National Consumer Disputes Redressal
Ruby Mushroom & Canning Pvt. Ltd., ... vs Punjab State Electricity Board, ... on 11 November, 2005
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1347 OF 2003 (from the order dated 17.2.03 in Appeal No.464/2000 of the State Commission, Punjab) Ruby Mushroom & Canning Pvt. Ltd. Petitioner Versus Punjab State Electricity Board Respondent REVISION PETITION NO. 1922 OF 2003 (from the order dated 17.2.03 in Appeal No.464/2000 of the State Commission, Punjab) Punjab State Electricity Board Petitioner Versus Ruby Mushroom & Canning Pvt. Ltd. Respondent BEFORE : HONBLE MR.JUSTICE M.B. SHAH, PRESIDENT DR. P.D. SHENOY, MEMBER For the Petitioner in RP 1347/03 &: Mr.Jaswant Singh For the Respondent in RP 1922/03 (In person) For the Respondent in RP 1347/03 &: Mr.R.K. Gupta, For the Petitioner in RP 1922/03 Mr. S.K.Gupta and Mr.B.P. Gupta, Advocates 11.11.2005 ORDER
Heard the petitioner in person and the learned counsel for the Punjab State Electricity Board [the PSEB for short].
We have gone through the judgements and orders passed by the State Commission as well as the District Forum. It is apparent that this case highlights the arbitrariness and high-handedness of the officers of the PSEB, by denying electric connection, with ulterior motives, to the premises, which was to be used for growth of mushrooms. Thereafter, in compliance with the directions issued by the High Court, the officers of the PSEB were compelled to give electric connection. However, to frustrate that order, they installed a faulty meter which was running fast. Repeated complaints were made but the proper meter was not installed. Finally, they disconnected the electric connection. For non-payment of instalments of the loan, which the complainant has taken from the Punjab Financial Corporation (PFC), the PFC took over the possession of the premises which was to be used by the complainant for his livelihood. Not only this, the case highlights the arbitrariness and high-handedness of the officers, but it also reveals - how the welfare schemes framed by the State for the ex-servicemen, are frustrated and made the unit sick and thereafter dead; and, the complainant and his family are ruined and are required to suffer all sorts of harassment due to non-payment of loan taken from the PFC. The PSEB has also not followed the directions issued by the Principal Secretary to Government of Punjab, Department of Irrigation and Power and had entered into various litigation at the cost of the State Exchequer.
The project was for growing of mushrooms and its canning and the same was financed by PFC, Chandigarh by giving a loan of Rs.82.40 lakhs which was later on increased to 109 lakhs with interest @ 20% with half yearly rests, 4% penal interest in case of default and % surcharge.
In our view, this is a fit case where appropriate relief is required to be given to the petitioner. Not only appropriate relief but as recommended by the State Commission and the District Forum, we have to direct the PSEB to take appropriate action including appropriate punishment and recovery of penalty amount from the erring officers for the negligence and disgraceful acts adopted by them.
This would be clear from facts narrated in paras 1 and 2 of the judgement rendered by the State Commission.
The factual position of the case is that the complainant firm, an Agro-Based Industry, applied for electric connection of 80 KW on 8.1.93 along with deposit of Rs.2,47,044/- towards service line charges, to the opposite party, PSEB. The opposite parties did not release the connection, whereas it was mandatory on their part to release the connection within 2 months from the date of deposit of money as per Sales Mannual Instruction No.26. The complainant, thus, had to approach the Honble High Court in Civil Writ Petition and thereafter the opposite parties released the connection on 1.2.1995, i.e. virtually after two years of submitting the application.
The complainant alleged that due to grudge, the opposite parties installed a defective meter. The complainant brought the matter to the notice of the opposite parties in the middle of the year 1996 but without any result and the PSEB functionaries flouted even the mandatory instruction (Sales Manual Instruction No. 161) making it obligatory to check at least once in every 6 months all the industrial/bulk supply connections with more than 20 KW load. Finally, the complainant made a formal request on 14.2.97 for meter testing along with required deposit of Rs. 250/- as Meter Challenge Fee, but no result emerged despite repeated personal visits by the complainant to the PSEB Office and issuance of reminders dated 2.8.97,8.8.97 and 31.8.97.
The complainant then filed a civil suit in the learned Trial Court for getting the meter tested on 27.9.97. Resultantly, a causal testing of the meter was done by a Senior Executive Engineer (Enforcement Staff) of PSEB, Mohali on 30.9.97 and the said checking was done only with regard to the rating capacity of the meter i.e.12.5 revolutions for 1 KWH with the help of ERS Meter and despite the protest of the complainant, the necessary testing of the meter was not intentionally done by installing a parallel meter to check the alleged fast running of the meter.
Therefore, the complainant insisted before the Trial Court to get the meter checked from Meter Mobile Testing Squad, PSEB, Mohali (MMTS) against which the SDO, PSEB, Kurali contested that the same can be provided at the cost of Rs.2200 + Testing Fee of Rs.250 + Rs.1200 = Rs.3650/-. The complainant deposited the said amount and alleged that the same was against the circular of the opposite parties CC-3/97 and insisted for the refund of the same.
On 19.12.97, the Mobile Meter Testing Squad, Mohali undertook the testing of the meter in question through parallel meter methodology resulting in a report that the disputed meter was running fast by 161.84%. The complainant challenged that even this report is still wrong as the relevant report gave the five test-readings as+191.06,+186.17,+179.45,+155.59 and +104.53 which should give an average of 163.36% instead of lower average of 161.84%.
The complainant further alleged that in spite of the detection of the error of fast running of the meter, the opposite parties, PSEB, failed to provide the necessary rebate/relief to the complainant by prompt over-hauling of his account from the date of installation of the defective meter till its testing despite repeated reminders sent on 19.12.97, 12.1.98, 21.4.98 and 15.8.98 (all registered post letters), 3.1.99, 19.1.99 and 12.2.99 (all UPC letters) but none of the communications were replied. The meter of the complainant was tried to be changed twice but the new meters installed started creeping, thus, the old meter was again installed.
Since the rebate was not given to the complainant by overhauling his account, he did not make payment of the disputed bills. Then the opposite parties, PSEB, disconnected several times the electric connection of the complainant without issuance of mandatory 7 days prior notice on 19.8.97, 28.8.97, 29.8.97, 21.9.97, 3.5.97, 13.8.98 to 31.10.98, 6.11.98 to 13.11.98 followed by a total disconnection on 5.1.99 resulting in stoppage of the factory and total ruin of the complainants business, with a staggering liability of almost 140 lakhs.
Thus, alleging deficiency in rendering service, the complainant approached the District Forum for relief.
Before the District Forum the PSEB has not raised any positive defence on merits, but has mentioned that whatever stated by the complainant is denied by them. The main contention which was raised by the PSEB was with regard to maintainability of the complaint before the District Forum. To that the complainant has pointed out the factual position in his replication as under:
(a) That a civil suit being No.226/97 was filed in Honble Civil Court at Ropar for testing of disputed meter.
(b) That on the above case Civil Judge (Sr.Divn.) Ropar passed an interim/interlocutory order dt. 31.08.98 directing the complainant to pay monthly minimum charges @ Rs.8143/- p.m. for the months from May 1998 to August 1998. Aggrieved from this interim / interlocutory order the complainant filed Civil Revision Petition in Honble High Court for the States of Punjab & Haryana at Chandigarh.
