Narayan Chandra Kundu Vs. State of West Bengal and ors. - Court Judgment

Bhaskar Bhattacharya, J.

1. This mandamus-appeal is at the instance of the writ-petitioner and is directed against a common judgment dated June 22, 2007 passed by a learned single Judge by which two different writ applications filed by the present appellant were disposed of. By the first writ application. The writ petitioner challenged the order dated 21st March, 2006 passed by the respondent thereby making a provisional assessment for payment of Rs. 2,85,406/- in terms of the Electricity Act, 2003 on the allegation of pilferage of electricity and by the other one, the final order of assessment subsequently passed by the respondents was challenged.

2. As a preliminary objection was raised on behalf of the respondents as regards maintainability of the present mandamus-appeal on the ground that two different mandamus-appeals ought to have been preferred, we disposed of such preliminary point by directing the appellant to pay additional Court fees for challenging orders passed in two writ-applications and the appellant has complied with such direction.

3. It appears from record that on the allegation of theft of electricity the respondent authority disconnected supply of the appellant by taking aid of Regulation 5.00 of the West Bengal Electricity Regulatory Commission Regulations, 2003 and subsequently, passed a provisional order in terms of Section 126 of the Electricity Act, 2003, The respondents also started separate criminal proceedings in terms of Section 135 of the Electricity Act.

Against the order of provisional assessment, the first writ application was filed wherein a learned single Judge of this Court passed direction upon the respondents to restore electricity on condition that the appellant should deposit a specified amount directed by the learned single Judge. Pursuant to such order, the appellant deposited the amount and as such, the electricity was restored.

4. Subsequently, the respondent authority issued notice for hearing of final assessment but the appellant did not participate in the proceedings on the ground that as the writ application filed by the appellant against the provisional assessment was pending and there was interim order, the respondents could not proceed with the final assessment. Subsequently, the respondent authority proceeded ex parte against the appellant and passed final assessment order.

5. Being dissatisfied, the appellant filed another writ application and as stated earlier, the learned single Judge by a common order disposed of both the writ applications by approving the order of disconnection and as regards the final assessment order, gave liberty to the petitioner to challenge the same in accordance with law before the appropriate forum.

6. Being dissatisfied, the writ petitioner has come up with this mandamus appeal.

7. Mr. Bandopadhyay, the learned senior advocate appearing on behalf of the appellant has taken a pure question of law in support of this appeal. According to Mr. Bandopadhyay, it would appear from the materials on record that for the purpose of disconnection of the supply of electricity, the passing of the provisional assessment order and also the final assessment order, a particular officer of the respondents inspected the property and he himself passed the provisional as well as final assessment order and also initiated the criminal proceedings. Mr. Bandopadhyay contends that according to the notifications issued by the State Government, the Officers of various categories are entrusted to act as Assessing Officer in terms of Section 126 and similarly various classes of Officers are invested with power to initiate the criminal proceedings under Section 135 of the Act and in such circumstances, the person who had actually lodged criminal complaint and started criminal proceedings should not act-as an Assessing Officer for the purpose of Section 126 of the Act. In other words, Mr. Bandopadhyay contends that it is against the principle of natural justice to permit a person to decide the fate of another when the former is the complainant. Mr. Bandopadhyay contends that the prosecutor cannot be the judge of his own cause and in the case before us, the person, who started the criminal proceedings, has himself acted as the Assessing Officer. He, therefore, prays for quashing of the assessment proceedings on that ground alone. In support of such contention, Mr. Bandopadhyay has referred to the following decisions:

1. State of Kerala v. Mohanan reported in 2000 (2) SLR 368 : 2000 Lab IC 635.

2. Rattan Lal v. Managing Committee reported in : (1993)IILLJ549SC .

3. Union of India v. Tulsi Ram reported in : (1985)IILLJ206SC .

8. Mr. Roy Chowdhury, the learned advocate appearing on behalf of the State Electricity Board, has, on the other hand, opposed the aforesaid submissions of Mr. Bandopadhyay and has contended that the concerned respondents has merely complied with the law of the land and as provided in the Electricity Act as well as the Regulation, his client was entitled to proceed with the assessment notwithstanding the fact that the said officer himself was the complainant. Mr. Roy Chowdhury contends that the Assessing Officer performing his duty in terms of Section 126 of the Act cannot act arbitrarily and in the case before us, the detailed reason has been given in support of his conclusion. Mr. Roy Chowdhury points out that no interim order had been passed in the first writ application filed by the appellant restraining his clients from proceeding with the final assessment proceedings, but in spite of such fact, the appellant on a mala fide plea that there was interim order in the proceedings, did not participate at the hearing and for that reason, the respondents cannot be blamed. Mr. Roy Chowdhury submits that the learned single Judge has given opportunity to the appellant to challenge the order of final assessment before the appropriate forum and in view of efficacious alternative remedy by way of appeal provided in the Electricity Act itself, this Court should not interfere with the order passed by the learned single Judge. Mr. Roy Chowdhury, therefore, prays for dismissal of the present mandamus-appeal.

