PLJ 2013 Islamabad 190
Present:
Noor-ul-Haq N. Qureshi, J.
WARID
TELECOM (PVT.)
LTD. and 4 others--Petitioners/Appellants
versus
PAKISTAN
TELECOMMUNICATION AUTHORITY, ISLAMABAD
and 4 others--Respondents
W.P. Nos. 1152
of 2012, FAO Nos. 16, 17, 18 & 19 of 2012, heard on 8.3.2013.
Pakistan
Telecommunication Telecom Consumer Protection Regulation, 2009--
----Regl. 8(4), 85(i)--Pakistan
Telecommunication Re-organization Act, 1996, Ss. 3 & 7--Constitution of Pakistan, 1973,
Art. 18--Private companies engaged in business of providing cellular
telecom services to millions of customers--Different prize schemes for
customers were launched for purpose of marketing and providing incentives to
customers--Challenge to--Question of maintainability of writ
petition--Unscrupulous elements were deceiving consumers through
calls/SMS--Validity--Petitioners had pleaded that such schemes were launched
for purpose of marketing and providing incentive to customers, but same did not
affect their original business as such no right is abridged, hence petitioner
cannot agitate same to be their natural right--Petitioner had never claimed
that any of directive or such decisions had been complied with in its letter
and spirit and nothing on their part was available, thereupon liability was to
be shifted to respondent--If anybody escapes from his responsibilities, he
cannot anybody escapes from his responsibilities, he cannot claim rights on
same footings--Unscruplulous elements were deceiving consumers through calls
whereby they were falsely offered and fleeced though attractive cash prizes
inami schemes including balance increase, transfer of credit
facility--Petitioner ultimately when were not able to deter those
mischievousness elements through their own system thereby deceitfully cheating
general public, they cannot claim any relief--Such elements by misusing system
of petition through modern devices creating troubles for innocent
consumers--Directive issued by Director Consumer Protection was not deemed to
be a decision by authority no view of Sections 3 & 7 of Act--Rights as
guaranteed u/Art. 18 of Constitution were attracted with conditions envisaged
and not entirely unfettered--No right of petition was infringed--An opinion can
conveniently be formed that paramount consideration had been paid to consumers
interest for which petitioner had no remedial way--If petitioners were seeking
relief on general principle of natural justice, how they can get rid of
responsibilities when general public was highly affected through such schemes
launched--Consumers cannot be left upon mercy of companies, who had launched
schemes without any accountability--Petition was dismissed. [Pp. 197, 198 & 199] A, B, C, D, E, F, G
& H
Mr. Ali Raza,
Mr. Ali Sibtain Fazli & Malik Sardar Khan, Advocates for
Petitioner/Appellants.
Mr. Afnan Karim
Kundi & Misbah-ul-Mustafa, Advocates for Respondent.
Dates of
hearing: 4 & 8.3.2013.
Judgment
As the above
titled writ petition and FAOs involve common question of law and facts, therefore,
the same are being disposed of through this single order.
2. In all these
cases, the petitioner as well as appellants seek setting aside of the impugned
directive dated 09.04.2012 issued by the respondent being illegal, void,
without due authority and violative of constitutional rights.
3. Brief facts
as narrated in all these cases are that petitioner in W.P. No. 1152-2012 is a
public limited company whereas in FAO Nos. 16 to 19-2012, the appellants are
private/limited companies engaged in the business of providing cellular telecom
services to millions of customers in Pakistan. All the above titled
companies launched different prize schemes for their customers for the purpose
of marketing and providing incentives to their customers. On 06.07.2010, the
respondent issued a directive requiring all cellular mobile operators to stop
all prize schemes on the ground that respondent had received complaints about
these schemes which were being used by unscrupulous elements for committing
fraud with the customers. After a hearing held on 23.07.2010, the respondent
withdrew its suspension directive dated 06.07.2010 vide letter dated 02.08.2010
permitting such marketing schemes to continue with certain directions. Later
on, the respondent vide its directive dated 09.04.2012 directed that all prize
schemes being offered by all cellular mobile operators be suspended immediately
on the ground that such schemes were prima facie contrary to law, PTA's
direction and in violation of Regulation 8(4) & 8(5)(i) of Telecom Consumer
Protection Regulation, 2009.
