The Executive Director ... vs M/S Virgo Aluminum Limited
2022 Latest Caselaw 11416 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

LPA No. 15/2019 Reserved on: 20.12.2022 Decided on : 23.12.2022

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The Executive Director (Personnel) & anr. .....Appellants

Versus

M/s Virgo Aluminum Limited ....Respondent

Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Ms. Justice Virender Singh, Judge.

Whether approved for reporting?1

For the Appellant: Mr. O. C. Shrma, Advocate. For the Respondents: Mr. Tara Singh Chauhan, Advocate.

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Justice Tarlok Singh Chauhan, Judge

Aggrieved by the impugned order passed by the

learned writ Court, the appellants have filed the instant appeal.

2 M/s Virgo Aluminum Ltd. (hereinafter referred to as

the respondent-company) filed a complaint before the Consumers

Grievances Redressal Forum, Shimla, under regulation 17 of

Himachal Pradesh Electricity Regulatory Commission (Consumer

Grievances Redressal Forum and Ombudsman) Regulations 2013

seeking direction to the appellants, i.e. Himachal Pradesh State

Electricity Board (hereinafter referred to as the appellant-Board)

to refund an amount of Rs.56,66,869/- i.e. Rs. 39,93,376/-

deposited on 3.6.2010 in cash and Rs. 16,73,493/- being cost of

1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

material deposited on 23.4.2011 along with compound interest @

12% p.a. till its realization in favour of the respondent-company,

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stating therein, that the respondent-Company has been provided

connected load of 4500 KW on a common feeder. Since the

respondent-company is a continuous process industry and

manufacturing aluminum sheets and coils, it requires

uninterrupted supply of electricity round the clock, accordingly

applied to the appellants for construction of separate 33 KV

dedicated feeder. The C.E. (Comm.) of the appellant-Board,

approved load of 4500 KW on 33 KV supply voltage through 33

KV dedicated feeder on AB cable along with 33 KV bay at 132/11

KV Sub- Station Johron Kala Amb and necessary sanction

thereof was also accorded by the C.E. (OP) South, Shimla, on

08.03.2010.

3 It was averred that the proposed estimate for the

aforesaid work was framed by the Sr. Executive Engineer, for

Rs.57,31,870/-. The Chief Engineer (OP) South Shimla wrote

letter dated 30.03.2010 to Superintending Engineer, Nahan and

thereby returned estimate duly approved, asking therein the

respondent-company to supply material worth of Rs.16,73,493/-

and deposit the balance cost of Rs. 39,93,376/-. Appellant No.2

expressed his inability to construct separate 33 KV feeder due to

corridor constraints in Kala Amb industrial area and proposed to

string 120 MM 2 AB Cable on existing 33 KV Double Ckt. Line

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from Kala Amb to proposed site of the respondent-Company.

Thereafter, appellant No. 2 made provision of 8 meters long PCC

poles of 200 Kg working load to provide additional supports to

support AB Cable, where spans were lengthy and further

provision of conversion of 2 poles structure to 4 poles was made

at the take-off point of the respondent-company.

4 The appellants issued a demand notice dated

20.04.2010 for deposit of Rs.39,93,376/- as consumer share and

all the approved material. The respondent-company deposited

Rs.39,93,376/- with the appellants vide receipt dated 3.6.2010.

The S.E. (OP) Circle Nahan wrote a letter dated 11.06.2010 to

C.E. (OP) South Shimla requesting therein to technically sanction

estimate at serial No. 2(1) of revised D.O.C.P., 1997 and

accordingly, the C.E. (OP) South, Shimla accorded his sanction

on 24.06.2010.

5 The respondent-company also deposited entire

approved material with the appellants and the same was duly

received by them. The respondent-Company purchased the ABC

cables 1722 meters (861+861) on 13.02.2011 and 14.02.2011

from M/s Disha Agencies, Chandigarh, for Rs.15,19,540/- (Rs.

