AAM ER FAROOQ, CJ. CM Pak Limited (the Appellant) has invoked its statutory right under section 7(1) of the Pakistan Telecommunication (Re-organization) Act, 1996 (the Act) to challenge order dated 17.09.2021, passed by Pakistan Telecommunication Authority (PTA) against it.
2. PTA in order to verify that the Cellular Telecom Operators are charging Tariff according to their advertised tariff, carried out a survey with regard to the billing verification from 23rd to 30th December, 2020. Post survey results were shared with Cellular Operators including the Appellant. It was pointed out to the Appellant that extra-amount was being charged by the Appellant from consumers on voice over the advertised rates, apart from charging GST 19.5% on voice and SMS Services against all packages instead of applicable FED @ 17%. PTA, in this regard, required an explanation and a compliance report from the Appellant which was accordingly done through email dated 02.03.2021. PTA not being satisfied with the report of the Appellant, issued a notice under section 23 of the Act. In the referred notice the Appellant was asked to show cause as to why the enforcement order may not be issued against it and also to comply with the contraventions, pointed out in the notice, within fifteen days. The Appellant replied the show cause notice on 28.03.2021 with the relevant documents in its defense. The hearing in the matter took place on 17.05.2021 and 26.05.2021 which was attended by the representatives of the Appellant.
3. After the hearings, PTA informed the Appellant that it wishes to visit its offices to further verify the documents and the record. The visit was conducted on 31.05.2021 by the officials of PTA. Meanwhile, the Appellant furnished a detailed report regarding compliance having been made to the contraventions pointed out in the show-cause notice mentioned above. The referred communication on behalf of the Appellant was made on 25.06.2021. PTA vide impugned order decided that data generated through billing verification showed anomalies and directed the Appellant to upgrade its billing system within 6 months of the issuance of the order and also made other directions to be complied with and intimated to PTA. The decision also stipulates further consequence case of non-compliance.
4. Learned counsel for the Appellant raised the sole objection to the order impugned before this Court by submitting that the material gathered after the visit to the office of the Appellant was not shared with the Appellant. Learned counsel argued that non sharing of the information amounted to violation of principles of natural justice and fair trial as enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
5. Learned counsel for PTA submitted that in the facts and circumstances, there is no violation of natural justice in as much as the show cause notice spelt out the entire case against the Appellant and with respect to the same no challenge has been made. There was no need to share or confront the material gathered from the site visit of the Appellant's office:
6. Submissions of the parties have been heard and the documents on record examined with their able assistance.
7. Succinct facts of the case have been mentioned in the preceding paragraphs, hence do not require reproduction. The grievance of the Appellant is that it has not been shared with the data/material gathered from its office, which has formed basis for passing of the impugned order.
It is relevant to mention here that in the show-cause notice, the allegations against the Appellant are duly mentioned and the Appellant did make response to them in its reply. However, post show cause notice PTA officials visited the office of the Appellant and gathered further information/data which it seems has played vital role in passing of the impugned order. The impugned order is with respect to the proceedings initiated under section 23 of the Act, which does attract penal consequences; the referred aspect of the matter is further strengthened from examination of the impugned order which does stipulate that further results shall follow in case of non-compliance of the directions within the stipulated time. Since the proceedings under section 23 can have penal consequences, it is of utmost importance that due compliance of Article 10-A of the Constitution be made. In this regard, the referred provision of the Constitution provides for due process and fair trial. One important aspect of the fair trial is that the person (in the present circumstances the Appellant) should have all the incriminatory material confronted to him. Like-wise, it is the requirement of fair trial that Authority/Agency conducting the inquiry/investigation should produce the entire inculpatory and exculpatory evidence/material against the person facing the allegations.
8. In the instant case, the Appellant did not have the advantage of the material/evidence collected by PTA from the visit to the office of the Appellant. If the material was inculpatory or had the information against the Appellant, it was of utmost importance that it should have been confronted to the Appellant. The failure on part of PTA to share the material and passing the decision on the basis thereof defeats the ends of justice. The proceedings before PTA are in the nature of quasi-judicial, hence it was of paramount importance that the tenets of justice should have been adhered to.
9. In view of the above discussion, I am of the view that PTA by not sharing the material gathered from the visit to office violated the basic principle of justice viz, due process and fair trial, hence the order impugned cannot stand the test of propriety and compliance to the law.
10. For the above reasons, the instant appeal is allowed and the impugned order dated 17.09.2021 is set aside; consequently, the proceedings under the show cause in question shall be deemed to be pending against the Appellant and decided after sharing the details of the information/material/evidence gathered from the office of the Appellant and providing an opportunity to it to make response to it.