Jagdamba Rice Mills vs UNION OF INDIA, MINISTRY OF TELECOMMUNICATIONS

WHETHER the arbitration of disputes envisaged by Section 7-B of the Indian Telegraphs Act is a preliminary bar against seeking relief under the Consumer Protection Act, 1986 by a subscriber of the Telex Service - is the significant threshold question in this case.

THE salient facts are not in serious dispute and may be recapitulated with relative brevity. M/s. Jagdamba Rice Mills, Taraori (hereinafter referred to as the ''Complainants'') is a firm of considerable standing and repute, carrying on the business of a large scale exporter of rice at Taraori, which is a well-known centre therefor. THE complainant-firm in order to avail of the fast communication by modern technology and to keep in touch with the foreign countries about the latest position of rates, demand, and dispatches of rice from time to time, got installed a Telex No. 241 in their premises at Taraori, after completing necessary formalities therefor, on the 31st October, 1985. At the very outset it may be mentioned at the main Telex Exchange is located at the District Headquarters at Karnal, and the aforesaid connection was provided as a long-distance one at Taraori, being at a distance of about 18 kilometers therefrom. It is the firm case of the complainants that despite some efforts made by the mechanics and technicians of the defendant-department of Telecommunications, Haryana Circle, the Telex Connection could not be brought into working order and had not given any service worth the name to the complainant-firm. It has been averred in the complaint that the Telex connection failed to give efficient service from the very date of its installation, but initially the complainants did not lodge any complaint with the hope that the defects therein would get removed in due course and were in essence teething troubles thereof. However, when this did not happen, the complainants were convinced that there was patently a major defect in the Telex, and lodged a complaint with the Department vide Annexure P1 dated 10th September 1986. In response thereto, the technicians visited the Telex and changed the machine thereof apparently because of its defective nature, but failed to provide an attachment, called by way of abbreviation as ''LU'' necessitating another complaint Annexure P2 dated the 10th November, 1986. Because of continued defective working, the technicians again corrected the machinery during the month of November, 1986 after repairs etc. and the Telex lines remained out of order for a considerable time. Apparently because the Telex was not working, no bills were forwarded to the complainants and as a matter of abundant caution, they wrote to the D.E.T., Karnal, vide Annexure P3 dated 19th November, 1986, intimating that they had not received any bills for the last six months or more, and these should be forwarded for payment well in time. The burden of the song in the complaint is that despite innumerable complaints made telephonically, verbally and also personally at the top levels, the functioning of the Telex failed to improve. As a last resort, the complainants addressed their representation to Shri Arjun Singh, the then Minister of Communications Government of India. New Delhi, vide Annexure P4 dated 28th November, 1986 to highlight the failure of the Telex and the consequent loss to the complainant-firm. It is further the case that ultimately the mechanics and technicians sent by the Department to repair the Telex threw up their hands and declared that there was some manufacturing defect in the equipment provided and they were helpless and showed their inability to repair and rectify the same. Meanwhile, another communication (Annexure P5) was addressed as a reminder to the Department, asking them to send their bill, if any, expeditiously.

The complainants then go on to allege that on finding that the Telex could not be made operational by the Department at Taraori, perhaps because of the long distance from the Exchange, they then extended an offer that the same may be shifted to the York Hotel. G. T. Road, Karnal, in the hope that it would be able to function effectively therefrom. The formal request was made vide Annexure P6 dated 19th December, 1987 which expressly mentioned that the said Telex was virtual lying dead and there was perhaps no alternative, but to shift it to Karnal to make use of it. It has been alleged that to this request also the respondent-Department raised finical and technical objections, with the result that the same could not be shifted to Karnal. As a last resort thereafter, the complainants on the 19th December, 1988 addressed a letter (P9) to the Director, Telecommunications (North); Ambala Cantt. , informing them that the Telex had become useless to them and because of the failure of the Department to make it functional, the same may be removed from their premises and the amount of Rs. 24,671/-, deposited with the Department, may be refunded within a fortnight of the issue of that letter. However, it was requested that if a new connection could be made functional at Taraori, the same may be installed at the complainants'' premises as they were sorely in need of its services regularly. In reply thereto, the complainants were utterly surprised to receive letter (Annexure P10) from the Department, informing them that the above said Telex has been disconnected due to non-payment on the 27th October, 1988. In order to show the falsity of the respondent-Department''s stand in this context, Annexure P11 has been placed on the record. This is a communication from the Department in December, 1988, reading as under:- "Ref. : Your complaint dated 19.12.88. In this connection it is intimated that your complaint has been received and action is being taken please. "

THE primal grievance in the complaint is that instead of realising and performing their responsibility on their part, the respondent-Department instead of either making the Telex truly functional or acceding to the complainants'' request to remove the same in case of their inability to do so, they raised an unwarranted demand to Rs. 1,55,381/- against the complainants vide Annexure P12 and followed it up by a preemptory direction to pay the same vide Annexure P13 dated 31st January, 1990. It is further alleged that the Department in order to illegally arbitrarily pressurise the complainants to pay the unwarranted demand aforesaid, had disconnected and threatened to disconnect their telephone connections both at Taraori and Karnal and further to hinder or refuse their applications for further telephone connections. Lastly, it is the case that the Telex facility being vital and essential to the complainants'' business, they were compelled to open an office at Delhi and arrange for another Telex connection therefore, when they found that the Telex No. 241 at Taraori could not be made operational either at its original or the alternative site at Karnal. The overall financial loss estimated and claimed for the failure of the respondents to provide the Telex and remove the deficiency therein is to the tune of Rs. 7 lacs apart from the denial of any liability for the alleged recoverable amount of Rs. 1,55,381/-.

IN the written statement dated 3rd May, 1990, filed on behalf of all the three defendants, the significant averment in para 1 thereof deserves quotation in extenso: ".The said Telex at Taraori was working as a long distance Telex connection and the lines were passing across jungles, canal, Railway doubling work was going on and the trucks used to break the wire. It was working on overhead line media. " IN the aforesaid written statement allegations of the complainants are sought to be controverted and the stand is taken that with regard to the condition of T. D. Machine, the same was provided after thorough checking etc. as per the stores available with the Department and further repeated complaints and faults in the Telex Line were sought to be attended and remedied as soon as reasonably possible. A photo copy of the fault card has been attached as Annexure R1. It is also averred that all the pending bills were issued well in time and the payment of those bills was made by the complainant-consumer as per Annexure R2. As regards the shifting of the Telex from Taraori to York Hotel, Karnal, the objections raised by the Department are sought to be reiterated. It is averred that due to these technical reasons the Telex could not be shifted. It is the defendants'' case that the Telex was disconnected for non-payment of bills on the 27th October, 1988 and because the same had been provided at a rent and guarantee basis, no question of refund of the amount of Rs. 24,671/-, originally paid, would arise. It is alleged that the complainants did avail the services of the Telex, except barring duration of faults as evidenced from the Fault Card (R 1), and, consequently, the complainants were liable to pay the bills raised against them. The final bill dated 22nd January, 1990 is alleged to be issued under the departmental rules and regulations with regard to the Rent & Guarantee Service and also included the purported arrears arising out of the supposed under-payment of rent etc., which is said to have been pointed out by the audit party of the Department. It is highlighted that the bill for the remaining rent and guarantee period with effect from 1st April, 1988 to 31st October, 1995 comes to the amount of Rs. 1,48,939/- and the complainants are bound to pay the same. The demand thereof is reiterated to be legal and fully justified, and further the actual or threatened disconnection of the complainants telephones and similar connections is also sought to be supported. It is denied that the hiring of the premises at Delhi and securing a Telex connection thereat was in any way a direct result or consequence of the alleged failure of the Telex Service at Taraori. The claimed financial loss on that score is sought to be repelled and the right to payment of the bills raised is reiterated. Learned Counsel for the parties had agreed to put in their evidence by way of affidavits and cross-examine the deponents, if necessary. The annexures attached to the complaint and the written statement were admitted by the parties, barring Annexures R4 to R6. On behalf of the complainants, affidavits of Sh. Satpal Gupta, partner of the complainant-firm, and Sh. Ashok Kumar Gupta, another partner thereof, dated 21st May, 1990, were filed along with Annexures P14 to P2 (which were not disputed on behalf of the respondents). Later additional affidavit of Mr. Satpal Gupta dated 9th June, 1990 was also allowed to be placed on the record without any objection on behalf of the defendants. Learned Counsel for the defendants cross-examined Sh. Satpal Gupta and Sh. Ashok Kumar on the 8th June, 1990. Additional affidavits of Sh. Ashok Kumar Gupta dated 30th June, 1990 and 20th July, 1990 were also allowed to be placed on the record. Lastly, on a special prayer, the affidavit of Sh. Satpal Gupta dated 23rd August, 1990 was also allowed to be filed.

