Cheque bounce case - burden of proof - mere non mentioning in the complaint that towards credit of grossary the accused issued empty cheques - can not be burshed aside the evidence of the Pw1 - burden of proof lies on the accused .

18. In the present case, by examining himself as PW-1, the
complainant has discharged the initial burden cast upon him
that the cheques were issued for the rice bags purchased on
credit. With the examination of PW-1, the statutory
presumption under Section 139 of the Act arises that the
cheques were issued by the respondent-accused for the
discharge of any debt or other liability in whole or in part. The
courts below disbelieved the evidence of the complainant on
the ground that there are no averments in the complaint that
the commodities were sold for cash and that the rice bags were
sold on credit and the cheques were issued for the goods sold
on credit. Though the complaint contains no specific
averments that the cheques were issued for the purchase
made on credit, in his evidence, PW-1 clearly stated that the
cheques were issued for the commodities purchased on credit.
The courts below erred in brushing aside the evidence of PW-1
on the ground that there were no averments in the complaint as
to the purchases made by cash and purchase. The courts
below also erred in not raising the statutory presumption under
Section 139 of the Act that the complainant received the
cheques to discharge the debt or other liability in whole or in
part.
19. It is for the respondent-accused to adduce evidence to
prove that the cheques were not supported by consideration
and that there was no debt or liability to be discharged by him.
The receipts-Ex.-22/C (colly) relied upon by the respondentaccused do not create doubt about the purchases made on
credit and the existence of a legally enforceable debt for which
the cheques were issued. The courts below erred in saying
that by the receipts-Ex.22/C (colly), the respondent-accused
has rebutted the statutory presumption raised under Section
139 of the Negotiable Instruments Act. The oral and the
documentary evidence adduced by the complainant are
sufficient to prove that it was a legally enforceable debt and that
the cheques were issued to discharge the legally enforceable
17
debt. With the evidence adduced by the complainant, the
courts below ought to have raised the presumption under
Section 139 of the Act. The evidence adduced by the
respondent-accused is not sufficient to rebut the presumption
raised under Section 139 of the Act. The defence of the
respondent that though he made payment for the
commodities/rice bags, the blank cheques were not returned by
the appellant-complainant is quite unbelievable and
unacceptable. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside. The
respondent-accused is convicted under Section 138 of the
Negotiable Instruments Act in both the complaints; however,
considering that the cheque transaction was of the year 2003,
at this distant point of time, we do not deem it appropriate to
impose any sentence of imprisonment on the accused.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.61-62 OF 2011
M/S SHREE DANESHWARI TRADERS …..Appellant
VERSUS
SANJAY JAIN AND ANOTHER ….Respondents
J U D G M E N T
 R. BANUMATHI, J.
These appeals arise out of the judgment dated
28.07.2008 in Criminal Appeal Nos.53 and 54 of 2006 passed
by the High Court of Bombay in and by which the High Court
dismissed the appeals filed by the appellant-complainant
thereby upholding the acquittal of the respondent-accused
Sanjay Jain under Section 138 of the Negotiable
Instruments Act.
2. Brief facts which led to filing of these appeals are as
under:-
1
The appellant-complainant had been supplying the
commodities and rice bags to the respondent-accused on his
request. In this regard, the respondent-accused issued various
cheques which when presented for collection were
dishonoured. The appellant had filed two complaints under
Section 138 of the Negotiable Instruments Act - complaint
No.339/OA/NI/2004/A and complaint No.499/OA/NI/2004/A
against the respondent-accused alleging that the cheques
issued by the respondent-accused in lieu of payment owed to
the appellant were dishonoured on presentation. It was
averred that despite issuance of legal notice, the respondent
did not make payments.
3. In case No.339/OA/NI/2004/A, the respondent-accused
issued three cheques drawn on UTI Bank details of which are
as under:-
-------------------------------------------------------------------------------------------
Date Number Amount
-------------------------------------------------------------------------------------------
1. 08.08.2003 002497 Rs.17,540.00
2. 18.08.2003 002463 Rs.17,871.00
3. 25.08.2003 002480 Rs.17,760.00
-------------------------------
 Total = Rs.53,171.00
2
4. In case No.499/OA/NI/2004/A, the respondent-accused
issued nine cheques, details of which are as under:-
Date Number Amount
-------------------------------------------------------------------------------------------
1. 01.09.2003 002481 Rs.18,000.00
2. 15.09.2003 633427 Rs.20,000.00
3. 22.09.2003 633428 Rs.20,000.00
4. 29.09.2003 633429 Rs.20,000.00
5. 03.10.2003 531977 Rs.25,000.00
6. 06.10.2003 633430 Rs.20,979.00
7. 13.10.2003 531975 Rs.20,000.00
8. 27.10.2003 531976 Rs.25,000.00
9. 10.11.2003 531978 Rs.25,000.00
-------------------------------
 Total = Rs.1,93,979.00
5. When the above said cheques were presented to United
Western Bank, Margao Branch for encashment, cheques were
returned by the bank unpaid on 04.02.2004 and 20.02.2004
with the endorsement “not arranged for/funds insufficient” and
“funds insufficient”. The appellant thereafter issued legal
notices to the respondent-accused dated 05.02.2004 and
23.02.2004 respectively making a demand for the payment of
the cheque amount. The said notices were received by the
respondent-accused; though respondent acknowledged the
3
receipt of the notices, he did not make the payment nor
arranged that amount in satisfaction of the cheques issued by
him. Hence, the complainant filed two complaints under
Section 138 of the Negotiable Instruments Act as noted above.
6. Taking into account the receipts produced by the
respondent-accused, the trial court acquitted the respondentaccused in both the cases. The trial court rejected the case of
the appellant that the respondent sometimes used to purchase
rice bags on credit and sometimes used to purchase rice bags
on payment of cash and the same being inconsistent with the
documents produced by the appellant. The trial court held that
in the written complaint, the appellant-complainant has not
alleged anywhere that the respondent used to make credit as
well as cash purchases. The trial court held that the
respondent left blank cheques with the appellant as security
whenever he used to make credit purchases and therefore, the
presumption under Section 139 of the Act is not available to the
appellant.
7. In appeal, the High Court affirmed the acquittal of the
respondent-accused and held that the respondent had taken
4
the defence that the subject cheques were issued as security
towards the goods supplied for which payment was
subsequently made by cash. The High Court held that by
producing the relevant receipts, the respondent has rebutted
the presumption and that the respondent was able to prove that
the cheques were issued by way of security towards the goods
supplied to him for which he made the payment by cash. The
High Court further held that it was incumbent upon the
complainant to have explained in the complaint that the cash
payments made by the respondent were related to other
commodities and the cheques were made for payment of rice
bags. Holding that the case of the appellant was not consistent,
the High Court affirmed the order of acquittal and dismissed the
appeals filed by the complainant-appellant.
8. The learned counsel for the appellant submitted that the
transaction between the parties was a mercantile transaction
and during the course of the business, running accounts were
maintained when purchases were made at different times and
payments were made by both modes i.e. cash and cheques. It
was submitted that both the courts below overlooked the fact
5
that the transactions were mercantile transactions mixed up
with cash payments and also payments made by cheques. It
was submitted that the courts below erred in not keeping in
view the statutory presumption available under Section 139 of
the Negotiable Instruments Act to the appellant and that the
respondent-accused failed to rebut the presumption by leading
cogent and consistent evidence. The learned counsel urged
that the impugned judgment is contrary to the object of Section
138 and Section 139 of the Negotiable Instruments Act and is
liable to be set aside.
9. The learned counsel appearing for the respondent
submitted that the respondent used to leave the cheques with
the complainant when he purchased the commodities – rice
bags and used to make cash payment towards those
commodities for which complainant issued receipts. It was
submitted that even though the complainant received the
money for the rice bags, he failed to return the cheques and
had misused those cheques and filed false complaints against
the respondent. It was submitted that the respondent has
rebutted the statutory presumption by producing twenty
6
receipts-Ex.-22/C (colly) ranging from 02.09.2003 to
17.11.2003 as also receipts-Ex.16/C (colly). The total amount
of the receipts issued by the complainant is Rs.1,94,000/- and
taking into consideration that the amount has been paid, the
courts below rightly held that the presumption under Section
139 of the Negotiable Instruments Act was rebutted by the
respondent-accused.
10. We have carefully considered the submissions and
perused the impugned judgment and other materials on record.
The point falling for consideration is whether the courts below
were right in acquitting the respondent-accused by holding that
the appellant-complainant has failed to prove that the
respondent owed him debt and that the cheques were issued
for the discharge of the said debt.
11. The appellant is a commission agent/merchant
conducting his business and he used to supply rice bags to the
respondent-accused on his request. Admittedly, the transaction
between the appellant-complainant and the respondentaccused was a mercantile transaction. During the course of
business, running accounts were maintained by the parties.
7
Case of the appellant is that the respondent used to purchase
rice bags sometimes on credit and sometimes on cash. In his
evidence, PW-1-complainant stated that the cheques were
issued for the credit transaction payable to the appellant by the
respondent. Per contra, case of the respondent is that Ex.-
16/C (colly) and Ex.-22/C (colly) were issued against the cash
payment made by the respondent-accused and though the
payments were made, the cheques issued by the respondentaccused were not returned to him. The respondent-accused
relies upon the various receipts-Ex.-22/C (colly) which are as
under:-
Sr.No. Receipt No. Date Amount
1. 1276 02.09.2003 Rs.16,000/-
2. 1291 04.09.2003 Rs.2,000/-
3. 1340 08.09.2003 Rs.16,000/-
4. 1489 27.09.2003 Rs.20,000/-
5. 1556 03.10.2003 Rs.20,000/-
6. 1615 06.10.2003 Rs.14,500/-
7. 1621 08.10.2003 Rs.5,000/-
8. 1682 13.10.2003 Rs.15,500/-
9. 1689 13.10.2003 Rs.3,300/-
10. 1746 20.10.2003 Rs.17,000/-
11. 1763 23.10.2003 Rs.1,500/-
12. 1760 23.10.2003 Rs.2,300/-
13. 1808 27.10.2003 Rs.16,000/-
14. 1828 01.11.2003 Rs.3,000/-
15. 1882 05.11.2003 Rs.20,000/-
16. 1942 11.11.2003 Rs.15,000/-
17. 1941 11.11.2003 Rs.3,000/-
18. 1953 15.11.2003 Rs.3,000/-
19. 1958 17.11.2003 Rs.12,000/-
20. 2001 17.11.2003 Rs.3,000/-
8
12. Case of the complainant is that whenever the respondent
used to make cash purchases, cash memos/receipts were
issued to the respondent and the above twenty receipts Ex.-
22/C (colly) pertain to cash sale. Complainant-PW-1 further
stated that the cheques issued by the respondent-accused are
subject matter of the complaints and pertain to the credit
purchases made by the respondent-accused and the
respondent has not made the payment or cleared the dues of
the purchases made by him on credit. On the other hand, case
of the respondent is that he always used to make credit
purchase and used to leave blank cheques with the
complainant-appellant and thereafter, he used to make
payment for which the complainant used to issue receipts to
the respondent; however, the appellant did not return the blank
cheques left by the respondent with the appellant though the
respondent made the payments and those cheques were
misused by the appellant-complainant.
