Bombay High Court
V.S. Dempo & Co. Ltd. And Another vs The Telecom District Manager, Goa And ... on 31 March, 1995
Equivalent citations: AIR1995BOM428
Author: T.K. Chandrashekara Das
Bench: T.K. Chandrashekara Das
ORDER Dr. E. S. DA Silva, J.
1. All these three writ petitions can be conveniently disposed of by a common judgment since they are raising substantially similar questions of fact and law.
2. The main challenge in the petitions is the circular dated April 13, 1989 containing executive instructions which the petitioners are seeking to get struck down as repugnant to S. 7B of the Indian Telegraphs Act while the other grievances made out in all the petitions are basically the refusal of the respondents to refer the disputed bills of the petitioners to arbitration as provided under the aforesaid S. 7B, the demand made by the respondents for the payment of the said disputed and inflated bills even before any arbitration award and the threat to disconnect the petitioners' telephones if the payments were not made as per the demand.
3. In Writ Petition No. 398/94 the petitioners contend that the petitioner No. 1 is a Company while the petitioner No. 2 is its Deputy General Manager (Personnel and Industrial Relations) residing in a building situate at Tonca, Caranzalem. The petitioner No. 2 has been provided with a telephone bearing No. 44049 by the petitioner No. 1 at his residence. On May 1, 1994, the petitioner No. 1 received a bill towards this telephone for the amount of Rs. 99,160/-. The bill pertains to the bi-monthly period from February 16, 1994 to April 15, 1994 and it indicates 71280 metered calls. The CMR reading is given 97500 and OMR reading is given 26220. The petitioners state that the amounts charged for the said telephone for the previous six bi-monthly periods and which are mentioned in para 5 of the petition show that the average with regard to that period is Rs. 1030.66 p. It was further stated that there was no occasion for the petitioners to use the telephone excessively as to correspond to the metered charges recorded for the relevant period. Therefore the petitioners on May 11, 1994 addressed a letter to the Accounts Officer of the respondent No. 1 complaining about the excessive billing in respect of the said telephone No. 44049. The petitioners requested the respondents to verify the bill in order to facilitate the payment on the basis of the average worked out on the previous six bi-monthly periods. It was also requested that fortnightly print out of the meter readings during the relevant period be furnished to the petitioners. Since there was no response from the respondents to their complaint dated May 11, 1994, the reminder dated May 19, 1994 was addressed to the respondents about the splitting of the disputed bill based on the average bills of the previous months. Even after this reminder the respondents were silent which necessitated second reminder dated June 20, 1994 stating that the petitioners were still awaiting split bill for its payment. It was only on July 7, 1994 that the petitioners received the reply from the respondents dated June 15, 1994, stating that investigation was being done. The reply requested the petitioners to make the payment of the bill on or before June 25, 1994. After the receipt of this reply the petitioners addressed another letter to the respondents dated July 8, 1994, stating that the time stipulated for payment in their reply and passed as they had received the letter on July 7. 1994 and the date stipulated was June 25, 1994. However in spite of this controversy which was yet to be resolved by the respondents the petitioners received another bill towards the said telephone for the period from April 16, 1994 to June 15, 1994 amounting to Rs. 1,20,368.00 including chargeable calls of 84840 and the charges being Rs. 1,18,216.00, the rent being Rs. 152/- and surcharge being Rs. 2,000/-. The bill was issued on July 1, 1994. The petitioners vide their letter dated July 16, 1994 brought to the notice of the respondents that the bill issued for Rs. 1,20,368.00/- was not on account of any calls made by the subscriber on the said telephone and therefore the bill was incorrect. The petitioners therefore disputed the bill as the same was inflated and disproportionate to the said calls made by the petitioners. The petitioners requested the respondents to appoint an arbitrator as provided under S. 7B of the Indian Telegraphs Act. The petitioners by their letter dated July 18, 1994 also brought to the notice of the respondents that their request for barring the STD facility was pending with them. The respondents were also informed that since the petitioners were subjected to highly inflated bills from February 1994 the petitioners