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2014 DIGILAW 3337 (ALL)

TATA TELESERVICES LIMITED v. UNION OF INDIA

2014-11-11

ARUN TANDON, ARVIND KUMAR MISHRA

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Hon'ble Arun Tandon,J. Hon'ble Arvind Kumar Mishra-I,J. Heard learned counsel for the parties. The petitioner before this Court have entered into a licence agreement for the purpose of Unified Access Services in U.P. (West) Service Area with Government of India Ministry of Communications & Information Technology Department of Telecommunications, Sanchar Bhawan, New Delhi, on 30.01.2004. The Director-II of the respondent-department issued a demand notice of penalty for violation of the terms and conditions vide letter dated 25.07.2014 (Annexure No.3) to the writ petition. Under Clause 15 of the notice, it was provided that if the petitioner i.e. Tata Teleservices Ltd. is not satisfied with any of the findings recorded in the above audit report, the basis of penalty order, it may make a representation within a week from the date of issuance of the notice and in any case latest by 01.08.2014 before DDG? (TERM) U.P. (West). It is the case of the petitioner that he did make a representation against the findings and conditions mentioned in the notice of demand. This representation came to be rejected under order dated 04.09.2014 made by DDG (TERM) as communicated under letter of the Director-II dated 05.09.2014.? The circulars dated 24.12.2008, 23.03.2009, 09.08.2012 as well as show cause notice dated 21.03.2014 and the decision dated 05.09.2014 are under challenge in the present writ petition. Sri S.P. Gupta, Senior Advocate on behalf of the petitioner raised various submissions for the purpose of challenging the circulars and the order impugned in the present writ petition. However, for the purpose of decision of the present petition, he has confined the challenge to the order of DDG dated 04.09.2014 as communicated under letter dated 05.09.2014 (Annexure No.4) to the writ petition. The short ground for challenging the order is that it contains conclusion only and is not supported by any reason, therefore, bad. Since the letter dated 05.09.2014 was only a communication of the decision taken by the DDG (TERM), this Court required learned counsel for the respondents to produce the order of the DDG (TERM) made on the representation filed by the petitioner before the said authority in terms of the demand notice dated 25.07.2014 referred to above. Since the letter dated 05.09.2014 was only a communication of the decision taken by the DDG (TERM), this Court required learned counsel for the respondents to produce the order of the DDG (TERM) made on the representation filed by the petitioner before the said authority in terms of the demand notice dated 25.07.2014 referred to above. A personal affidavit has been filed by DDG (TERM) U.P. (West) and the order which has been made on the representation of the petitioner reads as under: "W.r. to 16/c. the appeal/representation made by M/s TTSL vide 21/c is hereby rejected because there is no merit in the appeal of M/s TTSL. 2. The party may be asked to deposit the said demand notice amount on or before 23/09/2014 amounting Rs.7,41,04,000/- From a simple reading of the order impugned made by DDG (TERM), we find that it only records that he does not find any merit in the appeal of the petitioner and is, therefore, rejected the same. Petitioner has been directed to deposit the money as per demand notice. We have no hesitation to record that the order only records conclusion and is not supported by any reason for having arrived at the conclusion that the representation has no merits. Hon'ble Supreme Court of India in its judgment in the case of State of Uttranchal Vs. Sunil Kumar Negi2008 (4) ALJ 226, (Pr. 7 and 8) as well as in the case of Raj Kishor Jha Vs. State of Bihar and others (2003) 11 SCC 519 has held that reasons are heart beat of every conclusion and without the same it is lifeless. reported in reported in Reference is also made to the judgment of the Hon'ble Supreme Court of India in the case of Uma Nath Pandey Vs. State of U.P. reported in 2009 (237) E.L.T. 241 (SC) wherein it has been held that every order passed, which results in evil civil consequence to a party, must be consistent with the rules of principles of nature justice, failing which the same would be unsustainable in the eyes of law. The Hon'ble Supreme Court of India in series of judgment has held that reasons are links between facts and finding recorded. (Ref. S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 . The Hon'ble Supreme Court of India in series of judgment has held that reasons are links between facts and finding recorded. (Ref. S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 . We may also record that under demand notice in paragraph no.15 it was mentioned as follows: "M/s Tata Teleservices Ltd. may make representation, if any, against the findings contained in the above CAF audit report (s) to DDG (TERM) UP (West) within a week's time from the date of issue of this notice and in any case latest by 01.08.2014. In case of late or non-receipt of representation by this office, the deposition of the penalty by M/s Tata Teleservices Ltd. shall strictly be governed as per the time-limit and instructions contained in clause no.13 above. Furthermore M/s Tata Teleservices Ltd. is also directed to submit a copy of receipt from the CAO (Cash) O/o CCA (UK) Dehradun to this office as a proof of payment of the above penalty amount." It is, therefore, clear that the petitioner was given to understand that if he files representation before the DDG (TERM), it shall be considered and decided by the DDG (TERM) preferably within two weeks. In our opinion, the issue as to whether there has been consideration of the representation by the DDG (TERM) can only been ascertained with reference to the reasons which are recorded while dealing with the representation. Since in the facts of the case, reasons have not been disclosed by the DDG (TERM) while rejecting the representation, we have no hesitation to record that there has not been any consideration of representation in the eyes of law. We also take note of the stand taken by the counsel for the department that under Clause 9 itself, the DDG (TERM) could take assistance of ADG/Director (TERM) not involved in the issue of show cause notice, he submitted in the facts of the case a report was obtained from ADG/Director (TERM). It is on this report, the order has been made. In our opinion, asking for assistance from ADG/Director (TERM) cannot amount to abrogation of the power of decision making to the ADG/Director (TERM). The DDG (TERM) could have taken note of the report submitted by the ADG/Director (TERM) while making the order but he should have recorded reasons for not accepting the case as pleaded in the representation by the petitioner. The DDG (TERM) could have taken note of the report submitted by the ADG/Director (TERM) while making the order but he should have recorded reasons for not accepting the case as pleaded in the representation by the petitioner. Merely recording that he finds no merit in the representation will not suffice. In the totality of the circumstances on record, we are of the considered opinion that the order made by the DDG (TERM) dated 04.09.2014 cannot be legally sustained for want of reasons. It is hereby quashed. Let representation of the petitioner be decided by the DDG (TERM) by means of a reasoned speaking order after taking into consideration all aspects of the matter preferably within two weeks from the date a certified copy of this order is filed before him. All the other issues are left open to be agitated as and when cause arises. The writ petition is allowed with the observation made. ——————