Order
1. In May 2001 Respondent 1 offered a scheme as a promotional plan to its customers. Several thousand subscribers accepted the offer. In October 2001 the scheme was dropped. A public interest litigation was filed by one subscriber challenging the unilateral dropping of the scheme by Respondent 1. The High Court passed an order and directed the appellant to submit a report in that connection. No report having been submitted, by a subsequent order dated 24-9-2002, the High Court directed the appellant to take steps after hearing the parties and submit a report of compliance within a period of three months from the date of the order.
2. Pursuant to this directive the appellant passed an Order on 23-12-2002 holding, inter alia, that Respondent 1 had violated the provisions of the Telecommunication Tariff Order, 1999 insofar as it had failed to inform the appellant either as to the introduction of the scheme or subsequent withdrawal thereof. It was found that the action of Respondent 1 had adversely affected the interest of the subscribers. Finally, the appellant opined that the violation was of serious nature and to be dealt with in accordance with Section 29 read with Section 34 of the Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as “the Act”).
3. Pursuant to the decision a complaint was lodged by the appellant before the Jurisdictional Magistrate. Challenging the action of the appellant, Respondent 1 filed an appeal from the Order dated 23-12-2002 before the Telecom Disputes Settlement and Appellate Tribunal (Tdsat). Tdsat allowed the appeal. It held that the only provision providing for punishment under the Act was Section 29. According to the Tdsat Act Section 29 only referred to cases of violation of directions issued by the appellant and could not be invoked for the purposes of any violation of any order issued by the appellant. Although Tdsat found that Respondent 1 was guilty of violation of the Telecommunication Tariff Order, 1999, nevertheless having regard to the language of Section 29 of the Act the action of the appellant could not be sustained. Apart from this it was also noted that the appellant had erred in adjudicating upon an issue which had already been adjudicated upon by two separate consumers fora and finally that the appellant had shown an unseemly urgency in filing the complaint. The Order dated 23-12-2002 was accordingly quashed and the appellant was directed to withdraw the complaint filed before the Magistrate.
4. The order of Tdsat has been challenged before us. While admitting the appeal we did not grant any stay. Therefore, acting on the basis of the impugned order of Tdsat the appellant has withdrawn the complaint as directed by Tdsat.
5. In our opinion the decision cannot be sustained. Section 29 of the Act provides:
“29. Penalty for contravention of directions of Authority.—If a person violates directions of the Authority, such person shall be punishable with fine which may extend to one lakh rupees and in case of second or subsequent offence with fine which may extend to two lakh rupees and in the case of continuing contravention with additional fine which may extend to two lakh rupees for every day during which the default continues.”
This may be read along with Section 34 which reads as under:
“34. Cognizance of offences.—(1) No court shall take cognizance of any offence punishable under this Act or the Rules or Regulations made thereunder, save on a complaint made by the Authority.
(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate of First Class shall try any offence punishable under this Act”
6. The issue is whether the word “directions” would include the Telecommunication Tariff Order, 1999 (hereinafter referred to as “the Order”) so that any violation thereof would be punishable under Section 29 read with Section 34.
7. According to the learned counsel appearing on behalf of the appellant, the word “directions” in Section 29 would have to be read as including orders, regulations, etc. It was submitted that otherwise the Act would become unworkable if the provisions of the orders and regulations could be flouted with impunity. Reliance has also been placed on the decision of this Court in Bashiruddin Ashraf v. Bihar Subai Sunni Majlis-Awaqf AIR 1965 SC 1206 in support of the submission that an order is more peremptory than a direction and that an argument can never be right which suggests that while disobedience of a direction should merit the punishment, the disobedience of an order should go unpunished. It was urged that the word “directions” in Section 29 of the Act should be read in the context. Several decisions have been relied upon in this regard, particularly the decision of this Court in RBI v. Peerless General Finance & Investment Co. Ltd. (1987) 1 SCC 424
8. The learned counsel appearing on behalf of the respondent has submitted that Section 29 created an offence. It is a well-established legal proposition that sections creating offences would be strictly construed. The Act made a distinction between orders, regulations and directions and Parliament had advisedly only chosen violation of directions to be visited with penalties. Furthermore, it was submitted, that the three directions could not be extended to cover orders and regulations as the power of the appellant to issue directions was limited by virtue of the proviso to Section 13 to only those matters covered by Section 11(1)(b) of the Act. It was also stated that there was an earlier decision of Tdsat which had expressly set aside the directions issued by the appellant authority, inter alia, to comply with all the orders/regulations/directions, etc. issued by the appellant from time to time. That decision of Tdsat had not been challenged by the appellant authority by way of an appeal before this Court. The issue was, therefore, finally settled between the parties and could not be reopened collaterally in these proceedings.
9. It is true that the Act uses the words orders/regulations/directions in the different provisions. For example, Section 11(1)(c) provided:
“11. (1)(c) levy fees and other charges at such rates and in respect of such services as may be determined by regulations;”
(emphasis supplied)
Again Section 11(2) provides:
“11. (2) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India:”
(emphasis supplied)
On the other hand, Section 12(4) provides:
“12. (4) The Authority shall have the power to issue such directions to service providers as it may consider necessary for proper functioning by service providers.”
