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Case Number

O.P 308 of 1978

Attorney(S)

For the Appellant: M.R. Rajendran Nair, Advocates.
For the Respondent: T.R. Govinda Wariyar, Advocates.

Judges

Subramonian Poti, J.

Acts

Rule 421. Rule 429 of the Indian Telegraph Rules
telephone.8. S. 7B of the Indian Telegraph Act
Rule 421 of the Indian Telegraph Rules
Rule 429 of the Indian Telegraph Rules.
S. 7(2)(e) of the Indian Telegraph Act

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

Telephone No. 34953 installed at House No. XXVIII/2142, Palarivattom, Cochin-25 (the petitioner was the subscriber) was disconnected on 1-10-1977. The petitioner received a communication dated 15/17-10-1977 (copy Ext. P3) stating the telephone had been closed for misuse. The petitioner made a representation to the District Manager, Telephones seeking verification and reconnection, and after waiting moved the Court seeking a quashing of Ext. P3 and a mandamus directing the District Manager to reconnect the telephone.

The District Manager issued a show-cause notice (Ext. P1) under Rule 421 of the Indian Telegraph Rules, alleging unauthorised use by a third party and violation of Rule 429. The petitioner replied denying assignment or unauthorised transfer and said he continued to occupy the room where the telephone was installed for use as his office. The counter-affidavit of the respondent asserted an investigation had been conducted and that disconnection followed. No written order recording reasons (after investigation) was communicated to the petitioner before disconnection, according to the petition.

Legal Issues Presented

Whether the disconnection of the petitioner's telephone on 1-10-1977 complied with the procedural requirements of Rule 421 of the Indian Telegraph Rules (in particular, whether reasons were recorded in writing and the notice mandated by the Rule was given after such satisfaction).
Whether the alleged violation of Rule 429 (prohibiting assignment, sub-letting or transfer without permission) was established on the facts, and whether mere permission to use the telephone amounts to assignment/sub-letting/transfer justifying disconnection.
Whether the disconnection contravened the safeguards envisaged by S. 7B of the Indian Telegraph Act (regarding reference to arbitration in the event of a dispute) and related Division Bench guidance that arbitration should precede disconnection.

Arguments of the Parties

Petitioner's Arguments

The petitioner challenged Ext. P3 and sought mandamus directing reconnection of the telephone.
He replied to the show-cause notice stating he had shifted his family but continued to occupy and use the specific room where the telephone was installed (as his office) and denied any unauthorised assignment or transfer of the telephone.
The petitioner contended that the procedural requirements of Rule 421 (including recording reasons in writing and giving the appropriate notice) had not been satisfied before disconnection.

Respondent's (District Manager) Position as Reflected in the Record

The counter-affidavit asserted that an investigation was conducted and that disconnection followed as a consequence of that investigation.
The respondent's materials (counter-affidavit and report) referred to the presence of the Board of Edappally Housing Co-op. Society in the premises and suggested unauthorised use by a third party (Sri Soman) was found.
The counter-affidavit implied that the requirement of recording reasons in writing was met, though it did not specify what the order was or when it was passed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ayyappan Pillai v. Divl. Engineer, Telephones (1974 KLT. 41)	The decision held that there is nothing in the Telegraph Rules enabling authorities to disconnect a telephone on the ground that a subscriber neither resides nor carries on business at the premises; and that in the absence of reasons recorded in writing showing satisfaction of the concerned officer such disconnection is liable to be impugned.	The court relied on this precedent to support the proposition that arbitrary disconnection without reasons recorded in writing is impermissible and that the rules do not permit disconnection merely because a subscriber is absent from the premises.
O.P. 3358 of 1976 (Division Bench)	The Division Bench examined the scope of the rules governing disconnection, warned that absent specified criteria different officers might adopt different standards leading to arbitrary or discriminatory disconnections, and noted that arbitration under S.7B should precede disconnection.	The court referenced this decision to emphasize the danger of arbitrary exercise under the present rules, to repeat the need for criteria in the rules for disconnection, and to support the view that arbitration under S.7B must, in principle, precede disconnection because post-disconnection arbitration would be largely ineffective for the subscriber.

