R.K.GUPTA vs T.D.M.OF HISAR

WHETHER the inordinately delayed publication of telephone directories is a deficiency in the service undertaken to be rendered to the subscriber by the department of Tele-communication? This is the solitary though very significant national question in this set of five connected appeals.

FIRST Appeals No. 264 and 270 to 273 of 1992 are all directed against the same order of the District Forum, Hisar and are in the nature of cross appeals. Learned counsel for the appellant and the respondents are agreed that these appeals raised an identical question of law and consequently this order will govern all of them. The representative matrix of the facts may be noticed from First Appeal No. 264 of 1992. The complainant-appellant Shri Raj Kumar Gupta is an advocate at Hisar and is a subscriber of telephone No. 73817 thereat It was his basic case in the complaint that the rules and instructions mandate that a telephone directory should be brought out annually between the months of June and September, but in direct contravention thereof the respondent Tele-communication Department had not published any directory apart from the one of 1986 issue for Hisar and Jind. It was then the case that during the last more than four years nearly a thousand telephone numbers had been changed in the area due to the disconnection of S.T.D. facility or on technical grounds. Similarly more than 2000 new telephones had been provided, but far from publishing a new directory even a corrigendum or addenda to the old one had not been issued. It was the stand that the earlier directory had become practically useless for all purposes.

It was further alleged that because of the non-publication of the directory the complainant and indeed all the subscribers in the area were facing untold inconvenience, physical and mental 2 harassment and financial loss in locating the number, they wish to dial. It was pointed out that the enquiry number 197 is a metered number and as such calls made thereto for enquiry were chargeable and added to the subscriber''s bill. Moreover the service of this number was not available for all the 24 hours and apart from that even during the relevant hours the same remained unattended and invariable there was little or no response therefrom. On these allegations a compensation of Rs. 5,000/- from the respondent department was sought for harassment as also a direction to publish the new directory before the 31st of March, 1992 and thereafter annually and in any case make the enquiry No. 197 as a non-metered number.

ON notice being issued a somewhat cryptic reply was filed on behalf of the respondent department. Therein some freagmentary preliminary objections were taken to which reference is unnecessary because these were neither pressed before the District Forum nor before us. ON merits paras No. 1 to 3 were not controverted at all. However, in reply to the others, it was pleaded that the department had been intimating the list of changed telephone numbers in the newspapers, but due to administrative and financial reasons a new directory has not been published, whilst extending a vague hope that the same is likely to be done during the year. Though conceding that the new directory has not been published, it has curiously denied that the complainants were facing any difficulty or inconvenience etc. there from. The further plea was that enquiry service was provided as per the rules. In the replication the complainants whilst reiterating their earlier stand specifically denied that the department had been intimating the list of changed telephone numbers in the newspapers and a challenge was thrown that they be directed to file the newspaper cuttings for every year in which this was allegedly published. It was categorically asserted that no such list of new number has been published after 1986 till 1992. It was also controverted that any new directory was under the process of publication and the respondents were again challenged to give the name of the printer or publisher on whom the order had been so placed. The factual matrix being thus not in doubt, the parties confined themselves to their pleadings.

THE District Forum in its somewhat brief order observed that the department was under a legal obligation to publish an issue of telephone directory annually, but this had not been done for more than four years. Adverting to the obvious hardship to the subscribers, the District Forum granted compensation of Rs. 400/- to each complainant @ Rs. 100/- per year for not releasing the telephone directory. Aggrieved by the said order the department of Tele-communication has come up in appeal to challenge the order and the grant of compensation, whilst the complainants in their appeals have sought a considerable enhancement in the quantum awarded. Mr. Arun Walia, the learned Counsel for the appellant department, faced with an up-hill task was somewhat half-hearted in his submissions. It was sought to be argued that there was no legal obligation on the department to publish any telephone directory and in any case there was no mandate to do so annually. The suggestion was that the Department''s own rules and regulations were merely guidelines which could give rise to no claim by the subscribers to the telephone. Hyper technically, it was then submitted that the cause of action of the respondent subscribers must be confined to one year only and not four or five years for which admittedly the directory had not been published. Some justification for the patently gross delay was sought to be explained on the alleged paucity of the number of tender for the publication of the directory. On the other hand, the consumers-subscribers have diligently supported the order under appeal and offered additional reasons for its sustainability. The quantum of compensation awarded was assailed as too meagre in the light of a claim varying from Rs. 1000/- to Rs. 5,000/-.

TO appraise the rival submissions, it is obviously necessary to first advert to the Statutory or instructional provisions on the point. The appellant-department has itself referred to and relied on Rule 452 of the Indian Telegraph Rules, 1951. It is not in dispute that the said rules have been framed under the mandate of the legislature in the Indian Telegraph Act and are consequently statutory in character. For facility of reference, the said rule may be quoted at the out set: Rule 452: "Supply of telephone directories: A copy of the telephone directory shall be supplied free of charge for each telephone, extension or party line, rented by the subscriber from an exchange system or private branch exchange or a private exchange. A copy shall also be supplied free of charge for each extension (including extension) from an extension working from a public call office. Additional copies supplied shall be charged for at such rate as may be fixed by the Telegraph Authority from time to time".