4. Learned
counsel for the petitioner in W.P. No. 1152-2012 argued that the impugned
directive is in violation of the settled principle of audi altrem partem. The
impugned directive has been issued without hearing the petitioner or issuance
of notice, the same has been issued without conducting any inquiry or hearing
therefore is patently illegal, void, ab-initio and merits to be set aside. The
respondent should have issued a show-cause notice u/S. 23 of the Pakistan Telecommunication
(Re-organization) Act, 1996 in the event, a licensee
has contravened any provision of the license, Act, Rules or Regulations. The
impugned directive has been issued to five cellular mobile licensees, whereas
similar schemes are being offered and operated by various wireless local loop
operators, hence the same is discriminatory in nature. The respondent had no
authority to interfere with lawful marketing of products of these cellular
companies. He has further argued that impugned directive is contrary to the
terms of petitioner's license and the mandatory requirement u/S. 4(f) of the
said Act should have been fulfilled by the respondent in case of any complaint.
He has argued that impugned directive is in violation of respondent's earlier
directive dated 02.08.2010, in which, such schemes were held to be permissible
with certain conditions. He further argued that respondent has directed to stop
"all types of prize schemes including genuine schemes with immediate
effect", which itself is an admission that there are genuine schemes also.
Lastly, he has prayed that impugned directive dated 09.04.2012 may be set aside and
respondent may be directed to carry out a hearing under the provisions of the
Pakistan Telecommunication (Re-organization) Act, 1996. In support of his
contentions, he has relied upon the following case law:-
(i) PLD 1989 FSC 60
(ii) 2001 CLC 385
(iii) PLD 2010 SC 61
(iv) PLD 1992 SC 153
(v) 2004 YLR 1161
(vi) 2006 CLC 342
(vii) 1998 SCMR 1863
(viii) 2007 SCMR 289
(ix) 2007 SCMR 410
(x) 2011 YLR 2705
5. Learned
counsel for the appellants in FAO Nos. 16 to 19-2012 has almost adopted the
same arguments as advanced by learned counsel for the petitioner. He has argued
that the respondent has acted in violation of law and the Constitution to stop
all prize schemes whether genuine or not. In term of Article 4 of the
Constitution, a person cannot be prevented in doing anything which is not
prohibited by law. The respondent itself admitted that there are genuine
schemes, which cannot be stopped. Under Regulations 8(4) & 8(5)(i) of the
Pakistan Telecommunication Protection Regulation, 2009, only those prize
schemes are prohibited which are fraudulent or misleading in material content,
whereas the appellants have given prizes to eligible winners, hence these
schemes cannot be called fraudulent. Moreover, the impugned directive has been
issued without hearing the appellants, which is against the natural justice as
well as Section 24-A of General Clauses Act, 1897. In the end, he has requested
for setting aside of the impugned directive.
6. At the very
outset, learned counsel appearing for the respondent has agitated the
maintainability of the writ petition on the ground that enforcement of some
rights guaranteed under Articles 4, 18 & 25 of the Constitution of Islamic
Republic of Pakistan has been sought, which gives protection to the `citizens'
of Pakistan, whereas the petitioner as well as appellants are private/public
limited companies. Furthermore, he has argued that FAOs are also not maintainable
because remedy of filing an appeal is provided against any decision or order of
the respondent under Section 7(1) of the Pakistan Telecommunication
(Re-organization) Act, 1996. Moreover, the issues involved require probe into
the facts of the matter, which could only be possible after adducing of
evidence. Under Clause 3.1.3 of the license, a licensee is bound to cooperative
with the respondent and to comply with all orders, determinations, directives
and decisions of the Authority, hence challenging of the directive is not
tenable in the eye of law.
7. On merits, he
has argued that under Section 6(f) of the said Act, the respondent is bound to
ensure the interests of users of telecommunication services, which should be
safeguarded and protected. On this point, the respondent has to submit yearly
reports to the Federal Government. Moreover, He has argued that respondent was
compelled to issue this directive, as unscrupulous elements of the society used
to exploit these prize/Inami schemes for their fraudulent activities. Those
unscrupulous elements were deceiving the consumers through calls/SMS whereby
they were falsely offered and fleeced through attractive cash prizes/Inami
schemes including balance increase, transfer of credit facility etc. Regarding the
opportunity of hearing which according to the petitioner/appellant, was not
provided, learned counsel for the respondent contended that in response to the
aforesaid directive, all CMTOs approached the respondent. Keeping in view the
concerns raised by the CMTOs including the petitioner/appellants, some
precautionary measures were required to be taken to safeguard the interest of
telecommunication consumers. Moreover, the letter dated 09.04.2012 is a
directive which requires no prior issuance of show cause notice or hearing,
hence the said directive is perfectly legal and is binding. The respondent
being a statutory body has a legal mandate to monitor and enforce the licenses
granted by it vis-a-vis their provision of telecommunication services. The
petitioner as well as appellants has gone beyond their real business by luring
the customers through launching different prize/Inami schemes. Moreover, the
Hon'ble Supreme Court of Pakistan also took notice of such activities of the
CMTOs and directed the Chairman, PTA to monitor the commercial activities of
all the service providers/operators by adopting a self-executory mechanism and
take action, if law, rules and regulations controlling their commercial
activities are being violated. In support of his contentions, he has relied
upon case law reported in PLD 2010 Supreme Court 676. He has requested for
dismissal of instant writ petition as well as FAOs.
