DEVINDRA MITTAL vs G.M., TELECOM, DISTT. FARIDABAD

WHETHER a subscriber''s telephone can be disconnected by the department for the non-payment of bills without serving a written notice to that effect and without affording any reasonable opportunity to him to either comply with the demand or to show cause against the same? This is the crucial question which has been reagitated afresh somewhat vehemently by the learned Counsel for the parties in this appeal.

THE partly successful complainant has appealed against the order of the District Forum, Gurgaon inter alia seeking compensation for the wrongful disconnection of his telephone and further relief to that already granted. THE appellant in his somewhat exhaustive complaint running into nearly 20 paragraphs had raised a number of grievances against the respondent-department. THE salient ones which deserve mention are firstly that the rental for his telephone No. 21098 (lated changed to 32098) were charged excessively at the rate of Rs. 500/- bimonthly whilst it should be charged at Rs. 200/- only as his telephone was within a radial distance of 5 Kms from the Exchange. The further allegations were that the appellant''s telephone used to get connected to several telephone lines installed in the same area where the commercial establishments like M/s. Business Plus Communications Centre, M/s. HCL Ltd. were located, who were lavish users of STD facility for business purposes. Consequently the appellant received excessive bills for the period July, 1992 and September, 1992. In particular the averment was that during August, 1992 his telephone remained dead through out and despite repeated complaints far from the same being rectified, it was disconnected due to the alleged non-payment of a bill dated the Ist of July, 1992 for Rs. 1293/- only without any written notice of intimation whatsoever and without affording any opportunity to him to show cause or to make payment of the alleged amount.

Lastly the allegation was that the bills for telephone charges were raised against him for the period 16th of September, 1992 to 15th of December, 1992 even though his telephone was dead during the said period and even after its actual disconnection. Specific challenge was also laid to bills dated 1st of March, 1992,1st of May, 1992 and 1st of September, 1992 for Rs. 2536/-; Rs. 5588/-; and Rs. 4725/- respectively. Consequently the appellant sought the necessary reliefs alongwith compensation to the tune of Rs. 50,000/- only in his complaint.

THE respondent department in their equally detailed reply had fairly admitted that the rental had been wrongly charged at a higher rate of Rs. 500/- and undertook to adjust the amount at the claimed rate of Rs. 200/- only. However the allegation of inflated bills for July & September, 1992 were controverted and the stand was that these were according to the recorded consumption. Further plea was that the telephone in fact never remained out of order and the appellant had defaulted in the payment of his bills. THE disconnection of the telephone without written notice or opportunity was tacitly admitted and the frontal stand taken was in the following terms:- "It is submitted that the opposite parties have every right and authority to disconnect the telephone of the complainant in default of the payment of the bill dated 1st of July, 1992 for Rs. 1293/- in terms of provisions contained in Rule 443 of the Indian Telegraphs Rules."

The parties filed affidavits and documentary testimony in support of their respective cases. The District Forum noticed that the grievance about the excessive rental stood admitted and had been undertaken to be rectified and ordered accordingly. However as regards excessive billing the appellant''s case was not accepted in the absence of a proved defect in the metering system by placing reliance on D.M. Telephones, Lucknow v. Madhu Enterprises, II (1991) CPJ 579 (NC)=1992 CPC 1 The District Forum did not choose to advert at all to the somewhat pointed issue raised with regard to the disconnection of the telephone without any written notice or affording of any reasonable opportunity to the consumer.

