Orissa High Court
Executive Engineer (Elect.) vs M/S. Bajaragbali Re-Roller .... Opp. ... on 4 July, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 23923 of 2024
Executive Engineer (Elect.) .... Petitioner(s)
TPWODL, Rajgangpur,
Sundergarh
Mr. Prasanta. Kumar Tripathy, Advocate
-versus-
M/s. Bajaragbali Re-Roller .... Opp. Party(s)
Pvt. Ltd., Sundargarh and
others
Mr. Gouri Mohan Rath, Advocate
CORAM:
HON'BLE MR. JUSTICE S.K. SAHOO
HON'BLE MR. JUSTICE S. S. MISHRA
ORDER
Order No. 04.07.2025
06. This matter is taken up through Hybrid arrangement
(video conferencing/physical mode).
This Writ Petition has been filed by the petitioner-
Executive Engineer (Elct.), TPWODL, Electrical Division,
Rajgangpur challenging the order dated 27.06.2023 passed
by the Ombudsman-II, Odisha Electricity Regulatory
Commission, Bhubaneswar in C.R. Case No.OM(II)W-12 of
2023 under Annexure-6. From the impugned order, it
appears that the learned Ombudsman-II has relied upon a
table which was produced by the opposite party showing
that the licensee is claiming more than 8% loss in their HT
(33KV) network. The learned Ombudsman by analyzing the
table has come to the conclusion that the entire calculation
of revised bills raised by the respondent (writ petitioner)
are unsustainable in the eye of law. Hence, the bills are to
be revised as per the calculation sheet produced by the
opposite party herein.
Learned counsel for the petitioner has filed the
rejoinder affidavit to the counter of the opposite party,
wherein it is stated in paragraph-10 as follows:-
"10. That as regards the calculation of open
access power and determination of
distribution loss as referred by the Ld.
Ombudsman-II in Table-A of the impugned
order, it is submitted that the said Table-A
reflects the month-wise drawl of total power
(through open access and from the DISCOM),
the quantum of open access power, the
quantum of power after deducting distribution
loss. Though, the figures mentioned in the
said Table have been derived from the
additional bill raised by the Licensee for the
subject period, but the calculation of
distribution loss on the drawl of open access
has been done in an incorrect manner. As per
the Open Access mechanism, the open access
power is being scheduled on the basis of 15
minutes integration period and as such the
distribution loss of 8% is normally calculated
on the open access schedule in every 15
minutes block. The Petitioner has provided
the said Table-A by making erroneous
calculation of open access charges after
deducting distribution loss. Ld. Ombudsman-
II, without verifying the method of calculation
of open access power and distribution loss,
has adopted the said Table-A, which reflects
non-application of mind on part of the Ld.
Ombudsman-II."
From the impugned order so also in paragraph-10 of
the rejoinder affidavit, it appears that the said table of
calculation has not been provided to the petitioner to have
its say, however the learned counsel for the opposite
parties disputed the same. He further submits that a
Review Petition was filed by the petitioner before the
Ombudsman-II, Bhubaneswar raising the said objection
and it was also dismissed.
In the impugned order, there is nothing that the
table which was produced by the opposite party regarding
claiming of more than 8% loss has been handed over to the
petitioner and they were given opportunity to have their
say regarding the calculation reflecting in the table.
Mr. Rath, learned counsel for the opposite party
submits that even if opportunity could have been provided,
the result would have been same. To substantiate his
contention, he has relied upon paragraphs-42.1 to 42.5 of
the judgment of the Hon'ble Supreme Court in the case of
State of Uttar Pradesh vrs. Sudhir Kumar Singh and
others, (2021) 19 SCC 706, which are extracted
hereunder:-
42.1 Natural justice is a flexible tool in the
hands of the judiciary to reach out in fit cases to
remedy injustice. The breach of the audi
alteram partem rule cannot by itself, without
more, lead to the conclusion that prejudice is
thereby caused.
42.2 Where procedural and/or substantive
provisions of law embody the principles of
natural justice, their infraction per se does not
lead to invalidity of the orders passed. Here
again, prejudice must be caused to the litigant,
except in the case of a mandatory provision of
law which is conceived not only in individual
interest, but also in public interest.
42.3 No prejudice is caused to the person
complaining of the breach of natural justice
where such person does not dispute the case
against him or it. This can happen by reason of
estoppel, acquiescence, waiver and by way of
non-challenge or non-denial or admission of
facts, in cases in which the Court finds on facts
that no real prejudice can therefore be said to
have been caused to the person complaining of
the breach of natural justice.
42.4 In cases where facts can be stated to be
admitted or indisputable, and only one
conclusion is possible, the Court does not pass
futile orders of setting aside or remand when
there is, in fact, no prejudice caused. This
conclusion must be drawn by the Court on an
appraisal of the facts of a case, and not by the
authority who denies natural justice to a person.
42.5 The "prejudice" exception must be more
than a mere apprehension or even a reasonable
suspicion of a litigant. It should exit as a matter
of fact, or be based upon a definite inference of
likelihood of prejudice flowing from the non-
observance of natural justice."
We are not in agreement to submission made by the
learned counsel for the opposite party. While excising writ
jurisdiction it's forbidden to venture into disputed facts
much less adverting to calculations and accounting.
Therefore, we are of the view that the impugned order
dated 27.06.2023 is liable to be reviewable by affording
opportunities to both the parties; therefore, we remand the
matter to Ombudsman-II, Odisha Electricity Regulatory
Commission, Bhubaneswar to consider afresh. The
petitioner shall be given an opportunity to have its say on
the table which is mentioned in page-19 of the impugned
order and a fresh adjudication be done on the issue
involved.
Accordingly, the Writ Petition is allowed and the
matter is remanded for fresh adjudication. It is open for the
parties to raise all the points including the issue of
limitation before the Ombudsman-II, Odisha Electricity
Regulatory Commission, Bhubaneswar, which shall be
considered in accordance with law.
( S.K. Sahoo)
Judge
(S.S. Mishra)
Judge
Ashok/Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
Date: 08-Jul-2025 12:03:37