ON behalf of the defendants, the primary evidence consists of the first and the additional affidavits of Sh. Khem Chand, Sub-Divisional Officer (Phones), Karnal, dated 7th June, 30th June and 11th August, 1990. Sh. Khem Chand aforesaid was cross-examined on behalf of the complainants on 2nd July, 1990 and again on the 10th August, 1990. As it transpired therefrom that his earlier affidavit dated 7th June, 1990 was not attested in conformity with law, an additional affidavit in consonance with rules was allowed to be filed later

THE complainants and the defendants expressly stated that they did not wish to lead any further evidence apart from the one noticed above. Arguments in the case, both written and oral, were filed and heard on the 11th September, 13th November, 26th November, 6th December and lastly on the 10th December, 1990. It is against the backdrop of the aforesaid factual foundation that the stage is now well set to consider and adjudicate on the significant threshold issue which has been posed at the very outset. In this context what first deserves pointed notice is that long after the filing of the written statement on behalf of the respondents, a separate application was moved on their behalf on the 25th May, 1990. Therein a firm stand was sought to be taken that according to the terms and conditions of the agreement between the complainant and the respondent- Department for the installation of the telex, it had been agreed that the subscriber shall abide by and conform to the provisions of the Indian Telegraph Rules, 1951 and further according to Section 7-B of the Indian Telegraph Act, the complainant was duty-bound to ask for an arbitration of the dispute and, consequently, he should first initiate proceedings for the appointment of an Arbitrator in this regard.

Mr. Arun Walia, learned Counsel for the respondents, pressing the aforesaid application as a preliminary and unsurpassable bar to the complaint, had contended with considerable vehemence that the provisions of Section 7-B of the Indian Telegraph Act are mandatory and inflexible in their nature and the dispute betwixt the parties had necessarily to be determined by an Arbitrator, whose award had been made conclusive between the parties and not questionable in any Court by virtue of Sub-section (2) thereof. In sum the primal submission was that the complainants herein must first make resort to and exhaust the remedy by way of arbitration and until and unless they have done so, they cannot knock at the doors of the beneficent provisions of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') and are totally barred to seek relief thereunder.

ON the other hand, Mr. Sidhu, learned Counsel for the complainant, in reply had submitted that the provisions of the Act provided additional and exclusive rights and remedies, which could not be blocked or hamstrung by a statutory arbitration provisions in an altogether different statute like the Indian Telegraph Act. ON larger principle it was submitted that if the objections and the bar sought to be raised by the respondents, were to be sustained, then the beneficent provisions of the Act would be virtually ousted or rendered nugatory by either contractual or statutory arbitration clauses, which on principle are on an identical footing. Reliance was placed by way of analogy on the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others, AIR 1975 Supreme Court 2238, for the proposition that where a particular statute itself confers the rights and provides the remedies for their enforcement, then resort must be had to that statute exclusively and to no other. There is no gainsaying the fact that the issue raised before us is of weighty significance, which would involve larger ramifications at the national level about the applicability and the scope of the Act in general. Indeed the core of the matter is whether arbitration provisions, either statutory or contractual, can hedge, limit, or override, the wide- ranging provisions of this statute. It would appear in essence that the matter is as yet res integra and in any case no authority on all fours, of the Final Court or the High Courts or of the National Consumer Disputes Redressal Commission, could be cited by the learned Counsel for the parties, despite their deep research and repeated opportunity given to them for doing so. The question thus deserves a somewhat exhaustive, yet refreshing, examination on larger principle and on the particular language employed in the provisions of the Act.

INEVITABLY, the matter here revolves around Section 7-B of the Indian Telegraph Act, which may be noticed in extenso at the very outset: "7-B Arbitration of disputes : - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus, is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. (2) The award of the arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the disputes and shall not be questioned in any Court. "

We may recall that Mr. Walia had chosen to confine himself primarily and focally on the language of the afore-quoted section, and neither relied nor indeed even referred to the provisions of the Arbitration Act. His contention has, thus, to be evaluated within this narrow compass. However, as has been noticed earlier, the same first deserves examination against the wider canvas of the larger scheme of the Act itself, apart from the specific provisions thereof. In the latter category, one has to focus on the language and the brief and meaningful contents of Section 3, which lays down in categorical terms that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force. However, a detailed and specific reference to this section would be made separately hereinafter. Inevitably, for evaluating the scheme and scope of the Act, the preamble thereof is of a great relevance. Indeed it has often and rightly been said that the preamble of a statute may provide a key and a clue for the interpretation of its provisions, where difficulties and complexities arise in their construction. Herein, its language appears to us of a great significance and reads as under:- "An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers'' disputes and for matters connected therewith. "

IT is trite learning that the Act is of relatively recent origin, having been actually brought into force in 1987 and derives its roots from the consumer movements in the advanced western countries, and the laws framed therein. However, before its advent, in a way, some remedies were provided by statutes like the Prevention of Food Adulteration Act, the Essential Commodities Act, the various drugs and cosmetics acts, and equally the general laws of the land governing contracts. Sale of Goods Act, Torts, and even the Indian Penal Code, apart from other specific legislation. However, the existing laws in fact and practice were found wanting in providing adequate protection to consumers, and it was, therefore, that the Parliament, in its wisdom, thought it necessary to bring this Act on the statute book, to provide better protection to the consumers than was prevailing hitherto under the subsisting laws. Equally, it was thought necessary that the existing forums for the settlement of consumer disputes were unequal to the task, necessitating the establishment of special redressal agencies therefor. IT deserves highlighting that the Act for the first time introduces the concept and class of "consumers", and confers express additional rights on them, which are sometimes intrinsically different and distinct from those which might have been existing under the earlier statutes or even under the laws of contract and tort.

HEREIN what first meets the eye is the wide and yet precise legal connotation given to the "consumer" by the Act. This is done by Clause (d) of Sub-section (1) of the definitive Section 2. Its significance deserves notice in extenso and it reads as under: "(d) "consumer" means any person who, - (i) buys any goods for a consideration which has been paid or promised or party paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buy such goods for consideration paid or promised or party paid or party promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

Without dilating on the afore-quoted provision, it seems manifest that it visualises two distinct types of consumers; firstly, those who buy goods for consideration, and secondly, those who hive any services for consideration. The definition extends the concept of consideration not merely to one actually paid, but one which is merely promised or partly paid or partly promised, and includes within its ambit every system of deferred payments. The further amplitude given by this provision, which is particularly noticeable is the fact that a consumer is not merely the one, who originally buys goods, but further includes any user of such goods, when such use is made with the approval of the original purchaser. Similarly, it includes not the actual hirer of the services, but also any beneficiary of such services, if they are availed with the approval of the first mentioned person. It is, thus, evident that this definition gives an altogether new legal colour and scope to the term ''consumer'', which stands crystallised by this exhaustive definition. The legislature deliberately extends it to persons who may have had no privity of contract with the original trader, manufacturer or the person who had hired out the services. On the other hand, the definition limits the scope in the context of purchaser of goods, by excluding from its wide range those persons who buy such goods for resale or for any commercial purpose, and, thus, expressly denies them the benefits of the Act. It would, thus, be seen that the Act introduces a new concept and class of consumers, and gives them a very precise legal connotation. The word "consumer" herein becomes a legal term of art having a meaning different and distinct from the one used in loose common parlance. This is the significant development of the Act and a concept radically different to the earlier and ordinary existing laws in the field. What next merits pointed notice is that having created the concept and class of "consumers", the Act proceeds to confer certain specific rights and privileges on them. A reference to Clause (c) of Sub-section (1) of Section 2 would make manifest that a consumer is entitled to relief in the four sets of cases enumerated in Sub-clauses (i) to (iv) thereof. Such a consumer is protected against any unfair trade practice adopted by any trader, which results in loss or damages to him. The expression "unfair trade practice" has been given the same meaning as in Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969, and without adverting to the details thereof, it is axiomatic that the same casts the net of "unfair trade practice" very widely. Again a consumer is protected and provided relief against any over-charging of price by a trader, which has either been fixed under any law or displayed on the goods or any package containing them. Pointed notice, however, is called to the fact that the Act provides relief to the consumer in all cases where the goods purchased by him suffer from one or more defects. The widest amplitude is given to the word "defect" pertaining to the goods and has been defined in Clause (f) as follows:- " (f) "defect" means any fault, imperfection or short-coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or as is claimed by the trader in any manner whatsoever in relation to any goods. "

