IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WA.No. 785 of 2010() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.31670/2009 Dated 06/11/2009 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER (APTS), KSEB, THIRUVANANTHAPURAM. 3. ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION, PARIYARAM. 4. SRI.PRASAD MATHEW, ASSISTANT EXECUTIVE ENGINEER (APTS), KSEB, PALAKKAD. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENT(S): ------------------------- M/S.LYRIL PLASTICS, ELENJIPARA P.O., CHALAKUDY, REP.BY ITS PROPRIETOR, SRI.P.P.JOY. R1 BY ADV. SRI.JULIAN XAVIER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ ----------------------------------------------------------- W.A No.785 OF 2010 -------------------------------- Dated this the 2nd day of June 2010 ORDER Abdul Rehim, J Respondents in the writ petition are the appellants. The respondent herein filed the writ petition challenging Ext.P13 order, by which penalty under Section 126 of the Electricity Act 2003 was imposed against him, based on an allegation of theft of energy by committing mischief on the Energy Meter. Earlier, when provisional order of penalty was issued, the petitioner approached this court in W.P(c) No.10375/2004. Through an interim order dated 26/03/2004, the petitioner was directed to raise objections against the provisional assessment and the assessing authority was directed to consider such objections. Ext.P9 is the objection submitted in this regard. When the assessing authority took steps to realise the amount without finalizing the assessment, the petitioner moved this court and the Writ Petition was disposed of through Ext.P10 judgment, directing the assessing authority to finalize the matter after affording an opportunity of hearing to the petitioner. Recovery of balance amount was directed to be kept in abeyance till then. Pursuant to Ext.P10 judgment, petitioner again W.A No.785 OF 2010 2 submitted Ext.P11 further objections. As evident from Ext.P12, a personal hearing was afforded by the assessing authority. Minutes of the hearing (Ext.P12) reveals that the petitioner requested for a meeting (interview) of the staff of the section concerned, namely M/sT.K.Krishnan and P.S Gopinathan, who were present at the time of inspection. According to the petitioner, without considering such request the assessment was finalized. The writ petition is filed challenging Ext.P13 order imposing penalty as unsustainable, since the request for cross examination of the staff was not allowed. 2. Learned single Judge observed that, when the petitioner wanted to cross examine members of the squad who prepared the Mahazar, he was entitled for such an opportunity. It is further observed that even though request in Ext.P12 is not properly worded, still it is evident that what was intended by the petitioner is cross examination of the members of the squad. Learned single Judge found that the assessing authority has not granted such an opportunity and the denial will amount to violation of principles of natural justice. Hence Ext.P13 is quashed and the 3rd respondent(third appellant herein) was directed to finalise the matter after affording an opportunity to the petitioner W.A No.785 OF 2010 3 to cross examine the two persons mentioned in Ext.P12 and to adduce evidence on his side. The 3rd respondent was also directed to ensure availability of those persons on the date to be fixed for facilitating cross examination by the petitioner. 3. Shri. C.K.Karunakaran, learned standing counsel appearing for the appellant Board assailed the judgment on various grounds. It is contended that there was no specific request from the side of the petitioner for cross examination of the persons mentioned in Ext.P12. Further contention is that, even assuming that there was any such request, the same need not be allowed in all cases in view of the statutory provision in Section 126. It is pointed out that the wordings of Section 126(3) is only to the effect of “affording a reasonable opportunity of hearing”. At the same time he concede that depending on the facts and circumstances of each case, the assessing authority is at liberty to decide whether cross examination need be allowed or not. Learned counsel further contended that even assuming that there is denial of any such opportunity, the petitioner can raise it as a ground to assail the impugned assessment in the statutory appeal provided under Section 127 of the Electricity Act 2003, but could not seek quashing of the assessment by resorting to the W.A No.785 OF 2010 4 remedy of a writ petition. 4. In this regard, learned counsel has pointed out decision of the honourable Supreme Court in Transmission Corporation of A.P Ltd. & Others Vs. M/s Shri Rama Krishna Rice Mill (CDJ 2006 S C 173). Analysing the provisions contained in the 'Terms and Conditions of Supply' formulated by the State of Andhra Pradesh, which according to the counsel is in parimateria with the provisions of Section 126 and the 'Terms and Conditions of Supply' formulated by the State of Kerala, the honourable Supreme Court observed that the nature of adjudication contemplated is some what different from an enquiry under Article 311(2) of the Constitution and it cannot be laid as a Rule of universal application that a right of cross examination is inbuilt . It is further held that in order to establish that a cross examination is necessary, the consumer has to make a case for the same. 