13. As seen from the receipts-Ex.-16/C (colly) and Ex.-22/C
(colly), though the amount said to have been credited to the
account of the respondent, the receipts contain the expression
9
“cheques are subject to realisation”. The format of the receiptEx.-16 (colly) is as under:-
M (CST) 4265 dt 4.9.91 Tel: ………
M (ST) 6104 dt 4.9.91 Res: ……..
M/s SHREE DANESHWARI TRADERS
General Merchant & Commission Agent
Shop No.8, Masjid Building
Malbhar, MARGAO-GOA
No.1145 Date: 18.8.03
RECEIPT
Credited to the account of M/s Shantadurga Stores, Margao, the amount
of Rs. Fifteen Thousand only, by Cash/Cheque/Draft Rs.15,000/-.
For M/s. Shree Daneshwari Traders
 L/F ____________________________
Cheques are subject to realisation.
Case of the appellant is that the receipts-Ex.-22/C (colly) were
issued by the appellant to the respondent towards cash
payment made by the respondent during the course of
business. The courts below failed to consider that Ex.-22/C
(colly) were issued by the appellant to the respondent as
against the cash payment made by respondent. Whereas the
cheques were issued towards the credit purchases of
10
commodities from the complainant which is a legally
enforceable debt.
14. DW-2 is the father of respondent-accused. In his
evidence, DW-2 stated that the respondent used to leave blank
cheques with him in order to carry out the business transaction.
DW-2 has stated that they used to purchase rice bags from the
complainant and had left the cheques with the complainant.
Admittedly, the cheques are in the handwriting of DW-2. In his
evidence, DW-2 stated that though the amount pertaining to the
purchase of rice has already paid, the complainant did not
return the cheques in spite of having received the amount
pertaining to the purchase of rice. It is quite unbelievable that in
a business/mercantile transaction, the accused even after
making payment towards the purchase of rice bags, did not
insist for the return of the cheques. It is quite improbable that
the respondent-accused did not take any steps to get back the
cheques and continued with the business transaction even
though the complainant has not returned the cheques after
payment of the money.
11
15. The trial court in its judgment referred to the three
cheques and observed that the three cheques bearing
Nos.2463, dated 18.08.2003; 2480 dated 25.08.2003 and 2497
dated 08.08.2003 go to suggest that the later cheque bearing
No.2497 was given much more earlier to 18.08.2003 or
25.08.2003 which seems inconsistent and it would not have
been in the normal course of business. The trial court held that
the date of issuance of the three cheques suggests that the
cheques were already with the complainant and they were
utilised by the complainant thereafter. On this aspect, PW-1
was cross-examined as to why cheque bearing No.2497 was
issued on 08.08.2003 while it ought to have been issued after
25.08.2003 to which PW-1 stated that he does not know about
the same. After referring to the above three cheques, the trial
court held that in view of inconsistency, the presumption
available under Section 139 of the Negotiable Instruments Act
is not available to the complainant which was affirmed by the
High Court. It was further held that the blank cheques left by
the accused were with the complainant and they have been
used to file the complaint. The courts below did not keep in
12
view that the appellant has no control over the manner of
issuance of cheques by the respondent and how it was issued.
Merely because, later cheque No.2497 was said to have been
issued by the respondent at an earlier date i.e. 08.08.2003, it
cannot be held that the complainant had used the blank
cheques issued by the respondent.
16. Under Section 138 of the Negotiable Instruments Act,
once the cheque is issued by the drawer, a presumption under
Section 139 of the Negotiable Instruments Act in favour of the
holder would be attracted. Section 139 creates a statutory
presumption that a cheque received in the nature referred to
under Section 138 of the Negotiable Instruments Act is for the
discharge in whole or in part of any debt or other liability. The
initial burden lies upon the complainant to prove the
circumstances under which the cheque was issued in his
favour and that the same was issued in discharge of a legally
enforceable debt.
17. It is for the accused to adduce evidence of such facts and
circumstances to rebut the presumption that such debt does
not exist or that the cheques are not supported by
13
consideration. Considering the scope of the presumption to be
raised under Section 139 of the Act and the nature of evidence
to be adduced by the accused to rebut the presumption, in
Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, the
Supreme Court in paras (14-15) and paras (18-20) held as
under:-
“14. Section 139 of the Act provides that it shall be presumed,
unless the contrary is proved, that the holder of a cheque
received the cheque of the nature referred to in Section 138 for
the discharge, in whole or in part, of any debt or other liability.
15. Presumptions are devices by use of which the courts are
enabled and entitled to pronounce on an issue notwithstanding
that there is no evidence or insufficient evidence. Under the
Evidence Act all presumptions must come under one or the other
class of the three classes mentioned in the Act, namely, (1) “may
presume” (rebuttable), (2) “shall presume” (rebuttable), and (3)
“conclusive presumptions” (irrebuttable). The term “presumption”
is used to designate an inference, affirmative or disaffirmative of
the existence of a fact, conveniently called the “presumed fact”
drawn by a judicial tribunal, by a process of probable reasoning
from some matter of fact, either judicially noticed or admitted or
established by legal evidence to the satisfaction of the tribunal.
Presumption literally means “taking as true without examination
or proof”.
……..
18. Applying the definition of the word “proved” in Section 3 of
the Evidence Act to the provisions of Sections 118 and 139 of
the Act, it becomes evident that in a trial under Section 138 of
the Act a presumption will have to be made that every negotiable
instrument was made or drawn for consideration and that it was
executed for discharge of debt or liability once the execution of
negotiable instrument is either proved or admitted. As soon as
the complainant discharges the burden to prove that the
instrument, say a note, was executed by the accused, the rules
of presumptions under Sections 118 and 139 of the Act help him
14
shift the burden on the accused. The presumptions will live, exist
and survive and shall end only when the contrary is proved by
the accused, that is, the cheque was not issued for consideration
and in discharge of any debt or liability. A presumption is not in
itself evidence, but only makes a prima facie case for a party for
whose benefit it exists.
19. The use of the phrase “until the contrary is proved” in Section
118 of the Act and use of the words “unless the contrary is
proved” in Section 139 of the Act read with definitions of “may
presume” and “shall presume” as given in Section 4 of the
Evidence Act, makes it at once clear that presumptions to be
raised under both the provisions are rebuttable. When a
presumption is rebuttable, it only points out that the party on
whom lies the duty of going forward with evidence, on the fact
presumed and when that party has produced evidence fairly and
reasonably tending to show that the real fact is not as presumed,
the purpose of the presumption is over.
20. The accused in a trial under Section 138 of the Act has two
options. He can either show that consideration and debt did not
exist or that under the particular circumstances of the case the
non-existence of consideration and debt is so probable that a
prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an accused is not
expected to prove his defence beyond reasonable doubt as is
expected of the complainant in a criminal trial. The accused may
adduce direct evidence to prove that the note in question was
not supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need not
insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence
because the existence of negative evidence is neither possible
nor contemplated. At the same time, it is clear that bare denial of
the passing of the consideration and existence of debt,
apparently would not serve the purpose of the accused.
Something which is probable has to be brought on record for
getting the burden of proof shifted to the complainant. To
disprove the presumptions, the accused should bring on record
such facts and circumstances, upon consideration of which, the
court may either believe that the consideration and debt did not
exist or their non-existence was so probable that a prudent man
would under the circumstances of the case, act upon the plea
15
that they did not exist. Apart from adducing direct evidence to
prove that the note in question was not supported by
consideration or that he had not incurred any debt or liability, the
accused may also rely upon circumstantial evidence and if the
circumstances so relied upon are compelling, the burden may
likewise shift again on to the complainant. The accused may also
rely upon presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act.” [underlining
added].
18. In the present case, by examining himself as PW-1, the
complainant has discharged the initial burden cast upon him
that the cheques were issued for the rice bags purchased on
credit. With the examination of PW-1, the statutory
presumption under Section 139 of the Act arises that the
cheques were issued by the respondent-accused for the
discharge of any debt or other liability in whole or in part. The
courts below disbelieved the evidence of the complainant on
the ground that there are no averments in the complaint that
the commodities were sold for cash and that the rice bags were
sold on credit and the cheques were issued for the goods sold
on credit. Though the complaint contains no specific
averments that the cheques were issued for the purchase
made on credit, in his evidence, PW-1 clearly stated that the
cheques were issued for the commodities purchased on credit.
16
The courts below erred in brushing aside the evidence of PW-1
on the ground that there were no averments in the complaint as
to the purchases made by cash and purchase. The courts
below also erred in not raising the statutory presumption under
Section 139 of the Act that the complainant received the
cheques to discharge the debt or other liability in whole or in
part.
19. It is for the respondent-accused to adduce evidence to
prove that the cheques were not supported by consideration
and that there was no debt or liability to be discharged by him.
The receipts-Ex.-22/C (colly) relied upon by the respondentaccused do not create doubt about the purchases made on
credit and the existence of a legally enforceable debt for which
the cheques were issued. The courts below erred in saying
that by the receipts-Ex.22/C (colly), the respondent-accused
has rebutted the statutory presumption raised under Section
139 of the Negotiable Instruments Act. The oral and the
documentary evidence adduced by the complainant are
sufficient to prove that it was a legally enforceable debt and that
the cheques were issued to discharge the legally enforceable
17
debt. With the evidence adduced by the complainant, the
courts below ought to have raised the presumption under
Section 139 of the Act. The evidence adduced by the
respondent-accused is not sufficient to rebut the presumption
raised under Section 139 of the Act. The defence of the
respondent that though he made payment for the
commodities/rice bags, the blank cheques were not returned by
the appellant-complainant is quite unbelievable and
unacceptable. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside. The
respondent-accused is convicted under Section 138 of the
Negotiable Instruments Act in both the complaints; however,
considering that the cheque transaction was of the year 2003,
at this distant point of time, we do not deem it appropriate to
impose any sentence of imprisonment on the accused.