It is unnecessary to labour the obvious because it is plain that the aforesaid definition again gives a very wide range to the word "defect". Similarly, the Act confers rights on any consumer who hires services, which suffer from deficiency in any respect. Herein again, "deficiency" has been defined with equal liberality in the following terms in Clause (g) :- "(g) "deficiency" means any fault, imperfection, short-coming of inadequacy in the quality, nature and manner of performance which is required to be maintained by any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. "

Yet again, the enlargement of the concept of "service" under the Act is pointedly noticeable in Clause (o), which is in the following terms :- "(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board and lodging or both, entertainment, amusement or the purveying a news or other information but does not include the rendering of any service free of charge or under a contract of personal service. "

A bare look at the afore-quoted provisions renders it unnecessary to dilate and elaborate, and it is manifest that the Act confers fresh and valuable rights on consumers, with regard to all the matters enumerated above. These rights are conferred de hors and independent of any contract between the parties and appear to us as significantly different and distinct from those conferred by other and existing statutes.

WHAT next attracts the attention is the fact that the Act does not stop here, but proceeds to further provide remedies, which are peculiar thereto. Reference in this connection may be made to provisions of Section 14 and Clauses (a), (b), (c), and (d) of Sub-section (1) thereof. In this wide range of remedies are directions to the respondent to remove any defect, which is discovered by the tests in an appropriate laboratory, in the goods in question. Relief can be granted even to replace the goods with new goods of similar description, which should be free from any defect. Power has been given to the Forums to direct that the price be returned to the complainant, or in case of hiring of services, the charges paid by him. Lastly, a broad and general provision under which the consumer can be awarded full compensation for any loss or injury suffered by him as a result of the negligence of the opposite party. As noticed in the preamble and concretized in the provisions of the Act, it is clear that the legislature further chose to establish and provide a hierarchy of Forums for the adjudication and enforcement of the specific and special rights and remedies conferred by the Act. A three-tier hierarchy of Consumer Disputes Redressal Agencies has been created by the categoric mandate of Section 9 of the Act. At the base level is the Consumer Disputes Redressal Forum, and next in hierarchy is the Consumer Disputes Redressal Commission at the State Level, and the apex body is the National Consumer Disputes Redressal Commission for the whole of the country. Apparently, finding that the existing structure of Courts and Tribunals would be unable to settle the consumer disputes, which are a creature of the Act, a separate hierarchical system of Redressal Agencies has been mandated by the Act. A significant feature thereof is that no Court-fee or other pocedural technicalities are envisaged and a refreshing beginning is made to grant relief through these agencies without excessive expense of finical legal technicalities.

LAST but not the least, notice must be taken of Section 27, providing for penalties. Apparently, aware of the hoary adage that in India the troubles of a litigant begin after he had obtained a decree, the legislature provided a summary and efficacious enforcement of the orders of the Redressal Agencies. The aforesaid Section provides with rigour that where a trader or a person, against whom a complaintis made, fails or omits to comply with any order of the Redressal Agencies, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both. Thus a pre-emptory mandate of imprisonment or fine is an added sanction to the speedy and expeditious execution of the orders of the Redressal Agencies. It would be manifest from the above that the Act, though a concise statute consisting of not more than 27 sections, nevertheless makes exclusive provision for the newly created legal connotation and class of "consumers"; expressly confers specific and meaningful rights on that class; furnishes specific and special remedies for the enforcement of those rights; creates a hierarchical structure of Redressal Agencies therefor; and lastly commands the sanction of minimum imprisonment and fine for the pre-emptory and speedy enforcement of their orders. Once it is manifestly so, it seems somewhat well settled that where a statute creates both the rights and remedies therefor, then resort must be made to the same exclusively. The principle is hoary and is epitomised in the celebrated words of Lord Tenterden, C. J. , in Doe v. Bridges, (1831) 1 B & Ad. 847 859. "Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. "

The said principle has been cited with approval and followed unhesitatingly thereafter. Suffice it to refer to the decision of the House of Lords in the case of Barraclough v. Brown, 1987 AC 615 wherein Lord Watson briefly and pithily in terms of art observed as follows: "The rights and the remedies are given uno flatu, and the one cannot be dissociated from the other. " The aforesaid judgments bear the seal of approval, if any was necessary, . by our Final Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others, AIR 1975 SC 2238 (supra), wherein after referring to the said judgments, it has been concluded as follows:- "In other words if a statute confers a right and in the same breath provides for a remedy for enforcement of such right, the remedy provided by the statute is an exclusive one. "

THOUGH the aforesaid precedents would clinch the issue on the larger principle, in the particular context of this Act, reference must be made to Section 3 thereof, which reads as follows :- "3. Act not in derogation of any other law: - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. " Learned Counsel for the parties were at one in submitting that the aforesaid provision is somewhat unique in its nature and despite pointed questioning could not trace or refer to any identical provision extending thereto in any other statute. THOUGH authority or analogy may, thus, be lacking, the afore-quoted language is, however, plain and categoric in highlighting that, whatever rights and remedies are provided by the Act, they are expressly in addition to the existing ones. If the legislature in its wisdom has, in terms, granted additional rights and remedies to the class of consumers constituted by this Act, it is not for us by way of interpretation to cut and abridge the scope thereof. These rights and remedies are not to be blocked or hamstrung, either by the statutory arbitration provisions of an earlier law nor by any contractual arbitration agreement of the parties. To hold otherwise, would, in fact, be not only cutting down the scope and width of the Act, but in all fields, where an arbitration clause exists, it would render it completely inapplicable, and, thus, nugatory. We are, therefore, inclined to hold that in the larger light of Section 3, the remaining provisions of the Act provide additional rights, remedies, forums, and executing processes for the consumer disputes, irrespective of the arbitration clauses, either contractual or statutory. The somewhat precious recently created rights and remedies of the class of consumers are not to be cut down by construction, unless expressly mandated by a non obstante clause.

YET again, the definition of "consumer disputes" in Clause (e) of Sub-section (1) of Section 2 of the Act throws a flood of light in this context. It is in the following terms :- "(e)" Consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint. " It bears repetition that the Act for the first time creates a legal connotation and a class of "consumers" and under it a consumer dispute arises when a consumer invokes the rights and remedies under this statute in his complaint, and the opposite side denies or disputes the same. Such a consumer dispute is intrinsically distinct and different from an ordinary dispute arising out of a breach of contract or by virtue of a statutory provision. To reiterate, a consumer dispute under the Act stands apart on a pedestal from a dispute arising under contracts, torts or other statutory provisions. To be specific. Section 7-B of the Indian Telegraph Act pertains to an arbitration in a dispute concerning any telegraph line, appliance or an apparatus etc. betwixt the Telegraph Authorities or a person for whose benefit the same had been provided. A dispute in that limited context is something inherently different from what is envisaged as a "consumer dispute" under the Act. Herein the complainant makes a primal grievance about the deficiency in services hired by him and claims the rights and remedies therefor under the Act which matters are totally alien to the Indian Telegraph Act, and, consequently, to a dispute limited within its four comers. To put it in other words, Section 7-B of the Indian Telegraph Act applies and is attracted only to dispute simpliciter and has no relevance to a "consumer dispute" which is a term of art and concept created specifically by the Act and possible of adjudication only in the Redressal Agencies especially provided, which alone can apply the provisions of the said statute. Consequently, viewed from this angle as well, in the present consumer dispute, of which this commission is in session, Section 7-B aforesaid is neither attracted nor has any relevance. Lastly, one may hearken to the settled canons of interpretation that even where two constructions of a statute or a provision are possible, one must choose and tilt for the one which is in consonance with the larger scheme and purpose of a statute as against the other which may tend to exclude and negate the remedies expressly provided by the legislature. In the light of the aforesaid exhaustive discussion, one cannot but hold that the adjudication of consumer disputes is exclusively within the four comers of the beneficent provisions of the Act, and the rights, remedies, redressal forums and executing agencies are peculiarly specific and additional remedies granted by the legislature. These cannot be taken away or hedged either by contractual arbitration clauses or provisions of that nature, unless expressly so commanded by the Parliament. If the stand of the respondents with regard to Section 7-B of the Indian Telegraph Act were to be upheld, it would not merely limit, but, in fact, exclude and render nugatory all the provisions of the Act in the wide ranging fields of services provided by the Telecommunications and other departments under the Indian Telegraph Act. It deserves pointed notice that once resort to arbitration under Section 7-B is made, then by virtue of Sub-section (2) thereof the award of the Arbitrator would be conclusive between the parties and it cannot be questioned in any Court. This apart, a provision of this nature may well attract the application of the whole of the Arbitration Act itself. The parties might move to have the award made as a rule of the Court or to challenge the same on the grounds of misconduct of the Arbitrator or other grounds made available by the Arbitration Act. Once that is so, the whole of the lis, which may fundamentally be a consumer dispute, would get enmeshed in the arbitration proceedings, and the consequential litigation in the Civil Courts. This would, thus, not merely limit but render totally nugatory the provisions of this Act pertaining to all consumer disputes arising under the Indian Telegraph Act. One cannot lose sight of the fact that Section 7-B does not stand in isolation and there are innumerable other statutes where similar arbitration provisions exist. Once that is so with regard to all such statutes, the applicability of the Present Act would be virtually ousted. Apart from this, to out mind it appears that on the larger principles of arbitration, the contractual arbitration clauses would not stand on any material different legal footing. Consequently, the provisions of the Act may easily be excluded by the traders, manufacturers or persons hiring out the services by the simple introduction of an arbitration clause in the event of any dispute. It is trite learning that statutory rights and benefits expressly conferred are not to be easily ousted by the private consent or act of the parties. To hold otherwise would result in the virtual and indeed total exclusion of the beneficent provisions of this Act, wherever statutory or contractual arbitration has been brought in. This would, also render Section 3 of the Act virtually futile in this limited field and the newly created and the expressly additional remedies conferred by the Act would remain on paper alone. An interpretation which leads to such startling results, therefore, has on larger principles, to be necessarily avoided.