8. Arguments
heard. Record perused as well as the relevant provisions of law and the case
law presented by both the sides.
9. The
petitioner and the appellants in their respective matters have mainly agitated
the legal ground based upon the principle of audi alteram partem that they have
been condemned unheard.
10. The case law
relied upon by the learned counsel for the appellants reported in PLD 1989 SC
61, PLD 1965 SC 90 enunciates the principle that requirement of such principle
of natural justice must depend upon circumstances of each and every case. The
duty costs upon the Court to affect any statute or legal document.
Another case law
in support of such contentions reported as 2008 CLC 694 also discusses the
scope of audi alteram partem in view of conflict between the basic natural
right borne out of natural justice and provisions of law either general or
special. The Court gave verdict that the natural right should prevail.
The case law
reported in 2003 CLC 331 also enunciates such principle of natural justice in
the perspective, when the order on representation passed without hearing the
petition was not sustainable, as the same was passed in violation of principles
of natural justice.
11. As against
their viewpoint, learned counsel for the respondent has drawn my attention
towards the dictum laid down in PLD 2010 SC 676, wherein the Hon'ble Supreme
Court of Pakistan has clarified the clouds by an elaborate discussion. The
relevant Paragraph No. 23 discussing the issue is reproduced hereunder:-
"23.
Learned counsel appearing on behalf of the respondent-employees contended that
before passing any adverse order, the respondent-employees were entitled for
opportunity of hearing, as it has been held in Anisa Rehman v. PIAC (1994 SCMR
2232). In this behalf, it may be noted that in the said case the question for
consideration was with regard to demotion of the petitioner (therein) and in
that context it was observed that right of hearing should have been made
available to her. In addition to it, recently, this Court in Justice Khurshid
Anwar Bhinder v. Federation of Pakistan (CMA No. 2475 of 2009, etc.) while
dealing with the right of hearing has observed that "the principle of audi
alteram partem, at the same time, could not be treated to be of universal
nature because before invoking/ applying the said principle one had to specify
that the person against whom action was contemplated to be take prima facie had
a vested right to defend the action and in those cases where the claimant had
no basis or entitlement in his favour he would not be entitled to protection of
the principles of natural justice".
Another case
law, which has been relied upon in this regard reported in PLD 2010 SC 483 in
the case of Justice Khurshid Anwar Bhindar vs. Federation of Pakistan, wherein
the Hon'ble Supreme Court by a detailed discussion has formed an opinion, which
too, is reproduced herein below:-
"No
stricture was passed qua their eligibility, integrity, entitlement,
qualifications and besides that their removal from the office of Judges does
not amount to be a stigma and therefore, the doctrine of audi alteram partem
argued with vehemence cannot be pressed into service which otherwise is not
universally recognized due to certain limitations. Let us examine the doctrine
itself which was referred to time and again by the learned Advocate Supreme
Court on behalf of petitioners. "In Seneca's Medea, it is said: "a
judge is unjust who hears but one side of a case, even through he decides it
justly". Based on this, has been developed "Audi alteram partem"
as facet of natural justice". (Seneca Medea 4 BC-AD 65) "Audi alteram
partem" means hear the other side; hear both sides. Under the rule, a
person who is to decide must give the parties an opportunity of being heard
before him and fair opportunity to those who are parties in the controversy for
contradicting or correcting anything prejudicial to their view" (emphasis
provided). (Union of India v. Tulsiram Patel AIR 1985 SC 1416
at p. 1460). The petitioners were admittedly not a party in the main
controversy. "Since the audi alteram partem rule is intended to inject
justice into the law, it cannot be applied to defeat the ends of justice, or to
make the law lifeless, absurd, stultifying, self-defeating or plainly contrary
to the common sense of the situation. `Audi alteram partem' rule as such is not
cast in a rigid mould and judicial decisions establish that it may suffer
situational modifications". (Emphasis provided). (Maneka
Gandhi v. Union of India AIR 1978 SC 597). It may not be out of place to
mention here that by now it is well established that "where a right to a
prior notice and an opportunity to be heard before an order is passed would
obstruct the taking of prompt action, such a right can be excluded. Thus, the
rule may be discarded in an emergent situation where immediate action brooks no
delay to prevent some imminent danger or injury or hazard to paramount public
interests" (Swadeshi Cotton Mills vs. Union of India AIR 1981 SC 818,
(1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533. Note: Decisions in Maneka Gandhi
v. Union of India
AIR 1978 SC 597, (1978) 1 SCC 248, Mohinder Singh Gill v. The
Chief Election Commissioner AIR 1978 SC 851, (1978) 1 SCC 405, Union of India v.
