*THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY +W.P. No.15210 of 2004 %15-07-2010 # B.V.R.Reddy ….petitioner Vs. $ The General Manager, APCPDCL, Red Hills, Hyderabad & another …. Respondents !Counsel for the petitioner: Sri B.Purushothama Reddy Counsel for the Respondents: Sri O.Manohar Reddy, SC for A.P.Transco <Gist : >Head Note: ? Cases referred: 1. 2006 (5) SCC 446 2. 2007 (5) ALD 514 (DB) 3. 2008 (1) ALD 632 The Hon’ble Sri Justice C.V.Nagarjuna Reddy Writ Petition No.15210 of 2004 Dated 15th July, 2010 Between: B.V.R.Reddy …Petitioner And The General Manager, APCPDCL, Red Hills, Hyderabad & another …Respondents Counsel for the petitioner: Mr.B.Purushothama Reddy Counsel for the respondents: Mr.O.Manohar Reddy, SC for AP Transco The Court made the following: Order: This Writ Petition is filed for a Certiorari to quash orders, dated 27-07-2004 and 09-01-2004, passed by respondent Nos.1 and 2 respectively, as illegal. The facts in brief giving rise to the filing of the present Writ Petition are as under: The petitioner is a resident of Adoni Town, Kurnool District. He owns agricultural lands admeasuring 2 acres. The petitioner has also established an ice factory in a part of his agricultural lands. The petitioner holds two service connections for supply of power. The agricultural service connection bears ASC No.8628 and the industrial service connection bears ISC No.10248. The petitioner’s service connection was inspected by the Assistant Divisional Engineer/DPE-II/Kurnool, at 12.30 a.m., (mid night) on 23- 10-1997 and he has allegedly found that the ice factory of the petitioner was connected from the agricultural service by tapping the service wire. A provisional assessment notice was issued for a sum of Rs.10,06,146/- followed by a final assessment notice. The petitioner participated in the final assessment proceedings before respondent No.2 and filed his objections. One of the main objections raised by the petitioner was that on the same charge, as made in the assessment proceedings, prosecution was initiated against him and that the learned IV Additional District, Judge, Kurnool, vide his judgment, dated 16-02-2001, in Crl.Appeal No.159 of 1999, has honourably acquitted him of the charge of pilferage and that therefore, the assessment proceedings are required to be dropped. However, respondent No.2, by his order, dated 09-01-2004, held that the petitioner has indulged in pilferage and assessed the loss of energy at Rs.3,69,207/-. Assailing the said order, the petitioner filed an appeal before respondent No.1, who by his order, dated 26/27-07-2004, confirmed the same. At the hearing, Sri B.Purushothama Reddy, learned Counsel for the petitioner, advanced two contentions: (1) Respondent Nos.1 and 2 have committed serious illegality in not considering the plea of the petitioner to drop the assessment proceedings in view of the judgment of the Criminal Court and; (2) Alternatively, the assessment of quantum of electricity allegedly pilfered, made by respondent No.2, and confirmed in appeal by respondent No.1, is wholly arbitrary and unrealistic. Opposing these contentions, Sri O.Manoher Reddy, learned Standing Counsel repressing the respondents, submitted that, (1) though the findings of the Criminal Court are irrelevant, even in the assessment proceedings, respondent No.2 has given specific reason in support of his finding that the petitioner indulged in pilferage and therefore, the order of assessment does not suffer from any illegality and; (2) respondent No.2, having considered the relevant aspects, assessed the quantum of pilferage at Rs.3,69,207/- and that the petitioner, having not raised specific contentions in this regard, is not entitled to canvass the correctness or otherwise of such assessment of quantum. I have carefully considered the submissions of the learned Counsel for the parties. With regard to the first contention of the learned Counsel for the petitioner, he placed reliance on the judgments of the apex Court and this Court in G.M.Tank vs. State of Gujarath[1], Managing Director, State Bank of Hyderabad, Head Office, Hyderabad and another vs. P.Kata Rao[2] a n d P.Chandrahas vs. Presiding Officer, Labour Court-II, Hyderabad and another[3]. All those cases arose in connection with disciplinary proceedings. The apex Court and this Court held that though the criminal proceedings and departmental proceedings are distinct from each other, if the charges and evidence in both those proceedings are common, the findings of the Criminal Court are required to be considered in the departmental proceedings and due weightage need be given to those findings. Therefore, there is no gainsaying the fact that the respondents are bound to consider the findings rendered