TMI Blog2012 (9) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'STL'.). 2. The International Telecom Union prepared some modules for such agreements commonly known as 'One Stop Shopping' (OSS) and Full Circle Services Agreement (FCSA). Whereas Bharti entered into an agreement with STL on OSS basis, TATA did so on FCS basis. 3. The Petitioners received notices on or about 30.6.2010 from the Respondent directing them to show cause as to why appropriate action shall not be taken against them, they having enabled an ILD service provider to illegally sell IPLC circuits directly to the customers in India and collect money from them in their own account operated in Singapore under the garb of the agreements, being in violation of the provisions of the Act as also Clauses 2.2(A), 11.1, 19.2 and 23.26 (iv) of the ILD license agreement. 4. The Petitioners on receipt of the said show cause notices and before filing their respective responses thereto sought for clarifications with regard thereto from STL. TATA sought for clarification from other international operators as well. Whereas Bharti did not receive any reply from STL, TATA did. In its reply STL contended that it had not committed any breach of the terms of the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maninder Singh and Mr. U. Hazarika, learned senior counsel appearing for the Petitioners, in support of these petitions, urged:- 1. The impugned orders, having been passed in violation of the principles of natural justice, cannot be sustained. 2. One Committee having given an opportunity to the Petitioner to make presentation(s), and the other Committee having not provided such an opportunity, it must be held that the impugned orders have been passed at the instance of second Committee without hearing the Petitioners and on that ground alone the impugned orders are liable to be set aside. 3. One of the members of the said Committee, Mr. S.T. Abbas, who issued the notices was also a member of the Committee, issued the impugned order and also affirmed an affidavit in support of the petition and, thus, there cannot be any doubt that he was a judge of his own cause. 4. The second Committee in its report dated 09.09.2011 having clearly stated that the matter had been referred to it to quantify the amount of penalty, it is beyond any pale of doubt that the Committee acted with a pre-determined mind. 11. Mr. K.P.S. Kohli, learned counsel appearing on behalf of the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the conditions of license, wherefor a complaint to the CBI had been made by it. 3. The Petitioners had failed to perform their obligations under the licence. If the said allegations are true, apart from the civil liability by way of imposition of penalties to the extent of ₹ 50.00 crores, the Petitioners may also face other proceedings i.e. termination of their licenses as also criminal proceeding. We, therefore, are of the opinion that it is not a case where the petitioners can be said to have not been prejudiced by reason of noncompliance of principles of natural justice. The Frankfurter principle laid down in Viterali Vs. Seaton (1959) 359 US 53 that 'he that takes the procedural sword shall perish with the sword', has been accepted by the Indian Courts. (See for example Ramana Dayaram Shetty v. The International Airport Authority reported in (1979) SC 1628 10) 16. Before, however, we consider the extent of requirements of the said principles in so far as these petitions are concerned, we may notice a submission of Mr. Maninder Singh that the completion of half circuits have been mandated by the Telecom Regulatory Authority of India (TRAI) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt or dispute that provisioning of the half circuit within the territorial jurisdiction of India had been recognized by the Regulator. The ITU made recommendations in 1992 whereby and whereunder an agreement between the 'coordinating administration' and 'participating administration' for providing service to the customers was highlighted. The subscriber would be the one of the Coordinating Administrator. 21. By signing a subscriber form of OSS, the participating coordinator had an option to enter into the said arrangements whereby the Coordinating Administration handles co-ordination between customers and other administrators concerned; the participating administration in order to make it simpler for the customer leasing International Private Leased Telecommunication Circuits. 22. It provided for a single point billing. Clauses 4.2 and 4.4 of the said recommendations read as under: 4.2 The coordinating Administration will not be liable to the participating Administration(s) for any charges unpaid by the customer. In the case of a customer failing to pay the bill for whichever reason, the coordinating Administration will inform the participating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TU's recommendations clearly stated that the Petitioner therein had failed to establish existence of such an agreement. 