IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2010 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.2982 of 2001 M.Murugesan Chettiar ... Petitioner Vs. 1. The Executive Engineer, (O & M), CEDC/Tamil nadu Electricity Board, Chengalpattu. 2. The Assistant Executive Engineer (O & M), Tamil Nadu Electricity Board, Thirukazhikundram. 3. The Superintending Engineer, CEDC, Tamil nadu Electricity Board, Chengalpattu. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records, relating to the proceedings of the Executive Engineer, (O & M), CEDC/Tamil nadu Electricity Board, Chengalpattu, the first respondent, made in Lr.No.EE/O&M/CG1/AE/95/97, dated 18.06.1997, and the proceedings of the Superintending Engineer, CEDC, Tamil nadu Electricity Board, Chengalpattu, third respondent made in proceedings No.SE/CEDC/AEE-GL/AE/F. Appeal/TE-293/D97/2001, dated 24.01.2001 and quash the same. For petitioner : Mr.N.Damodaran For Respondents : Mr.A.Selvandran O R D E R By order, dated 18.06.1997, the Executive Engineer, (O & M), CEDC, Tamil nadu Electricity Board, Chinglepet, first respondent has directed the petitioner to pay a sum of Rs.4,79,384/-, alleging that the petitioner had tampered with the seals and thus, violated the revised grouping supply of the electricity. Aggrieved by the same, the petitioner filed an appeal to the Superintending Engineer, CEDC, TNEB, Chinglepet, third respondent, who by his order, dated 24.01.2001, has confirmed the demand. Both the orders are challenged in this Writ Petition. 2. Facts leading to the Writ Petition are as follows: The petitioner is the sole proprietor of Varalakshmi Oil Mills and his main business is conversion of groundnut into groundnut oil. The Mill is connected with Low Tension service connection M.490/Tariff-III B. According to the petitioner, the business is normally for 90 days only. He has been promptly remitting the electricity consumption charges. While so, personnel from Anti Power Theft Squad (APTS) visited the mill on 22.05.1997 at 2 P.M., and inspected the meter for nearly four hours. They came again on 23.05.1997 at 2 P.M., and inspected the meter and went back without making any remarks. The department people visited the mill once again at 5.30 P.M., and sought for permission to inspect the meter. The said inspection was done in his absence. Thereafter, the officials, for the first time, informed the petitioner that the seals in the meter are found to have been tampered with and the original M.R.T. Seal was replaced with bogus seal and thus, the petitioner has committed theft of energy. The petitioner has alleged that the Assistant Executive Officer (O & M), Tamil Nadu Electricity board, Thirukazhikundram, second respondent, has taken the original meter, under acknowledgement. A show cause notice, dated 24.05.1997, was issued to the petitioner, demanding extra electricity consumption charges, of Rs.4,79,384/- alleged to be the loss caused to the Board, due to tampering of the meter. A detailed reply, dated 03.06.1997 was submitted to the show cause notice, denying the allegations. 3. It is the grievance of the petitioner that without considering his valid objections, the first respondent has passed a final order and directed the petitioner to remit the alleged loss caused to the Board. Challenging the same, the petitioner filed W.P.No.9847 of 1997. This Court, by order, dated 03.07.1997, while directing the petitioner to pay a sum of Rs.1,50,000/-, directed him to file a statutory appeal. Thereafter, detailed objections to the demand as well as to the final assessment was submitted to the appellate authority. It is the grievance of the petitioner that without considering the valid objections raised by the petitioner in proper perspective, the third respondent, by his order, dated 18.10.1989, dismissed the appeal and confirmed the order of demand. Aggrieved by the same, the petitioner filed W.P.No.20418 of 1999 and the same was dismissed on 04.02.2000. The correctness of the same was challenged in W.A.No.510 of 2000. The Division Bench of this Court in W.A.No.510 of 2000, by order, dated 24.03.2000, set aside the orders passed by the third respondent, the appellate authority and remitted the matter, for fresh consideration. The Division Bench also directed the petitioner to deposit a sum of Rs.1,00,000/- with the Board, within a period of two weeks and on such deposit, directed the respondents therein to restore electricity supply to the petitioner's premises. The condition was duly complied with, on 06.04.2000 and thereafter, service connection was restored by the respondents. Enquiry was conducted, as per the directions of this Court and by proceedings, dated 24.01.2000, the third respondent has passed orders, confirming the order of the first respondent, dated 24.05.1997. Both the orders are challenged in this Writ Petition. 