Heard learned counsel for the petitioner and learned counsel for the respondent.
Para 1 of the petition indicates the relief which the petitioner is seeking. The same is as follows:
(a) Demand notice dated 23.3.2016 issued by the Director-II (Term), Odisha, Bhubaneshwar calling upon the petitioner to make payments towards financial penalty for alleged violation of subscriber verification norms in respect of special CAF audit conduct on the subscriber base at the end of June 2015 for Odisha service area, while at the same time granting an opportunity to make a representation to the DDG Term Cell. It is submitted that the arbitrariness and the illegality of the Demand Notice is writ large inasmuch as the Respondent has alleged violations of various clauses of DoT's instructions dated 22.11.2006 which instructions admittedly had been superseded by DoT guidelines dated 9.8.2012. It is further submitted that the instructions, the violations of which had been alleged were not applicable on the date of so called special audit. Thus, it cannot be said that there is any violation of instructions which have been superseded. The demand notice termed as ‘impugned demand’ is annexed hereto and marked as Annexure P-1.
(b) Communication dated 26.4.2016 issued by the respondent whereby the representation of the petitioner has been rejected on assumptions and presumptions without any basis. Copy of the communication dated 26.4.2016 is annexed hereto and marked as Annexure P-2.
(c) Communications dated 11.7.2017, 18.7.2017, 19.9.2017 and 12.1.2018 whereby the respondent called upon the petitioner to deposit the demand amount failing which it threatened to encash the bank guarantee. Copy of the said communications dated 11.7.2017, 18.7.2017, 19.9.2017 and 12.1.2018 are annexed hereto and market collectively as Annexure P-3(colly).
On the basis of proposed penalty order granting opportunity to the petitioner to contest the proposed penalty as well by placing reliance upon the impugned orders, learned counsel for petitioner has emphatically submitted that the penalty imposed is only because apparently forged Proof of Identity (POI) as well as apparently forged Proof of Address (POA) was submitted by the subscriber. This has been alleged on the basis of verification of 279 CAF samples leading to 251 failure cases.
On the very first date when this petition was considered, learned counsel for the petitioner placed a strong reliance upon judgement of this Tribunal dated 10.3.2016 passed in TP No. 163 of 2015 (Bharti Airtel v. UOI). That judgment is on record as Annexure P-7.
Such a reliance upon Annexure P-7 was noted in order dated 16.1.2018 and it was made clear that unless the respondent file a satisfactory reply and distinguish the case of the petitioner from that in which Annexure P-7 judgement was passed, we may follow that judgment summarily and set aside the penalty on the next date.
Subsequently, pleadings have been completed and respondent has relied upon para 11 of the reply in which they have cited 6 different facts and reasons with a view to distinguish the two cases.
In the rejoinder in para 5(b), a reply has been furnished that as per show cause, opportunity provided to the petitioner, the only allegation was of apparently forged POI and apparently forged POA. In other words, on behalf of petitioner a firm stand has been taken that facts cited in para 11 with a view to distinguish the case of the petitioner from that of Bharti Airtel as discussed in para 7 amount to a new case being made out by respondent before this Tribunal in appeal and no opportunity was given to the petitioner to meet such facts or allegations as made out in para 11.
We gave opportunity to learned counsel for the respondent to refute the aforesaid stand of the petitioner but from the relevant records including the impugned order nothing could be shown to refute the afore noted stand of the petitioner. In the result, confining ourselves to allegations made against the petitioner on which it had submitted its reply and the allegations which have led to the penalty order, we find the case of the petitioner totally covered by judgment contained in Annexure P-7.
Hence, the impugned order dated 19.9.2017 (Annexure P-3) alongwith various letters seeking compliance of that order is set aside.
The petition succeeds to the aforesaid extent.
We leave it for the respondent to decide the future course of action on the basis of allegation made in para 11 of the reply. They may take appropriate steps, if so advised, in accordance with law.