Orissa High Court Weekly Round Up: May 23 - May 29, 2022

1. Dr. Minaketan Pani v. State of Orissa, 2022 LiveLaw (Ori) 81

2. Krushna Prasad Sahoo v. State of Orissa & Ors., 2022 LiveLaw (Ori) 82

3. Chittaranjan Mohanty v. State of Odisha & Ors., 2022 LiveLaw (Ori) 83

4. Lasyamayee Mohanta v. Union of India & Ors., 2022 LiveLaw (Ori) 84

5. Rabindra Panigrahi v. State of Odisha & Ors., 2022 LiveLaw (Ori) 85

6. Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr., 2022 LiveLaw (Ori) 86

7. M/s. JSW Steel Ltd. Versus Union of India, 2022 LiveLaw (Ori) 87

8. Ugrasen Sahu v. State of Odisha & Ors., 2022 LiveLaw (Ori) 88

9. Sovakar Guru v. State of Odisha & Ors., 2022 LiveLaw (Ori) 89

10. Kantaro Kondagari @ Kajol v. State of Odisha & Ors., 2022 LiveLaw (Ori) 90

11. Dulamani Patel v. State of Odisha & Ors., 2022 LiveLaw (Ori) 91

12. Varsha Priyadarshini v. Government of India & Ors., 2022 LiveLaw (Ori) 92

Judgments/Orders Reported This Week:

1. Honourable Exoneration In Departmental Proceedings Would Warrant Quashing Of Criminal Prosecution Arising From Same Set Of Facts: Orissa High Court

Case Title: Dr. Minaketan Pani v. State of Orissa

Citation: 2022 LiveLaw (Ori) 81

In a landmark decision, the Orissa High Court has held that honourable exoneration in departmental proceedings would warrant quashment of criminal prosecution which emanated from the same set of facts. While quashing criminal charges against the petitioner, a Single Judge Bench of Chief Justice Dr. S. Muralidhar held,

"…in the facts and circumstances of the present case where on the same charges on which the Petitioner is facing criminal trial he has been honourably exonerated in the departmental proceedings, the Court adopts the reasoning of the decisions in Radheyshyam Kejriwal v. State of West Bengal (supra) and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and sets aside the impugned order dated 15th January 2009, passed by the Sub-Divisional Judicial Magistrate (S) Cuttack in G.R. Case No.1057 of 2007."

2. Just One Psychiatrist For All Prisoners With Mental Illnesses; Not Sustainable: Orissa High Court Expresses Concern On Prison Conditions

Case Title: Krushna Prasad Sahoo v. State of Orissa & Ors.

Citation: 2022 LiveLaw (Ori) 82

The Orissa High Court has expressed deep concerns on the issue of the mental health of prisoners. On knowing that there exists only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S. Muralidhar and Justice R.K. Pattanaik noted,

"This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses."

The development came in an ongoing case in which the High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State. It had also directed all the District Legal Services Authorities (DLSAs) to inspect the above-noted basic amenities in all the prisons and sub-jails of Odisha. In an earlier order, the District Magistrates were directed to visit the jails using the prison inspection format prepared by Commonwealth Human Rights Initiative, New Delhi (CHRI). Based on the reports of these visits, the OSLSA submitted that there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. The Director General, Prisons anticipated that this number may be even higher and around 500 prisoners. The Court expressed deep concern on the submission that there is just one psychiatrist who caters to the needs of all prisoners in the State. The Court also touched on the issues of overcrowding, Prison Development Board, segregation of prisoners, and other concerns.

3. Orissa High Court Issues Directions To Govt For Improving Public Healthcare Facilities In State

Case Title: Chittaranjan Mohanty v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 83

The Orissa High Court recently held hearing on a holiday (21^st May 2022) to review the lacunae in the Public Healthcare Facilities of the State. It also issued a slew of directions to the State Government for improvement of conditions in the government hospitals. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik expresses serious disappointment over unavailability of basic medical facilities and observed,

"Nearly six months have been elapsed since the visits were undertaken by the teams of the DLSAs. The Court finds from the reports submitted by them that in many of the districts urgent corrective action requires to be taken. In many DHHs, CHCs and PHCs not all the doctors shown on the rolls of the facility were present; in many no nurses were found and staff were absent. Lack of cleanliness is a major issue as are lack of functional, clean toilets. Even the availability of clean drinking water is a big problem. In many places the registers for stocks of drugs were either not available or not properly maintained. It is a matter of concern that, in many of the DHHs, CHCs and PHCs ambulances were not available."

