Full Judgment Text
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CASE NO.:
Appeal (civil) 2137 of 2000
PETITIONER:
Transmission Corporation of A.P. Ltd and Ors
RESPONDENT:
M/s Sri Rama Krishna Rice Mill
DATE OF JUDGMENT: 20/02/2006
BENCH:
ARIJIT PASAYAT & R.V. RAVEENDRAN
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J
Challenge in this appeal is to the legality of the judgment rendered
by a Division Bench of the Andhra Pradesh High Court. The controversy
lies within a very narrow compass and, therefore, the factual position
needs to be noted in brief. The appellant No.1-corporation is the
successor company of the erstwhile Andhra Pradesh State Electricity
Board (in short the ’Board’).
The business premises of the respondent were inspected by the
officials of the appellant No.1-Corporation. The respondent was a low
tension category consumer. On 10.9.1993 a provisional assessment was
made alleging pilferage of energy and a sum of Rs.27,610/- was
demanded. It was indicated to the respondent that if it wanted to avoid
disconnection it should deposit 50% of the amount fixed on provisional
assessment. The same was deposited. On 15.12.1993 a show cause
notice was issued proposing to charge Rs.1,41,270/- on final
assessment. The respondent filed its objection. On 29.9.1998 the final
assessment was made confirming the amount indicated in the show
cause notice.
Appeal as provided under the Terms and Conditions of Supply of
Electrical Energy of the Andhra Pradesh State Electricity Board was filed.
The said Terms and Conditions of Supply were notified by the Board in
exercise of powers conferred by Section 49 of the Electricity (Supply) Act,
1948. A prayer was made to grant opportunity to cross examine certain
officials of the appellant No.1-Corporation on the basis of whose
statements the final assessment was made. By order dated 6.3.1999 the
request was declined on the ground that there was no provision for such
a prayer being accepted. A Writ Petition was filed before the High Court.
While hearing the matter on the issue, learned Single Judge noted that
there were inconsistent views expressed by different learned Single
Judges. This is how the matter was referred to a Division Bench. By the
impugned order the High Court noted that there was no dispute that the
amount on being determined by the final assessment on the ground of
alleged pilferage if recovered would result in civil consequences.
Therefore, the enquiry being quasi judicial in nature fair play is required
and fair play implies the fair opportunity which includes cross
examination of persons whose statements were going to be relied by the
authorities. The High Court accordingly held as follows:
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"In the instant case, if the authorities are relying only
on accounts and not on any statements or reports,
may be the cross examination of any person who has
prepared the accounts is not necessary. But if any
statement or report is made pointing out the act of
pilferage, the petitioner shall be entitled to call the said
person for cross examination".
Learned counsel for the appellants submitted that the High Court’s
view about the desirability of granting opportunity for cross examination
is not supportable in law. According to him, the officers have no personal
interest in the matter and, therefore, their statements are to be
considered in the proper perspective by the authority making the final
assessment. There was no question of any cross examination of such
persons. Strong reliance was placed on a decision of this Court in
Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board and Ors. (1998
(4) SCC 470), more particularly, paragraphs 39 and 43. With reference
to a decision of this Court in The New Prakash Transport Co. Ltd. v The
New Suwarna Transport Co. Ltd. (1957 SCR 98) it was submitted that
the Terms and Conditions of Supply do not envisage grant of an
opportunity for cross examination as the procedure provided for does not
contemplate of anything like recording oral evidence and receiving
documentary evidence in the normal way as in Courts of law. What is
necessary is granting a fair and proper hearing and this has been done.
With reference to another decision of this Court in Nagendra Nath Bora
and Anr. V Commissioner of Hills Division and Appeals, Assam and Ors.
(1958 SCR 1240) it was submitted that as in the said case, the rules in
the present case make no provisions for the reception of evidence oral or
documentary and even for issuing of any notice; therefore also the High
Court was not right. Finally, with reference to a decision of this Court in
The State of Jammu and Kashmir and Ors v. Bakshi Gulam Mohammad
and Anr. (1966 Suppl. SCR 401) it was submitted that the right to
hearing did not include the right to cross examine and the right must
depend upon the circumstances.
In response, learned counsel for the respondent submitted that
Clause 39.9.2 provides for grant of a "reasonable opportunity" to the
consumer. If the statements of the officers are to be relied upon without
being tested by cross-examination, the consumer will be highly
prejudiced and, therefore, the right to cross-examine them is in built in
clause 39.9.2 of the Terms and Conditions of Supply. Clause 39.9.2
deals with final assessment. Sub-clauses (1) to (3) thereof are extracted
below for ready reference :
39.9.1 After the provisional assessment notice is served upon
the consumer as mentioned in clause 39.3 thereof.
The Officer authorized in this behalf by the Board (see
statement referred to in clause 39.4 above) shall issue
a show cause notice in the forms prescribed therefore
advising the consumer to file his representation, if any,
within 30 days from the receipt of the notice.
39.9.2 The said officer of the Board shall, after the expiry of
the aforesaid notice period, enquire into the matter
and after giving reasonable opportunity to the
consumer and taking into account all relevant facts
and circumstances shall decide whether the consumer
has committed malpractice or pilferage of energy and if
so satisfied proceed to assess to the best of his
judgment, the loss sustained by the Board on account
of such malpractice or pilferage of energy by the
consumer. The consumer may be represented by an
advocate or any other person at the time of personal
hearing provided the consumer files proper
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Vakalatnama or power of Attorney as the case may be.