20. In the result, the impugned judgment of the High Court in
Criminal Appeal Nos.53 and 54 of 2006 is set aside and these
appeals are allowed. The respondent-accused is convicted
under Section 138 of Negotiable Instruments Act and a fine of
Rs.2,97,150/- (Rs.53,171/- + Rs.1,93,979/- + compensation of
18
Rs.50,000/-) is imposed on the respondent in default of which,
the respondent shall undergo imprisonment for six months. The
fine amount of Rs.2,97,150/- is to be deposited before the trial
court within twelve weeks from today, failing which the
respondent shall be taken into custody to serve the default
sentence. On deposit of fine amount, the amount of
Rs.2,97,150/- shall be paid to the appellant-complainant.
 ………………………….J.
 [R. BANUMATHI]
………………………….J.
 [A.S. BOPANNA]
New Delhi;
August 21, 2019.
19

Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal) Act of 2013

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.705 OF 2018
DR.P.S. MALIK ...PETITIONER(S)
VERSUS
HIGH COURT OF DELHI & ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
The petitioner, A Judicial Officer in Delhi
Higher Judicial Services, against whom disciplinary
proceedings alleging sexual harassment is underway,
has filed this writ petition under Article 32 of the
Constitution of India praying for following reliefs:-
“a. issue a writ, order or direction in
the nature of certiorari quashing the
resolution of Respondent No.1, the
Full Court of Delhi High Court dated
13.07.2016 inToto, cited in the report
dated 09.03.2018 (Annexure-P-12) and
also all subsequent resolutions passed
by Full Court of Delhi High Court
dated 19.07.2016, 16.11.2016,
23.02.2017, 06.07.2017 or on any other
date in relation to this enquiry,
cited in the report dated 09.03.2018
2
(Annexure-P- 12) as the same are
arbitrary, without any jurisdiction
and violative of the provisions of
Sexual Harassment of Women at
Workplace Prevention, Prohibition and
Redressal) Act of 2013, Art. 14 and
Art. 21 of the Constitution of India;
b. issue a writ, order or direction in
the nature of certiorari quashing the
proceedings of ICC the Respondent
number 2 as held by it under the
Provisions of the Act of 2013.
c. issue a writ, order or direction in
the nature of certiorari quashing the
Charge sheet dated 23.02.2017
(Annexure-P-7) issued by the
Respondent No.1 on the recommendation
of the Respondent No.2;
d. issue a writ, order or direction in
the nature of certiorari quashing the
report dated 9.3.2018 (Annexure-P-12)
of the ICC, the 2nd Respondent herein
along with all the proceedings of the
Respondents leading thereto;
e. issue a writ, order or direction in
the nature of certiorari quashing the
letter of e Hon’ble Delhi High Court
dated 15.05.2018 (Annexure-P-11)
issued by Respondent No.1; and
f. pass any other writ, order or
direction as this Hon’ble Court deems
fit to grant in the interest of
justice.”
2. Brief facts necessary for deciding this writ
petition are:-
3
2.1 The petitioner has been working as Additional
District Judge at Dwarka, New Delhi. On
05.07.2016, a written complaint was submitted
against the petitioner by a lady, Junior
Judicial Assistant (hereinafter referred to
as “employee”) alleging sexual harassment at
work place. The complaint was addressed to
the Chief Justice of High Court of Delhi.
The Junior Judicial Assistant was working as
Ahlmad in the Court of the petitioner w.e.f.
18.05.2015. She continued to work in that
capacity till 18.05.2016. Another complaint
dated 11.07.2016 was submitted by the
employee to the Chief Justice. Complaint
submitted by the employee came for
consideration before the Full Court of the
High Court on 13.07.2016, which resolved as
under:-
i. The Judicial Officer be placed under
suspension with immediate effect
pending disciplinary proceeding
contemplated against him.
4
ii. The Registrar General will forward the
complaint dated 05.07.2016 to SHO of
the concerned Police Station for
appropriate action in accordance with
law under intimation to this Court.
iii. Registry to take steps in anticipation
of the confirmation of the Minutes.
2.2 The Full Court of the Delhi High Court by
further resolution dated 19.07.2016 resolved to
constitute an Internal Complaints Committee
consisting of five members to inquire into the
allegation of sexual harassment made against
the petitioner. The petitioner as well as the
employee appeared before the Internal
Complaints Committee (hereinafter referred to
as “Committee”). The petitioner was suspended
by order dated 13.07.2016 pending disciplinary
proceedings. The employee further submitted a
detailed statement dated 28.07.2016 before the
Committee. The petitioner submitted his reply
to the Committee on 02.09.2016. On 19.09.2016,
the Committee interacted with both the parties
separately. On 05.11.2016, the Committee
5
submitted a Preliminary Report to the Full
Court. By its Report dated 05.11.2016, the
Committee opined that a disciplinary inquiry be
held against the petitioner. Full Court of the
High Court in its meeting dated 16.11.2016
resolved that the disciplinary proceedings for
major penalty under Rule 8 of All India
Services (Discipline and Appeal) Rules, 1969 be
initiated against the petitioner.
2.3 The memo of charges dated 22/23.02.2017 was
given to the petitioner containing, article of
charges and statement of imputations. The
petitioner submitted written statement on
11.03.2017. The Full Court on 06.07.2017
considered the written statement of defence
dated 11.03.2017 of petitioner and resolved to
hold the inquiry. The Full Court resolved for
constituting a Committee in terms of Section 4
of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act,
2013 (hereinafter referred to as “Act, 2013”)
6
chaired by Hon’ble Ms. Justice Hima Kohli, who
was appointed as the Inquiring Authority.
2.4 The inquiry before the Inquiring Committee
proceeded and Report dated 09.03.2018 has been
submitted by the Internal Complaints Committee.
The Inquiry Report submitted by the Committee
was placed before the Full Court in its meeting
held on 25.04.2018 which resolved to forward
the Inquiry Report to the petitioner and to ask
him to submit his written submissions. Full
Court in its meeting dated 01.08.2018 also
resolved to supply certified copies of Full
Court Meeting Minutes dated 13.07.2016,
19.07.2016 and 16.11.2016 to the petitioner.
High Court also resolved that since the
Preliminary Inquiry Report dated 05.11.2016 has
not been relied upon, the same be not supplied
to the petitioner. After receipt of the
Inquiry Report, the petitioner has filed this
writ petition on 08.06.2018.
7
3. We have heard Shri Varinder Kumar Sharma, learned
counsel for the petitioner and Shri P.S. Narsimha,
learned senior counsel for the respondent.
4. Learned counsel for the petitioner contends that
the Full Court of the High Court on receiving the
complaint dated 05.07.2016 did not follow the
procedure given in Act, 2013. It is submitted that
Full Court ought to have handed over the complaint to
the Internal Complaints Committee for inquiry. Full
Court erred in issuing three punitive directions on
13.07.2016 against the petitioner. The order dated
13.07.2016 was premature being before an inquiry or
opportunity to the petitioner of being heard.
Further, they were passed by an authority, which had
no legal competence to pass those directions under
the Delhi Higher Judicial Service Rules, 1970 and the
All India Services Rules. There has been blatant
violation of Act, 2013 in the petitioner’s case
vitiating the entire procedure. The Committee after
conducting the inquiry has submitted a Report dated
05.11.2016, which report was required to be given to
the petitioner as per Act, 2013 but was denied to the
8
petitioner. The Committee having not found proved
the allegation against the petitioner, Full Court
ought not to have proceeded to impose penalty against
the petitioner. The respondents have wrongly assumed
that they are the disciplinary authority of the
petitioner whereas under Rule 26A of the Delhi Higher
Judicial Service Rules, 1970 (hereinafter referred to
as “Rules, 1970”), the High Court has been debarred
from having any right over the members of the service
in matters relating to major penalties. The charge
memo dated 23.02.2017 was issued without even
information to the disciplinary authority, i.e., the
Governor.
5. Shri Narsimha, learned senior counsel appearing
for the respondents submits that High Court having
control over judicial officers under Article 235 of
the Constitution, it did not lack jurisdiction in
placing the petitioner under suspension and directing
for a regular disciplinary inquiry. Inquiry having
conducted by the Committee, which after holding fullfledged inquiry, giving full opportunity to the
petitioner has submitted a Report dated 09.03.2018.
9
The Inquiry Report dated 09.03.2018 was served on the
petitioner by letter dated 16.05.2018, where
petitioner was asked to submit his written
representation or statement within one month, which
has not yet been done. It is submitted that in view
of the fact that the petitioner has filed this
petition in this Court and matter being pending due
to deference to this Hon’ble Court, no further steps
have been taken in the inquiry. It is submitted that
the Report dated 05.11.2016 was a Preliminary Report
submitted by the Committee giving opinion that the
disciplinary inquiry be held, the said report being a
Preliminary Inquiry Report, it was not necessary to
serve such report to the petitioner. The Inquiry
Report conducted as per Section 11 of the Act, 2013
and as per Section 13, the copy of the report has
been duly served on the petitioner. Further, the
Preliminary Inquiry Report dated 05.11.2016 was not
taken into consideration for framing charges against
the petitioner and hence the High Court did not give
a copy of the said report to the petitioner.
10
6. We have heard the learned counsel for the parties
and have perused the records.
7. At very outset, we indicated to the learned
counsel for the petitioner that the disciplinary
proceedings against the petitioner being still
underway, having not yet taken any final shape, most
of the issues, which are sought to be raised by the
writ petitioner in this writ petition can very well
be canvassed and pressed before in the disciplinary
proceedings. We indicated that any expression of
opinion by this Court on issues, which are relevant
and material in the disciplinary inquiry may
prejudice the parties.
8. Learned counsel for the petitioner specifically
submitted that this Court may consider those
submissions, which go to the very root of the matter
specially non-compliance of the provisions of Act,
2013. We have already extracted the reliefs claimed
in the writ petition. Claims in the writ petition
are very wide, which include quashing the proceedings
of Internal Complaints Committee as well as Charge
Sheet dated 23.02.2017 and the Report dated
11
09.03.2018. We are of the view that the petitioner
having still opportunity in the disciplinary
proceedings to challenge the proceedings of the
Internal Complaints Committee, the charge sheet as
well as the Inquiry Report dated 09.03.2018, we deem
it appropriate not to enter into above issues leaving
it open to the petitioner to raise all submissions
and pleas before the appropriate authority. In this
writ petition, we, however, proceed to examine only
few limited issues, which has been pressed by the
petitioner. The only issues, which we proceed to
consider are:-
(i) Whether the High Court is a disciplinary
authority of the petitioner, competent to
initiate the disciplinary proceedings
against the petitioner and suspend him as
per Delhi Higher Judicial Service Rules,
1970 and All India Services (Discipline and
Appeal) Rules, 1969?
(ii) Whether the decision of the Full Court on
13.07.2016 initiating enquiry against the
12
petitioner and placing him under suspension
was beyond jurisdiction?
(iii) Whether the Preliminary Inquiry Report
submitted by Internal Complaints Committee
dated 05.11.2016 ought to have been
supplied to the petitioner and non-supply
of such Preliminary Inquiry Report dated
05.11.2016 vitiated the entire proceedings?
Issue Nos. 1 and 2
9. Issue Nos.1 and 2 being connected are taken
together. Part VI of the Constitution of India deals
with “The States”. Chapter VI contains heading
“Subordinate Courts”. Articles 233 and 235 of the
Constitution of India refers to two distinct powers.
The first is power of appointment, posting and
promotion of District Judges and second is power of
control over Judicial Officers of the State. The
word “control” occurring in Article 235 means not
only the general superintendence of the working of
the Courts but includes the disciplinary control of
the judicial officers, i.e., the district judges and
13
judges subordinate to him. The word “control” used
in Article 235 has been held by this court to be
disciplinary control. A Constitution Bench of this
Court in State of West Bengal and Another Vs.
Nripendra Nath Bagchi, AIR 1966 SC 447 had occasion
to consider the nature of the control vested in the
High Court in Article 235 of the Constitution over
district judges. In paragraph No.13 following was
held:-
“15. We do not accept this construction.
The word “control” is not defined in the
Constitution at all. In Part XIV which
deals with Services under the Union and the
States the words “disciplinary control” or
“disciplinary jurisdiction” have not at all
been used. It is not to be thought that
disciplinary jurisdiction of services is
not contemplated. In the context the word
“control” must, in our judgment, include
disciplinary jurisdiction. Indeed, the word
may be said to be used as a term of art
because the Civil Services (Classification
Control and Appeal) Rules used the word
“control” and the only rules which can
legitimately come under the word “control”
are the Disciplinary Rules. Further, as we
have already shown, the history which lies
behind the enactment of these Articles
indicate that “control” was vested in the
High Court to effectuate a purpose, namely,
the securing of the independence of the
subordinate judiciary and unless it
included disciplinary control as well the
very object would be frustrated. This aid
to construction is admissible because to
find out the meaning of a law, recourse may
14
legitimately be had to the prior state of
the law, the evil sought to be removed and
the process by which the law was evolved.
The word “control”, as we have seen, was
used for the first time in the Constitution
and it is accompanied by the word “vest”
which is a strong word. It shows that the
High Court is made the sole custodian of
the control over the judiciary. Control,
therefore, is not merely the power to
arrange the day to day working of the court
but contemplates disciplinary jurisdiction
over the presiding Judge……………………………”
10. The Constitution Bench further held that under
Article 235 of the Constitution, High Court can hold
enquiries, impose punishments other than dismissal or
removal. In paragraph No. 18, following has been
held:-
“18. There is, therefore, nothing in
Article 311 which compels the conclusion
that the High Court is ousted of the
jurisdiction to hold the enquiry if Article
235 vested such a power in it. In our
judgment, the control which is vested in
the High Court is a complete control
subject only to the power of the Governor
in the matter of appointment (including
dismissal and removal) and posting and
promotion of District Judges. Within the
exercise of the control vested in the High
Court, the High Court can hold enquiries,
impose punishments other than dismissal or
removal, subject however to the conditions
of service, and a right of appeal if
granted by the conditions of service, and
to the giving of an opportunity of showing
cause as required by clause (2) of Article
311 unless such opportunity is dispensed
with by the Governor acting under the
15
provisos (b) and (c) to that clause. The
High Court alone could have held the
enquiry in this case. To hold otherwise
will be to reverse the policy which has
moved determinedly in this direction.”
11. To the same effect is another Three Judge Bench
judgment of this Court is Baradakanta Mishra Vs. High
Court of Orissa and Another, (1976) 3 SCC 327 where
in paragraph No.20, following was laid down:-
“20. The scope of Article 235 has been
examined by this Court in several
decisions. The important decisions are
State of West Bengal v. Nripendra Nath
Bagchi, AIR 1966 SC 447; High Court of
Calcutta v. Amal Kumar Roy, AIR 1962 SC
1704; High Court of Punjab and Haryana v.
State of Haryana (In the matter of N.S.
Rao), (1975) 1 SCC 843. The effect of the
decisions is this. The word “control” as
used in Article 235 includes disciplinary
control over District Judges and judges
inferior to the post of District Judge.
This control is vested in the High Court to
effectuate the purpose of securing
independence of the subordinate judiciary
and unless it included disciplinary control
as well the very object would be
frustrated. The word “control” is
accompanied by the word “vest” which shows
that the High Court is made the sole
custodian of the control over the
judiciary. Control is not merely the power
to arrange the day-to-day working of the
court but contemplates disciplinary
jurisdiction on the presiding judge. The
word “control” includes something in
addition to the mere superintendence of
these courts. The control is over the
conduct and discipline of judges. The
inclusion of a right of appeal against the
16
orders of the High Court in the conditions
of service indicates an order passed in
disciplinary jurisdiction. The word “deal”
in Article 235 also indicates that the
control is over disciplinary and not mere
administrative jurisdiction. The control
which is vested in the High Court is
complete control subject only to the power
of the Governor in the manner of
appointment including initial posting and
promotion of District Judges and dismissal,
removal, reduction in rank of District
Judges. Within the exercise of the control
vested in the High Court, the High Court
can hold enquiries, impose punishments
other than dismissal or removal subject
however to the conditions of service to a
right of appeal if granted by the
conditions of service, and to the giving of
an opportunity of showing cause as required
by clause (2) of Article 311 unless such an
opportunity is dispensed with by the
Governor acting under the provisos (b) and
(c) to that clause. The High Court alone
could make enquiries into disciplinary
conduct.”
12. Another Constitution Bench in Registrar (Admn.),
High Court of Orissa, Cuttack Vs. Sisir Kanta
Satapathy (Dead) by Lrs. and Another, (1999) 7 SCC
725 after reviewing all earlier judgments, laid down
following in paragraph No.16:-
“16. We are clearly of the view that while
the High Court retains the power of
disciplinary control over the subordinate
judiciary, including the power to initiate
disciplinary proceedings, suspend them
pending enquiries and impose punishment on
them but when it comes to the question of
dismissal, removal, reduction in rank or
17
termination of the services of the judicial
officer, on any count whatsoever, the High
Court becomes only the recommending
authority and cannot itself pass such an
order (vide Inder Prakash Anand case,
(1976) 2 SCC 977 and Rajiah case, (1988) 3
SCC 211).”
13. We may also refer to another judgment of this
Court in Rajendra Singh Verma (Dead) through LRs. and
Others Vs. Lieutenant Governor (NCT of Delhi) and
Others, (2011) 10 SCC 1. This Court in the above case
had occasion to consider control of Article 235 over
the judicial officers of NCT of Delhi. This Court
after elaborating the control of the High Court with
reference to judicial officers of NCT Delhi had laid
down that High Court alone is the sole authority
competent to initiate disciplinary proceedings
against Subordinate Judicial Officers or to impose
various punishments. The contentions raised before
the Court based on Article 239AA(4) of the
Constitution that the Scheme in NCT Delhi is
different was rejected. Following was laid down in
paragraph No.136:-
“136. Reliance on Article 239-AA(4) is
entirely out of place so far as the High
Court is concerned, dealing with the
judicial officers. To give any other
interpretation to Article 239-AA(4) will be
18
to defeat the supreme object underlying
Article 235 of the Constitution, specially
intended for protection of the judicial
officers and necessarily independence of
the subordinate judiciary. It is absolutely
clear that the Governor cannot take the aid
and advice of his Council of Ministers in
the case of judicial officers and accept
its advice and act according to it. There
is no room for any outside body between the
Governor and the High Court. Therefore,
this Court does not find any substance in
this contention also and the same is
rejected.”
14. In the above case, it has been clearly and
categorically laid down that disciplinary authority
with regard to judicial officers is the High Court
and it is the High Court, which can initiate the
disciplinary proceedings against judicial officers.
Although, with regard to dismissal, removal or
reduction in rank or termination of services of
judicial officers, the High Court becomes the
recommending authority and it is the Governor, who is
to issue the orders.
15. Learned counsel for the petitioner has placed
reliance on a Constitution Bench judgment of this
Court in Chief Justice of Andhra Pradesh and Others
Vs. L.V.A. Dixitulu and Others, (1979) 2 SCC 34. The
above case was a case of employees of a High Court.
19
This Court had occasion to interpret the scope of
Article 235. In paragraph 40 of the judgment, few
incidents of control vested in the High Court were
enumerated. Paragraph 40 is as follows:
“40. The interpretation and scope of
Article 235 has been the subject of several
decisions of this Court. The position
crystallised by these decisions is that the
control over the subordinate judiciary
vested in the High Court under Article 235
is exclusive in nature, comprehensive in
extent and effective in operation. It
comprehends a wide variety of matters.
Among others, it includes:
(a) (i) Disciplinary jurisdiction and
a complete control subject only to
the power of the Governor in the
matter of appointment, dismissal,
removal, reduction in rank of
District Judges, and initial posting
and promotion to the cadre of
District Judges. In the exercise of
this control, the High Court can hold
inquiries against a member of the
subordinate judiciary, impose
punishment other than dismissal or
removal, subject, however, to the
conditions of service, and a right of
appeal, if any, granted thereby and
to the giving of an opportunity of
showing cause as required by Article
311(2).
(ii) In Article 235, the word
'control' is accompanied by the word
"vest" which shows that the High
Court alone is made the sole
custodian of the control over the
judiciary. The control vested in the
20
High Court, being exclusive, and not
dual, an inquiry into the conduct of
a member of judiciary can be held by
the High Court alone and no other
authority. (State of West Bengal v.
Nripendra Nath Bagchi (supra);
Shamsher Singh v. State of Punjab
(1974) 2 SCC 831; Punjab and Haryana
High Court v. State of Haryana (sub
nom Narendra Singh Rao,(1975) 1 SCC
831).