HOWEVER the District Forum accepted the appellant''s stand that the telephone ha remained out of order during August and September and with regard to the bill dated 1st of October and granted a sizeable rebate of Rs. 3662/- . HOWEVER further relief of not paying rent for the same period was declined on the basis of the provisions of Rule 443 (supra). The respondent-department was directed to issue a revised bill in accordance with the relief granted with the further direction that on the payment of the said bill the telephone be restored within 15 days therefrom. 6. Mr. P.S. Bajwa, the learned Counsel for the appellant in an able and persistent argument had placed in the fore-front position that the respondent-Department had disconnected the appellant''s telephone without any intimation far from serving a formal written notice and affording some opportunity for compliance or to show cause. It was submitted that the Department''s own rule or in any case statutory instructions provided for a written notice of disconnection and the period of not less then seven days for compliance etc. According to the learned Counsel, no telephonic charges can be said to be in default unless they have not been paid in accordance with the rules and such rules themselves envisaged a formal notice of demand and an opportunity to show cause or execute compliance. In sum and substance, the stand was that the subscriber is not in arrears until he has been duly served with a notice and failed to comply therewith and then alone the power of disconnection under Rule 443 can be invoked. Reliance was placed on the locus-classicus on the point in one of the most exhaustive and erudite judgment of the Division Bench in A.I.R. 1990 Gauhati 47 ''Santokh Singh v. Divisional Engineer, Telephones, Reference was also made to the decision of this Commission in II (1992) CPJ 564 ''J.S. Rathee v. The District Manager (Telecom) Ambala Cantt.'' 7. On the other hand, the sheet-anchor of the respondent-department''s learned Counsel Shri Harinder Pal Singh is his tenuous reliance on an observation by the National Commission in First Appeal No. 250 of 1993 ''The Telecom District Manager v. Dr. Bishnu Charan Mishra'', decided on 13th of April, 1993. Pinning himself on a line in the said order, Mr. Harinder Pal Singh had sought to arrogate to the Department the blanket power of disconnecting the telephones of the subscribers without notice and without affording any opportunity to show cause or comply with the same. In order to appraise the rival stands, which in a way attempt to reopen the settled rule within this jurisdiction one may notice in extenso Rule 443 of the Post and Telegraph Rules, which is the foundational base of the respondent-Department''s stand: Rule: "Default of payment: If, on or before the due date, the rent or other charges 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 phonograms 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." Now a plain reading of the aforesaid rule would make it manifest that the drastic power of disconnection arises only where the alleged dues" are not paid by the subscriber in accordance with these rules." This would make it manifest that Rule 443 is not to be read in isolation, but has to be read in the mosaic of the whole body of the Post and Telegraph Rules of which it forms an integral part. The core question, herein is as to when the subscriber is in arrears, and has not paid the rent or other charges in accordance with the whole body of the rules pertaining to this question.

WE are inclined to the view that herein the question is so well covered by precedent that it would be wasteful to overly elaborate it on larger principle and the language of individual rules. Having noticed the gut question as above, one can perhaps straight away proceed to the rationale of the most erudite and exhaustive judgment of the Division Bench on the point running into 47 pages of the printed report ''Santokh Singh v. Divisional Engineer, Telephones'' (supra). Therein apart from rules, on larger principle also, the Division Bench observed as follows: "Otherwise also, it is well settled law of the land that unless any bill and/or notice and/or demand is served on the person concerned, he cannot be deemed to be in default for non-payment of such bill or non-performance of anything contemplated by such notice."

APART from the above the Division Bench specifically and exhaustively addressed itself to the twin question as to when a subscriber can be said to have defaulted in the payment of telephone bills so as to empower the department to disconnect his telephone and whether such a connection can be disconnected without serving any notice on the subscriber informing him of the alleged default of the purpose disconnection. In answer to the said question their Lordships refer specifically to Rules 439,442 and 443 of the Indian Telegraph Rules and after an exhaustive discussion and interpretation thereof, it was categorically held by them as follows:- "25 .... we, therefore, hold as follows: (1)Before exercising the drastic power of disconnection of telephone the authority concerned must ensure that the bill and/ or notice is served on a subscriber and the period of 15 days thereafter as provided in the rule has expired and the subscriber has failed to make the payment within such period. (2) If it is so satisfied, then under the scheme of rules, it has to give a notice to the subscriber about the alleged non-payment and the proposed disconnection thereby giving opportunity to put forward his case, if any, against proposed action."

