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CASE NO.: Appeal (civil)  2137 of 2000

PETITIONER: Transmission Corporation of A.P. Ltd and Ors

RESPONDENT: M/s Sri Rama Krishna Rice Mill

DATE OF JUDGMENT: 20/02/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       Challenge in this appeal is to the legality of the judgment rendered  by a Division Bench of the Andhra Pradesh High Court. The controversy  lies within a very narrow compass and, therefore, the factual position  needs to be noted in brief. The appellant No.1-corporation is the  successor company of the erstwhile Andhra Pradesh State Electricity  Board (in short the ’Board’).

       The business premises of the respondent were inspected by the  officials of the appellant No.1-Corporation. The respondent was a low  tension category consumer. On 10.9.1993 a provisional assessment was  made alleging pilferage of energy and a sum of Rs.27,610/- was  demanded. It was indicated to the respondent that if it wanted to avoid  disconnection it should deposit 50% of the amount fixed on provisional  assessment. The same was deposited. On 15.12.1993 a show cause  notice was issued proposing to charge Rs.1,41,270/- on final  assessment. The respondent filed its objection. On 29.9.1998 the final  assessment was made confirming the amount indicated in the show  cause notice.

       Appeal as provided under the Terms and Conditions of Supply of  Electrical Energy of the Andhra Pradesh State Electricity Board was filed.  The said Terms and Conditions of Supply were notified by the Board in  exercise of powers conferred by Section 49 of the Electricity (Supply) Act,  1948.  A prayer was made to grant opportunity to cross examine certain  officials of the appellant No.1-Corporation on the basis of whose  statements the final assessment was made. By order dated 6.3.1999 the  request was declined on the ground that there was no provision for such  a prayer being accepted. A Writ Petition was filed before the High Court.  While hearing the matter on the issue, learned Single Judge noted that  there were inconsistent views expressed by different learned Single  Judges. This is how the matter was referred to a Division Bench. By the  impugned order the High Court noted that there was no dispute that the  amount on being determined by the final assessment on the ground of  alleged pilferage if recovered would result in civil consequences.  Therefore, the enquiry being quasi judicial in nature fair play is required  and fair play implies the fair opportunity which includes cross  examination of persons whose statements were going to be relied by the  authorities. The High Court accordingly held as follows:

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"In the instant case, if the authorities are relying only  on accounts and not on any statements or reports,  may be the cross examination of any person who has  prepared the accounts is not necessary. But if any  statement or report is made pointing out the act of  pilferage, the petitioner shall be entitled to call the said  person for cross examination".      

       Learned counsel for the appellants submitted that the High Court’s  view about the desirability of granting opportunity for cross examination  is not supportable in law. According to him, the officers have no personal  interest in the matter and, therefore, their statements are to be  considered in the proper perspective by the authority making the final  assessment. There was no question of any cross examination of such  persons. Strong reliance was placed on a decision of this Court in  Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board and Ors. (1998  (4) SCC 470), more particularly, paragraphs 39 and 43.  With reference  to a decision of this Court in The New Prakash Transport Co. Ltd. v The  New Suwarna Transport Co. Ltd. (1957 SCR 98) it was submitted that  the Terms and Conditions of Supply do not envisage grant of an  opportunity for cross examination as the procedure provided for does not  contemplate of anything like recording oral evidence and receiving  documentary evidence in the normal way as in Courts of law. What is  necessary is granting a fair and proper hearing and this has been done.  With reference to another decision of this Court in Nagendra Nath Bora  and Anr. V Commissioner of Hills Division and Appeals, Assam and Ors.   (1958 SCR 1240) it was submitted that as in the said case, the rules in  the present case make no provisions for the reception of evidence oral or  documentary and even for issuing of any notice; therefore also the High  Court was not right.  Finally, with reference to a decision of this Court in  The State of Jammu and Kashmir and Ors v. Bakshi Gulam Mohammad  and Anr. (1966 Suppl. SCR 401) it was submitted that the right to  hearing did not include the right to cross examine and the right must  depend upon the circumstances.  

       In response, learned counsel for the respondent submitted that  Clause 39.9.2 provides for grant of a "reasonable opportunity" to the  consumer. If the statements of the officers are to be relied upon without  being tested by cross-examination, the consumer will be highly  prejudiced and, therefore, the right to cross-examine them is in built in  clause 39.9.2 of the Terms and Conditions of Supply. Clause 39.9.2  deals with final assessment. Sub-clauses (1) to (3) thereof are extracted  below for ready reference :

39.9.1  After the provisional assessment notice is served upon  the consumer as mentioned in clause 39.3 thereof.   The Officer authorized in this behalf by the Board (see  statement referred to in clause 39.4 above) shall issue  a show cause notice in the forms prescribed therefore  advising the consumer to file his representation, if any,  within 30 days from the receipt of the notice. 39.9.2  The said officer of the Board shall, after the expiry of  the aforesaid notice period, enquire into the matter  and after giving reasonable opportunity to the  consumer and taking into account all relevant facts  and circumstances shall decide whether the consumer  has committed malpractice or pilferage of energy and if  so satisfied proceed to assess to the best of his  judgment, the loss sustained by the Board on account  of such malpractice or pilferage of energy by the  consumer.  The consumer may be represented by an  advocate or any other person at the time of personal  hearing provided the consumer files proper

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Vakalatnama or power of Attorney as the case may be. 39.9.3  The final assessing authority shall then pass an order  setting out his conclusions and the reasons thereof  and communicate a copy of the order to the consumer  and demand the amount, if any, due from the  consumer on the basis of such order after giving credit  to the amounts paid by him.

