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TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
DATED 02ND MAY, 2012
Petition No.248 of 2012
Bharti Airtel Ltd. … Petitioner
Vs.
Union of India … Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON
HON’BLE MR.P.K. RASTOGI, MEMBER
For Petitioner : Mr. Maninder Singh, Sr. Advocate
Mr. Navin Chawla, Advocate
Ms. Nidhi Parashar, Advocate
For Respondent : Mr. K.P.S. Kohli, Advocate for
Ms. Maneesha Dhir, Advocate
O R D E R
This petition inter-alia raises a question as regards interpretation of
various circular letters issued by the Respondent herein so far as the
obligations on the part of the licensee and verification and/or re-verification of Page 2 of 9
the Customer Application Forms (CAFs) and consequent imposition of penalty
is concerned.
2. Petitioner is a licensee operating inter-alia in the State of Assam and
North-East service areas. Respondent herein had issued a large number of
circulars with regard to the mode and manner in which the Customer
Application Forms (CAFs) should be verified and/or re-verified.
3. Cellular Operators Association of India as also Association of Unified
Telecom Service Providers of India, the Association of the Cellular Operators
along with a few licensees filed a petition before this Tribunal questioning the
validity of the circulars issued by the Respondent from time to time.
This Tribunal, while upholding the right of the Respondent to issue such
circulars, applying the doctrine of proportionality opined that the purport of
imposition of penalty on the ‘graded scale’, as directed by the Respondent in its
circular of December, 2008 was varied by it in its circular letters dated
03.02.2011 and 07.02.2011.
It was directed that the penalties be calculated on the graded scale as
applied on a non-telescopic basis like Income Tax. Page 3 of 9
4. In Petition No.252 of 2011, an interim order was passed on or about
03.06.2011 whereby and whereunder inter-alia it was directed :-
“(ii) In the event the operators are intimated about the suspicious
identity of any of the customers, his connection shall be
withdrawn.”
5. While the said petition was pending, the Associations of the Cellular
Operators as also some of the operators questioning inter-alia the validity of
certain circulars issued by the Respondent in respect of Assam and North-East
circles, filed a petition before this Tribunal, which was marked as Petition
No.15 of 2012.
While entertaining the said petition, the operators were directed to file
separate petitions circle-wise.
Pursuant thereto or in furtherance thereof, the Petitioner filed a petition
marked as Petition No. 27 of 2012.
The matter relating to the interim prayer made by the Petitioners came
up for consideration before this Tribunal and by an order dated 06.02.2012, it
was directed :-
(sic-consideration)
“19. We are of the view that each petition requires detailed after
filing of reply by the respondent. However, keeping in view the Page 4 of 9
interest of both the parties into consideration, we are of the opinion
that interest of justice will be sub-served if the petitioners are
directed to pay the 25% of the penalty imposed by the respondent
within a period of one week. This order would, however, be subject
to any other or further order which may be passed by the Tribunal.”
6. Petitioners were said to have made payments in terms of the said order
as also the interim order passed in Petition No. 252 of 2011.
Quantum of the amount payable to the Respondent in terms of the said
orders being in controversy, Miscellaneous Applications were filed by the
Petitioners therein. Miscellaneous Application filed by the Petitioner was
marked as M.A. No. 71 of 2012. The said application along with the connected
matters came up for consideration and by an order dated 28.02.2012, it was
directed as under :-
10. Therefore, we would like to clarify our orders dated 18.5.2011
and 03.6.2011 passed in Petition No. 252 of 2011 will be applicable
to these petitions also as a matter of principle and furthermore, only
25% of the penalty relating to failed CAF forms based on photo
identity issued by Village Panchayat Head and Caste and Domicile
certificate with photo issued by State Government shall be payable
as an interim measure.”Page 5 of 9
7. The parties hereto, however, again raised a controversy as regards the
interpretation of the said orders.
Petitioners, inter-alia, contended that they were worse off by filing the
application for clarification; whereas the contention of the Respondent was that
in terms of the said order dated 28.02.2012 only the Certificates issued by the
Gram Panchayat and Caste Certificate were to be excluded from computation of
the amount of penalty. The said matter is pending consideration before this
Tribunal. Respondent, however, raised additional bills imposing penalty for the
months of March, April and July 2011 on or about 03.04.2012.