4. Assailing the impugned orders, Mr.N.Damodaran, learned counsel for the petitioner submitted that the main complaint of the second respondent was that, when he along with the Board officials inspected the petitioner's mill premises, they found (1) the Original MRT seals in the Meter were tampered with; (2) after removing and tampering with the official seal; (3) the meter reading was changed and thus, the petitioner had artificially created reduced reading; and (4) replaced it with the bogus seals. As tampering with the metre is one of the main allegations, raising presumption of theft of electrical energy, he further submitted that unless the department is able to establish the allegation of tampering, the rest of the charges cannot be held against the petitioner. Though the standard of proof required in domestic enquiry is not strict or tampering should be proved beyond reasonable doubt, yet he submitted that atleast there must be some evidence to arrive at the conclusion. 5. Taking this Court through the evidence of the Assistant Director, Forensic Department and his report, dated 11.12.1997, learned counsel for the petitioner submitted that when the Forensic Expert has categorically opined that all the four seals of the meter were intact, the third respondent ought to have held that the allegations of tampering of seals by the petitioner as not established and therefore, he should have been absolved of his liability. According to him, the respondents have not considered the evidence in proper perspective, but were simply carried away by the Inspection Report of the Assistant Executive Engineer (O & M), Thirukazhikundram, the second respondent. He further submitted that when the said expert has clearly deposed that the four terminal seals were intact and as the letters and numbers on the seals examined by him were not clear and therefore, not in a position to give any concrete opinion about the genuineness of the seals, even after comparing the same with a sample seal, the said evidence cannot be simply be brushed aside. 6. Learned counsel for the petitioner submitted that the allegations of tampering was not proved, even before the Criminal Court and by judgement, dated 24.12.2002, the petitioner was acquitted of the charge of theft of electricity levelled against him, under Sections 39(1) and 44(1) of the Indian Electricity Act, and therefore, the respondents ought to have applied their mind to the evidence and judgement of Criminal Court, before mulcting the petitioner with a huge liability. He further submitted that no doubt, the aspect of criminal intention is one of the elements to be proved by the prosecution before the Criminal Court of competent jurisdiction, yet when the Board was not able to establish tampering of seals, the findings recorded by the respondents are perverse and consequently, the impugned orders are liable to be set aside. 7. Learned counsel for the petitioner further submitted that even after the remand made by this Court, the Superintending Engineer, CDEC, TNEB, Chengalpat, third respondent, has failed to consider the explanation, dated 07.07.1997, offered by the writ petitioner, regarding the alleged defacing of letters and numbers on the seals, but has mechanically rejected the report of the Assistant Director, Forensic Department. He further submitted that the third respondent has failed to give proper reasons for not accepting the said report, but has erroneously rejected the same on the sole ground that the said expert could not confirm or reject the genuineness of the seals. 8. According to the learned counsel for the petitioner, merely because the seals did not carry the distinct letters and digit impression for comparison with those on the sample seal, examined by the Forensic Expert, tampering with the seals cannot be presumed, when the expert has found that all the seals were intact. He further submitted that smudging of the numbers/letters depends upon the pressure applied by the officer at the time of fixing the seal and therefore, that alone is not sufficient to raise presumption of theft. 9. Learned counsel for the petitioner further submitted that when an adverse report sent against the writ petitioner, alleging removal and tampering with the seals and consequently, reduction of power consumption, is relied on by the Executive Engineer, the original authority, the same ought to have been furnished along with the show cause notice, so as to enable the petitioner to putforth his objections to the report and defend a serious charge of theft of electricity. He therefore submitted that there is a violation of principles of natural justice and therefore, the whole proceedings are vitiated. According to the him, during the relevant period, power was supplied only for four hours per day and hence, the calculation made by the respondents, as if the petitioner was running the industry for six hours per day for ten months and arriving at the total units of power consumed by the petitioner as 39,531 units is erroneous. 