P.S. SAWHNEY vs GENERAL MANAGER, TELECOM

THIS is complainant''s appeal filed against the order dated 10.12.1999 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh vide which the Complaint Case No. 1277 of 1993 was allowed to the extent that the respondent General Manager, Telecom, Sector 18, Madhya Marg, Chandigarh was directed to pay a sum of Rs. 6,000/- including costs of Rs. 1,000/- to the complainant.

THE appellant filed the complaint before the District Forum seeking the restoration of the telephone connection of telephone No. 28689 after rectifying the defective wiring and to furnish the details of all the calls made by the complainant till the date of the filing of the complaint i.e. 30.10.1993 and also in future. THE complainant further prayed that the respondent be directed to produce the record of booking and installation of all the telephone connections from waiting list No. 1634 to waiting list No. 2350. He claimed appropriate compensation for misuse of his telephone for the unknown period but nothing less than Rs. 1,00,000/-. THE complainant also prayed for award of damages for disconnection of the telephone without notice and fix the amount of damages at Rs. 3,00,000/-. THE complainant had prayed for adjustment of a sum of Rs. 1,993/- which he paid in excess in respect of the said telephone. THE costs of litigation was also claimed. THE facts giving rise to this appeal may briefly be narrated as under. The complainant Shri P.S. Sawhney applied for the telephone in the general category on 7.10.1982 and deposited the requisite amount of Rs. 1,000/-. The complainant was allotted Priority No. Cu/Genl/P/12030. It has been averred that this regional priority number was subsequently changed to No. Section 17/Cu/Genl/P/1634 on 19.3.1990. The Advice Note issued by the General Manager, Telecom to the complainant informed him about the telephone connection having become matured on 4.3.1993. The telephone was to be installed within one week of the date of issue of the Advice Note, as provided by the relevant rules governing the installation of telephone. The telephone instrument was delivered to the complainant on 11.1. 1993 and the same was activated on 11.2.1993 and that too after repeated requests. The opposite party had installed telephone in the two adjoining flats bearing Nos. 943 and 945 on either side of the flat of the complainant who then was occupying flat No. 944, Sector 7-D, Chandigarh. The telephone number allotted to the complainant was 28689. The grievance of the complainant was that the aforesaid number of the telephone was allotted by the opposite party despite the fact that it was very well known to the General Manager, Telecom, the opposite party that the series starting with the first digit ''2'' was defective. It was alleged in the complaint that with the someone else with the connivance of the opposite party misused the connection of the telephone connection of the appellant for a period of about two years. The other grievance of the complainant was that the opposite party did not supply the telephone directory with the instrument despite written request of the complainant and also after he personally called on the dealing officials/officer on more than one occasion. The other grievance of the complainant was that the aforesaid telephone No. 28689 was disconnected by the opposite party inspite of the bill amounting to Rs. 2,314/- having been duly paid by the complainant. The disconnection aforesaid took place on 7.10.1993 and that too without any prior notice. The complainant in these circumstances was left with no choice than to file the complaint before the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh and he filed the instant complaint.

The opposite party filed reply to the complaint alleged, inter alia, that the area where the telephone connection was to be supplied to the complainant was technically non-feasible. The communication in this regard is copy Annexure C-1 on the file of the complaint case. The opposite party also averred in the reply that all the pending applications of the general category have been cleared on 1st March, 1992 up to registration No. 2350 and the persons who had booked for telephone connection on or before 31st October, 1983 were covered.