To conclude on the preliminary legal aspect, the answer to the question posed at the very outset is rendered in the negative and it is held that the arbitration provisions of Section 7-B of the Indian Telegraph Act are not at all a bar against seeking relief under the Act. Indeed the said section has little or no relevance to the adjudication of consumer disputes under the Act.

THE aforesaid view which we have taken, stands buttressed by the recent judgment of the Division Bench of the Allahabad High Court reported as Union of India & Others v. Mrs. S. Prakash & others, 1990 Civil Court Cases 732. Though there is no exhaustive discussion on principle, precedent and statute therein, yet the conclusion arrived at by the learned Judges is categoric and deserves notice in full:- "..In view of the fact that a subscriber is a consumer within the meaning of Consumer Protection Act, the Consumer Forum has got full jurisdiction to entertain a complaint in the matter of services rendered by the telecommunication department. THE Consumer Protection Act is a latter act and it received the assent of the President subsequently and the disputes raised by the consumers are to be adjudicated upon under the Consumer Protection Act, and the Arbitration Clause under Section 7-B of the Indian Telegraph Act will not oust the jurisdiction of the Consumer Forum and the plea that the dispute of this nature is to be raised under Section 7-B of the Indian Telegraph Act is not sustainable and the nature of (he dispute raised in this petition can be said to be outside the purview of Section 7-B of the Indian Telegraph Act and even if it would be said that such disputes, are covered by Section 7-B of the Act, It cannot be an alternative remedy for redressal of the grievances raised in this petition. THE ultimate relief which a person can get under Section 7-B of the Indian Telegraph Act, obviously cannot stand in the way of speedy and effective relief which can be granted by the Consumer Forum. "

Coming to the home-ground, notice must be taken of the judgment of the National Commission in Revision Petition No. 1 of 1989 (Union of India through General Manager, Telcom., Jaipur Telcom. District, Jaipur v. Nilesh Agarwal, Jaipur), decided on the 14th September, 1989. Therein on the identical question of Section 7-B of the Indian Telegraph Act, the Hon''ble National Commission expressed a tentative opinion, which, nevertheless, has to be given considerable weight by this Stale Commission :- "Counsel for the revision petitioner in his written submission has raised a point based on Section 7-B of the Indian Telegraph Act, which provides for arbitration, the contention being that in view of the existence of the said provision for arbitration, the remedies provided under the Consumer Protection Act cannot be invoked by an aggrieved subscriber. Having regard to the scope, object and purpose of the Act which is a special statute subsequently enacted by Parliament specifically for the creation of a machinery for granting cheap and speedy redressal to aggrieved consumers, we are prima facie of the view that there is no substance at all in this contention especially since the Redressal Forums constituted under the Act are not Civil Courts. However, we refrain from expressing any final opinion on this aspect since this ground was not raised before the District Forum in either of the preliminary objections set out in the application filed before it nor has the point been considered by the State Commission. " 33-A. Now apart from the larger legal issue decided above, it would further appear that for two very valid reasons. Section 7-B of the Indian Telegraph Act cannot possibly be a hurdle in the way of the complainants. In the present case the primal grievance raised (as would appear fully hereinafter) is with regard to the excessive billing by the respondent- Department, and a consequent demand of Rs. 1,55,381/- against them. There is the recent authoritative judgment of the Division Bench in Santokh Singh v. Divisional Engineer, Telephones, Shillong and others, AIR 1990 Gauhati 47, holding specifically that Section 7-B would not be attracted at all in the context. Since this appears to us as on all fours in the present case, it would suffice to notice the conclusion of the Division Bench in the following terms:- "31. In our opinion, Section 7-B is confined to matters specifically indicated therein and not to all disputes between the telephone department and the subscribers. Had that been the intention of the legislature it would have used a quite different language and would not have confined the scope of the Section to specific disputes, namely, "dispute concerning any telegraph line, appliance or apparatus arising between the telegraph authority and the person for whose benefit the line, appliance or apparatus, is, or has been provided." Accordingly, we hold that the dispute regarding excess billing does not fall within the ambit of Section 7-B and, as such, no remedy is available under that Section. "

YET another equally valid and strong reason as to why Section 7-B of the Indian Telegraph Act would not come into play in this context, again appears authoritatively in the judgment aforesaid. It transpires that a circular has been issued by the Government of India in the Department of Telecommunications, New Delhi, bearing number No. 13-324/Arb/88- TR dated 13th April, 1989, which is on the subject of Arbitrators in cases of excess metering. The said circular has been quoted in full in the aforesaid judgment in para 32, and after considering it in depth, the Bench has concluded as under:- "33. The aforesaid instructions made it clear that the Government of India is of the opinion that because of the overflow of such cases it is difficult for it to appoint arbitrators. It has, therefore, taken a policy decision to the effect that all requests for reference to arbitrator shall be rejected and arbitrators shall be appointed only in such cases where a subscriber approaches a Court with a request to appoint Arbitrator and Court orders for the same. We have considered the aforesaid policy decision of the Government and are of the opinion that the Government should not take such a policy decision contrary to the statutory provisions contained in Section 7-B of the Act. The proper course under the circumstances might be to take steps to delete Section 7-B itself. However, once the Department has taken a policy decision to reject all requests for reference of a dispute to arbitrator, its claim that alternative remedy is available to a subscriber under Section 7-B of the Act is itself self-contradictory. In fact, as a result of the aforesaid policy decision it has become otiose. "

Not only that the Division Bench has gone further to pass strictures against the State in relying and taking a strong stand in the Courts on Section 7-B, whilst administratively they have virtually rendered the same otiose by administrative instructions. On this additional score also, the respondents'' objections raised under Section 7-B must necessarily be rejected. Lastly in fairness to Mr. Walia, we must briefly notice his second preliminary objection based on Section 9 of the Indian Telegraph Act. this is in the terms following: "9. Government not responsible for loss or damage:-The Government shall not be responsible for any loss or damage which may occur in consequence of any telegraph officer failing in his duty with respect to the receipt, transmission or delivery of any message; and no such officer shall be responsible for any such loss or damage, unless he causes the same negligently, maliciously or fraudulently. "