10. Learned counsel for the petitioner further submitted that the power consumed by the petitioner, during the previous years, would clearly show that there is less consumption of energy and therefore, there is no reason as to why the respondents have failed to consider the same. According to him, the calculation of power consumption has been done in a mechanical manner, fastening the petitioner with a huge liability. He therefore submitted that there is a total non-application of mind. The impugned orders are arbitrary and illegal and hence, they are liable to be set aside. 11. Reiterating the averments in the counter affidavit filed by the Assistant Engineer, (O & M), CEDC, TNEB, Thirukazhiundram, second respondent, Mr.Selvandran, learned counsel for the respondents, submitted that the petitioner's oil mill was connected with Low Tension service connection H/490, Tariff- III B. On 23.05.1997, the Anti Power Theft Squad (APTS) made a surprise inspection to the petitioner's oil mill and found that the 3-phase current transformer connected with energy meter was tampered by removing the original MRT seal and was replaced with a bogus seal and thereby, the petitioner has committed theft of energy. Soon after the detection of power theft, the Anti Power Theft Squad has informed the same to the respondents. On the request of the Anti Power Theft Squad, the second respondent went to the petitioner's Oil Mill and ascertained the commission of theft by the petitioner. Further, the Assistant Engineer/Meter Relay Test was requested to ascertain the nature of replacement of the original seals with bogus seals and on verification, theft of energy was confirmed. By the act of removing the original seals and fixing bogus seals, the petitioner has changed the meter reading and thus artificially created a reduced reading. 12. Learned counsel for the respondents further submitted that the petitioner's son, Mr.M.Babu was present at the time of inspection. Investigation was conducted in a fair and reasonable manner and that there was no coercion. On ascertaining the fact of theft of energy, by tampering with the seals and reducing the consumption, a complaint was lodged against the petitioner in Thirukazhikundram Police Station, for commission of an offence under the Electricity Act. A case in Crime No. 584/97, under Section 39 (1) r/w. 44 (1) (c) of the Indian Electricity Act was registered against the petitioner. As per Schedule 37 Part-I Clause 8.05 of the Tamil Nadu Electricity Board Terms and Conditions of supply of electricity, the second respondent issued a show cause notice, dated 24.05.1997, to the petitioner, calling upon him to show cause, as to why, the loss caused to the Tamil nadu Electricity Board to the tune of Rs.4,79,384/-, should not be levied from the petitioner. The petitioner submitted his reply on 03.06.1997, denying the commission of offence. Not satisfied with the same, the 1st respondent assessed the quantum of units consumed by the petitioner by invoking schedule 37, Part- I clause 8.03 and assessed the amount at Rs.4,79,384/-, the compensation to be paid to the Board. 13. Learned counsel for the respondents further submitted that when the above said order was challenged in W.P.9847/97, this Court in WM.P.No.15666/97, directed the petitioner to prefer an appeal before the Superintending Engineer, Chengalpet, after depositing a sum of Rs.1,50,000/-. Accordingly, the petitioner remitted the said sum and thereafter, the appeal was entertained on such deposit. According to the learned counsel for the respondents, the Superintending Engineer has conducted a fair and proper enquiry and after giving adequate opportunity to the petitioner, as per the directions of this Court, passed an order on 08.10.99, confirming the assessment order issued by the 1st respondent and directed the petitioner to pay the balance amount of Rs.3,29,384/- in two installments. 14. Inviting the attention of this Court to the report of Forensic Expert, learned counsel for the respondents submitted that though the said authority was unable to offer any opinion about the genuineness of the seals, he had clearly opined that seals of the electrical meter did not carry distinct letters/digit impressions and that itself is sufficient to prove that the seals were tampered with. According to him, all the seals provided by the Electrical Department will have letters/digit impressions and therefore, whenever, a consumer is alleged to have consumed electricity by theft, it is not necessary to conduct an elaborate enquiry like that of a criminal case and it is suffice that there is preponderance of probability to come to a reasonable conclusion and therefore, submitted that the finding arrived at by the respondents cannot be termed as perverse and hence, the petitioner is liable to pay the amount determined by the department as per the terms and conditions of supply of electricity. According to him, there is some evidence to conclude that the acts of misconduct have been established through witnesses and documents, which cannot be said to be perverse or a case of no evidence, warranting interference. 