(emphasis supplied)
10. The question is, are the words mutually exclusive or would the word “directions” take within its fold the orders and regulations which may be framed by the appellant?
11. Section 13 on which reliance has been placed by the respondent provides:
“13. Power of Authority to issue directions.—The Authority may, for the discharge of its functions under sub-section (1) of Section 11, issue such directions from time to time to the service providers, as it may consider necessary:
Provided that no direction under sub-section (4) of Section 12 or under this section shall be issued except on the matters specified in clause (b) of sub-section (1) of Section 11.”
12. Section 11(1)(b) referred to in the proviso to Section 13 has been widely framed. It casts an obligation on the appellant to discharge the following functions, namely:
“11. (1)(b)(i) ensure compliance of terms and conditions of licence;
(ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter-connectivity between the service providers;
(iii) ensure technical compatibility and effective inter-connection between different service providers;
(iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services;
(v) lay down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service;
(vi) lay down and ensure the time period for providing local and long distance circuits of telecommunication between different service providers;
(vii) maintain register of inter-connect agreements and of all such other matters as may be provided in the Regulations;
(viii) keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance with such other requirement as may be provided in the regulations;
(ix) ensure effective compliance with universal service obligations;”
13. The order which has been passed in 1999 has in fact sought to ensure compliance with the terms and conditions of the licence granted by the Government of India to the respondent. Condition 17 of Part II of the licence agreement of the respondent provides:
“17.1 The licensee will charge the tariffs for the service as per the TRAI tariff orders/regulations/directions issued in this regard from time to time. The licensee shall also fulfil requirements regarding publication of tariffs, notifications and provision of information as directed by TRAI through its orders/regulations/directions issued from time to time as per the provisions of the TRAI Act, 1997, as amended from time to time.”
14. The corresponding clauses in the order are Clauses 3, 4 and 7 read with Clauses 2(1) and 2(r). The aforesaid statutory provisions say:
“2. (1) ‘Reporting Requirement’ means the obligation of a service provider to report to the Authority at least five working days before implementing any new tariff for telecommunication services under this Order and any changes thereafter;
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(r) ‘Tariffs(s)’ mean(s) rates and related conditions at which telecommunication services within India and outside India may be provided including rates and related conditions at which messages shall be transmitted to any country outside India, deposits, installation fees, rentals, free calls, usage charges and any other related fees or service charge.
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3. Tariffs.—Tariffs for various telecommunication services and their dates of implementing shall be as set out in Schedules I to IX.
4. Forbearance.—Where the authority has, for the time being, forborne from fixing tariff for any telecommunication service or part thereof, a service provider shall be at liberty to fix any tariff for such telecommunication services:
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7. Reporting Requirement.—
(i) All service providers shall comply with the Reporting Requirement in respect of tariffs specified for the first time under this Order and also all subsequent changes.
(ii) No service provider shall alter any tariff of any telecommunication service or any part thereof without complying with the Reporting Requirement.
(iii) Unless the Authority intervenes within the mandatory notice period of five working days, the service provider may implement the proposed tariff.”
15. Even the Tribunal found that the respondent had violated the reporting requirements in respect of the tariff by the introduction and subsequent withdrawal of the scheme. This finding of Tdsat has not been impugned before us by the respondent. Therefore, we will proceed on the basis that the respondent has not followed the provisions of the Order.
16. It appears to us on a reading of all these provisions that the word “directions” had been used in a wide sense to cover orders/regulations which in effect direct an action to be taken. If we were to limit Section 29 only to directions which were not directory orders or directory regulations this would mean that violation of such orders/regulations would not carry any penal consequence whatsoever. Consequently, the entire scheme of the Act would become unworkable. Besides Section 11(1)(b) in respect of which directions may be issued has itself also been widely framed. Indeed the order in question pertains to the provisions of Section 11(1)(b)(i) as we have already stated. It may be that Section 29 creates an offence and therefore, must be strictly construed. However, that principle will not militate with the principle that the interpretation of a word must be made contextually. We have to ascertain the meaning of the word “directions” in Section 29. The word “directions” can take within its fold directory orders and regulations in the nature of directions as a matter of semantics. Besides in the context of the Act there is no reason not to include the orders and regulations containing directions within the word “directions”. This would also be a logical corollary as such regulations and orders have appended to them a more serious mandate.
17. In rejecting the view expressed by Tdsat we would respectfully adopt the language used by the Constitution Bench of this Court in Bashiruddin Ashraf v. Bihar Subai Sunni Majlis-Awaqf AIR 1965 SC 1206: (AIR p. 1209, para 11)
“11. … The argument is not only new but is also utterly wrong. Orders and directions express the binding wish of the Majlis and the two words only differ in degree. An order is more peremptory than a direction and an argument can never be right which suggests that while disobedience of a direction should merit the punishment of removal disobedience of an order should go unpunished.”
Consequently the appeal must be allowed.
18. Since the appellant has already withdrawn the complaint filed against the respondent, we make it clear that our decision will not result in revival of those proceedings. The appeal is allowed. There shall be no order as to costs.