PINAKI NANDI Vs. UNION OF INDIA

JUDGEMENT

(1.) The above two writ petitions in which same disputes in facts and law have been raised are taken together for disposal by this common judgment.

(2.) In Civil Rule No. 48 of 96, the petitioner Pinaki Nandi was provided with a Public Call Office (for short, 'PCO') on 21.3.95 by the Department of Telecommunication. On 16.3.95, 5 days before the petitioner obtained the connection, Sri Sankar Saha, the petitioner in Civil Rule No. 51 of 96 was given similar PCO connection. Shri Kamal Kanti Saha, fifth respondent herein was the only PCO holder at Udaipur before the above two connections given to the two petitioners in the same area. It is the case of both the petitioners that after the two new connections the competition in the business was generated which was at the detriment of the fifth respondent who had the monopoly of the PCO business in the area. The petitioners experienced from very inception that though the private telephones in the vicinity and the PCO connection of the fifth respondent were working well, their connections suffered from disturbances and they attributed the reasons therefore to connivance of the fourth and the fifth respondents herein stating that Fourth respondent Sri Nirmalya Ratan Saha is a close relative of the fifth respondent Sri Kamal Kanti Saha and in order to advance and perpetuate monopoly business of the fifth respondent, the fourth respondent being Junior Telecom Officer (JTO) of the area was creating the hindrances to the PCO operations of the petitioners. Their second allegation is that the bills raised by the Department of Telecommunication were much higher than the meter reading and in that connection, they made several correspondences to the Telecom District Manager (the second respondent herein), which proved futile. On 8.1.96 at 12-45 pm both the PCOs of the petitioners were disconnected, but on the following morning i.e. on 9.1.96, the connections were restored. On 10.1.96 both the petitioners addressed letters to the second respondent herein with copy to the Chief Gen eral Manager, Shillong about the illegality and irregularity committed. On 11.1.96, the PCOs were again disconnected which was again reported by the petitioners to the second respondent herein by letter dated 12.1.96. Both tie petitioners received a communication from Sub Divisional Engineer (for short, 'SDE'), the third respondent herein in the month of January, 1996 that they were allegedly availing of conference facility violating the departmental norms and, therefore, if no favourable reply was received within 30 days from the date of issue of the letter, the PCOs would be disconnected. It is the allegation that though the said letter was dated 21.12.95 giving 30 days time to give a reply the same was sent by registered post only on 16.1.96. It is the common grievance of the petitioners that the call prints offering details of the calls duration etc. would go to show excess billing in spite of repeated complaints to that effect not- wiith standing. The PCOs of both the petitioners were finally disconnected on 11.1.96 before expiry of 30 days from the date of the notice dated 21.12.95 regarding "conference facility" which was, according to the respondents, were availed of by the petitioners in violation of the departmental norms. The prayers of the petitioners are that there should be a direction to the respondents to restores their PCO connections and to compensate for the loss and damages sustained by them due to such disconnection.

(3.) The first three respondents have put in a common counter affidavit denying the allegations of the petitioners regarding any connivance or conspiracy for creating disturbances in the PCO operations of the peti- tioners. It is stated that the fourth respondent Sri Nirmalya Ratan Saha was not holding the post of JTO in Radhakishorpur telecom exchange, rather he was only a group-C employee holding the post of Transmission Asistant under the SDE. Though there may he distant relation between the fourth and fifth respondents it is stated to be a absurd propo sition that a Group-C employee had influenced the higher officers like the 2nd and 3rd respondents to do anything for perpetuating monopoly business of the fifth respondent and harming the business of the petitioners. As regards the allegation against the fifth respondent that he was practicing fraud by realizing higher rate from the customers as alleged by both the petitioners, the reply in the counter affidavit is that after receiving such complaints an inquiry was done and it was found that the complaints to some extent were correct and accordingly, the monitor was adjusted and the fifth respondent was cautioned duly. As regards the complaints regarding malfunctioning of the PCO connections of the petitioners, the respondents caused an inquiry to be made by the JTO of the area who reported that the telephones were tested but nothing abnormality was found. It is the specific stand of the above 3 respondents that both the PCOs had to be disconnected because of non-payment of outstanding bills. While the petitioner in Civil Rule No. 48 of 96 did not pay an outstanding bill of Rs. 62,520/-, the petitioner in Civil Rule No. 51 of 96 did not pay similar outstanding bills for an amount of Rs. 70,117/- which compelled the said res spondents to disconnect the PCOs after in- forming the petitioners that unless the bills were paid the disconnection would follow. It is made clear by them that all the allegations of excess billing due to ill design and conspiracy by the fourth and fifth respondents are far fetched, imaginary and cannot be a justification for non-payment of bills pending from August, '95. The bills are issued by the Accounts Officer (TR) of the office of the Telecom District Manager at Agartala on the basis of the meter reading statements received from the concerned SDE who gets the reading from the computer of the concerned exchange. If the bills are not paid in time, the Accounts Officer sends official instructions with disconnection list containing details of outstanding bills to the SDE concerned. The SDE issues duplicate bills as per disconnection list received from the Accounts Officer and informs the subscriber telephonically that if the subscriber has received the bills but fails to make the payment within the time specified the disconnection of the telephone would be done. This being the practice followed by the Department of Telecommunication the bills were prepared strictly in accordance with the meter reading and as the petitioners did not honour those outstanding bills for a long period, the Accounts Officer prepared the list of defaulters and after telephonic notice or intimation about the outstanding bills with the specific date for payment, the telephones of the petitioners were disconnected for failure to make payment. As regards the letter dated 21.12.95 about availing of 'conference facility' it is made clear in the counter affidavit that such a letter was addressed to every PCO operator after receiving some complaints from Dharmanagar area and the said letter had nothing to do with the disconnection of the PCOs of the petitioners. The said letter was issued in order to caution all the operators that if the conference facility was availed of in violation of the departmental norms it would itself be a ground for disconnection. The disconnection of the PCOs of the petitioners were done only for non-payment of a huge outstanding bills, not for availing of conference facility or failure to give a reply to the letter dated21.12.95.