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Orissa High Court Monthly Digest:...

Orissa High Court Monthly Digest: March 2022 [Citations 18-37]

Jyoti Prakash Dutta

3 April 2022 7:32 PM IST

2. No Retrospective Effect Of Notification Imposing Custom Duty On Grant Of Conversion Of Vessels From 'Foreign Going' To 'Coastal Run': Orissa High Court Allows Customs Duty Exemption

Case Title: Great Eastern Shipping Company Ltd. & Anr. v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 19

The High Court held that Notification imposing custom duty on grant of conversion of vessels from 'Foreign Going' to 'Coastal Run' is not applicable retrospectively. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice B.P. Routray has observed that exemption notification dated 17th March, 2012 is only prospective in its application and that in respect of the import of the three vessels i.e. 'Jag Arnav', 'Jag Ratan' and 'Jag Rani' which were imported into India first on 30th April 2003, 13th November, 2007 and 26th August, 2011 respectively, Entry 462 read with Condition No. 82 of the notification dated 17th March, 2012 will not apply. The court observed that a distinction has to be made between levy and customs duty on the value of ship stores that are carried on the vessel and are by themselves 'goods'.

3. Army Pension Regulations | Can't Deny Condonation Of Short-Fall In Pensionable Service Of A Voluntarily Discharged Serviceman U/R 125(a): Orissa HC

Case Title: Ex-CFN Jagadish Chandra Mohanty @ Mohapatra v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 20

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held that Regulation 125(a) of the Pension Regulations for the Army, 1961 cannot be employed to deny condonation of short-fall up to six months in pensionable period of service of a serviceman who was discharged on a voluntary basis. The Court observed, since Regulation 125(a) of the Pension Regulations for the Army is identically worded as Regulation 82(a) of the Pension Regulations for the Navy, the ratio of the decision of the Bombay High Court in Gurmukh Singh v. Union of India (decision dated 22nd November, 2006 in W.P. OAC No.430 of 2005) as affirmed by the Supreme Court in Union of India v. Surender Singh Parmar should be applied. As a result of which, Regulation 125(a) of the Pension Regulations for the Army cannot be relied upon by the respondents to deny to consider the case of the Petitioner for condonation of the short fall in the pensionable service up to six months.

4. Right Of Accused To Recall Witness U/S 311 CrPC Can't Always Be Denied In Lieu Of Prosecutrix's Right U/S 33(5) POCSO Act: Orissa High Court

Case Title: Pidika Sambaru v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 21

A Single Judge Bench of Justice S.K. Panigrahi has ruled that the right of an accused to recall witnesses under Section 311 CrPC cannot be denied only because there exists a right of prosecutrix under Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"). The said provision requires the Special Court to ensure that the child (prosecutrix) is not called repeatedly to testify in the court. While allowing the revision petition, it was held that the provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law.

5. Blacklisting Of An Entity By Govt In A Contractual Matter Is Subject To Doctrine Of 'Proportionality': Orissa High Court

Case Title: M/s. Ram Kumar Agrawal Engineers Pvt. Ltd. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 22

The High Court has ruled that the decisions of government to blacklist entities in contractual matters are subject to the 'doctrine of proportionality'. While allowing the writ petition filed against a blacklisting order, a Division Bench of Justices Dr. B.R. Sarangi and S.K. Panigrahi held that it is also well settled that the High Court, while exercising power of judicial review, would be reluctant to substitute its own opinion on the quantum of penalty or punishment imposed. However, if the High Court finds the punishment as imposed shockingly disproportionate, the interference with the same would be warranted even if it is a contractual dispute.

6. "Acted Out Of Sudden Provocation": Orissa High Court Converts Conviction U/S 302 to U/S 304 Part II, IPC Of A Man Accused Of Killing His Mother

Case Title: Gobardhan Pradhan v. State of Orissa

Citation: 2022 LiveLaw (Ori) 23

The Court converted the conviction of a person charged under Section 302 of IPC, for killing his own mother, to one of culpable homicide not amounting to murder under Section 304 Part II, IPC. While providing relief to the accused, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed,

"The fact also remains that the accused did not use any dangerous weapons. He first used the walking stick of the deceased herself and later a stone locally available. Clearly, he acted out of sudden provocation when his mother tried to dissuade him from going to the village. He did not try to flee after attacking her. He is also not shown to have any history of criminal behaviour."

7. Deposit Of Amount In No-Lien/Escrow Account Will Not Constitute 'Actual Payment' U/S 43B Of Income Tax Act: Orissa High Court

Case Title: M/s. Indian Metal and Ferro Alloys Ltd. v. Commissioner of Income Tax, Bhubaneswar

Citation: 2022 LiveLaw (Ori) 24

A Division Bench of the Court, comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik, has ruled that deposit of amount in 'no-lien/escrow account' will not constitute 'actual payment' under Section 43-B of the Income Tax Act, 1961. The Section provides a list of expenses allowed as deduction under the head 'income from business and profession'. It states some expenses that can be claimed as deduction from the business income only in the year of actual payment. While denying relief to the appellant, the Court observed,

"A payment envisages a payer and a payee. If only one part is fulfilled viz., the payer has made the payment, but the payee has not received it, then it cannot be said that the sum has been 'actually' paid. While the Assessee as payer may have parted with the amount, it has not totally lost control over it. The payment has been made conditional and it has been ensured that if the Assessee ultimately succeeds in the litigation, the amount will not be actually paid to the State Government."

