Punjab-Haryana High Court
M/S Jtg Alloys Pvt Ltd vs Pspc Ltd And Ors on 16 October, 2014
Author: K. Kannan
Bench: K. Kannan
CWP No.12600 of 2011 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.12600 of 2011
Date of Decision.16.10.2014
M/s JTG Alloys Private Ltd. ......Petitioner
Versus
Punjab State Power Corporation Ltd. and others ......Respondents
Present: Mr. Govind Goel, Advocate and
Mr. Ankit Goel, Advocate
for the petitioner.
Mr. Vikas Chatrath, Advocate
for respondent Nos.1 to 3 and 5 to 9.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
-.-
K. KANNAN J.
I. The subject of challenge, a recount of the chequered history
1. The writ petition was originally disposed of on 09.09.2011 and in appeal filed against the judgment in LPA No.1900 of 2011. The Division bench has remitted the mater for fresh consideration in the light of the observations made thereunder.
2. The case has had a chequered career. The petitioner had been served with a notice under Section 135 of the Electricity Act, 2003 (in brief the "Act") on 15.10.2010 from AEE (Commerce), Sub Division, Punjab State Power Corporation Ltd. imputing that the petitioner had been guilty of tampering with the meter installed in the factory premises and that the petitioner was required to pay ` 4,33,24,039/-. A PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -2- FIR No.44 dated 15.10.2010 had been registered at the Police Station Anti Power Theft, Ludhiana against the Directors and the company and it was challenged in CRM-M No.29677 of 2012 . The petitioner had challenged the notice which was issued making the assessment and had come by means of a writ petition in CWP No.1455 of 2011 treating the assessment made against the petitioner as one against Section 126 of the Act. The challenge had been to the constitutional vires of Sections 126 and 127 of the Act which provided for the right of appeal and the corresponding Regulation 21 of the Punjab State Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2007. The Court found that there was no merit in the challenge for the vires of the provision and directed to be sent to a Single Judge for decision. It appears that this petition was allowed to be dismissed as withdrawn and the writ petition was filed on an altered contention that the imputation of theft against the petitioner was wrongly made and the assessment made under the Regulations prescribed therefor for assessment in cases of theft were not applicable to the petitioner. This Court had originally taken the view that the assessment made on alleged proof of tampering of the meter would come within the definition of unauthorized use and the assessment made was only an assessment which was amenable for an appeal under Section 127 of the Electricity Act and that a challenge in the writ petition was not permissible. It was this order that was originally passed by this Court on 09.09.2011 that was set aside in appeal by the Division Bench on reference to a judgment of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -3- another Vs. Sri Seetaram Rice Mill (2012) 2 SCC 108 that there was a distinction between the assessments made under Section 126 and 135 of the Act and assessment for theft cannot be a subject of appeal under Section 127.
II. Contention of the petitioner in the light of provisions of 'unauthorised use', 'theft', assessments and special courts
3. Learned counsel appearing on behalf of the petitioner refers to me relevant Regulations that govern the issue relating to theft and points out that unlike a case of assessment for unauthorized use, which could be either willful or not willful and therefore, a right of appeal is provided under Section 127, the assessment made for theft under the relevant Regulations are more stringent and contained no provision for an appeal. On the other hand, the Regulations only contemplate a right of representation against assessment made as per prescribed formula of the Regulations. The provisions of the Electricity Act makes possible prosecution for the offence of theft in a Special Court constituted for the purpose and if such a prosecution is made, the civil liability determined through the assessment with or without consideration of representation made against such assessment will be made independently by the Special Court. The reference to these provisions become essential in view of the preliminary objection that has been taken by the Power Corporation that against the assessment which has been made, the petitioner has no right to challenge by means of a writ petition and the remedy would be only to approach the Special Court for appropriate redressal. There have been certain pronouncements of this Court itself where I have directed the party challenging the assessment PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -4- made for theft to take it as an assessment made under Section 126 and that only an appeal could be filed. The counsel for the respondent himself points out to the decision in Tower Vision India Pvt. Ltd. Vs. DHBVNL and others in CWP No.15438 of 2014 decided on 5.8.2014 passed by this Court but I find that the said decision has been rendered without reference to the relevant Regulations and the law would required to be stated correctly in the light of the relevant provisions. I will, therefore, go into slightly elaborate consideration of the relevant provisions and more particularly, in the light of the observations of the Division Bench while remanding the matter.
4. The Electricity Act provides under Part XII investigation and enforcement and prescribes for a mode of assessment under Section 126 of the Electricity Act. This assessment is required to be made on an inspection of any place or premises. When the Assessing Officer comes to the conclusion that the person in possession of the premises consisting of equipments, machines etc. is indulging in any unauthorized use of electricity, he shall provisionally assess the electricity charges. The unauthorized use of electricity is defined under Section 126 (6) which includes usage of electricity through a tampered meter. Section 135 describes five categories of theft and again uses for the definition of theft in Section 135(1) (d) that "whoever dishonestly uses electricity through a tampered meter so as to obstruct or consume or use electricity shall be punishable with imprisonment for a term which may extent to 3 years or with fine or with both". The section contains an elaborate procedure for detection of theft in the nature of course of action. There is surely an overlap between Section 126 and 135, for, PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -5- what is stated as a usage through a tampered meter as unauthorized use of electricity under Section 126(6) Explanation (b) is repeated through Section 135(1)(d) that contemplates an dishonest user of electricity through tampered meter as an act of theft. However, the Supreme Court has in the Sri Seetaram Rice Mill's case referred to above held that they are two distinct actions and the assessments also provide different modes under the relevant Regulations and therefore, an assessment made for unauthorized use under Section 126 cannot be applied to assessment made for theft. That was the justification which was taken as the basis by the Division Bench in LPA No.1900 of 2011. The Division Bench, therefore, ruled that the order passed by this Court already to the extent that it held that remedy of the appellant would only by way of appeal under Section 127 was required to be set aside and the matter was remanded to be examined on merits subject to the other objections otherwise available to the respondents. III. Finding: Assessment for unathorised use provides for appeal; assessment for theft merely provides for right of representation against it
5. In view of the decision of the Division Bench, it is not possible for the respondents to contend any more than that there is an alternative provision available for an appeal under Section 127 nor is any reference of the decision of this Court rendered to that extent avail, for, it does not state the correct law. The point urged by the respondent, however, is that against the assessment which is made for theft constitutes a civil liability, apart from the scope for prosecution of criminal offence of theft, the same will have to be challenged only before the Special Court under Section 153 of the Act. PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -6-
6. Through a notification issued on 27.06.2007 in exercise of the powers under Section 181 read with several provisions including Sections 126, 127, 135, 152, 154 and 163, the Regulatory Commission defines theft of electricity as having the meaning assigned to it under Section 135 of the Act. We have already referred to the relevant provision describing that a deliberate attempt of the tampering results in theft of electricity. Clause 37 of these Regulations sets out the procedure for action in case of theft of electricity. To our case would be relevant only the provision in Regulation 37.2(b) that refers to consequences of theft of electricity and therefore is reproduced:-
"Where theft of electricity in a premises is prima facie established under Regulation 37.2(1)(i) of Regulation 37.2(a)
(v), the Authorized Officer will assess the amount payable by the consumer/person who has benefited by such theft as per procedure specified at Annexure-8. The assessment order will state the basis on which theft of electricity has been established. The Authorized Officer may, after recording reasons in writing, suitably reduce the presumptive period of theft of electricity as specified in Annexure-8 in case he is satisfied that such theft had actually occurred for a lesser period. Such an order of assessment will be delivered to the concerned consumer/person within 24 hours of theft of electricity having been established."
Clause (c) prescribes a procedure for a person who is not satisfied with the assessment and that also would require to be reproduced:-
(c) (i) A consumer/person not satisfied with the assessment order may prefer within 15 days of the assessment a representation before an authority designated for this purpose by the Commission in respect of each licensee. The designated authority will after giving the consumer/person an opportunity of being heard pass a final order within seven days of the representation having been received.