The plain language of the aforesaid Section would indicate that it has indeed little or no relevance in the present case. The complainants do not even remotely allege that any Telegraph Officer has failed in his duty with respect to the receipt, transmission or delivery of any message to them or that such Officer has done so negligently, maliciously or fraudulently. In sum and substance, the case of the complainants is that the telex services hired by them were not merely deficient, but indeed virtually non-existent. The nature of this claim, to our mind, has no relativity to Sec. 9 noticed above, and the contention of Mr. Walia in this context has only to be noticed and rejected. Once the aforesaid legal hurdles are out of the way of the complainants, their case has a somewhat plain sailing on merits. Herein what deserves notice at the very outset is the admitted position that the main Telex Exchange is located at the District Headquarters at Karnal, and the facility therefrom given to the complainants at Taraori is styled as a "long distance connection". It is common ground that the distance of Taraori from the Main Exchange at Karnal is admittedly as much as 18 kilometres. Equally, it is common ground that the Telex No. 241 of the complainants was the solitary and the only telex connection extended from Karnal to the township of Taraori. That this long distance telex line in essence was inherently defective, would appear from a very candid but tell-tale averment in the very opening paragraph No. 1 of the written statement of the respondents themselves. Indeed it deserves quotation in extenso: ".....The said Telex at Taraori was working as a long distance Telex connection and the lines were passing across jungles, canal. Railway doubling work was going on and the trucks used to break the wire. It was working on overhead line media. Rest of the para is denied. "

It is plain from the above that on the respondents'' own showing, the complainants'' solitary telex connection and the line from Karnal to Taraori was infested with the inherent weaknesses enumerated aforesaid. It is no surprise therefore that the complainants have been able to establish beyond doubt that the telex line raised on such a foundation and virtually being the first experimental connection at Taraori did not succeed and, in fact, never came into working operation. Mr. Khem Chand, S. D. O. , of the respondent-Department, in his cross- examination was compelled to admit that apart from the complainants'' being the only original telex subscribers at Taraori in 1985, no other connection was given in that township for over five years. Indeed it would seem that the said line had virtually fallen in disrepair and disuse. In his statement dated 2nd July, 1990, Shri Khem Chand conceded as under :- ".We had disconnected the telex on the 27th of September, 1988. On the date aforesaid, the telex line existed from Karnal to Taraori and even now in our record it so exists, but I cannot say whether it is in operation now and may well have gone into fault because of deterioration, natural calamities, storms, rain and theft of the wires ."

Apart from the above, Sh. Khem Chand had to further admit that when originally the telex lines were laid to Taraori, single railway line between Karnal and Taraori was being doubled and due to the said doubling work, the telephone lines also got hampered and disturbed. These culminating admissions of the Department''s own witness would show that the complainants'' telex connection at Taraori began with inherent handicaps, which could not be overcome and indeed hardly functioned thereat. It is surprising that for over five years in the whole township of Taraori, well-known for its rice export trade etc., no other subscriber came forward to avail of telex services, and it would be seen that ultimately the line has virtually gone into oblivion.

APART from the foundational weaknesses in the long distance line, it would appear that the equipment provided to the complainants for working in their premises, was equally not upto the mark. It is the firm case of the complainants that the T.D. Machine (telex) supplied to them, remained faulty from the very day of its installation, and despite the change of equipment by the mechanics and technicians of the Department, the defects therein could not be rectified. In this connection, Annexures P1 and P2, addressed by the complainants to the Sub-Divisional Officer (Phones), Karnal, are indeed illuminating. Indeed the case of the complainants is that the Department''s experts and mechanics had, consequently, thrown up their hands that the equipment suffered from manufacturing defects. and it was beyond their capacity to rectify the same. This stance of the complainants is buttressed from the averment in para No. 3 of the respondents'' written statement. Therein it is averred that "as regards the condition of T. D. Machine, the same was provided after thorough checking and perfect working condition as per the stores available with the department." This averment would seem to shift the blame to the availability of the stocks in the store. The complainants are thus on a strong footing and were entitled to perfect, in any case, satisfactory working equipment, and were not to be inflicted with inherently faulty equipment, which might have been available in the local stores of the department.

WHAT next calls for notice is the last ditch attempt made by the complainants to avail of the telex service even at Karnal itself, if it could not be made operational at Taraori. Apparently, having been convinced about the failure of the Department to rectify the faults at their premises at Taraori, the complainants vide Annexure P6 dated 19th December, 1987, addressed a communication to the Divisional Engineer (Telegraphs). This indeed shows the measure of their desperation and it is pointed out therein that for the last one year the Telex was lying idle at Taraori and there seemed no other alternative but to shi ft it to Karnal to make use of it. The documents and the evidence led on behalf of the complainants does indeed show that apart from them the respondent-Department had also virtually abandoned all hope of enabling them to avail the Telex facility at Taraori itself. Shifting the same to Karnal, inevitably involved expense and inconvenience to the complainants, requiring them to hire a room in the York Hotel at Karnal, and to engage the necessary staff for operating therefrom. Nevertheless they were willing to undertake the same if, as a matter of last resort, the connection could be made operational near the main exchange at Karnal itself. However, even this attempt seems to have been foiled by the somewhat non-cooperative and obstructive attitude of the Department. Curiously, some objections were raised that the communication seeking the shifting of the Telex was not signed by a particular partner of the same, and it is common ground that despite repeated requests thereafter, for one reason or the other, the change of the connection from Taraori to Karnal could not materialise. WHATever the cause therefor, the very fact that the complainants were compelled to seek the shifting of the long distance connection to the local exchange at Karnal, is indicative of the fact that both they and the Department had abandoned all hopes for making the same work meaningfully at Taraori, and, consequently, were seeking alternatives therefore. The stand of the complainants is further buttressed by the undisputed fact that having failed on both the fronts at Taraori and Karnal, they were forced to fall back to Delhi and get a telex connection there for the purposes of their business. It is established beyond doubt from the affidavits of Mr. Ashok Gupta and also his evidence before the Commission that the complainant-firm had hired premises at 4155, 1st Floor, Naya Bazar, Delhi-6, and secured Telex Connection No. 65948, which was later changed to 78138, and yet again to 79050. This Telex was installed at Delhi on the 28th June, 1986. The complainants, inevitably, had to employ extra staff and establishment for working at those premises and to avail the services of the Telex connection. The finical objection attempted to be raised on behalf of the Department that the said connection was not in the express name of the firm Jagdamba Rice Mills, but one of its partners, appears to be a matter of hair splitting. It has been firmly averred that because of some complications involved in getting connection in the firm''s name. the same was secured in the name of its partners Sh. Ashok Gupta and the expenses therefor and the working of the new office were all chargeable tome firm''s account.

From the salient facts above, it would appear that the long distance line from Kamal to Taraori suffered from inherent weaknesses, the T. D. Machine and the other equipment supplied was defective, and could hardly be rectified, and the complainants were unable to avail of the telex facility despite all attempts for over a year at Taraori. Consequently, as a matter of last resort, an attempt was made to shift the connection to Kamal and even this did not succeed. Lastly, the complainants had to fall back to Delhi to secure a telex connection for the purposes of their business. These larger features are a clear pointer to the fact that the telex connection provided to them at Taraori was so deficient as to be virtually non-existent, and was driving the complainants from pillar to post for availing of such a facility at any cost, whatever.