IT is then common ground that apart from the Statutory rule, the Tele-communication Department has itself issued authoritative regulations or instructions on the point. These are well compiled in the authentic book of Swamy''s Treatise on the telephone Rules and instructions. The relevant ones again merit notice in extenso:- Periodicity: Telephone directories will be brought out annually between the months of June and September every year. Contents: (a) Alophabetical list -The main contents of a telephone directory is the alphabetical list of subscribers of all the telephone exchanges in the system. Each and every name of a telephone subscriber will find a place in the telephone directory. Against the aforesaid background, it deserves to be highlighted that by now it is well settled that the department of Tele-communication renders services to its subscribers for a consideration and consequently, they are squarely within the ambit of the consumers. There has by now cropped up a mass of authoritative case law holding that subscribers are the hirers of services undertaken by the Department. It is, therefore, unnecessary to labour the point.

Once that is so, it is plain that the aforequoted Rule 452 prescribes the publication of a telephone directory and not only that, but further that the same shall be supplied free of charge to the subscribers. The language employed in the rule is mandatory and the relevant word used is "shall" and not "may". Therefore, there is no manner of doubt that by virtue of this Rule the Department is under a legal obligation to publish the telephone directory and to furnish them to its subscribers. It suffices to restate the well settled proposition that a Statutory rule framed under the Act becomes a part and parcel thereof. Therefore, by force of law a mandate is laid upon the appellant department to comply with its provisions.

ADVERTING now to the instructions aforequoted, it is equally plain that they visualised the publication of a directory annually. It would be otherwise somewhat obvious that the extending of the telephone services would be somewhat incomplete if not farocical, if the number of other subscribers who are to be called is not made known. Herein it is common ground that the directory far from being published annually has not been so done for nearly four to five years. Mr. D.N. Arora, the Assistant Director of Tele-communication assisting the learned Counsel for the appellant had to fairly concede that there has been gross delay and deficiency in its publication. It is consequently unnecessary to opine whether instructions have equally a mandatory application and the obligation is not merely to publish a directory, but to do so every year betwixt July and September. Since herein there is an admitted default of well-nigh four to five years, there is consequently no dispute about the delay and the infraction of both the letter and spirit of the Statutory rule. Having held that the Department of Telecommunication extends services and the subscribers have hired the same for a consideration to become consumers. Ail that remains is to determine whether there is any deficiency in such services. To highlight the issue one may advert to the definition of the word ''deficiency'' in Clause (g) of sub-section (1) of Section 2 of the Act: 2(1)(g): "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

A plain reading thereof would show that the same visualises a quality nature and manner of performance which is required to be maintained by or under any law for the time being in force qua the relevant service undertaken. In the present case that law is symbolised by the Statutory Rule 452 and the regulations and instructions consequential thereto. Once there is any deviation from what is required to be maintained by law, it obviously becomes an imperfection, shortcoming, or inadequacy, in the rendering of such service & squarely a deficiency therein It would inevitably follow that a consumer would, therefore, be entitled to seek relief for the deficiency in the services which he had hired In the light of the above, the answer to the question posed at the out-set has necessarily to be rendered in the affirmative. It is held that an inordinate delay in publication of telephone directories is a deficiency in the services undertaken to be rendered to the telephone subscribers the appellant/department It is held as above, It is obviously easy sailing for the consumers-subscribers. Herein, there is a gross delay of four to five years in the publication of the directory and a consequential patent deficiency in service. The attempt of the appellant department to take refuge under the lame excuses of the non-publication of directory due to paucIty of tenders etc. has to be only noticed and rejected. It cannot escape Its liabilIty on the tenuous grounds of Its own inefficiency or default in complying the somewhat simple mandate of the publication of Its own directories. Equally the stand of the appellant-department that the cause of action herein was to be confined to only one year has merely to be noticed and rejected. No provision could be cIted to support such a specious argument.

IN view of the aforesaid discussion, the two appeals preferred by the appellant-department must fail and are hereby dismissed with costs which are assessed at a modest sum of Rs. 200/- only.

AS regards the subscriber''s appeals for enhancement of the compensation granted, it suffices to notice that no evidence worth the name was led on their behalf to show any special damage to the tune of as high an amount of Rs. 5000/-. The District Forum in its wisdom quantified the compensation at a reasonable amount. There is thus no foundational base for interference in the same. The end result is that the cross appeals of the subscribers also must fail and are hereby dismissed, without any order as to costs. Appeals dismissed with costs.