(ii) The Authorized Officer or the designated authority under Regulation 37.2(b) or 37.2(c) (i) as the case may be, will furnish a copy of the final order to the consumer and the licensee. The licensee will submit a copy of the final PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -7- order in the Special Court immediately after submission of the challan by the police.
(iii) A consumer/person will deposit with the Licensee the assessed amount under Regulation 37.2(b) within fifteen days of the assessment of the finally determined amount under Regulation 37.2(c) (i) within three days of the order having been passed. Even after depositing the assessed amount, a consumer/person will have the right to prefer a representation before the designated authority in accordance with Regulation 37.2(c)(i).
(iv) The Licensee may extend the last date of payment of the assessed amount/amount determined under Regulation 37.2 (c) (i) or allow the consumer to make payment in installments subject to payment of interest for the unpaid amount for the extended period beyond fifteen days at SBI's Short Term PLR prevalent on first of April of the relevant year.
(v) After the assessed amount/determined amount is deposited by the consumer, in full, the Licensee will resume supply of electricity to the premises within forty eight hours of such deposit.
(vi) After the assessed amount/determined amount is deposited by a person who is not an existing consumer, the supply to his premises will be released treating it as a case of release of a new connection.
(vii) In case the amount determined under Regulation 37.2
(c)(i) varies from the assessment effected, then any express amount or shortfall in the earlier deposited amount will be adjusted/recovered in the electricity bills of the immediately succeeding months.
In fact, when the assessment notice which is challenged in this writ petition was issued, the company has made a representation on 25.10.2010 itself requiring for information of the following:-
"1. Print out of all DDL taken from April 2008 to August 2009 and onwards.
2. The detailed calculation sheet for compensation amounting to ` 4,33,24,039/-.
3. Checking Reports of enforcement/operation officer conducted from April 2008 to August 2009.PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -8-
4. If notice under 135 has been issued other than on the basis of ME Level Court, the copy of the same may be provided.
5. The information regarding the basis on which period of compensation has been determined may be intimated.
6. The reasons for non-testing of meter for about 14 months after replacement may also be intimated."
7. The petitioner has also followed it up with a representation as prescribed under Regulation 37.2(c)(i) setting out the objections on the assessment that had been made and imputation of theft that had been attributed against the petitioner. After eliciting the response from their own department and also a rejoinder on the facts as set out, the decision has been taken on 29.03.2011 holding that the consumer has indulged in theft in the year 2005-2006 as per the consumption patterns of electricity and losses and that the amount charged to the consumer is ` 4.33 crores. Subsequently on 26.07.2011, a final notice has been issued directing the petitioner to deposit the amount of ` 4,24,029/- on account of compensation due to theft of energy. It is this order which is in challenge. It must be notice that upto the date of filing of the petition, there has been no attempt of the Power Corporation to recover the money. Theft of energy/electricity invites a penal consequence of disconnection of electricity which has been already effected. The learned counsel points out that once so-called theft is determined, there is apart from making representations and force the authority to make a final assessment, there is no provision anywhere in the Electricity Act to prefer an appeal. A person, who is guilty of theft may however compound the offence, if compounding charges are made and obviate the prosecution of the criminal case. Compounding of offences, PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -9- therefore, would become possible in the manner provided under Section 152 of the Electricity Act.
Finding: At a prosecution for theft before special court, determination of civil liability by assessment is possible; if not prosecuted, liability could be challenged only by writ
8. Part XV constitutes the Special Courts and Section 153 states that a Special court will consist of the Single Judge who shall be appointed by the State Government with the concurrence of the High Court. The procedure for disposal of the case is contemplated under Section 154. Section 154(1) provides that the offence is triable only by the Special Court. Clause (1) therefore provides for prosecution of the criminal case only. Section 154(2) provides that in any court in the course of enquiry where it seems that an offence of theft punishable under Sections 135 to 140 and 150 is committed, it shall be transferred to the Special Court. This provision, therefore, would bring the exclusivity of the Special Court to deal with cases relating to theft of electricity. Section 154(3) provides for a summary manner of disposal and Section 154(4) prescribes a procedure for the Special Court to grant pardon and secure any information relating to the offence. Section 154 (5) provides that Special Court shall determine the civil liability against the consumer and Section 154(6) provides that the amount as determined provides for the manner of collection of the excess amount over what is already deposited by the consumer. Section 154(5) and (6) would require to be examined for the contention of the respondent as regards the competence of the petitioner to come by means of writ petition could be seen by examining whether the petitioner could have PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -10- resorted to any action before the Special Court. Clauses (5) and (6) of Section 154 are reproduced as under:-
"(5) The Special Court may determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined which ever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment."
