JUDGMENT Ravi s. Dbavan, J.
1. All these writ petitions complain of arbitrary and excessive billing of local call charges by the telephone department, i.e., the Union of India. One thing is clear that the matter relating to the complaints of the consumers have to be dealt by the Department itself as it must be seen to be responding to genuine complaints of those telephone subscribers who have a valid grievance. It was with this aspect in mind that the Court had given directions to the Union of India that the record of the petitioners relating to the recording of local calls must be placed before the Court. The Court regrets to place on record that despite several orders, the Union of Indiaevaded bringing the original record at the Bar of the Court despite the fact that a writ of certiorari has been issued. The Union of India took a consistent stand that the original record are either not available or have been weeded out. What was placed before the Court is a despatch record of bills which were issued to the petitioners as subscribers on a card-sheet. This is not a record of recording the meter readings, if recorded directly on a card or a ledger and then on a card. The guard bills, the copies of which were sent to the subscribers nor the files or the ledger which contained the record of recording the readings have not been produced before the Court despite directions and orders of the Court. The Court had also directed that between the petitioners and the telephone department, they must exchange a set of at least six bills, in order of chronology before the filing of the writ petition, on which the petitioners as subscribers and the telephone department providing the utility service were not at issue. The purpose was that the telephone department may act as an arbitrator in taking out an average from the past bills in a chronological order and neither party may pick and choose bills at random to justify its case, on the charge or payment of excessive calls.
2. It must be kept in mind that these cases are of a period when computerization of monitoring subscriber call charges had not been inducted by the telecommunication department. This is the period or the era when the stowager exchange recorded calls of subscribers mechanically through rotary digits. Today, each subscribers call, local, long distance or international are programmed through a computer at the exchange. The programme even permits a subscriber to self look the appliance to make long distance or international calls. Of course, even modern information technology can be prone to errors.
3. The defence of the telephone department has been that the record is not available. This leads the Court to presume that there is a disinclination to produce the record and the best evidence is being kept away. In the circumstances, ihe Court has no option but to rely upon the record submitted by the petitioners and yet the telephone department itself can take a decision on the petitioners' grievances. What the petitioners have filed is, in fact, the record of the telecommunication department, as bills presented to them for payment, the master copy of which and the ledger of the record of readings or the card-index on which the meter readings were entered, if recorded, is with the department. If the telephone department is hesitating to bring the record before the Court, they cannot rely on a lost record after these proceedings are over, to judge the petitioners.
4. With the exception of one petitioner (Writ Petition No. 12879 of 1994) who had not placed the bills on meter readings, originals or copies, this writ petition for want of details and better particulars cannot be considered.
5. The bills which have been placed by the other petitioners, the master copy of which the telephone department will not produce before the Court reveals a strange and a bizzare picture on the billing pattern and style, insofar as the opening and closing reading is concerned.
6. The cardiogram of each case as a sample survey reads thus :
Date of Bill Reading Opening Closing Writ Petition No. 16564 of 1988 L. P. Naithani v. Allahabad Telephones 16-5-1986 No reading 16-7-1986 No reading 1 1-9- 1986 53000 53550 2-2-1987 No reading 10-4-1987 No reading 2-6-1987 30910 31700 6-10-1987 31580 31940 8-10-1987 29740 30150 8-2-1988 33140 42060 11-4-1988 No reading 1-8-1988 55840 56170 1-10-1988 56170 57660 Writ Petition No. 21288 of 1988 Dr. Sangita Khare v.
District Manager Telephones, Allahabad and others :
27-6-1986 360 680 15-12-1986 1180 1770 14-12-1987 2900 3420 20-6-1988 4050 4120 20-6-1988 4120 4710 Writ Petition No. 1178 of 1989 Dr. Sangita Khare v.
