Important Judgments Passed By The Orissa High Court: January 2021

Case Details: Sk. Mohammed Idris v. Life Insurance Corporation of India [Judgment Dated: 4 January 2021 in W.P. (C) No. 18071 of 2009]

A Single Judge Bench of Justice Biswanath Rath was considering a writ petition against the decision of disciplinary authority involving an enquiry initiated against the petitioner-employee. While dismissing the petition it relied upon the observation made by the Supreme Court in Union of India and others v. P. Gunasekaran, (2015) 2 SCC 610, to hold that in disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

1. the enquiry is held by a competent authority;
2. the enquiry is held according to the procedure prescribed in that behalf;
3. there is violation of the principles of natural justice in conducting the proceedings;
4. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
5. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
6. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
7. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
8. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
9. the finding of fact is based on no evidence.
   

2. Payment of interest is compensatory in nature; unless demand is raised, payment of interest for period prior thereto would not arise.

Case Details: M/s. National Aluminium Company Ltd. v. State of Orissa & Ors. [Judgment Dated: 5 January 2021 in Writ Petition (C) No. 10537 of 2006]

A Division Bench consisting of Chief Justice Dr. S. Muralidhar and Dr. Justice B.R. Sarangi was adjudicating a writ petition challenging a notice demanding the payment of interest on the alleged delayed payment of differential royalty by the petitioner. The Bench relied upon decision of the Apex Court in Pratibha Processors v. Union of India, (1996) 11 SCC 101, to hold that interest is compensatory in character and can be imposed on a person who has withheld the legitimate dues. Otherwise, the demand of interest is not justified. Essentially, it is compensatory and different from penalty which is penal in character. Further, it held that if demand is not raised, the question of paying interest for the period prior thereto would not arise.

Notably, this is the first reportable judgment rendered by Hon'ble Dr. Justice S. Muralidhar after assuming the office of Chief Justice of the High Court.

3. The Court disposes of PIL for waiver of school fees during COVID-19, based on MoU submitted by institutions for flat rate concession.

Case Details: Mohammed Mustaq Ansari v. State of Odisha & Another [Judgment Dated: 7 January 2021 in Writ Petition (C) No. 11299 of 2020]

A Division Bench consisting of Chief Justice Dr. S. Muralidhar and Dr. Justice B.R. Sarangi disposed of a batch of PILs seeking waiver of school fees levied by private unaided schools in the State, in the wake of COVID-19 pandemic from March onwards. The matter was closed after 14 private unaided schools submitted a MoU for waiver of fees at a flat rate in different slabs mentioned therein.

Terms of MoU:

• The MoU contemplates waiver of maximum 26% Tuition/ composite fee for institutions where fees is above Rs. 1 lakh per annum. Similarly, there a separat
  slab rates, based on the fee amount. All schools charging fees upto Rs. 6,000/- shall not be liable to offer any waiver.
• The institutions have decided to waive of 'Other Optional Fees' till reopening of schools. However, the charges on Transport and Food shall remain as per actual.
• There is a flat waiver of 30% on Hostel fees.

The Bench was not persuaded to further issue directions in the matter in light of the MOU arrived at between 14 educational institutions in Odisha on the question of fee waiver during the period of the pandemic. However, it was clarified that if any party to the MoU faces any problem in relation its terms, the same may be agitated in separate proceedings and may be decided on a case-to-case basis.

4. Magistrate must give reasons while dismissing a complaint under Section 203, Cr.P.C.

Case Details: Lalit Mohan Patnaik v. Sadasiba Mohapatra & Ors. [Judgment Dated: 7 January 2021 in Criminal Appeal No. 52 of 1993]

A Single Judge Bench constituted of Justice S.K. Sahoo held that when a Magistrate intends to dismiss a complaint petition, he has to give reasons thereof. It observed that Section 203 Cr.P.C. consists of two parts, the first part lays down the materials which the Magistrate must consider, and the second part states that if after considering those materials, there is no sufficient ground for proceeding; the Magistrate may dismiss the complaint. While exercising such power under section 203 of the Code, it is incumbent upon the Magistrate to reflect in his order the basis for arriving at the conclusion that there are no sufficient grounds to proceed with the complaint case. The Court noted that "[t]he emphasis on recording reasons is that if the decision reveals the "inscrutable face of sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking order. The "inscrutable face of sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."

5. Magistrate is empowered to deal with the seized property under Section 451 or 457, Cr.P.C. where confiscation proceeding is not initiated.

Case Details: Priyabrata Sahoo v. State of Odisha [Judgment Dated: 7 January 2021 in CRLMC No. 1451 of 2020]

A Single Judge Bench constituted of Justice B.P. Routray was dealing with a challenge against an order of Sessions Judge, wherein the prayer of the petitioner to release his vehicle under Section 457 Cr.P.C. has been refused as involved in commission of offences under Sections 188/269/270/34, I.P.C. and Section 52(a) of the Odisha Excise Act, 2008. The Court, after perusing the relevant precedents and provisions of the Odisha Excise Act as well as of Cr.P.C., observed that (i) Where the owner has not been implicated as an accused; or (ii) Where the properties seized have not been produced before the Collector or the Authorised Officer, as the case may be; or (iii) Where the confiscation proceeding has not been initiated; the Magistrate is empowered under the general provisions of the Cr.P.C. including the jurisdiction and powers under Chapter XXXIV for disposal of the seized property and consequently has also the power to deal with such seized property under Section 451 or 457 of the Cr.P.C.

6.If there was no preparation to commit murder and if the offence happened on spur of the moment, it cannot be considered as murder.