SURPRISINGLY enough, it is the respondents'' documents themselves which are tell- tale in pointing out that the telex connection secured by the complainants was virtually non- functional. It is common ground that this solitary connection at Taraori was installed on the 31st October, 1985. The complainants rightly averred that in the first month and a half they were hopeful that the non-working of the service was due to teething troubles, which would in due course of time get corrected or be rectified by the Department. However, when these hopes were sorely belied, they inevitably started lodging complaints for the major failures in the telex functioning. This is more than evidenced by Annexure R 1, being the fault card for this connection, which has been placed on the record by the respondents themselves, along with the written statement. Therefrom it is manifest that on abandoning hope of rectification in due course, the complainants were driven to lodge the first complaint about its non-working on the 19th November, 1985. The fault could have been hardly corrected when barely two days thereafter, another complaint had to be lodged on the 22nd November, 1985. Similarly complaint followed complaint (duly recorded in the fault card R 1) on the 2nd December, 6th December, 20th December and 29th December, 1985. The causes & clearance of these faults, noted in R 1, again would show that parts and components had to be changed, removed or repaired etc. The New Year of 1986 brought no respite either to the complainants. In the month of February complainants were again recorded on the 12th, 15th, 18th and 19th thereof. It is unnecessary to repeat ad nauseam, the number of complaints recorded and it would perhaps suffice that as many as 52 complaints are indicated in the fault card itself. This has to be viewed in the light of the clear averments, which were not seriously controverted, that often the T. D. Machine and the Teleprinter equipment and other components of the Telex service were removed and taken away for repairs by the mechanics or technicians of the Department. Inevitably, in these periods - long or short - the complaints would not obviously proceed in recording the faults everyday. Otherwise also, it is common experience that a subscriber of the Telex and Telephone connection would normally expect automatic or normal rectification of any fault in such services. It is only when driven to gross inconvenience that subscribers would actually wish to have their complaints recorded. This is further so in the light of the fact and evidence that the main exchange was at Karnal, at a distance of 18 kilometres or more, and in the absence of other communication, the complaints may well have to be got recorded through messengers sent there. It is in evidence that after the first eight-nine months of the non-functioning of the telex service, the complainants had applied for and concentrated on securing a connection in Delhi. On behalf of the respondents a somewhat misleading attempt was sought to be made by spreading and diffusing the pressure of the initial complaints for the non-functioning of the telex over the whole of the period from the date of connection to that of its alleged disconnection in September/October, 1988. Mr. Walia, by resorting to the rule of averages raised some statistical jugglery that the average instance of complaints was not excessive. Though the learned Counsel may perhaps be complimented on his ingenuity in raising the same does not carry conviction. Herein it is not a matter of mere arithmetic averages to be struck, but the crying fact that from the date of installation and, indeed, a number of months thereafter, the complainants found the service so unsatisfactory as to make repeated complaints, whereafter they virtually lost heart and abandoned hope of getting the same rectified, and either thought of getting the connection shifted to Karnal or securing another at Delhi for their purposes. Reference in this connection has to be made to Annexure P1, complaining that they had been issued an old machine which is not working properly due to long distance. They highlight therein that even though the same was changed, it was still not working properly even after a perforated attachment facility had been provided. It was clearly stated that in a week the working average was only a day or two, and their export business was being doubly hurt by the non-functioning of the telex. Annexure P2 again pin-points that the equipment had been taken away for the last ten days by the mechanics for repair and still had not been refixed and the line had been out of order all that period. Annexure P4 is again a cry in the wilderness to the highest authority namely, the Hon''ble Minister of Communications, pinpointing that the Telex was invariably out of order and did not work more than two or three days in a month. It is highlighted therein that the components are taken for repair repeatedly, with the result that the telex remains virtually non-functional for long intervals. All the aforesaid documents are at a time and stage when the complainants were not contemplating on entering the arena of litigation and appear to be genuine requests for rectification of the services which were hired, and which, in fact, was doing them sizeable disservice. In the last resort, when the complainants prayed for the shifting of the Telex to Karnal, they highlighted that the same was lying idle for the last more than one year, leaving them no alternative but to abandon the hope of its functioning at Taraori. As has been noticed earlier, this hope of shirting to Karnal was also believed. Again, it has to be borne in mind that after all Annexure R2 is the respondents'' own document, recording only those complaints, which they may have chosen to. Without focusing on the finical attempt to averagise the complaints, it appears to us that Annexure R1 - The Fault Card - provides substantial corroboration to the complainants'' case of the dismal functioning of the Telex connection.

FURTHER corroboration to the complainants'' case is then provided by the respondents'' own document R2, being the subscribers'' Record Card. It has not been denied on behalf of the respondents that the complainant-firm is one of considerable standing at Taraori, carrying on a sizeable business of rice export, and the primal object of the Telex was not only to have long distance communication within the country, but also with their clients abroad. It is the firm stand of the complainants, both in their affidavits and on oath before the Commission, that not a single call from Taraori to a foreign country matured from this connection throughout the period from its installation to its alleged date of disconnection. Similarly it is the firm case that not a single call from abroad was received on this Telex. This seems to be borne out both from the record and even the evidence of the respondents'' witness Sh. Khem Chand. The latter had to fairly concede that he could not say from the record that whether any telex was sent from Taraori to abroad or any telex call was received from abroad at Taraori. Indeed a look at R2, in the larger perspective would show that far from calls abroad, even long distance calls within the country seems to be rare exceptions and the paltry bills raised for most of the months were merely for local calls. Even this has to be viewed in the context of the firm stand of the complainants that because of the persistently frequent break-down of the telex, innumerable local calls were made by the mechanics and technicians of the respondent-Department in checking its functioning, and with regard to repairs and materials necessary in connection therewith. It is unnecessary to mention each one of the innumerable entries in R2, but therefrom it would appear that more often than not, the total billed amount for a month was in a single digit amount. The extreme example is of the months of October, 1987 and June 1988, when the total bill for the whole of these months was not more than rupees six in all. Similarly, for a number of other months the bills were curiously for a paltry amount of Rs. 10, 12, 30, 32, 34, 36 etc. In the remaining months, barring those where rental and other incidental charges also got added in, the figure does not go beyond a three digit amount. It would seem passing strange that a full operational telex of a rice exporting firm of standing would raise the charges for the whole of the month for amounts varying from rupees six to rupees fifty, and in other cases not crossing even the three figure mark. The entries in the Subscribers'' Record Card (R2), viewed in the larger context of the evidence, only buttress the case of the complainants that this connection for large spans of time was non-functional and provided a virtually non-existent, or, in any case, a wholly deficient service, so far as communications or receipt of messages from abroad or long distance communication within the country was concerned. The inference seems inescapable that even the respondents'' own documents from the record tend to support the complainants'' case, and belie the version now taken up by them. One of the major bones of contention between the parties is with regard to the alleged manner and mode and the time of the disconnection of the telex service. Herein the clear-cut case of the complainants is that because of the inability of the respondent- Department to maintain the long telex line from Karnal to Taraori, and to provide a perfect equipment for its working, it had become virtually non-functional and later totally nonexistent. According to them, after waiting for more than a year from its total break-down, the complainants were compelled to write Annexure P 9 dated 19th December, 1988 inter alia, to the Director, Telecommunications, in the following terms: - "Since this telex has become useless to us. it is requested that the same may be removed from our premises and amount of Rs. 24,671/- deposited by us, as per detail given above, may please be refunded to us within a fortnight of the issue of this letter. " It was further held out in this communication that if the aforesaid amount was not paid within fifteen days, the complainants would be compelled to knock the doors of the Courts of law at the respondents'' risk and responsibility. This claim and the demand for refund would seems to have roused the respondent-Department from its slumber, and, according to the complainants, it was thereafter that as a counterblast, they took up the stand that there was non-payment of bills and for that reason the telex had been disconnected. This was followed up by, ultimately, raising a demand of Rs. 1,55,381/- vide Annexure P12 dated 20th January, 1990. On the other hand, the firm stand taken on behalf of the Department now is that the telex was disconnected because of the non-payment of two bills for the sums of Rs. 316/- and Rs. 16,901/- for the months of February and April, 1988, respectively. Since the blame therefor was sought to be laid at the complainants'' door, a claim is raised for the rent of the remaining 7 years of the guaranteed period of hiring on the basis of its ten years.

WE are clearly of the view that the aforesaid stand of the respondents is untenable and cannot possibly be sustained on the record. What first meets the eye in this context is the fact that in the detailed written statement of the respondents, it was not specifically pleaded that there was a failure to pay the bills of February and April, 1988, nor the precise amounts thereof, and that this indeed led to the subsequent disconnection. The discrepant and conflicting date of the disconnection, set up on behalf of the Department, is somewhat curious. In para 10 of the written statement the categoric date mentioned is of 27th October, 1988. However, in the primal evidence of the affidavit of Sh. Khem Chand, S. D. O. of the respondent-Department, in paras 12 and 21 thereof, it was stated that the telex was disconnected for the non-payment of bills a month earlier on 27th September, 1988. It would, thus, be clear that the pleadings and evidence of the respondents in this connection even on the material date of disconnection is at logger heads.

