Mahanagar Telephone Nigam Ltd. vs Metro Tyres Ltd. And Anr.
2002 Latest Caselaw 1132 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petition is taken up for disposal.

2. Petitioner/MTNL is aggrieved by the award bearing No. MTNL/DGM/(IA)/ARB/6444334/001 dated 23.12.2000, passed by the Arbitrator, Mr. Anil Ailawadi, Dy. General Manager of MTNL. The dispute with regard to the outstanding bills in respect of telephone No. 6444334 were referred to arbitration, pursuant to the order passed in, CW.No. 2251/97 by this Bench on 8.8.2000. MTNL had, accordingly, appointed the arbitrator, who after calling upon the parties, inviting their claims and completion of pleadings, heard the matter, made and published the impugned award.

3. Mr. Ravi Sikri, learned counsel for the petitioner, assails the award as being as unreasoned one. He submits that there were three bills, which were subject matter of dispute, namely bill dated 1.9.1996 for Rs. 3,55,491, bill dated 1.11.1996 for Rs. 2102/- and bill dated 1.1.1997 for Rs. 1,66,653/-. The bills are in respect of telephone No. 6444334 installed at premises bearing No. 134/4 & 134/5, Jamrudpur, Kailash Colony, New Delhi. The finding of the arbitrator that "Dynamic Locking facility" was not available with the subscriber/claimant is claimed to be an error apparent on the face of the record. It is also urged that MTNL could not be faulted with in not providing details of STD/ISD calls." The finding ignores that it was on account of the technical constraints of the exchange that these details could not be furnished. Besides Mr. Sikri States that the respondent in any case did not make a grievance of it and did not demand these details. Therefore, the arbitrator in relying on these two findings in making the award had mis-conducted the proceedings and the award was, therefore, liable to be set aside. The award does not contain any reason for the rebate given. He places reliance on the judgment of the Supreme Court in M.L. Jaggi v. M.T.N.L. and Ors. and judgment of this Bench in Surinder Bhushan Gupta v. M.T.N.L. and Anr. reported at 2002 V A.D. (Delhi) 224. In M.L. Jaggi v. (Supra) the Supreme Court while emphasising the requirement of a reasoned award under Section 7 B, observed that, "when the arbitrator decides the dispute under Section 7-B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a Court of law. The only obvious remedy available to the aggrieved person against the award is judicial review under Article 226 of the Constitution. If the reasons are not given, it would be difficult for the High Court to adjudge as to under what circumstances the arbitrator came to his conclusion that the amount demanded by the Department is correct or the amount disputed by the citizen is unjustified. The reasons would indicate as to how the mind of the arbitrator was applied to the dispute and how he arrived at the decision."

4. The above legal principle, is well settled and recognized. There is no dispute with regard to the same. In Surinder Bhushan Gupta v. M.T.N.L. and Anr. (Supra), this Bench had declined to interfere with the award, passed by the arbitrator on the ground that there had been failure by M.T.N.L. in furnishing the details of STD/STD calls made. The Court took note of the fact that due to the technical constraints, the facility was not available with M.T.N.L. and hence if the details of STD/ISD calls were not furnished, it was not on account of any negligence but on account of non-availability of this facility. It was further held that it was not open to the subscriber to assail the award simply on the ground that these details for STD/ISD calls had not been furnished.

5. In the present case, what has to be seen is whether the award given by the arbitrator indicated or reveals his thought process or not. A perusal of the award would show that the arbitrator, has taken note of the dynamic lock facility not being available with the subscriber/claimant. Parties are at variance on this. Mr. Sikri refer to the leg end on top of the bill wherein subscribers are advised to use Dynamic STD Locking facility to avoid possibility of misuse. In ground 'C' it is stated that perusal of bill shows that dynamic locking facility was already provided with the telephone in question. The above submission is without substance. It cannot be inferred from the legend on the bill, that STD facility was provided for the telephone in question. It may also be noticed that the photo copies of the bills filed by MTNL with the arbitrator, do not carry the legend regarding Dynamic STD locking facility. Secondly, the arbitrator also took note into account that as the M.T.N.L. could not provide details of STD/ISD calls that matured during the disputed period, the subscriber was not in a position to assess the correctness of the bill. It would be seen that the arbitrator, therefore, proceeded on the basis of average billing and taking into account the calling pattern he found a sudden spurt in the meter reading during the relevant period. The case of the respondent before the arbitrator was that all though for the last 10 years the average bill had never exceeded Rs. 32,000/- for the billing cycle and the present bill of Rs. 1,66,653/- was totally excessive. The arbitrator has proceeded on the basis of the calling pattern as per the Fortnightly Meter Reading supplied by the M.T.N.L. and on that basis given the rebate. At this stage, Mr. Vashisht points out that the rebate has been worked out taking into account the highest bill and the minimum rebate, as admissible, has been given. In my view, in these circumstances, the arbitrator, who is a senior official of M.T.N.L. and a technical person, in the absence of the availability of details of STD/ISD calls has proceeded on the basis of average billing, the award made by him cannot be faulted with.

6. On a perusal of the award, I find that the thought process of the arbitrator has been revealed. The arbitrator is not required to give the exact computation of rebate. Considering the above, in my view, this is not a case, which calls for interference in the exercise of writ jurisdiction under Article 226 of the Constitution of India on the plea that the award is a non-reasoned one. The arbitrator has duly indicated the thought process and the basis. The arbitrator has indicated that considering the fortnightly meter readings and the average billing, the rebate as admissible has been given.

7. Mr. Vashist states that the payment in terms of the award will be made within two weeks from today. Upon payment being made, petitioner/MTNL would take necessary action for restoration of telephone No. 6444334, without payment of restoration charges. The writ petition is dismissed.