JUDGMENT : ARIJIT BANERJEE, J. 1. The appellant filed a writ petition being WP No. 18193(W) of 2015 challenging the final assessment order made on 15 July, 2015 by an officer describing himself as the Assessing Officer/Superintending Engineer (Electrical) of the respondent licensee company on the basis of the provisional assessment made by him on 30 June, 2012 under Sec. 126 of the Electricity Act, 2003. By a judgment and order dated 10 September, 2015 the learned Single Judge dismissed the writ petition. Being aggrieved, the appellant is before us. Contention of the appellant:- 2. Mr. Shakti Nath Mukherjee, learned Senior Counsel appearing for the appellant referred to Sec. 126 of the Electricity Act, 2003 and submitted that the provisional assessment thereunder can be made only by the Divisional Engineer (in short ‘the D.E.) (Electrical). He referred to a notification dated 13 April, 2004 issued by the Government of West Bengal whereby for de-centralized bulk consumers, D.E (Electrical)/Superintending Engineer (Electrical) of West Bengal State Electricity Board were designated as ‘Assessing Officer’ to discharge the functions specified in Sec. 126 of the Electricity Act, 2003 (in short ‘the said Act’). He then submitted that inspection of the concerned meter was made on 28 June, 2012 and provisional assessment order for alleged unauthorised use of electricity was issued on 30 June, 2012 by Sri Satyabrata Ghosh, D. E. (Commercial), Hooghly Region who was also officiating as the Regional Manager, but he was not the D. E. (Electrical) 3. Mr. Mukherjee referred to a memo dated 25 January, 2012 issued by the Regional Manager, Hooghly Region recording that Sri Satyabrata Ghosh (in short Satyabrata) had joined the Hooghly Region Office and had assumed charge of D.E (Commercial) with effect from 24 January, 2012. He further referred to an Office Order dated 22.06.2012 issued by the Zonal Manager, Burdwan Zone, WBSEDCL to the effect that consequent upon Sri Surajit Chakraborty, S.E. & R. M., Hooghly Region, going on leave, Sri Satyabrata Ghosh, D. E. (Com.), Hooghly Region, will take over the charge of Hooghly Region as Regional Manager in addition to his normal assignment w.e.f. 22.06.2012 till Sri Chakraborty resumes his duty. He submitted that on the date of inspection of the concerned meter of the appellant and on the date of issuing the provisional assessment order, Satyabrata was D. E (Commercial) and was also officiating as Regional Manager but definitely he was not D. E. (Electrical). Hence, he lacked the authority to conduct the inspection or issue provisional assessment order. 4. Mr. Mukherjee then submitted that the meter in question was installed on 31 October, 2011. Hence, going backwards, the Assessing Officer could assess unpaid tariff for alleged unauthorised consumption of electricity till 31 October, 2011 and not for a period prior thereto. However, the assessment has been made for a period of one year ending on 28 June, 2012. 5. He then submitted that on 29 March, 2012 there was an inspection of the meter in question. The report states that no theft of power was detected during inspection. On 25 June, 2012 there was another inspection by the Burdwan Testing Team as has been stated in an affidavit affirmed on behalf of the respondents on 16 January, 2013 in connection with WP No. 22855 (W) of 2012. However, it was not stated in the said affidavit that any pilferage was detected on 25 June, 2012. There is no allegation that on 25 June, 2012 the padlock on the meter room was found to have been tampered with. The meter room was under lock and key of the respondent authorities. Hence, provisional assessment for alleged theft of electricity could not have been made for a period prior to 25 June, 2012. 6. Mr. Mukherjee referred to several affidavits affirmed by Satyabrata on behalf of the respondent authorities in none of which he described himself as D.E (Electrical). These are (i) supplementary affidavit dated 10 April, 2014 wherein he described himself as D. E (Commercial), (ii) affidavit dated 16 January, 2013 wherein he described himself as Divisional Manager, Hooghly (D) Circle, (iii) affidavit dated 18 November, 2013 wherein he described himself as Divisional Manager (Commercial), Hooghly Regional Office. 7. Learned Counsel then drew our attention to the minutes of the meeting held at the chamber of Zonal Manager between 13 July, 2012 at which hearing was given to the appellant’s authorized representative before making the provisional assessment final. Satyabrata has signed on the said minutes as D. E (Commercial), Hooghly Region. 8. 7. Learned Counsel then drew our attention to the minutes of the meeting held at the chamber of Zonal Manager between 13 July, 2012 at which hearing was given to the appellant’s authorized representative before making the provisional assessment final. Satyabrata has signed on the said minutes as D. E (Commercial), Hooghly Region. 8. Final assessment order was issued by Satyabrata describing himself as Assessing Officer, on 28 July, 2012. This was challenged by the appellant by filing W.P. No. 22855(W) of 2012. The Learned Single Judge dismissed the writ application. The appeal preferred against the dismissal order by the appellant herein being AST 201 of 2013 was disposed of by the Division Bench by an order dated 27 March, 2015. It was argued on behalf of the appellant that the hearing prior to issuance of the final assessment order was not held by the competent authority and the competent authority did not pass the final assessment order for the alleged unauthorized consumption of electricity by the appellant. The Division Bench accepted such submission and set aside the Learned Single Judge’s order. The operative portion of the Division Bench’s order reads as follows:- “For the aforementioned reasons, we are not inclined to approve the impugned final assessment order. Accordingly, we quash the same and direct the competent authority to de novo consider the grievances of the Appellant-Company and pass final assessment order in accordance with law as early as possible and preferably within a period of two weeks from date. Mr. Mitra submits that the competent authority will grant hearing to the representative of the appellants/petitioners on 7th April, 2015 in the office of the Regional Manager, Hooghly Region, West Bengal State Electricity Distribution Company Limited, Administrative Building, Ram Mandir, P.O.