L. Girdharilal Sanghi, vs Central Power Distribution ...
2023 Latest Caselaw 294 Tel

  THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN

                              AND

       THE HON'BLE SRI JUSTICE N. TUKARAMJI


               WRIT APPEAL No.929 of 2016


JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)


      Heard Mr. Pratap Narayan Sanghi, learned Senior

Counsel for the appellants and Mr. R.Vinod Reddy, learned

counsel for the respondents.

2. The sole appellant died during the pendency of

the writ appeal and his legal representatives were brought

on record as appellant Nos.2 and 3 vide the order dated

30.08.2022 passed by this Court in I.A.No.1 of 2022

(briefly referred to hereinafter as 'the appellant').

3. This appeal is directed against the final order

dated 18.08.2016 passed by the learned Single Judge

dismissing Writ Petition No.26820 of 2005 filed by the

appellant as the writ petitioner.

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                                                   W.A.No.929 of 2016

4. Appellant had filed the related writ petition for

quashing of orders dated 03.05.2005 and 29.10.2005.

5. On the ground that appellant had resorted to

pilferage of electricity in his establishment, final

assessment proceedings were initiated by the 2nd

respondent. It may be mentioned that establishment of the

appellant as well as the electricity meter were inspected by

Sri G.Raja Reddy, an official under the respondents on

12.04.1999. During the inspection, he noticed that all the

four meters were found tampered whereafter he had

tentatively reported that the consumer had indulged in

pilferage of energy by tampering with the meter coverage

seals and meddling with the meter mechanism; thus

suppressing actual consumption of energy. 2nd respondent

had issued show cause notice to the appellant, but

appellant neither responded to the show cause notice nor

attended the personal hearing. Thereafter examining the

particulars, the assessment was made at an average of 7

hours per day for a connected load of 3 kilo watts 3 HCJ & NTRJ W.A.No.929 of 2016

whereafter 2nd respondent came to the conclusion that the

value of energy pilferaged was Rs.1,25,361.00. Certain

amounts towards supervision charges and reconnection

charges were added. Consequently, appellant was called

upon to pay the aforesaid amount vide the final

assessment order dated 03.05.2005.

6. Simultaneously a criminal complaint was

lodged against the appellant for alleged pilferage of

electricity whereafter appellant was charge sheeted as an

accused in Crime No.10 of 1999 for allegedly committing

the offence of pilferage under Sections 39 and 44 of the

Indian Electricity Act, 1910. On cognizance being taken,

C.C.No.463 of 1999 was registered on the file of III

Metropolitan Magistrate at Hyderabad. By the judgment

and order dated 13.06.2000, appellant was found not

guilty of the offences under Sections 39 and 44 of the

Indian Electricity Act, 1910 and was accordingly acquitted.

7. Appellant also preferred an appeal against the

final assessment order dated 03.05.2005. By the appellate 4 HCJ & NTRJ W.A.No.929 of 2016

order dated 29.10.2005, the appellate authority held that

appellant was responsible for pilferage of energy and

estimated the amount of loss sustained by the 1st

respondent at Rs.1,03,666.00 plus supervision charges,

thus modifying the order dated 03.05.2005 to that extent.

8. Aggrieved by the aforesaid, appellant preferred

the related writ petition.

9. Learned Single Judge vide the final order dated

18.08.2016 noted that appellant had failed to avail the

opportunity of hearing both at the enquiry stage as well as

at the appellate stage, except taking the plea that he was

acquitted in the criminal case. Learned Single Judge took

the view that the administrative authority had followed the

laid down procedure and arrived at the impugned decision.

Therefore, Court should not substitute its views for that of

the administrative authority, the Court not being an

appellate authority. Accordingly, the writ petition was

dismissed on the ground that it was not tenable in view of

the law laid down by the Supreme Court.