9. The above mentioned provisions contemplate a determination of civil liability in a procedure pending before it and there is no provision in the entire text of Section 154 for a person who is aggrieved by the final assessment of theft levied on a consumer by the assessing officer under the Regulation to come by means of a challenge by appeal or through an independent petition. On the other hand, the constitution of a Special Court under Section 153 is for prosecution of an offence and Section 154(1) to (4) contemplate the manner of prosecution of such case that the Court will follow for gathering evidence.
10. Without a case is being brought before the Special Court for prosecution, there is no scope for the Court to entertain any independent petition by any individual. The finality that obtains PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -11- through an assessment under the Regulations could be reassessed only in a situation where Special Court itself decides on the prosecution of theft. If the authorities do not escalate their action by resorting to prosecution, after making assessment, before the Special Court, the only court before which a person could challenge the assessment, could be only the High Court under Article 226 of the Constitution of India. This challenge could be restricted only to examine whether there is anything patently erroneous and against the Regulations and cannot involve factual consideration of whether there has been a theft or not. I will not find therefor find that the writ petition itself is not maintainable and I will proceed to examine the case only to see whether the case of theft itself which is made against the petitioner suffers from any fundamental vice of violation of the procedures prescribed under the Regulations where an inference of theft was not possible at all. These facts are elicited in response to the provisions of the notice issued and the representation given by the petitioner to the Corporation under Regulation 37.2(c).
IV. Facts that gave room for imputation of alleged theft
11. There is no denial of the fact that an inspection had been done on 09.01.2008. On that day, what was noticed as recorded by the Additional Superintending Engineer were as under:-
"1. The lass wires of the ME seals of the meter are rusted which could break at any time. Meter be replaced immediately.
2. The impression of LS is not clear on the CT/PT front door, MTL and the LS is sulphated as well. LS be affixed by the competent officer immediately.
3. LS be affixed by the competent officer on MCB PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -12- illegible, MBT.
The suggested remedial actions were that paper seals over the MCB, MTC, or CT/PT terminal cover, chamber should be replaced. It was also to be ensured that resetting of MDI would be done every month. On a subsequent date on 02.07.2009, similar recommendations were made and at that time, it was again what was noticed already on 09.01.2008 was repeated. On 17.07.2009, an order for replacing the meter had been made. Admittedly, the meter was replaced on 25.08.2009. The meter which was found to be defective was, therefore, taken possession of by the Power Corporation on 25.08.2009. If a lab test had been conducted immediately thereafter and it was noticed that there was any defect as such as tampering then it could immediately be seen that all the procedures prescribed under the Regulations were correctly followed. In this case, the meter was reported to have been brought back to the premise on 31.08.2009. The meter was said to have been opened and DDL said to have been recorded and taken back by the Power Corporation till it was examined in the presence of the petitioner on 25.10.2010 in ME Lab that resulted in the detection of the so-called tampering of the meter and the imputation of theft. The counsel for the petitioner points out to the serious lapses and the violations committed by the Corporation by referring to the procedure that is prescribed in the case of a replacement effected to suspected malfunctioning of the meter and the manner of how any testing could be done. We have already examined that in the first two inspections which were made, there had been no detection of any tampering with the meter but what they were found was only that the lass wire had been PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -13- rusted and that it had to be replaced. When a meter was replaced on 25.08.209, the manner of how the subsequent proceedings could have gone on are pointed out by the counsel appearing for the petitioner with reference to the regulations. Our attention will, therefore, be to the Regulations referring to the procedures to be undertaken after the meter is seized from the premises.
