NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S).  8732/2015

UNION OF INDIA                                     APPELLANT(S)

                               VERSUS

TECH MAHINDRA BUSINESS SERVICES LTD. (FORMERLY KNOWN AS HUTCHINSON GLOBAL SERVICES LTD.) RESPONDENT(S)

J U D G M E N T

KURIAN, J.

The whole dispute in this case stems out of a

show  cause  notice  issued  to  the  respondent  on

27.02.2013,  which  was  challenged  before  the  High

Court of Bombay leading to judgment in Writ Petition

No.529  of  2013.   The  relevant  paragraph  of  the

judgment reads as follows:-

“4. If  the  petitioner  is  directed  to

deposit  the  amounts  determined  to  be

the loss to the DoT/Government of India

due  to  the  unauthorized  telecom

resources being used, it would be bound

to do so and its failure to do so would

be  met  with  the  consequences  as  per

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law.  There can however, be no question

of  the  petitioner  being  directed  to

furnish the undertaking to deposit the

said amount as directed by the impugned

order  dated  27th February,  2013

unconditionally.   That  would  deprive

the petitioner the right to challenge

the  orders  if  any  this  regard.   The

petitioner is at liberty to challenge

any  order  passed  by  the  respondents

including an order, if any, regarding

the  loss  on  account  of  the

circumstances  mentioned  above  in  the

impugned  order.   The  impugned  order

would be subject to orders, if any, of

the Court or Tribunal before which it

is challenged.

5. The petitioner therefore shall not

be required to furnish an unconditional

undertaking  as  demanded.   The

undertaking  shall  be  subject  to  the

orders, if any, that may be passed in

proceedings  that  the  petitioner  may

adopt to challenge the same.

6. Needless to clarify therefore that

the  show-cause  notice  dated  20th

January, 2013 remains outstanding.

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7. The respondents have acceded to the

petitioner’s  request  of  a  personal

hearing  in  respect  of  the  show-cause

notice.   No  coercive  action  shall  be

taken for a period of two weeks after

the  service  of  the  order  pursuant  to

the  show-cause  notice,  if  adverse  to

the petitioner.”

2. Pursuant to the judgment of the High Court, the

appellant  passed  a  fresh  order,  after  hearing  the

parties, on 14.07.2014.  The relevant portions of the

order read as follows:-

“Establishing end to end bandwidth

is licensed through UASL, IP-II, NLD &

ILD licenses.  Therefore, the company

is liable to pay the loss incurred to

Government of India due to unauthorized

establishment and operation of end to

end bandwidth, by the company.

Therefore,  M/s.  Tech  Mahindra

Business  Services  Ltd  (erstwhile

Hutchison Global Services Pvt. Ltd.) is

directed  to  pay  a  sum  of

Rs.6,11,73,460/-  (Rupees  Six  Crore

Eleven Lakh Seventy Three Thousand Four

Hundred  and  Sixty  only)  towards  loss

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incurred to Government of India.  This

includes  license  fee,  penalty  and

interest charges as prescribed in UASL

license  for  the  period  April  2007  to

June  2014.   Ready  reckoner  ceiling

tariff for STMs notified by TRAI vide

notification  no.312-7/2004-Eco.  Dated

25th April, 2005 has been considered to

calculate  the  license  fee  payable.

Interest (compounded monthly) has been

charged @ SBI PLR as on 1st April of the

financial  year  concerned  +  2%.

Calculation sheet is annexured.

The amount shall be paid to CAO,

CCA  Maharashtra,  BSNL  Administrative

Complex,  Juhu  Road,  Santacruz  (West),

Mumbai, within 21 days from the date of

issue of this demand note and details

of payment shall be intimated to this

office.”

3. This  order  was  challenged  before  the  Telecom

Disputes  Settlement  and  Appellate  Tribunal (for

short,  ‘TDSAT’),  leading  to  the  order  dated

01.07.2015, which is under challenge in this appeal.

It  has  been  categorically  held  in  the  order

that ..”the respondent has erred in calculating the

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loss  using  the  ceiling  rate  provided  in  an  order

issued in 2005 in a regime where the rates have been

continuously falling.  Further, it is not fair to use

the  highest  percentage  prescribed  under  the  UASL

License to calculate the licensee fee as well as the

interest and penalty provided in a UASL license to

calculate the total loss.  We may note here that if

an ordinary subscriber had made a similar mistake,

the respondent-DoT could only have imposed fine as

provided in the Telegraph Rules.  Just because the

petitioner happens to have an OSP registration, we do

not see how interest and penalties as provided in a

UASL license can be imposed on it”.

4. Though such a finding was rendered, in order to

put a quietus, the Tribunal took the view that “…

interest  of  justice  will  be  subserved  if  the

respondent  was  to  calculate  the  loss  assuming  the

same payments as made by the petitioner to M/s. Tata

Communications Ltd., for the same bandwidth.  For the

period prior to the year 2010, the highest payment

made for any year (Rs.12,96,056/- for the year 2012)

may be used for all the years.  The license fee that

M/s.  Tata  Communications  Ltd.,  would  have  paid  on

this amount may be taken as the loss of licensee fee.

The respondent may charge an interest of 10% from the

date such license fee would have become due”.

5. We  have  heard  Ms.  V.  Mohana,  learned  senior

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counsel  appearing  for  the  appellant  and  Mr.  Meet

Malhotra,  learned  senior  counsel  appearing  for  the

respondent(s) extensively.   

6. Ultimately, the whole issue revolves round the

authority  of  the  appellant  to  levy  penalty  and

interest.  According to the learned senior counsel

for the appellant, there are valid notifications in

that  regard  having  force  of  law  and  also  on  the

quantum.   However,  we  do  not  find  that  any  such

material was available before the Tribunal.  Bereft

of  such  information  only,  the  Tribunal  ultimately

passed the impugned order in the interest of justice.

7. In case there are such materials having the force

of  law,  it  is  for  the  appellant  to  approach  the

Tribunal and seek review. The appeal is disposed of.

8. Having  regard  to  the  pendency  of  the  appeal

before  us,  we  grant  a  period  of  thirty  days  from

today to the appellant to do the needful.  In case,

no review is filed within thirty days from today, the

amounts deposited by the respondent, after adjusting

the amount already awarded by the Tribunal, shall be

refunded  to  the  respondent  with  the  same  rate  of

interest i.e. @ 10% per annum, within another fifteen

days.  In case such a review is filed, we request the

Tribunal  to  dispose  of  the  same  expeditiously  and

preferably within six months.  We make it clear that

we have not otherwise considered the matter on merits

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and hence all contentions available to both the sides

are  left  open.   Liberty  is  also  available  to  the

appellant in terms of the judgment in Vinod Kumar v.

State of Goa and Others, reported in (2012) 12 SCC

378.

9. Pending  applications,  if  any,  shall  stand

disposed of.

10. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [A.M. KHANWILKAR]  

NEW DELHI; OCTOBER 03, 2018.

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