Judgment:
Dispute between the petitioner and the respondent-Nigam resulted in a reference being made to an arbitrator being the Deputy General Manager (Broadband) of the Nigam. An award dated 12th September, 2008 was made by the arbitrator under Section 7-B of the Indian Telegraph Act, 1885. The same was challenged by the petitioner by filing a writ petition. The same was allowed by an order dated 16th January, 2009.
The award was set aside primarily on the ground that the arbitrator had not recorded reasons in support thereof. The arbitrator was directed to proceed afresh by giving reasons in support of his award. He was given liberty to give both parties to the reference a short opportunity to remind him of the facts and the maters in issue in the reference. The arbitrator, while proceeding in compliance with the Courts Order, has made an award dated 21st May, 2009. The concluding portion thereof reads as follows:
V E R D I C T :- Having carefully examined the statement of facts and counter statements along with the relevant documents/papers submitted by the petitioner/subscriber and O. P. and carefully considered the oral submissions made by both the parties to the dispute and also the findings as well as observation stated herein above I RAM NARAYAN YADAV, DEPUTY GENERAL MANAGER (BROADBAND), Calcutta Telephones, as a sole arbitrator in the instant disputed matter, do hereby grant the under mentioned rebates w.r.t. broadband service and Telephone service related charges associated with telephone No.2570- 3832. 50% Rebate on total bill i.e. Rs.1,73,432/- for BB Service and telephone charge. The customer should deposit Rs.86,716/- and thus the O. P. will withdraw the letter dated 22-10-2007 issued by the ld. Advocate on behalf of the Telegraph Authority to the said subscriber/customer for deposit the same after getting payment of Rs.86,716/-.
This award is the subject matter of challenge in the present petition. I have heard learned Advocates for the parties and perused the impugned award. It would be pertinent to reproduce below two paragraphs from the impugned award which, to my mind, are mutually inconsistent. The same read as follows:
Further it was also evident from records that Telegraph authority had constituted a HPC to conduct enquiry into the complaint of the petitioner and as such the said authority duly sent a notice on 23-08- 2007 by registered post with A/D informing the petitioner to appear on 13-09-2007 before the HPC and the petitioner refused to accept the said notice. In one hand the said act of refusal indicates his non cooperation with the HPC to conduct enquiry into his complaint in ascertaining wrong and on the other hand said demeanor of the petitioner gives rise to reasonable doubt that the petitioner acted deliberately and intentionally to cover the fault. On the fact of material fact that it was also the case of the petitioner that the On the other hand, it clearly appears to me from the records that the Telegraph Authority had committed grave mistake in not conducting enquiry in the complaint made by the petitioner for faulty BB services and also the said authority failed and neglected to detect wrongs properly and to penalize the wrong doers who unlawfully used BB services as per their detail records in as much as there are three types of chances of BB misuses if the password might be leaked or the subscriber might go to that place or the password might be hacked by somebody.
Learned Advocate for the Nigam has failed to satisfactorily explain the inconsistency reflected in the award. Since I am satisfied that the arbitrator has not exercised his jurisdiction in accordance with law, it would be appropriate to remit the matter. While setting aside the impugned award and communication dated 8th July, 2009, I direct the General Manager (Sales & Marketing) of the Nigam to decide the rival claims upon granting adequate opportunity of hearing to the petitioner as well as to the authorised representative of the Nigam. An award shall be passed by the said General Manager as early as possible but not later than four months from date of receipt of a copy of this order.
The writ petition stands disposed of. There will be no order as to costs. Urgent certified photocopy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.