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 either grant the request or pass a reasoned order if he chooses to reject the application. In that event, when an adjudication is concluded, it shall be open to the consumer to establish before W.A No.785 OF 2010 5 the Appellate Authority as to how he has been prejudiced by refusal of granting an opportunity to cross examine. It is further observed by the honourable Supreme Court that in a case where reliance is only on the accounts prepared by a person, cross examination may not be necessary. But, when it is based on reports alleging tampering or pilferage, the fact situation may be different. It is further held that request for cross examination are not to be filed in routine manner and equally it should not be disposed by an adjudicator in a casual or routine manner. There has to be proper application of mind as well as the consumer has to show as to why cross examination is necessary. 5. In the case at hand, it is controversial as to whether there was any specific request for cross examination. However, as observed by the learned single Judge, eventhough not properly worded, Ext.P12 minutes reflects that the petitioner requested for a meeting(interview) with the staff concerned who were present at the time of inspection. The learned single Judge took a view that it can only be presumed as a request for cross examination. On an active consideration, we don't feel that the view taken is patently wrong or erroneous. The question to be considered is whether there was denial of an opportunity to cross-examine. W.A No.785 OF 2010 6 Going by Ext.P13 impugned proceedings, we notice that the assessing authority has not even referred to such a request. According to the appellants, the assessing authority never construed the request as a request for cross examination. Since we are concurring with opinion of the learned single Judge, it is to be hold that there was denial of opportunity. 6. The next question is as to whether the impugned order need be set aside, even assuming that there was any such denial of opportunity. Relying on the decision of the honourable Superme Court cited supra, learned counsel for appellant argued that, at the most the petitioner is entitled to raise it as a ground in the statutory appeal and the impugned order is not liable to be quashed in a writ petition. We find some force in the argument based on the observations contained in the decision of the honourable Supreme Court. But per contra Shri.Julian Xavier learned counsel for the respondent/petitioner brought to our attention the facts of this case and the Mahazar prepared at the time of inspection, which states that it is only a case of suspected theft. He contended that in such circumstances cross examination of those who witnessed the inspection is an absolute necessity, but for which the truth could be brought out. The order W.A No.785 OF 2010 7 imposing penalty issued without affording such an opportunity is liable to be quashed, is the contention. In the case at hand the assessing authority has not even referred to about any such request, nor he had taken a decision whether to allow or deny such request. The learned single Judge in exercise of his discretion vested under Article 226 thought it fit that the petitioner should be afforded with an opportunity for cross examination of the staff concerned, in order to elucidate the correct factual position which is in dispute. The learned single Judge could have also taken another view by relegating the petitioner to the appellate authority for agitating the ground with respect to denial of opportunity. But we find nothing wrong in the view taken, since the finding is about violation of natural justice, which will render the impugned order totally unsustainable. 7. However, we make it clear that the directions contained in the impugned judgment and the opportunity afforded in this case shall not be taken as a precedent to content that in all cases it is incumbent on the part of the assessing authority to afford opportunity of cross examination, or to contend that if there is any denial of such an opportunity the assessment need be quashed, without resorting to statutory remedy of appeal. W.A No.785 OF 2010 8 7. As observed above, on the facts and circumstances available in this case, we are of the considered opinion that there is no infirmity in the findings of the learned single Judge warranting interference. Accordingly the Writ Appeal fails and the same is dismissed. Sd/- PIUS C. KURIAKOSE, J Sd/- C.K.ABDUL REHIM //TRUE COPY// P.A TO JUDGE vdv