Shri G.K. Chugani vs Food Corporation of India

Valmiki J Mehta, J.—By means of these two first appeals u/s 96 of the Code of Civil Procedure, 1908 challenge is laid to the impugned judgment and decree dated 31.8.2000 whereby the suit of the Appellant for injunction seeking restraint against his employer/Food Corporation of India (FCI) from claiming payment of Rs. 73,124.65p and which payment was claimed by the employer on the ground of excess billing beyond permissible limit on the residential telephone of the Appellant. By the same impugned judgment and decree, the suit of FCI was decreed against the Appellant for the amount of Rs. 73,124.65 being charges for calls made in excess of 1000 calls which were permissible on the residential telephone.

The facts are that the Appellant was an employee of FCI. As an employee of FCI, he was allowed a maximum of 1000 free calls per quarter besides the free calls permitted by the telephone department from his residential telephone, and the subscriber to which telephone was the employer/FCI. For the period from March, 1978 to June, 1990, the bills for the telephone received were much in excess of the limit permissible and therefore, FCI on scrutiny demanded payment for the excess calls made, and which excess calls appeared to be towards STD. The Appellant''s case before the trial court and before this Court also is that there was some malfunctioning in the exchange of MTNL and that he had not made the extra calls. It was therefore prayed that the suit of FCI for recovery be dismissed and the Appellant''s suit for injunction be decreed.

I have gone through the impugned judgment and decree. The impugned judgment and decree arrives at the following conclusions:

(i) Calls were in fact made beyond the permissible limit.

(ii) As per the circular issued by FCI, in case there were calls beyond the permissible limit, a register ought to have been maintained by the Appellant to justify the excess calls made, and admittedly, the Appellant has failed to prove before the trial court that any such register of excess calls having been validly made for official purposes was maintained.

(iii) When the Appellant complained to FCI, FCI took up the matter with MTNL and MTNL after conducting an enquiry replied back to FCI that there was no technical malfunction or deficiency and therefore the bills by the MTNL were validly raised. The Appellant never requested his employer/FCI to initiate arbitration proceedings against MTNL u/s 7B of the Indian Telegraph Act, 1885.

(iv) It was found that the Appellant was sitting late in the office during this entire period, and, even so far as his office telephone was concerned, there was excessive billing in this relevant period itself.

To the above, I may only add that as per the Appellant''s own case his daughter got married in February, 1980.

I do not find any illegality or perversity in the impugned judgment and decree because of the aforesaid conclusions of the trial court, which are given by me above, are clearly well established on the record. Once there are calls beyond the permissible limit, it was incumbent upon the Appellant to maintain a register and he failed to prove that he did in fact maintain such a register showing that the calls were official. Also, if the Appellant was really sitting late in his office hours very frequently during this period, there would be no reason for excess calls even from the residential telephone. Obviously, the family members of the Appellant or may be even the Appellant in early morning hours or on holidays must have been making STD calls from the telephone. Of course, it appears that the daughter of the Appellant was of a marriageable age in the relevant period and the Appellant, as a responsible father, could have been making personal calls however, this cannot mean that such call charges can be shifted on to the employer.

Learned Counsel for the Appellant firstly sought to argue that the suit was barred by time. However, I may note that on this aspect, preliminary issue No. 6 was framed and which was decided against the Appellant by the judgment 1.8.1987 of the trial court and no appeal was filed by the Appellant thereto and which judgment therefore achieved finality, and thus the Appellant cannot therefore raise this issue now.

So far as the argument that the suit is barred by Section 7-B of the Telegraph Act, the argument is merely to be stated to be rejected because the provision of Section 7-B applies to a dispute between the subscriber and the telephone company. Here, the dispute is not between the subscriber which was the employer/FCI and the telephone company but the dispute is between the subscriber and its employee with respect to the excessive calls made beyond the permissible limits.

The next contention of the learned Counsel for the Appellant was that his employer/FCI failed to take up the issue with MTNL. Once again, this contention is misconceived because the trial court has arrived at a finding that FCI did take up the issue with MTNL and after conducting an enquiry, MTNL reverted back to say that there was no misuse of the telephone line and nor was there any technical flaw resulting in any excess billing.

Finally, the counsel for the Appellant sought to argue that Respondent/FCI is estopped from claiming the excessive calls charges. I have in fact completely failed to understand this argument because once the calls are above the permissible limit and the Appellant did not maintain any register justifying the calls as officials, the Appellant was bound to pay for the excess calls made.

In view of the above, I do not find any error in the impugned judgment and decree. The appeals are therefore dismissed leaving the parties to bear their own costs. Trial court record be sent back.