MOHAN DASA PRABHU Vs. UNION OF INDIA

JUDGEMENT

(1.) This Writ Appeal has been filed aggrieved by the order of the learned Single Judge in dismissing the Writ Petition. Writ Petition has been filed questioning the award of the Arbitrator appointed under Section 7B of the Indian Telegraph Act, 1885. The Arbitrator came to be appointed because of the dispute in the quantum of telephone bills dated 1.5.1997 and 1.7.1997 raised against the appellant. Appellant's case is that being a small shop owner and the average bi-monthly bill for all times to come having not exceeded Rs.1,000/-, there was a sudden spurt in the bills dated 1.5.1997 and 1.7.1997, which are hereinafter referred to as the 'disputed bills' and inspite of complaint being lodged soon after the receipt of the disputed bills, proper enquiry has not been conducted and that even the Arbitrator had failed to conduct the enquiry properly and that the learned Single Judge has not appreciated these contentions well.

(2.) Learned counsel for the appellant submitted that guidelines have been issued regarding the checking of excess billing and scientific way of method has been suggested for the process of checking into the excess billing and to determine whether it is a normal handling by the telephone subscriber or foul play played by any other person or the staff of the telephone department by even resorting to looping and particularly STD and ISD calls. The said kind of investigation has not been done and this aspect has not been appreciated either by the Arbitrator or by the learned Single Judge. Learned counsel has placed before us those guidelines and also cited a Division Bench judgment of the Gauhati High Court in Santosh Singh v. Divisional Engineer, Telephones, Shillong, AIR 1990 Gauhati 47, which has very comprehensively dealt with the alarming situation arising out of the excess telephone billing and referred to the guidelines which have been issued by the Telephone Department. Learned Central Government Standing Counsel countered the above arguments of the appellant's counsel to the effect that the disputed bills have been properly levied basing upon the use by the appellant or by the persons allowed by him and that complaints of the appellant were properly enquired into not only by the officers of the telephone department but also by the Arbitrator and the learned Single Judge also correctly rendered his judgment and that in a Writ Petition under Article 226 of the Constitution of India including the Writ Appeal therefrom, the High Court cannot sit in appeal to review the award of the Arbitrator and that the Writ Appeal deserves to be dismissed.

(3.) It is true, that the High Court under Article 226 of the Constitution of India exercising the judicial power cannot act as an Appellate Authority. But the High Court can certainly go into the aspects as to whether decision making process by the concerned lower authority has been properly followed or not. If the decision making process is erroneous, the High Court can certainly intervene in exercise of its plenary jurisdiction under Article 226 of the Constitution of India. That is more so in cases of this nature where the suit is barred and the Arbitrator's decision is final as there is no appeal provided against his award. Further the action complained of is not administrative in nature and is quasi-judicial. Mulcting the appellant with exorbitant telephone charges of Rs.69,202/- and Rs.38,350/- under the two disputed bills results in civil consequences and audi alteram partem rule has to be strictly followed. Audi alteram partem rule is not an empty formality, but as to be effective. Element of fair play has to be observed and all the relevant material as is necessary to go into the decision making process has to be gathered and for that proper enquiry has to be conducted keeping also in view, the guidelines laid in that regard which have been mentioned supra. Among the guidelines prescribed, the following are more important: