DIVISIONAL ENGINEER TELEGRAPHS-/ vs K.C.GUPTA

SOMEWHAT unusally both the learned Counsel for the appellant and the respondent have in essence sought the remand of the present case to the District Forum. It therefore, suffices to notice the facts in their barest outline.

DR. K.C. Gupta, the complainant-respondent is the subscriber of telephone number 2062 installed at his premises for the last about ten years. It was his case that even though he throughout enjoyed the STD facility, his earlier bills for telephone charges had been for very modest amounts and particular reference was made to the bills dated the 11th of October, 1991, 11th of December, 1991 and 11th of February, 1992. The primal grievance was made against the bill dated the 11th of April, 1992 for an amount of Rs. 1,802/- and the earlier bills of Rs. 1,716/-, Rs. 1,691/- and Rs. 2,926/-. It was further the case that because of excessive bills, he had requested for the disconnection of the STD facility and this was being not done. It was highlighted that the telephone exchange at Rewari is absolete and not functioning properly and resulting in spurts in the reading of the meter etc. The appellant-department in resolutely defending the complaint took up the plea that the earlier complaint regarding excess bill had already been decided. However, on receipt of a complaint to the department, the necessary checking of the meter and all the equipment was made but not the least defect therein was found. Even a comparative study of the previous bills was also done which could not furnish any ground or justification for rebate. The department''s stand was that the bill was correct and in accordance with actual consumption and the complaint be dismissed on merits.

The learned District Forum in allowing the complaint was influenced by a solitary factor irrespective of the other features in the case. It was noticed that in an earlier complaint preferred by the respondent against the bill dated the 11th of October, the District Forum had reduced the sum of Rs. 811/- only. Against the said order, the appellant preferred an appeal which was rejected by this Commission. Therefrom it was concluded that the material on which present appeal was decided was the same on the basis of which the previous complaint rested and for that reason alone the impugned bill was scaled down to the figure of Rs. 811/- only.

MR. Arun Walia, the learned Counsel for the appellant has rightly and forcefully argued that the telephonic charges for the bi-monthly periods are widely variable factors and in particular where the STD facility is enjoyed by a subscriber. Consequently, the order with regard to one bi-monthly period of the District Forum and its upholding by the State Commission cannot operate as a res-judicata betwixt the parties on the quantum of calls and the charges therefor. It was further highlighted that in the earlier case, the appellant''s appeal had gone virtually by default as stands actually noticed in that order because of the absence of the learned senior Counsel on the date of hearing. Therefore, it was submitted that the said order could not be binding for all times nor the respondent is entitled to a virtually fixed charge of Rs. 811/- only hereafter. The firm prayer was that the case should be remanded for retrial on its individual merits. We find patent merit in the submission aforesaid. This is more so from the perusal of the record and order of this Commission in the previous appeal preferred by the appellant-department. It deserves recalling that the said appeal went virtually by default and could not be seriously pressed before us for the reasons mentioned in the said order. The same cannot form a permanent and perpetual basis for the assessment of the respondent''s telephonic charges. It is somewhat elementary that the principle and the matter being virtually resjudicata betwixt the parties in this context cannot arise. The issue of telephonic charges for every bimonthly period has to he considered independently on the basis of the facts and circumstances of each case.

WE must further notice that the learned Counsel for the respondent very fairly conceded his inability to support the solitary reasoning of the District Forum. Consequently, he himself prayed that the matter be remanded for a fresh decision. In view of the aforesaid discussion, we are constrained to set-aside the order under appeal and further direct that the complaint be decided expeditiously after affording the parties a full opportunity to establish their respective cases. In these circumstances, we make no order as to costs. Order set aside.