7,59,770/- + Rs.7,59,770/-) and deposited the same with the

appellants vide acknowledgement letter dated 23.4.2011.

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However, the appellants, despite several requests deposit of

consumer share of Rs. 39,93,376/- and approved materials, kept

on slipping over the matter and it was only on 24.1.2013 when

appellant No.2 awarded the work for providing SOP to the

respondent-company for erection of 9 meters and 8 meters long

PCC poles and XLPE cable etc. to M/s Shakil Ahmed "A" Class

contractor, after inviting tenders for the execution of work.

Though, the said contractor was required to complete the

awarded work within 2 months, to be reckoned within fortnight

after issuance of letter dated 24.01.2013, however he failed to

execute the same within the stipulated period, which constrained

respondent-company to make repeated representations to the

appellants by visiting their offices and also by writing letters

dated 09.01.2014 & 4.7.2015 apprising about the problem being

faced on account of non- execution of work for construction of 33

KV dedicated feeder on AB Cable with 33 KV bay. On 20.7.2015,

appellants again wrote a letter to the contractor for completion of

work immediately, but the contractor failed to do so.

6 The respondent-company on the other hand wrote a

letter dated 06.05.2016 to C.E. (OP) South Shimla for execution

of the aforesaid work at the earliest or in the alternate to shift the

supply line on any other network, but of no avail.

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7 Lastly, it was averred that the appellants have

constantly remained negligent and callous since the year 2011 to

get the work in question executed despite deposit of consumer

share of Rs.39,93,376/- and material of worth 16,73,493/-. The

appellants have been utilizing the amount of Rs.39,93,376/-,

which was deposited by the respondent on 03.06.2010, after

raising loan from the bank and the respondent-company paying

the interest thereon to the bank since the year 2010. Hence, the

complaint.

8 The appellant-Board contested the complaint by filing

reply wherein a number of preliminary objections regarding

maintainability, cause of action, complaint being neither

competent nor maintainable were raised. On merits, material

averments regarding proposed estimate for the work in question

amounting to Rs.57,31,870/-, supply of material worth

Rs.16,73,493/- and deposit of balance cost of Rs.39,93,376/- by

the respondent-company were not disputed and it was averred

that it was appellant No.2, who showed his inability to construct

separate 33 KV feeder due to corridor constraints in Kala Amb

industrial area and proposed to string 120 MM 2 AB Cable on

existing 33 KV Double Ckt. Line from Kala Amb to proposed site

of the respondent-Company. It was further averred that after

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purchase of the material, the appellant-Board awarded the work

to the contractor, but the contractor could not start the work for

the reason that the people, whose land was touching the line

raised to the respondent-company, objected and stopped the

contractor and thus, it was beyond the control of the appellant-

Board to even commence the work in question.

9 The learned Forum allowed the complaint vide order

dated 31.7.2017 by issuing following directions:

i) The respondents are directed to refund Rs. 39,93,736/- to the complainants alongwith interest @ 12% per annum

since 04.06.2010 till date of making the payment.

ii) The respondents are directed to make payment of Rs.15,19,540/- to the complainants on account of cost of

cable provided by the complainants. No interest on this

amount is allowed as the respondents have not used this cable for any of their use. This cable can be used by the respondents for any of their use at any other location.

iii) The execution of the said deposit work is struck down. The respondents are directed not to continue with this work.

iv) The respondent Board is at liberty to recover the losses, if any, on account of above directions from the officers/officials responsible for this undue huge delay.

10 Aggrieved by the aforesaid order, the appellant-Board

approached the learned writ Court by filing writ petition, which,

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not only was dismissed, but the appellant-Board was even

burdened with costs of Rs.1 lac.

11 Undeterred by the dismissal of the writ petition as

well as imposition of costs, the appellant-Board has filed the

instant appeal assailing therein the order passed by the learned

Forum as also by the learned writ Court.

12 We really wonder as to why the appellant-Board has

filed the instant appeal, for it is established on record that the

respondent-Company applied for dedicated 33 KV feeder for

reliable and quality supply, which request was agreed by the

appellant-Board and accordingly the respondent-Company

deposited an amount of Rs. 39,93,376/- in cash and supplied

material costing Rs.16,73,493/-, but the appellant-Board, on the

other hand, did not even commence the work in question what to

talk of completing the same till the date of filing of the complaint

i.e. 30.9.2016.

13 Even, the learned Forum below has noted that it had

provided ample opportunities to the appellant-Board to complete

the work since the date of filing of the complaint i.e. 30.9.2016,

but of no avail, as the appellant-Board did not look serious for

completion of the work and in every hearing replied irresponsibly.

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14 No exception can be taken to the observations of the

learned Forum below when it further went on to observe that the

appellants were so irresponsible that they were using the

amount deposited by the respondent-Company since 3.6.2010

and paid no heed towards the duty of completion of work. Even

after filing of the complaint, the appellants were so careless

about their duty that they did not make any serious effort to

complete the work for about 9 months.

15 Lastly, we have no hesitation to conclude that even

the following observations made by the learned Forum, in last

paragraph of its order, are well founded:-

We are, thus, of the opinion that such high headed attitude of the respondents is very dangerous for the system and

consumers. The complainants have also prayed, since beginning of hearings, that the said deposit work is not

required by them at this stage as the very purpose of its benefits is already defeated. We feel that it is very unfair on the part of the respondents to utilise such huge amount of Rs.39,93,370/- for years together and to keep the material worth Rs.15,19,540/- un-utilised for years. We feel that the complainants must be at least compensated for the financial losses suffered.

16 Even though the learned counsel for the appellant

really does not have much to argue, however he would still harp

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upon the fact that it was the respondent-Company, which failed

to obtain necessary permission for laying down the dedicated

corridor for the feeder.

17 We find this submission to be not only a lame excuse,

but also an afterthought because at the time of responding to

demand notice for providing SOP to the respondent-company, the

appellant-Board vide, its letter dated 20.4.2010, while

calculating the cost, had clearly mentioned that the estimated

cost would not cover the cost/provision of lane/forest clearance

and land compensation etc., which was to be separately borne by

the respondent-Company. It is apt to reproduce the relevant

portion to the aforesaid letter, which reads as under:

"The Subject cited estimate received from Superintending

Engineer (OP) Circle HPSEBL Nahan which has been checked/scrutinized for amounting to Rs 57,31,870/- only.

You are therefore, advised to deposit a sum of Rs.39, 93,376/-only (Rs Thirty nine lakh Ninety three thousand, three hundred Seventy six) only in the office of Assistant Engineer, ESD Kala Amb.

The above mentioned estimated cost does not cover the cost/Provision of lane/forest clearance and land compensation etc. if any shall have to be borne by you over and above the estimated cost.

Please note that any difference in cost on account of material as well as other mandatory charges etc shall be

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payable/refundable by/ to the consumer/firm for which an

undertaking to pay difference in amount as per HPERC regulations may be furnished to this office as well as photo

copy of the same to the Assistant Engineer, Elect. S/Divn., Kala Amb office duly authenticated by the 1st Class Magistrate at the time of Depositing the above said amount."

The records reveal that it was the specific stand of the

appellant-Board that it awarded the work to M/s Shakil Ahmed

"A" Class contractor, but then it is established and proved on

record that the work in question in fact was a non-starter as the

same did not even commence.

19 Clearly, the instant appeal has been filed by the

appellant-Board to shield its erring officials/officers and impliedly

to get a clean chit from this court, but we are not inclined to do

so because of not only the negligent but even the cantankerous

attitude of the appellant-Board.

20 This is not a solitary instance, when this Court has

adversely commented upon the working of officer(s)/official(s) of

the appellant-Board.

21 In fact, earlier also, this Court while deciding the

petition filed by the appellant-Board being CWP No.

2319/2018, titled as The Executive Director (Pers.) vs.