4. "Country's Prestige Involved": Orissa HC Orders Centre To Make All Arrangements For Participation Of Women U-18 Volleyball Team In Asian Championship

Case Title: Lasyamayee Mohanta v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 84

The Orissa High Court has directed the Union of India to make all arrangements, including financial and travelling provisions, for the Indian Under-18 Women's Volleyball Team to participate in the 14^th Asian Women's Volleyball Championship, which is scheduled to be held in June at Nakhon Pathom city of Thailand. While expressing serious dismay at the inaction of the Union of India in this respect, a Single Judge Bench of Justice Biswanath Rath observed,

"It is at this stage, this Court also considers the prestige of the Country involved herein. A Country having 175 crores of people even and at its position, if it fails in sending the contingency already selected to participate in the prestigious event like the 14th Asian Women's U-18 Volleyball Championship, will not send a good signal. This Court finds, the Union of India is even not coming to assist the Court for involving a contest at their level. This Court records the bizarre affair in the cooperation of O.Ps. 1 & 2 in such serious matter in spite of two adjournments already granted."

5. "May Seem Plausible On Grounds Of Natural Justice, May Not Be Possible Legally": Orissa HC Rejects Challenge To Evaluation In Teachers Recruitment Exam

Case Title: Rabindra Panigrahi v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 85

The Orissa High Court has recently rejected the plea of a candidate who challenged the evaluation process of the examination conducted for appointment of contractual Hindi teachers in government secondary schools. While dismissing the writ petition, the Single Bench of Justice Sanjeeb Kumar Panigrahi observed,

"The court needs to see what is legally possible and not what possibly dehors the legal process. A thing that may seem plausible on the grounds of natural justice, may not be possible legally. As succinctly put by Mathew, J. in his judgment in the Union of India v. M.L. Kapur, "it is not expedient to extend the horizon of natural justice involved in the Audi alteram partem rule to the twilight zone of mere expectations, however great they might be."

6. Unlawful Possession Can't Be Defended On The Ground That Eviction Clause In Statute Is Prospective In Nature: Orissa High Court

Case Title: Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr.

Citation: 2022 LiveLaw (Ori) 86

The Orissa High Court has clarified that an unlawful possession of a property, which does not bestow any right, cannot be defended only on the ground that the legislation, which authorises eviction, is prospective in nature. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,

"A lawful right is always protected and cannot be taken away by an amendment brought into force at a later point of time. However, it does not mean that an unlawful possession which does not convey any right can still be defended on the ground that the Act to be prospective in nature. Unless, a possession is shown to be lawful, it has to be treated as unlawful as on the date when the amended Act came into force. Furthermore, it has to be treated as continuous wrong so long as the possession is unauthorized."

7. ITC Transfer From One State To Another Is Not An Inward Supply: Orissa High Court

Case Title: M/s. JSW Steel Ltd. Versus Union of India

Citation: 2022 LiveLaw (Ori) 87

The Orissa High Court bench of Justice Jaswant Singh and Justice M.S. Raman has ruled that an input service distributor (ISD) can claim ITC only in the case of an inward supply, and an ITC transfer from one state to another is not an inward supply.

"Since no such supply being shown to have been made by JSW Steel Ltd. of Odisha to JSW Steel Ltd. of Maharashtra, no prima facie case is made out by the Petitioner. The transactions in question prima facie amount case are made out by the Petitioner. Thus, transactions in question prima facie amount to syphoning of tax amounts, therefore, apparently warrant invocation of proceeding under Section 74 of the OGST/CGST Act", the court observed.