It would be somewhat manifest from the above that the Division Bench has construed Rule 443 in the true context of the analogous provisions of Rules 439,440 and 442 as well. The ration of the judgment is thus entitled to the greatest weight, if not of virtually binding effect. However, what is of further significance is the fact that in this context what first meets the eye are the departmental Rules and regulations on the point. Though apparently there are official publication to that effect also, yet reference may more conveniently be made to the recent authoritative publication titled as ''Swam''s Treatise on Telephone Rules." Therein at page 54 Chapter 12 the subject of disconnection of telephones is dealt with. It deserve pointed notice that in view of the statutory rules, guidelines and instructions a disconnection can only be made for specified reasons, and even when these are satisfied, it is expressly provided as follows: "Notice to be given before disconnection: Whenever the authorities decide to disconnect a telephone of a subscriber, they have to give the subscriber the notice of disconnection, of a period not less than seven days. In case of disconnection due to non-payment of telephone bills, telephonic reminders will be given to subscribers informing them about the pending bills; this will be done well in time so that each subscriber gets a week''s time to pay the outstanding bills."

A plain reading of the aforesaid would leave no manner of doubt that the disconnection of a subscriber''s telephone is not a matter of routine or an automatic consequence. The authority concerned has to take a conscious decision whether to disconnect the same or otherwise. Even where such authority decides to disconnect for a valid cause it has still to give a reasonable notice for not less than seven days. In addition thereto reminders are also envisaged to the subscriber. It deserves to be high lighted that these are not to be in derogation of the imperative duty to first give a notice in writing. It is elementary that a mere telephonic message of which no precise record of despatch or receipt can be kept are no substitute for the mandate of a duly served notice in writing on the subscriber before his valuable right to a telephone connection is to be disrupted.

HOWEVER, apart from the dry bones of the rules and instructions on the point, it appears to us that in the present case, the somewhat larger issues of general consumer interest of the very larger class of telephone subscribers in the country, must be taken adequate notice of. It would be wastefully labouring the obvious in dilating on the fact that the telephone connection is one of the most essential services today and its disruption may bring in its wake extreme hardship and inconvenience and may some time cause, considerable financial loss and injury. Considering the pressure and paucity of the telephone connections, no subscriber, who enjoys the facility, would wish to abandon the same. Within our country the power of disconnection of a telephone is indeed a drastic one and necessarily has to be exercised as a matter of last resort in line with a liberal construction of the relevant provisions on the point. It was keeping these factors in mind and also after an in-depth discussion held earlier that this Commission in ''J.S. Rathee v. The District Manager (Telecom) Ambala Cantt. (supra) had taken the categoric view that a subscriber''s telephone cannot be disconnected by the Department without first duly serving a written notice to that effect upon him and without affording him a reasonable opportunity to comply with the demand or to show cause against the same. It remains to advert to the observations in ''The Telecom District Manager v. Dr. Bishnu Charan Mishra'' (supra), which are obviously entitled to the greatest respect. However, what distinguishes the case is the fact that therein the complainant, who was the actual subscriber of the telephone had a private arrangement with the principal of the Medical College about the payment of the bills. In that somewhat peculiar context, the National Commission in the said case in terms noticed as follows: "Before, we take up the above question, we may mention here that the Counsel for the appellant was not able to give us much assistance in the disposal of the appeal as he could not cite previous orders of this Commission on this point."

IN the aforesaid context of the lack of assistance and the absence of any citation of the connected Rules 439, 440 and 442 of the INdian Telegraph Rules and the precedents of the High Court etc., the National Commission chose to merely follow an observation in an earlier case in Revision Petition No. 230 of 1991 ''Tele-communication District Engineer, Bhatinda and Another v. Ram Ji Dass'', decided on 3rd of August, 1992 without any further elaboration or added reasoning of its own. Despite being repeatedly pinpointed, learned Counsel for the respondent could not cite the judgment in Tele-communication District Engineer, Bhatinda and Another v. Ram Ji Dass'' (supra). However, from the observations in the Dr. Bishnu Charan Mishra''s case itself it is evident that in the previous case, the issue decided was not with regard to the service of a written notice or of affording an opportunity to the subscriber, but was restricted to an altogether different and limited question, namely whether the power of disconnection was confined only to the particular telephone in respect of which a default has been committed or also to any other telephone or telephones or telex service etc., which such a subscriber may have in addition. It is somewhat manifest that the real ratio of the Tele-communication District Engineer, Bhatinda v. Ram Ji Dass (supra) was on an altogether different and ancillary point and did not in depth and indeed at all consider the core question which now fails for adjudication. It is in the aforesaid context that one has to recall the celebrated words of Lord Halsbery in ''Quin v. Latham'' 1901 Appeal Cases 495, holding that a decision is only an authority for what it actually decides and not what might seem logically to follow therefrom. It is indeed the real ratio of the case, which is relevant and not every observation therein. That view has been followed by the Final Court in AIR 1968 Supreme Court 647 ''State of Orissa v. Sudhansu SekharMisra & Others'' wherein it was further observed that it is an unprofitable task to pin upon a line or a sentence in a judgment and to build upon it apart from its express ratio. It appears to us that Mr. Harinder Pal Singh on behalf of the respondent was attempting the same futile exercise by resting himself on a passing observation without adverting to the real ratio of the source case in Tele-communication District Engineer, Bhatinda v. Ram Ji Lal (supra). It may then be noticed that Dr. Bishnu Charan Mishra''s case was more directly focused on Rule 169.1 of the Post and Telegraph Manual and on the question whether the subscriber was liable to pay the rent for the period the telephone remained disconnected. It was on a construction of that provision that it was held that the State Commission had erred in its order in directing the Tele-communication Department not to realise the rental from the complainant for the relevant period of disconnection. Equally, it deserves notice that the National Commission held that there was a power to disconnect if the subscriber is in arrears. However, as it stands noticed earlier, the core question exactly remains as to when in the eye of law is a subscriber to be deemed in arrears to warrant the exercise of the drastic power of disconnection of the telephone.

WITH the greatest respect, we are unable to read Dr. Bishnu Charan Mishra''s case as an authority for the proposition canvassed on behalf of the respondent-department that it has an arbitrary blanket power of disconnection of a subscriber''s telephone without any notice and without affording any opportunity either to show cause or to comply with the demand. In our view the said authority is, therefore, plainly distinguishable.

IN view of the somewhat exhaustive discussion above, the answer to the question posed at the out-set, is rendered in the negative. We would reiterate that a subscriber''s telephone cannot be disconnected by the Department for the non payment of bills without serving a written notice to that effect and without affording reasonable opportunity to him either to comply with the demand or to show cause against the same. Once the aforesaid conclusion has been arrived at, the consumer-appellant is entitled to succeed on this specific question. It has necessarily to be held that his telephone was wrongly and unwarrantably disconnected and there was consequently a patent deficiency in the services extended out by the respondent. Therefore, he would be entitled to monetary compensation, therefor and in our view the sum of Rs. 2000/- would amply meet, the ends of justice. As a necessary consequence, he would be equally entitled to the restoration of his telephone, which was unauthorisedly disconnected, irrespective of any outstanding amounts against him and the order of the District Forum would stand modified accordingly. It however, goes without saying that the respondent-department would be entitled to proceed for the recovery of its arrears in accordance with the rules and after complying with the requirements of notice and an opportunity to show cause. The appeal is allowed in the terms aforesaid with costs which are assessed at a sum of Rs. 500/- only.

In fairness to the learned Counsel for the appellant, we may notice that in his ancillary submissions he had attempted to assail the telephonic charges levied vide bills dated the 1st of March, 1992, 1st of May, 1992and 1st of September, 1992. However, we were unable to find any merit in the aforesaid stand and no further relief barring the one, which the District Forum has already granted would in our view be justifiable. That part of the District Forum''s order has to be necessarily affirmed. Equally, we may record that the other ancillary submissions of the appellant stand well met by the order under appeal, which calls for no further interference. Appeal dismissed.