Kumar Keshridas, Indore vs Divisional Engineer, Telephones … on 10 September, 1984

Madhya Pradesh High Court
Kumar Keshridas, Indore vs Divisional Engineer, Telephones … on 10 September, 1984
Equivalent citations: AIR 1984 MP 158
Author: V Gyani
Bench: P Mulye, V Gyani


V.D. Gyani, J.

1. This is a petition under Article 226 of the Constitution of India. Praying for issuance of a writ of Certiorari/Mandamus, quashing the order dated 15-9-1982 (Annexure B), passed by the Divisional Engineer Telephones, Indore and the show-cause notice dated 26-3-1982 (Annexure A). The petitioner has also prayed for restoration of his telephone service, which has been disconnected by the respondents.

2. The undisputed facts are that the petitioner is a registered partnership firm having its registered office at 8, Subhash Marg, Indore. The firm carries on business in manufacturing, sale and purchase of confectionary items, like sweets, toffees etc., A show cause notice was issued to the firm on 26-3-1982 (Annexure A) the petitioner, calling upon why its telephone service of Telephone No. 36231 should not be stopped for unauthorised use. This notice (Annexure A) has been issued by the respondent No. 1 the Divisional Engineer, Telephone, Indore, in purported exercise of powers given under Rule 420 of the Indian Telegraph Rules, 1951, framed under Section 7 of the Indian Telegraph Act, 1885. This notice called upon the subscriber firm to produce documentary proof of its bona fide use of the telephone within ten days from the date of issue of this notice, failing which the telephone service was liable to be stopped. On 15-9-1982, the respondent No. 1 passed an order stopping the telephone service on the

ground that it was being unauthorisedly used by the firm M/s. Radhumal Sewaldas, while the telephone stands in the name of the firm Kumar Kishandas. This order also records that the subscriber has failed to produce the required proof in spite of sufficient opportunity given to him. The petitioner contended that on receipt of the show-cause notice (Annexure A), it had submitted a representation (Annexure C) to the respondent No. 1, It is dated 12-4-1982 as can be gathered from Annexure D, which was addressed to the Divisional Engineer II, Indore Telephones, Indore, making a grievance about stopping of the telephone service without affording any opportunity of hearing and further prayed seeking such an opportunity.

3. The return filed by the respondents does not controvert the fact that representation (Annexure C) dated 12-4-1982 was not submitted by the subscriber-petitioner. The reply to paragraphs as submitted by the respondents merely records issuance of a show-cause notice and the order of disconnection with an addition that the petitioner was given a personal hearing and after being satisfied on the basis of the documents and the Inspection report D/-12-3-1982 found that the telephone connection was being used by another firm, Raghumal Sawaldas. Inspection report has been filed as Annexure R/l to the return. It would be pertinent to note that the show-cause notice does not refer to any such Inspection report, which has been referred to in reply to paragraph 3 of the petition and filed as Annexure R/l. Similarly the order of disconnection (Annexure B) also does not refer to any document or the Inspection report on which the order is sought to be based.

4. The petitioner-firm in its reply (Annexure C) contended that the firm is still functioning at its office situated at 8-Subhash Marg, Indore, and in order to support this contention it placed the following facts for consideration by the respondents :

“l. That our said firm is registered under Section 58(1) of the Indian Partnership Act, 1932, the Registrar of firm and Society,

Bhopal. The registered place of partnership firm is at 8, Subhash Marg, Indore.

2. That, our firm also stands registered under Section 15 of the M. P. General Sales Tax Act, 1958. This can be verified from the Sales Tax department;

3. It is further submitted that the said firm stands registered under Shops and Establishments Act, 1976. The address of the firm is also as stated above :

4. It is further submitted that the said firm also registered under the M. P. Municipal Corporation Act, 1956 (Food Department). The address and place of business is also as stated above.

5. That, the undersigned has been carrying on business for a long period and contents made in the said notice are futile and do not have any existence;

6. That, the said firm is also registered under Section 184(7) of the I.T. Act, 1961. The address and place of business is also as stated above. This fact can be verified from the Income-tax Department. Beside it, the notices are also served the undersigned on the aforesaid address. The copy of the notice is enclosed herewith.

5. This contention of the petitioner has been disputed by the respondents, who in turn contended that the petitioner-firm had vacated the premises and another firm was using the telephone 36231, which according to the respondents constituted a misuse. For other points raised in Annexure C as also in the petition the respondents contended that registration of the firm relates back to the period when the firm came into being and does not depict the present state of affairs. In order to support this contention the respondents have further submitted that the petitioner had applied for permission, vide Annexure R/2, permitting the firm to allow the subtenant to use the telephone No. 36231. This permission was refused by the respondents, vide Annexure-R/6, who have further relied on an Inspection report DA 12-3-1981, filed as Annexure-R/1, and the report D/- 30-7-1982 submitted to the Commercial Officer by the S.D.O. Telephones for justifying the order of disconnection passed on 15-9-1982 and filed as Annexure-B to the petition. To

substantiate the allegation that the telephone was misused by the subtenants the respondents have also filed a Photostat copy of an invitation-card as Annexure-R/4, whereby the sub-tenant had extended an invitation on the eve of the opening ceremony of its new branch at 8, Subhash Marg, Indore, on 13-7-1980 and underneath the address is also given the phone No. 36231.

6. The petitioner’s grievance is that the material which is now placed for justifying the disconnection order, Annexure B, was not brought to its notice and the order of disconnection of the telephone is, therefore, violative of the principles of natural justice. The petitioner’s another grievance is that vide Annexure E, the petitioner was called upon to appear for personal hearing before the Commercial Officer, Indore Telephones, Indore. This letter is D/-16-8-1982, Accordingly, the petitioner visited the Commercial Officer and placed before him their grievance in the matter. The petitioner now contends that the Commercial Officer does not even seem to have apprised the respondent No. 1, i.e. the Divisional Engineer Telephones of the material that had been placed before him by the petitioner and the order Annexure B has been passed by the respondent No. 1 without applying his mind to the material so placed by the petitioner before the Commercial Officer. Thus, the order (Annexure-B) is the result of non-application of mind by the authority concerned.

7. The next point urged by the petitioner is that the order is based on failure to file a representation or production of documents as asked for by respondent 1. The order goes to show that the authority concerned has not applied its mind at all to the facts.

8. It has not been disputed by the respondents that it was the Commercial Officer, who was not satisfied by the material documents placed before him by the petitioner. In reply to paragraph 7 of the petition all that the respondents have to say is :

“Para 7 is replied that the Commercial Officer was not satisfied as stated by the

petitioner. On the contrary, whatever documents were shown to the Commercial Officer he was satisfied that the petitioner had permitted the use of telephone by unauthorised person, viz. Rijhumal Samandas.”

Thus, it would appear that the order, Annexure B is not the result of satisfaction or dissatisfaction of the authority issuing the order. The respondents in their return have invoked Rule 429 of the Rules for justifying the disconnection of telephone. Rule 429 reads thus :

“429. Transfer of telephone.– (1) A subscriber shall not assign, sublet or otherwise transfer the telephone.

(2) The Telegraph Authority may permit : —

(a) the transfer of a telephone in the persona! name of : —

(i) a deceased subscriber, to his legal heir or successor :

(ii) a subscriber to his father, mother, wife, husband brother and sister, which term includes step brother and step sister, son or daughter, as the case may be:

(iii) a subscriber, on account of any change in the name of the subscriber for any reasons :

(b) the transfer of an official telephone in the name of an officer of the Government or of a local authority or of a corporation owned or controlled by the Government or of an institution owned or controlled by the Government, on account of any change in the authority hiring the telephone on behalf of such officer;

Explanation.– In this clause “corporation owned or controlled by the Government” includes a society registered under any law relating to registration of societies, so owned or controlled.” a corporation so owned or controlled and established by or under a Central, Provincial or State Act, and a Government. Company as defined in Section 617 of the Companies Act. 1956 (1 of 1956);

(c) The transfer of a telephone in the name of a firm or company or of an institution or organisation or association or any similar body, on account of any

change in the name or constitution or both of the said firm, company, institution, organisation, association or similar body:

(d) the use of a telephone subscribed by the landlord of a building by the tenant living in the same building.”