had resorted to use the Trunk Call facility on that telephone and stopped using STD facility since June 16, 1994. The request made to the respondents to bar the STD facility with immediate effect was done by the petitioners by their letter dated June 29, 1994 which was received on June 30, 1994. Even this request was not acceded by the respondents promptly so much so that the STD was ultimately barred by the personal visit of the petitioner's office to the Department after July 18, 1994. Thereupon since, all efforts made by the petitioners to get the inflated bills corrected could not bear any fruit the petitioners approached the General Manager (Telephones) of the respondents with an appeal against two unwarranted demands and refusal to appoint an arbitrator calling upon the officer to cancel the bills issued and to keep in abeyance the issue of payment of bills pending arbitration proceedings. The petitioners also requested personal hearing before any action was taken. On August 30, 1994 the respondents finally yielded to the petitioners' request of splitting the earlier bill pertaining to the period from February to April, 1994. An amount of Rs. 4340/- was worked out by the respondents as being provisional bill in respect of the disputed bill stating that the second bill for the disputed calls as annexed to the said advice dated August 30, 1994 was under investigation. Though the amount in the provisional bill was not as per the method prescribed, the petitioners in order to avoid confrontation paid the said amount. This was conveyed to the Department on September 5, 1994 along with intimation that the payment has been made by cheque. The respondents finally came with their justification for excess billing on September 14, 1994. The petitioners were told that the telephone was kept under observation from May 2, 1994 to June 7, 1994 and it was observed that many STD and ISD calls had been made frequently and sometimes for a long duration, that after through investigation everything was correct with the bill and the metering. The petitioners were therefore requested to make payment failing which the respondents were about to disconnect the telephone. A demand note was annexed to the said letter showing the total of Rs. 2,17,188/- being Rs. 96,990/- as disputed bill dated May 1, 1994 and surcharge of Rs. 2,000/-, Rs. 1,16,198/- being the amount for the subsequent period of bill dated July 1, 1994 and Rs. 2,000/- being surcharge therefor.
The petitioner in Writ Petition No. 134/94 is a Senior Advocate practising in this Court. The petitioner is a subscriber with regard to a telephone bearing No. 44837 installed in his office at Panaji. The said telephone has STD facility. The petitioner complains that factually the dispute is regarding a bi-monthly bill from November 16, 1992 to January 15, 1993 amounting to Rs. 13,731/- which includes Trunk Call charges showing 12470 metered calls. In respect of the same and as per the requirement of the Department the bill having been split the provisional bill of Rs. 6,064/- was paid and the disputed bill of Rs.7067/- was left to be paid thereafter. When the petitioner complained against the inflated bill a routine answer of the Department was that the complaint was not justified. Thereafter by letter dated April 30, 1993 and acknowledged by the Department on May 4, 1993 a request was made by the petitioner to refer the matter to the arbitrator. However, the Department did not take any action to refer the matter to the arbitrator and after a lapse of ten months the telephone of the petitioner was disconnected without any prior communication though in the letter dated April 30, 1993, it was specifically stated by the petitioner that his telephone should not be disconnected until the dispute was decided. Besides the aforesaid bi-monthly bill the petitioner also disputed the earlier bi-monthly bill for the period from September 16, 1992 to November 15, 1992 amounting to Rs. 13,603 including Trunk Call charges. It was stated that in respect of the said bill when a complaint was lodged a rebate of Rs. 5,500/- was given by the Department and the balance amount was paid by the petitioner. While giving the rebate the petitioner was advised by the Department to get the telephone STD facilities barred failing which no further rebate as benefit of doubt would be allowed to the petitioner in future. By letter dated December 22, 1992, the petitioner made a representation to the Chief Accounts Officer of the respondent No. 1 complaining about the excessive billing and requested the Department to keep his phone under observation to detect the reasons for the spurt. However, by letter dated January 13, 1993 the Accounts Officer of respondent No. 1 demanded the