- Chinsurah R.S., District-Hooghly. The competent authority is therefore, directed to issue a formal notice in this regard to the appellant-company mentioning the time for holding the meeting on 7th April, 2015. The appellants/petitioners will also be at liberty to file written objection before the competent authority on or before 2nd April, 2015 in addition to the objection already filed against the provisional assessment order. Needless to mention that the competent authority will pass appropriate reasoned order in the matter and communicate a copy of the same to the appellants within two days from the date of passing such order. Needless to mention that the competent authority will pass appropriate reasoned order in the matter and communicate a copy of the same to the appellants within two days from the date of passing such order. Let it also be on record that we have not expressed any opinion with regard to any other issue raised in the appeal on merits.” 9. Pursuant to such order of remand to the competent authority, a notice of hearing dated 2 April, 2015 was issued by Satyabrata wherein he described himself as the Assessing Officer and Superintending Engineer (Electrical), Hooghly Region. It is not in dispute that in the meantime, he had been promoted to the post of Superintending Engineer (Electrical). A meeting was held before Satyabrata on 7 April, 2015. The final assessment order was passed by Satyabrata on 15 July, 2015 confirming the earlier provisional assessment of Rs. 2,50,59,848/-. This order was challenged by the appellant by filing W.P. No. 18913 (W) of 2015. The Learned Single Judge dismissed the writ petition by a judgment and order dated 10 September, 2015, the operative portion of the said judgment and order reads as follows:- “But the facts as established on evidence do not support Mr. Mukherjee’s case. I have every reason to believe that Satyabrata Ghosh was properly appointed as the Divisional Engineer (Electrical) and Superintending Engineer (Electrical) at different points of time during the course of this litigation and he continued to exercise the functions of this post although he was given the charge of Divisional Engineer (Commercial), additionally. Hence, he was the properly appointed Assessing Officer for the Hooghly District in terms of the notification dated 6th April, 2004. There is no merit in this writ application. It is dismissed. However, since the writ petitioner has been spared disconnection of electricity by an order of injunction of this Court and thereafter by the assurance of learned counsel for the respondent licensee, not to disconnect the electricity supply, let such status quo regarding disconnection be maintained for a period of three weeks from date, to enable the petitioner to move a higher forum, if they are so advised. This liberty is granted to the petitioner in view of the strong conviction expressed by Mr. This liberty is granted to the petitioner in view of the strong conviction expressed by Mr. Mukherjee learned senior advocate that the Assessing Officer did not enjoy the designation to qualify him as such and that because of this all his actions from inspection till making of the final assessment are a nullity.” 10. The aforesaid order is under challenge in the present appeal. 11. Mr. Mukherjee then submitted that a statutory power can be exercised only by the person authorized by the statute. It is different from an administrative power. An administrative power may be exercised by a person holding the concerned post or officiating in that post. However, that is not the case with statutory power. In this connection he referred to the Division Bench Judgment of this Court in the case of T.R. Pandey-vs-The Chief Commissioner, Andaman & Nicobar Islands, 1978 LAB IC 41, wherein it was observed, inter alia, that an officer appointed to perform the current duties of an appointment can exercise administrative or final powers vested in the full-fledged incumbent of the post but he cannot exercise statutory powers where those powers are derived direct from the Act of Parliament or Rules, Regulations and bye-laws made under various articles of the Constitution. 12. Learned Senior Counsel then submitted that in none of the affidavits affirmed by Satyabrata, he has described himself as D.E. (Electrical). However, in one affidavit he has stated that he belongs to the cadre of D.E. (Electrical). Cadre is different from post. He has never said that he ever held the post of D.E. (Electrical). In this connection he referred to the Division Bench Judgment of this Court in the case of Director General of Health Service and Ors. Vs. Bikash Chatterjee & Anr., 73 CWN 249, wherein it was observed that cadre does not mean post but it means the strength of the establishment. Relying on the aforesaid submission Mr. Mukherjee prayed for setting aside of the final assessment order as well as the provisional assessment order. Contention of the Respondents:- 13. Appearing for the respondent company Mr. Anindya Mitra, learned Senior Counsel submitted that Satyabrata was promoted to the post of Divisional Engineer (Electrical) on November 30, 2005. On 8 December 2011 he was transferred to the Hooghly Regional Office as D.E. (Electrical). Contention of the