Orissa High Court Monthly Digest: June 2022 [Citations 94-107]

Siba Prasanna Pathy v. State of Odisha & Ors., 2022 LiveLaw (Ori) 94

Pradip Kumar Sahoo v. Principal Secretary to Govt., School and Mass Education Deptt. & Ors., 2022 LiveLaw (Ori) 95

Mohammad Arif v. Enforcement Directorate, 2022 LiveLaw (Ori) 96

Bhuban Mohan Behera v. State of Odisha & Anr., 2022 LiveLaw (Ori) 97

Rajendra Mohanta v. State of Odisha & Anr., 2022 LiveLaw (Ori) 98

Satyananda Sahoo v. State of Odisha & Anr., 2022 LiveLaw (Ori) 99

Sukuludei Santa v. Govt. of Odisha & Ors., 2022 LiveLaw (Ori) 100

Sanjay Kumar Naik v. State of Odisha & Ors., 2022 LiveLaw (Ori) 101

M/s. P.K. Ores Pvt. Ltd. @ M/S. PK Minings Pvt. Ltd. Versus Commissioner of Sales Tax, 2022 LiveLaw (Ori) 102

Koushalya Das v. State of Odisha & Ors., 2022 LiveLaw (Ori) 103

Subash Mohapatra & Ors. v. State of Odisha & Anr., 2022 LiveLaw (Ori) 104

Dillip Kumar Baral v. State of Odisha & Ors., 2022 LiveLaw (Ori) 105

GMR Kamalanga Energy Ltd. versus SEPCO Electric Power Construction Corporation, 2022 LiveLaw (Ori) 106

Shriya Chhanchan v. State of Odisha & Ors., 2022 LiveLaw (Ori) 107

Judgments/Orders Reported This Month:

1. No Absolute Rule That One Ad-Hoc Employee Can Never Be Replaced By Another Ad-Hoc Employee: Orissa HC Distinguishes SC Judgment

Case Title: Siba Prasanna Pathy v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 94

The Orissa High Court held that there is no absolute rule that one ad-hoc/temporary employee can never be replaced with another ad-hoc employee. It further observed that an ad-hoc employee has no vested right to his post and he can anytime be replaced by any other ad-hoc employee, if found incompetent. In holding so, the Court apparently differed with the dictum laid down by the Supreme Court recently in Manish Gupta and Ors. v. President, Jan Bhagidari Samiti and Ors. While dismissing a challenge against termination of a guest faculty, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,

"…there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee. For example, if a temporary appointee in service is incompetent, can he not be allowed to replace with a competent or more competent person. This Court sees no reason why the competent person cannot be appointed in place of the incompetent person, even if both appointments are ad hoc or temporary appointees."

Also Read: Appointment Of Guest Lecturers On Large Scale Without Regular Appointments Likely To Make 'Huge Dent' On Quality Of Education: Orissa High Court

2. "Improper To Keep Such Cases Pending For Years": Orissa High Court Orders Compassionate Appointment For Two After 7 Yrs Delay

Case Title: Pradip Kumar Sahoo v. Principal Secretary to Govt., School and Mass Education Deptt. & Ors.

Citation: 2022 LiveLaw (Ori) 95

The Orissa High Court held that it is highly improper to keep the cases of compassionate appointment pending for years, as the very purpose behind the same is to mitigate hardship of a bereaved family. While making orders for compassionate appointment in favour of two persons after seven years delay, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed, "It is stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress."

3. Orissa High Court Denies Bail To Accused Under PMLA Citing Flight Risk; Orders Conclusion Of Trial Within Six Months

Case Title: Mohammad Arif v. Enforcement Directorate

Citation: 2022 LiveLaw (Ori) 96

The Orissa High Court denied bail to an accused under the Prevention of Money Laundering Act (PMLA) citing 'flight risk'. However, it ordered the Trial Court to expedite and conclude the trial preferably within a period of six months. While dismissing the bail application, a Single Judge of Justice Sanjeeb Kumar Panigrahi observed, "Since the petitioner is a resident of Delhi and there is likelihood of flight risk and misuse of the liberty of bail and the trial is likely to suffer, the present case does not inspire the confidence of this Court to use the judicial discretion to grant bail in favour of the petitioner."

