IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10765 of 2009 Madan Prasad, son of Late Umesh Chandra Prasad, resident in J-34, P.C. Colony, Kankarbagh, Patna-800 020 Versus 1. The Bihar State Electricity Board through its Chairman, Vidyut Bhawan, Bailey Road, Patna 2. Secretary, Bihar State Electricity Board, Vidyut Bhavan, Bailey Road. 3. Financial Controller, Bihar State Electricity Board, Vidyut Bhavan, Bailey Road. 4. Deputy Director of Accounts (Secretariat), Bihar State Electricity Board, Vidyut Bhavan, Bailey Road. 5. Joint Secretary, Bihar State Electricity Board, Vidyut Bhavan, Bailey Road. ----------- 04/ 21.07.2010 Heard learned counsel for the petitioner and the counsel for the Bihar State Electricity Board (hereinafter referred to as the Board), who has filed supplementary counter affidavit in compliance of my order dated 8.7.2010 placing on record the extract from the issue register dated 4.6.2003, Annexure-M to suggest that the appellate order passed by the Board dated 8.11.2002 was served on the petitioner on 4.6.2003. Perusal of the extract from the issue register dated 4.6.2003 does not indicate that the resolution of the Board dated 8.11.2002 was actually served on the petitioner on that day. It only appears from the extract of the issue register dated 4.6.2003 that the resolution 2 of the Board, bearing No. 1594 was issued/ dispatched to the petitioner, Sri Madan Prasad, Retired Electrical Executive Engineer at his People's Cooperative Colony, Kankarbagh, Patna-20 address. It does not appear from the said extract that the resolution of the Board, bearing No. 1594 dated 4.6.2003, Annexure-K to the counter affidavit was served on the petitioner on 4.6.2003. In the circumstances, I have no reason to disbelieve the statement of the petitioner made in the writ petition that until he filed the writ petition, he was not communicated the result of his memo of appeal. Having held as above, I proceeded to hear the matter on merits. 2. Petitioner is aggrieved by the resolution of the Board, bearing No. 2661 dated 8.11.2002, Annexure-9, whereunder resorting to the powers contained in Rule 43(b) of the Bihar Pension Rules, his 20% pension has been withheld after conclusion of the departmental proceeding with further direction that petitioner shall not be allowed any salary for the suspension period beyond the subsistence allowance, 3 but the said period shall be taken into account for calculating his retiral dues without granting him the benefit of notional increase of increments. 3. It is submitted on behalf of the petitioner that after conclusion of the enquiry proceeding, the Enquiry Officer submitted his report which is dated 21.9.2001 and is contained in Annexure-6 to this application, wherefrom it will appear that petitioner was exonerated of all the charges levelled against him. The authorities of the Board differing with the findings recorded by the Enquiry Officer, proceeded to issue second show cause notice dated 27.6.2002, Annexure-7 giving reasons that after conducting the raid in the premises of the consumer, petitioner did not take any step either for snapping electrical connection of the consumer or for getting the supplementary agreement executed by him for the extra load found during the raid. In this connection, learned counsel for the petitioner, with reference to the instruction of the Board dated 22.8.1995, Annexure-13, submitted that even prior to the conducting of the raid on 27.8.1998, 4 petitioner had asked the consumer under letter dated 31.1.1998, Annexure-12 to get the unconnected motor lying in the corner of the factory premises removed from the corner of the factory premises or to enhance the load for which consumer agreed. Copy of the letter dated 31.1.1998 was also given to the Electrical Superintending Engineer. It is also submitted on behalf of the petitioner that under instruction dated 22.8.1995, Annexure-13, it is within the jurisdiction of the Electrical Superintending Engineer to ensure execution of the supplementary agreement for extra load since the original agreement is signed by and between the consumer and the Electrical Superintending Engineer on behalf of the Board. Petitioner, having learnt that consumer is utilizing extra load before the raid, informed the Electrical Superintending Engineer about the extra load under his letter dated 31.1.1998, 3.2.1998. The Enquiry Officer taking into account the letter dated 31.1.1998, 3.2.1998 coupled with the fact that transformer of 100 KVA with CT of 100/5 Amp. Capacity cannot sustain the load of 622 HP concluded 5 that there was no power theft committed by consumer and exonerated the petitioner of the charges levelled against him. The authorities of the Board without noticing the fact that petitioner had given information about the unconnected motor under letter dated 31.1.1998, 3.2.1998 as also the fact that transformer was of 100 KVA and the consumer was not indulging in power theft, proceeded to issue second show cause notice as also to pass the impugned order withholding the pension of the petitioner by 20% with further direction that during the period of suspension petitioner shall not be paid salary beyond subsistence allowance without serving reasons differing with the aforesaid findings of the Enquiry Officer. In view of the contents of the instruction of the Board contained in letter dated 22.8.1995 and the information given to the Electrical Superintending Engineer by the petitioner under letter dated 31.1.1998, 3.2.1998 and the fact that consumer was not indulging in power theft, learned counsel for the petitioner submitted that the finding of guilt recorded against the petitioner under the impugned 6 order does not appear to be justified and should be set aside. 4. Counsel for the Board has opposed the prayer. He states that the raid was conducted on 27.8.1998 and petitioner should have taken steps either for disconnection of the electric supply or for execution of the supplementary agreement after he conducted the raid and information given to the Electrical Superintending Engineer on 31.1.1998, 3.2.1998 may not suffice for the omission in taking action by the petitioner. 5. Having heard counsel for the petitioner and the Board, I am of the view that the authorities of the Board were aware from before the raid was conducted that unconnected motors are available in the corner of the factory premises of the consumer and on that basis due information was given to the consumer with a copy to the Electrical Superintending Engineer as early as on 31.1.1998, 3.2.1998 advising the consumer to get his tariff converted from Low Tension to High Tension as also to deposit the additional 7 amount in the office of the Assistant Electrical Engineer for execution of the agreement. Petitioner having issued instruction dated 31.1.1998, 3.2.1998 to the consumer with copy to the Electrical Superintending Engineer and appreciating the instructions, Enquiry Officer exonerated the petitioner of all the charges as it was found by him that consumer was not indulging in power theft since transformer was of 100 KVA capacity could not have sustained the alleged load of 622 HP. In view of the aforesaid facts, it is expected of the Disciplinary Authority to have at least considered the defence raised by the petitioner with reference to the letter dated 31.1.1998, 3.2.1998 together with the fact that transformer in the premises of the consumer was of 100 KVA not sufficient to take the load of 622 HP and that consumer was not indulging in power theft but the aforesaid defence of petitioner does not appear to have been considered by the Disciplinary Authority either in the second show cause notice or in the punishment order dated 8.11.2002, Annexure-9. 8 6. In the circumstances, there is no difficulty in concluding that the second show cause notice and the punishment order failed to consider the defence of the petitioner which is found correct by the Enquiry Officer, relevant for being considered before passing the punishment order. Accordingly, I set aside the punishment order 8.11.2002, Annexure-9 and the second show cause notice dated 27.6.2002, Annexure-7 and remit back the matter to the competent authority of the Board to consider the stand of the petitioner taken on the basis of the letter dated 31.1.1998, Annexure-12 to the rejoinder affidavit and another letter dated 3.2.1998 together with the fact that there was no power theft by the consumer as the 100 KVA transformer could not have taken the load of 622 HP in accordance with law and pass appropriate orders as early as possible, in any case within three months from the date of receipt/ production of a copy of this order. 7. The writ application is, accordingly, disposed of. Arjun/ ( V.N. Sinha, J.)