Delhi High Court
Dr. C.D. Sukhija & Another vs B.S.E.S. Yamuna Power Ltd. on 18 February, 2010
Author: Sanjiv Khanna
7.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5569/2008
% Date of decision: 18th February, 2010
DR. C.D.SUKHIJA & ANR. ..... Petitioners
Through Ms. Neha Gupta, Advocate.
versus
B.S.E.S YAMUNA POWER LTD. ..... Respondent
Through Mr. Vikram Nandrajog & Mr. Sushil
Jaswal, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
1. The impugned speaking order passed by the respondent-discom
records that as per the lab report, extra PCB circuit, relay and its power
supply were found inside the meter. It states that the said circuit was
installed after tampering by opening the meter and seals. It is stated that a
crack was observed in the CT epoxy coating Y phase. Another allegation
made was that there was frequent replacement of meters. On the basis of
CMRI data downloaded, it has been observed that during some periods no
electricity consumption has been recorded though power was available as
no load shedding was undertaken during the said time. CMRI data
consumption recorded is variable.
2. Earlier also a similar speaking order was passed and was made
W.P. (C) No. 5569/2008 Page 1
subject matter of challenge in W.P. (C) No. 4941/2007, which was disposed
of on 26th September, 2007. The speaking order which was under challenge
was quashed, inter alia, holding that the petitioner was denied effective
opportunity of hearing as relevant material relied upon and referred to in the
speaking order was not furnished.
3. Thereafter, copy of the documents relied upon by the respondents
was furnished and given to the petitioner. These documents as per the
speaking order are as under:-
"(i) Inspection report
(ii) Seizure memo
(iii)Copy of first Show Cause Notice
(iv)Copy of second Show Cause Notice
(v) Copy of interruption report
(vi) Copy of lab report
(vii)Photograph of remote control captured in
lab.
(viii) VCD of inspection captured at site"
4. As per the meter test report, the crack observed on the CT epoxy
coating Y phase had no effect on the meter working. Thus, the said crack is
inconsequential as per the meter test report. The said meter test report
further states that on accuracy test the meter individual was found to be
within limit and the meter with CT box as field connection test result was
+0.64. Even at the time of inspection, the enforcement team had carried out
the accuracy test and the meter was found to be within limit (+2.20%). It is,
therefore, apparent that the PCB etc. allegedly found inside the meter were
not having any effect on the accuracy of the meter. There is no mention
about this PCB in the inspection report, but perhaps the meter was not
opened and examined at that time.
5. The site inspection report dated 28th July, 2006 when the meter was
seized specifically records that seals of meter box were found to be intact.
W.P. (C) No. 5569/2008 Page 2
In the first speaking order, which was made subject matter of challenge in
W.P. (C) No. 4941/2007, the said averment was not controverted or denied.
Obviously in case the meter box seals were intact and not tampered with,
the petitioner could not accessed and tampered with the meter inside. To
install any component or PCB inside the meter, seals have to be broken or
tampered with to have access.
6. In the second speaking order, it has been observed as under:-
"........Matter was referred to Vigilance
Department of BSES and the findings of the
Vigilance Department were:-
"Meter has been tampered any time during
the period between 21.03.2006 to
15.06.2006 by tampering the hologram seal
no. YM56099 and YM56100 removed from
the meter body and plastic seal number
B228213 from meter's terminal cover to
install a remote control inside the meter.
After tampering new hologram seal
no.YR51452-453 were fixed at meter body
and new plastic seals bearing number
B235244 were fixed."
7. The aforesaid report from the Vigilance Department of the BSES has
not been referred to and mentioned in the first speaking order, though the
petitioner herein in response to the show cause notice had specifically stated
that the seals of the meter and the box were reported to be intact and o.k.
Even half seals were found to be intact and o.k. This is recorded in the first
speaking order. The second speaking order does not give the date of the
letter and when Vigilance Department of BSES had submitted the said
report. Copy of the said report was also not furnished to the petitioner to
controvert and meet the allegations made therein. In this connection, it
may be relevant to note that the inspection was conducted and the meter
W.P. (C) No. 5569/2008 Page 3
was seized on 28th July, 2006 and the second speaking order was passed on
11th/16th April, 2008. In between after about four months of seizure, the
meter was sent and examined in the laboratory of the respondent-discom.
The laboratory report is dated 22nd November, 2006 and in this report it is
mentioned that meter seals were re-fixed. This laboratory report does not
state that the re-fixed seals were fake. After the meter was opened and
examined by the laboratory on 22nd November, 2006, it is difficult to
believe that the respondents could have verified and examined the seals
fixed on the meter seized on 28th July, 2006. The seals were found to be
fixed at the time of inspection.
8. In any case, as noticed above, the respondents have again relied upon
material in form of report from Vigilance Department of BSES without first
confronting and calling upon the petitioner to meet the said allegation and
controvert them. This cannot be permitted and allowed. Even the report of
the Vigilance Department quoted above also does not state that the seals
and the serial number are not genuine. These seals are in the custody of the
respondent-discom. Petitioner obviously could not have access to those
seals and the seals could not have been fixed except by officers of the
respondent-discom.
9. Thus, the reasoned order does not take into account the relevant and
material facts and has proceeded to rely upon evidence and material, which
was confronted to the petitioner. The same is accordingly quashed and set
aside. In the facts and circumstances of the case, there will be no order as
to costs.
SANJIV KHANNA, J.
FEBRUARY 18, 2010
VKR
W.P. (C) No. 5569/2008 Page 4