THE aforesaid fact by itself may perhaps be not conclusive, but when read with the firm stand of the complainants that the alleged bills of February and April, 1988 have been duly paid in time, the same lends great credence to the version projected by the complainants. In this context it is worth recalling that the complainants had always been somewhat meticulous with regard to the payment of their outstanding for the telex connection. Apparently, because of its non-working, no bills were being sent and on their own vide Annexure P 3 dated 19th November, 1986, the complainants wrote to the Department that they were not getting any bills for the last six months and it should arrange to send them immediately for the necessary payment thereof. Another reminder of identical nature was then sent on the 10th December, 1986 vide Annexure P 5. THE more significant one in this context is Annexure P 20 dated 13th February, 1989, wherein also a similar request for forwarding any outstanding bills for payment was particularly made. In his cross-examination dated the 2nd July, 1990 Shri Khem Chand, S. D. O. of the respondent-Department admitted the receipt of all these letters, but stated that no reply thereto was sent, including the last one, because the bills were sent in due course already. It would, thus, appear that even till after February 1989 the respondents had, as yet, not claim of any outstanding bills against the complainants. This runs patently counter to the stand that, in fact, the bills of February and April, 1988, had remained unpaid and were outstanding, the telex had been disconnected for that reason. In the aforesaid context the explicit averment of the respondents in the written statement in para 7 thereof deserves particular notice: - "7. That para No. 7 of the complaint is also wrong, incorrect, and hence denied. All the bills were issued well in time and the payment of those bills was made by the complainant consumer as per Annexure R 2."

In the light of the above averment, the entries in Annexure R 2 assume great significance. It is sought to be established on behalf of the complainants that the two bills of February and April, 1988, which formed the bed-rock of the respondents case of their non-payment, and consequent disconnection, were not only paid but are indeed so recorded in Annexure R 2. Reference to the penultimate entries of Annexure R 2 on page 1 thereof would expressly show the bills issued and the corresponding entries of bills paid. Therefrom it is evident that the bill of February 1988 for the precise amount of Rs. 316/- has been expressly shown as duly paid by the corresponding entry in the column of "Bills paid". Similarly, i.e. bills of Rs. 16,901/- for April 1988 is shown to have been paid in two corresponding entries. The first one evidences the sum of Rs. 8,318/- and the second one (being the last entry in this context) of the sum of Rs. 8,583/-. The amounts precisely come to the billed sum of Rs. 16,901/-. Learned Counsel for the complainants was, thus, on strong footing, in contending that on the respondents'' own averments in the written statement and on the basis of the entries in their own document (R 2), the two bills for the months of February and April, 1988 have been duly shown as paid in their own records.

Lastly what deserves highlighting in this context is the fact that though the alleged default of non-payment was for the bills of February and April, 1988, no reminder or demand for payment thereof was apparently made. This has not even been suggested, far from being sought to be proved or established by the respondents. Specifically no notice that the respondent-Department was intending to disconnect the telex service because of the alleged non-payment, was ever sent. Detailed reference to the requirement of notice would be made hereinafter, but herein all that pointedly comes to the mind is that despite the complainants'' communication of 13th February, 1989 vide Annexure P 20, asking for any outstanding bills, the respondents did not even at this stage choose to tell them of the alleged outstanding amounts against them (complainants). Even though in these proceedings this issue became a major point of contention, no copies of the bills for February and April, 1988 were sought to be produced or exhibited. Surprisingly, for the succeeding six months - May to October, 1988 - no further bills seems to have been either sent or claimed etc. What is perhaps more significant here is that even nearly two years thereafter, when Annexure P 12 dated 20th of January, 1990 raised the concluding demand of Rs. 1,55,381/-, it did not make the remotest mention of the outstanding bills of Rs. 316/- and Rs. 16,901/-, which had allegedly remained unpaid.

IN the light of the aforesaid factors, the complainants are, thus, not far wrong in their firm stand that apparently to cover up the virtual break down of the telex connection, the blame therefor was sought to be laid at their door by the respondents on the unsure and untenable ground of disconnection for the alleged non-payment of outstanding bills. Mr. Sidhu, learned Counsel for the complainants, had then forcefully contended that the unilateral disconnection of the telex by the respondents without any notice was violative both of the contractual agreement and the express departmental rules. Consequently, it was submitted that once it is found that the disconnection was unauthorised, the same cannot possibly be labelled as due possibly to the default of the complainants and no adverse consequences can attach therefrom.

FOR the reason which appear hereinafter, we are inclined to hold that the aforesaid contention and stand of the learned Counsel is impeccable. To appreciate the submissions in its various facts, reference may first be made to Clause 7 of the agreement executed between the complainants and the respondent-Department vide Annexure R 8, which is not in the least in dispute. The relevant part thereof provided as follows:- "7. It shall be lawful for the Divisional Engineer to disconnect the telephone installation where he is satisfied that it is necessary to do so after giving the subscriber a notice in writing for a period which shall not exceed seven days except in emergent cases when the telephone installation or any part thereof may at the discretion of the Divisional Engineer be disconnected with or without notice ..." Now it is common ground here that the present case was not of any emergency, which could even remotely warrant the exercise of discretion of the Divisional Engineer to disconnect the telex without notice. That being so, the applicable part of the clause mandated the giving of a notice in writing for not less than seven days and that also in the event of Divisional Engineer being satisfied that it is necessary to do so. Admittedly, no notice, whatsoever, far from the same being in writing, or specifying the requisite period, was given in the present case. The disconnection of the telex by the respondent-Department was, thus, frontaly in violation of the agreement. Once that is so, the disconnection cannot possibly be described as due to the default of the subscriber (the complainants) and would become a high-handed action the part of the respondent-Department. There is no option but to conclude that the admitted failure to give notice in this context would render the disconnection wholly unauthorised and flagrantly in violation of the terms of the mutual agreement. Consequently, the complainants cannot, in any way, be prejudicially affected by the same. Now apart from the agreement, reference may be made to the departmental rules on the point. It may be pointedly noticed at the very outset that these rules, which refer to telephone connections, are mutatis mutandis, equally applicable to the telex connections as well. This was indeed common ground between the parties. The respondents'' counsel very graciously made available to us the recent authoritative publication "Swamy''s Treatise on Telephone Rules". Therein at page 54 Chapter 12 deals with disconnection of telephones or telex service. In passing, it may be mentioned that a disconnection can be only made for specified reasons, and even when these are satisfied, it is expressly provided as follows: "Notice to be given before disconnection:- Whenever the authorities decide to disconnect a telephone of a subscriber, they have to give the subscriber the notice of disconnection, of a period not less than seven days. In case of disconnection due to non-payment of telephone bills, telephonic reminders will be given to subscriber informing them about the pending bills; this will be done well in time so that each subscriber gets a week''s time to pay the outstanding bills. "

A plain reading of the aforesaid would leave no manner of doubt that wherever the authorities intend to disconnect for a valid cause, they have still to give reasonable notice of not less than seven days. In addition thereto (not in derogation of the duty to give notice in writing) reminders are also envisaged to the subscriber. It is the undisputed position here that no notice, whatsoever, in compliance with the aforesaid rules, was ever given, far from there being any reminders well in time, to enable the subscriber (the complainants) to pay the outstanding bills. It must, therefore, be held that contract or agreement apart, the disconnection in the present case ran flagrantly counter to the clear and categoric departmental rules on the point. The matter does not seem to end here, but seems to be equally well governed by the recent precedent in Santokh Singh v. Divisional Engineer, Telephones, Shillong, AIR 1990 Gauhati 47. Therein, on larger principle also, the Division Bench observed as follows:- ".Otherwise also, it is well settled law of the land that unless any bill and/or notice and/or demand is served on the person concerned, he cannot be deemed to be in default for non-payment of such bill or non-performance of anything contemplated by such notice."

Apart from the above, the Division Bench specifically addressed itself to the twin question as to when a subscriber can be said to have defaulted in the payment of telephone bills, so as to empower the Department to disconnect his telephone, & whether such a connection can be disconnected without serving any notice on the subscriber, informing him of the alleged default or proposed disconnection. In answering the said questions, their Lordships referred specifically to Rules 439, 442 and 443 of the Indian Telegraph Rules, and after an exhaustive discussion and interpretation thereof, it was categorically held by them as follows:- "25.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. We. therefore, hold as follows: (1) Before exercising the drastic power of disconnection of telephone the authority concerned must ensure that the bill and/or notice is served on a subscriber and the period of 15 days thereafter as povided in the rule has expired and the subscriber has failed to make the payment within such period. (2) If it is so satisfied, then under the scheme of the rules, it has to give a notice to the subscriber about the alleged non-payment and the proposed disconnection thereby giving opportunity to put forward his case, if any, against proposed action."

Applying the aforesaid ratio of the Division Bench, it would seem that in the present case both the propositions laid by them stand flagrantly violated. It is not even the case of the respondents that the alleged bills of February and April 1988, were duly served on the complainants in the manner required by law, or, that it was thereafter that they failed to make payment within fifteen days of such ensured service. Herein, as noticed earlier, it seems to be in grave doubt whether any bills were sent at all, far from these being duly served. Equally it is clear as a day that no notice was sent to the complainants of any proposed disconnection in order to give them an opportunity to put forward their case. On the principle laid down in Santokh Singh''s case (supra), the disconnection was obviously unauthorised.