THE complainant filed his own affidavit in evidence while on behalf of the opposite party, affidavit of Shri R.S. Sharma, S.D.E. Cross Bar, Telephones, Shri K.S. Saini, S.D.O. and Sh. Gurmel Singh, S.D.O. (Telephones) were filed. THE District Forum after dealing with the evidence of the parties considered the relevant provision for the release of connection and quoted extracts from Swamy''s Treatise on Telephone Rules regarding the mode of release of connection, technical feasibility, allotment of telephone connections, release of new connections and came to the conclusion in the last para of the judgment, the relevant portion of which reads as under : "...In these premises when even according to opposite party department''s communication C-6 the telephone connections upto Serial No. 2350 had been cleared upto 28.2.1992 so non-clearance of telephone connection of Serial No. 1634 (of the complainant) depicts deficiency in services on the part of opposite party about which despite issuance of advice note on 4.3.1992 the telephone connection was released after the lapse of one year period of 11.2.1993. Causing delay of about one year by opposite party speaks eloquently about the deficiency in service being writ large on the part of opposite party department depriving complainant of the use of telephone during the said period of delay installing the telephone connection. So on that count he requires to be compensated. Though there is no mathematical or arithmetical yardstick to measure the compensation with exactitude, yet keeping in view the criteria of reasonableness, a sum of Rs. 5,000/- would be just and adequate to be awarded to the complainant as compensation apart from costs of Rs. 1,000/-. So opposite party is directed to make payment of aggregate amount of Rs. 6,000/- to the complainant within thirty days of the receipt of copy of the order or this amount be adjusted in the telephone bills of the complainant. THE complaint stands disposed of as such..."

THE complainant was not satisfied with the relief granted to him by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh and hence he approached this Commission by means of this Appeal No. 15 of 2000. In the grounds for appeal the appellant took the following grounds for challenging the judgment of the District Forum : (i) THE District Forum overlooked statutory rules in not granting interest on the initial deposit. (ii) It further overlooked statutory provision in not granting the rebate when the telephone remained dead for more than fifteen days in every quarter till 1997. (iii) THE District Forum erred in absolving the opposite party from criminal culpability of creating false evidence to mislead the Court. (iv) THE District Forum committed an error in not taking action against the officers for filing false affidavits in the Court. (v) THE District Forum went wrong in not granting appropriate compensation for adopting unfair trade practice. (vi) THE District Forum erred in not taking into consideration the fact that the non supply of telephone directory with the new connection amounted to deficiency in service. (vii) THE complainant had orally prayed for adjusting the compensation and costs of litigation awarded to him by the District Forum in the Consumer Welfare Fund but still the District Forum ordered the same to be adjusted in the future bills for the telephone connection. In view of these grounds, the appellant prayed in appeal that : (i) Opposite party be directed to identify the particular officer who adopted the unfair trade practice of installing the telephone of the appellant with some one else on its maturity and calling up for his malfeasance. (ii) A direction to the opposite party to identify the particular officer who has filed a fake document in the Court and take action against him under Section 193 of the Indian Penal Code. (iii) A suitable action be taken against the three officers who have filed false affidavits before the District Forum. (iv) Appropriate compensation be awarded with a clear direction for earmarking the same in the Consumer Welfare Fund. (v) THE appellant be permitted to file additional documents that may be necessary in the interest of justice.

THE costs of the appeal duly quantified were demanded and any other relief to which the appellant might be found entitled too was also prayed for. The respondent, General Manager, Telecom put in appearance through Mr. G.C. Babbar, Advocate. The record of the Complaint Case No. 1277 of 1993 was summoned from the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh. The learned Counsel for the appellant and the learned Counsel for the respondent advanced their respective arguments. The record of the complaint case was duly perused and we have gone through the judgment of the District Forum carefully.

A perusal of the judgment of the District Forum will go to show that the case of the complainant was confined only in regard to the waiting period for the release of telephone connection and evidence in that regard was referred to in the judgment in the last para which, inter alia, runs as under : "Complainant has further placed on record an other document C-6 issued by opposite party department which contained the recital waiting list of application for the new connections/accessories as on 1.3.1992 and encircled ''A'' there is show that telephone connections of general category up to serial No. 2350 had already been released up to 28.2.1992. In these premises when even according to opposite party department''s communication C-6 the telephone connections up to Serial No. 2350 had been cleared up to 28.2.1992 so non clearance of telephone connection of Serial No. 1634 (of the complainant) depicts deficiency in services on the part of opposite party about which despite issuance of advice note on 4.3.1992 the telephone connection was released after the lapse of one year period on 11.2.1993."