8. Employees Should Not Be Permitted To Change Date Of Birth At The Fag End Of Their Service Career: Orissa High Court

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

Citation: 2022 LiveLaw (Ori) 88

The Orissa High Court has held that applications of employees to change their date of birth should not be entertained when they apply for the same at the fag end of their service career. A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,

"Apart from the notification and the said guidelines, the Hon'ble Supreme Court in a series of cases have categorically laid down that the employees should not be permitted to change the date of birth at the fag end of their service career. In the instant case the application of alteration has been filed at the fag end of the Petitioner's service career."

9. Entitlement Of Employee To Salary/ Pension Is Intrinsic Part Of His Rights To Life & Property Under Articles 21 & 300A: Orissa High Court

Case Title: Sovakar Guru v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 89

The Orissa High Court has held that entitlement of an employee or an ex-employee to his salary or pension, as the case may be, is an intrinsic part of his right to life under Article 21 and right to property under Article 300A of the Constitution. While allowing payment of interest on the arrears of a retired government employee, a Single Bench of Justice Sanjeeb Kumar Panigrahi observed,

"Moreover, the employees cannot be allowed to suffer because of inaction on the part of the employer for no fault of the employees. The employee is definitely entitled to get the payment as per the service conditions on due dates and/or in a given case within reasonable time. The employees, had the payment received within time and/or on due dates, could have utilised the same for various purposes."

10. "Transgender Has Every Right To Choose Gender": Orissa High Court Orders Family Pension To Transwoman

Case Title: Kantaro Kondagari @ Kajol v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 90

The Orissa High Court has recently ordered grant of family pension to a transwoman, who was allegedly discriminated on the basis of her gender while allowing pensionary benefits after the death of her parents. A Single Bench of Justice Aditya Kumar Mohapatra held,

"…this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon'ble Apex Court in NALSA's Case (supra) and as such, the law laid down by the Hon'ble Supreme Court is binding on all."

11. Govt. Employee Has No Legal/Statutory Right To Insist For Being Posted At A Particular Place: Orissa High Court

Case Title: Dulamani Patel v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 91

The Orissa High Court has recently denied the prayer made by a government employee who insisted to get promoted to a post situated at a particular place. It held that no government employee has a legal or statutory right to claim a post of one particular place and thereby avoiding transfers. While, dismissing the writ petition, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,

"The Petitioner's prayer insofar as promoting and repositioning him in the school where he was continuing or at a nearby place, is unsustainable as the Petitioner was holding a transferable post and under the conditions of service applicable to him, he was liable to be transferred and posted at any place within the State of Odisha. The Petitioner had no legal or statutory right to insist for being posted at one particular place."

12. Orissa High Court Restrains MP Anubhav Mohanty, Wife Varsha Priyadarshini From Commenting Against Each Other During Pendency Of Divorce Case

Case Title: Varsha Priyadarshini v. Government of India & Ors.

Citation: 2022 LiveLaw (Ori) 92

A Vacation Division Bench of the High Court comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo recently ordered Member of Parliament (MP) from Kendrapara and Odia actor Anubhav Mohanty to refrain from making any video/comment against his wife and actor Varsha Priyadarshini in any media, including social media during the pendency of their divorce proceedings. A similar direction has been passed against his wife. Varsha Priyadarshini had recently approached the High Court against her husband, alleging that he is maligning her image by making a series of videos and releasing them on YouTube.

Other Development(s):

Orissa High Court Notifies CPC (Odisha Amendment) Rules, 2022 As Introduced By Court Under Sections 122 R/W 127 CPC

The Orissa High Court, by using its power under Section 122 of the Code of Civil Procedure, 1908, had published the draft of the Code of Civil Procedure (Odisha Amendment) Rules, 2022, on 20^th April 2022, after obtaining due approval from the State Government. Such publication invited objections and suggestions from all persons who were likely to be affected thereby. After expiration of 30 days of the publication of the same, it disposed of the suggestions and objections those were received and thereafter, in exercise of the power conferred by Section 127 of the Code, the High Court published the Rules in the official Gazette to amend the Code of Civil Procedure, 1908, which will be known as the Code of Civil Procedure (Odisha Amendment) Rules, 2022. It brought about 'nine changes' in the provisions of the Code.