V. Procedure to be followed on suspicion of theft as regards manipulation of electric meter. Contentions, whether theft could have taken place, the two views.
12. Regulation 37.1 contemplates preparation of an inspection note not, inter alia, indicating the connected load, status of meter/metering equipment, condition of meter and seals and any other irregularity noted (such as means adopted for theft of electricity) in such premises. Clause 5 requires that the authorized officer shall sign the inspection report and hand over a copy to the occupant/person present at the premises during the search. Regulation 37.1(a) (i) and (ii) require a complaint to be lodged if there is a suspicion that the consumer was indulging in theft of electricity by tampering with the meter/metering equipment and/or its seals or otherwise then such equipment shall be sealed by the Authorized Officer so as to keep it as 'in found condition.' Clause (iii) is crucial and therefore would require to be reproduced:-
"In all cases falling under Regulation 37.2 (a)(ii) (relating to suspension of theft) the authorized officer will, after giving the consumer/person an opportunity of being heard, determine within seven days whether or not there is sufficient evidence to conclude that a case of theft of electricity is prima facie established."
13. The further action for suspected theft is the manner in PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -14- which the assessment was required to be made. Significantly in this case from the time when the meter was replaced to the time when it was tested in the lab, nearly 14 months had elapsed. There is simply no explanation given anywhere as to why there had been such an inordinate delay. The counsel for the petitioner also states that there was no notice at all to any of the person who were the Directors of the petitioner company that the meter which was seized again brought back to the company and the DDL was to be recorded on that day. The so- called activity said to have been undertaken on 31.08.2009 was itself without any knowledge to the petitioners. While the petitioner would not deny the presence of Director on 14.10.2010, the contention is that between 25.08.2009 to 14.10.2010, there had been a significant difference in what was noticed with the meter which was seized by the Corporation. The petitioner points out to two important circumstances as making impossible the allegation of theft of energy. One, the petitioner was subjected to repeated inspections on alleged anonymous complaints that the petitioner company was indulging in theft and in none of the previous inspections was any doubt that there had been any theft. Between 2008-2009 when inspections was done it was supposed to be on tip-offs from some persons but even then, there was nothing seen to indicate that there had been any tampering with the meter. Two, On 31.08.2009 when an inspection was said to have been done to carry out DDL what was reported to have been noticed was that 'ME seals loose and in poor condition' (sic). This was reported to have been noted at 17:43 hrs. The petitioner denies that there was any activity done at the petitioner premises and denies also the presence of any of PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -15- their staff at that time. The petitioner would contend that if there had been any theft by tampering of the meter, such a tampering must have resulted in lower reading of electricity consumption than what was actually consumed. A tampering would have meaning only if the tampered meter registered much less than what was consumed that would have been beneficial. The counsel would point from the day when the meter was changed on 25.08.2009 till the date when the alleged tampering was said to have been found out in the 10th month of the following year, the consumption pattern revealed that between 25.08.2009 to 14.10.2010, the electricity consumption with the meter provided by the Corporation had registered electricity consumption lower than the electricity shown as consumption before 25.08.2009. The counsel would try to establish through a tabulation provided and it would be relevant to produce the same:-
Consumption before replacement of Consumption after replacement of meter meter Month/Year Consumption/Units Month/Year Consumption/Units 09/2008 989407 09/2009 531920 10/2008 825760 10/2009 535680 11/2008 893000 11/2009 935520 12/2008 1012427 12/2009 776600 01/2009 1030913 01/2010 721880 02/2009 996267 02/2010 671760 03/2009 781407 03/2010 456360 04/2009 854200 04/2010 469680 05/2009 823587 05/2010 592120 06/2009 643547 06/2010 616300 07/2009 551573 07/2010 492150 08/2009 420473 08/2010 429040 Average 818546.75 Average 602417.5 It could be noticed that for the period in the year 2008, that is, before the meter was replaced in the 8th month of 2009 and for months in the PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -16- year 2009 prior to August, the consumption units had hovered between 4,20,473 units at the minimum to a maximum of 10,30,913 units being the highest in January, 2009. If we examine the consumption made after the meter was replaced at the instance of the corporation, which therefore must be assumed to be correct and not capable of being tampered, it would be seen that average consumption had been much less during the said period. The average consumption before the replacement of the meter was 818546.75 units per month and average consumption per month after the replacement of meter was 602417.5 units. After the replacement, the consumption has been less. The attempt of the petitioner was, therefore, to contend that there could be no case of theft, for, if there was theft the meter readings for the period before the replacement must have been lower than what was shown for the subsequent period.