15. Learned counsel for the respondents further submitted that the contents of the report of the inspecting team has been extracted in the show cause notice itself and therefore, there cannot be any serious prejudice on account of non-furnishing of the copy of the report. It is also the contention of the learned counsel that the calculation of the energy consumption has been done as per the provisions. For the above said reasons, he prayed for dismissal of the Writ Petition. Heard the learned counsel for the parties and perused the materials available on record. 16. APTS has inspected the petitioner's mill and found that MRT seals in the meter were defaced. A show cause notice, dated 24.05.1997, was issued to the petitioner, alleging that, (i) he had removed and tampered with the official seals, (ii) artificially created reduction in reading, and (iii) replaced the original with bogus seals. Explanation was given on 03.06.1997. The Assistant Executive Officer (O & M), Tamil Nadu Electricity board, Thirukazhikundram, second respondent, has passed an order, dated 18.06.1997, determining the charges to be paid by the writ petitioner. While testing the correctness of the same, this Court, in W.P.No.20418 of 1999, dated 04.02.2000, accepted the contention of the respondents. However, on appeal, the Division Bench of this Court, in W.A.No.510 of 2000, dated 24.03.2000, set aside the order passed by the third respondent, dated 18.06.1997 and remitted the matter for fresh consideration. 17. The core contention of the petitioner is on the basis of the report of the Forensic Expert, who has opined that at the time of examination, the seals were intact and therefore, there was no tampering of seals and consequently, the conclusions arrived at are perverse. Although the standard of proof required in the departmental action, is not proof beyond reasonable doubt, yet Courts have consistently held that there must be some legally acceptable evidence to arrive at a prima facie conclusion of violation of the provisions of the Electricity Act. The charges levelled against the petitioner can be split into three counts, (i) removing and tampering with the official seals, (ii) artificial creation of reduction in reading and (iii) replacing original official seals with bogus seals. In this context, it has to be primarily seen as to whether the respondents have proved removal and tampering with the official seals. If that is proved, then there can be a presumption regarding reduction in reading and replacement. In order to examine that aspect, it is necessary to consider the report and opinion of the expert. 18. The Assistant Director, Forensic Department, Chennai, and Scientific Assistant, Grade-I, Physics, who examined the right top, right bottom and left bottom of the meter, described as Item No.1 and sample seal described as Item No.2, on the request made by the Thirukazhikundram Police Station under Sections 39(1) and 44(1) of the Indian Electricity Act, has offered the following opinion: "We found that all the above four seals of the meter item 1, were intact but they did not carry distinct letter/digit impression for comparison with those on the sample seal item 2. Hence we are unable to offer any opinion as to the genuineness of the seals of the meter, item 1. The seals of the meter, item 1, were removed for our examination and replaced under this office seal." 19. As stated supra, the Assistant Director, Forensic Department, Chennai and Scientific Assistant, Grade I, Physics, has given an opinion that all the four seals of the meter were intact. But the only defect which he had noticed was that the seals did not carry distinct letters/digit impressions for comparison with those on the sample seals. In this context, it may be useful to consider his evidence recorded before the learned District Munsif-cum-Judicial Magistrate in C.C.No.83 of 2000, "kpd; mst[f; fUtpapd; tyJ nky;/ tyJ fPH;/ ,lJ nky;/ ,lJ fPH; kw;Wk; blh;kpdy; rPy;fis Ma;t[ bra;jjpy; mitfs; ntWglhky; mitfspy; chpa epiyapy; ,d;nlf;l; fz;lrk; (INTACT) ,Ug;gij ghh;j;njhk;. vdpDk; nkny Fwpf;fg;gl;oUe;j tyJ nky;/ tyJ fPH;/ ,lJ nky;/ ,lJ fPH; Mfpaitfspy; fhzg;gl;l vGj;Jf;fs; kw;Wk; vz;fs; bjspthf ,y;yhj fuhzj;jpdhy; ,e;j rPy;fis khjphp rPy;fs; Xg;gpl;L ghh;j;J mitfspy; cz;ik epiyia gw;wpTw ,aytpy;iy." 20. In the Chief Examination, the Expert has deposed as follows: "bghWj;jg;gl;l rPy;fspy; fhzg;gLk; gjpg;g[f;fs; kw;Wk; thh;j;ijfs; mijg; bghWj;Jk; mYtyh; mth; bfhLf;Fk; mGj;jj;ij bghWj;J." 21. The service connection was given in the year 1994. Tampering of meter can be presumed if the seals and the nuts are removed. Consequently, there would be a creation of artificial means for abstraction of electrical energy. The evidence available on record is the report of the