       At this juncture, it is to be noted that in paragraph 39 of   Hyderabad Vanaspathi’s case (supra) what was observed by this Court  was in relation to disconnection and for that purpose reliance was placed  on an earlier decision of this Court in M.P. Electricity Board v. Harsh  Wood Products (1996 (4) SCC 522). At the stage of issuing notice of dis- connection there is no question of granting any opportunity to the  consumer. On the basis of prima facie view of the concerned officer,  notice of disconnection is issued. In that context it was held both in M.P.  electricity Board’s and Hyderabad Vanaspathi’s cases (supra) that the  procedure laid down was not in violation of the principles of natural  justice. So far as paragraphs 43 of Hyderabad Vanaspathi’s case (supra)  is concerned, that related to the absence of personal lis or interest of  adjudicator. In that background it was held that merely because the  departmental authority was adjudicating there was no prejudice  involved. Those principles are not of any assistance in the present case.  In the case at hand without even granting of an opportunity to the  respondent, the final order of assessment was passed. Merely taking note  of the objection filed cannot be said to be compliance of the provisions  contained in Clause 39.9.2. Therefore, the respondent had made a prayer  before the appellate authority. The parameters of the principles of  natural justice cannot be covered by any straight-jacket formula. It  would vary depending upon the circumstances involved. It is true that  the Terms and Conditions of Supply did not contemplate anything like  recording oral or documentary evidence in the way as is normally done in  the Courts of law. But the Clause 39.9.2 itself provides for a reasonable  opportunity being granted. What would be a reasonable opportunity  would also depend upon the fact situation.  In Advanced Law Lexicon by  P. Ramanatha Aiyar (3rd Edition, Vol.4 page 3959 and 3968) the word  "reasonable" has been described as follows:

               "(i)    What is ’fair’ and proper under the circumstances. (ii)    The expression "reasonable" is not susceptible of  a clear and precise definition. A thing which is  reasonable in one case may not be reasonable in  another. Reasonable does not mean the best, it means  most suitable in a given set of circumstances.

(iii) There is no point on which a greater amount of  decision is to be found in Courts of law and equity  than as to what is reasonable : It is impossible a priori  to state  what is reasonable as such in all cases.  You  must have the particular facts of each case established  before you can ascertain what is meant by reasonable  under the circumstance \026 Lord Romilly. M.R.  Labouchere v. Dawson, (1872), LR 13 Eq.CA.325.

In Khem Chand v. Union of India (AIR 1958 SC 200) a Constitution  Bench of this court explained the meaning of ’reasonable opportunity’  thus in the context of Article 311(2) of the Constitution of the, 1950 (in  short the ’Constitution):

(a)     an opportunity to deny his guilt and  establish his innocence\005.

(b)     an opportunity to defend himself by cross-

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examining the witnesses produced against  him and by examining himself or any  other witnesses in support of his defence;  and finally

(c)     an opportunity to make his representation  as to why the proposed punishment  should not be inflicted on him\005."

The nature of adjudication under Clause 39.9.2 of Terms and  Conditions of Supply is some what different from an enquiry under  Article 311(2) of the Constitution.   It cannot be laid down as a rule of  universal application that whenever the statement of departmental officer  is pressed into service for the purpose of adjudication, a right of cross  examination is in built. On the other hand,   what was said in Bakshi’s  case (supra) has also really no relevance because that was a case where  no penal consequences were involved and the Commission was only a  fact finding Commission and, therefore, is clearly distinguishable  of  facts.  

In order to establish that the cross examination is necessary, the  consumer has to make out a case for the same. Merely stating that the  statement of an officer is being utilized for the purpose of adjudication  would not be sufficient in all cases. 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 have to either  grant the request or pass a reasoned order if he chooses to reject the  application.  In that event an adjudication being concluded, it shall be  certainly open to the consumer to establish before the appellate authority  as to how he has been prejudiced by the refusal to grant opportunity to  cross-examine any official. As has been rightly noted by the High Court  in the impugned judgment where the reliance is only on accounts  prepared by a person, cross examination is not necessary. But where it is  based on reports alleging tampering or pilferage, the fact situation may  be different. Before asking for cross examination the consumer may be   granted an opportunity to look into the documents on which the  adjudication is proposed. In that event, he will be in a position to know  as to the author of which statement is necessary to be cross-examined.  The applications for cross-examination are not to be filed in routine  manner and equally also not to be disposed of by adjudicator in casual or  routine manner. There has to be application of mind by him. Similarly,  as noted above, the consumer has to show as to why cross examination  is necessary.  

In the instant case the respondent had not indicated as to why the  cross-examination was necessary.  If a fresh application is made, the  same shall be duly considered by the appellate authority, keeping in view  the principles indicated above. The appeal is accordingly disposed of. No  costs.