D.P.MOHINDROO vs S.D. OFFICER (PHONES) TELEPHONE

WHETHER the department of Telecommunication can levy arrears of telephonic charges for a separate telephone connection hold by a wife upon her husband, and disconnect the latter''s independent telephone for default ? This is the some what interesting question in this appeal.

THE facts lie in a narrow compass and are not in serious dispute. THE appellant Shri D.P. Mohindroo is an official of the Public Works Department and was the subscriber of telephone No. 29732 at his residence. His wife who carrises on an independent business in the name and style of Mohindroo Advertising Agency held a separate telephone No. 25779 located at her business premises. It would appearthat the telephonic charges for the appellant''s wife were in dispute and she preferred a complaint before the District Forum. During the pendency of the complaint the respondent-department served a notice dated 15th October, 1992 upon the complainant demanding the payment of Rs. 807/- which were allegedly due by his wife. THE appellant replied to the notice pointing out that the amount in the name of his wife could not be paid because the telephone had been shifted from the old premises to the new permises and the appellant had not been sent the bill there-at. Without more the respondent-department proceeded to dis-connect the telephone on the 4th of November, 1992. It was not till after the appellant''s wife succeeded in her complaint before the District Forum that the same was reconnected after more than two months on 13th of January, 1993. Against the aforesaid admitted and established factual back ground the District Forum proceeded summarily to hold that the Madras High Court is noticed inpara No. 27 of Swamy''s treaties on Telephone Rules had held that if the bill is not paid by the husband/wife/son the telephone of either can be disconnected. Consequently, it opined that the respondent-department was competent to disconnect the appellant''s telephone and, marginal relief granted was that they be restrained from charging any rent for the period betwixt 4th of November, 1992 to 13th of January, 1993.

Mr. D.P. Mohindroo-appellant who projected this appeal in person had forcefully assailed the order under appeal. It was contended that there was neither principle, nor any rule or statutory instruction which authorised the levy of the arrears of a telephonic bill of the husband on the wife or vice-versa or upon any other close relation. Primal reliance was placed on the judgment of the Division Bench in AIR, 1990 Gauhati 47, Santokh Singh v. Divisional Engineer Telelphones, Shillong and Others and AIR 1993 Andhra Pradesh, 131 Y. Pridhvi Kumar v. The General Manager, Telecom District, Hyderabad.

ON the other hand, Mr. Arun Walia learned Counsel for the respondent-department has placed primal reliance on Rule 443 of the Indian Telegraph Rules framed under Section 7 of the Indian Telegraphs Act. Apart from the said rule, support was sought from AIR 1990 Gujarat 85, Indravadan Pranal Shah v. General Manager, Ahmedabad Telephones District Kharpur, Ahmedabad and Another and the unreported judgments of the Madras High Court. It would be manifest from the above that the controversy herein primarily, revolves around Rule 443 aforementioned. It is, therefore, apt to note the same in extenso at the very outset:- 443. 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."

ERE we advert to construe the aforesaid proviso, it deserves highlight that we brought the complainant in 21 century. Archaic concepts of a wife being the chattel of her husband stand completely arround by now. Both the husband and wife are independent citizens in their own right. There is in General law that no vicarious financial liability of the one being the other barring statutory exceptions on larger principle. It is settled law that the contractual or even statutory financial liability of the wife cannot be foisted upon the husband or vice-versa. This of course is subject to constitutionally a valid law mandating to the contrary which however, is not easy to visualise. Consequently upon the general principle it has necessarily to be held that a husband is not vicariously liable for any contractual or statutory financial liability of the wife to the department of Telecommunication. Once it is held as above as a rule an exception thereto could only be called out by an express statutory provision. In the present context the only one that has been brought to our notice and has been relied upon is Rule 443 aforesaid. A plain reading thereof would indicate that it pertains to the arrears of a subscriber. The last word has necessarily to be construed according to its definition in Rule 2(PP) of the Indian Telegraph Rules which is in the following terms :- 2(PP) "Subscriber" means a person to whom a telephone service has been provided by means of an installation under these rules or under an agreement;" It would be plain from the above that a subscriber is the particular person for whom the particular telephonic facility has been provided and installed. It cannot even remotely be a demand of a husband or wife or any such subscriber or any other close relation of such subscriber. With this thing clearly in the mind, it is evident that Rule 443 at the highest warrants that for the arrear of a subscriber any other telephone or telex services of the same subscriber may be disconnected. One cannot read this rule to the unwarranted extent that any telephone of an altogether independent subscriber like the mother, husband or relation of the defaulting subscriber can be disconnected. Doing so would be a classic case of robbing Peter to pay Paul, it seems unnecessary to overly elaborate the matter and labour the obvious on the plain language of Rule 443. There is no warrant for levying the arrears of a subscriber on his or her spouse or any other near or remote relation.

HAVING examined the matter on principle and the language of Rule 443, one may however advert to precedent. The Rule aforementioned had fallen for construction by the Division Bench in Santokh Singh v. Divisional Engineer Telephones, Shilling and Others (supra). Therein on the broader perspective, it was held as follows :-- " The power of disconnection of telephone is a very drastic power and it should not be exercised lightly. It should not be forgotten that telephone service is one of the most essential services today and disconnection thereof may put a citizen to extreme hardship and incovenience and cause irreparable harm and injury. It may have far-reaching ramifications on his day to day living as well as on his means of livelihood."

We may say that we full and whole-heartedly concur with the aforesaid view. However, what is significant is that Division Bench on a consideration of Rule 443 then held as follows: " Suffice it to say that Rule 443 of the Rules as it presently stands, cannot be interpreted to authorise the Telecom. Department to disconnect any telephone other than the one which is subject-matter of dispute as, in our opinion, such action will be highly atrocious. The Department cannot coerce the subscriber to make the disputed payment by such means. It must act in accordnace with law and, if necessary, file a suit for recovery of the arrears."

IT may be mentioned that the aforesaid view is some-what extreme interpretation of Rule 443 but undoubtedly this ratio strongly business the limitation that the area of the wife who is an independent subscriber cannot be transposed on her husband holding a separate and independent telephone connection. Yet again in Y. Pridhvi Kumar v. The General Manager, Telecom District, Hyderabad (supra) the High Court made the following categoric observations of the ratio :- "I apprehend that I cannot accede to this contention of the learned Standing Counsel for the Central Government for the simple reason that the petitioner and his mother are having two different telephones and as citizens of India, they are entitled to be subscribers of telephones independently and merely because there is a relationship of mother and son and as the mother has defaulted in payment of amounts to the respondent, no liability can be fastened to the petitioner and neither the statute nor the rules framed there under empower the authorities to disconnect the telephone for the default committed by the petitioners mother. Even, if any statute makes such an imposition, the same would be arbitrary and unreasonable and be a clear infraction of the fundamental rights guaranteed under Article 14 of the Constitution of India."

It would be evident that the aforesaid precedent is also equally in favour of the view, we are inclined to take.

In all fairness we must notice Mr. Walia''s reliance on Indravadan Pranlal Shah v. General Manager, Ahmedabad Telephones District Kharpur, Ahmedabad and Another (supra). After an in-depth examination of the matter, it shows that the said case is plainly distinguishable. The same pertained to the telephone connection of two partners in a firm. Learned Judges of the Division Bench adverted to the nature of a partnership and held that when a telephone subscriber is a partnership firm, really speaking, all the persons constituting such firm i.e. its partners, are the owners of the telephone and subscribers and each one of them has rights and liabilities of a subscriber. It was on that premise that Rule 443 was applied on the ground that the partnership is not a legal entity and equally is not a corporate person that the solitary question in the said appeal was the constitutional validity of Rule 443 which was challenged. The Division Bench repelled the challenge and held that the same was not violative of Articles 14 and 19 of the Constitution. There can possibly be no quarrel with that proposition, but the same does not in any way aid or advance the case of the respondent.

IN the wake of the aforesaid exhaustive consideration, the answer to the question posed that the very outset has to be rendered in the negative. It is held that the department of Telecommunication can not levy the arrears of telephonic charges for a separate telephone held by a wife upon her husband, nor can it disconnect the latter''s independent telephone for any default there for. Once it is held as above the appellant must necessarily succeed. The appellant''s complaint is allowed and the order of the District Forum is hereby set aside. Adverting to the relief it suffices to mention that the appellant had claimed compensation to the tune of Rs. 50,000/- only. This appears to be rather on the higher side and keeping in view the fact that the telephone of the appellant remained unauthorisedly disconnected for two months, we would held that a compensation of Rs. 5000/- would amply meet the ends of justice. The appellant is also entitled to his costs, which are assessed at Rs. 500/- only. The respondent-department shall tender the aforesaid amounts within one month from today, failing which compliance would have to be enforced by the District Forum, Yamuna Nagar under Section 27 of the Act.

BEFORE parting with this order we cannot help noticing the some what cavalier manner with which the District Forum treated the matter which is of some significance in the consumer jurisdiction. It rested itself content by referring to para No. 27 of the case law recorded in the Swamy''s Treatise on Telephone Rules for summarily dismissing the complaint. It has to be pointed out that the valuable consumer rights cannot be brushed aside by casual references to an alleged judgment which is neither cited before the District Forum nor the ratio thereof is ascertained. Despite having been pin-pointed Mr. Walia could not cite before us the case of Zarina Begum v. General Manager, Madras Telephones, to which presumably reference was made by the District Forum. However, even the note given at page 803 of the said compilation does not seem in any way to support the stand of the respondents. Appeal allowed with costs.