Inspecting Team and the Meter Rely Test report conducted by the Assistant Engineer of the Department. Though APTS has reported that the seals were prima facie found to have been tampered with and that there was a difference, the Forensic Expert has categorically opined that all the four seals of the meter, alleged to have been tampered with, were intact and that he was also not in a position to offer his opinion as to the genuineness of the seals. The purpose of getting an opinion of an expert is to ascertain the correctness of a report, adversely drawn up by the departmental officials. If mere test report alone is sufficient to prove tampering, then there is no need to go in for an expert's opinion. Therefore, it is obvious that the department was not sure of their assessment about tampering of the seals. 22. When there is a glaring contradictory opinion, regarding the genuineness of the seals, this Court is of the view that mere statement of the department officials alone is not sufficient to bring home the guilt of tampering with the meters. The Statement or the report of the officials should be supported by some acceptable evidence. If mere statements are to be taken as the basis for prima facie conclusion of an offence of theft, then the report of the Forensic Expert, would be redundant. 23. Perusal of the materials on record shows that the Department had fixed legible seals with numbers 130722 to 130725 with LAB, 57, CEDC and on the other side, marked as TNEB with CPT, MRT and LAB. According to the department, markings are not clear and smudged. Though the Forensic Expert has neither confirmed nor rejected the genuineness of the seals, yet the appellate authority, considering the said aspect, observed that as the seals did not carry distinct letters/digit impressions for comparison with those on the sample seals, the opinion of the Forensic Expert would not lend support to the case of the petitioner. It should be noted that the contention of the petitioner that smudging of distinct letters/digit impressions depends upon the pressure applied at the time of fixing of the meter, is also supported by the version of the witness. 24. It is also the contention of the petitioner that due to the passage of time, there is every possibility that the letters/numbers getting defaced and therefore, on mere surmises and conjectures, an adverse finding cannot be recorded. The department is not to able to explain as to when seals were found intact, whether act of tampering could be prima facie presumed, just because the impressions are not clear. 25. It is well settled that when the correctness of a departmental action is adjudicated under judicial review, Courts are only to see as to whether there is any preponderance of probability and whether the decision making process has been duly followed in a fair and reasonable manner. If there is perversity on the face of the record, then Courts would not hesitate to strike down the findings. 26. If the findings recorded by the respondents, regarding tampering are to be accepted, then creation of artificial means, to extract electrical energy, can be presumed. Tampering in meter, constitutes creation of artificial means for extraction of electrical energy and for that purpose, it is sufficient to raise presumption, as the meter is in the custody of the consumer. Once the existence of artificial means is proved, then it is the bounden duty of the consumer to prove that such artificial means, was not applied for the purpose of extraction of energy. 27. When the Forensic Expert has given an opinion that the seals are intact and that he is not in a position to offer any opinion as to whether it is genuine or not, whether such evidence can be ignored, while arriving at the prima facie conclusion of theft of electrical energy. A bare reading of Section 135 of the Indian Electricity Act, shows that if it is proved that any artificial means or means not authorised by the licencee, exists for the abstraction, consumption or use of energy by the consumer, then it shall be presumed, until contrary is proved that pilferage of electricity is possible. Primarily, it is for the Electricity Department to prove that existence of any artificial means or means not authorised by the licencee to extract energy. 28. No doubt, the meter alleged to have been tampered was in the control of consumer, but at the same time, to bring home the guilt of abstraction of energy, it is the duty of the department to prove the existence of artificial means or devise of abstraction, which would inevitably lead to the prima facie conclusion that he was responsible for the theft. The contention of the respondents that some numbers of digit impressions are not clear or smudged and therefore, that would constitute tampering of meter, cannot be accepted in the light of the expert's clear evidence that seals are intact. Unless there is tampering of meter, no prima facie conclusion of pilferage