RUI Coelho vs Telecommunication Divisional Manager and Others

G.D. Kamat, J.—These petitions came on board on some occasions and regard being had to arguments, by the order dated 8th July, the Arbitrator Respondent No. 3 appointed by the Union of India u/s 7-B(1) of the Indian Telegraphs Act, was directed to produce record of proceedings conducted by him and which culminated in awards dated 9th 1992, in all these cases within 4 weeks from the date thereof. Though the Arbitrator was served on or around 16th July, 1992, until this date no records of proceedings in all these cases have been produced.

Affidavit has been filed on behalf of the Respondent Telecom Department in writ Petition No. 221 of 1992 and an application in all other matters saying that whatever statements made in the said affidavit be taken as if affidavit opposing the petitions is filed in the remaining writ petitions. We find no difficulty in adopting this course as urged by the learned Additional Standing Counsel. Accordingly, rule is made in all these petitions and by consent to be heard forthwith by clubbing them.

It is necessary to well on facts in each of the petitions and suffice to mention that all the writ petitions relate to excessive telephone bills during some period or the other. The second" feature of the matters is that each of the Petitioners were driven to some Court or the other to obtain an order to the Respondent Nos. 1 and 2 to appoint an Arbitrator u/s 7-B(1) of the Indian Telegraphs Act.

It transpires that in this group of matters Shri Rajesh Gupta, TDM, Jalgaon was appointed as the Arbitrator to adjudicate upon the disputes raised by the Petitioners regarding excessive billing. It is reflected in the affidavit that the arbitration proceedings in 8 matters were earlier fixed between the period from 25th April 1992 to 5th May 1992. As these dates were not convenient to the counsel appearing for the parties (petitioners) the arbitration proceedings came to be fixed on 7th and 8th May 1992. Undoubtedly the proceedings were conducted at Panaji, Goa and it is equally common ground that Advocate Shri K.U. Aras represented the various Petitioners before the Arbitrator on these two dates.

Most of the petitions were filed around 20th March 1992 complaining that the proceedings were conducted in a very biased and slip shod manner and no opportunity worth the name was given to the Petitioners. In all 8 matters were disposed of on these two days in a matter of 4 hours. Undoubtedly until the petitions were instituted, the Petitioners were not even aware of the Awards dated 9th April 1992 made in each of the above petitions. When the petitions came up on board after summer vacations, on behalf of the Petitioners their learned Counsel made a grievance regarding the conduct of the proceedings and in the meantime sought an amendment incorporating the fact that an Award had been rendered by the Arbitrator on 9th May 1992 itself and communicated later on. Needless to say that such amendment was allowed and copy of the Award placed on record in each of the petitions.

A word about the Order made by this Court on 8th July 1992. It was brought to the notice of this Court that apart from notices not being directly addressed to the parties regarding the dates of the proceedings not even notes of the proceedings were maintained by the Arbitrator: that the Petitioners were unable to know as to what material was being relied upon in order to render the Award against them and so on and so forth. This being a statutory arbitration and having regard to the fact that a subscriber has in the first place no say in the matter of choice of an Arbitrator and in the second place that the Arbitrator appointed is always a Department''s Officer, the Court was forced to make an Order on 8th July 1992 directing the Arbitrator to place on record the notes of the proceedings conducted by him on 7th and 8th May 1992. As mentioned earlier, despite service, nothing has been produced on record by the Arbitrator.

It is indeed true that the learned Additional Standing Counsel for the Department took us through the affidavit-in-reply filed where in several statements made by the Petitioners in the petitions have been denied. In addition it was pointed out that though no notes of conduct of proceedings were maintained by the Arbitrator each and every Award made by the Arbitrator speaks for itself as to what material the Arbitrator has relied upon. This being so and the Awards being speaking Awards, it was contended by Shri Sharma that nothing can be faulted with the Awards made merely because there is absence of notes. He further mentioned that there can obviously be no grievance about the speed at which the 8 cases regarding excessive billing were completed on 7th and 8th May, 1992. He next made to bear that out of 8 cases, two parties M/s Keni Bros. and M/s Sanjiv Tarcar were given certain reliefs in the excessive billing. Obviously this has been pointed out to show, and as contended by Shri Sharma, that the Arbitrator has done justice to cases where it deserved and merely because the Petitioners did not get any reliefs or the Awards went against them, by itself is no ground to entertain these petitions and much less on the ground that the Arbitrator has not maintained the notes of the conduct of proceedings.