9. Therefore, the first question that arises for determination in this appeal is whether in the facts of the present case it should be presumed that the proceedings for assessment have been vitiated for the reason that the prosecutor under Section 135 of the Act was the Assessing Officer under Section 126 of the same.

In order to appreciate the point raised by Mr. Bandopadhyay, it will be appropriate to refer to the provisions contained in Sections 126 and 135 of the Electricity Act, 2003 which are quoted below:

126. Assessment.- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, or whom a notice has been served under Sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.

(6) The assessment under this section shall be made at a rate equal to one-and-half times the tariff applicable for the relevant category of services specified in Sub-section (5).

Explanation.- For the purposes of this section.-

(a) 'assessing officer' means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government:

(b) 'unauthorised use of electricity' means the usage of electricity-

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised.

135. Theft of electricity.- (1) Whoever, dishonestly,-

(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity.

so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-

(i) does not exceed 10 kilowatt the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity;

Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

(2) Any officer authorised in this behalf by the State Government may-

(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being used unauthorisedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being used for unauthorised use of electricity;

(c) examine or seize any books of account or documents which in his opinion, shall be useful for or relevant to, any proceedings in respect of the offence under Sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.

(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.

10. After hearing the learned Counsel for the parties and after going through the materials on record including the provisions quoted above, we find that the appellants have not challenged the legality of the aforesaid provisions of the Act as ultra vires the provisions of Constitution of India and as such, we are not called upon to decide such question. Mr. Bandopadhyay, in this connection, has strenuously contended before us that even without challenging the said provisions as ultra vires the Constitution, his clients are entitled to contend that those provisions should be followed not literally but after following the principles of natural justice. Mr. Bandopadhyay contends that the State Government by the notification in the official gazette has declared the classes of the Officers who are competent to become the Assessing Officer in terms of Section 126 of the Act as well as the category of Officers who can lodge complaint in terms of Section 135 thereof. Mr. Bandopadhyay contends that the State Government having declared various categories of the Officers as competent to act as Assessing Officer as well as the complainant, it was the duty of the respondent authority not to select the selfsame person to act as both the complainant and the Assessing Officer. Mr. Bandopadhyay submits that once an Officer of the team of inspection who allegedly found abnormality in the electric line of a consumer and lodged a complaint, he cannot act as an Assessing Officer because in such a case, he will be the judge of this own cause.

We are, however, not at all impressed by the aforesaid contention of Mr. Bandopadhyay. After going through the provisions contained in Sections 126 and 135 of the Act we find that the legislature has intended that the Assessing Officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or the unauthorised use of the electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the site at the time of detection of the illegality. Section 135 of the Act, at the same time, authorises only the Officers of the inspecting team detecting the illegal use of electricity to lodge complaint provided such Officer is authorised by the State Government to lodge such complaint. Once a complaint has been lodged, the trial on such complaint will be made in accordance with the provision contained in the Code of Criminal Procedure by the competent Court; on the other hand, the Assessing Officer shall consider the objections raised by the consumer against the allegations of pilferage or unauthorised use of electricity, as the case may be and will deal with those objections in the order of final assessment and if satisfied with the objections raised, will revoke or modify the order of provisional assessment. If the Assessing Officer is not satisfied with the cause shown, he will maintain the earlier order as ordinarily done by an adjudicating authority after a notice to show-cause with ad interim order is answered. Moreover, the assessment made by an Assessing Officer is appealable before the appellate forum and therefore, for such assessment by the Assessing Officer, there will be no violation of principles of natural justice simply because the Assessing Officer is also the complainant of the criminal case.

11. We, therefore, find no substance in -the aforesaid contention of Mr. Bandopadhyay.

12. Mr. Bandopadhyay next contends at the order of final assessment was passed ex parte and his client did not get any opportunity of producing any material before the Assessing Officer and consequently, the order of final assessment should be set aside. We, however, find from the materials on record that the notice of hearing for the purpose of final assessment was given to the appellant but the appellant asked the Assessing Officer not to proceed with the hearing because of the alleged interim order passed by this Court. In fact, there was no interim order staying all further proceedings of the final assessment proceeding. The Assessing Officer, however, proceeded with the hearing, as there was no interim order. We, therefore, find that the Assessing Officer did not commit any illegality by the proceeding with the hearing as there was no interim order granted by this Court and the appellant tried to mislead the Assessing Officer. The position, however, would have been different if the appellant prayed for adjournment for any other reason and in such a case, it would have been a duty of the Assessing Officer to consider such prayer and to communicate the decision before proceeding ex parte.

13. We, thus, find no substance in the last submission made by Mr. Bandopadhyay. We have already pointed out that the learned single Judge has given liberty to the appellant to challenge the decision on final assessment before the appropriate forum in accordance with law and we consequently, find no reason to interfere with the discretion exercised by the learned single Judge.

We now propose to deal with the decision cited by Mr. Bandopadhyay.