Court's Reasoning and Analysis

The Court analysed the matter by focusing on both procedural compliance with the Indian Telegraph Rules and the factual basis for invoking Rule 429.

Procedural compliance under Rule 421:

Rule 421 requires that the Divisional Engineer, if satisfied for reasons to be recorded in writing that disconnection is necessary, may after giving the subscriber written notice (normally not less than seven days except in emergent cases) disconnect the telephone.
The Court found that although a show-cause notice (Ext. P1) was issued and the petitioner replied, the record did not demonstrate that an order recording satisfaction and reasons in writing was communicated to the petitioner after investigation and before disconnection. The counter-affidavit asserted the contrary but did not specify the order or when it was passed.
The files showed a report dated 29-9-1977 and an order for disconnection dated 1-10-1977, but no subsequent notice issued after reasons were recorded in writing as contemplated by Rule 421. The Court concluded that the notice contemplated by Rule 421 is to be issued after satisfaction (i.e., after investigation) and that no such compliant notice was given.
On this basis, the Court held the disconnection was not in accordance with Rule 421 and therefore procedurally defective.

Factual sufficiency under Rule 429:

Rule 429 prohibits assignment, sub-letting or otherwise transferring a telephone without permission of the Telegraph Authority; these acts involve transfer of the subscriber's right, whether absolute or qualified.
The Court analysed whether the facts established an assignment/sub-letting/transfer. It concluded that merely permitting another person to use the telephone does not amount to assignment, sub-letting or transfer as contemplated by Rule 429.
In the present case, there was no allegation or finding that the petitioner had assigned or sub-let or otherwise transferred the telephone. The apparent basis for the Department's action—that the petitioner was absent when telephoned at the number and that persons associated with Edappally Housing Co-op. Society were present—was an insufficient factual basis for finding a transfer.
The Court described the Divisional Engineer's telephone test (phoning the number to see if the subscriber was at the premises) as a crude test and observed a subscriber cannot be expected to remain beside the telephone to meet such a test at the risk of losing the subscription.
Consequently, the Court found that even if Rule 429 could, in some circumstances, lead to disconnection, the facts of this case did not justify such a finding.

Other legal considerations:

The Court reiterated the Division Bench's concern (O.P. 3358 of 1976) that the rules lack clear criteria for disconnection, creating a risk of arbitrary action, and urged the Central Government to re-examine the rules.
The Court also referred to S. 7B of the Indian Telegraph Act concerning reference to arbitration in the event of a dispute, noting the Division Bench's view that arbitration must precede disconnection, because disconnection renders arbitration practically ineffectual and may cause irreparable injury to subscribers.
Taking the procedural defect, the insufficient factual basis under Rule 429, and the S. 7B/arbitration concern together, the Court concluded the disconnection was not in accordance with law.

Holding and Implications

Holding:

The Court's final decision was to allow the Original Petition and to set aside the disconnection. The Court directed that the telephone connection be restored to the petitioner forthwith and, in any event, not later than three weeks from the date of the judgment. The order concluded with Allowed and an award of no costs.

Implications:

Direct effect on the parties: The petitioner's telephone connection must be restored immediately and no later than three weeks from the judgment; the petition was allowed and no costs were awarded.
Procedural and administrative implications: The Court reiterated concerns (as earlier expressed by a Division Bench) that Rule 421 and related rules lack clearly prescribed substantive criteria for disconnection, creating a risk of arbitrary and discriminatory actions by different officers. The Court specifically alerted the Central Government to consider revising the rules to address the issues pointed out.
S. 7B/arbitration emphasis: The Court endorsed the Division Bench's observation that reference to arbitration under S. 7B should precede any disconnection in disputes where arbitration is implicated, because post-disconnection arbitration is of limited practical value to the subscriber.

Final Disposition: The Original Petition is allowed; the telephone connection is to be restored forthwith and in any case within three weeks; no costs.