Shri Sharma then asserted that inasmuch as neither the CPC nor the Evidence Act applies to the arbitration proceedings and so long as neither the statute nor the rules made therein require the Arbitrator to maintain the roznama or notes of the conduct of proceedings, nothing can be faulted with and there can be no breach of any statute or Rules. Shri Sharma however conceded on a query from the Court that several other Arbitrator appointed u/s 7-B(1) of the Act do maintain records or do keep notings of the proceedings from day to day.

We have gone through the petitions and it is clear that even before the knowledge of the Awards, the Petitioners in fact made complaints against the conduct of the arbitration proceedings as also denial of fair opportunity before the Arbitrator.

It must be borne in mind that we have come across a large number of petitions where we find that Department hardly makes any reference of the dispute for statutory arbitration u/s 7-B(1) of the Indian Telegraphs Act and parties are driven to the Courts to obtain such orders. That apart, as the statute itself stands, it is clear that there is no chance or, for that matter, a say to the party in the matter of choice of an Arbitrator and what is not less important is that finally one of the Officers of the Department is that it is not open to the Department to appoint its own Officer as an Arbitrator or that the party must have a say, for we are aware that such a thing is beyond challenge, but, nevertheless the fact remains that once the Officer has been appointed to be the Arbitrator to adjudicate upon the dispute between a telephone subscriber and the Department, fairness demands that the Arbitrator has not only to be fair bu,t appear to be so to both the parties. Such fairness has to be judged by the speed with which the Arbitrator carries on, receives the evidence and applies his mind to the disputes. It cannot be ignored that the subscribers are helpless and can hardly be expected to lead evidence in rebuttal. It is in this context that fairness creeps in with greater force.

We must record at this stage itself that we are not impressed by the argument taken by Shri Aras that the Petitioners wanted to lead the evidence of their technical expert but the same was denied. It must be borne in mind that apart from leading evidence, the Petitioners must have a full opportunity to scan the Department''s evidence, Indeed it is true that in the affidavit-in-reply by Shri Adbul Razak, Accounts Officer on behalf of the Respondents, it has been pointed out that after the initial complaint/dispute raised the telephone was out on a monitor and Multi-line Operation Equipment reports were taken and duly produced before the Arbitrator. This was obviously with a view to find out the use of telephone viz, nature of calls, short distance, long distance and otherwise frequency. Obviously this event comes on the aftermath of the raising of the dispute and need not be safe guide to resolve a disputed bill.

One glaring feature that strikes us is that once an Arbitrator was appointed not even notices are addressed to the parties. Admittedly the Arbitrator is from Jalgaon. He tried to reach the parties through the office of the TDM, Goa. We are told that some officer of the TDM Office, Panaji, will telephone the parties and inform them the date fixed by the Arbitrator. No communication in writing is sent to the parties.

This apart, the Court will have to draw an adverse inference that no notes of the conduct of arbitration proceedings are maintained by the Arbitrator, for had it been so, the Arbitrator would have placed on record the said notes as directed by the order of this Court dated 8th July 1992. In our opinion there is no alternative but to draw such adverse inference. In reality no note of the proceedings were maintained by the Arbitrator.

Shri Sharma, learned Additional Standing Counsel, indeed urged that the Arbitrator was not bound to maintain the records of the proceedings and in any case not beyond the time he has rendered Awards. We have already made mention earlier that to a Court''s query Shri Sharma told us that some of the Arbitrators do maintain the notes of the proceedings ordinarily called as roznama. We do not want to go any further into details of the matter.

We have seen the copies of the Awards in all these cases, They are nearly stereotyped. Besides, the fact remains, that 8 cases including the 6 cases of the present Petitioners were dealt by the Arbitrator on 7th and 8th May 1992 within a span of 4 hours. The fact that he has rendered the Awards all dated 9th May, 1992 by themselves speak volumes on the matter as to how the arbitration proceedings were conducted, and that too, without maintaining any record. Without going into the question of the legal requirement of such notes, we may mention that it is desirable that the Arbitrators should maintain such records so as to avoid allegations against them as has been done in the present petitions.

For all these reasons, we, therefore, see no other choice for this Court but to quash each of the Awards dated 9th May, 1992 rendered in each of the petitions. We further direct the Union of India Respondent No. 2 to appoint a new Arbitrator in each of these cases to arbitrate on the disputes which were earlier referred to Shri Rajesh Gupta, TDM, Jalgaon and the Arbitrator to be appointed to render his awards within 3 months from the date of appointment. To the extent indicated rule is made absolute in each of these petitions.