Case Details: Duryodhan Pahi v. State of Orissa [Judgment Dated: 7 January 2021 in JCRLA No. 87 of 2007]

While partly allowing appeal against the conviction of the appellant under Section 302 of the IPC, a Division Bench consisting of Justice S.K. Mishra and Justice Savitri Ratho reiterated that if any of the four conditions, as enumerated below, is not satisfied, then the offence will be culpable homicide not amounting to murder. Those are:

• The act was done with the intention of causing death; or
• with the intention of causing such bodily injury as the offender knew to be likely to cause the death of the person to whom the harm is caused: or
• with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinarily course of nature to cause death; or
• With the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

Further, it held that if there was no preparation on the part of the appellant to commit murder and when it happened on spur of the moment, it cannot be considered as murder.

7. Orders are not like old wine becoming better as they grow: Order cancelling license must be a speaking one; reasons cannot be provided later through affidavit.

Case Details: Pradyumna Kumar Mohapatra v. State of Orissa & Others [Judgment Dated: 12 January 2021 in Writ Petition (C) No. 32947 of 2020]

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Sanju Panda was hearing a challenge to an order made by the Collector, Cuttack cancelling the licenses granted in favour of the Petitioner in respect five of his IMFL 'Off' Shops. It held that while making order, the cancelling authority must disclose the reasons for cancellation in the order itself and he cannot be permitted to provide reasons through a subsequent affidavit filed after notice in the writ petition. The Court relied upon the observation made by Krishna Iyer, J. in Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851:

"…when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out… Orders are not like old wine becoming better as they grow."

Hence, it was concluded that as the impugned order cancelling the license in favour of the Petitioner for the 'Off' Shop was a non-speaking one, cannot be sustained in the eyes of law and the same was set aside on that ground.

8. The Court reiterates that proceeding for certiorari is supervisory in nature; hence, the High Court cannot review the findings of lower authorities under such jurisdiction.

Case Details: Rajib Kumar Behera v. State of Odisha and Others [Judgment Dated: 13 January 2021 in W.P. (C) No. 671 of 2021]

A Single Judge Bench of Dr. Justice B.R. Sarangi was deciding a petition seeking issuance of the writ of certiorari against an order of the Odisha Human Rights Commission. The Court while relying upon the decision of the Supreme Court in State of Andhra Pradesh v. Chitra Venkata Rao, AIR 1975 SC 2151, held that since the function of the superior Court in a proceeding for certiorari is supervisory and not appellate, the superior Court will not review in intra vires findings of the inferior tribunal, even if they are erroneous. Further, it observed that Certiorari, under Article 226, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exits none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

9. Non-release of payment to job card holders/rural job seekers after completion of their work under the MGNREG Act is violative Article 21 of the Constitution.

Case Details: Purna Chandra Sahoo v. State of Odisha and Ors. [Judgment Dated: 19 January 2021 in W.P. (C) No. 17859 of 2013]

A Single Judge Bench of Dr. Justice B.R. Sarangi was dealing with a writ petition challenging non-release of payment under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA). It held that non-release of payment to job card holders/rural job seekers affects their livelihood and right to live with dignity, therefore, violates Article 21 of the Constitution of India. The Court relied upon Centre of Environment and Food Security v. Union of India, (2011) 5 SCC 676, wherein the Apex Court held that the legislative scheme of the Mahatma Gandhi National Rural Employment Guarantee Act places the "Right to Livelihood" at a higher pedestal than a mere legal right by ensuring that a minimum of 100 days of employment to one person in the family is given so that the members of the family are able to take care of their bare minimum requirement for existence.

10. Notice must be issued to the accused before granting extension beyond 180 days under Section 36-A(4) of the NDPS Act for completing investigation.

Case Details: Naresh Digal v. State of Odisha [Judgment Dated: 27 January 2021 in BLAPL No. 4652 of 2020]

While allowing a bail application under Section 439, Cr.P.C., a Single Judge Bench of Justice S.K. Sahoo held that even though sub-section (4) of section 36-A of the NDPS Act does not specifically provide for issuance of notice to the accused on the report of the Public Prosecutor before granting extension beyond 180 days for completing investigation, but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice between the parties and since there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice. And the report has to be filed by the Public Prosecutor in advance and not on the last day, so that on being noticed, the accused gets fair opportunity to have his say and oppose the extension sought for by the prosecution. To substantiate this proposition, the Court relied upon the law laid down by the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623, which is reiterated by the High Court in Lambodar Bag v. State of Odisha, (2018) 71 OCR 31.

11. State is strictly liable for death of a person in police custody even though it is not proved that police has caused the injuries leading to death.

Case Details: Purna Chandra Mohapatra & Another v. State of Odisha & Others [Order Dated: 27 January 2021 in Writ Petition (C) No. 13774 of 2005]

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Biswajit Mohanty was hearing a writ petition filed by the petitioners seeking compensation for the custodial death of their son. The Court held that the law in regard to the liability of state functionaries for acts of negligence has been well settled in a series of decisions, many of which deal with deaths of persons while in judicial custody. These would apply with equal force to a situation of proven case of death while in police custody as a result of negligence of the police. Once a person is in the custody of the police, the security of that person's life and liberty is in their hands. They are answerable for whatever happens to the person in their custody.

The Court further observed: "Even if it is not established that the ante mortem injuries found on his person during post-mortem were caused by the Police, the law of strict liability for the negligence of the police in not meeting the basic minimum standard of care in providing him prompt medical attention would stand attracted. The police have to be held liable for the avoidable death of Manoj, while in their custody, on account of their negligence."

The Court noted that the claimants belonged to economically weaker section of the society and have had to suffer the agony of an extraordinarily long wait of over 15 years for justice. Therefore, it directed that a sum of Rs.5,00,000/- (Rupees five lakhs) be paid by the State of Odisha to the Petitioners as compensation for the death of their son while in police custody.