14. In the case of Union of India v. Tulsiram Patel : (1985)IILLJ206SC (supra), the question was whether the opportunity of hearing taken away by the exclusion of the second proviso to Article 311(2) of the Constitution of India could be reinforced by taking aid of Article 14 as the said deprivation of opportunity struck at the basic rule of natural justice. In that context, the majority view answered the question in the negative in the following way (paras 101 & 102):

Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra and Co. v. State of Orissa : [1985]1SCR322 . So far as, the audi alteram partem rule is concerned, Both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded. Where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion-; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case : [1978]2SCR621 . If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a Constitutional provision has a far greater and all pervading sanctity than a statutory provision. In the present case, Clause (2) of Article 311 is expressly excluded by the opening words of the second proviso and particularly its keywords 'this clause shall not apply'. As pointed out above, Clause (2) of Article 311 embodies in express words the audi alteram partem rule. This principle of natural justice having been, expressly excluded by a Constitutional provision, namely, the second proviso to Clause (2) of Article 311, there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the Constitutional provision has expressly prohibited. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Article 14. This is, however, the only scope which Article 14 can have in relation to the second proviso, but to hold that once the second proviso is properly applied and Clause (2) of Article 311 excluded, Article 14 will step in to take the place of Clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution makers who inserted it in Article 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply.

In this connection, it must be remembered that a Government servant is not wholly without any opportunity. Rules made under the proviso to Article 309 or under Act referable to that Article generally provide for a right of appeal except in those cases where the order of dismissal, removal or reduction in rank is passed by the President or the Governor of a State because they being the, highest Constitutional functionaries, there can be no higher authority to which an appeal can lie from an order passed by one of them. Thus, where the second proviso applies, though there is no prior opportunity to a Government servant to defend himself against the charges made against him, he has the opportunity to show in an appeal filed by him that the charges made against him are not true. This would be a sufficient compliance with the requirements of natural justice. In Maneka Gandhi's case : [1978]2SCR621 and in Liberty Oil Mills v. Union of India : [1984]3SCR676 , the right to make a representation after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and more effective remedy than a right of making a representation.

15. In the case before us, first of all the-legality of the provisions contained in the Electricity Act have not been challenged and secondly, in view of the observations of the Apex Court as quoted above, the rule that no body can be the judge of his own cause cannot be said to be inflexible rule of natural justice and the same can be moulded in the interest of justice. We have already pointed out that the appellant would not be materially prejudiced if the complainant is the Assessing Officer. The said decision, therefore, does not help the appellant in any way; rather the principles laid down there in go against the appellant.

16. In the case of Rattan Lal Sharma AIR 1993 SC 2155 (supra), one member of Inquiry Committee in a departmental proceedings appeared as witness against delinquent to prove one of the several charges and it was contended on behalf of the delinquent that his bias percolated throughout the enquiry proceedings as a result, the findings given by the Committee on the remaining charges also got vitiated. In such a case, the Supreme Court made the following observations (para 11):

From the charge itself, it is apparent that he had a predisposition to decide against the appellant. It is really unfortunate that although the appellant raised an objection before the enquiry committee by clearly indicating that the said Shri Maru Ram was inimical towards him and he should not be a member in the enquiry committee, such objection was rejected on a very flimsy ground, namely, that since the said Shri Maru Ram was one of the members of the Managing Committee and was the representative of the teachers in the Managing Committee it was necessary to include him in the enquiry committee. It is quite apparent that the enquiry committee could have been constituted with other members of the Man-/ aging Committee and the rules of the enquiry are not such that Shri Maru Ram being teachers representative was required to be included in the said enquiry committee so that the doctrine of necessity may be attracted. If a person has a pecuniary interest, such interest, even if very small, disqualifies such person. For appreciating a case of personal bias or bias to the subject-matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place.

17. In our view, the principles laid down in the aforesaid case where the allegations of personal bias was made cannot have any application to the facts of the present case. In the case before us, it is the intention of the legislature that the Assessing Officer must be an Officer of the inspection team, which detected the unauthorised use of electricity, and as such, on that ground the assessment order, cannot be vitiated. Moreover, there is no allegation of any personal bias against the Assessing Officer concerned. Thus, the appellant cannot be benefited by the said decision.

18. In the case of State of Kerala 2000 Lab IC 635 (supra), the Division Bench of Kerala High Court was considering a case of dismissal of an employee on the ground of conviction in a criminal case where no opportunity was given to him to defend his case before passing the order of dismissal. As it appears from paragraph 15 of the judgment, it was conceded on behalf of the appellant that according to the concerned service rule, the dismissal from service in such circumstance, was not automatic and consequently, the Division Bench by applying the principles of natural justice upheld the order of the learned single Judge who set aside the order of dismissal on the ground of not giving an opportunity to show-cause. We fail to appreciate how the said decision can be of any avail to the appellant where the law has permitted a complainant to be an Assessing Officer.

19. We, therefore, find that the decisions cited by Mr. Bandopadhyay do not help his clients in any way.

20. On consideration of the entire matters on record, we accordingly find no-merit in this appeal and accordingly, the same is dismissed. In the facts and circumstances, there will be, however, no order as to costs.

Rudrendra Nath Banerjee, J.

21. I agree.