A.V.K. Velayudha Raja vs Tamil Nadu Electricity Board

R. Banumathi, J.—This Writ Appeal arises out of the order of the learned single Judge in W.P. (MD) No. 1923 dated 30.06.2009 whereby

the learned single Judge decline to quash the Proceedings of the second Respondent dated 07.01.2003 calling upon the Appellant to pay a sum of

Rs.7,86,318/- as charges towards theft of energy.

Brief facts which led to the levy of charges for the theft of energy are as follows:

(i) Service Connection No. 58, Vadikottai Distribution under L.T. Tariff IV was inspected on 04.05.1994 after giving prior notice by the Tamil

Nadu Electricity Board Officials. During the inspection, theft of energy by way of bogus seal and tampering the service connection cable, illegal

restoration of supply in the service connection was detected. A complaint was lodged by the TNEB Officials before the Sankarankovil Police

Station which was registered in Crime No. 327 of 1994 u/s 39(1) and 44(e) of Indian Electricity Act, 1910. The meter was seized by the Police

and sent to the Forensic Science Laboratory, Chennai and report was received from the Forensic Science confirming the theft of energy made in

the meter. As per the terms and conditions of Supply of Electricity under Clause 9.05 of the schedule, a show cause notice was issued to the

Appellant by letter dated 05.05.1994. As the reply was not convincing, 3rd Respondent has sent an assessment notice confirming the theft of

energy committed in the Service Connection and calling upon the Appellant to pay Rs.25,16,270/- for the energy stolen and the same was

communicated by the Proceedings dated 25.05.1994. In the said letter, the Appellant was informed that if he is aggrieved, he may prefer an appeal

against the assessment notice before the Appellate Authority viz., the Superintending Engineer, Tirunelveli.

(II) In the Criminal case, charge sheet was filed against the Appellant in C.C.No. 171/1997 on the file of Judicial Magistrate, Sankarankovil u/s

39(1) and 44(1)(aa) of Indian Electricity Act. The said Criminal Case in C.C.No. 171/1997 ended in conviction which was challenged by the

Appellant in C.A.No. 99 of 2002 on the file of Fast Track Court No.I, Tirunelveli. The Appellate Court acquitted the Appellant. Against which the

TNEB has preferred a Revision before the High Court. The Revision was allowed and the Judgment of the Appellate Court was set aside and the

matter was remitted to the Appellate Court for fresh consideration.

(iii) Appellant has not paid the amount nor preferred any appeal before the Appellate Authority, instead he filed the Civil Suit in O.S.No. 80 of

1994 on the file of Sub-Court, Tirunelveli and obtained interim order not to disconnect the Service Connection. Subsequently, the suit in O.S.No.

80 of 1994 was transferred from Sub-Court, Tirunelveli to the Additional District Munsif, Sankarankovil and renumbered as O.S.No. 169 of

1996. The suit [O.S.No. 169/1996] came to be dismissed. Against which, Appellant had filed A.S.No. 64/2000 on the file of Sub-Court,

Sankarankovil and the appeal was also dismissed. Challenging the concurrent findings, Appellant had filed S.A.No. 412 of 2001. By the Judgment

dated 04.04.2001, the Second Appeal was dismissed, however giving liberty to the Appellant to pursue his remedy before the Appellate

Authority. After adopting all the formalities, again the order was passed on 02.08.2001 calling upon the Appellant to pay Rs.25,16,270/-.

Challenging the same, Appellant had filed W.P.No. 16365 of 2001. By the order dated 15.10.2001, W.P.No. 16365 of 2001 was allowed

observing that opportunity has to be given to the Appellant and the matter was remitted to the 2nd Respondent.

(iv) Enquiry was conducted in which the Appellant had participated and Appellant had also cross examined the witnesses. After enquiry the order

was passed on 23.08.2002 whereby the 2nd Respondent has reduced the amount from Rs.25,16,270/- to Rs.7,86,318/-. Appellant had filed

Revision before the Chairman, Tamil Nadu Electricity Board. By the order dated 07.03.2003, the Chairman has dismissed the Revision.

Challenging the order of the 2nd Respondent dated 23.08.2002 and the order of the Chairman, TNEB dated 07.03.2003, Appellant has filed

W.P.(MD) No. 1923/2004.

On notice, Respondents filed counter elaborating upon the theft of energy and other proceedings and that the Appellant is liable to pay the

amount of Rs.7,86,318/- towards the theft of energy committed.