8. Income Tax Act | Interest Earned From Bonds Towards Late Payment Of Energy Bills Can Be Deducted As 'Power Profit' U/S 80-IA(4)(iv): Orissa High Court

Case Title: Odisha Power Generation Corporation Ltd. v. Asst. Commissioner of Income Tax, Circle 2(2), Bhubaneswar & Ors.

Citation: 2022 LiveLaw (Ori) 25

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held that interest earned from the bonds towards late payment of electricity bills can be deducted as 'power profit' under Section 80-IA(4)(iv) of the Income Tax Act, 1961 ("the Act"). The Court acknowledged the motive behind the enactment of the said provision. It noted that the very object of enacting Section 80-IA was to encourage setting up of an industry involved in the generation and distribution of electricity or any other form of energy and the production, manufacture and construction of articles specified in the 5th Schedule to the Act. The idea was to provide incentives for promoting efficiency in the industry.

9. S.227 CrPC | Accused Must Be Discharged In Absence Of 'Grave Suspicion': Orissa High Court

Case Title: Shantanu @ Priyabrata Senapati v. State of Orissa

Citation: 2022 LiveLaw (Ori) 27

The High Court has recently held that there must be 'grave suspicion' and not mere 'suspicion' against the accused before the Court can frame charge against him. Otherwise, there will be 'sufficient ground' under Section 227 of CrPC to discharge the accused. While allowing the revision against a lower Court's order, a Single Judge Bench of Justice Sashikanta Mishra observed that to further explain, suspicion per se may be entirely in the realm of speculation or imagination and may also be without any basis, whereas grave suspicion is something which arises on the basis of some acceptable material or evidence. Only because there is no other explanation for the alleged occurrence, the needle of suspicion should point at the accused cannot be a reasonable basis to proceed with the trial against him.

10. Service Law | Govt. Employees Can't Be Removed From Service Without Following Due Statutory Procedures: Orissa High Court

Case Title: Akshay Kumar Nayak v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 28

A Single Judge Bench of Justice Sashikanta Mishra held that a person cannot be removed from his service without complying the relevant statutory pre-requirements. It observed that in so far as the Odisha Service Code is concerned there is a clear-cut statutory provision that even in a case of a Government Servant remaining absent from duty exceeding five years, he shall be removed from service but only after following the procedure laid down in the Rules. Law is well established that when the statute requires a thing to be done in a particular manner, the same is to be done in that manner or not at all. Therefore, notwithstanding the fact that the petitioner can be prima-facie held guilty of disobeying the orders of the authority by remaining continuously absent for more than five years, yet he cannot simply be removed without taking recourse to the prescribed statutory process.

11. "Affected The Right To Livelihood Of The Petitioner U/A 21": Orissa HC Reinstates A Physically Handicapped Teacher Who Was Removed After Appointment

Case Title: Kamalakanta Sahu v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 29

The High Court reinstated a physically handicapped person who was engaged as a teacher, but was removed later, on the basis of a report of Appellate Board which found him scarcely disabled. While granting relief to the petitioner, a Single Judge Bench of Justice Sashikanta Mishra wrote,

"It must be kept in mind that the State is supposed to be a model employer and as such, cannot be allowed to take actions that are arbitrary and not countenanced in law. In the instant case, the Opposite Party-authorities are guilty of approbation and reprobation, i.e. of blowing hot and cold at the same in the manner as described above thereby adversely affecting the right to livelihood of the Petitioner included under Article 21 of the Constitution of India."

12. Bar U/S 362 CrPC Is Not Absolute; Court Has Inherent Jurisdiction To Recall Order For Securing The Ends Of Justice: Orissa High Court

Case Title: Siba Bisoi & Ors. v. State of Odisha

Citation: 2022 LiveLaw (Ori) 30

The High Court has held that bar under Section 362 is not absolute and the same cannot be strictly applied to 'recall of orders' which are obtained through playing fraud upon the Court. While recalling an order which was obtained through misrepresentation of dates, a Single Judge Bench of Justice Sashikanta Mishra held,

"The position that emerges from a reference to the case laws noted above is that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 of Cr.P.C. can be exercised if any of the three conditions exist, namely, to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice."

13. Insurance Company Can't Deny Claim Merely Because Person Insured Is Allegedly Involved In Multiple Motor Accidents: Orissa High Court

Case Title: The Divisional Manager, National Insurance Co. Ltd. v. Sunil Majhi & Anr.

