Kesco And Another vs Uperc And Others
2011 Latest Caselaw 6041 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 2
 

 
Case :- WRIT - C No. - 23080 of 2011
 

 
Petitioner :- Kesco And Another
 
Respondent :- Uperc And Others
 
Petitioner Counsel :- Mridul Tripathi
 
Respondent Counsel :- A.N. Singh,B.C.Rai
 

 
Hon'ble Sudhir Agarwal,J.

1. The writ petition has been filed by Kanpur Electricity Supply Company Ltd. (hereinafter referred to as "licencee") represented through its Managing Director and Executive Engineer, Electricity Urban Distribution Division, Nawabganj, KESCO, Kanpur (hereinafter referred to as "EE Nawabganj") assailing the order dated 30.11.2010 of Electricity Ombudsman rejecting representation of the petitioner and confirming the order dated 02.02.2010 of Electricity Consumer Grievance Redressal Forum, Kanpur (hereinafter referred to as "CGRF, Kanpur").

2. The facts in brief giving rise to the present dispute may be stated in brief as under:

3. The respondent No.4, Association for Prevention of Blindness U.P. Kanpur Dr. Jawahar Lal Rohatgi Smarak Netra Chikitsalaya Sarvodaya Nagar, Kanpur (hereinafter referred to as "Consumer") is a Society registered under the Societies Registration Act running an Eye Hospital at Kanpur. It is said that Society is a charitable institution working for removal of blindness for which it receives grant from the Government, Central and State both, in different heads. It is claimed that it does not charge fees for treatment of poor persons but wherever any fee is charged, it is either equivalent or less than the fee chargeable in Government hospitals. It had an electric connection and rates of electricity charged from it were governed by tariff schedule LMV-4(A) till 29.11.2001. Thereafter the licencee and EE Nawabganj raised bills to the respondent No.4 according to the rate schedule LMV-4 (B) which was applicable for institution which are not charitable and not governed by LMV 4(A). It claimed that by raising incorrect bills under the rate schedule not applicable to a consumer like petitioner the licencee had realized an excess amount of Rs.4,02,547/- during the period of 30.11.2001 to 30.4.2003 and the same is liable to be refunded. It also said that there is a residential colony in the hospital campus of society wherein 65 families are residing. The electricity consumption in the said Colony was liable to be billed as per domestic rates i.e. tariff LMV-I but this was also charged on higher rates for the period of 30.11.2001 to 28.2.2009 and excess sum of Rs.6,67,449/- was realized from the respondent No.4, which should be refunded. The consumer/respondent also demanded interest on the entire excess amount charged, as above, besides cost of litigation and such other relief as CGRF my deem fit.

4. The said complaint of petitioner was registered as complaint No.101 of 2009. The licencee contested the claim of the respondent No.4 on both the counts. In the rejoinder affidavit filed by the consumer/respondent No.4 it placed on record details of grant received from State Government which was around Rs.40 lacs per annum and the relevant Government Order issued during period 2008-09 were also placed on record. It also said that in the year 2007-08 and 2008-09 the hospital conducted 3009 and 4388 eye operations free of cost and wherever fee was charged, it was less than Government hospital's like SGPGI, Lucknow, AIIM, Delhi etc. Since the consumer's/petitioner No.4 electricity bills in respect to the hospital were raised applying tariff LMV 4 (B) for a shorter duration i.e. from 30.11.2001 to 30.4.2003 and thereafter the licencee applied tariff LMV 4(A), it felt difficulty to explain this inconsistency. An additional written statement was filed by EE, Nawabganj on 17.12.2009 stating that after 30.4.2003 electricity bills by clerical mistake were issued under tariff LMV-4(A) and therefore the consumer/respondent No.4 is liable to pay correct amount as per tariff schedule LMV-4(B) which makes him liable to pay a further sum of Rs.9,04,302/- for the period of 30.4.2003 to 13.11.2009 and it should pay the said amount.