Respondents:- 13. Appearing for the respondent company Mr. Anindya Mitra, learned Senior Counsel submitted that Satyabrata was promoted to the post of Divisional Engineer (Electrical) on November 30, 2005. On 8 December 2011 he was transferred to the Hooghly Regional Office as D.E. (Electrical). On 29 March 2012, there was inspection and checking of the meter installed at the appellant factory by the Security of Loss Prevention Cell (S & LP Cell) of the respondent company in the presence of Sri Jitendra Kumar Modi who represented the appellant. He referred to the inspection report wherein it is recorded, inter alia, “Load in R-ph and B-ph is found considerable imbalance at about 3.5 amps which needs to be checked by DTD”. DTD stands for Distribution Testing Department. In the internal forwarding note of the Chief of the S & L.P. team it was recorded, inter alia, that “appreciable difference in currents has been observed in both the phases in R & Y of about 3.5 amps which needs to be thoroughly checked by Distribution Testing Department. Moreover, installed CTR of switch gear needs to be checked and 11 KV cable route needs to be checked.” On 28 June, 2012 there was again inspection and checking of meter circuit and meter at the appellant’s factory by Satyabrata along with personnel of S & L.P. Cell and Testing Cell of the respondent company. Theft of energy was detected and nature of tampering was recorded in the inspection report as follows: - “Meter circuit is checked and found in backside of TTB (Testing Terminal Block) inserted a remote device which could be operated from outside of meter room with a control device of remote. As a result, current bifurcated from Testing Terminal and operation of current not reflected in meter.” 14. The said inspection report was signed by two representatives of the appellant as witnesses namely Shri Jitendra Kumar Modi and Shri Dulal Chattopadhyay. The foreign remote device was seized. Seizure list was prepared and the same was witnessed and signed by the said Jitendra Kumar Modi and Dulal Chattopadhyay as representatives of the appellant. Jitendra Kumar Modi was a supervisor of the appellant’s factory. The foreign remote device was seized. Seizure list was prepared and the same was witnessed and signed by the said Jitendra Kumar Modi and Dulal Chattopadhyay as representatives of the appellant. Jitendra Kumar Modi was a supervisor of the appellant’s factory. In the said report it was further recorded that one panel of the meter room door was so weak and fragile at the hinges that the said door could be opened without disturbing the seals on the door. This defect was removed by requisite welding. Electric supply to the appellant’s factory was disconnected on 28 June, 2012 itself. 15. On 13 July 2012 hearing as envisaged under Section 126 of the Electricity Act 2003, in respect of provisional assessment order dated 30 June 2012 was held by Satyabrata. Ashok Kumar Bajoria represented the appellant at the said meeting and his objections were recorded. No objection was raised regarding competency of Satyabrata to act as Assessing Officer. On 28 July 2012 final assessment order was issued by Satyabrata for Rs. 2, 50,59, 848/-. 16. The appellant filed W.P. No. 22855 (W) of 2012 challenging the final assessment order. No ground was taken in the said writ petition that Satyabrata was not competent to pass the final assessment order nor was there any ground that the period of assessment should not be for one year. The provisional assessment order dated 30 June, 2012 issued by Satyabrata was not challenged in the said writ petition. No such ground was also taken in the memorandum of appeal filed in connection with AST No. 201 of 2013 which was an appeal from the order dated 19 September, 2013 passed by the learned Single Judge dismissing the writ application on the ground of availability of alternative remedy by way of statutory appeal. 17. In connection with the stay application filed in the said appeal Satyabrata had affirmed an affidavit on 18 November, 2013 describing himself as Divisional Engineer (Commercial). Subsequently, to correct the said mistake, he affirmed a supplementary affidavit on 10 April, 2014 wherein he stated that he had been working in the cadre of Divisional Engineer (Electrical) and further that he was transferred to the Hooghly Regional Office in the cadre/designation of D.E. (Electrical). Subsequently, to correct the said mistake, he affirmed a supplementary affidavit on 10 April, 2014 wherein he stated that he had been working in the cadre of Divisional Engineer (Electrical) and further that he was transferred to the Hooghly Regional Office in the cadre/designation of D.E. (Electrical). It was further stated that the respondent company from time to time called upon him to discharge commercial duties at the said Hooghly Regional Office as Divisional Engineer (Commercial) though he remained posted in the respondent company as Divisional Engineer (Electrical). It was also stated that since the Regional Manager of the Hooghly Regional Office had taken Medical Leave from 22 June, 2012 till 2 July, 2012, Satyabrata was also discharging the duties of Regional Manager of the Hooghly Regional Office temporarily during that period. On 22 January, 2015 Satyabrata was promoted from the post of Divisional Engineer (Electrical) to the post of Superintending Engineer (Electrical). 