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2000 DIGILAW 873 (PAT)

Usha Beltron Ltd. v. Bihar State Electricity Board

2000-07-14

M.Y.EQBAL

body2000
Judgment M.Y.Eqbal, J. 1. Heard Mr. Ram Balak Mahto, learned Sr. counsel appearing for the petitioners and Mr. L.K.Bajla, learned Sr.counsel appearing for the respondent-Board. 2. In this writ application petitioners prayed for issuance of appropriate writ revoking the authority of respondent no.2, General Manager cum Chief Engineer, Singhbhum Area, Bihar State Electricity Board, Jamshedpur to adjudicate the dispute raised by the petitioners in the representation as directed by this Court in terms of order dated 27.1.2000 passed in CWJC No.223/2000(R) [reported in 2000(2) PLJR 836 ] on the ground that he has denied to follow the principle of natural justice. 3. Pursuant to the agreement entered into by and between the petitioner and the respondent-Board the petitioner has been consuming electricity under the sanctioned contract demand of 19500 KVA. Some time in December and January, 2000 inspections were carried out and during inspection it was reported that there had been pilferage of electricity by the petitioner-company. On the basis of inspection report the Board raised a provisional compensatory bill on account of alleged theft of energy for a sum of Rs. 40,39,50,747/- and disconnected the supply of electricity. The petitioner challenged the said bill and the action of the respondents by filing CWJC No.223/2000(R). The said writ application was placed before me for hearing and the same was disposed of in terms of the judgment and order dated 27th January, 2000. This Court in the said judgment formulated two issues for consideration, whether the respondent- Board was justified in disconnecting the supply of electricity on the ground of detection of theft and pilferage of electricity by the consumer and whether the Board was justified in raising a supplementary bill without giving any notice to the petitioner. Relying upon the various decisions of the Supreme Court and this Court, the first issue was decided in favour of the Board and this Court observed; "Having regard to the law discussed hereinabove, of theft and/or pilferage of electricity is found by the Board during inspection and on that account principle of natural justice is not required to be followed and no notice is to be served on the consumer before the disconnection of supply of electricity. 4. 4. While deciding the second question as to whether the Board was justified in raising provisional bill, this Court held: "It appears that before 13.1.2000 earlier on 4.12.99 inspection was made by the authorities of the Board and several irregularities alteration were reported in the inspection report. It is stated in para 33 of the writ petition that during the process of inspection on 4.12.99 several documents were sought by the respondent no.1 which were duly furnished by the petitioner on the same date to the Inspecting Team. Again on 17th December, 20th December and 31st December, 1999 the respondents-authorities asked the petitioner to provide diverse figure which was duly furnished by the petitioner. These facts have not been denied by the respondent-Board in their counter affidavit. In spite of that the outcome of the inspection was not communicated to the petitioner and again the inspection was carried out on 13.1.2000 and the officials of the Board Collected evidence and other materials which were subjective of theft and pilferage of electricity by the petitioner. However, without giving opportunity to the petitioner to explain their stand, the impugned bill has been raised by the respondent-Board. This, in my view, does not appear to be justified. Before raising compensatory bill of such huge amount on the allegation of theft of electricity, which is a grievous charge, at least one opportunity should be given to the consumer as to why they should not be saddled with additional liability in order to meet the losses suffered by the Board. 5. This Court, therefore, disposed of the writ application with the following directions: "Having regard to the entire facts and circumstances of the case, in my opinion, before issuing the impugned bill of Rs. 40,39,50,747/- on the basis of inspection report the respondent Board should have given notice to show cause to the petitioner as to why it should not be saddled with the liability of payment of the aforesaid amount on account of alleged pilferage/theft of electricity. The impugned bill is, therefore, quashed giving liberty to the respondent-Board to raise a fresh bill after giving opportunity of hearing to the petitioners. The petitioners, instead of waiting for show cause notice, shall file a detailed objection/representation to the inspection report before the General Manager cum Chief Engineer, Singhbhum Area, Jamshedpur within two weeks from today. The impugned bill is, therefore, quashed giving liberty to the respondent-Board to raise a fresh bill after giving opportunity of hearing to the petitioners. The petitioners, instead of waiting for show cause notice, shall file a detailed objection/representation to the inspection report before the General Manager cum Chief Engineer, Singhbhum Area, Jamshedpur within two weeks from today. On receipt of the representation the General Manager cum Chief Engineer shall consider the representation and dispose of the same by passing a reasoned order after giving opportunity of hearing to the petitioners. Mr. Kapoor, learned Sr. counsel, has made his submission on the question of interim relief by way of restoration of supply of electricity so long the representation of the petitioner is not disposed of by the General Manager cum Chief Engineer. Learned counsel submitted if the supply of electricity is not restored in the factory premises the petitioner shall suffer serious loss and irreparable injury. Learned counsel submitted that there are about 1150 employees working in the factory of the petitioner and the petitioner will have no other option but to start retrenching them after the total shut down of the factory." 