(c ) That respondent filed an application dt. 06.11.98 in the honble Civil Court (Sr. Divn.) Ropar, copy of which is annexed as Annex.C-37. In this application respondent stated that Supply was disconnected but the same has been restored by the order of this Honble Court subject to payment of minimum charges, feeling aggrieved by the order of this Honble Court, the plaintiff filed a revision before the honble High Court of Punjab & Haryana at Chandigarh, where the plaintiff lost the battle. Basing upon this Civil Court, Ropar has dismissed the suit merely saying consumer has not availed the remedy of DSC and this suit there is not even mention of meter recording + 161.84% fastness. Here it is pertinent to mention that respondent mislead the court by saying that Consumer lost the battle at High Court. Revision petition is going on and last date fixed is 22.07.99 and in this revision another cause of action is there. Further it is well known that when main suit is dismissed at Civil Courts then revision against interim order also becomes infructuous and rejection of revision petition is matter of time only.
(d) That an appeal has been lying pending in the court of Mrs. Sabina Addl. Distt. Judge, Ropar for reversal of Suit cited at para 2(a) above and in this judgment neither talk of + 161.84% fast nor case has been decided on merits.
(e) That a case is filed before the Chief Electrical Inspector, Punjab under Section 22(6) of Indian Electricity Act 1910 which is reproduced as under:-
Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity.
Under this section relief is very limited and process is too much lengthy and speedy justice is not there.
The District Forum, in Complaint No.119/1999, after a detailed discussion on each and every point, held the opposite parties deficient in rendering service and allowed the complaint and directed by its order dated 30.11.99 as under:
(i) The account of the petitioner company (KP 230) be overhauled by taking into consideration fast running of the meter as +163.36% (instead of +161.84%) from the initial installation of the meter (i.e. 1.2.1995) till its replacement on 1.4.1998 (as per para 27 of the complaint). The necessary rebate be given monthwise keeping petitioners liability as Monthly Minimum Charges intact. Thus, the excess payment (rebate) be worked out monthwise for refund to the petitioner along with interest at the rate of 12% P.A. from the last day of the concerned month till date of actual refund in cash by O.P. PSEB.
(ii) All the amounts recovered by PSEB as Surcharge (or late deposit penalty) during this period be refunded in cash to the petitioner company, but without any interest.
(iii) A sum of Rs.3650/- (three thousand six hundred fifty) recovered from the petitioner as cost of check meter and testing fee, be refunded in cash by PSEB with interest at the rate of 12% P.A. from the date of payment till actual refund.
(iv) The consumption of 698 electric units during the operation checking of meter, be not debited to the consumer.
(v) A comprehensive chart incorporating all the details of the follow-up action regarding the above directions be provided in writing to the petitioner as well as to our office.
(vi) As per admitted averment in para 28 of the complaint the electric supply to the petitioner company was disrupted/disconnected without issuance of the mandatory 7 days notice on 8 occasions entitling the complainant to a compensation of Rs.80,000/- (eighty thousand) at the rate of Rs.10,000/- per disruption. The payment be made in cash by PSEB.
(vii) The existing meter at the premises of the petitioner company be got checked by the Mobile Meter Testing Squad, Mohali, through parallel meter methodology.
(viii) A composite compensation of Rs.50,000/- (fifty thousand) be paid in cash by PSEB to the petitioner Sh.Jaswant Singh on account of unnecessary harassment, mental agony and direct loss of business by the various action of omission & commission of the functionaries of the O.P. PSEB.
(ix) As permitted by the Honble National Commission in 1995 (2) CPJ 70, R.C. Sharda vs. HUDA an amount of Rs.3000/- (three thousand) be paid in cash by PSEB to the petitioner by way of expenditure for chasing the case with Opposite Party over a period of 2 years.
(x) A sum of Rs.5000/- (five thousand) be paid in cash by O.P. PSEB to the petitioner by way of costs of these proceedings.
(xi) The above directions be complied within 3 months under intimation to our office.
(xii) The meter of the petitioner company was permanently disconnected on 31.1.99. It be reconnected after the expiry of three months from today or earlier on a specific application in writing by the consumer.
