TELECOM DISTRICT ENGINEER, PONDICHERRY vs R.SHANGMUGAM

THE short question that arises for determination in this Revision Petition is whether in a case where the complainant who is the subscriber of a telephone had approached the District Forum with the grievance that certain telephone bills served on him were excessive and the District Forum thought it fit to refer the dispute for arbitration under Section 7B of the Indian Telegraph Act and closed the case and, thereafter, an arbitration was duly conducted by the Arbitrator appointed under Section 7B and an award was made and published, it is legally open to the District Forum to entertain a challenge against such award and issue directions for reconnection of telephone.

THE Telecom District Engineer, Pondicherry jointly along with the Accounts Officer attached to his office have filed this Revision Petition challenging the order dated 3rd August, 1995, passed by the State Commission, Pondicherry whereby it was held that when a dispute regarding the legality and correctness of a telephone bill had been raised before the Consumer Forum and the said dispute was referred for arbitration under Section 7B of the Indian Telegraph Act, the award made by the Arbitrator "will not conclude the matter and the final decision will remain with the Court" and it is open to the complainant in case he is aggrieved by the award to file an application before the Consumer Forum to have the award scrutinised and suitable order passed in the complaint by the Forum. THE District Forum before which the complainant had filed objections against the award took the view that the award passed by the Arbitrator was conclusive and final and the Forum could not interfere with the said award on merits. It merely directed the complainant to remit the sum of Rs. 11,417/- being the balance payable by him as per the award and the Telecommunication Department was directed to reconnect the telephone of the complainant immediately on payment of the said amount. The aforesaid order passed by the District Forum was set aside by the State Commission on the basis of the view taken by it as to the power of the Forum to scrutinise the correctness of the award of the Arbitrator. Accordingly, the appeal filed by the complainant before the State Commission was allowed in part, and an order was passed in the complaint petition directing the Telephone Department to restore the telephone connection of the complainant upon payment of half of the amounts of the three disputed bills less any amounts already paid against those bills. It was declared that it was open to the complainant to file application before the District Forum, to have the awards scrutinised and a suitable order was directed to be passed in the complaint by the District Forum.

The revision petitioners contend that the aforesaid order passed by the State Commission is illegal and without jurisdiction and it should be set aside. Section 7B of the Indian Telegraph Act is in the following terms: "7B: Arbitration of disputes:-(1) 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 purpose 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. (2) The award of the Arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court." Sub-section (2) of the section categorically declares that the award of the Arbitrator shall be conclusive between the parties to the dispute and shall not be questioned in any Court. It has become unnecessary for us to discuss at length the interpretation to be placed on Sub-sections (1) and (2) of Section 7B and to deal with the reasons given in the order of the State Commission in support of its view that the award is not final or conclusive until it is scrutinised by the concerned Forum, because the scope and effect of the provisions of Section 7-B of the Act have been considered in detail in a recent pronouncement of the Supreme Court in M.L. Jaggi v. Mahanagar Telephone Nigam Ltd. & Ors., decided on 2.1.1996 and reported in JT 1996 (1) SC 215. Dealing with the scope of Section 7B the Supreme Court observed that the resolution of the dispute by arbitration under the section is "a statutory remedy provided under the Act" and, that in a dispute as regards the amount claimed in the demand raised, the only remedy provided is by way of arbitration under Section 7B of the Act. By operation of Sub-section (2) thereof, the award of the Arbitrator shall be conclusive between the parties to the dispute and shall not be questioned in any Court. The statutory remedy under the Arbitration Act, 1940, thus, has been taken away". Later on in paragraph 7 of the judgment the Supreme Court made the legal position clear by stating "it is seen that under Section 7B the award is conclusive; when the citizen complains complaint that he was not correctly put to bill of the calls he had made and disputed the demand for payment the statutory remedy open to him is one provided under Section 7B of the Act. By necessary implication, when the Arbitrator decides the dispute under Section 7B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a Court of law. The only obvious remedy available to the aggrieved person against the award is judicial review under Article 226 of the Constitution."

IT must not be taken to be finally settled by the aforesaid ruling of the Supreme Court that the only mode in which the award of an Arbitrator appointed under Section 7B of the Indian Telegraph Act, 1885 can be challenged is by seeking judicial review under Article 226 of the Constitution. Since judicial review by the High Court on a Writ Petition filed by a party is in the exercise of the constitutional power conferred on the High Court under Article 226 of the Constitution, the provisions of Section 2 or 7B cannot operate to preclude or bar a party from seeking such judicial review. But the said sub-section clearly and expressly excludes all other remedies before a ''Court of Law''. The expression ''Court of Law'' will, in our opinion, include, in the context, a "Consumer Forum" also in view of the observations of the Supreme Court in Fair Air Engineers Pvt. Ltd. & Anr. v. N.K. Modi, Civil Appeal No. 11459 of 1996 where it was held that the District Forum, State Commission and the National Commission have all the trappings of Civil Court and are judicial authorities falling under Section 34 of the Arbitration Act. We accordingly hold that the District Forum was perfectly right in holding that it had no jurisdiction to entertain the application filed by the complainant for scrutinising the correctness of the award made by the Arbitrator. The contrary view expressed by the State Commission cannot be accepted as correct in the light of the subsequent pronouncement made by the Supreme Court in the decision cited above. We do not find it possible to agree with the elaborate reasoning given by the State Commission in paragraphs 4 to 11 of its order where the State Commission has drawn a distinction between cases where the reference to arbitration is made by a Forum suo motu and the cases where the dispute is referred to arbitration by consent of both parties. In our opinion, once a reference to arbitration under Section 7B has been made by a Consumer Forum and no challenge is made against the Order of the Forum directing the dispute to be resolved by arbitration the operation of the bar under Section 7(2) automatically comes into play when the Arbitrator has made his award and there is absolutely no scope for making any differentiation between cases where the reference was made suo motu by the Forum and those cases where reference was made on basis of consent given by both sides. We do not find it necessary to deal with the various other reasons given by the State Commission in its lengthy discussion contained in paragraphs 4 to 15 of its order but would contend ourselves by stating that the reasoning contained in those paragraphs does not appeal to us as correct or valid in the light of the clear and categorical pronouncement, by the Supreme Court to which reference has been already made.

BEFORE parting with this case we should also refer to the ruling of this Commission in Revision Petition No. 248 of 1996, General Manager, Calcutta Telephones v. Argha Mitra, dated 6th January, 1997 wherein the question raised was whether an award made by an Arbitrator under Section 7B of the Indian Telegraph Act on a reference made to him pursuant to an order passed by District Forum disposing of a complaint preferred by a subscriber against the Telephone Department with the direction that the dispute concerning the impugned bills should be settled by arbitration under Section 7B of the Indian Telegraphs Act could be challenged by way of an appeal before the State Commission. The said question was answered by this Commission in the negative holding that the State Commission had no power to entertain an appeal against the award rendered under Section 7B and "that the Consumer FORA have no jurisdiction to sit in appeal or review the awards made by the Arbitrator under Section 7B of the Indian Telegraphs Act." With respect, we have no hesitation to reiterate the principle laid down in the aforesaid ruling since it is fully in accord with the dictum laid down by the Supreme Court to which reference has already been made above. In the result, this Revision Petition is allowed, the order of the State Commission is set aside and the order dated 11.3.1994 passed by the District Forum is hereby restored. The parties will bear their respective costs. Revision Petition allowed. _______________