Penalizing innocent Telecom Service Providers at a shared site in the name of collective responsibility: a policy vexed with arbitrariness

Telecom Disputes Settlement & Appellate Tribunal (TDSAT): A Division Member Bench of Shiva Kirti Singh (Chairperson), J., A.K. Bhargava, Member, partly allowed a telecom petition filed against the manner in which penalties are imposed by the respondent (Department of Telecom) in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs).

The main issue that arose before the Tribunal was whether the method of imposing penalties in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs), legally valid.

The Tribunal observed that the main point of dispute in the present matter were those sites where the telecom service providers (TSP) were operating jointly. In case of non-compliance of EMF norms at a shared site, DoT levies same penalty of Rs. 10 Lakh on each and every BTS even though individually they may be radiating within the prescribed norms. The Tribunal further observed that there can be options where penalty can be imposed solely upon the erring TSP or it can also be imposed incidence-wise instead of distributing the entire penalty between all the TSPs irrespective of their liabilities. Imposing penalty upon TSPs who are well compliant with the norms laid down by the DoT is unjust and unfair as puts the defaulters and the non-defaulter on the same footing. Not considering options or alternatives by which the defaulters can be effectively penalized, at the same time saving the innocent TSPs, is totally unjust and arbitrary on the part of respondent.

The Tribunal held that with testing and due diligence, it is possible to rationalize the manner in which penalty was levied and DoT should undertake such exercise in right spirit. There can be no excuse to penalize innocent (when proven) arbitrarily in the name of collective responsibility, there can also be no excuse for ignoring the principle of proportionality to the extent that the result appears to be unjust and arbitrary. Resultantly, the respondent was directed to revise and fix penalty as it deems fit, keeping in mind that in case of a shared site, penalty be imposed on a per ‘site’ and ‘per incidence’ basis for non-compliance of EMF radiation norms. The petition was partly allowed and the circulars issued by respondent were partly modified.[Cellular Operators Assn. of India v. Union of India,2018 SCC OnLine TDSAT 353, order dated 15-11-2018]

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