VI. Enormous delay in checking of meter after removal;
effect
14. There has to be a good reason as to why there was a long gap for more than 14 months from the time when the meter was taken.
The meter examination note of the ME lab at the Mandi Gobindgarh revealed the following:-
"The meter duly packed (in cordboard box) was brought out by opening the sealed box in the presence of Sh. Ashok Kumar, consumer and jointly checked by the Senior XEN, Enforcement, Khanna, Senior XEN, M.E. Ludhiana, Senior XEN, Operation (Special), Mandi Gobindgarh, Senior XEN, M.M.T.S. Khanna & Assistant Engineer, M.E. Lab, Mandi Gobindgarh. On checking the meter, both M.E. Seals fitted on the body of meter were found tampered (Lass wire of right side M.E. seal was found joined with some adhesive material (elfy) and lass wire of left side M.E. seal was found to be joined inside the whole of screw by way of rolling up. On conducting outer examination of meter, the paper seal PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -17- (No.(illegible) dated 4.12.2003, Sr. Executive Engineer, M.E. Ludhiana) provided on the meter body, was found to be rejoined. Ultrasonic welding of meter body was found to be tampered and both the upper clamps were found broken. On opening and examining the meter, its Circuit Plate was found to be bothered (Circuit plate is found re-soldered). It is a case of unauthorized electricity consumption. Action may be taken as per existing directions. The meter along with tampered M.E. seals handed over to Baljit Singh, AAE (Commercial), Operation Division (Special), Mandi Gobindgarh, in presence of consumer, for keeping the same in his custody and providing lead seal on the same."
The presence of the petitioner at that time is not denied. The counsel for the petitioner, however, would state that when ME seals were seemed to be tampered, it must have been with reference to an equipment which was taken from the petitioner in the mode which had not changed the integrity of the equipment and it could be assured only if on the date when the meter was replaced on 25.08.2009, it had been sealed and an inspection made immediately within the time stipulated under the Regulations. The Regulations contemplate two important features which had been spelt out under Regulation 67.3 of the Sales Regulations as under:-
"67.3 of Sales Regulation The damaged/burnt meter along with first report will be forwarded to ME Laboratory by AE/AEE/XEN (Ops) within one week after the damaged/burnt meter is replaced after recovering the cost of the meter from the consumer. The officer Incharge of ME Laboratory after carrying out the test checks, shall send his report to AE/AEE/XEN (Ops) concerned within one month in case of various categories of consumers excepting LS & BS exceeding 100 KW and MS consumers. Report in respect of meters with MDI, CTs and PTs for LS or BS etc. shall be prepared by MMTS. Non compliance of these provisions by any of the officers/officials will be considered as negligence entailing disciplinary proceedings.
After receipt of report from AE/AEE/ME Laboratory/MMTS, the case shall be decided and the cost of estimated damage PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -18- adjusted as under from the amount got deposited from the consumer in the first instance."
15. It would be noticed that the tampered meter was to be forwarded to the ME lab immediately and the officer in charge would send a report within one month in respect of certain categories of consumers referred to above. The compliance of this provision is imperative, for the action results in detection of a criminal offence liable for prosecution and the procedure shall be taken to be so serious that even the Regulations contemplate a disciplinary action taken against the officials who have not carried out the work properly or when they are guilty of laches.