5. The CGRF consisting of Sri S.K.Pandy, Adhyaksha, Sri B.P. Pandey, Technical Member and Sri H.M. Awasthi, Member (KESCO) i.e. licencee held that the consumer was covered by tariff LMV-4(A) so far as the electricity bills towards hospital are concerned. With respect to electricity bills relating to residential colony, CGRF did not grant any relief but held that hospital's electricity bill ought to have been raised under tariff schedule LMV-4(A). It, therefore, directed the licencee to correct bills of consumer/respondent No.4 applying tariff LMV-4(A) w.e.f. 16.9.2001 and also to pay penalty of Rs.4,725/- under para 7.7.2 of Electricity Supply Code, 2005 (hereinafter referred to as "Code 2005"). The petitioner challenged the said order dated 02.02.2010 of CGRF, Kanpur by filing representation/appeal under U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007 which was registered as Appeal No.28 of 2010 but the same has also been rejected by order dated 30.11.2010. The Ombudsman has also said that in case licencee fails to comply with CGRF's order within two months, it shall pay a compounding interest calculable every six months @ 16%. These two orders dated 02.02.2010 of CGRF Kanpur and 30.11.2010 of Ombudsman have been assailed in this writ petition.

6. Sri Tripathi learned counsel for the petitioner faintly submitted initially that the consumer/respondent No.4 was rightly billed under tariff schedule LMV-4(B) but very soon conceded before this Court that the tariff LMV-4(A) would apply to the consumer/respondent No.4 and he was admittedly billed wrongly under tariff LMV-4(B).

7. At this stage it may be pointed out that tariff LMV-4(A) is applicable as under:

"This schedule shall apply to Government and Semi Government Offices, Defence Installations, Government Hospitals, Government Research Institutions, Temples, Mosques, Gurudwaras, Churches, Government & Government aided (i) Educational Institutions (ii) hostels (iii) libraries and electric crematoria and for charitable institutions including orphanage homes, old age homes and those providing services free of cost or at the charges/structure of charges not exceeding those in similar Government operated institutions. This rate schedule shall also apply to offices, buildings, inspection houses of UPPCL/UPRVUNL/UPJVNL and construction power to their works including thermal and hydro projects."

8. LMV 4(B) per contra in respect to applicability says:

"This schedule shall apply to Non-Government Hospitals, nursing homes and dispensaries, private research institutions, and schools/colleges/educational institutes & charitable institutions/Trust not covered under LMV-4(A)."

9. The charitable institution/trust are mentioned in both the rate schedules. However, in the former, namely LMV-4 (A) those charitable institutions who provide service free of cost or at the charges/structure of charges not exceeding those in similar Government operated institutions they are governed and rest of charitable institutions are governed by tariff LMV-4(B).

10. The consumer/respondent No.4 in the present case clearly and categorically pleaded and proved before the authorities below that it was providing service free of cost or charge the cost, lower or similar to Government Hospitals. These facts pleaded by the consumer/respondent No.4 have been found correct by both the authorities below and they have recorded findings of fact in favour of respondent No.4. Nothing has been placed in this writ petition to show that this findings of fact recorded by the authorities below is perverse or incorrect. In the entire writ petition there is no averment at all to deny or dispute this aspect of the matter that the consumer is not running charitable institution in the manner so as not to be governed by rate schedule LMV-4(A).

11. In the circumstances and moreover looking to the fact that the counsel for the petitioner also conceded during the course of argument, I find no reason to interfere with the findings of the two authorities i.e. respondents No.2 and 3, in the orders impugned in this writ petition.

12. So far as the penalty is concerned, it is not disputed that the same is not inconsistent with the requirement of the statute and no patent illegality could be pointed out therein also. In fact this Court having heard learned counsel for the petitioner found that the present writ petition is wholly frivolous and having been filed without there being any substance whatsoever though even the petitioners were satisfied that they have billed the consumer wrongly and the orders of respondents No.2 and 3, impugned in the writ petition, are basically correct. The petitioners being a company wholly owned by State Government owe its duty and obligation to the public and is not supposed to file vexatious and frivolous cases before the Court. A Division Bench of this Court in Service Bench No.506 of 2011 (State of U.P. Vs. Sri Suresh Kumar) decided on 22.09.2011 castigating such an approach on the part of State Government or its instrumentalities observed :

"18. Having gone through the record and as discussed above we cannot refrain ourselves from placing on record our serious anguish and concern over the manner, the opinion has been given by Law Department of U.P. Government resulting in a frivolous, vexatious and total meritless writ petition filed by State and its officials.

