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2004 DIGILAW 314 (DEL)

M. L. VIJ v. M. T. N. L.

2004-04-23

MANMOHAN SARIN

body2004
Manmohan Sarin, J. ( 1 ) PETITIONER by this writ petition impugns the Award dated 16. 8. 2003 given by the Arbitrator. Petitioner had certain disputes regarding excess billing in respect of his telephone. Telephone was disconnected on account of non-payment of bills. The same was subsequently restored during the arbitration proceedings upon certain payments as directed by the Arbitrator being made by the petitioner. ( 2 ) THE crux of the controversy before the Arbitrator was the petitioner s claim of inflated bills. In particular : bill dated 9. 1. 2001 for Rs. 15,010/-; bill dated 9. 2. 2001 for Rs. 30,214/- and bill dated 9. 3. 2001 for Rs. 28,874/- The case of the petitioner is that for the period November 2000 to February 2001, a sum of Rs. 69,056/- was charged for calls not made. These excessive calls could not have been made from his telephone and are a result of his telephone line being tampered by outsiders in collusion with MTNL staff. ( 3 ) IT is not disputed before me that the Arbitrator gave sufficient opportunities to the parties to plead their case, and lead evidence before him. The Arbitrator on consideration of the pleadings and the evidence before him reached the conclusion that calls had been made to a number of 0900 level for chatting. This happened when the phone was not locked by using dynamic STD control facility. The Arbitrator held that the subscriber had not been using dynamic lock STD facility sincerely and this had led to excess billing of his phone. Petitioner could have avoided the excess billing by using the dynamic STD lock facility. Hence petitioner is responsible for the balance outstanding bills of Rs. 69,056/ -. The Arbitrator disposed of the matter holding that the petitioner was liable to pay the outstanding charges as noted above and in case of non-payment this could be recovered by resorting to ITR 443. ( 4 ) LEARNED counsel for the petitioner states that the petitioner in his communication dated 5. 8. 2003 had duly set forth his position in the following words:- "it is absolutely wrong on the part of the respondent to state that the dynamic STD facility cannot be misused by any person other then the user himself. ( 4 ) LEARNED counsel for the petitioner states that the petitioner in his communication dated 5. 8. 2003 had duly set forth his position in the following words:- "it is absolutely wrong on the part of the respondent to state that the dynamic STD facility cannot be misused by any person other then the user himself. The dynamic STD facility can be used after it has been manually punched by the user into the telephone and the exchange registers it. The dynamic STD code punched by the user can always be read by the exchange staff. Therefore it is absolutely wrong to state that the dynamic STD facility can be used only by the subscriber where as a matter of fact the dynamic STD facility can be misused in connivance with the staff of the telephone exchange. This fact can be verification by obtaining manufacturer s certificate in this regard. ( 5 ) LEARNED counsel for the petitioner contends that despite the above ground regarding access to dynamic code STD facility by MTNL staff being raised, the Arbitrator has chosen not to deal with the same. This vitiates the Award as it becomes a non-speaking Award as regards petitioners contention is concerned which has neither been noticed nor dealt with. ( 6 ) LEARNED counsel for the respondent, on the other hand, submits that the petitioner cannot shift the burden of the calls made from the said telephone to others. The calls as per the meter reading recorded have been made from the said telephone. He also disputes that the STD dynamic locking facility can be misused in collusion with the MTNL staff. He submits that the contention that the STD code number as punched for STD dynamic facility can be noticed by the staff at the exchange is not correct. Learned counsel also places reliance on Division Bench judgement of A. N. Pandey versus MTNL being W. P. (C ). No. 2196/1994. The cited case was of misuse of telephone wherein certain calls have been made to Hongkong and these were similar in nature to the chatting calls. CBI enquiry had been ordered in this case. Among others it was to be considered whether the dynamic STD locking facility included the facility of any unauthorised use or tampering by any outsider or MTNL staff. CBI enquiry had been ordered in this case. Among others it was to be considered whether the dynamic STD locking facility included the facility of any unauthorised use or tampering by any outsider or MTNL staff. The result of the conclusions reached in so far as they are relevant to this aspect, by CBI, was "enquiry/investigations having been conducted to ascertain if there could be any pilferage tempering with dynamic STD/isd facility. It was revealed that the same was not possible. " ( 7 ) I find that the CBI report may be a factor to be urged in support by the respondent. However, the same cannot be said to be binding or categorically establishing that there could be no tampering of the STD dynamic locking system in all circumstances. ( 8 ) WITH a view to consider this aspect further, direction was issued for the presence of senior technical officers of the MTNL who could clarify the position. Mr. Raju Sinha, Deputy General Manager (SW) Planning, and Mr. M. M. Sharma, General Manager (Legal), from MTNL were present in the Court. It was explained by Mr. Raju Sinha that petitioner s telephone was with the electornic exchange. The system of working of the STD dynamic facility is that the subscriber generates his code for opening and locking STD dynamic system. The Code which is generated by the subscriber is received in encrypted form by the telephone exchange. The computer system reads the message in the encrypted form and stores the same. The employees of MTNL have no access to the said code number. Even if the code number is forgotten by the subscriber, the software of system provides for generation of the new code number by the subscriber. The earlier instruction is erased. ( 9 ) IN view of the foregoing discussion it is held that the petitioner s contention that excessive calls were on account of the tampering of the telephone lines by MTNL staff in collusion with others is not established. The excessive chat calls are attributable to calls made at petitioner s end and the failure to use the STD dynamic lock facility. Accordingly the Award made by the Arbitrator does not suffer any error or infirmity. No ground is made out for interference in exercise of writ jurisdiction. Writ petition is accordingly dismissed with no order as to costs. --- *** --- .