4. Candidates Holding 'Dual Degrees' Can't Be Arbitrarily Rejected While Making Appointments To Public Office: Orissa High Court

Case Title: Bhuban Mohan Behera v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 97

The Orissa High Court held that candidature of a candidate seeking appointment to a public office cannot be outrightly and arbitrarily rejected only on the basis that he holds 'dual degrees'. While providing relief to a candidate, whose application was rejected for such reason, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi opined,

"Indisputably, in the case at hand, this Court is of the opinion that in the matters of appointment, the rules provided by the appointing committee have to be strictly followed. In the present case, OPSC has not provided any instructions for candidates holding dual degrees. Even though this can be considered as a distinctive case, however it is arbitrary to out-rightly reject the candidature of the petitioner."

5. Orissa High Court Denies Bail To Man Accused Of Raping Woman On False Assurance Of Marriage

Case Title: Rajendra Mohanta v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 98

The Orissa High Court denied bail to a man, who was accused of having sexual intercourse against the will of a woman on the false assurance of marriage. While rejecting the bail, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi quoted the following observation made by the Supreme Court in State of Madhya Pradesh v. Madanlal,

"Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error."

6. Orissa High Court Upholds Denial Of Default Bail To Man Accused Of Uploading 'Obscene Photos' Of Women On Facebook Accounts

Case Title: Satyananda Sahoo v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 99

A Single Judge Bench of the Orissa High Court, comprising of Justice Sanjeeb Kumar Panigrahi, upheld the order of a Special Court denying default bail under Section 167(2), Cr.P.C. to a person who was accused of uploading 'obscene photographs' of women by creating fake Facebook accounts in their names. It also denied regular bail to the accused by observing, "So far as the prayer of the appellant for release on bail is concerned, taking into account the nature and gravity of the accusation, character of evidence appearing against the appellant, the stringent punishment provided and that there are no reasonable grounds for believing that the appellant is not guilty of the offences alleged or not likely to commit any such offences, which is not possible to record in this case, the prayer for bail is devoid of merit."

7. Not Compulsory To Forward Claims For Victim Compensation To Administration Through 'Legal Services Authority': Orissa High Court

Case Title: Sukuludei Santa v. Govt. of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 100

The Orissa High Court held that it is not mandatory for a victim to forward his/her claims for compensation to the appropriate authority through the Legal Services Authorities (LSA). Further, it clarified that the LSAs are there only to provide assistance to claimants for making representations to the administration. A Single Judge Bench of Justice Arindam Sinha observed,

"It could not be shown that Legal Services Authorities Act, 1987 mandates claimants of victim compensation to forward their claims through the authority to the administration. The administration has a policy on compensation. The authority merely renders assistance to claimants in moving the administration."

8. Orissa High Court Dismisses PIL Seeking Cancellation Of India-South Africa T20 At Barabati Stadium

Case Title: Sanjay Kumar Naik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 101

The Orissa High Court dismissed the Public Interest Litigation (PIL) filed by one Sanjay Kumar Naik, seeking cancellation of T-20 International match between India and South Africa at Barabati Stadium, Cuttack. The match was scheduled to be held on 12^th June 2022. A vacation Bench comprising Justice Sangam Kumar Sahoo and Justice Murahari Sri Raman dismissed the petition after the State provided assurance of safety and security at the stadium premises. The Bench observed,

"The learned Advocate General emphatically contended that the Odisha Cricket Association (OCA) has already made elaborate and comprehensive arrangements for smooth and successful conduct of the event in collaboration with the State Government, Police department and other stake holders and several measures have been taken towards fire safety with the help of Fire Services Department and safety of spectators is the utmost concern of the State Government and there will be no difficulty for the spectators in any manner during the match and since it is an international event, no order should be passed which will have a far-reaching consequence in organizing such event in Barabati Stadium in future."