payment of the said bill informing the petitioner that if no communication was received from the petitioner by January 23, 1993 they would be constrained to disconnect the telephone. Immediately thereafter the petitioner received another letter dated January 13, 1993, from the Accounts Officer of the respondent No. 1 conveying to the petitioner that action to investigate was being taken. The said bill of Rs. 13603/- was split up into a provisional bill for Rs. 5328/-and a disputed bill for Rs. 8275/-. The petitioner paid the provisional bill on January 20, 1993. When the second bill for Rs. 13,731 was received by the petitioner for the subsequent period from November 16, 1992 to January 15, 1993, the petitioner submitted a fresh complaint to the Chief Accounts Officer of the respondent No. 1 by letter dated February 13, 1992 and requested him to investigate. By letter dated February 18, 1993, the Accounts Officer of respondent No. 1 informed the petitioner that action to investigate was being taken. The bill was then split into a provisional bill for Rs. 6064/- and disputed bill for Rs. 7667/-. The petitioner was directed to pay a provisional bill of Rs. 6064/- on or before February 26, 1993 to avoid disconnection. Accordingly the petitioner paid the said provisional bill on February 26, 1993. Thereafter by letter dated February 27, 1993, the petitioner was informed that the complaint in respect of the bill for the period from September 16, 1992 to November 15, 1992, was thoroughly examined and it was found that the meter was working alright and no defect was noticed. However, it was stated that as a benefit of doubt a rebate of Rs. 5500/- was given. The petitioner then paid the balance amount of Rs. 2775/- demanded in the said letter dated February 27, 1993. On May 4, 1993, the petitioner by letter dated April 30, 1993, requested the respondent No. 1 to appoint an arbitrator as per S. 7B of the Indian Telegraphs Act to determine the said disputed bill from November 16, 1992, to January 15, 1993. However, on March 11, 1994, the petitioner found his telephone disconnected. The petitioner stated that the disconnection was made in spite of the payment of the previous bills in respect of the said telephone having been made, except the last bill and without the respondents having referred the dispute to arbitration as requested by the petitioner.
In Writ Petition No. 192/94 the petitioner who is a doctor by profession and is a subscriber with regard to telephone connection having No. 262453 installed at his residence at Mapusa does not have STD facility. Somewhere in February, 1994 the petitioner received a bill of Rs. 1,271/- for the period from December 6, 1993 to February 5, 1994. The bill showed 1226 metered calls out of which 150 were free calls and Trunk Call charges were Rs. 8/-. By letter dated February 28, 1994, the petitioner made a representation to the Accounts Officer of the respondent No. 1 complaining about the excessive billing in respect of the last bill. In the said letter the petitioner asked to make an average payment of the last six months and an additional of 10%, which amounted to a total of Rs. 234/- plus T/C total charges for Rs. 56/- under protest. Since there was no response from the respondent No. 1 the petitioner sent a reminder to the Accounts Officer of respondent No. 1 by letter dated March 23, 1994. In that letter the petitioner requested the respondent No. 1 that he should be supplied with the records of the metered calls and in case they were not inclined to split the bill the matter should be referred to an arbitrator under S. 7B of the Indian Telegraphs Act. The petitioner has also conveyed his hope that the respondents would not disconnect his telephone pending the decision of the arbitrator or the decision on his complaint. The petitioner reiterated that pending the decision he was ready to pay provisional bill as indicated in the letter. On April 7, 1994, the petitioner received a letter from the Accounts Officer of respondent No. 1 dated April 4, 1994. In the said letter the petitioner was informed that his telephone was working from a computerised exchange and hence there had been no excess billing as alleged by the petitioner. The petitioner was requested to pay the bill on or before April 11, 1994, to avoid disconnection. According to the petitioner this letter does not show any application of mind on the part of respondent No. 1 and it appears that it was sent mechanically filling in the blanks only. The respondents were bound to refer the dispute to arbitration and disconnection of the telephone without settling the dispute through arbitration would be violative of S. 7B of the Indian Telegraphs Act being therefore unauthorised and illegal.