(iii) Suspension from service of a
member of the judiciary, with a view
to hold a disciplinary inquiry.
(b)Transfers, promotions and
confirmation of such promotions of
persons holding posts in the judicial
service, inferior to that of District
Judge. (State of Assam v. S.N. Sen,
(1971) 2 SCC 899, State of Assam v.
Kuneswar Saikia, (1969) 3 SCC 505).
(c) Transfers of District Judges
[State of Assam v. Ranga Muhammad
(supra); Chandra Mouleshwar v. Patna
High Court (supra)].
(d) Recall of District Judges posted
on ex-cadre posts or on deputation on
administrated posts. (State of Orissa
v. Sudhansu Sekhar Misra, AIR 1968 SC
647).
(e) Award of Selection grade to the
members of the judicial service,
including District Judges it being
their further promotion after their
initial appointment to the cadre.
(State of Assam v. Kuseswar Saikia
(supra).
21
(f) Confirmation of District Judges,
after their initial appointment or
promotion by the Governor to the
cadre of District Judges under
Article 233, on probation or
officiating basis. [Punjab & Haryana
High Court v. State of Haryana
(supra)].
(g) Premature or compulsory
retirement of Judges of the District
Court and of Subordinate Courts
(State of U.P. v. Batuk Deo Pati
Tripathi and Anr. (supra).”
16. In the above case also, this Court held that the
disciplinary jurisdiction vests in the High Court
which can hold inquiries against a member of the
subordinate judiciary, impose punishment other than
dismissal or removal. The High Court can also suspend
a member of the judiciary. Insofar as dismissal or
removal is concerned, the said orders are required to
be passed by the Governor on the recommendation of
the High Court. The fact that the orders of dismissal
or removal are issued by the approval of the Governor
in no manner denude the disciplinary control of the
High Court.
17. Another judgment relied on by the learned counsel
for the petitioner is State of Tamil Nadu Rep. by
22
Secretary to Govt.(Home) Vs. Promod Kumar IPS and
Another, AIR 2018 SC 4060. The above was a case of
the member of Indian Police Service. This Court had
occasion to consider the provisions of All India
Services (Discipline and Appeal) Rules, 1969 in the
context of member of Indian Police Service. Learned
counsel for the petitioner has placed reliance on
paragraphs 18 and 19, which are to the following
effect:
“18. Rule 8(4) of the All India Service
(Discipline and Appeal) Rules, 1969 also
mandates that the disciplinary authority
shall "draw up or cause to be drawn up" the
charge memo. We see no reason to take a
view different from the one taken by this
Court in B.V. Gopinath (AIR 2014 SC 88)
(supra). We also see no substance in the
submission made by the Senior Counsel for
the State that the said judgment needs
reconsideration. Assuming that Mr. Giri is
right in his submission that the initiation
of disciplinary proceedings and issuance of
charge memo are at the same stage, the
mandatory requirement of Rule 8 which
provides for the charge memo to be drawn by
the disciplinary authority cannot be
ignored. We reject the submission on behalf
of the Appellant that Gopinath's case can
be distinguished on facts. We are not in
agreement with the contention of the
Appellant that the business Rules and
standing orders of the State of Tamil Nadu
are quite different from the office orders
and circulars issued by Union of India
which formed the basis of the judgment in
23
Gopinath's case. A close reading of the
said judgment would disclose that reliance
on the office note was only in addition to
the interpretation of the Rule.
19. It is also settled law that if the Rule
requires something to be done in a
particular manner it should be done either
in the same manner or not at all- Taylor v.
Taylor (1875) 1 Ch. D. 426, 431. In view of
the mandatory requirement of Rule 8(4) and
the charge memo being drawn up or cause to
be drawn up by the disciplinary authority
is not complied with, we are of the
considered opinion that there is no reason
to interfere with the judgment of the High
Court on this issue. The only addition we
would like to make is to give liberty to
the disciplinary authority to issue a
charge memo afresh after taking approval
from the disciplinary authority.”
18. In the above case, charge memo was not drawn by
the disciplinary authority, hence, this Court
approved the decision of the High Court quashing
charge-sheet. The above case is not applicable in the
present case. The petitioner in the present case is a
member of Judicial Service for which disciplinary
authority is the High Court.
19. The submission, which has been pressed by the
petitioner is that in view of Act, 2013 there being
an Inquiry Report by Internal Complaints Committee as
envisaged by Sections 11 and 13, the High Court could
24
not have taken a decision to initiate the inquiry or
to suspend the petitioner. The Act, 2013 was to
provide protection against sexual harassment of women
at workplace and for the prevention and redressal of
complaints of sexual harassment and for matters
connected therewith or incidental thereto. Chapter
II of Act, 2013 deals with constitution of Internal
Complaints Committee. Chapter IV deals with
complaint. In Chapter IV, one of the sections is
Section 11, which deals with inquiry into complaint.
Section 11 of the Act is as follows:-
“11. Inquiry into complaint.-- (1) Subject
to the provisions of section 10, the
Internal Committee or the Local Committee,
as the case may be, shall, where the
respondent is an employee, proceed to make
inquiry into the complaint in accordance
with the provisions of the service rules
applicable to the respondent and where no
such rules exist, in such manner as may be
prescribed or in case of a domestic worker,
the Local Committee shall, if prima facie
case exist, forward the complaint to the
police, within a period of seven days for
registering the case under section 509 of
the Indian Penal Code (45 of 1860), and any
other relevant provisions of the said Code
where applicable:
Provided that where the aggrieved woman
informs the Internal Committee or the Local
Committee, as the case may be, that any
25
term or condition of the settlement arrived
at under sub-section (2) of section 10 has
not been complied with by the respondent,
the Internal Committee or the Local
Committee shall proceed to make an inquiry
into the complaint or, as the case may be,
forward the complaint to the police:
Provided further that where both the
parties arc employees, the parties shall,
during the course of inquiry, be given an
opportunity of being heard and a copy of
the findings shall he made available to
both the parties enabling them to make
representation against the findings before
the Committee.
XXXXXXXXXXXXXXXX”
20. Chapter V deals with inquiry into complaint and
Section 13 deals with inquiry report, which is to the
following effect:-
“13. Inquiry Report.--(1) On the
completion of an inquiry under this Act,
the Internal Committee or the Local
Committee, as the case may be, shall
provide a report of its findings to the
employer, or as the case may be, the
District Officer within a period of ten
days from the date of completion of the
inquiry and such report be made available
to the concerned parties.
(2) Where the Internal Committee or the
Local Committee, as the case may be,
arrives at the conclusion that the
allegation against the respondent has not
been proved, it shall recommend to the
employer and the District Officer that no
26
action is required to be taken in the
matter.
(3) Where the Internal Committee or the
Local Committee, as the case may be,
arrives at the conclusion that the
allegation against the respondent has been
proved, it shall recommend to the employer
or the District Officer, as the case may be
—
(i) to take action for sexual harassment
as a misconduct in accordance with
the provisions of the service rules
applicable to the respondent or where
no such service rules have been made,
in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything
in the service rules applicable to
the respondent, from the salary or
wages of the respondent such sum as
it may consider appropriate to be
paid to the aggrieved woman or to her
legal heirs, as it may determine, in
accordance with the provisions of
section 15:
Provided that in case the employer is
unable to make such deduction from the
salary of the respondent due to his being
absent from duty or cessation of employment
it may direct to the respondent to pay such
sum to the aggrieved woman:
Provided further that in case the
respondent fails to pay the sum referred to
in clause (ii), the Internal Committee or
as the case may be, the Local Committee may
forward the order for recovery of the sum
as an arrear of land revenue to the
concerned District Officer.
27
(4) The employer or the District Officer
shall act upon the recommendation within
sixty days of its receipt by him.”
21. The Act, 2013 is a parliamentary legislation, the
preamble of which outlines the necessity of
legislation, which is to the following effect:-
“An Act to provide protection against
sexual harassment of women at workplace and
for the prevention and redressal of
complaints of sexual harassment and for
matters connected therewith or incidental
thereto.”
22. The provisions of the Act, complaint mechanism
and mechanism for constitution of the Internal
Complaints Committee, mechanism to inquire the
complaint are all for protection of dignity and
welfare of women at workplace. The provisions of
Sections 11 and 13 in no manner affect the control of
the High Court under Article 235, which it has with
respect to judicial officers as noted above. The
power to suspend the judicial officer vests in the
High Court. The Full Court of the High court is in
no manner precluded from initiating disciplinary
inquiry against the petitioner and placing the
petitioner under suspension on being satisfied that
28
sufficient material existed. The High Court in its
meeting dated 19.07.2016 has resolved to send the
complaint of the employee to the Internal Complaints
Committee and the Internal Complaints Committee
having opined that inquiry need to be held, further
steps were taken in accordance with Act, 2013. We,
thus, are of the view that there is no error in the
decision of the Full Court dated 13.07.2016 to
suspend the petitioner and initiate the inquiry
proceedings against the petitioner.
Issue No.3
23. The submission on which much emphasis has been
made by the petitioner is that the copy of the Report
dated 05.11.2016 referred to as a Preliminary Inquiry
Report by the High Court has not been supplied to the
petitioner by which he has been denied right to
appeal. With regard to Preliminary Inquiry Report
dated 05.11.2016, in paragraph Nos. 48 and 49, the
High Court has made following assertions:-
“48-49. The contents of para 48-49 are
wrong and denied. The Petitioner is under
the erroneous belief that the report dated
05.11.2016 which is only a Preliminary
Inquiry Report should have been made
available to him. That the inquiry has been
conducted strictly in compliance with the
procedure laid down in All India Services
29
(Discipline & Appeal) Rules, 1965 and
Office Memorandum dated 16.07.2015 issued
by Department of Personnel & Training,
Ministry of Personnel, Public Grievances
and Pensions, Govt. of India. As per the
said Office Memorandum, the ICC firstly
conducted preliminary investigation/inquiry
and then submitted its Preliminary Inquiry
Report dated 05.11.2016 before the
Disciplinary Authority. There is no
provision to provide the copy of
Preliminary Inquiry Report to the
Delinquent. It is also pertinent to mention
here that the Petitioner had been provided
with a copy of the Inquiry Report dated
09.03.2018 submitted by the Inquiring
Authority after conducting regular inquiry
as per the procedure laid down in the All
India Services (Discipline & Appeal) Rules,
1969, with a direction to submit his
written representation or submissions, if
he so desires, against the findings of the
Inquiring Authority. However, instead of
submitting his written representation or
submissions, the Petitioner chose to file
the instant writ petition before this
Hon’ble Court. Thus, it is made clear here
that there was no discrepancy in the
Preliminary Inquiry/investigation by the
ICC. The Report dated 05.11.2016 was a
Preliminary Inquiry Report the purpose of
which is only to satisfy the Disciplinary
Authority as to whether any prima facie
case is made out against the Petitioner.