18. The respondents have filed a supplementary affidavit annexing thereto copies of various documents maintained by the respondents. Mr. Mitra referred to an office order dated 30.11.2003 issued by a respondent company whereby amongst other persons, Satyabrata was promoted to the post of Divisional Engineer (Electrical). He also referred to an office order dated 8.12.2011 whereby 31 engineers in the cadre of Superintending Engineer (Electrical)/Divisional Engineer (Electrical) were transferred in the interest of the respondents from one establishment to another. Satyabrata was one such engineer. He was transferred from Raghunathganj Division to the Hooghly Regional Office and according to Mr. Mitra he remained Divisional Engineer (Electrical) at the Hooghly Regional Office. Mr. Mitra referred to the salary slips of Satyabrata for the period January 2012 till August 2012 and pointed out that his designation was Divisional Engineer (Electrical). Learned Senior Counsel also referred to an office order dated 22.01.2015 whereby Satyabrata was promoted to the post of Superintending Engineer (E). In the said letter it is stated that Satyabrata, Divisional Engineer (E), attached to the Hooghly Region, WBSEDCL was promoted to the post of Superintending Engineer (E). 19. Learned Senior Counsel also referred to an office order dated 22.01.2015 whereby Satyabrata was promoted to the post of Superintending Engineer (E). In the said letter it is stated that Satyabrata, Divisional Engineer (E), attached to the Hooghly Region, WBSEDCL was promoted to the post of Superintending Engineer (E). 19. The appeal against the final assessment order was allowed and by an order dated 27 March 2015 the Division Bench quashed the final assessment order on the ground that the hearing prior to issuance of such assessment order was admittedly held in the chamber of the Zonal Manager of the respondent in presence of several officers and the entire house had expressed opinion instead of the competent authority alone. The Division Bench directed the competent authority to de novo hear the writ petitioner and pass final assessment order in accordance with law. The competent authority was directed to issue formal notice mentioning the time for holding hearing on 7 April, 2015. 20. Mr. Mitra submitted that in spite of Satyabrata having described himself as Divisional Engineer (Commercial) in the affidavit dated 10 April, 2014, the Division Bench did not hold that he was not the competent authority. Thus, the issue of competency of Satyabrata has become res judicata or barred by issue estoppel. It is not open to the writ petitioner to contend before another Appellate Court in a subsequent legal proceeding that Satyabrata lacked competency to hold inspection or issue provisional order or final order of assessment. 21. On 2 April 2015 Satyabrata issued notice of hearing in pursuance of the Appellate Court’s order as the competent authority describing himself as Assessing Officer and Superintending Engineer (Electrical), Hooghly Regional Office and also Superintending Engineer (Commercial), Hooghly Regional Office. The writ petitioner/appellant issued a letter dated 7 April, 2015 addressed to the Superintending Engineer (Commercial) and Assessing Officer (i.e. Satyabrata), authorizing its manager to attend the hearing to be held in the chamber of the Assessing Officer and Superintending Engineer (Commercial), Hooghly Regional Office. No objection was taken regarding competency of Satyabrata. The meeting was duly held, wherein the representative of the appellant participated. He duly signed the minutes of the meeting. All objections raised by him were recorded. No objection regarding Satyabrata’s competency was raised. 22. The final assessment order was issued by Satyabrata on 15 July, 2015. Mr. No objection was taken regarding competency of Satyabrata. The meeting was duly held, wherein the representative of the appellant participated. He duly signed the minutes of the meeting. All objections raised by him were recorded. No objection regarding Satyabrata’s competency was raised. 22. The final assessment order was issued by Satyabrata on 15 July, 2015. Mr. Mitra submitted that having taken a chance of success before Satyabrata, now, the appellant cannot assail his competency. Mr. Mitra also drew our attention to paragraph 41 of the writ petition which was filed challenging the final assessment order dated 15 July, 2015. In the said paragraph it is stated that “your petitioners state that as per instruction contained in the memos dated 02.04.2015 and 04.04.2015, your petitioners duly appeared before the competent authority on scheduled date, time and venue”. Hence, even in the writ petition the petitioner accepted Satyabrata as the competent authority. 23. Mr. Mitra then relied on the de facto doctrine to uphold the validity of the provisional assessment order issued by Satyabrata. The de facto doctrine was explained by Sir Asutosh Mookerjee. J. in the case of Pulin Behari-vs.-King-Emperor, (1912) 15 CLJ 517 as follows:- “The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined.” 24. Mr. Mitra relied on the Supreme Court decision in the case of Gokaraju Rangaraju-vs.-State of Andhra Pradesh (1981) 3 SCC 132 wherein the aforesaid passage from the judgement of Sir Asutosh Mookerjee. J. was quoted with approval. Mr. Mitra relied on the Supreme Court decision in the case of Gokaraju Rangaraju-vs.-State of Andhra Pradesh (1981) 3 SCC 132 wherein the aforesaid passage from the judgement of Sir Asutosh Mookerjee. J. was quoted with approval. Learned Senior Counsel also relied on the Supreme Court decision in the case M/s. Beopar Sahayak (P) Ltd. and Ors.-vs.-Vishwa Nath and Ors. (1987) 3 SCC 693 wherein also the Hon’ble Supreme Court applied the de facto doctrine. 25. Mr. Mitra then submitted that all along Satyabrata was D.E. (Electrical) although he also discharged the functions of D.E. (Commercial). This was an additional charge. Learned Senior Counsel then submitted that Satyabrata has not been made a party to the writ petition. In the previous writ petition he was respondent no. 5. In the present writ petition also he is a necessary party. The writ petition is bad for non-joinder of a necessary party. Learned Senior Counsel then submitted that the discretion exercised by learned Single Judge on the ground of existence of alternative remedy cannot be faulted. Such exercise of discretion was not capricious or arbitrary. 