IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 OP.No. 13833 of 2003(V) ----------------------- PETITIONER(S): --------------- BRO. PHILIP CST, PRINCIPAL, ST. GEORGE'S ITC, NJARUKUTTY, THODUPUZHA-685 584. BY ADV. SRI.WILSON URMESE RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, THODUPUZHA. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION NO.11, THODUPUZHA. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 9/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 13833/03. APPENDIX PETITIONER(S)' EXHIBITS: P1. COPY OF THE ORDER DTD.24.1.02. P2. COPY OF THE BILL DTD.30.1.02. P3. COPY OF THE ORDER DTD.NIL. P4. COPY OF THE LETTER DTD.28.3.03. P5. COPY OF THE BILL DTD.28.3.2003 OF R3. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 13833 of 2003 ================== Dated this the 9th day of September, 2009 J U D G M E N T The petitioner is the principal of St.George's Industrial Training Centre at Muthalakodam. The institution is a consumer of electricity under consumer No.5168 under Electrical Section II, Thodupuzha. The petitioner executed a minimum guarantee agreement on 25.7.1996 with the Kerala State Electricity Board for installing a 100 KVA transformer for power supply to the institution, for which connection was given on 3.12.1997. While so, by order No.REC/TVM/29/97- 98/306, the Chief Project Manager, REC Thiruvananthapuram, ordered that all line extensions which are energised during 1.4.1996 to 31.3.1998 coming under the jurisdiction of the Electrical Major Section, Thodupuzha, are included in the REC scheme for waiver for minimum guarantee liabilities. Relying on that order, the petitioner applied for waiver of minimum guarantee liabilities. That application was allowed by Ext.P1 order dated 24.1.2002 and the petitioner was exempted from the minimum guarantee liability. Accordingly, the petitioner was given a revised bill for actual electricity charges, by Ext.P2, fixing the liabilities as on that date. The petitioner was given instalment facility to pay the same. The petitioner paid the instalments regularly. While so, the petitioner was served with Ext.P4 order directing him to pay an O.P.13833/2003 2 amount of Rs.98,290/- being the alleged short assessment of minimum guarantee amount and Ext.P5 bill was issued for the same. The petitioner is challenging Exts.P4 and P5 in this original petition. 2. The petitioner's contention is that the said demand has been issued on the basis of an audit objection from the Accountant General, wherein the Accountant General opined that Ext.P1 order waiving minimum guarantee liability has been issued without jurisdiction. According to the petitioner, the audit objection by itself is not an order cancelling Ext.P1 and unless Ext.P1 order is cancelled by a process known to law, the petitioner cannot be denied the benefit of Ext.P1, notwithstanding the audit objection. The petitioner, therefore, seeks the following reliefs: “i) Call for the records leading to the case; ii) Issue a Writ of Certiorari quashing Exts.P4 & P5; iii) Issue a Writ of Prohibition prohibiting the respondents from collecting any amounts from the petitioner in terms of Exts.P4 & P5. iv) To grant such other reliefs as this Honourable Court may deem fit.” 2. A counter affidavit has been filed by the 2nd respondent, in which, the only contention taken is that the impugned order has been issued on the basis if Ext.R2(a) audit objection of the Accountant General, wherein it has been stated that the waiver of minimum guarantee liability was without proper authority. O.P.13833/2003 3 3. I have considered the rival contentions in detail. 4. The respondents have no case that Ext.P1 order has been cancelled at any time by a process known to law. Even as on today, Ext.P1 order subsists. Without cancelling Ext.P1 order, the petitioner cannot be denied the benefit arising therefrom. As contended by the counsel for the petitioner, the audit objection is not an end in itself. The appropriate authority competent has to take a decision on the objection either canceling Ext.P1 order or confirming the same. Without cancelling Ext.P1 order, no proceedings can be initiated against the petitioner for denying him the benefit of Ext.P1 order. I am supported in this view by a decision of a learned Single Judge of this Court in Usuvathunnisa v. Asst. Educational Officer [1990 (2) KLT 530]. In that decision, an Assistant Educational Officer instructed the manager of an aided school to terminate the services of a teacher on the basis of an audit objection. While setting aside the orders of the Assistant Educational Officer, the learned Single Judge held that the audit objection raised by the Accountant General cannot render the staff fixation order invalid or illegal or render ineffective the approval of appointment of a teacher made pursuant thereto. It was further held that the Accountant General can only point out the illegality in the proceedings. His objections cannot have the effect of nullifying the orders or proceedings taken by the statutory authorities. The ratio of O.P.13833/2003 4 that decision squarely applies to the present case. Here on the basis of an audit objection the benefit given to the petitioner by an order by the competent authority is proposed to be taken away from him. Unless a person competent to nullify Ext.P1 order nullifies that order, that too, after a notice and hearing to the petitioner, the petitioner cannot be deprived of the benefit of that order. That being so, Ext.P4 is unsustainable in so far as Ext.P1 subsists even today. Accordingly, the same is quashed. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge O.P.13833/2003 5 S.SIRI JAGAN, J. ================== O.P.No. 13833 of 2003-V ================== J U D G M E N T 9th September, 2009