SUMA MATHEW Vs. GENERAL MANAGER TELECOMMUNICATIONS KOTTAYAM

JUDGEMENT

(1.) The petitioners in these Original Petitions are Franchisees of the Telecommunication Department maintaining the operating pay phone facilities. As per the agreement between the parties, the petitioners were permitted to charge Re. 1 per unit call from the callers of the telephone. In the case of STD Calls, the operators were allowed to deduct 20 paise per unit call as commission and the balance amount had to be paid to the Department. In 1989, the Department introduced a slab system with regard to such commission. For the first 10,000 calls, the commission was fixed at 20 paisa per unit call and the next 5000 calls the commission was 10 paisa and for the remaining calls the commission was fixed as 5 paise. But these three tier slab system was not enforced because of the protest from the Operators and on 2-5-91 the Department introduced a two tier slab system. As per the two tier slab system, the commission was fixed at 20 paise per unit call upto 10,000 calls and 10 paise per unit call for the remaining calls. The petitioners who are operators filed Original Petitions challenging the new two tier slab system. A number of other petitions were also filed. But the learned single Judge was of the view that the entire question was in the realm of contract and hence the learned single Judge refused to interfere in this matter. Against the common judgment a number of Writ Appeals were filed namely W.A. 1748/95 and connected cases. The division Bench which heard the Writ Appeals disposed of the same by judgment dated 23-2-96. Ultimately this is what the Division Bench stated: -

(2.) A counter affidavit has been filed on similar lines in all these cases. In the counter affidavit, it is stated as follows: -

(3.) The main attack against the granting of relief by the learned Central Government Counsel is that the petitioners are bound by the principles of res judicata and hence they are not entitled to relief. The respondents cited the following decision. In Somukuttan Nair v. State of Kerala, 1997 (1) KLT 601 , Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 (2) KLT 130 , Sulochana Amma v. Narayanan Nair, 1994 (2) SCC 14 , Shantilal Rampuria and Others v. M/s. Vega Trading Corporation. and Others 1989 (3) SCC 552 , and in Asst. General Manager, Central Bank of India and Ors. v. Commissioner, Municipal Corporation for the City of Ahmedabad and Ors. 1995 (4) SCC 696 . The above decisions are relating to res judicata under S.11 of the Code of Civil Procedure. They mainly relate to cases where when two cases are disposed of by a common judgement and if by only one appeal is filed and no appeal is filed in the other case, the appeal will be barred by res judicata. But the present case is different. Here the question is whether Telecommunication Department which is a statutory body is entitled to deduct as commission of any amount violating the directions contained in W.A 84/96 this Court gave a declaration that those who had executed an agreement prior to 14-8-92 are entitled to deduct commission as 20 paise per call irrespective of number of calls. This is a declaration made by this Court in exercise of its power under Art.226 of the Constitution of India. As already stated this declaration was made against the Telecommunication Department. If they are aggrieved by this decision, they should have attacked the judgment. In so far as the direction is alive, the Department is bound to follow the direction. It is true that the petitioners had earlier approached this Court for the same relief. But that was dismissed on the ground that this court will not interfere in contractual matters. But the question is not one of res judicata. The question is whether a person like the respondents under Art.12 of the Constitution of India can adopt different standards for the same class of people. If as per the judgment in W.A. the franchisees who have executed agreement before 14-8-92 are entitled to deduct a commission of 20 paise, there is no reason to single out the petitioners merely because they approached this Court and failed. I would construe the judgment of the Writ Appeal as declaratory one. If it is a declaratory one, then that is binding on the department with respect to every subscriber coming under it. Hence the revised bills issued by the Department are cancelled. The Department is directed to issue fresh bills in accordance with the directions in the judgment in W.A. 84/96. But I make it clear that this direction is only apply with respect to those people who have executed the agreement before 14.8.92.