Apex court says burden of K-Electric negligence could not be shifted to consumers
ISLAMABAD - The Supreme Court of Pakistan on Thursday dismissed K-Electric appeal against the Sindh High Court judgment to quash the corrigendum for recovery of subsidy from industrial consumers, which was withdrawn through an SRO.
A three-member bench of the apex court headed by Chief Justice of Pakistan Jutice Umar Ata Bandial conducted hearing of the K-Electric appeal against the Sindh High Court (SHC) judgment, wherein the corrigendum dated 22-01-2020 related to tariff policy was quashed.
Pakistan Tehrik-e-Insaf government, through an SRO 12(I) of 2019 on 01.01.2019, decided to continue Rs3/per kWh subsidy, known as Industrial Support Package (ISPA). The Pakistan Muslim League-Nawaz in 2016 had granted subsidy, but withdrew it throughout Pakistan vide SRO 810(I)/2019 in respect of off-peak hours and other categories of industrial consumers.
The SHC on 28-09-2020 had declared the corrigendum illegal, void, issued in excess of authority hence quashed. The K-Electric was asked to charge the tariff from its industrial consumers as per the left hand column (K-Electric Tariff of SRO 575(I)/2019 dated 22-05-2019 as determined vide determination dated 05-07-2018 in respect of variable ‘off-peak hours’ charges, and right-hand column (Uniform Tariff) in respect of variable ‘peak hours’ charges as long as subsidy for ‘peak hours’ provided through SRO 12(I/2019 dated 01-01-2019.
The Chief Justice said that why K-Electric did not comply with the SRO 810 to withdraw the subsidy. He rejected the arguments of the K-Electric counsel that they did not comply with the SRO 810 because it was issued by the federal government. The court noted that SRO 575 was also issued by the government.
Justice Mansoor Ali Shah said that the K-Electric started giving the subsidy after the SRO 12 but did not stop its bill after the SRO 810, why from July 2019 to January 2020 it stopped the subsidy after its withdrawal.
Advocate Abid S Zuberi, representing K-Electric, said there was no table of tariff in SRO 810, therefore his client wrote letters to the NEPRA. Upon that Justice Ayesha observed there was no table in SRO 12, but gave the subsidy, and asked why the K-Electric waited for table of tariff after the SRO 810.
Justice Bandial said that the burden of K-Electric negligence could not be shifted to the consumers therefore dismissed the appeal.
The court said that the government should avoid performing those functions which under the law are required to be done by the regulator. The regulators should be allowed to work as they have expertise and skills. Justice Bandial said that it was intent of the Parliament that the regulators should perform their function independently. “All regulators must be empowered and their jurisdiction must be respected,” he added.
Director General Tariff, NEPRA Sajid said the regulator process was by-passed, adding even the process was done by the NEPRA the result would have been the same.
Haider Waheed, counsel for the industrial consumers, said only NEPRA can amend the tariff and not the government. The government can’t withdraw subsidy given to the industrial consumers earlier. He further submitted that K-Electric is not sending them bills in accordance with the SHC judgment. He further submitted that first bill without the subsidy was issued in March, 2020, which they challenged in the High Court.
Abid S Zuberi submitted that the impugned judgment in itself is contradictory as on the one hand SRO No 810(I) /2019 has been upheld whereas the corrigendum dated 22.01.2020 which is a ministerial act that merely implements SRO No. 810(I)/2019 has been set-aside.
The petitioner K-Electric further stated that SHC directions are totally against the policy of the Ministry of Energy (Respondent No 1) to keep and maintain a uniform tariff across the country. “The impugned judgement is therefore against well settled principles of law and interferes in the policy domain of the government and has created an entirely new tariff that has never been approved/determined by the NEPRA (Respondent No 2).”
The subsidy in respect of off-peak hours and other categories of industrial consumers was withdrawn throughout Pakistan vide SRO 810(I)/2019. He submitted that though Ministry of Energy issued SRO 810(I)/2019 whereby Paragraph 2 of the January 2019 SRO was substituted, it however did not immediately amend the Schedule of Tariff of K-Electric issued vide SRO No 575(I)/2019. The petitioner continued to charge its Industrial Consumers as per the SRO No. 575(I)/2019 till December 2019 with the view of charging the amount accrued during that period by the consumers in view of SRO 810(I)/2019.