9. Commissioner Can't Allow Deposit Of Interest Payment In Instalments: Orissa High Court

Case Title: M/s. P.K. Ores Pvt. Ltd. @ M/S. PK Minings Pvt. Ltd. Versus Commissioner of Sales Tax

Citation: 2022 LiveLaw (Ori) 102

A Division Bench of Justices Jaswant Singh and Murahari Sri Raman held that the Commissioner of CT & GST is not empowered to allow the deposit of interest payments in instalments. The Court held that since interest is a part of tax and such tax being belated payment in respect of self-assessment, Section 80 of the OGST Act clearly excludes grant of instalment.

"The taxable person shall also be liable to pay prescribed interest on the amount due from the first day such tax was due to be payable till the date tax is paid. In view of the proviso to Section 80, if default occurs in payment of any one instalment, the taxable person would be required to pay the whole outstanding balance payable on such date of default itself without further notice. There was, therefore, no scope for the Commissioner of CT & GST to entertain an application for grant of instalment"

10. Can't Issue Writ Of Habeas Corpus In Child Custody Matters Between Husband & Wife: Orissa High Court

Case Title: Koushalya Das v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 103

The Orissa High Court declined to issue the writ of habeas corpus in favour of a woman who claimed custody of her minor child from her husband. A Division Bench of Justices Sangam Kumar Sahoo and Murahari Sri Raman widely noted the observations made by the Apex Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors., while discouraging issuance of habeas corpus for granting custody of child from one parent to another. It further noted,

"In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

11. State Vigilance Department Can't Be Completely Exempted From Operation Of RTI Act: Orissa High Court

Case Title: Subash Mohapatra & Ors. v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 104

In a significant decision, the Orissa High Court held that the Vigilance Department of the State cannot be completely exempted from the operation of the Right to Information Act, 2005. It directed that information pertaining to allegations of corruption and human rights violations and also information pertaining to activities undertaken by the Department, which are not sensitive or confidential, should be disclosed under the RTI. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"Thus, it is seen that what cannot be kept outside the purview of disclosure under the RTI Act as spelt out in the proviso to Section 24(4) of the RTI Act is information pertaining to "allegations of corruption and human rights violations" in both sub-categories of cases as noted hereinbefore viz., cases generally concerning allegations of corruption and human rights violations which are under investigation by or have been investigated by the concerned intelligence and security organisations established by the State Government' or cases concerning allegations of corruption and human rights violations involving those working for or employed by the said organisations established by the State Government."

12. Orissa High Court Disposes Pending Case Challenging Puri Jagannath Temple Corridor Project In View Of Supreme Court Decision

Case Title: Dillip Kumar Baral v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 105

The Orissa High Court disposed of the pending writ petition challenging Puri Shree Jagannath Temple Corridor Project, in view of the recent decision of the Apex Court in Ardhendu Kumar Das v. State of Odisha. Notably, in that case, the Supreme Court dismissed two petitions filed against some construction works undertaken by the Odisha Government in the adjacent area of the centuries-old holy shrine. Not only those petitions were dismissed, but heavy costs of one lakh each were imposed on both the petitioners. While disposing of the case, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik categorically stated, "In view of the above observations of the Supreme Court of India in the aforementioned order dated 3rd June, 2022 concerning the present writ petition i.e., W.P.(C) No.6257 of 2022, it is not possible for this Court to continue to entertain the said petition as a PIL."

13. Arbitral Award Cannot Be Set Aside On The Ground That It Is Based On Insufficient Material: Orissa High Court

Case Title: GMR Kamalanga Energy Ltd. versus SEPCO Electric Power Construction Corporation

Citation: 2022 LiveLaw (Ori) 106

The Orissa High Court reiterated that an arbitral award cannot be set aside on the ground of breach of fundamental principles of justice, if the findings of the Arbitral Tribunal do not shock the conscience of the Court. A Single Bench of Justice K.R. Mohapatra held that even if the material available before the Arbitral Tribunal is not sufficient to come to the conclusion arrived at by the Tribunal, the award cannot be set aside on this ground alone.