6. The petitioners case is that pursuant to the direction of this Court the petitioner furnished Bank Guarantee but the respondent no.2, General Manager, at the advice of the Sr. Advocate of the Board directed the petitioner to amend the bank guarantee failing which the supply of electricity shall be disconnected. It is stated that in terms of the judgment and order the petitioner filed representation on 10.2.2000 before the respondent no.2 but the respondent-Board filed reply to the said representation on 27.3.2000, i.e. after a period of 45 days of such representation. The petitioner said to have filed another petition before the respondent no.2 for summoning persons who were present during inspection for the purpose of determination of real question and dispute in controversy between the parties. The said application was rejected by the respondent no.2 on 1.5.2000 holding that the representation shall be decided on the basis of documents and arguments of both the parlies. The petitioner then moved this Court by filing the instant writ application. 7. Mr. Ram Balak Mahto, learned Sr.counsel appearing for the petitioners, on the basis of the aforementioned facts, made an exhaustive argument on the question of biasness. The petitioner then moved this Court by filing the instant writ application. 7. Mr. Ram Balak Mahto, learned Sr.counsel appearing for the petitioners, on the basis of the aforementioned facts, made an exhaustive argument on the question of biasness. According to the learned counsel the conduct of the respondent no.2 in directing the petitioner to furnish a rnodified bank guarantee and further disagreeing to summon the officers of the Board as witnesses amounts to and demonstrate palpable bias of the respondent no.2 against the petitioner. Learned counsel submitted that the respondent no.2 ought to have allowed the petitioner to examine the witnesses namely the officers of the respondent- Board and refusal on the part of the respondent no.2 to allow the petitioner to examine witnesses and to question from officers of the Board tantamount to a denial of natural justice. Learned counsel further submitted that it would be against the established norms and the principle of natural justice to compel the petitioners to seek redressal of their grievances from the respondent no.2 who is none else but the officer of the Board and whose conduct is palpably biased against the petitioner. On this ground learned counsel submitted that the respondent no.2 should be discharged from adjudicating the dispute and a neutral person would be appointed as an adjudicator in his place. In course of argument Mr.Mahto relied upon the decisions of the Supreme Court in the case of Manak Lal V/s. Dr.Prem Chand Singhvi : AIR 1957 SC 425 , Ranjit Thakur V/s. Union of India : (1987)4 SCC 611 and Rattan Lal Sharma V/s. Managing Committee : (1993)4 SCC 10 . The learned counsel further referred some English decisions in support of the case of the petitioner. 8. On the other hand, Mr. L.K.Bajla, learned Sr. counsel appearing for the respondent-Board, firstly drawn my attention to the judgment and order passed by this Court in CWJC No. 223/2000(R) and submitted that the respondent no.2 proceeded with the matter strictly in terms of the direction issued by this Court in the aforesaid judgment. 9. Admittedly, the respondent no.2 the General Manager cum Chief Engineer, before whom representation is pending for consideration, is neither a court nor a judicial or quasi judicial authority. It is only pursuant to the order and direction of this Court the respondent no.2 has to dispose of. the representation after following the principle of natural justice. 9. Admittedly, the respondent no.2 the General Manager cum Chief Engineer, before whom representation is pending for consideration, is neither a court nor a judicial or quasi judicial authority. It is only pursuant to the order and direction of this Court the respondent no.2 has to dispose of. the representation after following the principle of natural justice. In other words, the respondent no.2 has to dispose of the representation after giving opportunity of hearing to the parties. 10. The words principle of natural justice does not always mean that the parties must be given opportunity of hearing by examining and cross examining witnesses before the authority who has to take a decision. In my order dated 27.1.2000 in CWJC No.223/2000(R) I simply directed the respondent no.2 to consider the representation and dispose of the same by passing a reasoned order after giving opportunity of hearing to the petitioners. The true import of the order is that the parties would be entitled to produce before the respondent no.2 all the relevant documents and to make their submissions on the question of calculation of the amount which should be charged from the petitioners. It does not mean that the parties will treat the representation pending before the respondent no.2 as a judicial or quasi judicial proceeding. Opportunity of hearing does not always mean a trial type of hearing. Even at the lowest level of the quasi judicial procedure where the statute confers upon the parties to be affected only a right to make a written representation against the action proposed, the natural justice does not require that a personal hearing must be offered to the person affected. Where the court simply requires that notice of action proposed should be given to the party to be affected, it is assumed that the party, on receiving the notice of the action and the allegations upon which the action is proposed, will have a right to meet those allegations by a representation. Only in those cases where right to confront witnesses cannot be denied where the person affected, is entitled under the statute not only to have a "reasonable opportunity of explaining" the allegations made against him but also to appear through a lawyer and examine witnesses for clearing the allegations. 11. Only in those cases where right to confront witnesses cannot be denied where the person affected, is entitled under the statute not only to have a "reasonable opportunity of explaining" the allegations made against him but also to appear through a lawyer and examine witnesses for clearing the allegations. 