4. On behalf of the respondents affidavits were filed in all three petitions wherein essentially the stand taken by the said respondents is that after thorough investigation no mistake or fault was found in the meter reading nor in the bills issued which had resulted in excess calls.
As far as Writ Petition No. 398/94 the petitioners telephone was kept under MLOE observation and from the fault report available from the Exchange the said telephone was having some partial cable fault during certain periods due to few degree earth. However, the telephone of the petitioners was working and the speech was commercial. In the aforesaid case the observation revealed that the petitioners' telephone had been used for making both STD and ISD calls extensively.
So far the Writ Petition No. 192/94 it was stated that the telephone No. 262453 of the petitioner did not have STD facility but, however, with the induction of the Group dialling facility in Goa the petitioner's telephone could have been utilised for making short distance charging areas call (SDCAS) and the calls were to be charged depending upon the stations dialled by the petitioner within Goa the pulse rates being different for different stations. Besides the said Exchange being computerised Exchange there could not be any faults in the bills issued to the petitioner which fact was communicated to the petitioner by the letter dated April 4, 1994. In view of the said letter, the respondents have stated that there was no need to refer the matter to arbitration as demanded by the petitioner without the intervention of the Court and there was also no justification for the petitioner to dispute the bills as petitioner's meter reading has been checked and found to be in order. It was further contended by the respondents that since the matter had been investigated in all three cases and no mistake was found there was no reason to refer the matter of the petitioner for arbitration. There was also no need for quashing the Circular issued by the Department dated April 13, 1989. The Circular is only for guidelines to the respondents and the same has to be read in totality including its paras 1 and 3 so as to arrive at the rationale behind the above Circular. Para 3 of the above Circular says that only in special circumstances the head of the Department has to recommend for the appointment of an arbitrator which has to be done at the ministerial level. None of the petitioners' cases come under these special circumstances. It was also stated that in view of the fact that the investigation was done by the respondents on the complaint filed by the petitioners, there is no dispute between the petitioner and the respondents justifying the appointment of the arbitrator under S. 7B of the Indian Telegraphs Act. Hence the reference to arbitrator cannot be considered without a direction from the Court. The respondents are willing to refer the matter to arbitration provided the petitioners are prepared to pay the outstanding dues. The result of the investigations carried out by the respondents on the petitioners' grievances have been communicated to them and the said communications revealed that the respondents had applied their mind to each of the cases.
5. Mr. Usgaokar, learned senior counsel and Mr. M. S. Sonak, learned counsel arguing on behalf of the petitioners in Writ Petitions Nos. 398/94 and 192/94 and the latter in Writ Petition No. 134/94 have submitted that metered calls for the previous six bi-monthly periods are clearly indicating to the respondents the frequency of the use of the telephone by the petitioners there being therefore no special reason for sudden spurt during the period under dispute. Besides in spite of several requests made by the petitioners the respondents have not also furnished the matter reading to them. Thus the contents of the respondents' letters wherein it was said that after thorough investigation and after considering all the necessary aspects the excess metering complaint was found not to be genuine, was to be deemed as a false statement being a routine explanation found in all the demand letters. It was also urged that in case of telephones with STD facilities assuming that the calls were metered during the disputed periods neither the hours of the calls nor the dates on which they were metered were submitted. The learned counsel made it a point to say that they did not deny that the calls were metered during the bi-monthly periods but what the petitioners disputed is that they have not made such calls. Thus the probable cause suggested by the respondents which could be the misuse of the STD service of the petitioners' phones by other subscribers in collusion or by the staff members or serious mistakes in the working out of these bills or even on account of faulty instrument itself and technical mistake which has resulted in this excessive billing could not be ruled out. Besides, the learned counsel argued, in their complaints for excessive billing the petitioners had expressed apprehension that the lines were being fraudulently tapped since the Department was not exercising a proper check/control on such activities. It was submitted that the explanation from the respondents does not indicate that the probable causes mentioned had been ruled out. It was further submitted that a direction for investigation should be not to refer to the meter reading but to investigate the cause which would lead to such excessive use of the telephone line and if the observation report was not furnished to the petitioner then the entire exercise was deemed to be futile. The further submission is that there being a dispute between the parties it was incumbent upon the respondents to appoint an arbitrator and refer the dispute to arbitration as requested by the petitioners. By not doing so the respondents have failed to discharge the legal duties cast upon them as per S. 7B of the Indian Telegraphs Act.