Citation: 2022 LiveLaw (Ori) 31

The High Court has held that merely because a person driving a vehicle is involved in multiple road accidents, at different point in time, is no reason for the Insurance company to deny his claim. A Single Judge Bench of Justice B.P. Routray observed,

"no logic is there in the contention of the Appellant that because the accused is involved in more than one accident at different points of time, the claim of compensation contemplated under Sec.166 of the M.V. Act would be nullified on that ground."

14. MV Act | Multipliers Under Second Schedule To Be Applied Even If At The Time Of Accident Those Were Not In Force: Orissa High Court

Case Title: The Divisional Manager, New India Assurance Co. Ltd., Bhubaneswar v. Sauri Das & Ors.

Citation: 2022 LiveLaw (Ori) 32

A Division Bench of the High Court, comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik, has held that the 'multipliers' provided under the second schedule to the Motor Vehicles Act, 1988 can be applied even in the cases where at the time of adjudication the schedule was in force, though it was not operational at the time of accident. The Bench observed,

"The MV Act being a statute intended to benefit accident victims, the Schedule thereto ought to be applied in pending cases of accident victims even if the accident occurred at a time when the Schedule was not in force."

15. S. 194-I Income Tax Act | TDS Can't Be Deducted In Absence Of Payment Of Rent: Orissa High Court

Case Title: Commissioner of Income Tax, Bhubaneswar v. Western Electricity Supply Company of Odisha Limited (WESCO)

Citation: 2022 LiveLaw (Ori) 33

The High Court has held that in absence of payment of rent, the obligation to deduct tax at source ('TDS') under Section 194-I of the Income Tax Act, 1961 does not arise at all. Notably, the said provision deals with 'TDS on rent'. While dismissing an Income Tax Appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed,

"In absence of there being any payment of rent or even deemed rent by the Respondents to OPTCL there was no obligation under Section 194-I of the IT Act to deduct TDS from the wheeling charges paid to OPTCL."

16. COVID-19 Deaths | Orissa High Court Directs The State To Pay Compensation For Negligence By State-Run Medical Facility

Case Title: Gyanadutta Chouhan v. The Additional Chief Secretary to Government, Health & Family Welfare Department, Government of Odisha

Citation: 2022 LiveLaw (Ori) 34

In a significant decision, the High Court has held liable a State-run medical facility, i.e. Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), for medical negligence which caused death of two COVID-19 patients. While issuing directions for payment of ex-gratia and compensation to the victims and their kins, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanik observed,

"The Court in the present instance is dealing with violation of the right to health of the victims guaranteed and protected under Article 21 of the Constitution of India. After the judgment of the Supreme Court in Pt. Parmanand Katara v. Union of India, 1989 AIR 2039 and Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37, no person can be denied adequate standard of medical care in Government health institutions. The excuse of lack of resources was never accepted by the Supreme Court of India."

Accordingly, the Court proceeded on to direct the following:

On or before 15th April 2022, the State shall pay Rs.50,000/- as ex gratia amount to the victims (if alive) and the next of kin of the victims who have died, on account of the COVID-19 disaster whose names have been mentioned in the report of Shri A.B.S. Naidu, Retired District Judge;
Rs. 5 lakhs shall be paid each to the families of the two victims who died, as compensation for their respective deaths on account of the medical negligence. This will be in addition to Rs.50,000/- ex gratia amount which will be payable to the said families.

17. Odisha Judicial Service: High Court Turns Down Plea To Relax 'Upper Age Limit'

Case Title: Pratap Kumar Bhuyan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 35

A Division Bench of the High Court comprising of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik dismissed a writ petition which sought for relaxation in the 'upper age limit' of the Odisha Judicial Service (OJS), in similar line with the increase in the upper age limit for recruitment to 'civil posts' of the state. The Court held that in the present case, it has not been found expedient for such relaxation to be extended. It also noted that under Rule 41 of the OSJS and OJS Rules while certain provisions of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 and the provisions of the Odisha Service Code have been made applicable, but the Odisha Civil Service (Fixation of Upper Age Limit) Rules, 2022 and the amendments thereto have not been made applicable to the OJS and OSJS.

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

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

Citation: 2022 LiveLaw (Ori) 36

The High Court has held that it being a Court of equity, must not let rigid technical rules of procedure to trump justice and to pave way for manifest miscarriage of justice. While denying relief to a person, who had been evading his liability for almost two decades under the garb of procedures, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"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."

19. Passport Renewal Request Can't Be Rejected On Sole Basis Of Pendency Of Criminal Cases: Orissa High Court

Case Title: Asutosh Amrit Patnaik v. State of Orissa & Ors.

Citation: 2022 LiveLaw (Ori) 37

The High Court has held that mere pendency of criminal cases cannot be the sole ground to deny renewal of passport of a person. A Single Judge Bench of Justice Biswanath Rath observed that there is in fact no restriction in the renewal of the passport or even grant of passport in the pendency of the criminal proceeding involving the party concerned which may be a time-based renewal or grant. The Court relied upon multiple cases to arrive at the aforesaid conclusion, including the recent judgment of the Supreme Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation.