Distt. Manager, Telecom vs M.L. Raina

Tejinder Singh Doabia, J.—The above two writ petitions dealing with the same subject-matter are disposed of vide this common judgment.

A complaint was filed by the complainant-respondent before the Divisional Forum with regard to Telephone No. 30436. It was stated that the

bill for Rs. 30,613 is on the higher side. The fact that the petitioner department had allowed a rebate of Rs. 28,600/- and called upon the

respondent to deposit the remaining amount was challenged before the Divisional Forum. It was stated that the telephone has no STD facility, and

therefore, the question of such a high bill being issued was not justified. The above was the issue in complaint No. 2409, filed before the Divisional

Forum. In the second complaint bearing No. 2410, the complaint was with regard to a bill amounting to Rs. 21,650/- for the same telephone. in

addition to the prayer that the amount be reduced, a further prayer was made that the complainant be paid compensation. The complaints were

entertained. The amount of both the bills was reduced to Rs. 650/- in each bill including rent but excluding trunk calls. The department has been

directed to pay compensation to the tune of Rs. 10,000. This is for harrasement and mental agony sufferred by the complainant.

The basic argument which has been raised by the learned Counsel for the petitioner is that this was a dispute which could be settled only u/s 7B

of the Telegraphs Act. For facility of reference, this section is being reproduced below :

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.

It is accordingly submitted that respondent, if aggrieved, be directed to agitate the matter before the arbitrator.

I am of the opinion that the disputed question of fact as to what should have been the correct amount of the bill is a matter which could be

settled by taking resort to Section 7B of the Telegraphs Act. This is because there is a specific remedy provided by the Parliament. The petitioner-

department had already reduced the amount. It is not that the department had taken an unreasonable view in the matter. Again, the grant of

compensation to the tune of Rs. 10,000 and also directing payment of interest till the date of realisation was not called for. in this situation, the

remedy of arbitration is held to be more appropriate.

The legal position in this regard be noticed as under ;

5.1. in Smt. Makhani Devi Banka Vs. Union of India (UOI), , the view expressed is that the legislative intention behind Incorporation of Section

7B referred to above seems to be that the dispute relating to telephone lines, appliances or apparatus between the subscriber and Telephone

authorities should be arbitrated upon and finally has been attached to the award. It was accordingly held that Civil Court would have no

Jurisdiction in the matter and the parties were directed to take proceedings before the arbitrator. The Delhi High Court in the case of Om Oil and

Oilseeds Exchange Limited, Delhi Vs. Union of India and Others, . while disposing of a petition under Article 226 of the Constitution, observed

that the existence of Section 7B in the Indian Telegraphs Act of 1885. cannot be Ignored. However, at the same time, it was observed that in a

suitable case the High Court may entertain a petition under Article 226 of the Constitution.

5.2. A Division Bench of Gujarat High Court in the case of Govindbhai Premjibhai Chovatia Vs. Chief General Manager, Gujarat Telecom Circle,

Ahmedabad and Others, . speaking through B. N, Kirpal. C.J., now Judge of the Supreme Court, observed that a dispute with regard to

recording of calls would necessarily fall within the ambit of Section 7B of the Indian Telegraphs Act, in doing so, the Gujarat High Court placed

reliance on decisions reported as Om Oil and Oilseeds Exchange Limited, Delhi Vs. Union of India and Others, and P.S. Anthappan Vs. The

District Manager, Telephones, . in M/s. Jutex Vs. Telecom Divisional Manager and Others, , the view expressed is that a dispute with regard to

the matters covered by Section 7B is referable to arbitrator and the arbitrator should decide the same after taking note of the evidence which has

come on the record.

5.3. in B. Ramachandra Reddy Vs. The Union of India and others, , the telephone connection was disconnected. This was on the plea that the

subscriber was making free calls in collusion with departmental officials. It was observed that this was a matter which should be gone into u/s 7B of

the Indian Telegraphs Act. Accordingly, directions were given to the Union of India to appoint an arbitrator. R.N. Misra, J. later Chief Justice of

India, in Nityananda Sahu Vs. Postmaster General and Others, has observed that the dispute which is covered by Section 7B is referable to the

arbitrator, A civil suit is not maintainable. It was also observed that the procedure as indicated by the Arbitration Act would not apply to such

proceedings. in Telecom District Manager, Goa and others Vs. V.S. Dempo and Co., and others, , the Supreme Court of India held that in

disputes relating to the billing of the meter and liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator.

This has to be done by the Union of India. This decision also supports the proposition that disputes are referable to the arbitrator. in AIR 1996 Ori

102, the view expressed is that the dispute can be referred to the arbitrator. The finality attached to the award so given is open to be scrutinized by

the High Court in the exercise of writ jurisdiction.

5.4. A telephone is not to be disconnected if there is a dispute regarding non-payment.

This view was expressed by the Bombay High Court in the case of V.S. Dempo and co. Ltd. and Another Vs. The Telecom District Manager,

Goa and Another, . It was further observed that the provisions of Section 7B are to be complied with as it is. Its efficacy cannot be watered down

by the circulars which may have been issued by the respondents in this regard. Disputes regarding excess telephone billing can be referred to the

arbitrator. This view was expressed in the case of AIR 1993 Mad 312. P.T. Bell & Co. v. Union of India.

The view expressed in the aforementioned authorities that the disputes with regard to the matters covered by Section 7B should be adjudicated

upon by the arbitrator is a view which is the right way of looking at the matter. This is because the arbitrator so appointed can properly appreciate

the technical and non-technical matters. As to whether there is any defect in the instrument or in the installation of the same, is a technical matter

and as Indicated above. can be more appropriately dealt with by the arbitrator. This technical know-how may not be available with any other

authority. The fact that Orissa High Court in the case of Smt. Makhani Devi Banka Vs. Union of India (UOI), , has gone to the extent of holding

that even Civil Courts would not have Jurisdiction would prima facie show that the other remedies arc normally not to be resorted to.

It is accordingly held :

i/ That a dispute relating to telephone lines, appliances or apparatus between the subscriber and telephone authority is to be arbitrated upon by an

arbitrator in terms of Section 7B of the Indian Telegraphs Act;

ii/ That the award is final and is subject to challenge under Article 226 of the Constitution of India;

iii/ That in the proceedings before the arbitrator, the procedure as Indicated in the Arbitration Act would not be applicable;

iv/ That when the proceedings are referred to an arbitrator, then the telephone authorities should not insist upon the prior payment.

These two petitions as such, are disposed of with a direction that the petitioner-authorities would appoint an arbitrator, who would decide the

matter accordingly. Till a decision is taken, the respondent shall de- posit the amount of the bill as has been directed by the Consumer Forum. The

direction regarding payment of compensation shall, however, be not given effect to.

Disposed of as such.