The Full Court, after considering the
Preliminary Inquiry Report dated
05.11.2016, resolved vide its decision
dated 16.11.2016 to initiate disciplinary
proceedings for major penalty under Rule 8
of the All India Services (Discipline &
Appeal) Rules, 1969 against the
Petitioner.”
30
24. In view of the above, it is clear that
Preliminary Inquiry Report dated 05.11.2016 did not
contain any findings on allegations made against the
petitioner, Preliminary Inquiry Report only opined
that inquiry should be held. The Inquiry Report,
which has been referred to in Section 13 is an
Inquiry Report, which has been submitted by Internal
Complaints Committee after completion of the inquiry.
In the present case, the Inquiry Report by Internal
Complaints Committee is dated 09.03.2018, which has
been admittedly supplied to the petitioner, the right
of appeal given against the recommendation made under
sub-section(2) or sub-section(3) of Section 13 are
appealable under Section 18 of the Act. Section 18
of the Act is as follows:-
“18.Appeal.-- (1) Any person aggrieved from
the recommendations made under sub-section
(2) of section 13 or under clause (i) or
clause (ii) of sub-section (3) of section
13 or subsection (1) or sub-section (2) of
section 14 or section 17 or nonimplementation of such recommendations may
prefer an appeal to the court or tribunal
in accordance with the provisions of the
service rules applicable to the said person
or where no such service rules exist then,
without prejudice to provisions contained
in any other law for the time being in
force, the person aggrieved may prefer an
appeal in such manner as may he prescribed.
31
(2) The appeal under sub-section (1) shall
be preferred within a period of ninety days
of the recommendations.”
25. Thus, the right of appeal is given to an
aggrieved person only when report is submitted under
Section 13 to the employer. Section 13(3)
contemplates the report of Internal Complaints
Committee when it “arrives at the conclusion that the
allegation against the respondent has been proved”.
It is not the case of any of the parties that the
report of the Committee dated 05.11.2016 is the
report where allegation against the petitioner has
been proved. Even under Section 11(1) in the second
proviso, the only contemplation is to make available
a copy of the findings. Thus, when the report in
which there are no findings, parties are not entitled
to have the copy. High Court in its counter
affidavit has pleaded that the Report dated
05.11.2016 was not a report containing any findings
against the petitioner rather only opinion was
expressed that disciplinary inquiry be initiated
against the petitioner. We, thus, are of the view
32
that no prejudice can be held to be caused to the
petitioner by non-supply of the Preliminary Inquiry
Report dated 05.11.2016. The copy of memo of charge
dated 23.02.2017 has been brought on the record,
which also clearly indicates that the charge memo
does not refer to Preliminary Inquiry Report dated
05.11.2016. Thus, no prejudice can be said to have
been caused to the petitioner by non-supply of Report
dated 05.11.2016. We, thus, do not accept the
submission of learned counsel for the petitioner that
due to non-supply of Preliminary Inquiry Report dated
05.11.2016, the proceedings have been vitiated.
26. Before we close, we once more make it clear that
with regard to charge memo dated 23.02.2017, inquiry
conducted by Internal Complaints Committee
culminating into Report dated 09.03.2018, it is open
for the petitioner to raise all pleas of facts and
law before the appropriate authority. This Court has
only considered limited issues as pressed by the
petitioner as indicated above. Apart from above, all
questions and issues are left open to both the
33
parties. Subject to observations and liberty as
above, the Writ Petition is dismissed.
......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( NAVIN SINHA )
New Delhi,
August 21, 2019. 

It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126(1) of the Act.

C.A.@S.L.P(c) No.22207/2018 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6547 OF 2019
[Arising out of S.L.P.(C) No.22207 of 2018]
West Bengal State Electricity
Distribution Company Ltd. & Ors. … Appellants
Versus
M/s. Orion Metal Pvt. Ltd. & Anr. … Respondents
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. This civil appeal is filed by the appellant- West
Bengal State Electricity Distribution Company Limited
and others, aggrieved by the judgment and order dated
18.12.2017 passed by the High Court of Calcutta in
F.M.A. No.520 of 2017 and the corrected order dated
07.02.2018. By the impugned order, the intra Court
C.A.@S.L.P(c) No.22207/2018 2
appeal preferred by the respondent company was
allowed by the Division Bench of High Court.
3. Necessary facts, in brief, are as under:
(a) The 1st respondent herein is the consumer of
electricity from the appellant- West Bengal State
Electricity Distribution Company Limited & Ors. There
is a supply agreement entered into between the
parties on 22.12.2004. The officials of the appellant
company served a notice dated 28.10.2016 upon the 1st
respondent, in exercise of power under Class IV of
the West Bengal Electricity Regulatory Commission
Electricity Supply Code, 2007 for conducting an
inspection in the metering system of the respondent.
The respondent-company is a centralized bulk high
voltage consumer of electricity in the Hooghly
region, with a contracted load of 1450 KVA. After
service of notice on the 1st respondent on 28.10.2016,
inspection was made by the Superintending Engineer,
Divisional Engineer, Divisional Engineer (Manager),
Assistant Engineer of Chandanangore Division, in the
premises of the respondent herein.
C.A.@S.L.P(c) No.22207/2018 3
(b) During the inspection, it was noticed by the
inspecting team that input current is abnormally high
from output current at TTB end in respect of the R &
B Phase of PT secondary wires. The inspecting team on
breaking open the TTB has also found some foreign
material inside. In view of such discrepancies found
during the inspection, the inspection team was of the
view that there was a theft of energy by tampering
the meter by the respondent-company. The three-phase
meter and the metering equipment was seized by the
inspecting team by preparing a seizure list. In view
of such discrepancies noticed during inspection, in
exercise of power under Section 126(1) of the
Electricity Act, 2003 (for short ‘the Act’),
provisional assessment for loss of energy by
un-metered consumption was made by one Mr. B. Saha,
Superintending Engineer/Assessing Officer of the
appellant-company. The provisional assessment was
made assessing the value of energy which was consumed
on account of un-metered consumption at
Rs.13,41,17,482-30 paise (Rupees thirteen crores
forty one lakhs seventeen thousand four hundred and
eighty two only).
C.A.@S.L.P(c) No.22207/2018 4
(c) After inspection, a criminal complaint was also
lodged before the local police by the Superintending
Engineer (Commercial), Hooghly region, of the
appellant company, complaining theft of energy by the
respondent. In the complaint made by the appellant,
it was alleged that by inserting a foreign material
into the meter, the respondent-company has indulged
in theft of energy.
(d) On the basis of criminal complaint made by the
Superintending Engineer (Commercial), a criminal case
has been registered against the respondent-company
and the police have submitted a charge-sheet in the
criminal case.
(e) Aggrieved by the provisional assessment and the
consequential demand, the respondents have filed writ
petition in W.P. No.30449(W) of 2016 before the High
Court, questioning the jurisdiction of the Assessing
Officer in issuing the provisional assessment and the
consequential demand for a sum of Rs.13,41,17,482-30
paise. In the writ petition, one of the grounds was
that the Assessing Officer, who prepared the
provisional assessment, not being a party to the
inspection team, had no authority to make the
C.A.@S.L.P(c) No.22207/2018 5
provisional assessment under Section 126(1) of the
Act. In the writ petition, it was alleged that
provisional assessment made was not in accordance
with Section 126(1) of the Act, as such, such
assessment cannot be given effect to.
(f) Learned single Judge of the High Court, on the
ground that the appellant-Distribution Company has
not produced any material to show that the Assessing
Officer was part of the inspection team, has held
that assessment and consequential demand made in the
provisional assessment proceedings was not in
accordance with Section 126(1) of the Act and quashed
the same. While allowing the writ petition, the
learned single Judge has directed the State
Government to appoint any member of the inspection
team as an Assessing Officer to make fresh
assessment.
(g) Aggrieved by the order of the learned single
Judge dated 15.12.2016, the respondent-writ
petitioners have filed intra Court appeal before the
High Court. Following the directions, as contained
in the order passed by the learned single Judge, it
appears, a Member of the inspection team was
C.A.@S.L.P(c) No.22207/2018 6
appointed as an Assessing Officer by the State
Government and the said officer has provisionally
assessed the value of un-metered consumption of
electricity and also made final assessment after
giving opportunity for filing objections.
(h) The fresh assessment order, which is made in
compliance of directions issued by the learned single
Judge, is also questioned in the pending appeal by
filing an interlocutory application by the
respondents. In view of the said interlocutory
application, the Division Bench of the High Court has
allowed such application permitting the respondents
to challenge the fresh assessment made pursuant to
directions issued by the learned single Judge, and
passed the impugned order allowing the appeal
preferred by the respondents.
(i) In the intra Court appeal, before the Division
Bench, the respondents have raised a ground that two
parallel proceedings i.e. the criminal complaint
before the Competent Court and also assessment
proceedings under Section 126(1) of the Act cannot go
simultaneously. Precisely, it was the case of the
respondents that once a complaint is filed, alleging
C.A.@S.L.P(c) No.22207/2018 7
theft of energy under Section 135(1)(a) of the Act,
no assessment is permissible under Section 126(1) of
the Act.
(j) Before the High Court, it appears that
respondents have also pleaded that the civil
liability, if any, of the respondents can be
determined only under sub-section (5) of Section 154
of the Act. While considering the scope of Sections
154, 135(1)(a) and 126 of the Act, the High Court has
held that when a criminal complaint is lodged
alleging theft of energy by the consumer and when
supply of electricity is disconnected on account of
such offence alleged, only in cases where restoration
of supply is sought by the consumer, agreeing to
deposit the assessed amount of un-metered
consumption, provisional assessment can be made under
Section 126 of the Act. The High Court has drawn a
distinction to exercise power under Section 126(1) of
the Act, in cases where consumer seeks restoration of
supply after disconnection and in cases where
restoration of supply is not sought for. The High
Court has held that only in cases where restoration
is sought after disconnection, authorities can resort
to make assessment under Section 126(1) of the Act,
C.A.@S.L.P(c) No.22207/2018 8
otherwise, the civil liability can be determined by
Special Court only by following the procedure under
sub-section (5) of Section 154 of the Act.
