Devendra Kumar vs Mahanagar Telephone Nigam ...
2016 Latest Caselaw 6256 Del

$~R-202
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: 27th September, 2016

+     FAO 405/2015 & C.M.No.28201/2015

      DEVENDRA KUMAR                                    ..... Appellant
                  Through:            Mr. F.S. Chauhan, Advocate

                         Versus

      MAHANAGAR TELEPHONE NIGAM LIMITED .....Respondent
                 Through: Mr. Rajeev Sharma, Advocate

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                      ORDER

% (ORAL)

Impugned order of 10th August, 2015 rejects appellant's objections under Section 34 of The Arbitration and Conciliation Act, 1996 against the Award of 8th July, 2013 rendered under Section 7B(2) of The Indian Telegraph Act, 1885 . Impugned order holds that appellant's objections are not maintainable as Sub-Section 2 of Section 7B of The Indian Telegraph Act, 1885 mandates that an Award by the Arbitrator shall not be questioned in any court. To hold so, reliance is placed upon Supreme Court decision in M.L. Jaggi Vs,. MTNL & ors. AIR 1996 SC 2476.

The challenge to the impugned order in this appeal by learned counsel for appellant is on the ground that in view of decision in J.K. Mittal Vs. Union of India & ors. AIR 2012 Delhi 94, the impugned order is liable to be set aside, as respondent-MTNL is not a telegraph authority FAO 405/2015 Page 1 and so, objections filed by appellant were maintainable.

Learned counsel for respondent supports the impugned order and places reliance upon another decision of Supreme Court in M.L. Jaggi Vs. MTNL & ors. AIR 1996 SC 2476 to submit that this decision has been reiterated in Telecom District Manager, Goa & ors. Vs. V.S. Dempo & co. & ors. AIR 1996 SC 1545. Attention of this Court is drawn to Sub- Sections 2 & 6 of Section 3 of The Indian Telegraph Act, 1885 to submit that respondent-MTNL is a delegated 'telegraph authority' and so, the remedy available to appellant is to challenge the Award by way of a writ petition under Article 226 of The Constitution of India, as indicated in M.L. Jaggi (supra).

Upon hearing both the sides and on perusal of impugned order, material on record and the decisions cited, I find that respondent exercises delegated powers of 'telegraph authority'. This is so evident from Sub- Sections 2 & 6 of Section 3 of The Indian Telegraph Act, 1885. Reliance placed by appellant's counsel upon decision of a Single Bench of this Court in J.K. Mittal (Supra), is of no avail for the reason that the said decision is based upon concession extended by counsel for respondent and is not on merits. Supreme Court in M.L. Jaggi (supra) has clearly declared that an Award under The Indian Telegraph Act, 1885 is final and the remedy against an Award passed under the aforesaid Act, lies under Article 226 of The Constitution of India.

In the considered opinion of this Court, the impugned order suffers from no illegality or infirmity and hence, this appeal is dismissed with liberty to appellant to challenge the Award of 8 th July, 2013 by recourse to Article 226 of The Constitution of India.

FAO 405/2015 Page 2 At this stage, learned counsel for appellant submits that this appeal be treated as a writ petition against the Award of 8 th July, 2013 and the objections filed by appellant be treated as grounds to challenge the aforesaid Award. Such a prayer is made by appellant's counsel to meet the objections of delay and latches in filing the writ petition.

Since appellant was ill advised to challenge the impugned order, therefore, such a course otherwise also cannot be permitted for the reason that the grounds to challenge the impugned Award by way of a writ petition under Article 226 of The Constitution of India are not the same as in this appeal. Needless to say that appellant shall have the benefit of Section 14 of The Limitation Act as and when the objection of delay and latches is raised and considered.

This appeal and the application are disposed of with clarification that neither the impugned order nor this order has touched upon the merits of the Award in question, which ought to be now assailed by appellant by recourse to Article 226 of The Constitution of India.

                                                            (SUNIL GAUR)
                                                               JUDGE
SEPTEMBER 27, 2016
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FAO 405/2015                                                         Page 3