The complainant has, as mentioned above claimed reliefs regarding the interest on the initial deposit; rebate for the period when telephone remained dead for more than 15 days in every quarter till 1997; for initiating action by filing an appropriate complaint under Section 195 of Cr.P.C. against the witnesses of the respondents for allegedly filing false affidavits for the offence committed under Section 193, I.P.C. for not granting appropriate compensation for adopting unfair trade practice; for not providing telephone directory with the new connection, tantamounting to deficiency in service on that scope; for identifying the particular officer who allegedly adopted unfair trade practice of installing the telephone of the appellant with some one else on its maturity and to proceed against him for his malfeasance. It is evident from the order of the District Forum that the District Forum has confined the consideration of the complainant''s case only regarding the installation of the telephone belatedly and regarding the conclusion about the delay of one year in installation of the telephone and thus committing deficiency in service. The District Forum has not at all dealt with the other grievances of the complainant which we have mentioned above. We are thus of the considered opinion that the District Forum deserves to be directed to deal with all the points urged by the complainant and consider the prayer of the complainant based on such pleas. It will not be appropriate for us to deal with all these aspects of the complainant''s case for the first time in this appeal as the same may deprive one party or the other against whom the findings are recorded, to challenge the same by filing an appeal. Likewise the matter regarding the alleged false affidavits filed by the three Officers i.e. one S.D.E. and two S.D.Os. of the respondent, an enquiry is to be conducted in accordance with the provisions of law and then a finding is to be recorded for filing an appropriate complaint against the said witnesses for the offence punishable under Section 193, I.P.C. because under Section 195, Cr.P.C. no Court can take cognizance of the offence punishable under Section 193, I.P.C. except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. As an Appellate Court, we can consider this aspect of the matter but before we do so, an enquiry is to be conducted for considering the averment about the affidavits filed by the said witnesses being false within the scope of Section 193, I.P.C. Even the order that may be passed by the Trial Court for lodging the complaint against such witnesses for being tried under offence punishable Section 193, I.P.C. may be challengeable in appeal or revision and thus it will be appropriate that this matter should also be directed to be dealt with by the District Forum. Section 193, I.P.C. provides punishment for false evidence and runs as under : "193. Punishment for false evidence- Whoever intentionally gives false evidence in any stage of judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."

Section 195, Cr.P.C., inter alia, provides as under : "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence- (1) No Court shall take cognizance- a(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860); or (ii) of any abetment of, or attempt to commit, such offence; or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; b(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (i) or Sub-clause (ii); except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."

It will be abundantly clear from the provisions contained under Section 195(1)(b)(i), Cr.P.C. that cognizance cannot be taken by any Court of the offence punishable under Section 193, I.P.C. except on the complaint in writing of that Court or of some other Court to which that Court is subordinate, which we have already referred. In order that this complaint is adequately and appropriately considered and decided by the District Forum, it appears to us to be necessary that the judgment passed by the District Forum be set aside by allowing the appeal and the complaint case be remanded to the District Forum with the direction to decide the same afresh in the light of observations made in the body of the judgment and according to law. We however affirm the finding of the District Forum in so far as it relates to the deficiency in service on the part of the respondent in giving connection of the telephone belatedly to the appellant, since the respondent have not challenged this finding and filed any appeal against the relief granted by the District Forum. The District Forum will not reopen the finding regarding the deficiency in service on the part of the respondent. However, the District Forum will be at liberty to appropriately adjudicate the compensation resulting from the said deficiency in service apart from the other reliefs which are being claimed by the appellant. Resultantly, the appeal is allowed. The judgment of the District Forum is set aside. The complaint case is remanded to the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh for decision in the light of observations made in the body of judgment and according to law. The District Forum after receiving the record of the case shall fix the case for appearance of the parties before it and decide the same as expeditiously as possible but not later than two months from the date of receipt of the record. Appeal disposed of.