SUB-DIVISIONAL OFFICER, H.S.E.B. vs SITA RAM

THIS appeal stands virtually concluded against the appellants by the orders of this Commission in H.S.E.S. Panchkula v. M/s. Anoop State Crusher of District Ambala''. First Appeal No. 40 of 1992, decided on 10th of April, 1992 and in I (1992) CPJ 127 ''S.D.O. A.E.E. City Division, Hissar v. M/s. Hotel Palki, Hissar. Consequently the facts merit notice with the utmost brevity.

THE complainant-respondent runs a small scale industrial unit known as Krishan Cotton in village Gangwa in District Hissar, which is operated by electric energy supplied by the appellant-department. On the 24th of January, 1991, the Assistant Director Vigilence of H.S.E.B. inspected the electric installation at the said factory and directed disconnection on that very day which was later got restored on 30th of January, 1991. Later according to the complainant the meter got burnt owing to a technical fault on 4th of February, 1991 and was replaced by a new one on the following day. However, to the complainant-respondents, surprise on the 18th of February, 1991 the electric supply was disconnected and the cables were removed without any notice to the consumer. To crown in all, later a bill dated the 19th of February, 1991 was received by him demanding an amount of Rs. 61,445.78p alongwith a penalty of Rs. 1,226.84p which was directed to be payable by the 27th of February, 1991. THE complainant''s grievance was that no reason had been mentioned for imposing the huge amounts aforesaid for a consumption of 1899 units only and thus the demand was totally unjustified. Later on the complainant came to know that the officials of the appellant Department had came to the conclusion that the meter had been tampered with and the penal imposition had been made on assumption of theft and unauthorised use of electricity. On notice being served the appellants inter alia took up the plea that on the 24th of January, 1991 the Assistant Director, Vigilence accompanied by the S.D.O. and Junior Engineer had checked the meter and submitted a report that the factory was working, though there was a power cut and hence, supply was stopped and restored only on 31st January, 1991 on depositing the amount of Rs. 500/- towards reconnection fee. It was alleged that the electricity meter had been maliciously burnt by the complainant to destroy the evidence of improper use of electricity and the firm stand taken was that the supply was stopped on the 18th of February, 1991 since electricity was being stolen. It was also the case that the meter was got tested in the laboratory and a report with regard thereto was given which led to the conclusion that theft bad been committed and consequently an imposition of Rs. 66,585/- was made for improper use of energy and penalty etc.

The parties led evidence in support of the case and primarily relied upon the documents placed on the record. The District Forum pointedly noticed that Shri Balwant Singh Bura, Assistant Director, Vigilence had made a checking report AnnexureR-1, dated the 24th January, 1991 and in continuity thereof another test report Annexure R-2 was prepared by the officials of the laboratory which at no stage were even remotely served on the complainant. It came to the conclusion that the wholly unilateral imposition of the penalty without serving the reports aforesaid on the complainant and without associating him in any way with the enquiry and the proposed action against him was unjustified. Relying upon'' S.D.O, A.E.E. City Division, Hissar v. M/s. Hotel Palki, Hissar''s (Supra) case, the District Forum allowed the complaint and directed that the complainant was not required to make any payment as a result of the un-served departmental reports against him and would be also entitled to the refund or readjustment of Rs. 8,000/- which the complainant had deposited for the restoration of electric energy.

MR. Om Parkash Sharma, the learned Counsel for the appellant was hard put to support the appeal in view of the clear-cut factual finding of the District Forum which could not be assailed. Learned Counsel fairly conceded that the reports Annexures R-1 and R-2 were at no stage served on the complainant. Yet again learned Counsel virtually clutched at a straw in submitting that the supply of electric energy was goods and since the complainant was using it for a commercial purposes, he was not a consumer and consequently not entitled to invoke its jurisdiction. The aforesaid submission has only to be noticed and rejected. As already mentioned, the matter is covered against the appellants by ''H.S.E.B, Panchkula v. M/s. Anoop Stone Crusher of District Ambala'' (Supra). Therein after an exhaustive discussion, it was concluded that in view of the statutory conditions of supply of electricity No. 24-A(ii)(3) and 24-A(v)(i) notified by the Haryana State Electricity Board, the service of the reports of the memorandum of inspection and seizure upon the consumer were mandatory before any adverse action can be taken against him. It bears repetition herein that neither of the two reports were ever served on the respondent and the penal proceedings resting on the same were entirely behind his back. The ratio of the aforesaid decision, therefore, goes entirely in the respondent''s favour.

YET again in ''S.D.O. A.E.E. City Division, Hissar''s Case which was somewhat analogues, it was held as under:- "The District Forum in appraising the same rightly took an adverse inference from the deliberate withholding of the alleged reports by the employees of the appellant on which there basic stand was sought to be raised. It rightly took the view that a mere broken seal of a meter is not a conclusive proof of the theft of electrical energy."

In view of the above, the findings and the conclusion of the District Forum pertaining to the non-service of the crucial reports on the respondents have to be affirmed. It remains to advert to the tenuous submission of the appellants that the respondent was not a consumer because electric supply was goods and since its use was for a commercial purposes, the respondent was ousted from the definition of a consumer. In II (1991) CPJ 38 ''H.S.E.B. v. Dinesh Kumar'', it has been categorically held after an exhaustive discussion of principle and precedent as under:- "In the light of the above, the answer to the first question posed at the outset is rendered in the terms that the supply of electric energy under the Act is a hiring of service and not a purchase of goods."

The aforesaid ratio was challenged afresh in S.D.O.,A.E.E. City Division, Hissar''s case (Supra), but the same was repelled and it was held as under:- "In the light of the above discussion, the ratio deci-dendi on this point in the Haryana State Electricity Board v. Dinesh Kumar'' even after fresh consideration is hereby reaffirmed." In view of the above, the jurisdictional challenge to the order of the District Forum must be clearly rejected.

IN light of the above, the appeal is without merit and is hereby dismissed with costs which are assessed at a figure of Rs. 200/- only. The appellants must conform to the order of the District Forum including the payment of the appellate costs within one month from today, failing which compliance will be enforced by the District Forum under Section 27 of the Act. Appeal dismissed with costs.