6. Mr. Badri Narayanan, learned Additional Standing Counsel on behalf of the respondents, has taken us through the Directory of the Goa Telecom District, namely, at page XLI which refers to Excess Metering Complaints, page XXXVI which deals with Safe Custody of Telephones and page XLIII which lays down the Facilities from E-10B Exchange, to bring home his contention that the said instructions provide for adequate remedies to the subscriber in order to get themselves protected against any mischief in respect of their bills. He also relied on Rule 43 of the Postal Telegraph Manual and also on the Executive Instructions compiled in Swami's treatise on Telephone Rules on the subject of disposal of excess metering complaints for which the Accounts Officer has to be contacted. The learned counsel has also stressed on the relevancy of the Main Distribution Frame (MDF) and Multi-Load Observation Equipment (MLOE) which processes outgoing and incoming calls to drive out his point that all the grievances made by the petitioners in their complaints regarding over-billing had been rejected only after a thorough investigation was made with the help of the most sophisticated equipment available with them. The learned counsel urged that in the circumstances there was no need to quash and set aside the Circular because the same has kept open the possibility of in special circumstances the concerned authority agreeing with the appointment of an arbitrator without the party having to take recourse to courts. The learned counsel however fairly admitted that on a plain interpretation of S. 7B of the Indian Telegraphs Act reference to arbitration in case of disputes seems to be available to the consumers when they are served with inflated bills. It was pointed out in this regard that in case the appointment of an arbitrator having to be done every time a complaint of overbilling occurs even without any direction from the Courts there would be a flood of such requests rendering practically impossible to the Department to function apart from the fact that it would also be difficult to select sufficient number of arbitrators to deal with the matter.
7. We have heard learned counsel and in our view the grievances put forth by the petitioners are sound and well-conceived.
So far the question as to whether when there is an application under S. 7B of the Indian Telegraphs Act the Department can refuse to refer the dispute to arbitration unless the subscriber approaches the High Court a simple mention to the wording of the said provision can be usefully extracted. Section 7B of the Indian Telegraphs Act prescribes that it 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 has been provided the dispute shall be determined by arbitration and shall, for all 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. Subsection (2) provides that 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.
8. A bare reading of this section shows that the same lays down a mandate on the Department to refer any dispute raised by the subscriber to arbitration. This much has been acknowledged in several rulings of the various High Courts which have consistently held that the telephone set provided to the subscriber being an apparatus within the meaning of S. 7B(1) the claim of over-billing is covered by the aforesaid section.
9. In the case of Smt. Makhani Devi Banka v. Union of India it has been held that the legislative intention behind incorporation of S.7B of the Act seems to be that such disputes should be arbitrated upon and finality has been attached to the Award. Therefore and since there can be no dispute that the telephone set provided to a subscriber is an apparatus within the meaning of sub-sec. (1) of S. 7B of the Act the provision is in wide terms and any dispute concerning the apparatus is certainly covered by it.
