G. Jayakumar vs The superintending Engineer Tamil Nadu Electricity Board CEDC North, The Executive Engineer (O and M) C.E.D.C. (North) and The Assistant Executive Engineer Electricity Board

M. Venugopal, J.—The Petitioner has focussed the instant Writ of Certiorari in calling for the records of the First Respondent in Lr. No. SE/CEDC/N/GL/DM1/FTOE 41/02-03/TPT/R 4239/05 dated 03.5.2005 and other connected records and to quash the same. According to the Petitioner, he is running an Industry under the name and style of Jothi Industries at No. 325, T.H. Road, Old Washermanpet, Chennai 600 021 for manufacture of Panel pins, wire nails and M.S. Wires. The Industry''s Service Connection No. is 11-01-1110 with permission to use 34 H.P. All these years, he was using 12 H.P. He was paying electricity charges regularly.

On 17.02.2003, at about 3.10 PM, Anti Power theft squad of the Tamil Nadu Electricity Board visited the Petitioner''s factory and inspected the electrical equipments including the Meter. After inspection, it appears that some adverse report was submitted against his Company. Based on the inspection report, the Third Respondent issued a show cause Notice on 21.02.2003 to the Petitioner. In the said show cause Notice, the Third Respondent had falsely alleged that the seal fixed on the Meter was damaged and on and off, the Meter seals were removed and the Meter recording was lowered and resultantly, there was theft of electricity. He was asked to submit his explanation within seven days from the date of receipt of notice. A complaint was registered with H-3 Police Station in Crime No. 162/2003 for theft of electrical Energy. In the said show cause Notice, the Third Respondent demanded a sum of Rs. 5,47,018/- towards the damages for the theft of electrical Energy.

The Petitioner filed Anticipatory Bail Petition before this Court in Criminal O.P. No. 4950 of 2003 and on 26.02.2003, this Court, while granting Anticipatory Bail, directed him to deposit a sum of Rs. 1,50,000/- before the XIV Metropolitan Magistrate, George Town, Chennai. He complied with the order on 12.05.2003.

The Petitioner submitted his explanation for the show cause Notice dated 21.02.2003 issued by the Third Respondent. The stand of the Petitioner is that the Second Respondent/Executive Engineer (O&M), CEDC (North), Tondiarpet, Chennai 21, without considering his explanation, passed an order demanding payment of Rs. 5,47,018/- on 28.06.2003. As against the said order, he filed W.P. No. 19565 of 2003 and this Court granted stay of further proceedings of the impugned order on condition that he shall pay a sum of Rs. 54,702/- being the first instalment payable under the impugned order. When the said Writ Petition was finally disposed on 31.10.2003, the Petitioner was directed to file an appeal before the Appellate Authority, viz., the First Respondent. For filing of an appeal, he should pay 40% of the demand amount.

It is the plea of the Petitioner that this Court, in its order dated 31.10.2003 in W.P. No. 19565 of 2003, directed him to explain the payments made by him to the Appellate Authority while filing an appeal and he would consider the same.

The Petitioner preferred the Appeal in question on 16.12.2003. In the grounds of appeal, in paragraph No. 3, the Petitioner explained that he paid total sum of Rs. 2,05,617/- representing more than 40% as required for preferring an appeal. The First Respondent, soon after receipt of appeal papers, issued a letter dated 18.12.2004 requiring the Petitioner to produce receipt for payment of Rs. 2,05,617/-. Accordingly, he furnished proof for payment through his letter dated 23.12.2004. Thereafter, the enquiry was fixed on 16.3.2005. By another letter dated 14.3.2005, the enquiry stood adjourned to 19.3.2005 at 14.30 hours. Subsequently, the enquiry was adjourned to 08.4.2005 which was again postponed to 19.4.2005.

After several hearings, finally, the appeal was taken up for enquiry on 19.4.2005 on which date, the Petitioner and his counsel were present.

One Perumalsamy,, Executive Engineer, Maduranthagam, was examined in chief on behalf of the Electricity Board. Later, the First Respondent adjourned the matter to 26.4.2005. But before 26.4.2005, one Jamuka (Smt.), Assistant Engineer, phoned up to the Petitioner that the enquiry was adjourned to some other date and the date would be informed later. When he was waiting for the intimation letter to be sent by the Electricity Board, at the stage of appeal enquiry, he received a letter dated 03.5.2005 from the First Respondent demanding payment of Rs. 1,64,105/- being the difference of 40% amount payable for entertaining the present appeal. It is this letter dated 03.5.2005 is under challenge before this Court in the present Writ Petition.

Viewed in this background, the Learned Counsel for the Petitioner urges before this Court that the disputed amount is Rs. 5,47,018/- and to prefer an appeal before the First Respondent, the Petitioner is to pay 40% of the amount demanded. As stated supra, 40% of the amount to be paid for filing of an appeal works out to Rs. 2,18,804/- (from and out of Rs. 5,47,018/-). At this stage, the Learned Counsel for the Petitioner brings it to the notice of this Court that he paid Rs. 1,50,000/- as per the order of this Court dated 26.02.2003 in Criminal O.P. No. 4950 of 2003 before the XIV Metropolitan Magistrate in Crime No. 162 of 2003. Further, as per the order passed in W.P.M.P. No. 24428 of 2003 dated 16.7.2003 in W.P. No. 19565 of 2003, he paid a sum of Rs. 54,702/-. In all, he has paid a sum of Rs. 2,04,702/-. The balance amount, if at all to be paid by the Petitioner, comes to Rs. 14,102/-. Consequently, the demand of Rs. 1,64,105/- claimed by the First Respondent in the impugned letter dated 03.5.2005 is illegal one.

The contentions of the Learned Counsel for the Petitioner is that the First Respondent, after entertaining the appeal and more so, when one Perumalsamy, Executive Engineer, Maduranthagam, was examined in chief (on behalf of the Electricity Board), now, at this distance of time, it is not open to the Electricity Board authorities to make a further demand without any rhyme or reason.

Yet another submission of the Learned Counsel for the Petitioner is that this Court, while granting Anticipatory Bail to the Petitioner in Criminal O.P. No. 4950 of 2003, has taken into consideration the sum of Rs. 5,47,018/- involved in the present case and then only directed him to pay a sum of Rs. 1,50,000/- for considering the Anticipatory Bail Petition and as such, he paid the amount.

The pith and substance of the submission of the Learned Counsel for the Petitioner is that the Petitioner having paid almost 40% of the amount demanded, it is not open to the First Respondent to issue the impugned letter dated 03.5.2005, which is assailed in the Writ Petition.

Per contra, it is the contention of the learned Standing Counsel for the Respondents 1 to 3 that the Writ Petition is not maintainable either in law or on facts. Further, it is submitted that for theft of energy by bogus seal, which was detected by the Electricity Board authorities on 17.02.2003 at 15.00 hours when the Petitioner''s Service Connection was inspected, which was confirmed by the Assistant Executive Engineer/MRT/Metering/North/Chennai and thereupon, show cause Notice was issued to the Petitioner on 21.02.2003. Also that, in Crime No. 162 of 2003 a police case was registered in H-3 Police Station for theft of energy and a notice was issued claiming a sum of Rs. 5,47,018/- towards charges for theft of energy from the Petitioner.

The contention of the Respondents is that the Petitioner is liable to pay 45% of the total amount of Rs. 5,47,018/- and that the Petitioner paid Rs. 54,702/- being the first instalment, requested to take into consideration the sum of Rs. 1,50,000/- which was remitted in Crime No. 162 of 2003 before the XIV Metropolitan Magistrate, George Town, Chennai, for grant of Anticipatory Bail in Criminal O.P. No. 4950 of 2003 on 26.02.2003.

While winding up, as last leg of argument, the Learned Standing Counsel for the Respondents submits that one amount paid before the Magistrate Court will not fulfil the requirement of making payment for taking up an appeal as provided under Sub-clause 12.02 of Clause 37 Schedule Part I of the Terms and Conditions of Supply of Electricity. Therefore, it is pleaded on behalf of the Respondents that unless the Petitioner remits the demanded amount for disposal of appeal, in question, in terms of Sub-clause 12.02 of Clause 37 Schedule Part I of the Terms and Conditions of Supply of Electricity, the appeal cannot be entertained.

It cannot be gainsaid that Sub-clause 12.00 of Clause 37 Schedule Part I of the Terms and Conditions of Supply of Electricity deals with disposal of appeal. Further, Sub-clause 12.01 of Clause 37 Schedule Part I of the Terms and Conditions of Supply of Electricity enjoins as under:--

12.01 The Appellate Authority will dispose of the appeal (confirm, modify or set aside the assessment) after considering the memorandum of appeal and the material placed before him by the appellant and other materials pertaining to the enquiry. The Appellate Authority will furnish the reasons leading to the conclusion arrived at by him. It shall not be obligatory for the Appellate Authority to give a personal hearing; but if a request is made for such hearing by the appellant, the Appellate Authority will grant personal hearing to the appellant. The appellant may be represented by an Advocate or any other person at such hearing, provided that the appellant files proper vakalath or power of attorney as the case may be.

Added further, Sub-clause 12.02 of Clause 37 Schedule Part I of the Terms and Conditions of Supply of Electricity speaks as under:-

12.02 After receipt of Assessment Notice the consumer can also request the Appellate Authority in writing to stay disconnection of the service. Before considering the appeal, the Appellate Authority can order the consumer to pay not less than a minimum number of instalments as below:

(a) Two instalments out of five instalments for amount upto Rs. 1,00,000/-.

(b) Four instalments out of ten instalments for amount above Rs. 1,00,000/-upto Rs. 10,00,000/-.

(b) Six instalments out of fifteen instalments for amount exceeding Rs. 10,00,000/-.

At this stage, it is to be noted that an administrative function is called "Quasi-Judicial" and there is an obligation to adopt a judicial approach. After all, fairness of procedure is the touchstone of legality. It is needless to state that in an administrative action, a fair procedure must be adopted by the concerned authority in a given situation.

It is not in dispute that the Petitioner has paid a sum of Rs. 1,50,000/- before the XIV Metropolitan Magistrate, George Town, Chennai, in Crime No. 162 of 2003 as per the order of this Court in Criminal O.P. No. 4950 of 2003 on 26.02.2003 for grant of Anticipatory Bail. Likewise, he has also paid a sum of Rs. 54,702/- as per the order of this Court dated 16.7.2003 in W.P.M.P. No. 24428 of 2003 in W.P. No. 19565 of 2003. Admittedly, he has paid a sum of Rs. 2,04,702/- so far. Even according to the Petitioner, he is liable to pay only Rs. 14,102/-, which sum, he is ready and willing to pay as per the statement made by the Learned Counsel for the Petitioner before this Court at the time of hearing of the Writ Petition. Even though the impugned letter of the First Respondent dated 03.5.2005 reads to the following effect:

It is informed that your appeal to defend the theft of energy case couldn''t be entertained, since the payment of Rs. 1,50,000/- made in the XV Metropolitan Magistrate Court on 12/05/03 is against the criminal proceedings. This amount cannot be taken into penal levy charges. If you are willing to proceed the enquiry further, you are requested to pay the amount of Rs. 1,64,105/- [difference of 40% of assessed amount already paid amount i.e. Rs. 2,18,807/- (-) Rs. 54702/- = Rs. 1,64,105/- (Rupees one lakh sixty four thousand one hundred and five only)] on or before 25.5.05 in the office of the Assistant Engineer/O&M/Tondiarpet and intimate to this office for further action, failing which your service connection will be disconnected without further notice.

yet, this Court, based on the attendant facts and circumstances of the case which float on the surface, is of the considered opinion that the First Respondent took the appeal for an enquiry on 19.4.2005 and also that on behalf of the Electricity Board, one witness, viz., Perumalsamy, Executive Engineer, Maduranthagam, was examined. Only thereafter, Smt. Jamuka, Assistant Engineer is reported to have phone up to the Petitioner and informed that the enquiry of the appeal was adjourned to different dates. Later, the Petitioner received the impugned notice dated 03.5.2005 from the First Respondent demanding payment of Rs. 1,64,105/- being the difference of 40% of the amount payable for entertaining the appeal.

In view of the peculiar facts and circumstances of the case encircling the instant case on hand, this Court, based on the equity, fair play, justice and good conscience and even as a matter of prudence, directs the Petitioner to pay the balance sum of Rs. 14,102/- (after deducting the sum of Rs. 54,702/- paid by him as per the order of this Court dated 16.7.2003 passed in W.P.M.P. No. 24428 of 2003 in W.P. No. 19565 of 2003 and payment of Rs. 1,50,000/- made by him before the XIV Metropolitan Magistrate, George Town, Chennai in the criminal proceedings, within a period of three weeks from the date of receipt of a copy of this order. Taking note of the fact that the Petitioner has paid a sum of Rs. 1,50,000/- before the XIV Metropolitan Magistrate, George Town, Chennai, in Crime No. 162 of 2003, this Court, to secure the ends of justice, directs the Respondents/Electricity Board authorities to file necessary payment out application for withdrawing the said amount and to this course, the Learned Counsel for the Petitioner has no objection whatsoever. As such, to put an end to the entire matter in issue, once and for all and also this Court, to deliver substantial justice, overriding either technicalities or hyper-technicalities, directs the First Respondent to take up the appeal filed by the Petitioner (admittedly in part heard stage) soon after the Petitioner remits the balance amount of Rs. 14,102/- within the time fixed by this Court and thereafter, to dispose of the main appeal within a period of three months from the date of receipt of a copy of this order.

With the above directions, the Writ Petition is disposed of leaving the parties to bear their own costs.