This direction is primarily meant to provide some breathing spell to the gasping sick unit of the petitioner who might not be able to bear the burden of M.M.C. if the factory is electrified before the availability of rehabilitation funds from the financial institutions concerned. A special appeal was made in this regard by the petitioner Sh.Jaswant Singh during the final submissions. Moreover, the PSEB shall not recover any reconnection charges.
(xiii) Taking a cue from the Govt. Notification Ex.A-96, the Chairman, PSEB, Patiala is requested to please use his discretionary powers to waive he M.M.C. liability of the petitioner company from 31.12.1998 (the date of temporary disconnection) till actual reconnection.
The matter be finalized within 2 months.
(xiv) The Superintending Engineer (Operations) PSEB, Ropar is directed to keep a close personal watch over the field staff to ensure a satisfactory and complaint-free service to the petitioner company, after reconnection of the meter.
(xv) The Chairman, PSEB, Patiala is also requested to please get the entire matter of this case enquired into in the light of observations, remarks and adjudication given by us at different paras of the judgement. The Enquiry officer should also pin-point the concerned delinquent functionaries of PSEB found liable as per the discussion in the preceding paras, pursuant to which 50% of the compensation ordered at Serial No.(vi), (viii), (ix) and (x) be got re-imbursed to PSEB through appropriate deductions from monthly salary of the defaulters so detected. A comprehensive Action Taken Report be sent to our office within 4 months.
(xvi) Any compliance of the above directions shall keep intact the right of O.P. PSEB to get them modified reversal in appeal, if any.
Against the order passed by the District Forum, petitioner approached the State Commission by filing Appeal No.464/2000 and the PSEB filed Appeal No.27/2000. Both the Appeals were heard together by the State Commission. After discussing in detail the evidence which was brought on record, the State Commission modified to some extent the relief granted by the District Forum in favour of the Complainant.
The State Commission, while disposing of the appeal, has succinctly observed that it is important to mention here that the circumstances of the case clearly show that from the very first day of running of his industry, the complainant was running from pillar to post to provide electricity to his industry.
Undisputedly, the complainant applied for the electric connection but was not provided connection until the complainant filed a writ in this regard in the Honble High Court. Thereafter, a faulty meter which was running excessively fast was deliberately installed at the premises of the complainant and in spite of various requests/reminders of the complainant, the same was not tested and the complainant had to approach the Civil Court to get his meter tested.
The misery did not end here, the meter of the complainant was tested casually by the PSEB authorities and was wrongly reported as OK. The complainant had to ultimately get the directions of the Civil Court to get the meter tested from Mobile Testing Squad.
Even after the fast running report of the Testing Squad, his account was not overhauled and the complainant had to knock the doors of the Consumer Forum.
All these circumstances show that the complainant had to run after the PSEB authorities to get electric connection which was the utmost requirement for the running of the industry but he was miserably harassed. The misery did not end here, the connection of the complainant was illegally disconnected eight times without giving notice and later on permanently disconnection for non-payment of bills.
The Electricity Board did not hesitate to disconnect the connection for non-payment, but did hesitate to overhaul the account of the complainant. At all these stages, the Board was deficient and negligent and did not leave any step to harass the complainant. The negligence now stands proved on record. In the peculiar circumstances of the case that the complainant was compelled by the PSEB Authorities to run after them, instead of the management of the affairs of the industry and the complainant has suffered a lot on account of inefficiency and callousness on the part of the Board, we feel that the complainant cannot be burdened with the liability of the Monthly Minimum Charges for the period of the disconnection of the electricity.
Here, we would like to intervene and modify the order of the District Forum on this point only. The concerned officers/officials of the Board have left no stone unturned to ruin the complainants industry and in each every act.
Board has ignored all the rules and regulations framed by them. When the complainant has been ruined for the wrong acts of the Board, he cannot be asked to pay Monthly Minimum Charges for the period he has received no electricity.
We, therefore, direct the Electricity Board not to charge any Monthly Minimum Charges for the period 3.12.1998 (the date of temporary disconnection) till actual re-connection.