Kundlas Loh Udhyog had commenced the judgment by making

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following observations:-

"How the process of the Court is sought to be abused in

order to save skin of the employees of the petitioners-Board is best reflected in the instant case."

22 The Court then proceeded to dismiss the aforesaid

only to save

writ petition by observing as under:-

"7. As observed above, the instant petition has been filed the skin of the employees of the Board

knowing fully well that the Board has unnecessary assailed the order of Forum before this Court and the chapter would be closed after the dismissal of this petition and the erring

officials would impliedly be given a clean chit.

8. This in our considered opinion is neither permissible nor can such an approach be countenanced muchless upheld.

9. The employees of the Board, day in and day out, are dealing with these matters, therefore, they cannot feign

ignorance and are rather presumed to be having knowledge regarding the Regulations.

10. That apart, the Board, which is a State within the meaning of Article 12 of the Constitution, cannot be made to suffer for the gross negligence of its employees and in such circumstances, the erring employees cannot be permitted to simply get away even after having been found to have acted in gross negligent manner and thereby caused loss to the Board.

11. In the given circumstances, the Board cannot be shackled hand and foot in the name of fairness. Fairness is

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not one way street, more particularly in matters, like the

present one.

12. The Board is not sitting on King Solomon's mines. Even

the Board borrows money from Government or other financial institutions and they also have to pay interest thereon. The fairness required of it must be tempered nay, determined in the light of all these circumstances.

13. The employee of the Board is required to exercise high standards of honesty and integrity. Every officer/employee of the Board is required to take all possible steps to protect

the interests of the Board and to discharge his duties with

utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of an officer. Good conduct and discipline are inseparable from the functioning of every

officer/employee of the Board. The very discipline of an organization is dependent upon each of its officers and officers' acting and operating within their allotted sphere.

The conduct of the employees/officers in this case cannot be permitted as casual in nature and is indeed very serious.

14. In view of aforesaid discussion, we find no merit in this petition as the petitioners have tried to abuse the process of

Court and consequently, the same is dismissed with costs of Rs.25,000/- to be paid to the H.P. High Court Advocates' Welfare Association. However, we direct the petitioner- Board to pay due and admissible amount to respondent No.1, in terms of order of the Forum, so also the costs, at the first instance, however the same will be recovered from the erring officials/Officers, after conducting inquiry to this effect, which shall be completed within six months from

today. We make it clear that the mere fact that the concerned erring official/officer has either died or retired

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shall be no ground for not effecting recoveries and these

shall be effected from the pay/pension/family pension, as the case may be.

For compliance, list on 30.4.2021."

23 The position in this case is also not better. In the

given facts and circumstances of the case, we not only do not find

any merit in the instant appeal, but are also of the firm opinion

that the appellant-Board did not appear to have learnt lesson and

is out and out to squander the public money and thus, have

unnecessarily, despite cost of Rs.1 lac, as imposed by the learned

writ Court, resorted to this vagrant litigation and indulged in

such mis-adventure. But, the appellant-Board cannot be made to

suffer for gross negligence of it employees and in such

circumstances, even, here, the erring officials/officers cannot be

permitted to simply get away after having been found to have

acted in gross negligent manner.

23 The observations made in Kundlas' case (supra)

against the working of officials/officers of the appellant-Board

equally apply to the facts of the instant case. We refrain, though

reluctantly, from imposing additional cost upon the appellant-

Board, but the appellant-Board will have to submit a report

whether the costs of Rs.1 lac, as imposed and directed by the

learned writ Court, has been recovered from the salaries of the

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erring officer(s)/official(s), who, at that time, were in the helm of

affairs.

24 The instant appeal is dismissed, in the aforesaid

terms, so also the pending application(s), if any.

    25              For compliance, list on 11.1.2023.



                                               (Tarlok Singh Chauhan)
                        r                               Judge

                                                      (Virender Singh)
    23.12.2022                                            Judge
         (pankaj)