Learned single Judge held that the procedural formalities have been complied with by the Electricity Board Officials and dismissed the Writ

Petition on the ground that there is no merit in the Writ Petition.

Mr.S.Natesh Raja, learned Counsel for Appellant mainly contended that the impugned show cause notice dated 05.05.1994 is not in

accordance with the Appendix-VI of B.P.Ms.(FB) No. 61 (Administrative Branch) dated 24.12.1988. It was further contended that the order

passed by the 2nd Respondent does not disclose as to how the Respondents came to the conclusion and the order only states that there was theft

of energy. It was further submitted that absolutely there was no materials to show the theft of electricity and while so, the Respondents are not

entitled to raise the demand which is against the settled position of law.

Mr.M.Suresh kumar, learned Counsel for Respondents submitted that even though show cause notice dated 05.05.1994 was not in the

prescribed format - Appendix-VI, the details of theft of energy has been indicated and no prejudice is caused to the Appellant.

Appendix-VI contains the format for issuing show cause notice for tampering of meters/dishonest abstraction of energy, illegal restoration of

supply to a disconnected Service Connection. Appendix-VI is a self-contained format of the show cause notice containing various details.

Appendix-VI contain registration of criminal case and to enclose the report of the Officers, statement recorded from the consumer or

representatives. Even though show cause noticed dated 05.05.1994 is not in the prescribed format, Appellant has sent a detailed reply denying the

theft of energy. Thereafter, the order came to be passed on 25.05.1994 along with the working sheet showing the total amount of assessment of

Rs.25,16,270/-.

Even though show cause notice was not in the prescribed format - Appendix-VI, in our considered view such defect in the show notice could

only be stated as irregularity. That apart the Appellant has not shown as to how the defect in the show cause notice has caused prejudice to him.

As pointed out earlier, the Appellant had filed Civil Suit in O.S.No. 169 of 1996 on the file of Additional District Munsif, Sankarankovil wherein

the parties have adduced oral and documentary evidence. By hardly contesting the civil suit, the parties were conscious of the issues involved and

the materials relied upon by either parties. Having fought out the litigation up to the level of Second Appeal, it is no longer open to the Appellant to

contend that the show cause noticed dated 05.05.1994 was defective. In fact, the order of the 2nd Respondent dated 03.01.2001 was set aside

by the learned single Judge in W.P.No. 16365 of 2001 and the matter was remitted back to the Appellate Authority for holding enquiry and also

to afford an opportunity to the Appellant.

After the matter was remitted back, a detailed enquiry was held by the 2nd Respondent. On our direction, the enquiry file was also produced

before us. By perusal of the enquiry file, we find that in the enquiry, the Executive Engineer/Distribution/Tiruneveli; Assistant Executive

Engineer/General/Tirunelveli; Deputy Financial Controller/General/Central Office/Tirunelveli; Assistant Executive Engineer/Rural/Sankarankovil;

Assistant Executive Engineer/Electricity Theft Squad/Tirunelveli were examined. Appellant had participated in the enquiry and elaborately cross-

examined the official witnesses. Appellant had also adduced evidence and also filed a detailed written submissions along with the documents.

Appellant was afforded sufficient opportunity to cross-examine the witnesses and put forth his case. Appellant had produced Ex.P3-certificate

issued by the Factory Inspector to show that the factory was closed on Sundays and on other public holidays. He has also produced the certificate

to the effect that the factory was operated only for eight hours a day. By the earlier orders, theft of energy in units was calculated at

Rs.25,16,270/- by taking the working hours as 16 hours per day. Based upon the certificate issued by the Factory Inspector and Form-II

produced by the Appellant, 2nd Respondent took the number of working hours per day as eight hours. After elaborate enquiry and taking the

working hours as eight hours, 2nd Respondent has reduced the assessment as Rs.7,86,318/- as under:

Present schedule of proposed compensation:

Approximate period ... 1 year

Electricity head ... 122 HP x 0.746

Usage of power per day ... 8 hours

Units lost ... 122x0.746x0.8x8x12x30

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1

209691.65 or 209692 units

Units already collected through usage ... 114508

Approximate units of stolen electricity ... 209692-114508

95183.99 or 95184

Compensation amount 95184 x 3 x 2.75

Rs.785268/-

or

Rs.785268/-

Photo Expenses Rs. 1000/-

Checking fee Rs. 50/-

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Rs.786318/-

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Rs.786318/-

As pointed out earlier elaborately after examining the witnesses, Appellant had also filed a detailed written submissions raising all the

contentions. He has also produced the documentary evidence. Based upon the enquiry, 2nd Respondent has calculated the amount of assessment

at Rs.7,86,318/- . Since the amount was reduced, a detailed report was prepared by the 2nd Respondent and forwarded the same to the

Chairman, TNEB for getting approval. The report contains all the details of examination. Scope of judicial review is only to examine the decision

making process. In our considered view, the enquiry was held as per the regulations of the Board''s proceedings.

Learned Counsel for the Appellant nextly contended that there was no theft of energy and the learned single Judge failed to consider that the

Appellant was acquitted by the Appellate Court in C.A.No. 99 of 2002 and in the Revision the matter was remanded to the lower Appellate

Court and as such there is no guilt fastened upon the Appellant. It was further argued that without proving the theft of electricity, Respondents are

not entitled to raise a demand. Even though, the criminal case in C.A.No. 99 of 2002 ended in acquittal, the Revision filed by the Respondents was

allowed and the matter was remitted to the lower Appellate Court for fresh consideration. On our direction, certified copy of the FIR in Cr.No.

327/1994 and the report of Forensic Science Laboratory were produced before us. We have also directed the Electricity Board to produce the

relevant records pertaining to the criminal case. By perusal of the certified copy of FIR, it is seen that on the date of inspection on 04.05.1994

when the Anti Theft Squad inspected Service Connection No. 58, the meter was tampered with and the seals were removed and theft of energy

was also noted. The relevant portion of F.I.R. reads as under:

... the theft of electricity has been carried on, by using the fake seals and by reducing the meter reading, by opening the door of the C.T. Chamber

and by removing the meter cover every now and then. The thieving of electricity has also been done without letting the meter to run, by opening the

door of the C.T. Chamber and by creating a short circuit, since the back door seals of the C.T. Chamber were missing. .... Further, while

examining the cable from the electric post, leading to the C.T. Chamber, where the meter was fixed, it was found that the cable laid underground

was found cut and joined. The aforesaid joint was not effected by the Electricity Board.

The FIR contains calculation as to theft of energy and also the report of the Assistant Executive Engineer as to tampering of meter. The meter was

seized and sent to the Forensic Science Laboratory. In its report, the Forensic Science department found that the meter was tampered with. The

recitals in the FIR and the report of the Forensic Science department are prima facie indication that the meter was tampered with by not letting the

meter running and the electricity was stolen.

As per Section 39 of Indian Electricity Act, 1910 where it is proved that any artificial means or means not authorised by the licensee exist for

the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption

or use of energy has been dishonestly caused by such consumer. When the meter in the name of the Appellant was found tampered with, the

Appellant cannot escape the financial liability arising out of the theft from the tampered meter. In Far East Tanning Co. Vs. The Superintending

Engineer, (West) Vellore Electricity System and Another, Hindustan Engineering Industries Vs. The Assistant Divisional Engineer, O and M,

Madras Electricity System and Others, , it has been consistently held that acquittal in criminal case of theft of energy will not absolve the consumer

from the financial liability.

Learned Counsel for Appellant nextly contended that absolutely there is no reasoning for reducing the extra levy from Rs.25,16,270/- to

Rs.7,86,318/- which itself shows that there was non-application of mind by the authorities. As pointed out earlier, based upon the documents

produced by the Appellant showing that the factory was working only for eight hours, the amount was reduced. All these aspects have been clearly

indicated in the report forwarded by the 2nd Respondent to the 3rd Respondent. Therefore, the contention that reduction was made without any

reasoning does not merit acceptance. Learned Counsel for Appellant also contended that the order of the Chairman, TNEB dated 07.03.2002 is

vitiated for want of reasonings. Since a detailed Revision Petition was filed, it would have been in order if the Chairman has passed the order

meeting all the points. However, in our considered view, the order of the Chairman, TNEB would not go to the advantage of the Appellant more

so when he has fought out the litigation for two decades. Pointing out that the procedure was complied with, the learned single Judge has rightly

dismissed the Writ Petition and we do not find any reason to interfere with the findings of the learned single Judge.

In the result, the Writ Appeal is dismissed. Consequently, the connected M.P. is closed. No costs.