26. Mr. Mitra then referred to the written notes of argument filed by the writ petitioner before the learned Single Judge and submitted that the point regarding limiting the liability period to 3 months was not urged before the learned Single Judge. He referred to the final assessment order and submitted that the Assessing Officer has recorded his reasons as to why the exact period of unauthorized use of electricity could not be ascertained and hence, assessment was done for a period of one year in terms of Section 126 (5) of the Electricity Act. It is a finding supported by reasons and cannot be said to be perverse. Such a finding can be challenged only in a statutory appeal under Section 127 of the Electricity Act. He submitted that the appellant chose to file a writ petition urging jurisdictional issue rather than a statutory appeal to avoid arguments on merits on which the petitioner has no answer. The learned Single Judge has found that Satyabrata’s appointment as Assessing Officer was valid and proper. There is no challenge to such finding. Learned Senior Counsel then submitted that it is not the appellant’s case that Satyabrata as Superintending Engineer (Electrical) did not have authority to pass the final assessment order. The learned Single Judge has found that Satyabrata’s appointment as Assessing Officer was valid and proper. There is no challenge to such finding. Learned Senior Counsel then submitted that it is not the appellant’s case that Satyabrata as Superintending Engineer (Electrical) did not have authority to pass the final assessment order. The case is that Satyabrata did not have the authority to conduct the initial inspection and such inspection was a nullity. However, the Division Bench in the earlier appeal did not hold the initial inspection to be bad. Otherwise, the Division Bench would not have directed de novo assessment based on such initial inspection. As regards the concepts of post and cadre, learned Senior Counsel submitted that in a cadre there may be many posts. A cadre is created depending on the number of posts. What an employee holds is a post and not a cadre though he may belong to a cadre. In this connection Mr. Mitra referred to the decision of the Hon’ble Supreme Court in Dr Chakradhar Paswan-vs.-State of Bihar & Ors., (1988) 2 SCC 214 , wherein it was observed, inter alia, that in service jurisprudence, the term ‘cadre’ has a definite legal connotation. In the legal sense the word ‘cadre’ is not synonymous with ‘service’. Cadre means the strength of a service or a part of a service sanctioned as a separate unit. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency. 27. Mr. Mitra submitted that the issue of competence of Satyabrata to act as the Assessing Officer and the validity of the initial inspection was implicitly upheld by the Division Bench in the earlier appeal. Therefore, the principle of issue estoppel would apply and the same issue cannot be re-agitated in the present proceeding. In this connection he referred to the decision of the Hon’ble Supreme Court in the case of Bhanu Kumar Jain-vs.-Archana Kumar & Anr., (2005) 1 SCC 787 . At paragraph 30 of the reported judgment the Hon’ble Apex Court observed that res judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against the party. At paragraph 30 of the reported judgment the Hon’ble Apex Court observed that res judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in a later proceeding. Learned Senior Counsel also referred to the decision of the Hon’ble Supreme Court in the case of Bharat & Co.-vs.-Trade Tax Officer & Anr., (2005) 6 SCC 796 , wherein at paragraph 19 of the reported judgement it was observed that once the issue of title to the goods in question was decided by the Tribunal in favour of the appellant and such decision was not challenged, the issue of title was concluded in the appellant’s favour. Hence, it was not open to the authority concerned on remand to reject the appellant’s application for release of the goods in its favour on the ground that it was not the owner of the goods. The High Court was also precluded from re-deciding the same issue between the same parties. 28. Finally Mr. Mitra relied on a notification dated 30 July, 2013 issued by the West Bengal Electricity Regulatory Commission, paragraph 21 whereof prescribes the rates of the applicable delayed payment surcharge arising from non-payment of electricity charges as well as other charges by a consumer. Petitioner in Reply:- 29. In reply, Mr. Mukherjee learned Senior Counsel referred to the decision of the Hon’ble Supreme Court in the case of Hussein Ghadially Alias M.H.G.A. Shaikh & Ors.-vs.-State of Gujarat, (2014) 8 SCC 425 , in support of his submission that if a statute vests a particular officer with power to do something, only he can do it. Neither an inferior nor a superior officer can do it. This is a legislative mandate. Mr. Mukherjee referred to the additional objection filed by the appellant before the Assessing Officer pursuant to leave granted by the Division Bench in the earlier appeal and pointed out that Satyabrata’s authority/competency to hold the inspection and issue the provisional assessment order was challenged therein. This was dealt with in the final assessment order. 30. As regards the additional documents filed before us by the respondents by way of supplementary affidavit, Mr. This was dealt with in the final assessment order. 