Executive Engineer (Elect.), Tpwodl, Rajgangpur, Sundergarh Vs M/S.Satguru Metals and Power Pvt. Ltd.,Sundergarh

This Writ Petition has been filed by the petitionerExecutive 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-7. 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

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(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.

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Learned counsel for the petitioner has filed the rejoinder affidavit to the counter of the opposite party, wherein it is stated in paragraph-9 as follows:- “9. 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 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.”

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From the impugned order so also in paragraph-9 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.

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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.

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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:-

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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.

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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,

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except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

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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.

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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.

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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 nonobservance of natural justice.”

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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

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petitioner shall be given an opportunity to have its say on the table which is mentioned in page-17 of the impugned order and a fresh adjudication be done on the issue involved.

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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.

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( S.K. Sahoo)

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Judge

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(S.S. Mishra) Judge

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Ashok/Swarna

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Signature Not Verified

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Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 08-Jul-2025 12:03:37

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Executive Engineer (Elect.), Tpwodl, Rajgangpur, Sundergarh v. M/S.Satguru Metals and Power Pvt. Ltd.,Sundergarh

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Executive Engineer (Elect.), Tpwodl, Rajgangpur, Sundergarh v. M/S.Satguru Metals and Power Pvt. Ltd.,Sundergarh

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