4. We have heard Mr. Jaideep Gupta, learned Senior
counsel appearing for the appellants and Mr. Gaurav
Jain, learned counsel for the respondents.
5. Having heard the learned counsels on both sides,
we have perused the impugned order and other
materials placed on record.
6. The learned Senior counsel appearing for the
appellants has submitted that the High Court has
misconstrued the provisions under Sections 126, 135
and 154 of the Act and erroneously allowed the appeal
and quashed the assessment order made by the
appellants under Section 126(1) of the Act. It is
submitted by learned Senior counsel that, whenever
there is an allegation of theft of energy by the
consumer, even after lodging a complaint for
commission of such offence before the police, it is
always open for the appellants to make provisional
and final assessment to recover loss of energy in
exercise of power under Section 126(1) of the Act.
C.A.@S.L.P(c) No.22207/2018 9
Precisely, it is submitted that in all cases covered
by Section 135 of the Act, it is open for the
authorities to make provisional assessment under
Section 126 of the Act. It is submitted that the
power conferred under Section 126(1) of the Act to
make provisional assessment, will not depend, whether
consumer seeks restoration of supply or not, after
disconnection of supply.
(a) It is submitted that to prove theft of energy
before the Special Court, case has to be proved
beyond reasonable doubt and further the element of
mens rea is a sine qua non to prove the guilt of the
accused. It is submitted that such degree of proof is
not required for the purpose of assessing loss of
energy under Section 126(1) of the Act. Learned
Senior counsel has also placed reliance on the
judgment in the case of Executive Engineer Southern
Electricity Supply Company of Orissa Limited
(SOUTHCO) & Another v. Shi. Seetaram Rice Mill1.
7. On the other hand, learned counsel appearing for
the respondents, in support of the findings recorded
by the High Court, has submitted that the
1
(2012) 2 SCC 108
C.A.@S.L.P(c) No.22207/2018 10
unauthorized use of energy and theft of energy are
two different aspects covered under different
provisions of the Act. It is submitted that the power
conferred for provisional assessment under Section
126(1) of the Act, is confined to cases where there
is an allegation of unauthorized use of energy and
the allegation of theft of energy is to be prosecuted
only under Section 135(1)(a) of the Act. It is
submitted that only in cases where authorities prove
the guilt of the accused, the Special Court is
empowered to determine civil liability under subsection (5) of Section 154 of the Act.
(a) It is further submitted that once power supply
is disconnected, where there is a request by the
consumer for restoration of power supply, the
authorities can make assessment under Section 126(1)
of the Act. In support of this plea, the learned
counsel brought to our notice a judgment of the
learned single Judge of Madhya Pradesh High Court in
the case of The Hotel Adityaz Limited v. Madhya
Pradesh Kshetra Vidyut Vitran Company Limited, Bhopal
& others2 . In the aforesaid judgment, learned single
Judge of the High Court has held that where there is
2
 AIR 2016 (NOC) 39 (M.P.)
C.A.@S.L.P(c) No.22207/2018 11
an allegation of theft of energy, such cases will
fall only under Section 135 of the Act and Section
126 of the Act, as no application.
8. Before we proceed further, we have looked into
the Objects and Reasons of the Electricity Act, 2003,
and also the relevant provisions i.e Sections 126,
135(1)(a), 153 and 154 of the Act.
9. Prior to Electricity Act, 2003, generation and
supply of electricity was governed by the provisions
under Indian Electricity Act, 2010, the Electricity
(Supply) Act, 1948 and the Electricity Regulatory
Commissions Act, 1998. With the policy of the
Government to encourage private sector participation
in generation, transmission and distribution of
energy and with the objective of distancing
regulatory responsibilities from the Government to
the Regulatory Commissions, it was felt that there is
a need for harmonizing and rationalizing the
provisions of the electricity by bringing a new
legislation. That is how the Electricity Act, 2003,
was enacted and brought into force. In the objects
and reasons, a specific reference is made to
incorporate provisions relating to theft of
C.A.@S.L.P(c) No.22207/2018 12
electricity, to have a revenue focus. Part XII of the
Act deals with the provisions relating to
investigation and enforcement and Part XIV of the Act
deals with the provisions relating to offences and
penalties. The Constitution of Special Courts and
procedure and powers of the Special Courts are
covered by Part XV of the Act.
10. The relevant sections for the disposal of this
appeal reads as under:
“Section 126. Assessment:- (1) If on an
inspection of any place or premises or
after inspection of the equipments,
gadgets, machines, devices found
connected or used, or after inspection
of records maintained by any person, the
assessing officer comes to the
conclusion that such person is indulging
in unauthorized use of electricity, he
shall provisionally assess to the best
of his judgment the electricity charges
payable by such person or by any other
person benefited by such use.
(2) The order of provisional assessment
shall be served upon the person in
occupation or possession or in charge of
the place or premises in such manner as
may be prescribed.
(3) The person, on whom an order has
been served under sub- section (2),
shall be entitled to file objections, if
any, against the provisional assessment
before the assessing officer, who shall,
after affording a reasonable opportunity
of hearing to such person, pass a final
order of assessment within thirty days
C.A.@S.L.P(c) No.22207/2018 13
from the date of service of such order
of provisional assessment, of the
electricity charges payable by such
person.
(4) Any person served with the order of
provisional assessment may, accept such
assessment and deposit the assessed
amount with the licensee within seven
days of service of such provisional
assessment order upon him:
(5) If the assessing officer reaches to
the conclusion that unauthorised use of
electricity has taken place, the
assessment shall be made for the entire
period during which such unauthorized
use of electricity has taken place and
if, however, the period during which
such unauthorised use of electricity has
taken place cannot be ascertained, such
period shall be limited to a period of
twelve months immediately preceding the
date of inspection.
(6) The assessment under this section
shall be made at a rate equal to twice
the tariff applicable for the relevant
category of services specified in subsection (5).
Explanation.- For the purposes of this
section,-
(a) “assessing officer” means an officer
of a State Government or Board or
licensee, as the case may be, designated
as such by the State Government;
(b) “unauthorised use of electricity”
means the usage of electricity –
(i) by any artificial means; or
(ii) by a means not authorised by the
concerned person or authority or
licensee; or
(iii) through a tampered meter; or
C.A.@S.L.P(c) No.22207/2018 14
(iv) for the purpose other than for
which the usage of electricity was
authorised; or
(v) for the premises or areas other
than those for which the supply of
electricity was authorized.”
The procedure for ‘theft of energy’ is covered by
Section 135 of the Act under Part IX. Section 135 of
the Act reads as under:
“Section 135. Theft of Electricity:- (1)
Whoever, dishonestly,-
(a) taps, makes or causes to be made any
connection with overhead, underground or
under water lines or cables, or service
wires, or service facilities of a
licensee or supplier, as the case may
be; or
(b) tampers a meter, installs or uses a
tampered meter, current reversing
transformer, loop connection or any
other device or method which interferes
with accurate or proper registration,
calibration or metering of electric
current or otherwise results in a manner
whereby electricity is stolen or wasted;
or
(c) damages or destroys an electric
meter, apparatus, equipment, or wire or
causes or allows any of them to be so
damaged or destroyed as to interfere
with the proper or accurate metering of
electricity; or
(d) uses electricity through a tampered
meter; or
C.A.@S.L.P(c) No.22207/2018 15
(e) uses electricity for the purpose
other than for which the usage of
electricity was authorised,
so as to abstract or consume or use
electricity shall be punishable with
imprisonment for a term which may extend
to three years or with fine or with
both:
Provided that in a case where the load
abstracted, consumed, or used or
attempted abstraction or attempted
consumption or attempted use –
(i) does not exceed 10 kilowatt, the
fine imposed on first conviction
shall not be less than three
times the financial gain on
account of such theft of
electricity and in the event of
second or subsequent conviction
the fine imposed shall not be
less than six times the financial
gain on account of such theft of
electricity;
(ii) exceeds 10 kilowatt, the fine
imposed on first conviction shall
not be less than three times the
financial gain on account of such
theft of electricity and in the
event of second or subsequent
conviction, the sentence shall be
imprisonment for a term not less
than six months, but which may
extend to five years and with
fine not less than six times the
financial gain on account of such
theft of electricity:
Provided further that in the
event of second and subsequent
conviction of a person where the load
abstracted, consumed, or used or
attempted abstraction or attempted
consumption or attempted use exceeds
C.A.@S.L.P(c) No.22207/2018 16
10 kilowatt, such person shall also be
debarred from getting any supply of
electricity for a period which shall
not be less than three months but may
extend to two years and shall also be
debarred from getting supply of
electricity for that period from any
other source or generating station:
Provided also that if it is
proved that any artificial means or
means not authorized by the Board or
licensee or supplier, as the case may
be, exist for the abstraction,
consumption or use of electricity by
the consumer, it shall be presumed,
until the contrary is proved, that any
abstraction, consumption or use of
electricity has been dishonestly
caused by such consumer.
(1A) Without prejudice to the
provisions of this Act, the licensee
or supplier, as the case may be, may,
upon detection of such theft of
electricity, immediately disconnect
the supply of electricity:
Provided that only such officer
of the licensee or supplier, as
authorized for the purpose by the
Appropriate Commission or any other
officer of the licensee or supplier,
as the case may be, of the rank higher
than the rank so authorised shall
disconnect the supply line of
electricity:
Provided further that such
officer of the licensee or supplier,
as the case may be, shall lodge a
complaint in writing relating to the
commission of such offence in police
station having jurisdiction within
twenty four hours from the time of
such disconnect:
C.A.@S.L.P(c) No.22207/2018 17
Provided also that the licensee
or supplier, as the case may be, on
deposit or payment of the assessed
amount or electricity charges in
accordance with the provisions of this
Act, shall, without prejudice to the
obligation to lodge the complaint as
referred to in the second proviso to
this clause, restore the supply line
of electricity within forty-eight
hours of such deposit or payment;]
(2) Any officer of the licensee or
supplier as the case may be, authorized
in this behalf by the State Government
may –
(a) enter, inspect, break open and
search any place or premises in which he
has reason to believe that electricity
has been or is being, used
unauthorisedly;
(b) search, seize and remove all such
devices, instruments, wires and any
other facilitator or article which has
been, or is being, used for unauthorized
use of electricity;
(c) examine or seize any books of
account or documents which in his
opinion shall be useful for or relevant
to, any proceedings in respect of the
offence under sub-section (1) and allow
the person from whose custody such books
of account or documents are seized to
make copies thereof or take extracts
therefrom in his presence.
