P.S. Anthappan vs The District Manager, Telephones on 28 February, 1980

Kerala High Court
P.S. Anthappan vs The District Manager, Telephones on 28 February, 1980
Equivalent citations: AIR 1980 Ker 201
Author: P S Poti
Bench: P S Poti


P. Subramonian Poti, J.

1. Telephone No. 34953 installed at House No. XXVIII/2H2, Palarivattom, Cochin-25 was disconnected on 1-10-1977 and the petitioner who was the subscriber of that telephone was told by a letter dated 15/17-10-1977, copy Ext. P-3, that the telephone had been closed for misuse on 1-10-1977. The petitioner thereupon made a representation to the District Manager, Telephones, seeking immediate action in the matter of verification of certain facts stated and reconnecting the telephone. After waiting for sometime to get orders thereon, he moved this Court for quashing Ext. P-3 and also for a mandamus to direct the respondent, the District Manager, Telephones, to re-connect the telephone.

2. The right of any subscriber to continue to enjoy the benefit of the telephone of which he is a subscriber, is quite valuable. Despite the fact that it is the exclusive privilege of the Central Government to establish, maintain and work telegraphs, there is no power in the authorities functioning under the Indian Telegraph Act to act arbitrarily either in the matter of sanctioning fresh telephone connections or in the matter of suspending or cancelling such connections. Any person aggrieved by the arbitrary conduct of the authorities functioning under the said Act should be able to seek redress against the violation of their rights. It has been pointed out by this Court in the decision in Ayyappan Pillai v. Divl. Engineer, Telephones 1974 Rer LT 41 that there is nothing in the Telegraph Rules which enables the authorities to disconnect the telephone sanctioned for use of a person on the ground that he was neither residing nor having a place of business in the premises where the telephone is installed. It was further held therein that in the absence of reasons recorded in writing showing the satisfaction of the concerned officer, that it was necessary to disconnect the telephone, any such disconnection was liable to be impugned successfully. Rule 421 of the Indian Telegraph Rules deals with disconnection of telephones, Rule 427 deals with the consequence of illegal or improper use of telephone and Rule 429 deals with transfer of telephone. These are the Rules to which generally reference is made in the context of disconnection of telephones. The scope of these rules came up for examination by a Division Bench of this Court in the decision in O. P. 3358 of 1976. In view of this, it may not be necessary to go into the questions covered by the said decision in detail.

3. It may be noticed that though Section 7 (2) (e) of the Indian Telegraph Act contemplates framing of Rules relating to conditions and restrictions subject to which any telegraph line shall be established or disconnected, no rules are seen to have been framed specifically dealing with this subject. No doubt Rule 429 prohibits transfers but that is not a rule laying down the restriction subject to which any telephone can be disconnected. Rule 421 deals with disconnection of telephones. But the various conditions, the violation of which would justify disconnection of telephones, have not yet been prescribed by the said rule or for that matter by any other rule. In fact, the indication in Rule 421 is that this is left to the discretion of the authority who is to pass an order in writing concerning the need for disconnection. The scheme as it now stands is that the authority concerned has an obligation to issue notice and to pass an order in writing recording the reasons for disconnection before such disconnection is made. This is no doubt a procedural safeguard. But what are the reasons relevant for disconnection is a matter that remains to be provided for. The danger of this has been pointed out in the decision in O. P. 3358 of 1976, for, different standards, different approaches and different grounds may be adopted by different officers to take steps for disconnection and that will enable an arbitrary and discriminatory exercise of power under the rule. I am once affain stating this to alert the Central Government to the need for having a fresh look into the rules to consider whether the situation mentioned in the judgment of the earlier Division Bench of this Court should
not be met.

4. In the case before me, action was taken presumably because the petitioner shifted from the house at Palari-vattom to which house the telephone connection had been given to him as a subscriber. He moved into another house in the city. A fresh tenant occupied that house excepting the room in which the telephone was installed. The petitioner is said to have continued to keep that room for his use since he had to function there for the purpose of his office as a member of the Director Board of Edappally Housing Co-operative Society. In fact, the counter shows that a Board “Edappally Housing Cooperative Society” was seen in the compound of the house at the time the telephone was disconnected. A notice was issued to the petitioner mentioning that the telephone was being unauthorisedly used by a third party and that amounted to violation of Rule 429 of the Indian Telegraph Rules. The notice was given under Rule 421 of the Indian Telegraph Rules to show cause why the telephone should not be disconnected after expiry of 7 days. To this notice by the District Manager, the petitioner filed a reply mentioning that for certain reasons he had to shift his family, that he was in occupation of the room where the telephone connection was provided and that room was still under his use as his office. He denied the charge of unauthorised assignment of his telephone. No order seems to have been communicated thereafter to the petitioner before disconnection. It is said to have been disconnected on 1-10-1977. He was told by a memo dated 15/17-10-1977 (copy Ext. P-3) that the telephone had been disconnected since the telephone was working on the portion rented out to one Sri. Soman and that was being used by Soman and his people.

