High Court Being A 'Court Of Equity' Must Not Let Rigid Technical Rules To Perpetuate Miscarriage Of Justice: Orissa High Court

"The Court exercising jurisdiction under Article 226 of the Constitution is also a Court of equity. It will have to be mindful of the interests of justice and ensure that in rigidly applying technical rules of procedure miscarriage of justice does not result."

Factual Background:

For the period between 23rd April 1984 and 1st August 1989, the petitioner worked on deputation with the Orissa State Handloom Weavers' Co-operative Society Limited, Bhubaneswar ('the Society'). Long after he was repatriated to his parent Department in the Government of Odisha, he was informed that some shortage was detected on the basis of an audit report concerning the Society. The shortage was to the tune of Rs.7,92,046.08, which was liable to be recovered from him.

The dispute that arose was referred to the Arbitrator under Section 68 of the Orissa Cooperative Societies Act, 1962. The Petitioner contested the case by appearing before the Arbitrator and duly making his submissions. On 1st November, 2003, the Arbitrator delivered a judgment/Award holding that the Society was entitled to recover from the petitioner the aforementioned amount together with the interest @12% per annum from the date of filing of the dispute till the date of its realization.

On 22nd March 2004, the Secretary of the Society wrote to the petitioner stating that in terms of the above Award/ Judgment, he was liable to pay the Society Rs. 14,16,442.40, which included the interest amount. When the petitioner did not respond to the above demand, the first impugned order dated 12th August 2004 was issued by the Directorate of Textiles, Orissa stating that the above amount would be recovered from his salary under Rules 182 and 183 of the Odisha Treasury Code (OTC) commencing from August, 2004 till his retirement.

The Petitioner then challenged the above order before the Odisha Administrative Tribunal (OAT). Till the said petition was disposed of by the OAT, there was an interim stay granted to the petitioner, restraining the Directorate of Textiles and Handlooms, Orissa as well as the Society from making any recovery from his salary pursuant to the order dated 12th August, 2004. However, the OAT decided against the petitioner.

Here, through this writ petition, the petitioner has challenged both the orders of Directorate of Textiles and of the OAT. While issuing notice in the petition, the Court ordered that no recovery would be made from the petitioner otherwise than in accordance with law relating to the execution of the award.

Contentions of the Petitioner:

Mr. Manoj Kumar Mohanty, counsel for the Petitioner intimated the Court that the petitioner has superannuated in the meanwhile. He placed reliance on the decision of the High Court in Swastik Agency v. State Bank of India, 2009 (II) OLR 201. He also relied on the law laid down in Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477, in which the Apex Court held that where a statute required a particular act to be done in a particular manner, it had to be done in that manner alone. Accordingly, he argued that without instituting a proper execution proceeding, the Society could not have sought to recover any amount from the petitioner pursuant to the Award in terms of Rule 182 of the OTC.

Contentions of the Respondent:

Mr. Sailaza Nandan Das, Additional Standing Counsel appearing for the State-Opposite Parties pointed out that the Award dated 1st November 2003 became final. To put it differently, the petitioner did not question or challenge the Award which required him to pay the Society over Rs. 14 lakhs. Thus, when the petitioner made no effort to make any payment whatsoever, the Society had to resort to recovery by invoking Rule 182 of the OTC.

Further, in response to the plea that an execution proceeding should have been instituted, Mr. Das submitted that throughout these long years there has been a stay put on further steps to be taken by the Society, first by the OAT and then by the Court. Therefore, there was no occasion for execution proceedings to be filed by the Society.

Observations and Decision of the Court:

While examining the relevance of Swastik (supra), the Court pointed out that even in that case when the Court detected a procedural illegality, the relief was moulded to ensure that equities were balanced and that the defaulting party viz., the petitioner in that case was not allowed to escape liability by not making any payment whatsoever.

The Court expressed its anguish over the fact that till date the petitioner herein is not prepared to even make a statement about discharging the humongous liability that he owes to the Cooperative Society. It held that the petitioner has avoided the admitted liability for over eighteen years now. Under Article 226 of the Constitution, the Court did not consider it to be a balance of equities to simply quash the impugned orders requiring recovery to be made from the petitioner. It observed,

"A handloom weavers' cooperative society which is owed over Rs. 15 lakhs for over eighteen years has been rendered helpless in seeking to recover even a tiny fraction of the said amount on account of successive interim orders passed first by the OAT and then by this Court. There was no corresponding burden on the Petitioner to deposit at least some part of the said amount as a condition for stay to be granted. Meanwhile, the Petitioner has superannuated and the Court is not informed what his present assets are."

Consequently, the Court was convinced that Opposite Parties were conscious of the requirement of having to comply with Rule 182 of the OTC before obtaining the amount and it is only because of the interim order of the Court that those steps were not taken. Therefore, it rejected the petition and denied to interfere with the impugned orders accordingly.

Case Title: Ramesh Chandra Pani v. State of Orissa and others

Case No.: W.P.(C) No. 10228 of 2006

Judgment Dated: 07 March 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik

Judgment Authored By: Chief Justice Dr. S. Muralidhar

Counsel for the Petitioner: Mr. Manoj Kumar Mohanty, Advocate

Counsel for the Respondents: Mr. Sailaza Nandan Das, Additional Standing Counsel and Mr. A. Mohanty, Advocate for Opp. Party No. 2

Citation: 2022 LiveLaw (Ori) 36