39.9.3 The final assessing authority shall then pass an order
setting out his conclusions and the reasons thereof
and communicate a copy of the order to the consumer
and demand the amount, if any, due from the
consumer on the basis of such order after giving credit
to the amounts paid by him.
At this juncture, it is to be noted that in paragraph 39 of
Hyderabad Vanaspathi’s case (supra) what was observed by this Court
was in relation to disconnection and for that purpose reliance was placed
on an earlier decision of this Court in M.P. Electricity Board v. Harsh
Wood Products (1996 (4) SCC 522). At the stage of issuing notice of dis-
connection there is no question of granting any opportunity to the
consumer. On the basis of prima facie view of the concerned officer,
notice of disconnection is issued. In that context it was held both in M.P.
electricity Board’s and Hyderabad Vanaspathi’s cases (supra) that the
procedure laid down was not in violation of the principles of natural
justice. So far as paragraphs 43 of Hyderabad Vanaspathi’s case (supra)
is concerned, that related to the absence of personal lis or interest of
adjudicator. In that background it was held that merely because the
departmental authority was adjudicating there was no prejudice
involved. Those principles are not of any assistance in the present case.
In the case at hand without even granting of an opportunity to the
respondent, the final order of assessment was passed. Merely taking note
of the objection filed cannot be said to be compliance of the provisions
contained in Clause 39.9.2. Therefore, the respondent had made a prayer
before the appellate authority. The parameters of the principles of
natural justice cannot be covered by any straight-jacket formula. It
would vary depending upon the circumstances involved. It is true that
the Terms and Conditions of Supply did not contemplate anything like
recording oral or documentary evidence in the way as is normally done in
the Courts of law. But the Clause 39.9.2 itself provides for a reasonable
opportunity being granted. What would be a reasonable opportunity
would also depend upon the fact situation. In Advanced Law Lexicon by
P. Ramanatha Aiyar (3rd Edition, Vol.4 page 3959 and 3968) the word
"reasonable" has been described as follows:
"(i) What is ’fair’ and proper under the circumstances.
(ii) The expression "reasonable" is not susceptible of
a clear and precise definition. A thing which is
reasonable in one case may not be reasonable in
another. Reasonable does not mean the best, it means
most suitable in a given set of circumstances.
(iii) There is no point on which a greater amount of
decision is to be found in Courts of law and equity
than as to what is reasonable : It is impossible a priori
to state what is reasonable as such in all cases. You
must have the particular facts of each case established
before you can ascertain what is meant by reasonable
under the circumstance \026 Lord Romilly. M.R.
Labouchere v. Dawson, (1872), LR 13 Eq.CA.325.
In Khem Chand v. Union of India (AIR 1958 SC 200) a Constitution
Bench of this court explained the meaning of ’reasonable opportunity’
thus in the context of Article 311(2) of the Constitution of the, 1950 (in
short the ’Constitution):
(a) an opportunity to deny his guilt and
establish his innocence\005.
(b) an opportunity to defend himself by cross-
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examining the witnesses produced against
him and by examining himself or any
other witnesses in support of his defence;
and finally
(c) an opportunity to make his representation
as to why the proposed punishment
should not be inflicted on him\005."
The nature of adjudication under Clause 39.9.2 of Terms and
Conditions of Supply is some what different from an enquiry under
Article 311(2) of the Constitution. It cannot be laid down as a rule of
universal application that whenever the statement of departmental officer
is pressed into service for the purpose of adjudication, a right of cross
examination is in built. On the other hand, what was said in Bakshi’s
case (supra) has also really no relevance because that was a case where
no penal consequences were involved and the Commission was only a
fact finding Commission and, therefore, is clearly distinguishable of
facts.
In order to establish that the cross examination is necessary, the
consumer has to make out a case for the same. Merely stating that the
statement of an officer is being utilized for the purpose of adjudication
would not be sufficient in all cases. If an application is made requesting
for grant of an opportunity to cross examine any official, the same has to
be considered by the adjudicating authority who shall have to either
grant the request or pass a reasoned order if he chooses to reject the
application. In that event an adjudication being concluded, it shall be
certainly open to the consumer to establish before the appellate authority
as to how he has been prejudiced by the refusal to grant opportunity to
cross-examine any official. As has been rightly noted by the High Court
in the impugned judgment where the reliance is only on accounts
prepared by a person, cross examination is not necessary. But where it is
based on reports alleging tampering or pilferage, the fact situation may
be different. Before asking for cross examination the consumer may be
granted an opportunity to look into the documents on which the
adjudication is proposed. In that event, he will be in a position to know
as to the author of which statement is necessary to be cross-examined.
The applications for cross-examination are not to be filed in routine
manner and equally also not to be disposed of by adjudicator in casual or
routine manner. There has to be application of mind by him. Similarly,
as noted above, the consumer has to show as to why cross examination
is necessary.
In the instant case the respondent had not indicated as to why the
cross-examination was necessary. If a fresh application is made, the
same shall be duly considered by the appellate authority, keeping in view
the principles indicated above. The appeal is accordingly disposed of. No
costs.