pass an interim order by way of injunction etc. by the Consumer Redressal Forum pending original proceeding before it.
ACCORDINGLY the respondent/telephone authority prayed for rejection of the appeal with costs. DECISION It appears from the materials on record that the telephone was barred from STD facility from 24.11.1982 for which prescribed charges was paid by the complainant/appellant. It is specific case of the complainant/ Appellant that as the telephone was STD barred since 24.12.1982 and the billing for STD calls is absurd and false but the bills for the Cycles Nos. 9/89, 11/89, 1/90, 3/90 and 5/90 showing charges for STD calls are exfacie wrong and baseless. It was further contended by the appellant that the respondent through Tele-communication Deptt. vide its letter No. 7/62/ 91-TR/28 dated 30.1.1992 agreed to allow rebate of 1980 calls for cycle No. 11/89, 2700 calls for cycle No. 3/90 which clearly indicates wrong and incorrect bills were raised by the respondent for those disputed cycles although the Telephone Deptt. retreated from the said stand point and concealed the said fact in its written reply.
WE also agree to the said contention of the appellant and are of opinion that the disputed bills for those cycles should be settled as per average consumption of the undisputed bills for six months.
AS regards making reference of the dispute to an arbitration proceeding by the Ld. C.D.F. as per provisions of Section 7B of the Indian Telegraph Act, the serious objection was raised on behalf of the appellant which deserves utmost consideration in view of the circular No. 13-324/ARB/88-T.R. dated 13.4.1989 issued by the Govt, of India which has been admitted by the respondent, but asserted that last paragraph of the said circular empowers the telephone authority to refer the dispute to arbitration without intervention of the Court, but we do not find any such contents in the circular dt. 13.4.89 placed before us. The appellant drew our attention to the Civil Rule No. 72 (SH) of 1989 in the case of Santosh Singh v. D.E. Telephones and Shillong, Civil Rule No. 598 of 1985 (Gauhati) wherein in dealing with the various allegations by Gauhati High Court discussed the applicability of Section 7B of Indian Telegraph Act in connection with the dispute of excess billing while deciding the maintainability of a writ application and the provision of Section 7B was thus reproduced as follows:- "7B: Arbitration of disputes-(1) Except as otherwise expressly provided in this Act, any dispute concerning any telegraph line appliance or apparatus arises between the Telegraph Authorities 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 purpose of such determination, be referred to an Arbitrator appointed by the Central Govt, either specially for the determination of that dispute or generally for the determination of disputes under this Sec.
(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."
Hon''ble High Court, Gauhati opined that Section 7B is confined to matters specifically indicated therein and not to a dispute between the Telephone Deptt. and the subscriber. Had that been the intention of the legislature it would have used a quite different language and would not have confined the scope *of the Section to specific disputes, namely "Disputes concerning any telegraph line, appliance or apparatus, arising between the Telegraph Authority and theperson for whose benefit the line, appliance or apparatus, is, or have been provided". Accordingly the Hon''ble Court held that the disputes regarding excess billing does not fall within the ambit of Section 7B and, as such, no remedy is available under that Section. It may also be observed that even if a dispute regarding excess billing can be subject matter of Arbitration under Section 7B, it would not take away that jurisdiction of the High Court under Article 226 of the Constitution, mere existence of an alternative remedy per se is not a bar to the exercise of jurisdiction by the High Court under Article 226. The High Court in appropriate cases can always entertain a petition under Article 226 even if some alternative remedy if it is satisfied that it is necessary to do so for the end of the justice. The High Court has discretion to grant relief under Article 226 even if there are alternative statutory remedies. The Hon''ble Court opined that in the instant case the provision of Sec. 7B have no application to a case of excess billing. On the facts and circumstances of the case also the Hon''ble Court satisfied that it is a fit case for exercise of writ jurisdiction. Accordingly, the Hon''ble Court rejected the submissions based on alternative remedy.
It was further held that it will be opposite to observe that the alternative efficacious remedy pointed out was the one provided in Section 7B of the Act, namely, reference to Arbitration. While considering the said plea, the Hon''ble Court came across a circular issued by the Govt, of India, in the Deptt. of Telecommunication, New Delhi, being No. 13-324/Arb/88-TR dated 13.4.1989. This is on the subject of Arbitrators in cases of excess metering. It has been addressed to the Chief General Managers (Telecom) of all the circles, Chief Gen. Manager of Calcutta/Madras Telecom. Dist Chief Gen. Managers of Telecom. Major Districts, and Telecom. District Managers of all the minor Districts. The relevant part of the letter reads as follows: "According to Section 7B of Indian Telegraph Act, if any dispute concerning any telegraph line etc. arises between the Telegraph Authorities and the subscriber, the dispute shall be referred to Arbitrators appointed by the Central Govt. The award of the Arbitrator shall be conclusive, and shall not be questioned in any Court.
According to the above Act, if anybody approached the Deptt. to appoint an arbitrator, Hon''ble Court is bound to do so, but if in every case of dispute by susbscriber an Arbitrator is appointed, the work load will increase tremendously, and cases will increase to numbers where it will be difficult to find a sufficient number of officers for appointment as Arbitrators. To control the overflow of such cases, the Deptt. had decided, as a matter of policy, that Arbitrators will be appointed only in such cases where the subscribers approaches the Court with a request to appoint an Arbitrator, and the Court orders for the same.