10. In Union of India v. M/s. Usha Spinning and Weaving Mills Ltd. (AIR 1982 Delhi 111), the Delhi High Court has also laid down that on its plain language the expression "any dispute concerning any telegraph line, appliance or apparatus" is of wide amplitude and will take within its sweep any disputes which relate to the functioning and working of any telegraph line, appliance or apparatus. Therefore the moment the correctness of the bill is challenged on the ground of mal-functioning or misuser of the lines, surely a dispute concerning the telegraph line, apparatus or appliance within the meaning of S. 7B of the Act will spring up. At any rate when the telephone connection is sought to be cut off in exercise of the power conferred by R. 443 and it is resisted on the ground that the Department itself is to be blamed for the faulty operation and functioning of the telephone, the dispute cannot be said to be one outside the purview of S. 7B of the Act.
11. In the case of K. N. Achuthan Pillai v. Union of India , it has been observed that S. 7B of the Act provides a machinery and a forum for resolving at least certain types of disputes between the subscriber and the telegraph authorities. Section 7B(1) is a widely worded provision which takes in a variety of disputes as between the subscriber and the Department.
12. A similar view has been taken by the Madhya Pradesh High Court in the case of Dr. J. N. Seth v. Union of India wherein it has been held that when there was a dispute relating to the correctness of the telephone bills and about disconnection of the telephone and the subscriber had challenged the correctness of the telephone bills on the ground of mal-functioning or misuser of the telephone lines by lineman and other staff of the Telephone Department, the dispute being covered under S. 7B can be resolved by appointment of an arbitrator. Therefore the application filed by the subscriber for appointment of an arbitrator would be maintainable before the civil court and the civil court has jurisdiction to entertain such an application.
13. It thus follows that a wide consensus has emerged with regard to the mandatory nature of the obligation cast upon the Department to refer the matter to arbitration whenever there is a complaint of over-billing in terms of S. 7B of the Act. It is in this context that the Circular issued by the Department dated April 13, 1989, which is also under challenge in these petitions appears to be illegal and violative of S. 7B of the Act as well as inconsistent with the Rules and statutory instructions issued by the Department.
14. Indeed in the said Circular the Department has acknowledged that according to S. 7B of the Act if any dispute concerning any telegraph line, etc. arises between the telegraph authorities and the subscriber the dispute shall be referred to the arbitrator appointed by the Central Government and that the award of the arbitrator shall be conclusive and shall not be questioned in any Court. The Circular then concedes that according to the Act if anybody approaches the Department to appoint an Arbitrator the Department is bound to do so. However, on the ground that if in every case of dispute by subscribers an Arbitrator is appointed the workload will increase tremendously and cases will increase to numbers where it will be difficult to find a sufficient number of officers for appointing as Arbitrators. Therefore in order to control the overflow of such cases the Department has decided as a matter of policy that Arbitrator could be appointed only in such cases where the subscriber approaches the Court with a request to appoint an Arbitrator and the Court orders for the same. The Department has therefore decided that while the present practice of appointing Arbitrators on the orders of the Court would continue, however, in special circumstances where the Head of the Circle recommends that an Arbitrator should be appointed without the intervention of the Court, the cases may be referred for approval to the office with full facts.
15. The intrinsic inconsistency of the Circular appears to be obvious in the instant case. While on one side the Department acknowledges the mandatory nature of S. 7B it appears that as a matter of policy the circular purports to legislate and enact a totally new provision with regard to the compliance of the said mandate by seeking to restrict the requirement of referring the dispute to Arbitration only when the Court so directs or the Head of the Circle recommends in the special circumstances and/or in the particular facts of each case. It is thus evident that based on such Circular the action of the Department is likely to affect the rights of citizens and to that extent the Court is bound to interfere in the exercise of its extraordinary powers under Art. 226 of the Constitution.
16. The interpretation of S. 7B given by the Circular is no doubt going to a certain extent to water down or nullify the operation of the mandate imposed by the provision thereby affecting the rights of the citizens. To be noted that sub-sec. (2) of S. 7B makes the Award of the Arbitrator conclusive and being so it seems that the bill as determined by the Award is to be held as the only one which can be said to be a payable bill. This being the position it is clear that until the bill has become final the Department would not have the right to disconnect any telephone for non payment of a bill which has been disputed for the simple reason that such bill cannot be held, as payable.
