Pronounced on 2nd August, 2011 ORDER PER VINEETA RAI, MEMBER The present revision petition has been filed by Uttari Haryana Bjli Vitran Nigam Ltd. (hereinafter referred to as the ‘Petitioner’) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’) in favour of Baldev Sharma (hereinafter referred to as the ‘Respondent’) who was the original complainant before the District Forum. The facts of the case according to the Respondent are that he had an electricity connection bearing No.YM-13-1374 and was paying his bills regularly. On 12.07.2005, some officials of the Petitioner/Company visited his premises to check his electricity meter and the officials of the Inspecting Team did not point out anything wrong with the meter whose seals were also found intact. These officials however, obtained the signature of the Respondent on some papers on the pretext that it was a routine checking. Immediately, thereafter Respondent received a memo dated 12.07.2005 wherein it was alleged that he was guilty of commission of theft of electricity. Since meter was found slow and the seals of the meter were also tampered with, he was asked to deposit Rs.16,000/- as penalty for the same. Respondent visited the office of the Petitioner/Company several times to complain against the wrong imposition of the penalty upon which he was threatened that if he did not deposit the penalty amount electricity would be disconnected. To avoid this, Respondent deposited the penalty amount under oral protest. However, because he had not committed any theft of electricity and no opportunity of hearing was given to him in contravention of the relevant provisions of the Electricity Act, 2003 before imposing the penalty, Respondent filed a complaint before the District Forum inter alia alleging that the checking report was prepared by the officials of the Petitioner/Company while sitting in the office of the checking squad and to which there was no witness and also no notice was given to him to be heard before imposing the penalty as required under the statute. Further that any infirmity of the meter could be determined only with the approval of the Electrical Authority to whom his case was never put up. Respondent, therefore, requested that directions be issued to the Petitioner/Company to refund him Rs.16,000/- by quashing the demand note dated 12.07.2005; Rs.2,000/- towards compensation and Rs.3,300/- as costs. Petitioner/Company denied the above contentions and stated that the electricity connection including the meter were checked in the presence of the Respondent and as per checking report, it was found that the accuracy of the meter was approximately 70% slow, the lid of the MCB cover was found in an open position and two firm seals of the meter body i.e. laced wires of meter body seals were cut and refixed with some adhesive material with sharp needle/player etc. The above findings established the fact that the Respondent had tampered with the meter for stealing energy and, therefore, it was a clear case of theft. The supply was, therefore, disconnected, the meter removed, packed in a paper-seal and duly signed by the checking officials as well as the Respondent. The theft of electricity was assessed at Rs.16,000/- and the Respondent in fact admitted that this was correct and had even deposited the amount without any protest. The subsequent complaint is, therefore, an afterthought and not based on correct facts. The District Forum after hearing both parties and considering the evidence on record allowed the complaint on the grounds that the meter was not checked in the ME Lab and in violation of the statutory provisions without being given an opportunity of being heard a penalty of Rs.16,000/- was suo moto imposed on the Respondent. It, therefore, directed the Petitioner to refund the Respondent Rs.16,000/- deposited by him along with 7% interest from the date of deposit till its realization and Rs.1,000/- as compensation. Aggrieved by this order, the Petitioner/Company filed an appeal before the State Commission which dismissed the same by observing that the Petitioner sought to test the meter on-the-spot instead of in the M&T Lab, and that no official of the M&T Lab had accompanied the Inspecting Team. In the absence of this, it was not possible for the Petitioner to have concluded that the seals had been tampered with. There was thus no doubt that an unauthorized procedure had been adopted by the members of the Inspecting Team. Apart from this, the correct procedure was also not followed for assessing the loss or compounding the offence. In this connection, the relevant part of the order of the State Commission read as follows: “A bare reading of Section 135 of the Act, 2003 shows that it not only defines theft of energy but also prescribes the punishment of three years or fine or both. It is provided under Section 152 of the Act, 2003 that an appropriate Government or any officer authorized by it can be empowered to compound the offence in the manner prescribed. It is not the case of the opposite parties that any F.I.R. was registered against the complainant on the allegations made in the inspection note dated 12.07.2005. It is not understandable as to how notice under Section 135 read with Section 152 of the Act, 2003 bearing the above stated memo giving an offer of compounding of offence of theft whereby demand of Rs.16,000/- has been determined to be payable by the complainant as mentioned in the notice had been issued to him, when it is not the case of the opposite parties that the complainant had approached them for compounding the same. It means that the Assessing Officer unilaterally at the first instance passed the order of assessment and thereafter had given option to the complainant for compounding the same. These circumstances lead to the only conclusion that the Assessing Officer with a pre-determined mind has compounded the offence. In this regard it has to be kept in mind that the complainant had not asked the opposite parties for compounding the offence at any stage as he has challenged the legality of the demand made in the memo No.SPL-I dated 12.7.2005 by filing the present complaint.” Hence, the present revision. Counsel for both parties were present and essentially reiterated the submissions made by them respectively before the Fora below. Counsel for Petitioner while admitting that no notice for compounding had been issued, however, stated that the fact that theft had been committed by the Respondent is proved because the checking of the meter was done in the presence of the Respondent and he had signed the same on the copy of the inspection report. Further, Respondent instantly deposited Rs.16,000/- having acknowledged theft of electricity on his part. Counsel for Respondent on the other stated that both the procedure for assessment and compounding in the present case as observed by the State Commission was not as per the provisions of the Electricity Act, 2003 and, therefore, the Fora below have rightly ruled in favour of the Respondent. Further, there is a ruling of the National Commission in a bunch of Revision Petitions [Dakshin Haryana Bijli Vitran Nigam Ltd. & Ors. Vs. Megh Raj & Ors. (R.P. No.3144 of 2007, decided on 11.09.2008], wherein it has been clearly stated that the power under Section 152 of the Act can be exercised if a consumer or person who has committed and who is reasonably suspected of having committed theft of electricity, applies for compounding of the offence following which the officer concerned is empowered to compound the offence by charging the amount as provided in the table stated under Section 152. In the instant case, since no notice was issued to the Respondent in connection with compounding of the offence, obviously the Respondent did not have the opportunity to apply for compounding of the same. In view of this, we agree that the Fora below were right in concluding that the Petitioner/Company acted in violation of the relevant provisions of the Electricity Act by not following the procedures stated therein both in respect of inspecting the matter and compounding the offence and were thus guilty of deficiency in service. We, therefore, see no ground for accepting the revision petition and the same is dismissed accordingly with no order as to costs. |
