Delhi High Court
Shri G.K.Chugani vs Union Of India & Ors on 28 January, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.7/2001 & RFA No. 16/2001
% 28th January, 2011
1. RFA No. 7/2001
SHRI G.K.CHUGANI ...... Appellant
Through: Mr. Manu Nayar, Mr. Lalit,
Mr. Hameed S. Shaikhand Mr.
Amar Pal, Advocates.
VERSUS
FOOD CORPORATION OF INDIA ...... Respondent
Through: None.
2. RFA No. 16/2001
SHRI G.K.CHUGANI ...... Appellant
Through: Mr. Manu Nayar, Mr. Lalit,
Mr. Hameed S. Shaikhand Mr.
Amar Pal, Advocates.
VERSUS
UNION OF INDIA & ORS ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
RFA-7&16/2001 Page 1 of 5
VALMIKI J. MEHTA, J (ORAL)
1. By means of these two first appeals under Section 96 of the Code
of Civil Procedure,1908 challenge is laid to the impugned judgment and
decree dated 31.8.2000 whereby the suit of the appellant for injunction
seeking restraint against his employer/Food Corporation of India (FCI)
from claiming payment of Rs.73,124.65p and which payment was claimed
by the employer on the ground of excess billing beyond permissible limit
on the residential telephone of the appellant. By the same impugned
judgment and decree, the suit of FCI was decreed against the appellant
for the amount of Rs.73,124.65 being charges for calls made in excess of
1000 calls which were permissible on the residential telephone.
2. The facts are that the appellant was an employee of FCI. As an
employee of FCI, he was allowed a maximum of 1000 free calls per
quarter besides the free calls permitted by the telephone department
from his residential telephone, and the subscriber to which telephone was
the employer/FCI. For the period from March, 1978 to June, 1990, the bills
for the telephone received were much in excess of the limit permissible
and therefore, FCI on scrutiny demanded payment for the excess calls
made, and which excess calls appeared to be towards STD. The
appellant's case before the trial court and before this court also is that
there was some malfunctioning in the exchange of MTNL and that he had
not made the extra calls. It was therefore prayed that the suit of FCI for
recovery be dismissed and the appellant's suit for injunction be decreed.
RFA-7&16/2001 Page 2 of 5
3. I have gone through the impugned judgment and decree. The
impugned judgment and decree arrives at the following conclusions:-
(i) Calls were in fact made beyond the permissible limit.
(ii) As per the circular issued by FCI, in case there were calls beyond
the permissible limit, a register ought to have been maintained by the
appellant to justify the excess calls made, and admittedly, the appellant
has failed to prove before the trial court that any such register of excess
calls having been validly made for official purposes was maintained.
(iii) When the appellant complained to FCI, FCI took up the matter with
MTNL and MTNL after conducting an enquiry replied back to FCI that there
was no technical malfunction or deficiency and therefore the bills by the
MTNL were validly raised. The appellant never requested his
employer/FCI to initiate arbitration proceedings against MTNL under
Section 7-B of the Indian Telegraph Act, 1885.
(iv) It was found that the appellant was sitting late in the office during
this entire period, and, even so far as his office telephone was concerned,
there was excessive billing in this relevant period itself.
To the above, I may only add that as per the appellant's own case
his daughter got married in February, 1980.
4. I do not find any illegality or perversity in the impugned judgment
and decree because of the aforesaid conclusions of the trial court, which
are given by me above, are clearly well established on the record. Once
there are calls beyond the permissible limit, it was incumbent upon the
RFA-7&16/2001 Page 3 of 5
appellant to maintain a register and he failed to prove that he did in fact
maintain such a register showing that the calls were official. Also, if the
appellant was really sitting late in his office hours very frequently during
this period, there would be no reason for excess calls even from the
residential telephone. Obviously, the family members of the appellant or
may be even the appellant in early morning hours or on holidays must
have been making STD calls from the telephone. Of course, it appears
that the daughter of the appellant was of a marriageable age in the
relevant period and the appellant, as a responsible father, could have
been making personal calls however, this cannot mean that such call
charges can be shifted on to the employer.
5. Learned counsel for the appellant firstly sought to argue that the
suit was barred by time. However, I may note that on this aspect,
preliminary issue no.6 was framed and which was decided against the
appellant by the judgment 1.8.1987 of the trial court and no appeal was
filed by the appellant thereto and which judgment therefore achieved
finality, and thus the appellant cannot therefore raise this issue now.
6. So far as the argument that the suit is barred by Section 7-B of the
Telegraph Act, the argument is merely to be stated to be rejected
because the provision of Section 7-B applies to a dispute between the
subscriber and the telephone company. Here, the dispute is not between
the subscriber which was the employer/FCI and the telephone company
but the dispute is between the subscriber and its employee with respect
to the excessive calls made beyond the permissible limits.
RFA-7&16/2001 Page 4 of 5
7. The next contention of the learned counsel for the appellant was
that his employer/FCI failed to take up the issue with MTNL. Once again,
this contention is misconceived because the trial court has arrived at a
finding that FCI did take up the issue with MTNL and after conducting an
enquiry, MTNL reverted back to say that there was no misuse of the
telephone line and nor was there any technical flaw resulting in any
excess billing.
8. Finally, the counsel for the appellant sought to argue that
respondent/FCI is estopped from claiming the excessive calls charges. I
have in fact completely failed to understand this argument because once
the calls are above the permissible limit and the appellant did not
maintain any register justifying the calls as officials, the appellant was
bound to pay for the excess calls made.
9. In view of the above, I do not find any error in the impugned
judgment and decree. The appeals are therefore dismissed leaving the
parties to bear their own costs. Trial court record be sent back.
JANUARY 28, 2011 VALMIKI J. MEHTA, J.
ib
