P L D 2014 Islamabad 1 (PLP)

RIAZ AHMAD KHAN, J.

This judgment is directed to dispose of appeal filed under section 7(1) of the Pakistan Telecommunication (Re-organization) Act, 1996, challenging order dated 7-9-2004, passed by respondent No.2, by virtue of which the petitioner company was burdened with fine of Rs.2,50,000 and order dated 12-5-2005, whereby respondent No. 1, upheld the said penalty imposed on the appellant.

2. Brief facts of the case are that the appellant is a private limited company, engaged in the business of telecommunication services of Card Pay Phones. The business is being conducted under the licence issued by the Pakistan Telecommunication Authority, respondent No.1. On 16-8-2004, the Zonal Director Enforcement PTA, respondent No.2, inspected two PCOs of the petitioner company and allegedly found some discrepancies. Similarly on 20-8-2004, another PCO of the petitioner company was inspected by respondent No.2 and allegedly again found certain discrepancies in this PCO as well. Thereafter, on 7-9-2004 respondent No. 2 passed the order, by virtue of which the petitioner company was burdened with fine of Rs.2,50,

000. The appeal against the said order was filed before the Chairman PTA, respondent No. 1, which was dismissed vide order dated 12-5-2005. Feeling aggrieved of the same, present appeal was filed.

3. Contention of learned counsel for the appellant is that under section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996 the respondents were required to issue notice, specifying the alleged contraventions and give time to the licensee to rectify the same. In case of failure on the part of the licensee to rectify the contraventions, the order could be passed against the licensee. In the present case, neither any notice was issued nor any time was given to the appellant for rectification of the contraventions, so the impugned orders being in contravention of section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996 are liable to be set aside. The learned counsel further submitted that even the allegations are factually incorrect, but the appellant was not given chance to explain the same.

4. On the other hand, learned counsel for the respondents submitted that though notice was not given nor any time was afforded to the appellant for rectification of the contraventions, yet respondent No.2, in the first impugned order, had explained that the representative of the appellant had appeared before the authority. As such the requirement of the notice was not necessary. It was further submitted that it was discretion of the authority to issue notice or not.

5. I have heard learned counsel for the parties and have also perused the record.

6. The contention of learned counsel for the respondents is not correct, because nobody can be condemned unheard. In addition to that if law requires something to be done in a specific manner, then the same must be done in that particular manner and not otherwise. Under section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996 notice was to be issued and time was to be given to the appellant, for rectification of the contraventions. Admittedly, neither any notice was given nor any time was afforded for rectification of the alleged contraventions. The contention that it was discretion of the authority, is not correct, because if it is accepted, section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996 would become redundant.

7. In the above said circumstances, I accept this appeal and accordingly impugned orders of the authority as well as respondent No.2, are set aside. The parties are, however, left to bear their own costs. MWA/130/Isl Appeal allowe