17. This view seems to find support in the Instructions issued by the Department, namely, with regard to the disposal of excess metering complaints on the matter of investigation of excess billing. The said Instructions which can be found in Swami's Treatise on Telephone Rules while dealing with No. 4-59/85-TR dated April 4, 1986, in Instruction 6.7 admits that excess bill sometimes exceeds the previous bi-monthly bill by substantial amounts. In such cases it is recommended that temporary relief to the subscriber by way of issuing split bill may be justified. The spilit bill may be issued if the bi-monthly bill for local call charges exceeds double the maximum amount of the previous six bi-monthly bills for local call charges. The spilit bill for local call charges should be limited to the average of local call charges billed in the preceding six bi-monthly periods plus 10% thereof and should be issued with a clear statement that this is purely a provisional bill pending further investigation into the excess billing complaint and if after investigation the Department comes to the conclusion that the original bill is justified, the subscriber will have to pay the full bill or as may be determined by the competent authority.
18. In view of such Instructions it is easy to find that the Circular in question is inconsistent with the same since it does not provide for a situation in which split bills are bound to be issued. Needless to say that Executive Instructions are always meant to supplement Rules and to that extent Instruction 6.7 is an instruction framed under the Indian Telegraph Act carrying with it statutory nature. Thus it is only in case they are contrary to the Rules that such Instructions can be denied statutory character.
19. In the instant case it is seen that the Instruction 6.7 is a valid one because it aims at supplementing the Rules in Contraposition with the Instructions contained in the Directory and which are manifestly against the Act/ Rules as well as the very Instruction 6.7. Thus the contention of Mr. Badri Naryanan that the Instructions contained in the Directory take sufficient care of the grievances of the subscribers and therefore are to be followed cannot be accepted because the same appears to contemplate the right of the Department to disconnect the telepone everytime the bill, even if it is disputed, is not paid by the subscriber.
20. This takes us to the second question which arises in the petitions and which is whether the action of the Department in disconnecting the telephone of the petitioners was justified when an application under Section 7B of the Act made by them to refer the disputes to Arbitrator was still pending and had not been disposed.
21. In this respect the Gauhati High Court in the case of Santokh Singh v. Divisional Engineer Telephone, Shilong, (AIR 1990 Gau 47) has held that from a reading of the provisions of the Manual and the Circular issued by the Government it becomes clear that the Government is aware of the serious problem of excess billing as also of its causes. It also knows that, even if no defect is found in the matter, possibility of false metering cannot be ruled out. As to the relief in such situations from the provisions available it seems that immediately on receipt of the complaint regarding excess charge the officer concerned is required to defer enforcement of recovery of the amount of the disputed bill till investigation of the complaint is completed. There is also provision for the cancellation of the disputed bill and the preparation of two bills one to include charges which are correctly payable by the subscriber computed to be equal to the average number of calls mettered during the six bi-monthly period one year immediately preceding the disputed period plus 10% over the average. Such a bill is called a "split bill". Another bill may be prepared for the balance and marked as "part local call bill (disputed)". In the circumstances, the Court observed, despite all the elaborate safeguards provided in the Manual and Circular and the guidelines isued in regard to dealing with complaints of excess billing issue of revised bills immediately on receipt of a complaint, instructions to keep the disputed excess demand in abeyance till disposal of the complaint after proper investigation, the officials of the Department at field levels and their higher ups at the Telecom Circle and Ditrict Level are taking the subscribers for a ride. Either they are blissfully ignorant of all these relevant provisions or they are intentionally ignoring the same for reasons best known to them. The Court was therefore of the opinion that in such circumstances disconnecting lines without considering compliants was illegal.