by the Criminal Court in the instant case. The learned Counsel for the petitioner has taken me through the judgment of the Criminal Court in Crl.Appeal No.159 of 1999. A perusal of the said judgment shows that the Criminal Court has given a finding that the pilferage case against the petitioner was booked with a motive. The Court has also found that when the evidence on record revealed that the agricultural service connection provided to the appellant was already disconnected by the date of inspection, it was not known as to how it was possible for the appellant to link the agricultural service connection with the industrial service connection. Laying strong emphasis on this finding, the learned Counsel submitted that though the petitioner has raised this aspect specifically, the respondents have not considered the same. In his order, respondent No.1 inter alia stated as under: “As seen from the records, it is observed that the agricultural SC.No.8628 (5 HP) was under disconnection but the service was not disconnected aerially. Hence, the contentions of the consumer on non-availability of supply at fuse units board is not acceptable.” On a careful analysis of the findings of the Criminal Court and that of respondent No.1, I am of the view that while the Criminal Court has not given a specific finding as to at which point the electricity supply of the agricultural service connection was disconnected i.e., whether it was done at the pole or at the meter, a specific finding is rendered, with reference to the record, by respondent No.1 that the service was not disconnected aerially. It cannot be disputed that if the service is not disconnected aerially (at the pole), the service wire emanating from the pole up to the meter will continue to carry the electricity. This specific finding rendered by respondent No.1 has not been challenged by the petitioner in the Writ Petition. Therefore, in my considered view, the aspect, which was not dealt with by the Criminal Court has been considered by respondent No.1. In this view of the matter, it cannot be said that the judgment of the Criminal Court was not considered or that the findings rendered therein on the facts of this case are binding on the respondents. Accordingly, the first contention of the learned Counsel for the petitioner is rejected. Coming to the second contention, the learned Counsel for the petitioner fairly conceded that no specific objection regarding the quantum of assessment had been raised. But however, he submitted that the very fact that the ice factory is classified as a seasonal industry itself would prove that the uniform assessment of consumption for the entire year is patently arbitrary. The learned Counsel for the respondents has not disputed that under the tariff conditions of the respondents, the ice factories are considered as seasonal industries and that during off- season, the consumption is very negligible. A perusal of the assessment made by respondent No.2 shows that he has taken into consideration the connected load and made a theoretical calculation by multiplying it with power factor and load factor for the entire period of pilferage i.e., from November, 1996 to 23rd October, 1997. As rightly contended by the learned Counsel for the petitioner, respondent No.2 failed to take into consideration the off- season, during which the consumption would be very negligible. Under Condition No.39.9 of the Terms and Conditions of Supply of the respondents, the assessing authority is required to make assessment to the best of its judgment, which pre-supposes that he should have called for the entire consumption particulars of the petitioner and taken into consideration both the season and off-season consumption before making the final assessment. The order passed by respondent No.2 does not reveal that he has undertaken this exercise before making the final assessment. Therefore, the final assessment order passed by respondent No.2 and confirmed by respondent No.1 to the extent of assessment of quantum cannot be sustained. For the above-mentioned reasons, the Writ Petition is allowed. The impugned orders, dated 27-07-2004 and 09-01-2004, passed by respondent Nos.1 and 2 respectively, are quashed and the case is remitted to respondent No.2 for assessing the loss suffered by the Corporation on account of pilferage, by taking into account the fact that the petitioner’s is a seasonal industry and examining the consumption pattern during the previous years when there was no pilferage. Respondent No.2 shall pass a fresh order after giving the petitioner an opportunity of hearing within a period of two months. C.V.NAGARJUNA REDDY, J Dated 15th July, 2010 lur [1] 2006 (5) SCC 446 [2] 2007 (5) ALD 514 (DB) [3] (2008 (1) ALD 632)