- (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.
(2.) 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 authorities 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. R.421 of the Indian Telegraph Rules deals with disconnection of telephones, R.427 deals with the consequence of illegal or improper use of telephone and R.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. 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 R.429 prohibits transfers but that is not a rule laying down the restriction subject to which any telephone can be disconnected. R.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 R.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 thai 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. 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 bis office as a member of the Director Board of Edappaly Housing Cooperative 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 R.429 of the Indian Telegraph Rules. The notice was given under R.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.
(3.) 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. No doubt Ext. P1 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 R.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. R.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 R.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 I-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 R.421. Hence the disconnection is bad and not in accordance with the Rules.;