22. Similar was the view taken by the Orissa High Court in Orissa Vegetable Oil Complex Ltd. v. Union of India wherein it was laid down that it is not permissible for the Telephone Department to disconnect the telephone before the dispute regarding the non-payment of dues and false metering raised has been adjudicated by the Arbitrator.
23. Viewing the things in this light it is compelling to acknowledge that the Circular in dispute appears to be based not on any legal footing but instead on a pragmatic approach solely meant to spare the Department from an alleged overflow of work consequent upon frequent complaints lodged by the subscribers against over-billing.
24. In this regard it cannot be overlooked that if the subscribers often complain against overbilling it is because something seems to be wrong in the functioning of the Telephone Department. Therefore a solution to the problem does not certainly lie in avoiding the work of arbitration arising out the complaint but to minimise or eliminate the cause of such complaint. This much appears to have been understood by the Department when in its Executive Instructions it has admitted that in general excess billing complaints arise because (a) the subscriber, his famly, friends and employees have freely used STD not being conscious of the extent to which they have used it; (b) a fault in the metering circuit or some other fault in the system; and (c) possible deliberate mischief by other subscribers in league wih the Telephone Department staff.
25. This being the case it follows that the action of the Department in declining to refer the matter to an Arbitrator when a dispute of such nature arises unless the Court so directs and instead causing the disconnection of the telephone for lack of timely payment of the excessive bills is to be held as an arbitrary and illegal action which cannot be suported either on equity or in law.
26. On the other hand since Section 7B of the Act has set out a permanent machinery which is contemplated in its scheme to meet or to redress the grievances of the subscribers, it is only proper and in the fitness of things that the facilities made available should not be denied or defeated by means of a Circular containing Executive Instructions inconsistent with the letter and spirit of the law.
27. It is therefore not open to the Department to render nugatory the mandate of the statute according to which the Department has no other option rather to refer the matter of any dispute raised by the subscriber to arbitration and therefore we are inclined to hold that there is no authority in law for the Department to insist that for the purpose of reference of a dispute to the Arbitrator the subscriber will have to necessarily approach the Court.
28. We are therefore firm in our mind that in view of the excess billing of the petitioners which are very much reflected in the bills issued to them something appears to be ex facie wrong with the technical working of the system which the respondents are supposed to duly and effectively investigate in order to ascertain with a purpose the actual causes of the abnormal spurt of the petitioner's bills.
29. Thus once the possibility of any mistake cannot be ruled out we are satisfied that the affidavits of the respondents do not suggest that a proper and foolproof investigation has been carried on by the Department in the instant case to find out the faults and/or to justify the excessive billing of the petitioners so as to explain their reluctance in referring the dispute to an Arbitrator under Sec. 7B.
30. The result is that the Circular as it stands cannot be sustained and is therefore bound to be quashed. The petitioners are also entitled for a declaration that under Section 7B of the Act the Department is bound to refer any dispute raised by the subscriber to arbitration everytime there is such application made by the subscriber under Section 7B. The petitioners are also bound to get a direction in their favour that the Department cannot demand the payment of entire bills under threat of disconnection of the telephone once an application under Section 7B has been made until the Arbitrator has to given his decision on the disputed hills.
31. In the result, all the three petitions are allowed and the respondents are directed to appoint Arbitrators in terms of Section 7B of the Indian Telegraphs Act to deal with the respective bills in dispute within a period of eight weeks and the Arbitrators so appointed shall disposed of the grievances of the petitioners within eight weeks from the date of their appointments after giving due intimation to the petitioners and allowing them full opportunity to lead their evidence. Further, the Executive Instructins contained in the Circular dated April 13, 1989, arc quashed and set aside as repugnant to Section 7B of the Indian Telegraphs Act and the respondents are directed whenever there is an application under Section 7B of the Act to refer the dispute to an Arbitrator and not disconnect the telephone connection until the dispute is settled. Rule accordingly made absolute in Writ Petitions Nos. 398/94, 134/94 and 192/94 in the above terms with however no order as to costs.
32. Petitions allowed.