30. As regards the additional documents filed before us by the respondents by way of supplementary affidavit, Mr. Mukherjee submitted that such documents should not be looked into since there is no application under O. 41 R. 27 of Code of Civil Procedure. Rejoinder on behalf of the respondents:- 31. In rejoinder, Mr. Mitra Learned Senior Counsel submitted that the office order dated 8 December, 2011 issued by respondent company would show that the transfer of Satyabrata was from one place to another and not from one post to another post. Describing Satyabrata as Divisional Engineer (Commercial) in some of the letters issued by the Zonal Manager or the Regional Manager would not change the situation and would not prevail over the office order dated 8 December 2011. 32. On the point of O. 41 R. 27 of the Code of Civil Procedure, Mr. Mitra referred to the Hon’ble Supreme Court’s decision in the case of Jaipur Development Authority-vs.-Kailashwati Devi (Smt), 1997 (7) SCC 297 . He also relied on the Constitution Bench decision of the Hon’ble Supreme Court in the case of K. Venkataramiah-vs.-A. Seetharama Reddy & Ors., AIR 1963 SC 1526 , in support of his submission that omission to record reasons for admitting additional documents before the Appellate Court would not vitiate admitting such documents. Court’s View:- 33. Two questions arise for determination. Firstly, whether Satyabrata was competent/authorised to act as the Assessing Officer? Secondly, if the answer to the first question is in the affirmative, whether or not the assessment order suffers from any such infirmity so as to warrant interference by the Writ Court? 34. Taking the first question first, the argument of Mr. Mukherjee, learned Sr. Counsel representing the appellants, has been that the notification dated 13 April, 2013 issued by the Government of West Bengal designated a Divisional Engineer (Electrical)/Superintending Engineer (Electrical) attached to Circle Manager as Assessing Officer to discharge the functions specified in Sec. 126 of the Electricity Act, 2003 in respect of decentralized bulk consumers. It is not in dispute that the appellant company comes within the category of decentralized bulk consumers. Mr. Mukherjee’s submission centred around the affidavits affirmed by Satyabrata in connection with legal proceedings in this Court wherein he described himself as D.E. (Commercial). It is not in dispute that the appellant company comes within the category of decentralized bulk consumers. Mr. Mukherjee’s submission centred around the affidavits affirmed by Satyabrata in connection with legal proceedings in this Court wherein he described himself as D.E. (Commercial). Learned Counsel also relied on a letter issued by the Regional Manager, Hooghly Region as also a letter issued by the Zonal Manager, Burdwan Region wherein Satyabrata was described as Divisional Engineer (Commercial). He argued that only a Divisional Engineer (Electrical) could act as the Assessing Officer. Since Satyabrata was not a Divisional Engineer (Electrical), he was not competent to act as the Assessing Officer. The initial inspection, the provisional assessment order and consequently the final assessment order are without jurisdiction and hence void and non-est in the eye of law. 35. Mr. Mitra, learned Sr. Counsel representing the respondent company submitted that the appellant company cannot urge the issue of lack of competence of Satyabrata to act as the Assessing Officer. The appellant company is precluded from doing so by the principles of constructive res judicata and issue estoppel. We are of the view that Mr. Mitra is right. The appellant company had challenged the final assessment order issued by the Satyabrata on 28 July, 2012 by filing a writ petition in this Court. The writ petition was dismissed. The appeal preferred against such order of dismissal was allowed and the matter was remanded to the competent authority for passing the final assessment order afresh. Neither before the learned Single Judge nor before the Division Bench the appellant company urged the issue of lack of competence of Satyabrata to act as Assessing Officer. The appellant company could have agitated the said point but did not do so. Hence, the said point is deemed to have been decided as Satyabrata having the competence to act as the Assessing Officer. The principle of constructive res judicata squarely applies. Sec. 11 of the CPC in so far as it is relevant for our purpose provides as follows:- “S.11. Hence, the said point is deemed to have been decided as Satyabrata having the competence to act as the Assessing Officer. The principle of constructive res judicata squarely applies. Sec. 11 of the CPC in so far as it is relevant for our purpose provides as follows:- “S.11. Res judicata._No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom the or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. .................................. Explanation IV._Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. .........................................” Not having raised the point in the earlier proceeding although the appellant company could have done so, this court is precluded from entertaining such plea by the principle of constructive res judicata. 36. The principle of issue estoppel also stands in the way of the appellant company agitating before us the point of Satyabrata being incompetent to act as Assessing Officer. The Division Bench in the earlier appeal remanded the matter to the competent authority for passing the final assessment order afresh. The Division Bench thereby implicitly upheld the validity of the provisional assessment order issued by Satyabrata and the initial inspection on which the provisional assessment order was based. Otherwise, the Division Bench would have held that the initial inspection was bad and so was the provisional assessment order. But it did not do so. Hence, the principle of issue estoppel precludes the appellant company from challenging the legality or validity of the initial inspection or the provisional assessment order issued by Satyabrata, before us. The principle of issue estoppel laid down by the Apex Court in the cases of Bhanu Kumar Jain (supra) and Bharat & Co.