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Anthappan v. Dist. Manager, Telephones

1. Telephone No. 34953 installed at House No. XXVIII/2142, Palarivattom, Cochin-25 was disconnected on 1-10-1977 and the petitioner who was the subscriber of that telephone was told by a letter dated 15/17-10-1977, copy Ext. P3, that the telephone had been closed for misuse on 1-10-1977. The petitioner thereupon made a representation to the District Manager, Telephones, seeking immediate action in the matter of verification of certain facts stated and re-connecting the telephone. After waiting for sometime to get orders thereon, he moved this Court for quashing Ext. P3 and also for a mandamus to direct the respondent, the District Manager, Telephones, to reconnect the telephone. The right of any subscriber to continue to enjoy the benefit of the telephone of which he is a subscriber, is quite valuable. Despite the fact that it is the exclusive privilege of the Central Government to establish, maintain and work telegraphs, there is no power in the authorites functioning under the Indian Telegraph Act to act arbitrarily either in the matter of sanctioning fresh telephone connections or in the matter of suspending or cancelling such connections. Any person aggrieved by the arbitrary conduct of the authorities functioning under the said Act should be able to seek redress against the violation of their rights. It has been pointed out by this Court in the decision in Ayyappan Pillai v. Divl. Engineer, Telephones 1974 KLT. 41 that there is nothing in the Telegraph Rules which enables the authorities to disconnect the telephone sanctioned for use of a person on the ground that he was neither residing nor having a place of a business in the premises where the telephone is installed. It was further held therein that in the absence of reasons recorded in writing showing the satisfaction of the concerned officer that it was necessary to disconnect the telephone, any such disconnection was liable to be impugned successfully. Rule 421 of the Indian Telegraph Rules deals with disconnection of telephones, Rule 427 deals with the consequence of illegal or improper use of telephone and Rule 429 deals with transfer of telephone. These are the Rules to which generally reference is made in the context of disconnection of telephones. The scope of these rules came up for examination by a Division Bench of this Court in the decision in O.P 3358 of 1976. In view of this, it may not be necessary to go into the questions covered by the said decision in detail.

2. It may be noticed that though S. 7(2)(e) of the Indian Telegraph Act contemplates framing of Rules relating to conditions and restrictions subject to which any telegraph line shall be established or disconnected, no rules are seen to have been framed specifically dealing with this subject. No doubt Rule 429 prohibits transfers but that is not a rule laying down the restriction subject to which any telephone can be disconnected. Rule 421 deals with disconnection of telephones. But the various conditions the violation of which would justify disconnection of telephones have not yet been prescribed by the said rule or for that matter by any other rule. In fact, the indication in Rule 421 is that this is left to the discretion of the authority who is to pass an order in writing concerning the need for disconnection. The scheme as it now stands is that the authority concerned has an obligation to issue notice and to pass an order in writing recording the reasons for disconnection before such disconnection is made. This is no doubt a procedural safeguard. But what are the reasons relevant for disconnection is a matter that remains to be provided for. The danger of this has been pointed out in the decision in O.P 3358 of 1976, for different standards, different approaches and different grounds may be adopted by different officers to take steps for disconnection and that will enable an arbitrary and discriminatory exercise of power under the rule. I am once again stating this to alert the Central Government to the need for having a fresh look into the rules to consider whether the situation mentioned in the judgment of the earlier Division Bench of this Court should not be met.

3. In the case before me, action was taken presumably because the petitioner shifted from the house at Palarivattom to which house the telephone connection had been given to him as a subscriber. He moved into another house in the city. A fresh tenant occupied that house excepting the room in which the telephone was installed. The petitioner is said to have continued to keep that room for his use since he had to function there for the purpose of his office as a member of the Director Board of Edappaly Housing Co-operative Society. In fact, the counter shows that a Board “Edappally Housing Co-op. Society” was seen in the compound of the house at the time the telephone was disconnected. A notice was issued to the petitioner mentioning that the telephone was being unauthorisedly used by a third party and that amounted to violation of Rule 429 of the Indian Telegraph Rules. The notice was given under Rule 421 of the Indian Telegraph Rules to show cause why the telephone should not be disconnected after expiry of seven days. To this notice by the District Manager, the petitioner filed a reply mentioning that for certain reasons he had to shift his family, that he was in occupation of the room where the telephone connection was provided and that room was still under his use as his office. He denied the charge of unauthorised assignment of his telephone. No order seems to have been communicated thereafter to the petitioner before disconnection. It is said to have been disconnected on 1-10-1977. He was told by a memo dated 15/17-10-1977 (copy Ext. P3) that the telephone had been disconnected since the telephone was working on the portion rented out to one Sri Soman and that was being used by Soman and his people.