28. It is in the aforementioned factual backdrop, we may consider the applicability of the principles of natural justice. In Automotive Tyre Manufacturers Association Vs. Designated Authority Ors. reported in: (2011) 2 SCC 258, the Supreme Court of India held:- 80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial It is equally trite that the concept of natural justice can neither be put in a strait jacket nor is it a gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. It was opined that functions of the Excise Commissioner in terms of Rule 633 of the U.P. Excise Manual was quasi-judicial in nature, stating:- 31. Undoubtedly, action under the said rule is a quasi-judicial function which involves due application of mind to the facts as well as to the requirements of law. Therefore, it is plain that before raising any demand and initiating any step to recover from the executants of the bond any amount by way of penalty, there has to be an adjudication as regards the breach of condition(s) of the bond or the failure to produce the discharge certificate within the time mentioned in the bond on the basis of the explanation as also the material which may be adduced by the person concerned denying the liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act situation obtaining in the said case, it was held:- It was sufficient requirement of law that an opportunity of show cause was given to the Appellant before it was blacklisted. It is not disputed that in the present case, the Appellant was given an opportunity to show cause and it did reply to the show cause, which was duly considered by the State Government. 35. Reliance has also been placed on Ganesh Santa Ram Sirur Vs. State Bank of India And another reported in: (2005) 1 SCC 13, wherein a question arose as to whether a Bank employee had committed a misconduct by sanctioning loan to his spouse in contravention of the service rules, although the cheque issued pursuant thereto was not encashed. On fact, it was held that the decision in question was not an honest decision. It was furthermore held that objective was to ensure a fair hearing, a fair deal to a person whose rights are going to be affected and that the applicability of the principles of natural justice depends upon the context as well as facts and circumstances of each case. The said decision, as would appear from paragraph 36 of the report, however, was rendered in the peculiar facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, they have failed to prove the compliance of the Clause Nos. 2.2, 9.1, 11.1, 23.23, 23.26 (vi) and 19.2 of the ILD service license agreement which were stated to be violated by them as per show cause notice. DoT is of the view that M/s. BAL must have ensured that the IPLC customers in India are being served and billed by the Indian ILD operators; and the foreign carrier, with whom M/s BAL has signed OSS agreement, does not acquire customers in India and does not issue bills to the customers in India on the basis of such OSS agreement. 17. Now, therefore, as M/s Bharti Airtel Limited has violated the clause No. 2.2, 9.1, 11.1, 19.2, 23.23 and 23.26 of the ILD service license, a financial penalty of ₹ 50 Crores (Rupees Fifty Crores) is hereby imposed on M/s Bharti Airtel Limited as per clause 13.2(ii) of the terms and conditions of the ILD service licence agreement. M/s. Bharti Airtel is directed to pay the financial penalty amounting to ₹ 50 Crores immediately and in any case within 15 days of the date of issue of this notice failing which further action will be initiated under the terms and conditions of the ILD service licence. The amount may be deposited by m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. It has been observed by this Court in Union of India v. P.K. Roy: [(1968) 2 SCR 186 : AIR 1968 SC 850 : (1970) 1 LLJ 633]: The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket or a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. 41. Yet again, in Cantonment Executive Officer Vs. Vijay D. Wani reported in: (2008) 12 SCC 230, the question, which was posed, was noticed in paragraph 7 of the judgment:- 7. The question of bias is always the question of fact. The court has to be vigilant while applying the principles of bias as it primarily depends on the facts of each case. The court should only act on real bias not merely on likelihood of bias. In the present case, so far as the members of the Committee who conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by the State Government cannot be treated as enlarged in its scope. A delegate must confine his activity within four corners of the powers invested in him and if he has acted beyond that, his action cannot have any legal sanction unless ratified by the delegator. Having regard to the manner in which the Government of India functions, it is difficult to say that the signatory to the demand notice was to hear this petition. He is only authorized to sign on behalf of the President of India. 43. Yet recently, in Natwar Singh Vs. Director of Enforcement reported in: (2010) 13 SCC 255, it was held that adverse materials should be supplied to the affected party. 44. In a case of this nature, therefore, we are of the opinion that the Petitioner has been prejudiced by reason of non-compliance of the principles of natural justice. 45. For the reasons aforementioned, we are of the opinion that interest of justice would be sub-served if the Petitioners are allowed an opportunity of being heard. These Petitions are allowed. The impugned orders are set aside with the aforementioned observations. However, in the facts and circumstances of the case, there shall be no order as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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