Tulsiram Patel AIR 1985 SC 1416, (1985) 3 SCC 398. The "audi
alteram partem" rule would be excluded, if importing the right to be heard
has the effect of paralyzing the administrative process or the need for
promptitude or the urgency of the situation so demands. (Pearlberg
v. Varty (Inspector of Taxes), [1971] 1 WLR 728 (CA), [(1971) 2 All ER 552
(CA). A prima facie right to opportunity to be heard may be excluded by
implication in the following cases:-
(i) When an authority is vested with wide
discretion
(H.W.R. Wade & C.F. Foryth:
Administrative Law, 7th Ed. at p. 391 H.W.R. Wade & C.F. Forsyth:
Administrative Law, 7th Ed. at p.392)
(ii) When the maxim "expression unius
est exclusion atterious' is involved
(Colquhoun v. Brooks 21 QBD 52 at p.
62 Humphrey's Executor v. United States (1935) 295 US 602)
(iii) Where absence of expectation of hearing
exists
Y.G. Shivakumar v. B.M. Vijaya
Shankar (1992) 2 SCC 207, AIR 1992 SC 951
(iv) When compulsive necessity so demands
(Union of India v. W.N. Chdha
(supra)
(v) When nothing unfair can be inferred
(Union of India v. W.N. Chdha
(supra)
(vi) When advantage by protracting a
proceedings is tried to be reaped.
Ram Krishna Verma v. State of U.P. (1992) 2 SCC 620,
AIR 1992 SC 1888)
(vii) When an order does not deprive a person of
his right or liberty
(Indian Explosive Ltd. (Fertilizer
Division), Panki, Kanpur v. State of Uttar Pradesh (1981) 2 Lab LJ 159)
(viii) In case of arrest, search and seizure in
criminal case
(Union of India v. W.N. Chdha 1993
Cr.LJ 859, 1993 Supp (4) SCC 260, AIR 1993 1082)
(ix) In case of maintaining academic
discipline
(1992) 2 SCC 207)
(x) In case of provisional selection to an
academic course
(S.R. Bhupeshkar v. Secretary,
Selection Committee, Sarbarmath Hostel, Kilpauk, Medical
College Hostel Campus, Madras
AIR 1995 Mad 383 (FB)
(xi) In case of enormous malpractices in
section process
(Biswa Ranjan
Sahoo v. Sushanta Kumar Dinda (1996) 5 SCC 365, AIR 1996 SC 2552)".
12. After going
through the above principle enunciated by the Hon'ble Supreme Court, it becomes
explicitly clear that such right borne from the Roman Maxim is to be exercised
under the circumstances of each case and in some particular requirements, when
a natural right is going to be infringed.
13. The case in
hand, from its contents, is very much clear after going through its general
complexion. The petitioner/appellants themselves have pleaded that prize
schemes were launched for the purpose of marketing and providing incentives to
their customers, but same do not affect their original business as such no
right is abridged, hence the petitioner/appellants cannot agitate the same to
be their natural right.
14. It can be
evaluated from another prospective that a right is guaranteed with acceptance
of responsibility. From perusal of record it reveals that petitioner/appellants
earlier responded the similar type of proceedings initiated in the month of
July, 2010, when they approached the authorities and finally on resolving,
decisions were initiated by their meetings of minds.