-vs.-Trade Tax Officer & Anr. (supra) squarely applies to the facts of the present case. 37. As regards the argument of Mr. Mukherjee, learned Sr. The principle of issue estoppel laid down by the Apex Court in the cases of Bhanu Kumar Jain (supra) and Bharat & Co.-vs.-Trade Tax Officer & Anr. (supra) squarely applies to the facts of the present case. 37. As regards the argument of Mr. Mukherjee, learned Sr. Counsel, that the initial inspection by Satyabrata and the provisional assessment order issued by him were without jurisdiction and therefore, the principles of constructive res judicata or issue estoppel would not debar the appellant company from agitating before us the issue of lack of competence of Satyabrata to act as Assessing Officer, on facts we find that Satyabrata was Divisional Engineer (Electrical) when he held the inspection of the electric meter at the appellant’s factory and when he issued the provisional assessment order. The records produced before us by the respondent company by way of supplementary affidavit referred to hereinabove clearly establish this fact. Authenticity of such records has not been disputed by the appellant company. In the salary slips for the relevant period Satyabrata has been described as Divisional Engineer (Electrical). We are of the view that Satyabrata described himself as Divisional Engineer (Commercial) in the affidavits affirmed by him under misconception and the same would not alter the factual situation. Further, in the transfer order dated 8 December, 2011 issued by the respondent company, Satyabrata’s designation at the Raghunathganj Division where he was posted on that date was shown as D.E (E). He was transferred to the Hooghly Regional office. The remarks column which indicated the posts at the transferred office was left blank in case of Satyabrata and a few other employees who were also transferred by the said office order. This is in contradistinction to the case of other employees who were also transferred by the said office order in respect of whom in the remarks column the designation at the transferred office was mentioned since there was a change in their posts. Either such other employee was transferred from the post of Superintending Engineer (Electrical) to the post of Regional Manager in the transferred office or the employee was transferred from the post of Divisional Engineer (Electrical) to the post of Divisional Manager at the transferred office. The fact that in case of Satyabrata and a few others the posts at the which indicates that there was no change of posts in so far as they were concerned. The fact that in case of Satyabrata and a few others the posts at the which indicates that there was no change of posts in so far as they were concerned. In other words, Satyabrata was transferred from Raghunathganj Division to the same post in the Hooghly Regional Office as D.E (E). Further, in the office order dated 22 January, 2015 whereby Satyabrata was promoted, it is stated that he was being promoted to the post of Superintending Engineer (Electrical) from the post of Divisional Engineer (Electrical). Hence, on 28 June, 2012 when Satyabrata held inspection of the concerned meter and on 30 June, 2012 when he issued the provisional assessment order for alleged unauthorised use of electricity by the appellant company, he was Divisional Engineer (Electrical), Hooghly Region. He was thus fully competent to act as the Assessing Officer. We completely agree with the finding of the learned Single Judge that at the material point of time Satyabrata was the Divisional Engineer (E) although he was given the additional charge of Divisional Engineer (Commercial). Hence, he was the properly appointed Assessing Officer for the Hooghly District in terms of the notification dated 13 April, 2004. 38. In this connection, we may note that in a supplementary affidavit affirmed by Satyabrata on behalf of the respondent company on 10 April, 2014 in connection with the earlier appeal Satyabrata stated inter alia as follows:- “I have been and/or an working in the cadre of Divisional Engineer (Electrical) in West Bengal State Electricity Distribution Company Limited. By transfer Order no. 118 dated 08.12.2011 I was transferred from Raghunathganj Division of WBSEDCL to Hooghly Regional office of WBSEDCL in the said cadre/designation of D.E. (Electrical) with direction to join in the said transferred place of posting i.e., Hooghly Regional office on 09.01.2012. A copy of the said Transfer order no. 118 dated 08.12.2011 is annexed herewith and marked with the letter “3A” Divisional Engineers (Electricity) in WBSEDCL are from time to time called upon to discharge duties of Divisional Engineer (Commercial), and, I was also so called upon, and have been discharging duties at the said office also as a Divisional Engineer (Commercial) although I remained and still remain posted in WBSEDCL in the cadre of Divisional Engineer (Electrical). I joined in the Hooghly Regional office of WBSEDCL on 24.01.2012 and have been discharging duties at the said office also as a Divisional Engineer (Commercial). A copy of my joining Report dated 25.01.2012 is annexed herewith and marked with the letter “3B”. Sri Surajit Chakraborty, Superintending Engineer and Regional Manager of Hooghly Region of WBSEDCL had taken medical leave from WBSEDCL from 22.06.2012, and, by reason thereof by office order no. 49 dated 22.06.2012 issued by the Zonal Manager I was directed to take charge as Regional Manager of Hooghly Region Temporarily in addition to my normal duties from 22.06.2012 till Sri Chakraborty resumed his duties a copy whereof is annexure “3C” hereto. By virtue of myself being the Divisional Engineer (Electrical) in the Hooghly office of WBSEDCL I became entitled to act as the Assessing Officer in connection with the instant case by virtue of said notification dated 6th April, 2004 issued by the State Regulatory Commission (being Annexure R4 to the said Affidavit-in-Opposition) and I duly acted and discharged my functions accordingly.” We are conscious of the difference between the meaning of ‘Posts and ‘Cadre’. However, in the facts of this case we have come to the conclusion that Satyabrata held the post of Divisional Engineer (Electrical) on 28 June, 2012 and 30 June, 2012 when he held the initial inspection and issued the provisional assessment order respectively. 