KAMALA MUKUND DEVPURA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner at the relevant time was carrying out the business of ISD/STD telephone booth operator i.e. franchisee of the ZIP Telecom Limited utilizing ZIP pay phones. The petitioner in this petition is praying for issuance of writ of mandamus in the nature of certiorari or any other appropriate writ, order or direction against the respondents to invoke the provisions of the basic services licence of respondent no.4 and restraining respondent no.4 from providing the basic services. The petitioner is also seeking a direction against respondent nos. 1 to 3, directing them to initiate appropriate proceedings against respondent no.4 in accordance with law. The petitioner is also seeking a direction against respondent no.4, in respect of deposit of excess amount collected towards the pulse theft and/or pulse manipulation or such other sum as may be considered fit and proper.

(2.) THE petitioner contends that he had lodged complaint in respect of discrepancy in charging and calculating of units in the bills tendered for the period from 07.05.2001 to 21.06.2003 by the respondents. According to the petitioner, there is discrepancy in charging amount on the basis of pulse rate and as a result thereof, the customers as well as the petitioner and the others were required to spend more amount which has resulted in securing undue monetory benefit by respondent no.4. A complaint has been presented by the petitioner in that regard on 15.02.2003 to the General Manager (Operations), ZIP Telecom Ltd., Mumbai. There were several such complaints received by the respondent in respect of manipulation in the pulse rate.

(3.) IN pursuance to the complaint received by the respondent, the matter was investigated and the report of investigation by the Director of Vigilance Telecommunications dated 30.08.2005 is placed on record. It is reported by the Director that the pulse duration for USA, Canada and UK are 10 seconds for pre and post modification period. However, as per the pulse rate seen at switch, USA, UK and Canada were being charged at 8 seconds pulse. Thus, the customers were charged at 8 seconds instead of 10 seconds which proves over charging by 20%. It is further reported that the Vigilance Telecommunications Monitoring unit has not gone into the details of business related dispute between M/s Tata and PTB Franchisee and called upon the concerned to take appropriate steps. All the complaints received by the department were investigated and separate reports were forwarded which are more or less identical in nature. On receipt of the report from the Vigilance, the matter was further investigated by the Director of Vigilance, Telecommunications and the report has been presented on 14.12.2006. The Director of Vigilance, Telecommunications has recorded the finding that all the customers using PTB were subject to over charging due to different charging pulse rate in the Exchange compared to the one marketed by the service provider. It is further observed that charging pulse received by PCO from Exchange was different than that billed to them by offline billing process at Hyderabad. This fact has been acknowledged by M/s Tata Teleservices Maharashtra Ltd. It is recommended by the Director of Vigilance Telecommunications that a suitable action may be taken by licensor against TTML and the suitable penalty be imposed on the service provider within the terms and conditions of the license for negligence and instruction be issued for immediate checking of the entire data once again, so that all such arrears are immediately assessed and the customers do not face hardship on that count. On receipt of the report from the Director of Vigilance Telecommunications, licensing cell verified the facts and issued detailed order setting out the reasons in support of the penalty imposed against the service provider. On scrutiny of the relevant data/codes/pulse for all destinations at Goa switch and their billing centre at Hyderabad, it was noticed that in respect of some codes the charging pulse received by PCO from Exchange was different than that billed to them by offline billing process at Hyderabad. This resulted in subjecting the PCO/PTB customers to pay at the higher rates than the one advertised by the company in some of the cases. It was also noticed that, out of 240 ISD Codes, 25 ISD codes and out of 2645 STD codes, one STD code were wrongly billed in first case and only one ISD code was wrongly billed in second case. Looking to the small amounts of refunds i.e. of Rs.717/ - and Rs. 263/ -, it was felt that these were unintentional human errors which might have occurred due to offline billing process. Keeping in view the small number of cases and the small amount of refunds, an inference was dawn that intention to defraud cannot be attributed to the service provider however, conclusion is drawn that this lapse points out towards the human error. Accordingly, the access services cell was advised to issue a warning to M/s Tata Teleservices ( Maharashtra) Ltd., for misleading and confusing the general public about the charging of pulse rates to some of the destinations from Goa and also to direct M/s TTML to submit a compliance report for Goa in respect of applicable Telecom Tariff orders as communicated by TRAI, within a period of 21 days. With regard to the independent complaint tendered by the petitioner is concerned, he was advised to approach the consumer Court for redressal of the grievance. It was also directed to refund the excess charges of Rs.717/ - to the petitioner.