11. The decisions of the Supreme Court relied upon by the learned counsel for the petitioners, do not apply in the facts and circumstances of the present case. In Manka Lal vs. Dr. Prem Chand Singhvi (supra) the facts of the case was that complaint was filed against the appellant, who was an advocate, under Section 30 of the Legal Practitioners Act making allegations of guilty of professional misconduct. Since the appellant was an advocate of the High Court of Rajasthan, the complaint was sent for enquiry to the Tribunal nominated by the Chief Justice of the High Court of Rajasthan under Section 10(2) of the Bar Council Act. The tribunal held an enquiry, recorded evidence and came to the unanimous conclusion that the appellant was guilty of professional misconduct. When this report was received by the High Court, the matter was argued before the court and the High Court agreed with the finding recorded by the Tribunal and directed that the appellant should be removed from the practice. Against the said decision the appellant moved the Supreme Court. It was argued that the tribunal, appointed by the learned Chief Justice of the High Court, was improperly constituted. It was further argued that the Tribunal was biased against the appellant. In the facts of the case the Supreme Court has held that every member of a Tribunal that is called upon to try issues in the judicial or quasi judicial proceeding must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. 12. In the case of Ranjit Thakur vs. Union of India (supra) the appellant was punished by the court-martial in a summary proceeding under the Army Act. When the matter came before the Supreme Court, submissions were made that the proceedings of the court-martial were vitiated by non-compliance of the mandate of Section 130(1) of the Army. Act. 12. In the case of Ranjit Thakur vs. Union of India (supra) the appellant was punished by the court-martial in a summary proceeding under the Army Act. When the matter came before the Supreme Court, submissions were made that the proceedings of the court-martial were vitiated by non-compliance of the mandate of Section 130(1) of the Army. Act. Further submissions were made that the court-martial did not afford to the appellant an opportunity to challenge its constitution as required by that section and further that the proceedings of the court-martial were vitiated by bias on the part of the officer, who participated in and dominated the proceeding. In the context of the question raised in that case, their Lordships of the Supreme Court have held that the court or tribunal while discharging their duty under Statute must observe the minimal requirements of natural jsutice. 13. Similarly in the case of Rattan Lal Sharma vs. Managing Committee (supra) the fact of the case was that a disciplinary proceeding was initiated against the appellant, the Principal of Higher Secondary School on the allegations of certain charges. The School authorities appointed an enquiry committee consisting of three members. On the basis of enquiry report the Managing Commitee proposed to dismiss the appellant from service. It was not disputed in that case that the disciplinary proceeding against the petitioner was to be carried out in accordance with the provisions of Punjab Aided (School Security of Service) Act, 1969. When the order of punishment came in appeal before the Commissioner under the aforesaid Act, the allegation of bias and prejudice on account of bias was raised against the authority. In that case their Lordships referred various English decisions as also the ratio laid down by the Supreme Court and held that the principle of natural justice is also applicable in administrative bodies. However, the requirements of natural justice must depend on the circumstances of the case, the nature of enquiry, the rules under which the Tribunal is acting, the subject matter i.e. being dealt with, and so forth. 14. As noticed above, the respondent no.2 while disposing of the representation is not acting as a statutory authorty or judicial or quasi judicial authority. It is only pursuant to the direction of this Court the respondent no.2 has to dispose of the representation after giving opportunity of hearing to the petitioners. 14. As noticed above, the respondent no.2 while disposing of the representation is not acting as a statutory authorty or judicial or quasi judicial authority. It is only pursuant to the direction of this Court the respondent no.2 has to dispose of the representation after giving opportunity of hearing to the petitioners. In my opinion, therefore, in view of the nature of the proceeding pending before the respondent no.2, the petitioners cannot compel the authority to allow them to examine and cross examine witnesses. 15. Mr.Mahto, learned Sr.counsel appearing for the petitioners, put much stress on the alleged biased conduct of the respondent no.2. At this stage, I must say that it is not a case where the final decision that may be taken by the respondent no.2 on the representation of the petitioner will not be subject to judicial review. Merely because the respondent no.2 took advice from the counsel on the validity of bank guarantee, it does not mean that the respondent no.2 is biased against the petitioners. The submission of the learned counsel that once the respondent no.2 was directed by this Court to dispose of the representation, he should not act as a General Manager, is devoid of any substance. 16. Having regard to the facts and circumstances of the case, in my considered opinion, the grievance of the petitioners that refusal by respondent no.2 to allow the petitioners to examine witnesses is sufficient to revoke the authority of respondent no.2 in the matter of disposal of the representation, cannot be sustained in law. The respondent no.2, in his order dated 1.5.2000, rightly held that the representation shall be disposed of onthe basis of documents and arguments of both the parties. Since the matter has been unnecesarily delayed, the respondent no.2 is directed to comply the order and direction of this Court passed in CWJC No.223/2000(R) positively within one month from the date of receipt of a copy of this order. 17. The instant writ application stands disposed of with the aforesaid observation and direction.