ADJUDICATION AND APPEALS UNDER THE TELECOMMUNICATIONS ACT, 2023

[Mr. M. GOVINDARAJAN]

Chapter VIII of the Telecommunications Act, 2023 (‘Act’ for short) provides the procedure for adjudication of certain offences. 

Adjudication officer

Section 35 of the Act provides for appointment of the Adjudication Officer.  The Central Government shall appoint an officer of the Central Government, not below the rank of Joint Secretary as an Adjudication Officer, by an order published in the Official Gazette.  The Central Government may appoint one or more Adjudication Officers.  The Central Government may prescribe the manner in which the inquiry may be conducted by the Adjudication Officer.

Breach of authorization or assignment

The Adjudication Officer, in case of breach of the terms and conditions of authorization or assignment, after making such inquiry, shall pass the order in writing in respect of the following-

• direct such authorized entity, or assignee to do or abstain from doing any act or thing to prevent such breach or for such compliance;
• impose civil penalties as specified in the second schedule.

The Adjudication Officer shall make the recommendations to the Central Government for its consideration to revoke, suspend or curtailment of the duration of the authorization or assignment.  The Central Government, on receipt of the recommendations from the Adjudication Officer may suspend, revoke or curtail the authorization or assignment.  The same may be reversed if the substantial violations are remedied to the satisfaction of the Central Government.

Penalties

The Second Schedule prescribes the civil penalties for breach of terms and conditions.  Penalty is imposed according to the categories which are severe, major, moderate, minor and non severe.

• Severe - Penalty up to Rs.5 crore;
• Major - Penalty up to Rs.1 crore;
• Moderate - Penalty up to Rs.10 lakh;
• Minor - Penalty up to Rs.1 lakh;
• Non severe - written warning.

The third schedule to this Act provides civil penalties for certain contraventions. 

• First offence - up to Rs.50,000/- and for subsequent offence - up to Rs.2 lakh for each such instance for the following contraventions-

• Possessing radio equipment without an authorization or an exemption, except for the offence under clauses (d) and (f) of sub-section (3) of section 42;
• Use of subscriber identity modules in excess of number notified.

• Penalty up to Rs.10 lakhs - Use by any person or entity of a telecom service or telecom network knowing or having reason to believe that such telecom service or telecom network does not have the required authorization under this Act.
• Rs.50,000/- for first offence;  Each subsequent offence: Civil penalty up  to two lakh rupees for each such instance, or suspension of telecommunication service, or a combination thereof - contravention of the provisions of Section 28 (measures for protection of users).
• Rs.25,000/- for first offence; Second or subsequent offence: Further Civil penalty up to fifty thousand rupees for every day after the first during which the contravention continues - Contravention of any provision of this Act or rules, or any terms or conditions of an assignment or authorization in relation to any matter under this Act, for which no penalty or punishment is provided elsewhere in this Act.

Procedure

Any person may file a complaint before the Adjudication Officer for the contravention of the provisions of the Act in the prescribed form along with the prescribed fee.  On receipt of the complaint the Adjudication Officer shall conduct an inquiry.  On completion of the inquiry the Adjudication Officer shall pass order specifying the civil penalty as stipulated in third schedule, payable by a person committing such contravention.  The Adjudication Officer can suo motu conduct the enquiry. 

Certain contraventions contained in Third Schedule shall apply to the abetment of, or attempt to commit, or conspiracy to commit such contravention, as they apply to such contravention.  If the Adjudication Officer has the reasonable belief that a contravention may have occurred then it may issue a notice to the authorized entity or assignee.

During the process of hearing the authorized entity or assignee may submit a voluntary undertaking specifying the mitigation measures it proposes to take in respect of such contravention.  Such acceptance shall be construed as a mitigation measure and duly considered for the purpose of determination of civil penalty.  The voluntary undertaking-

• may include an undertaking to take a specified action within the specified time;
• refrain from taking specified actions; and
• to publicize the voluntary undertaking.

The Adjudication Officer may accept the voluntary undertaking or vary the terms included in the voluntary undertaking.

When the authorized entity or assignee providing a voluntary undertaking fails to comply with any terms of such undertaking, the Adjudicating Officer may, after giving such authorized entity or assignee a reasonable opportunity of being heard, proceed with imposition of civil penalties specified under the Second Schedule or the Third Schedule, as applicable.

While imposing penalties the Adjudication Officer shall consider the following-

• nature, gravity and duration of the contravention, taking into account of the scope of the contravention;
• number of persons affected by such contravention and the level of harm suffered by them;
• intentional or negligence character of the contravention;
• repetitive nature of the contravention;
• action taken by the concerned person to mitigate the contravention, including by providing a voluntary undertaking;
• revenue loss caused to the Central Government;
• any aggravating factors relevant to the circumstances of the case, such as the amount of disproportionate gain or undue advantage, wherever quantifiable, made as a result of the contravention; and
• any mitigating factors relevant to the circumstances of the case, such as the timely rectification of the contravention or steps taken for the avoidance of loss as a result of such contravention.

Appeal

The Central Government may by an order appoint officers of the Central Government, not below the rank of Additional Secretary, as members of one or more Designated Appeals Committee for hearing appeal from the aggrieved person against the order of Adjudication Officer.  The appeal shall be filed within 30 days from the date of receipt of the order from the Adjudication Officer in such form along with such fee as may be prescribed. 

Process to be followed

The functions of Adjudication Officer as well as the Designated Appeal Committee shall be digital by design.  They shall function as digital officers and deploy such techno-legal measures as may be prescribed, to enable online process for their functioning.

Powers

The Adjudicating Officer and Designated Appeals Committee shall have the same powers as a civil court, and all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code.

Enforcement of order

Any order made by the Adjudicating Officer or the Designated Appeals Committee shall be executable in the same manner as if it were a decree of civil court; and such orders shall be deemed to be final decrees under this section on the expiry of the period allowed for preferring an appeal against such orders.

Appeal to Tribunal

Any person aggrieved by an order of the Designated Appeals Committee under section 36, in so far as it pertains to matters under sub-section (1) of section 32, or an order of the Central Government under sub-section (2) of section 32, may prefer an appeal to the Telecom Disputes Settlement and Appellate Tribunal constituted under section 14 of the Telecom Regulatory Authority of India Act, 1997, within a period of 30 days from the date on which a copy of the order is received by such authorized entity or assignee.

Appeal to Civil Court

Any person aggrieved by an order of the Designated Appeals Committee under section 36, in so far as it pertains to matters under section 33, may prefer an appeal to any civil court having jurisdiction over the matter.

Civil Court - no jurisdiction

No civil court shall have jurisdiction in respect of any matter which the Adjudicating Officer, the Designated Appeals Committee, the Central Government or the Telecom Disputes Settlement and Appellate Tribunal are empowered by or under this Chapter to determine.