15. From the
whole pleadings, the petitioner/appellants have never claimed that any of
directive or such decisions have been complied with in
its letter and spirit and nothing on their part is available, thereupon
liability was to be shifted to respondents.
16. On a query
raised by the Court, as to whether they are capable to stop such mal-practices,
mischievousness and cheating with the general public by using their efforts, to
which, the petitioner/appellants bluntly refused that it is beyond their
capabilities, meaning thereby that they are ably ready to enjoy the fruits of
those schemes launched beyond to their actual business, but not ready to take
responsibilities. Therefore, in my opinion, if anybody escapes from his
responsibilities, he cannot claim the rights on the same footings.
17. Learned
counsel for the respondent during course of arguments has also drawn my
attention towards Sections 8(4) & 8(5)(i) of the
Pakistan Telecommunication Protection Regulation, 2009 by which, the
petitioner/appellants were enjoying by launching their respective schemes. He
by producing a Notification dated 25.04.2012 disclosed that such provision of
law has been omitted therefore now the petitioner/ appellants cannot continue
such their activities, which highly affected the rights of citizens, who are
millions in number. Moreover, he has argued that respondent was compelled to
issue this directive, as unscrupulous elements of the society used to exploit
these prize/Inami schemes for their fraudulent activities. Those unscrupulous
elements were deceiving the consumers through calls/SMS whereby they were
falsely offered and fleeced through attractive cash prizes/Inami schemes
including balance increase, transfer of credit facility etc.
18. The
petitioner/appellants ultimately when are not able to deter those
mischievousness elements through their own system thereby deceitfully cheating
the general public, they cannot claim any relief. Admittedly
those elements by misusing the system of petitioner/ appellant through modern
devices creating troubles for innocent consumers. But they are not able
to stop such their evil activities.
19. The impugned
directive issued by the Director Consumers Protection is not deemed to be a
`decision' by authority in view of Sections 3 & 7 of the Pakistan
Telecommunication Re-organization Act, 1996 therefore preferring FAOs are not
in accordance with law.
20. The rights
as guaranteed under Article 18 of the Constitution of Islamic Republic of
Pakistan, as contended, are attached with certain conditions envisaged and not
entirely unfettered. Therefore, in my view, no right of the
petitioner/appellants has been infringed.
21. Moreover,
multiple issues raised by either side call for factual
controversy, as such, same cannot be redressed by exercising writ jurisdiction.
View in this regard is supported by "2009 MLD 367, 2007 YLR 399, 2008 YLR
2381, PLD 1983 SC 280 and 2004 CLC 324".
22. Moreover,
throughout the provisions of Pakistan Telecommunication Re-organization Act,
1996, it appears that consumer's interest is protected, which is undisputed
legal right. In this regard, Section 4(1)(m) of the
said Act is reproduced herein below:-
"4(1)(m) regulate competition in the telecommunication sector
and protect consumer rights".
Moreover,
Section 6(f) also provides such protection as under:-
"6(f) the
interests of users of telecommunication services are duly safeguarded and
protected"
24. The
Regulatory Authority is bound under the law to inform the Government through
their yearly reports under Section 18(1) of the said Act regarding protection
of consumers' interest, which is reproduced hereunder:
"18.
Submission of yearly report, returns, etc.--(1) As soon as possible after the
end of every financial year but before the last day of September next
following, the Authority shall submit a report to the Federal Government on the
conduct of its affairs, including action taken for protection of consumers
interest, for that year".
25. From the
general complexion an opinion can conveniently be formed that paramount
consideration has been paid to consumers' interest for which the
petitioner/appellants have no remedial way. If the petitioner/appellants are
seeking relief in their favour on the general principle of natural justice, how
they can get rid of their responsibilities when general public is highly
affected through such schemes launched. The consumers cannot be left upon the
mercy of the companies, who have launched these schemes without any
accountability. They are the direct affectees and are facing tortures and
mental agonies on daily basis and the Court cannot remain oblivious. It inheres duty to Court to help them for relieving their
miseries before they completely became languish mentally financially as well as
morally. Throughout the dispute, general public has not
been paid any
attention despite a
decision arrived at between the companies and PTA authorities
produced at page-66 of the petition dated 02.08.2010.
26. Under these
circumstances, no way remains except to dismiss the petition as well as FAOs as
the relief claimed is against the rights of general public.
27. The above
are the reasons of shot order announced on 08.03.2013.
(R.A.) Petition
dismissed