Against that order, petitioner has filed this Revision Petition and has prayed and submitted that as the petitioner was an ex-serviceman, even though his blood is boiling, he cannot take law in his hands and, therefore, suffered the harassment at the hands of the officers of the PSEB by their shameful and disgraceful acts. He submits that possession of his factory premises is taken over by the PFC and they are claiming large amount for the loan with compound interest thereon.
Complainant was not in a position to start his factory because of unlawful demands made by the officers. When the court directed for giving connection, they placed faulty meter which was running fast. His complaints were not heard for long. He was required to approach the High Court and thereafter Civil Court which finally directed to replace the meter. However, on the pretext of non-payment of electricity bill, the PSEB disconnected the electricity connection 8 times from 1997 onwards and finally on 31.12.1998.
Further not only the District Forum and the State Commission, the Principal Secretary to Government, Punjab, Department of Irrigation and Power in his order has observed that the officers of the PSEB have acted with total disregard to the standard instructions. The meter of the consumer was not properly tested even when it was giving abnormal readings. Even on the application made by the consumer, checking was carried out after a period of seven months and the same was not carried out properly, so the consumer had to approach the Civil Court. On direction of the Civil Court, the meter was declared as correct by Flying Squad on 30th September, 1997. Thereafter, it was retested and found fast by 161.84% by the Mobile Meter Testing Squad, Mohali. He, therefore, observed that this reveals the careless functioning of the officers of the Flying Squad. He also observed that after installation of the meter on 1.2.1995 it was never checked periodically by the officers of the Board. He also further observed that the orders passed by the District Forum should be an eye opener for the PSEB to improve its delivery system and the PSEB should act according to the decision of the Chief Electrical Inspector. He therefore, upheld the order of the Chief Electrical Inspector and disposed of the appeal by its order dated 29th August, 2000. Despite this, the reliefs were not given to the complainant.
PSEB has ignored the said order.
In our view, this is a fit case in which the law laid down by the Apex Court is required to be applied with full vigour and in true spirit. Citizens of a Socialist Democratic Republic should not feel helplessness against undesirable functioning in the government or semi-government officers. Because of the such harassment crime and corruption thrive and prosper in the society due to lack of public resistance, or, putting in other words, succumb to the pressure of undesirable functioning of the officers instead of standing against this. This part succinctly discussed by the Apex Court in Lucknow Development Authority Vs. M.K.Gupta, (1994) 1 SCC 243 at 262-263, in the following words:
The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome 1972 AC 1027 : (1972) 1 All ER 801 on the principle that, an award of exemplary damages can serve a useful purpose in vindicating the strength of law. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard 1964 AC 1129 : (1964) 1 All ER 367, 410 it was observed by Lord Devlin, the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook. Wade in his book Administrative Law has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which, apart, from other factors succeeded in keeping a salutary check on the functioning in the government or semi-government offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarding damages against them.
The petitioner submitted that considering the dispute involved he may be permitted to implead PFC as party respondent so that appropriate justice can be done to him. It is his contention that the PFC has calculated the amount payable by him with compound interest at 25% on quarterly rest basis. The loan amount is mounting and if this is permitted the petitioner would become insolvent. He, therefore, submitted that he may be permitted to implead the PFC as party respondent. Considering the facts stated above, apart from the other reliefs which we may incline to grant after further hearing, the petitioner is permitted to implead the PFC as party respondent. In this view of the matter, Registry to issue Notice to the Managing Director, Punjab Financial Corporation, Sector-17 ( Bank Square), Chandigarh returnable on 13th December 2005. Dasti in addition.
` The PSEB is directed to comply at least for the time being the directions issued by the State Commission. With regard to the other reliefs appropriate directions will be issued hereinafter.
Sd/-
J. (M.B. SHAH) PRESIDENT Sd/-
(P. D. SHENOY) MEMBER