14. Orissa High Court Orders Compensation To Woman Who Got Pregnant Even After Undergoing Sterilization

Case Title: Shriya Chhanchan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 107

The Orissa High Court ordered compensation to a woman who got pregnant even after undergoing sterilization process conducted by the State. While criticising the State for not following the proper procedures, a Single Bench of Justice Arindam Sinha observed,

"State not having itself followed the procedure to the letter cannot turn around and say that petitioner had omitted to act as per undertaking given by her, to report that she missed menstrual cycle after the operation. As aforesaid analysis of pleadings in paragraphs 4 and 6, respectively of the petition and counter, do not support this contention of State."

Other Important Developments:

1. PIL In Orissa High Court Seeks Cancellation Of T-20 Match Between India & South Africa At Barabati Stadium

Case Title: Sanjay Kumar Naik v. State of Odisha & Ors.

Case No.: W.P.(C) (PIL) No. 14024 of 2022

A Public Interest Litigation (PIL) was filed before the Orissa High Court, praying for cancellation of the 2^nd T-20 match between India and South Africa, which was scheduled to be held on 12^th June 2022 at Barabati Stadium, Cuttack. The petition was filed by a human rights activist named Sanjay Kumar Naik. He impleaded 15 numbers of parties as respondents, including the State of Odisha, Odisha Cricket Association and BCCI. He claimed that there is no fire 'safety measure certificate' as well as 'structural safety certificate' issued to the concerned authority for organising an international match which is likely to host approximately 45,000 spectators. The petitioner claimed that an organisation, which is not complying with mandatory requirement of law, should not be allowed to perform any function with the aid of government functionaries. It also mentioned that the government functionaries must also be conscious of their responsibilities to ensure compliance with mandatory requirements of law, particularly 'fire safety measures' under the Odisha Fire Prevention and Fire Safety Rules, 2017 (as amended in 2019).

2. PIL Filed In Orissa High Court Against Felling Of Hundreds Of Trees For Construction Of MLA Quarters In Bhubaneswar

Case Title: Jayanti Das v. State of Odisha & Ors.

Case No.: W.P.(C) No. 14046 of 2022

A Public Interest Litigation (PIL) was filed against the proposal to cut around 870 numbers of age-old trees to construct multi-storey quarter buildings for Members of Legislative Assembly (MLAs) of Odisha, in the heart of the capital city of Bhubaneswar. It was filed by a social activist named Ms. Jayanti Das. The petitioner said that violence is not merely restricted to physical violence rather curtailing the gift of nature to the future generations is also form of violence. Thus, she sought urgent intervention and urged the Court to take appropriate action which shall permanently halt such destruction of the nature. She further prayed the Court to order the opposite parties to file affidavit about the number of trees already destroyed and to direct them to pay compensation for such damage as per the guidelines of the Apex Court.

3. Centre Notified Appointment Of Advocate Sanjay Kumar Mishra As A Judge Of Orissa High Court

The Centre notified the appointment of Advocate Mr. Sanjay Kumar Mishra as a Judge of Orissa High Court. With his appointment, the working strength of the Court rose to 22.

4. Lawyer Challenges Notification Issued By Orissa High Court Conferring 'Senior Designation' On 8 Advocates

A lawyer challenged the notification issued by the Orissa High Court on 27^th April 2022, which conferred 'senior designations' on eight (8) advocates. The said notification has been assailed for being violative of the guidelines issued in Indira Jaising v. Supreme Court of India through Secretary General & Ors., the Advocates Act, 1961 and the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 ('the Rules'). The Petition, inter alia, stated,

"That the action of the permanent committee sending nine names including the names of the opposite party No. 4 to 11 to the Hon'ble Full Court is completely arbitrary, discriminatory and not bona fide the same being contrary to the Rules, 2019."