5. Evidently the case against the petitioner for closure of the telephone was that he had allowed one Soman to use the telephone and that he had shifted from the premises where the telephone was installed. The procedure adopted was to give a show cause notice, then hold some investigation and disconnect the telephone. I am afraid the order cannot be sustained both because the procedure adopted was not in accordance with the rules and also because the disconnection was not justified on the facts.

6. No doubt Ext. P-1 was a notice in writing. To that notice the petitioner replied. The counter-affidavit shows that an investigation was made — I am not here dealing with the nature of the investigation — and as a consequence, disconnection was effected, There is a plea raised in the petition that as required by Rule 421 of the Indian Telegraph Rules, there is no order recording reasons in writing. Though the counter-affidavit mentions that this is not correct, what the order was and when was that passed are not mentioned in the counter-affidavit. Rule 421 provides that where the Divisional Engineer is satisfied for reasons to be recorded in writing that it is necessary to do so, he may, after giving the subscriber a notice in writing for a period which shall not except in emergent cases be less than 7 days, disconnect the telephone. His satisfaction could only be after investigation. The notice contemplated in Rule 421 is a notice to be issued after such satifaction. The counter says that after the reply of the petitioner was received investigation was made. Necessarily satisfaction must be after that. The files actually show that some sort of a report was made on 29-9-1977. On that order for disconnection is seen passed on 1-10-1977. No notice is issued after the reasons are recorded in writing pursuant to the investigation and the issue of such a notice is contemplated in Rule 421. Hence the disconnection is bad and not in accordance with the Rules.

7. What is stated in the notice, Ext. P-1, is that Rule 429 is violated and therefore action is taken under Rule 421. Rule 429 of the Indian Telegraph Rules prohibits assignment, sub-letting or otherwise transferring the telephone without the permission of the Telegraph Authority. Therefore if any of these acts is done by a subscriber that will not be recognised by the department. An assignment, or sub-letting or transfer, otherwise involve the element of transfer. A mere permission to another for the use of telephone will not be assignment. It will not be sub-letting nor will it be a transfer. What, is contemplated is a transfer of the right of the subscriber either absolute or qualified. Any subscriber permitting another person to use his telephone cannot be said to be misusing the telephone. That is not what is contemplated by Rule 429. At no time it is said by the District Manager or any other authority that the petitioner assigned his telephone or sub-let his telephone or otherwise transferred his telephone. Moreover, in the counter-affidavit and the report to which the counter-affidavit refers, mention is made of the Board of the Housing Co-op. Society in which the petitioner is a Director being found in the premises. The fact that the petitioner was not available at the time the Divisional Engineer chose to telephone him at that number is a crude test to determine the case of transfer if there was any such case at all for the department. No subscriber is expected to sit beside his telephone in anticipation of such a test by the telephone department at the risk of his losing the right to be a subscriber in case he is absent when the Divisional Engineer chooses to telephone him with that object. In these circumstances, even if violation of Rule 429 has the consequence that it may result in disconnection of the telephone — a matter about which I do not finally express any view herein — that cannot be found in this case.

8. Apart from what I have pointed out here there is the further circumstance pointed out by the Division Bench earlier in O. P. 3358 of 1975 that the rule ought to indicate what are the criteria relevant for disconnecting a telephone.

9. Section 7-B of the Indian Tele-graph Act contemplates reference to arbitration in the event of a dispute. Here again the Division Bench has pointed out in O. P. 3358 of 1976 that such reference must precede the disconnection and not follow it, for, once the telephone is disconnected, there is very little practical purpose to be served by arbitration. The stage of disconnection even for the period of arbitration is sufficient to cause irreparable injury to a subscriber who may need the telephone for his business or for his profession or for his own personal needs. Hence such action as waf taken here would violate the provisions in Section 7-B also.

10. It follows from the above that the disconnection of the petitioner’s telephone was not in accordance with law. I therefore direct that the telephone connection be restored to the petitioner forthwith and at any rate, not later than 3 weeks from today. The Original Petition is allowed as above. No costs.

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