In one of the said bills, the Respondent has placed a table which is as
under :-
Month Total No.
of non
compliant
CAFs
No. of non
compliant
CAF’s due to
Gram
Panchayat
and Caste
Certificate
(activated
between
20.07.2010
and
31.03.2011)
No. of non
compliant
CAF’s
suspended
No. of
CAFs on
which
penalty to
be
imposed
due to non
complianc
e of Audit
Report
Rate of
penalty
per CAF
in Rs.
Total penalty
Rs.
a n c d E=cxd
March-
2011
4687 1355 42 3290 50000 16,45,00,000Page 6 of 9
8. The fact that the Petitioner is not in a position to comply with the
requirements of the circular letter with regard to the 42 CAFs is not in dispute.
Whereas according to the Petitioner, not only the CAFs which were to be
verified on the basis of the Gram Panchayat and Caste Certificate is in question
in the Petition No. 15 of 2012 and other connected matters, but also the 3290
CAFs which were outside the purview of the said certificates.
9. The impugned demands have been made on two premises :-
(i) Violation of the circular letters;
(ii) Non-compliance of the orders passed by this Tribunal.
10. It is not in dispute that CAFs have been audited, on the basis whereof a
demand was made on 11.8.2011. The figures of unverified CAFs have also been
stated therein. Similarly, for the month of April 2011 demands were raised on
the basis of the audit report as would appear from perusal of the letter dated
21.12.2011. The impugned bills dated 03.04.2012 have been served on the
Petitioner on the same basis. Page 7 of 9
By reason of the impugned demand dated 16.4.2012, additional penalty
has been levied, the concluding paragraph whereof reads as under :-
“As evident from the above facts, M/s BAL not only violated DoT
instructions but also violated TDSAT orders by not deactivating the
number of non-compliant CAFs. Hence, the demand note issued for
non-compliance of audit report of March 2011 and April 2011 cannot
be kept in abeyance as requested. With regard to CAF audit of July
2011, a final reply to M/s. BAL was given by DDG on 06.02.2012.
In the meantime, M/s BAL approached TDSAT against the audit
report of July 2011. In the interim order Hon’ble TDSAT did not stay
operation of any DoT letter. Hence, in this case also, M/s BAL not
only violated DoT instructions but also violated TDSAT instructions
contained in TDSAT order dated 18.05.2011 in petition no. 252 of
2010. Hence, demand note issued for non-compliance of audit report
of July 2011 also can not be kept in abeyance as requested.”
11. Reliance in support thereof has been placed on paragraph 7 of the
circular letter dated 23.3.2009, which reads as under :-
“7. Timely Disconnection :
It is clarified that where CAF is found non-compliant for a working
mobile connection, either proper CAF should be produced within 72
hours or else the connection deactivated. In case of failure to take
either action, highest penalty of Rs.50,000/- shall be levied on each Page 8 of 9
such connection, in addition to the penalty for non-compliance during
subscriber verification.”
12. The short question, which arises for consideration is that keeping in view
the fact that verification/re-verification of the CAFs have not been carried out
within a period of three days or the connections having not been disconnected,
the Respondent is entitled to levy other and further penalties.
13. The other pending matters, in our considered opinion, have a direct
bearing on the controversies surrounding the present petition.
The order of this Tribunal passed in Petition No. 15 of 2012 is also under
consideration. Respondent, as has been done on thelier occasions, in the
event it was of the opinion that the Petitioner has not complied with the order
of this Tribunal, should have brought the same to its notice. ear
It, prima facie, in our opinion, ought not to have levied penalty for the
months of March 2011, April 2011 and July 2011 as penalties as regards non
re-verification of CAF forms have already been imposed, which is the subject
matter of Petition No. 15 of 2012 and thus the questions involved herein are
pending consideration before this Tribunal. Page 9 of 9
14. We, therefore, feel that subject to any other or further orders which may
be passed upon considering the reply filed by the Respondent, if any, and
without prejudice to the rights and contentions of the parties, interest of justice
would be sub-served if the Respondents are directed not to take any coercive
step to implement the impugned orders.
We have passed this order keeping in view the fact that on determination
of all the disputes, if it appears to us that the Petitioner is bound to pay the
additional amount demanded by it for which a suitable direction can be issued.
Equities between the parties can also be adjusted at an appropriate stage.
15. For the reasons stated heretobefore, Respondents are directed not to take
any coercive steps for realization of the demanded amount till further orders.
..……….......
(S.B. Sinha)
Chairperson
……………….
(P.K. Rastogi)
Member
rkc