16. The counsel also points out to Regulation 21.4 that deals with situations of defective meters and the manner of how the consumer will be involved if a meter is replaced. Clause (d) of Regulation 21.4 states "in case of testing of meter removed from the consumer premises in the Licensee's laboratory, the consumer would be informed of the proposed date of testing at least seven days in advance. The signature of the consumer, or his authorized representative, if present, would be obtained on the Test Result Sheet and a copy thereof supplied to the consumer." There is also another plea that as per the notification issued on 30.11.2007, the designated authority for carrying out the work should be the CE, Distribution in his jurisdiction for DS/NRS/Street Lighting/Bulk supply and large supply consumers with load exceeding 100 KW but upto 500 KW. But in this case if the authority who was designated to have considered the representation given by the petitioner and passed a final order was the Assistant Executive Engineer PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -19- (Commercial) who was not even competent to pass such an order.
17. It is obvious that there has been a tampering at the time when the meter was taken to the Lab but the issue is whether such a tampering could be stated to be done by the petitioner and further action could be initiated against the petitioner. If the Regulations stipulate a time line and requires the meter that is seized from the premises to be immediately forwarded to the lab, it is inexplicable how the Corporation could have taken 14 months to dispatch it. At the time when the meter was seized it found to contain no more than a rusted lass wire. At the time when the meter was brought to the lab, on unsealing of the box, it had noticed the breakage of the wire itself. Even on mere physical inspection itself, there had been a serious variation. The breach in this case had been very serious, for, the theft which is attributed has resulted in assessment of over ` 4 crores. It is important to detail the following important features: (i) The counsel appearing on behalf of the respondent admits that there had been serious lapse on the part of the Power Corporation in not forwarding seized meter immediately and will have no explanation at all to offer as to why 14 months time had been taken. (ii) He has again no answer to why notice had not been immediately given setting out the date when an inspection would be done within a month. (iii) He also has no proof of any notice as having been issued for the meter to be brought back on 31.08.2009 for carrying out the DDL. (iv) There is further no explanation given how a rusted wire kept sealed had been found already broken at the time of opening the seal. (v)The consumption pattern for the period before and after also was significant to reveal that there was no undue PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -20- advantage that the petitioner could have obtained, for, the meter reading did not show any low consumption as it should have been if it had been tampered. All these factors to be put together, would put a huge burden for the Corporation to explain as to how its lapses could be condoned. The counsel for the Corporation, however, responds in a simplistic way that the departmental action had been taken against the officials who are responsible for the laches on the serious lapse which were pointed out.
VII. Finding: Integrity of sealing of meter not established;
delayed testing after retention of meter with corporation a serious lapse; Theft not established;
18. The fall out of the lapse is very serious in this case. If there had been indeed a theft, it should have been possible to make such a detection only if the meter had been immediately sent to the lab and the tampering noticed. I cannot make such an inference after such a long time especially when the meter had been only in the custody of the respondent all along. It is not possible for me to raise a question as to why a Power Corporation must be interested in tampering the meter and making the imputation on the petitioner. There could be no motivation but the result in ultimate is a national loss as well. A running factory has been closed and it has not resumed its functioning for last four years. The amount assessed was so huge that the company could not even think on obtaining restoration of electricity on payment of charges. If there had been a huge loss which had been occasioned to the Corporation and they would attribute lapse to their own employees then they must find a reparation of collection of amount to the extent possible from its employees and not lock up an industry which was a PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh CWP No.12600 of 2011 -21- running industry at the time when the inspection was done.
19. The petitioner had to secure a reparation of the meter by restoration what are brought out as admissions by the respondents themselves. The laches are too serious to be merely condoned and look to the fault only on the consumer. The case of tampering cannot be attributed to the petitioner with all the disturbing features pointed out and conclusion will have to be therefore that the impugned notice and the final assessment made as though there was theft was not justified and hence quashed.
20. The writ petition is allowed with costs assessed at ` 25,000/-. There shall forthwith be a restoration of electricity for the factory premises. The petitioner is at liberty to file its own suit for damages for the unjustified result of closing of the business operations.
(K. KANNAN) JUDGE October 16, 2014 Pankaj* PANKAJ KUMAR 2014.10.17 17:32 I attest to the accuracy and authenticity of this document Chandigarh