39. It is also pertinent to note that pursuant to the Division Bench in the earlier appeal remanding back the matter to the competent authority for issuance of fresh final assessment order, Satyabrata issued a notice of hearing dated 2 April, 2015 describing himself as Assessing Officer and Superintending Engineer (Electrical) as by that date he had been promoted to the post of Superintending Engineer (Electrical). The representative of the appellant company attended the hearing and made submission as recorded in the minutes of the hearing dated 7 April, 2015. From the minutes of the said meeting which was signed by the representative of the appellant company it does not appear that the point of lack of competence of Satyabrata to act as the Assessing Officer was urged. The appellant company accepted Satyabrata as the Assessing Officer and made its submission before him. From the minutes of the said meeting which was signed by the representative of the appellant company it does not appear that the point of lack of competence of Satyabrata to act as the Assessing Officer was urged. The appellant company accepted Satyabrata as the Assessing Officer and made its submission before him. We are of the view that having been unsuccessful before Satyabrata, the appellant company is presently seeking to urge the point of incompetence of Satyabrata to act as the Assessing Officer by way of an afterthought. 40. Mr. Mukherjee, learned Sr. Counsel objected to admitting the documents annexed to the respondent company’s supplementary affidavit in this appeal in the absence of an application under O. 41 R. 27 of the CPC. The said provision reads as follows:- “O. 41 R. 27. Production of additional evidence in Appellate Court._(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral o documentary, in the Appellate Court. But if-(a)The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or court not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” As we understand the aforesaid provision, if the Appellate Court is of the opinion that certain documents which were not part of the records before the learned Single Judge, are required to be admitted before the Appellate Court for complete and factual adjudication of the issues involved and for doing complete justice and to enable it to pronounce judgment, the Appellate Court is entitled to take on record such documents. As observed by the Apex Court in the case of K. Venkataramiah (supra), even if the Appellate Court does not record reasons for admitting additional documents, the same would not vitiate admitting such documents. 41. Hence, the first issue is decided in favour of the respondent company and against the appellant company. 42. Coming to the second question, we are of the view that on merits, there is no such infirmity in the final assessment order which would warrant interference by this court. It is a detailed and well reasoned order. Sec. 126(5) of the Electricity Act, 2003 provides that if the Assessing Officer comes to the conclusion that unauthorised use of electricity as taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection (emphasis is ours). The Assessing Officer has indicated in details as to why the period during which unauthorised use of electricity had taken place could not be ascertained and accordingly has made the assessment for a period of 12 months preceding the date of inspection. We do not find anything arbitrary or illegality about the final assessment order. It is well-settled that the Writ Court does not sit in appeal over an order which is challenged before it. In the absence of the well-recognized grounds of arbitrariness, Wednesbury unreasonableness, lack of jurisdiction, breach of natural justice, patent illegality or perversity being made out, the Writ Court would not interfere with the order or action of a public or a statutory authority. No such ground has been made out in this case. It is trite that the High Court while exercising the power of judicial review is not concerned with the merits of the decision or authority impugned before it but scrutinizes the decision making process. We find no such infirmity in the final assessment order which would prompt us to interfere with it. 43. It is trite that the High Court while exercising the power of judicial review is not concerned with the merits of the decision or authority impugned before it but scrutinizes the decision making process. We find no such infirmity in the final assessment order which would prompt us to interfere with it. 43. As regards the contention of the appellants that the meter room at the factory of the appellant company was under the lock and key of the respondent company and hence, there was no scope for the appellant company to tamper with the electric meter, the Assessing Officer has sufficiently explained in the final assessment order as to how such tampering cannot be ruled out. We find such explanation to be plausible which does not warrant interference. 44. In conclusion, we find no reason to interfere with the order of the learned Single Judge. We find no merit in this appeal. The appeal is dismissed with costs assessed at Rs. 50,000/-. 45. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.