19. The officials in Law Department are expected to show more vigilance, independence and better application of mind. They are not supposed to surrender to the wishes of department but simply continued litigation for the sake of it. There were two aspects in the matter. One was punishment and another was annual character roll which was adverse in the year 2002-03.

20. So far as the punishment part is concerned, it was already decided by Tribunal in Claim Petition No. 130 of 2009, decided on 04.09.2009 and, therefore, nothing has to be done. Now the only question was regarding adverse entry. The Tribunal has categorically held that the matter of adverse entry in the year 2002-03 has not been dealt with by Government in accordance with procedure prescribed in Rule 4 of 1995 Rules and the result thereof would be that entry cannot be treated to be adverse for the purpose of promotion, efficiency bar etc. as provided in Rule 5. On this aspect neither department found any ground to challenge the order of Tribunal nor the Law Department has made any observation. That being so, we do not find on record any justification whatsoever for taking the matter further. The petitioner and unfortunately the Law Department have dealt with this matter in most casual and reckless manner, as if continuing litigation is the legal right of petitioner.

21. We intend to place on record our deep dissatisfaction in the manner, the officials in Law Department are functioning. Error of judgment can be excused but surrender or non-application of mind cannot. The Judicial Officers are sent on deputation to the Law Department of Government with an objective that they constitute an independent cadre, hence without being influenced by executive, shall advise it impartially, objectively and fairly. If this does not happen, the very purpose in sending Judicial Officers on deputation with Government will frustrate. On the one hand from regular work these officers are taken out and sent on deputation to work like a Consultant but if their advise and opinion is not independent and impartial, it shall loose its gravity and frustrate the purpose. The officials in the Law Department, therefore, have to work with great caution, care and independence.

22. It is a matter of common knowledge that before the superior courts, like High Court and Supreme Court, State (Provincial or Central, as the case may be) is the biggest litigant. In fact in writ jurisdiction, almost in all the cases, State, in one or other manner, is a party.

23. This Court is presently reeling under huge pendency of more than 9.5 lacs cases (more than 7 lacs at Allahabad and more than 2.5 lacs at Lucknow). Innumerable seminars, conferences, meetings, discussions etc. are being held at every level to find out ways and means for expeditious disposal of matters so that access to justice should be quicker and prompt to the people. All out attempt is being made for quick justice since justice delayed is justice denied. We are trying our best so that litigating people should get decision/adjudication of their rights within a reasonable time. To achieve this goal, role of Executive cannot be ignored. On the contrary, being one of the biggest litigant, the Executive has all the more responsibility to behave in a reasonable manner which is consistent with law so that occasion to approach Courts for protection of rights by people may be minimised.

24. Under Article 226 of the Constitution, writ petitions are mostly filed when the Executive behave arbitrarily, oppressively and in defiance of statutes, Constitutional and otherwise. When a common man comes to Court against such action of Executive, it cannot be said that he is unnecessarily burdening the system of administration of justice. The situation, however would be much different when an independent adjudicatory forum has been constituted under an enactment of State or Central Lagislature, the adjudicatory forum consists of not only trained, legal expert and experienced Judicial Officer but also an Executive Officer so that both may consider the matter from the angle of legal principles as well as departmental provisions, practice etc. and then to consider the grievance of an employee of the Government. Once such a decision is taken by the statutory adjudicatory forum, unless a glaring legal error or otherwise travesty of justice has resulted from such a decision, atleast the State must be slow in continuing to engage its employee in further litigation by filing a writ petition in the High Court under Article 226 and thereafter to take up the matter further.