4. Evidently the case against the petitioner for closure of the telephone was that he had allowed one Soman to use the telephone and that he had shifted from the premises where the telephone was installed. The procedure adopted was to give a show cause notice, then hold some investigation and disconnect the telephone. I am afraid the order cannot be sustained both because the procedure adopted was not in accordance with the rules and also because the disconnection was not justified on the facts.

5. No doubt Ext. PI was a notice in writing. To that notice the petitioner replied. The counter-affidavit shows that an investigation was made—I am not here dealing with the nature of the investigation—and as a consequence, disconnection was effected. There is a plea raised in the petition that as required by Rule 421 of the Indian Telegraph Rules, there is no order recording reasons in writing. Though the counter-affidavit mentions that this is not correct, what the order was and when was that passed are not mentioned in the counter-affidavit. Rule 421 provides that where the Divisional Engineer is satisfied for reasons to be recorded in writing that it is necessary to do so, he may, after giving the subscriber a notice in writing for a period which shall not except in emergent cases be less than 7 days, disconnect the telephone. His satisfaction could only be after investigation. The notice contemplated in Rule 421 is a notice to be issued after such satisfaction. The counter says that after the reply of the petitioner was received investigation was made. Necessarily satisfaction must be after that. The files actually show that some sort of a report was made on 29-9-1977. On that order for disconnection is seen passed on 1-10-1977. No notice is issued after the reasons are recorded in writing pursuant to the investigation and the issue of such a notice is contemplated in Rule 421. Hence the disconnection is bad and not in accordance with the Rules.

6. What is stated in the notice, Ext. PI, is that Rule 429 is violated and therefore action is taken under Rule 421. Rule 429 of the Indian Telegraph Rules prohibits assignment, sub-letting or otherwise transferring the telephone without the permission of the Telegraph Authority. Therefore if any of these acts is done by a subscriber that will not be recognised by the department an assignment, or sub-letting or transfer otherwise, involve the element of transfer. A mere permission to another for the use of telephone will not be assignment. It will not be sub-letting nor will it be a transfer. What is contemplated is a transfer of the right of the subscriber either absolute or qualified. Any subscriber permitting another person to use his telephone cannot be said to be misusing the telephone. That is not what is contemplated by Rule 429. At no time it is said by the District Manager or any other authority that the petitioner assigned his telephone or sub-let his telephone or otherwise transferred his telephone. Moreover, in the counter-affidavit and the report to which the counter-affidavit refers, mention is made of the Board of the Housing Co-op. Society in which the petitioner is a Director being found in the premises. The fact that the petitioner was not available at the time the Divisional Engineer chose to telephone him at that number is a crude test to determine the case of transfer if there was any such case at all for the department no subscriber is expected to sit beside his telephone in anticipation of such a test by the telephone department at the risk of his losing the right to be a subscriber in case he is absent when the Divisional Engineer chooses to telephone him with that object. In these circumstances, even if violation of Rule 429 has the consequence that it may result in disconnection of the telephone—a matter about which I do not finally express any view herein—that cannot be found in this case.

7. Apart from what I have pointed out here there is the further circumstance pointed out by the Division Bench earlier in O.P 3358 of 1976 that the rule ought to indicate what are the criteria relevant for disconnecting a telephone.

8. S. 7B of the Indian Telegraph Act contemplates reference to arbitration in the event of a dispute. Here again the Division Bench has pointed out in O.P 3358 of 1976 that such reference must precede the disconnection and not follow it for, once the telephone is disconnected, there is very little practical purpose to be served by arbitration. The state of disconnection even for the period of arbitration is sufficient to cause irreparable injury to a subscriber who may need the telephone for his business or for his profession or for his own personal needs. Hence such action as was taken here would violate the provisions in S. 7B also. It follows from the above that the disconnection of the petitioner's telephone was not in accordance with law. I therefore direct that the telephone connection be restored to the petitioner forthwith and at any rate, not later than three weeks from today. The Original Petition is allowed as above. No costs.

9. Allowed.

Anthappan v. Dist. Manager, Telephones

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's (District Manager) Position as Reflected in the Record

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Anthappan v. Dist. Manager, Telephones

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