9. Shri S. Bhargava, appearing for the petitioner, contends that the order. Annexure B. being violative of the principles of natural justice, is liable to be quashed. Shri B.C. Nema, learned counsel for the respondents, on the other hand submits that in view of the fact that there were reports about the unauthorised use of telephone, the order passed calls for no interference in view of the aforesaid Rule 429.

10. Having heard the learned counsel, we are of the opinion that this petition deserved to be allowed.

11. Before considering the application of Rule 429 to the facts of this case it would he pertinent to refer to Rule 420, which has been referred to and invoked in issuing the show-cause notice D/-26-3-1982, filed as Annexure A to the petition. Rule 420 of the Rules is reproduced hereinbelow :

“Rule 420. Default of subscribers due to insolvency etc.– When a subscriber is adjudged an insolvent or enters into any composition or arrangement with his creditors or suffers execution to be levied upon his premises, or commits any breach of or fails to observe and comply with any of these rules, the Telegraph Authority may close the connection by giving to the subscriber notice in writing for period of seven days.”

12. Naturally, when this rule is referred, a mere reference to the rule will be no substitute for the facts which would give notice to any subscriber so as to enable him to show cause against the proposed action, cither for disconnection or stoppage of telephone connection. Such a notice is not an empty formality and what is expected of the authority is to give a meaningful opportunity to the subscriber and mere reference to the rule without specifying the facts, which lead to the authority concerned to take an action, such as disconnection of telephone or

stoppage of telephone service. Annexure A refers to Rule 420, but it does not contain the facts which would be necessary to post any subscriber with knowledge about the fact which compelled the authority to invoke Rule 420 in his ease. In absence of such facts such notice merely remains a formality to be performed and not a real opportunity of showing cause afforded to the subscriber. Needless to add, whatever action demands issuance of such a notice, it is incumbent upon the authority to post the subscriber with all the necessary facts so as to enable him to submit his reply to the charges levelled against him. If such an opportunity is not given, the subsequent action taken is invariably vitiated. Natural justice demands posting of facts and opportunity to meet those facts. In the instant ease, Annexure-A lacks in such facts. There is no reference to the inspection report which have now been placed. How can it be expected in such circumstances for any subscriber to meet the ease as contained in those inspection reports. It should not he left to the exercise of right to make a demand for the documents. The endeavour of the authority should be that there is no occasion for making such a demand and if such an occasion arises, the authority should be prompt enough in supplying the necessary documents before the subscriber is called upon to show cause against the proposed action. This being not done in the instant ease, what is all the more surprising is that the material placed before the authorities (sic) the order does not make any reference to the material and documents placed for consideration by the subscriber. Annexure-B is silent on this point. What is expected is to consider the material placed by the subscriber and give reasons and pass a reasoned order. If the material placed by the subscriber does not appear to have been considered by the authority passing the order, such an order again suffers from vice of non-application of mind and is liable to be struck down. The authorities will do well to pass reasoned orders when the consequences of the order are depriving the subscriber of an essential service. Telephone in these days has ceased to be an asset or a symbol of status. It is as much a part of day to day

service as any other. The authorities concerned should keep in mind that before depriving a subscriber of such an opportunity the principles of natural justice arc followed in its true spirit and not merely by referring to the rule by ex facie showing without giving out the facts which constitute the basis for invoking a particular rule.

13. In the instant case no representation was made is palpably unacceptable as the return filed by the respondents does not controvert the Fact that the petitioner had submitted its representation. Annexure-G. Apparently saying that no representation was submitted is an incorrect statement of facts, if not a false one. In either case the order is liable to he quashed on this short ground alone.

14. The next submission made by Shri Bhargava, learned counsel for the petitioner is that vide Annexure E the petitioner was given hearing by the Commercial Officer and as is apparent from the return, paragraph 7 (supra), it was his satisfaction or dissatisfaction which had ultimately resulted in the passing of the order. Annexure-B, by Res. No. 1 but, unfortunately there is no material to suggest that how the satisfaction or dis-satisfaetion of the Commercial Officer can be said to be satisfaction or dissatisfaction of the respondent No. 1, the Divisional Engineer, Telephones, who has passed the order. It is an essential requirement of principles of natural justice that opportunity of hearing as contemplated by such principle is by the authority who is supposed to pass the order and this authority is such which cannot be normally delegated, even if provided under the rules, it would not satisfy the requirement of natural justice unless it is shown to the satisfaction of the Court that the authority passing the order had considered all the relevant material and such consideration is borne out by the order itself. But in the instant ease this question does not arise. The rules do not permit that the Divisional Engineer Telephones shall act on the satisfaction or dissatisfaction of the Commercial Officer in such matters. Rule 429, as reproduced above, prohibits three kinds of transfers:

(i) assignment. (ii) sub-lease, and (iii) or otherwise transferring the telephone. Putting the show-eause notice. Annexure A in juxtaposition to this rule, the words “ANADHIKRUT UPYOG”, as referred to in Annexure-A, appears to he very vague and ambiguous. They do not convey whether the charge contemplated is either assignment, subletting or otherwise transferring the telephone. What is expected in such eases is the specified mode of transfer and even on such specifications it cannot he expected by the subscriber to submit a reply showing cause against any proposed action by the authority. Thus, the show-cause notice (Annexure-A) further suffers from the vice of ambiguity. It is pertinent to note that Rule 429 (A) permits a casual use of telephone by an outsider subject to the condition that the subscriber shall not charge more charges for such casual use than the charges leviable for such use as if it is from a public call office. In view of this provision it is all the more necessary for the authorities to specify the mode of transfer and any lack of facts would certainly not help in sustaining any order.

15. A notice is got to incorporate the necessary facts, as laid down by their Lordships of the Supreme Court in Nasir Ahmed v. Asstt. Custodian General of Evacuee Property AIR 1980 SC 1157. Here the notice mentioned only one ground without mentioning the particulars of the ground the notice merely reproducing the language of the prescribed form). The authorities cannot keep back to themselves the material on which they relied for issuance of notice. In a different context the Supreme Court has occasion to consider such a situation, where the Income-tax Officer was reiving on a letter said to be written by the Manager of a Bank in reply to a query of the Income-tax Officer, stating that the assessee sent a certain sum by telegraphic transfer, it was essential to show the Bank’s letter to the assessee so that he could controvert the statements contained in it by asking for an opportunity to cross-examine the Manager of the Bank with reference to the statement made by him. (See :

Kishinchand Chellaram v. C.I.T. AIR 1980 SC 2117). Thus, the material relied upon, particularly the inspection reports, should have been sent to the subscriber-petitioner along with the notice. It is high time that the administrative authorities exercising powers under statutory provisions should realise whether they are issuing a show-cause notice why a certain action should not be taken or are communicating the reasons for decisions, it is not sufficient merely to recite the language of the statutory provisions, but it is also necessary that the actual facts on which action is proposed to be taken or on which the decision is based should also be stated or indicated. (See : Nasir Ahmed’s case supra).

16. Shri Bhargava, learned counsel for the petitioner has placed reliance on G. Nageswara Rao v. A.P.S.R.T. Corporation AIR 1939 SC 308 and Hukam Chand v. Union of India AIR 1976 SC 789, in support of his contention about consideration of necessary material by the authority which is required to pass an order, and Smt. S.R. Venkataraman v. Union of India AIR 1979 SC 49, for supporting his submission regarding placing reliance on a non-existing fact while passing the impugned order.

17. For the reasons aforesaid, this petition succeeds and is allowed. The order D/-15-9-1982 (Annexure-B), passed by respondent No. 1 is quashed. The respondents are directed to install the petitioners telephone service within a fortnight from today. The respondents shall also bear the costs of this petition. Counsel’s fee shall be Rs. 200/-, if certified. The outstanding amount of the security deposit, if any, after verification, be refunded to the petitioner.

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