District Manager Telephones, Allahabad and others :
27-6- 1985 360 680 15-12-1986 1180 17.70 14-12-1987 2900 3420 20-6-1988 4050 4120 20-6-1988 4120 4710 Writ Petition No. 12868 of 1989 Pradeep Kumar v. District Manager (Phones) No reading 1-12-1986 No reading 1-2-1987 No reading 6-4-1987 No reading 10-6-1987 1-8-1987 2430 2490 5-10-1987 2490 2710 1-12-1987 2710 No reading 3230 29-2-1988 7-4-1988 3420 No reading 3570 1-6-1988 1-8-1988 3760 No reading 3990 24-12-1988 7-2-1989 5360 5620 Writ Petition No. 15958 of 1989 Sagar Mal Bothar v.
District Manager, Telecommunication, Allahabad and others :
23-5-1988 No reading 12-7-1988 10350 11490 12-9-1988 11490 13570 11-11-1988 No reading 11-1-1989 17610 23810 15-3-1989 23810 26540 22-5-1989 No reading 11-7-1989 23070 25390 4-8-1989 No reading 11-9-1989 25390 27930 11-11-1989 27930 30830
7. Some coincidences are too good to be true. They can happen once, twice, thrice but not every time and not to different people in different situations. The errors cannot be so coincidentally common. It is a matter so naked to the eye that every meter reading which opens and cioses does so with the figure '0' or '5'. It is inconceiveable that every meterreading of every subscriber opens and closes with either '0' or '5' and there is no other number in between at which the meter would stop. If this matter related to one bill or the second bill or the third bill, the Court would have ignored the situation. The same pattern is found for other subscribers. May be it is this reason why the telephone department is not even responding to the orders of the Court to place the original record. The bill by a Public Sector Undertaking, particularly, one discharging public utility service calls for standards of public accountability. It is too much for the Court to presume that every opening meter reading of every subscri ber begins with a '0' and ends with a '5' and the chargeable calls will carry the figure '0' and '5' in respect of every subscriber.
8. This chapter, of course, does close after the telephone department hooked itself to a computer system which accurately records for the provider of the facility and subscriber alike, the time of the call, the closing of the call and the duration of the call and the units charged. For one subscriber, reference Telephone No. 623034 (Writ Petition No. 16564 of 1988) has placed before the Court the computer print out given to him and details of the charge made for three calls, two calls, eight calls, twenty-three calls and sixty-six calls. The billing cycle, now, for the same subscriber (Writ Petition No. 16564 of 1988) does not as a habit open and close with a '0' or a '5' or vice-versa.
9. In the circumstances, the Court finds that a presumption has to be drawn against the Union of India for keeping away the best evidence from the Court despite the fact that a writ of certiorari has been issued. The law permits the Court to draw such a presumption when the best evidence will be kept away from the Court. This is provided in Section 114(g) of the Evidence Act, 1872. Besides with a writ petition pending and a writ of certiorari having been issued, in a matter like this, official records cannot be weeded out in a matter of audit and accounting. Keeping records of accounts, away froma Court of law, more so when such records are sought by the Court, is against the principles of public justice, and the Court, thus draws an adverse presumption against the party not producing the record which is the best evidence. (AIR 1965 SC 1755, Union of India v. Mahadeolal Prabhu Dayal and AIR 1966 SC 1325, Commr. of Income-tax, Madras v. Best and Co. (Private) Ltd., Madras.)
10. The defence of the Union of India does not inspire confidence that in every given situation the bills compute a charge of readings beginning or closing with a '0' or '5' in every bill and for every subscriber. The bill carries the column with the sub-heading "opening reading" and "closing reading". '
11. These matters genuinely need arbitration. The Divisional Manager (Telephones) must see the record of the petitions. In reference to these petitioners a stand has already been taken that the record is not available. The Court has not been left with any option, except by rule of law drawn an adverse presumption against the Union of India, Department of Telephones, Allahabad that such of these telephone bills relevant and genuine to the decision of cases have been kept away from the Court. The bills as presented to the petitioners, otherwise also the record of the telecommunication department will be the record in arbitration. The average will be taken on these bills and the issue on the disputed bills settled on this basis.
12. The Court is afraid that no assistance has been lent by any of the parties on the procedure applicable in resolving disputes on excess billing. At least, learned Counsel for the Union of India ought to have guided the Court to the relevant provision so that a correct appraisal of the situation can be had. Disputes between the subscribers and a Public Sector undertaking giving facilities on essential services cannot remain pending. Such disputes must be resolved.
