IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 3811 of 2006(D) --------------------------------------- PETITIONER: -------------------- K.C.SIVAN ACHARY, MANJULAS HOUSE, ETTUMANOOR 686 631,(ASSISTANT ENGINEER RETD.) ELECTRICAL SECTION, KIDANGOOR, P.P.O. NO.30144. BY ADV. SRI.C.VIVEK RESPONDENTS: ------------------------- 1. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, PALA. 2. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. NEERAKKAL GLOCES (P) LTD., REP. BY ITS MANAGING DIRECTOR, MARAGATTUPPILLY, KOTTAYAM 686 635. BY ADV. SRI. K.S.ANIL, SC, KSEB - R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3811/2006 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORDER PASSED BY THE HONOURABLE HIGH COURT IN W.P.NO.28286 OF 2005 (P) DTD. 05/10/2005. EXT.P2: ORDER PASSED BY THE HONOURABLE HIGH COURT IN CONTEMPT CASE NO.1564 OF 2006(S) DTD. 12/01/2006. EXT.P3: IMPURGNED ORDER. EXT.P4: ORDER PASSED BY THE HONOURABLE HIGH COURT IN WP(C) NO.735 OF 2006 (K). EXT.P5: COPY OF THE RECEIPT OF PAYMENT MADE BY THE THIRD RESPONDENT. EXT.P6: COPY OF LETTER DTD. 24/01/2007 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V. GIRI, J. ------------------------------- WP(C).NO. 3811 of 2006 --------------------------------- Dated this the 15th day of July, 2008. JUDGMENT While working as Assistant Engineer, the petitioner retired from service on 30.9.2002. Apparently, an inspection conducted by the Anti Power Theft Squad in the premises of the third respondent, the consumer in the Electrical Section, Kidangoor from where the petitioner had retired from service revealed that the multiplication factor was wrongly applied to the meter installed in the premises of the consumer. This resulted in issuance of an additional invoice to the consumer, to the tune of Rs.8,12,579/-. The Board made an attempt to recover the said amount from the petitioner and this was challenged in WPC.28286/2005. The order by which the demand was made was set aside and the Board was directed to pass a fresh order vide Ext.P1 judgment. 2. A fresh order was passed by the respondents vide Ext.P3. An amount of Rs.79,303/- stated to be the short assessment of electricity charges from August to September, WPC. 3811/2006 2 2002 ( that is the period during which the petitioner was the Assistant Engineer) was fixed as the liability of the petitioner. Ext.P3 has been challenged in this writ petition. In the meanwhile, none of the retirement benefits due to the petitioner have been disbursed . The petitioner refers to Ext.P4 judgment, which is a writ petition filed by the consumer, the third respondent. The fixation of multiplication factor was 40 and the consequent short assessment and subsequent amount seeking to recover the differential charges from the consumer has been upheld by this court and it seems that the consumer was only granted a facility of paying the amount in instalments. Learned counsel for the petitioner refers to Ext.P6, which is a communication issued by the consumer to the Board indicating that the amount due from the consumer in its entirety has been paid and the demand stood satisfied long ago. This is intended to convey that apparently the Board did not suffer any loss on account of the short assessment of energy charges and levy thereof from the third respondent. If that be so, there is no reason why any amount should be treated as the petitioner's liability as has been done under Ext.P3. WPC. 3811/2006 3 3. A counter affidavit has been filed by the respondents and a reply affidavit has been filed by the petitioner. I heard learned counsel for the petitioner and the learned counsel for the Board. Learned counsel for the Board submits that even if the energy charges as such has been recovered from the consumer, there is a question of delay in payment giving rise to the claim for interest at the instance of the court and therefore the petitioner should be required to satisfy the said claim for interest for the amount which is fixed as a liability under Ext.P3. I cannot accept this submission. Assuming that the Board had a claim for interest, there was nothing which stood in the way of recovering the same from the consumer. If they have done it, obviously there cannot be any residual liability on such amount, which can be attached to the petitioner . If they have not done it, taking note of the fact that the additional invoice itself was issued only after the petitioner's retirement, the petitioner cannot be held responsible for the lapse if any in that regard. 4. There is yet another fact on which stands in the way of accepting the Board's submission in this regard. After all the amount due to the petitioner by way of retirement benefits WPC. 3811/2006 4 would be higher than Rs.79,303/- which is the amount that is fixed as the petitioner's liability under Ext.P3. None of the retirement benefits due to the petitioner has been disbursed, according to the petitioner. If that be so, to allow the Board to prosecute the claim for interest against the petitioner for a similar amount would work out injustice. 5. For all these reasons the writ petition is allowed. The Board is directed to disburse to the petitioner the entire retirement benefits due to him within one month from the date of receipt of a copy of this judgment. The amount treated as liability under Ext.P3 shall not be recovered from the said amount due to the petitioner. In other words, Ext.P3 shall not be enforced as against the petitioner. If the amount due to the petitioner is not disbursed within the aforementioned period, it shall carry interest at the rate of 9% from the expiry of the said one month period. V. GIRI, JUDGE. Pmn/ WPC. 3811/2006 5