(3) The occupant of the place of search
or any person on his behalf shall remain
present during the search and a list of
all things seized in the course of such
search shall be prepared and delivered
to such occupant or person who shall
sign the list:
C.A.@S.L.P(c) No.22207/2018 18
 Provided that no inspection, search
and seizure of any domestic places or
domestic premises shall be carried out
between sunset and sunrise except in the
presence of an adult male member
occupying such premises.
(4) The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974),
relating to search and seizure shall
apply, as far as may be, to searches and
seizure under this Act.”
The procedure to be followed by the Special Court
constituted under Section 153 of the Act is
prescribed under Section 154 of the Act.
Sub-sections (5) and (6) of Section 154 of the Act
read as under:
“(5) The Special Court shall determine
the civil liability against a consumer
or a person in terms of money for theft
of energy which shall not be less than
an amount equivalent to two times of
the tariff rate applicable for a period
of twelve months preceding the date of
detection of theft of energy or the
exact period of theft if determined
whichever is less and the amount of
civil liability so determined shall be
recovered as if it were a decree of
civil court.
(6) In case the civil liability so
determined finally by the Special Court
is less than the amount deposited by
the consumer or the person, the excess
amount so deposited by the consumer or
the person, to the Board or licensee or
the concerned person, as the case may
C.A.@S.L.P(c) No.22207/2018 19
be, shall be refunded by the Board or
licensee or the concerned person, as
the case may be, within a fortnight
from the date of communication of the
order of the Special Court together
with interest at the prevailing Reserve
Bank of India prime lending rate for
the period from the date of such
deposit till the date of payment.
Explanation.- For the purposes of
this section, “civil liability” means
loss or damage incurred by the Board or
licensee or the concerned person, as
the case may be, due to the commission
of an offence referred to in sections
135 to 140 and section 150.”
11. A perusal of the aforesaid provisions and on
giving a conjoint reading of the same, it appears to
us that after an inspection of any place or any
premises of any consumer, when Assessing Officer
comes to a conclusion that the consumer is indulging
in unauthorized use of electricity, the provisional
assessment to the best of his judgment is to be made
in accordance with Section 126(1) of the Act and such
provisional assessment shall be served upon the
person in occupation of the premises. After giving
an opportunity to file objections to the provisional
assessment, the Assessing Officer is empowered to
pass a final order of the assessment assessing the
loss of energy, on account of unauthorized use of
C.A.@S.L.P(c) No.22207/2018 20
energy. The unauthorized use of electricity is
defined under Section 126(6)(b) of the Act. It is
clear from the aforesaid definition that unauthorized
use of electricity means, the usage of electricity by
any artificial means or by a means not authorized by
the concerned person or authority or licensee; or
through a tampered meter; or for the purpose other
than for which the usage of electricity was
authorized; or for the premises or areas other than
those for which the supply of electricity was
authorized.
12. It is clear from the reading of Section 126 (6)
(b)(iii) of the Act that instances of use of energy
through a tampered meter is included in the
definition of unauthorized use of electricity. If
that is so, there is no reason, for excluding the
power of the authorities for making assessment under
Section 126(1) of the Act to assess the loss of
energy, where electricity is used through a tampered
meter. All instances of unauthorized use of energy
may not amount to theft of electricity within the
meaning of Section 135 of the Act, but at the same
time, the theft of electricity which is covered by
C.A.@S.L.P(c) No.22207/2018 21
Section 135 of the Act, will fall within the
definition of unauthorized use of electricity. As per
Section 135(1A) of the Act, without prejudice to the
other provisions of the Act, the licensee or
supplier, as the case may be, upon detection of theft
of electricity, is empowered to disconnect the power
supply immediately. Further, as per the third proviso
to Section 135(1A) of the Act, the licensee or
supplier, as the case may be, on deposit or payment
of assessed amount or electricity charges, without
prejudice to the obligation to lodge a complaint, can
restore the power supply electricity within fortyeight(48) hours of deposit /payment of such amount.
Thus, it is clear that the authorities under the Act
are empowered to make a provisional and final
assessment by invoking power under Section 126(1) of
the Act, even in cases where electricity is
unauthorisedly used by way of theft. When a consumer
deposits the assessed amount, the licensee or the
supplier has to restore the power supply. The
assessed amount referred to in the aforesaid proviso,
relates to assessment which is contemplated under
Section 126(1) of the Act only. There is apparent
distinction between Section 126 and Section 135 of
C.A.@S.L.P(c) No.22207/2018 22
the Act. Section 126 forms part of the scheme which
authorizes electricity supplier to ascertain loss in
terms of revenue caused to it by the consumer by his
act of “unauthorized use of electricity” whereas
Section 135 deals with offence of theft if he is
found to have indulged himself in the acts mentioned
in clauses (a) to (e) of sub-section (1) of Section
135 of Electricity Act. Further, it is also clear
from Section 154 of the Act, which prescribes
procedure and power of Special Court, that the
Special Court is empowered to convict the consumer
and impose a sentence of imprisonment. The Special
Court, in cases, where a criminal complaint is
lodged, is also empowered to determine civil
liability under Section 154(5) of the Act. As per
Section 154(6) of the Act, in case civil liability so
determined by the Special Court is less than the
amount deposited by the consumer or the person, the
excess amount so deposited by the consumer or the
person, shall be refunded by the licensee or the
concerned person, as the case may be. Merely because
the Special Court is empowered to determine civil
liability under Section 154(5) of the Act, in cases
where a complaint is lodged, it cannot be said that
C.A.@S.L.P(c) No.22207/2018 23
there is no power conferred on authorities to make
provisional assessment/final assessment under Section
126 of the Act.
13. In the case of Executive Engineer Southern
Electricity Supply Company of Orissa Limited
(SOUTHCO) & Another v. Shi. Seetaram Rice Mill,
reported in (2012)2 SCC 108, this Court has
considered the scope of Explanation to Section 126(b)
(iv) of 2003 Act. In the aforesaid case, as there was
no allegation of theft, this Court has held
consumption in excess of sanctioned/contracted load,
comes within the meaning of unauthorized use of
electricity as per Explanation (b)(iv) of Section 126
of Electricity Act, 2003. Drawing a distinction
between Section 126 to that of Section 135 of the
Act, paragraphs 29 and 61 of the aforesaid judgment
read as under:-
“29. Thus, it would be clear that the
expression “unauthorized use of
electricity” under Section 126 of the
2003 Act deals with cases of unauthorized
use, even in the absence of intention.
These cases would certainly be different
from cases where there is dishonest
abstraction of electricity by any of the
methods enlisted under Section 135 of the
2003 Act. A clear example would be, where
a consumer has used excessive load as
against the installed load simpliciter
C.A.@S.L.P(c) No.22207/2018 24
and there is violation of the terms and
conditions of supply, then, the case
would fall under Section 126 of the 2003
Act. On the other hand, where a consumer,
by any of the means and methods as
specified under Sections 135(a) to 135(e)
of the 2003 Act, has abstracted energy
with dishonest intention and without
authorization, like providing for a
direct connection by passing the
installed meter, the case would fall
under Section 135 of the Act.
... ... ... ...
61. Unauthorized use of electricity
cannot be restricted to the stated
clauses under the Explanation but has to
be given a wider meaning so as to cover
cases of violation of the terms and
conditions of supply and the Regulations
and provisions of the 2003 Act governing
such supply. ”Unauthorized use of
electricity” itself is an expression
which would, on its plain reading, take
within its scope all the misuse of the
electricity or even malpractices adopted
while using electricity. It is difficult
to restrict this expression and limit its
application by the categories stated in
the explanation. It is indisputable that
the electricity supply to a consumer is
restricted and controlled by the terms
and conditions of supply, the Regulations
framed and the provisions of the 2003
Act.”
14. We also do not find any valid reason for making
a distinction as made by the High Court in applying
Section 126 of the Act. From the scheme of the Act,
it appears that after inspection team notices
unauthorized use of energy by tampering the meter,
the authorities can disconnect the power supply
C.A.@S.L.P(c) No.22207/2018 25
immediately and make immediate assessment for loss of
energy, by invoking power under Section 126(1) of the
Act. The term “unauthorized use of energy” is of
wide connotation. There may be cases of unauthorized
use of energy, not amounting to theft, which are
cases viz. exceeding the sanctioned load or using the
electricity in the premises where its use is not
authorized etc. But at the same time, when there is
an allegation of unauthorized use of energy by
tampering the meter, such cases of unauthorized use
of energy include ‘theft’ as defined under Section
135 of the Act. The power conferred on authorities
for making assessment under Section 126(1) of the Act
and power to determine civil liability under Section
154(5) of the Act, cannot be said to be parallel to
each other. In this regard, we are of the view that
the High Court has committed an error in recording a
finding, that both proceedings cannot operate
parallelly. In a given case where there is no theft
of energy, amounting to unauthorized use of energy,
in such cases no complaint of theft can be lodged as
contemplated under Section 135 of the Act. In such
cases for loss of energy, on account of unauthorized
use of energy not amounting to theft, it is always
C.A.@S.L.P(c) No.22207/2018 26
open for the authorities to assess the loss of energy
by resorting to power under Section 126(1) of the
Act. In cases where allegation is of unauthorized use
of energy amounting to theft, in such cases, apart
from assessing the proceedings under Section 126(1)
of the Act, a complaint also can be lodged alleging
theft of energy as defined under Section 135(1) of
the Act. In such cases, the Special Court is
empowered to determine civil liability under Section
154(5) of the Act. On such determination of civil
liability by the Special Court, the excess amount, if
any, deposited by the petitioner, is to be refunded
to the consumer. It is a settled principle that to
prove the guilt of the accused in a criminal
proceeding, authorities have to prove the case beyond
reasonable doubt and the element of mens rea is also
to be established. On the other hand, such a strict
proof is not necessary for assessing the liability
under Section 126(1) of the Act.
15. For the aforesaid reasons, this civil appeal is
allowed and the judgment and order dated 18.12.2017
passed by the High Court of Calcutta in F.M.A. No.520
C.A.@S.L.P(c) No.22207/2018 27
of 2017 and the corrected order dated 07.02.2018, are
set aside. No order as to costs.
 .................... J.
 [R. Banumathi]
 .................... J.
 [R. Subhash Reddy]
NEW DELHI,
August 21, 2019