13. The procedure for settling matters like the presentoneisto be found in the Post and Telegraph Manual, Volume XIV. In this regard, a case closer home to the present case is in the matter of Santokh Singh v. Divisional Engineer, Telephones, Shillong, AIR 1990 Gauhati 47. In this regard paras 6 and 7 of the Circular dated 9-4-1986 insofar as they are relevant, needs to be noticed.
14. Unnoticed to the petitioners and the telephone department is a general circular which is published in every telephone directory which relates to a subscriber being entitled a meter reading periodically on payment of charges. The very purpose of permitting a subscriber to have meter readings as a matter of right is that he could monitor his gross calls made during a particular period and should there be an occasion to make a complaint, he could address his complaint to the named authority in the circular. The last telephone directory for Allahabad provides that a subscriber may have access to meter readings on payment of Rs.2 for a period reading of a fortnight. (Allahabad Telephone Directory, 1990 page xxii.) In the matter of Santokh Singh (AIR 1990 Gauhati 47) (supra) there was an issue when the subscriber complained that he had not made use of the subscriber trunk dialing facility. In the present set of cases, the Court is not going into issues raised by the petitioners that they had not utilised the subscriber trunk dialing facility or that they had made a request that their subscriber trunk dialing facility be disconnected. Suffice it to say that if the subscriber had applied to the Department that his subscriber trunk dialing facility ought to be disconnected, then this should have been done so that this constant complaint ought not to linger further.
15. Amidst hearing yet another counsel for the Union of India, Mr. Sishir Kumar, addressed the Court. The Court required from him the telecommunication department compendium dealing with the excess billing complaints. He submitted that official publication was not available at Allahabad, but he had been instructed to submit that the telecommunication department itself refers to a publication known as Swamy's Treatise on Telephone Rules with Act, Rules, Orders, Digest, Guidelines and Case-law. This he submitted is a compilation of the official orders, rules and guidelines of the department.
16. In this book there is a Chapter 13 on Excess Metering Complaints which calls for investigation into technical check on meters and metering defects, correct metering and metering spurts, of reading errors or clerical errors. The spirit of these provisions does refer to "the accuracy of the billing" and of "meter readings".
17. A circular of the department No. 13-324/ Arh/88-TR, dated 13 April, 1989, has provided on the subject "Appointment of Arbitrators in case of Excess Metering". This is mentioned in pages 423, 424 of the book. It is provided that in case a subscriber "approaches the department to appoint an arbitrator, we are bound to do so.....". Another circular No. 2-31/92-TR, dated 16 September, 1992, refers to the subject of "setting up of a Committee for speedy disposal of Excess Metering Complaints". This is to be found at pages 427-428. This circular places on record in paragraph 2 that "Unsettled Excess Metering Complaints affect both the image of the Department as well as the reven..... Speedy settlement of these complaints, therefore, not only ensures inflow of cash but also improves the image of the Department".
18. These matters, before the Court, clearly are complaints on excess billing. On this the department instructions in the book, in context, at page 65 refers to officers who may deal with matters relating to "meter reading errors" and "rectify the errors". The Court considers it appropriate, after taking the views of the Additional Standing Counsel, Central Government, Mr. Sishir Kumar, who in turn has submitted on instructions that the District Manager, Telecommunication (D.M.T.) will deal with these matters on directions of the High Court. It would be appropriate that the D.M.T., Allahabad takes out in chronological order and not at random six bills prior to the filing of the writ petition on which the petitioners have not taken any issue. The average against these six bills will represent the charge on the disputed bills which the petitioners have sought to be quashed. The average which will not be reckoned will be the charge which the petitioners will be required to pay. The decision and the exercise to work out the average is to be taken before the close of the year. The average which will be worked out, will be shown to the petitioners. Thereafter, fresh bills will be issued in lieu of the disputed bills and payment on these fresh bills will be made within a month of its presentation.
19. The writ petitions succeed with costs, except Writ Petition No. 12879 of 1994 which is consigned to the record as dismissed.