THE aforesaid instructions made it clear that the Govt, of India is of the opinion that because of the overflow of such cases it is difficult to appoint arbitrators. It has therefore, taken a policy decision to the effect that all requests for reference to Arbitrator shall be rejected and arbitrator shall be appointed only in such cases where a subscriber approaches a Court with request to appoint Arbitrator and Court orders for the same. Hon''ble Court considered the aforesaid policy decision of the Govt, and are of the opinion that the Govt, should not take such a policy decision contrary to the statutory provisions contained in Section 7B of the Act. THE proper course under the circumstances might be to take steps to delete Section 7B itself. However, once the Department has taken a policy decision to reject all requests for reference of a dispute to Arbitrator, its claim that alternative remedy is available to a subscriber under Section 7B of the Act is itself self-contradictory. In facts, as a result of the aforesaid policy decision has become otiose. This circular has also brought to focus one distressing aspect of the litigation between the citizens and the State. The State itself took a policy decision to deny the subscribers the remedy provided under Section 7B of the act due to its own administrative difficulties. Yet in the Court it came forward with a plea that the Court should deny relief to the citizens on the ground of availability of the very same remedy.
AGAINST the said judgment in Civil Rule No. 72(SH)/89 the Divisional Engineer, Telephones moved a S.L.P. No. 12049 of 1991 before the Hon''ble Supreme Court wherein the special leave petition was granted only on the question as to the scope of Rule 443 if the telephone line could be disconnected without notice in the event of non-payment of disputed bills and did not entertain the question on the scope of Section 7B as decided aforesaid. The reference made by the respondent to a decision reported in 1991 (1) CPR 48 where the National Commission held that unless there is adequate evidence which may be either direct or circumstantial to show the meter equipment was defective or there has been any misuse of the particular telephone by the employees of the Department, particularly where a subscriber has the STD facility there is every possibility of large variations in the calling pattern for various conceivable reasons. This decision is inapplicable to this present case of the appellant in view of his telephone line is STD barred from 24.12.1982. The appellant referred to a case of P.K. Goel v. G.M., Telephones, Jaipur reported in I (1992) CPJ 69 where it is held that the complainant/appellant attempted to dial STD call numbers on Telephone No. 36-3060 (old No. 35-2369) and got STD calls, there is deficiency in service of the Opposite Party No. 1/respondent because where there was no STD facility available on the telephone how could the complainant get STD calls, the instrument may not be working properly. A perusal of the bills from 6.1.1988 to 8.7.1989 as per statement annexed with the appeal shows that the local calls made did not exceed the free calls available except in one occasion exceeding 91 calls in Cycle No. 1/88 whereas in the disputed bills in question the calls mentioned therein are excessive high includeing alleged charges for STD calls. The Rajasthan State Commission held that where the telephone was without STD facility still it worked for STD, it is a deficiency in service and for it no charge can be included in the local calls bill. The appellant raised further allegations that the reference of dispute of arbitration proceeding u/Section 7B of the Indian Telegraph Act could only be made when specific requests are made from the subscriber for making such reference otherwise for one and same matter the consumer have to knock the door of competent Forum and then again before the arbitrator and thus the very purpose of object of Consumer Protection Act would be frustrated.
IN our view, tine proceeding before the Consumer Forum is some sort of arbitration proceeding where taking all factors into consideration, the dispute of excess billing should be settled, otherwise, by referring the dispute u/Section 7B of INdian Telegraph Act it would divert the consumer into the hands of the protesting party who will be the judge of its own wrong action. It is also our opinion that even if such reference made to arbitration proceeding the impartial arbitrator must be appointed by the Consumer Redressal, Forum other than the persons of telephone department in order to render fair justice to the Consumer and such fair justice cannot be expected from a judge who would sit for judging his own actions.
IN most of the cases it is noticed that the Ld. C.D.F. by referring the dispute to the Arbitration proceeding the same have been disposed of without keeping those open for reassessment and evaluation of the arbitration award passed in this regard if such award is good or bad, whereas the canon of law provides that the same are subject to judicial scrutiny otherwise why the consumer would come before the judicial process only for making a reference of the dispute which could be even without approaching before judicial proceeding, availed of. In view of the aforesaid discussions we allow the appeal on contest and set aside the order and judgment passed by the Ld. Calcutta District Forum in C.D.F. Case No. 1211 of 1991.
We direct the respondent telephone authority to cancel the bills for Cycles Nos. 9/89, 11/89, 1/90, 3/90 & 5/90 and to release the rental charges for those cycles based on average of the undisputed period of past 6 months and to refund the rental charges for the period of disconnection when the appellant was deprived of the telephone facility.
WE award compensation for a sum of Rs. 10,000/- to the petitioner/appellant for harassment, torture and mental agony suffered by it for about 2 years. WE further award to the appellant the cost of Rs. 2,000/-. Both the compensation and cost be paid by the respondent Telephone Authority within 30 days from the date of communication of this order. Appeal allowed.