25. We are not suggesting that against the judgment of such statutory adjudicatory forum consisting Judicial and Executive experts should not be challenged at all but our endeavour is to stress upon a more serious scrutiny at the level of department itself as to whether there is such a glaring error in the judgment of statutory adjudicatory forum, i.e., Tribunal in the present case so as to take up the matter further or not. Most of the departments of Government have their own legal experts and consultants. At the Secretariat level a full fledged cadre of such Experts is available in Law Department. We are told that presently the office of Legal Remembrancer and Secretary, Law, includes more than two dozens of Judicial Officers at the level of Deputy Legal Remembrancer, Joint Legal Remembrancer and Additional Legal Remembrancer headed by a Legal Remembrancer. They are the officers belong to Judicial Service of State, whereof senior posts like Joint Legal Remembrancer, Additional Legal Remembrancer and Legal Remembrancer are manned by members of Higher Judicial Service. Heavy responsibility lie upon these officers also to analyse the judgments of Tribunals in the context of facts, statutory provisions and decisions of High Courts and Supreme Court on the subject and thereafter to find out whether there is any such glaring error which justify further litigation in High Court or not. The approach should not be one to grant approval automatically and mechanically. There must be and there has to be a serious application of mind at the level of authorities who are responsible to tender legal opinion to take up the matters further.

26. We may point out further at this stage that in case of any doubt about the clarity on the subject, the officers of Government including those from Law Department can also seek opinion from Law Officers of State who represent them in High Court including the learned Advocate General and Additional Advocate Generals. It would not be out of place to mention that number of State Law Officers empanelled by State in the High Court, i.e., at Lucknow and Allahabad consists of more than one thousand Advocates, designated as under:

Civil side

1. Chief Standing Counsel

2. Additional Chief Standing Counsel

3. Standing Counsel

4. Brief Holder

Criminal side

Government Advocate

Additional Government Advocate-I

Additional Government Advocate-II

27. The aforesaid team of Law Officers is headed by learned Advocate General and there are about more than half a dozen Additional Advocate Generals also to take care of the interest of Stage. Monthly revenue towards fees of this magnitude of State Law Officers, only in the High Court is more than five crores per month. We have experienced that not only this but almost in a routine manner, State is also engaging several private counsels as Special Counsel, paying them a huge amount spending several crores annually. With this assistance of legal brains still the Government, if not able to control frivolous and vexatious cases to be filed by it, it is a matter, not only of serious concern, but condemnation. There is something basically wrong which needs be analysed and rectified at the earliest. The State cannot forget that being custodian of public funds which belong to tax payers of people of this Stage, it cannot plundered with it in such reckless and negligent manner. Everybody must have to be accountable for spending even a single shell from the public funds. Anybody responsible for wastage must be required to explain and bear it. Public funds cannot be allowed to be thrown and misused in such a manner.

28. Time and again, the Apex Court and this Court have repeatedly said that State should refrain from filing frivolous petitions, wasting precious time of Court so that other substantial matters may be taken up and decided.

29. One of us (Hon'ble Devi Prasad, J.) recently in Writ Petition No. 474 (SB) of 2011 (State of U.P and another Vs. Brij Bhushan Sharma), decided on 17.03.2011, by a Division Bench presided by Hon'ble the Chief Justice, has deprecated such practice of State of filing frivolous writ petitions challenging the order of Tribunal as under:

"We deprecate such practice on the part of the State. . . ."

30. In another matter, i.e., Writ Petition No. 473 (SB) of 2011 (State of U.P through Principal Secretary Appointment Deparmtnet Vs. Vishnu Swarup Mishra and another), decided on 17.03.2011 while dismissing writ petition against Tribunal, the Court said:

"We direct the Chief Secretary of State to formulate a policy in the matter of filing such petitions which are causing unnecessary burden for disposal, on this Court."

31. Still the State has not learnt its lesson and has not shown any inclination to mend its ways. This is really unfortunate.

32. We are constrained, therefore, not only to dismiss this writ petition but find it appropriate to impose a cost upon petitioners for filing a frivolous vexatious petition.

33. The writ petition being devoid of merits is dismissed with costs quantified to Rs. 10,000/-."

13. In view of the above and being satisfied that this is a wholly frivolous and vexatious writ petition, in my view, besides dismissal, the petitioner is also liable to pay cost. The writ petition is accordingly dismissed with cost quantified to Rs.10,000/-. Liberty, however, is granted to the petitioner No.1 to recover the said amount from the official(s) concerned who is/are found responsible for advising to file this frivolous writ petition, after conducting such enquiry, as permissible in law.

Order Date :- 23.11.2011

KA