CONCLUDING on this aspect, it has to be held that the alleged disconnection of the telex was contrary to the contractual agreement, violative of the departmental rules on the point and patently counter to the principle laid down in the afore-quoted precedent.

NOW the core of the major financial demand raised against the complainants vide Annexure P12 for the rent and guarantee period, with effect from 1st April, 1988 to 31st October, 1995, at the rate of Rs. 18,981/- per annum, amounting to Rs. 1,43,939/- is sought to be supported on the ground that the original guarantee period was for ten years and the complainants were bound to pay for the remaining period, despite the disconnection of the telex in 1988. This aspect is also covered by the Memorandum of Agreement between the parties (R8), vide para 8 thereof, the relevant part whereof is in the following terms :- "8. If the telephone installation hereunder described is given up or this agreement is terminated owing to default of the subscriber within the period mentioned in Clause 1 hereof, then in such a case the sum due for the unexpired portion of the period shall immediately become payable to the Govt. "

A plain reading of the aforesaid clause would show that it would come into play where the installation has been given up by the subscriber. That indeed is nobody''s case. In the alternative it comes into play where the agreement has first been terminated and such termination was owing to the default of the subscriber. It is unnecessary to tread the same ground again because we have held above in no uncertain terms that herein, far from being any default on the part of the complainants, the boot seems to be on the other leg. Even of greater significance is the fact that the aforesaid agreement between the parties, admittedly, as yet, has not been terminated. Mr. Walia was fair enough to concede that far from any formal termination or cancellation of the agreement duly executed between the parties vide R 8, there has not even been, as yet, any move initiated for doing so. Indeed it was the stand of the respondent-Department that the agreement subsists, and if the complainants make amends, and pay the demands raised against them, they would still consider reconnection of the telex. This being so, the claim of Rs. 1,43,939/- cannot possibly be supported or rested on the memorandum of agreement between the parties. In fairness to Mr. Walia we must notice that, finding himself on slippery ground as regards the terms of the agreement, he attempted to support the same on para 487-D of the Posts & Telegraphs manual, Volume X. This reads as under:- "487-D. In the case of guaranteed Telephone and Telegraph Lines and Wireless Stations surrendered before the Telegraph Lines and Wireless Stations surrendered before the expiry of the period of guarantee the charges calculated at the rates prescribed in paragraph 487-C or the full rent for the unexpired period of guarantee, whichever is less should be recovered from the guarantor."

We are first in somewhat doubt about the enforceability of the aforesaid paras of the Posts & Telegraphs Manual, and the statutory weight, if any at all, attachable to them. However, without entering into that aspect, it would seem that in the light of the language employed in the afore-quoted para, the contention of Mr. Walia has only to be noticed and rejected. It is plain that the present case is not remotely the one where there has been any voluntary surrender of the connection by the subscriber. Admittedly, it is neither the case of the complainants, nor the respondents, that at any stage the complainants had come forward to voluntarily surrender this telex connection. Indeed, their demand throughout has been to make the same truly functional at any place (e.g. at Karnal even) or even to give them another connection which was capable of satisfactory operation. Yet again, it would seem that para 487-D is related to and has primal relevance to the previous para 487-C which pertains to temporary telegraph offices and temporary telephone lines, which, admittedly, is not the case here. The last ditch attempt of Mr. Walia to rely on para 487-D, therefore, must be rejected.

Apart from the above, we have already held earlier that for a variety of valid reasons the unilateral disconnection of the telex by the respondent-Department was unauthorised. That being so, the necessary result is that there was no default on the part of the subscriber in this connection. The respondent-Department by their own arbitrary and hasty action of disconnecting the telex without notice cannot possibly shift the blame of breaching the agreement between the parties to the shoulders of the complainants. Inevitably, once it is found that the disconnection was unwarranted, then no claim for the rent of the unexpired period can possibly arise against the complainants.

IN the light of the three-fold factors above, it must be held that neither on the basis of the Memorandum of Agreement between the parties, nor on any departmental provision, can the massive demand of Rs. 1,43,939/- for the alleged unexpired period of the telex connection be sustained. Here we come to close this somewhat exhaustive order, it seems apt and necessary to highlight the basic findings apart from the legal issues. Salient factual factors herein indicate that the long distance telex line at Taraori being 18 kilometres from the main Karnal Exchange, from which the solitary connection was given to the complainants, could hardly be made operational by the respondent-Department from its inception to its disconnection. It would appear that not a single call from this telex connection could mature to any foreign country, nor was any received from abroad. The same is even true of any long distance calls within the country as well. The respondents own documents placed on the record lend substantial and sometimes conclusive support to the complainants'' case. There are positive indications that the complainants repeatedly requested for the issuance of telex bills and were meticulous in the payments thereof. All the bills submitted by the respondent-Department were duly paid and there was no default on this score. In any case, the respondents have been wholly unable to show even the service of the bills which are alleged to have not been paid, and, consequently, no question of any refusal to pay or repudiation thereof does arise. The suggested date of the unilateral disconnection of the telex by the Department is inherently discrepant. In any event, the said disconnection was unauthorised as being wholly without notice, and, contrary to the contractual and statutory provisions. Lastly, the attempt to raise a demand of rent for the alleged unexpired portion of more than 7 years is unwarranted on the facts.

IN the light of the aforesaid findings, one must hold that the allegations contained in the complaint against the respondent-Department are substantially proved. The telex service provided to them from the very inception suffered from such grave deficiency therein as to be virtually non-operational. Coming now to the relief to be granted, the complainants have sought a sum of Rs. 7 lacs as compensation for loss and injury for being deprived of the essential telex services required for running their business. It would seem that herein the complainants have not only opened their mouth too wide, but equally failed to either precisely plead the loss suffered by them in the complaint itself, or to establish the same through the affidavits and documents placed on the record. Barring the bald assertion in the complaint, which is merely repeated in the affidavits of Sh. Satpal Gupta and Shri Ashok Kumar Gupta, there is nothing else to indicate that they have suffered a loss of this magnitude. In the whole of the evidence led by the complainants, including their documents, one finds little or nothing to connect any financial loss with the non-working of the telex connection. The solitary fact that in May 1986 the complainants also set up another office in Delhi, for which they secured a telex connection in the name of Shri Ashok Gupta, is itself not a matter which can be deemed as any grave loss. Indeed this may well be a further expansion of their business to have a branch in the Capital, which might, in fact, be a profitable than a losing proposition. We may notice that though not formally conceding in terms, the learned Counsel for the complainants himself was, somewhat, at a loss to find any meaningful foundation for the claim of damages to the tune of Rs. 7 lacs. The same must, consequently, be rejected. For detailed reasons, we have already held that the major financial demand of Rs. 1,43,939/- vide Annexure P 12, being the rent for the unexpired period with effect from 1st April, 1988 to 31st October. 1995, at the rate of Rs. 18,981/- per annum, is plainly unsustainable. The same holds true for the balance of Rs. 11,442/- in the total demand of Rs. 1,55,381/-, claimed in the bill aforesaid. Shri Khem Chand, S.D.O., had only baldly asserted that the enhanced annual rent was raised from Rs. 14,371/- to Rs. 17,481/- on the objection of the audit party. No other warrant for this claim could be shown. The situation appears to be the same with regard to the other items in the said bill. We, therefore, hold that the total demand of Rs. 1,55,381/- vide Annexure P 12 is wholly unsustainable and the same is hereby set aside, and the respondent department is restrained from recovering the same.

LASTLY it is more or less established on the record that despite the passage of five years from the original installation of the telex in October, 1985, the same remained virtually non-functional till the end. On the evidence of Shri Khem Chand, S.D.O. of the respondent- Department, it would appear that the telex line from Karnal to Taraori has now fallen into desuetude. There appears to be little and, indeed, no hope of the same functioning effectively. The complainants'' demand for the return of security and other amounts paid at the initial stage of the installation is, thus, justified. It is, consequently, directed that the security and any other refundable amounts in regard to the said telex be refunded to the complainants without any delay.

IN the end, we direct the respondent-Department to execute the operative parts of the order within one month from today, failing which compliance would be enforced under the penal provisions of Section 27 of the Act. In the result, the complaint is partly allowed to the extend indicated above. Complaint allowed.