Patherya, J. - (1.) Affidavit of service filed in Court be kept on record.
(2.) By this writ petition the petitioner seeks to set aside the order dated 24.11.2015 passed by the Ombudsman in G.R. Case No. W-884 NG of 2014 and the power of Ombudsman for deciding compensation and cost, be declared contrary to the provisions of the Electricity Act being bad in law. Regulations 14.2 to 14.5 of the Notification No. 46 dated 31st May, 2010 is also under challenge. The prayers sought by the writ petitioner cannot be sustained for the reasons set out hereinbelow. Regulation 14 of Notification No. 46/WBERC dated Kolkata the 31st May 2010 deals with enforcement mechanism and Regulation 14.2 reads as follows:- "14.2 Any consumer/intending consumer who is affected by any failure of a licensee to meet the standards of performance, specified in these regulations, may submit a complaint to the Grievance Redressal Officer concerned of the licensee in the matter of the said failure of performance excluding the cases under sections 126, 127, 135, 136, 137, 138 and 139 of the Act. A consumer/an intending consumer may also submit an application to the Grievance Redressal Officer concerned of the licensee claiming compensation for such failure to perform and also for delay in reconnection with reference to the time limits specified in the Supply Code or order of any competent court of law or competent authority or for wrongful disconnection including disconnection under section 135 of the Act if it was wrongful. The Grievance Redressal Officer after receiving such complaint shall dispose of the same as per Regulations made under sub-sections (5) and (7) of section 42 of the Act. 14.3 If the affected consumer/intending consumer is not satisfied with the order of the Grievance Redressal Officer or does not receive any order from that Grievance Redressal Officer whom he has approached within the time specified in Regulations made under sub-sections (5) and (7) of section 42 of the Act, he may submit a written representation to the Ombudsman for settlement/redressal of his grievance and/or payment of compensation which the licensee is liable to pay to the affected consumer/intending consumer for failure to meet the standards of performance in terms of these regulations. The working procedure for submitting such representation will be as per the regulations made under subsections (5) and (7) of section 42 of the Act. 14.4 The Ombudsman shall accept such representation and after giving reasonable opportunity to both parties of being heard pass reasoned and speaking settlement order in the matter of the grievance of consumer or affected consumer/intending consumer and/or payment of compensation which the licensee is to pay to the affected consumer/intending consumer in terms of these regulations. The working procedure for disposal of such representation will be as per Regulations made under sub-sections (5) and (7) of section 42 of the Act. 14.5 The licensee shall pay the compensation in cash/cheque/demand draft in favour of the affected consumer/intending consumer as per order of the Grievance Redressal Officer or the order of the Ombudsman, as the case may be, within a period of thirty days from the date of such order. When such payment is made as per order of the Ombudsman the licensee shall send a report of compliance to the Ombudsman within 15 days from the date of compliance. In case of possible delay in complying with the order of Ombudsman, the licensee shall seek permission of the Ombudsman before expiry of thirty days." Notification No. 46 dated 31st May, 2010 was considered in F.M.A. 3291 of 2015 (West Bengal Electricity Regulation Commission v. West Bengal State Electricity Distribution Company Limited & Ors.) and paragraph 36 is set out hereinbelow:- "36. Apparently, constitutionality of 2010 regulations has not been assailed in the instant writ petition however, during the oral arguments across the bar and in the written submissions filed on behalf of the distribution licensee an attempt has been made to contend that 2010 Regulations are inconsistent with the provisions of the Act. As discussed earlier the scope of rule making power under Section 178 of the Act is wide enough to encompass the power of the Commission to delegate any of its powers by way of Regulations provided such delegation is not expressly barred by the provisions of the Act. In the instant situation there is no such embargo on the delegation of power to award compensation under Section 57 (2) of the Act. Hence, the authorization of the Ombudsman to award compensation under Section 57 (2) of the Act for breach of standards of performance as laid down by it under Section 57 (1) of the Act thereof cannot be said to be contrary to the provisions of the Act. That apart, such delegation in the 2010 regulations to the Ombudsman is not an un-canalised one and sufficient guidelines have been laid down for exercise of its discretion." The said finding was based on the notes of argument or submission submitted on behalf of the W.B.S.E.D.C.L. before the Appeal Court in FMA 3291 of 2015. The same argument was made before me too, it is only for this reason that the entire notes of submissions of the W.B.S.E.D.C.L. is set out hereinbelow:- Notes of submission on behalf of the respondent, West Bengal State Electricity Distribution Company Ltd. Submission :
(3.) The Act of 2003 has expressly specified the person who would decide the cases of failure to supply electricity under section 43 (3) of Act of 2003. The Act of 2003 has expressly provided that appropriate Commission (WBERC) shall appoint any of its members to be an adjudicating officer for holding an enquiry and if satisfied that there has been failure to comply with the provisions of section 43, to impose such penalty as he thinks fit in accordance with the provisions of such section. The factors to be taken into account by such adjudicating officer while adjudicating the quantum of penalty under section 43 of the Act of 2003 are given in the Act and guiding factors have been laid down under section 144 (a) and (b) of the Act of 2003. For deciding the case of alleged failure under section 43 of the Act of 2003, the member of WBERC, who is appointed as adjudicating officer, has been empowered to summon and enforce the attendance of any person acquainted with the facts to give evidence or produce documents under section 143 (2) of the Act of 2003. Punishments for non-compliance of order/direction are provided under section 146 of the Act.;