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                                            W.A.No.929 of 2016

10. Learned counsel for the appellant submits that

learned Single Judge was not at all justified in dismissing

the writ petition of the appellant. There was clear acquittal

of the appellant by the criminal Court. The charge of

pilferage of electricity was completely demolished by the

criminal Court whereafter appellant was acquitted on

merit. None of the witnesses could even remotely prove the

charge of pilferage against the appellant. Therefore, it was

not at all justified for the appellate authority to once again

hold the appellant to be guilty of pilferage. Bereft of the

charge of pilferage, there was no basis either for the 1st

respondent or for the appellate authority to levy higher

electricity charges on the ground that there was more

consumption of electricity by the appellant which was not

reflected in the electricity meter because of tampering or

pilferage by the appellant.

11. On the other hand, Mr. R.Vinod Reddy, learned

counsel for the respondents supports the order passed by

the learned Single Judge. According to him, mere acquittal 6 HCJ & NTRJ W.A.No.929 of 2016

in a criminal case would not automatically lead to a

favourable decision by the administrative authority. No

case for interference is made out.

12. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

13. At the outset, we may advert to the decision of

the criminal Court dated 13.06.2000. The point for

consideration before the criminal Court was whether

prosecution could prove the charge against the accused

(appellant) beyond all reasonable doubt. Case of the

prosecution was that appellant was running a jewellery

shop where by tampering with the electricity meter, he had

consumed more electricity than reflected in the meter.

This was detected in the course of inspection whereafter

charge of pilferage of electricity was brought against the

appellant. After thorough examination of the evidence on

record including the testimony of the prosecution

witnesses, the criminal Court noted that the inspection

was made on 12.04.1999 but the 'seized' meter was tested 7 HCJ & NTRJ W.A.No.929 of 2016

in the laboratory on 17.07.1999 after more than three

months. Prosecution could not place any material on

record to prove that appellant was complicit in causing

theft of electricity. On the other hand, taking note of the

inordinate delay in sending the concerned meter to the

laboratory, the criminal Court noted that there was every

possibility of tampering with the meter after its removal

from the premises of the appellant. Prosecution had failed

to prove the charge against the appellant beyond any

doubt. Therefore, the appellant was found not guilty of the

offences charged and he was accordingly acquitted.

14. Adverting to the final assessment order dated

03.05.2005, we find that the same also proceeded on the

basis that there was pilferage of electricity by the appellant.

When this was carried in appeal, the appellate authority

also concluded that appellant was responsible for the

pilferage of energy.

15. On due consideration, we are of the view that

neither the 2nd respondent nor the appellate authority 8 HCJ & NTRJ W.A.No.929 of 2016

could have held that the appellant was responsible for the

pilferage of energy in view of the clear finding of fact

rendered by the criminal Court.

16. Learned Single Judge in our view erred in

applying the principles of service jurisprudence in a matter

of alleged theft of electricity. In service law it is trite that

acquittal in a criminal case would not lead to automatic

re-instatement in service of the delinquent. The said

principle cannot be extended to higher levy of electricity

charge on the ground of theft of electricity. Finding

rendered by the criminal Court giving a clear acquittal to

the appellant was a relevant factor which was required to

be considered by the appellate authority. Having not

considered the same, the finding rendered by the appellate

authority stood vitiated. There was no basis at all for both

the 2nd respondent as well as the appellate authority to levy

higher electricity charges on the presumption that

appellant had committed theft of electricity which was

nullified by the criminal Court.

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                                              W.A.No.929 of 2016

17. Consequently, we set aside the order passed by

the learned Single Judge dated 18.08.2016, further setting

aside the orders dated 03.05.2005 and 29.10.2005.

Consequently, Writ Petition No.26820 of 2005 would stand

allowed.

18. Writ Appeal is accordingly allowed. However,

there shall be no order as to costs.

19. As a sequel, miscellaneous applications

pending, if any, in this Writ Appeal, shall stand closed.

_______________________ UJJAL BHUYAN, CJ

_______________________ N.TUKARAMJI, J Date: 23.01.2023 KL