Court News. Celebration of Independence Day in the High Court Premises on

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2 Celebration of Independence Day in the High Premises on Inauguration of Reading Room of Orissa High Library by Hon ble Shri Justice I.M. Quddusi, Acting Chief Justice on

3 CONTENTS 01. Editorial Board Retirement of Hon ble Judge of the Orissa High From the desk of Acting Chief Justice of Orissa High Address by Hon ble the Acting Chief Justice in the Full Reference held on the sad demise of Shri Justice G.K. Mishra, Former Chief Justice of Orissa High Names of Hon ble the Acting Chief Justice and Hon ble... 5 Judges of Orissa High at present. 06. Inspection - An Article by Hon ble Shri Justice P.K. Tripathy Sanctioned strength & vacancies in Orissa High Institution, Disposal and Pendency of Cases in the High Sanctioned strength & vacancies in District & Subordinate s Institution, Disposal and Pendency of Cases in District & Subordinate s. 11. Outlines of some recent Orissa High Judgments Major Events Programmes attended by Hon ble Judges of Orissa High at Bhopal & other places. 14. Activities of Orissa State Legal Services Authority... 38

4 2 Editorial Board * Hon ble Shri Justice P.K.Tripathy * Hon ble Shri Justice L.Mohapatra * Hon ble Shri Justice I.Mahanty Retirement of Hon ble Judge of the Orissa High Name of the Hon ble Judge Date of appointment as Judge of Orissa High Date of Retirement Hon ble Shri Justice S.R.Singharavelu

5 3 I.S.O. 4, Cantonment Road CUTTACK Phone : (0671) (Off.) (Res) Fax : (Res) (Off) October 22, 2009 I. M. QUDDUSI Acting Chief Justice FROM THE DESK OF THE ACTING CHIEF JUSTICE I feel extremely happy to release the 9th issue of the. This quarterly issue aims at providing information about the Judiciary during the quarter ending to those who are concerned with it and the litigants as well. While giving the necessary data as to institution, pendency and disposal of cases, it also gives an overview of the judgments rendered by the in the very recent past to benefit the Members of the Bar to update themselves, besides the important events that had taken place during the quarter. Mounting arrears and delay in disposal of cases has put our justice delivery system under severe strain and requires immediate attention. The need of the hour, therefore, is speedy disposal of cases, I am sure, all our efforts should be made by the s to face the challenges. I am confident that this issue will serve the needs of all those concerned with the administration of justice and will be greatly appreciated by them. ( I.M.QUDDUSI )

6 4 ADDRESS OF HON BLE SHRI JUSTICE I.M.QUDDUSI, ACTING CHIEF JUSTICE, ORISSA HIGH COURT IN THE FULL COURT REFERENCE HELD AT P.M. ON ON THE SAD DEMISE OFSHRI JUSTICE GATI KRUSHNA MISHRA, FORMER CHIEF JUSTICE OF ORISSA HIGH COURT. With a heavy heart I want to bring it to your kind notice that Hon ble Mr. Justice G.K.Mishra, who was the flag bearer of the state judiciary for long six years has passed away today morning at about 9.45 A.M. at his own residence at Tulasipur, Cuttack. Justice Mishra was born in an illustrious and respectable family in the ex-state of Dhenkanal and was the younger brother of Late Justice J.K.Mishra, a former Judge of this. He passed Matriculation in first division from Dhenkanal High School in 1930, I.Sc. in first division securing 5th position in the Patna University and graduated with Honours and post-graduated from the said University. Thereafter he obtained B.L. Degree securing 1st Division from Patna University in 1939 and he joined the Bar at Cuttack in After a short spell of practice, he was appointed Late Justice Gati Krushna Mishra as a Munsif in He was promoted as sub-ordinate Judge in 1948, but resigned from Judicial Service two years after and was again enrolled as an Advocate in May, He was an Advocate of outstanding ability and we of the leading members of the Bar. Within a very short span of practice, he exhibited his ability in different branches of law and the decisions reported in the law journals bear the testimony of his efficiency and high calibre. He was appointed as Standing Counsel for Commercial Taxes Department and though pitted against very senior counsel from outside the State, he succeeded in many cases showing his excellence. He was a Senate Member of Utkal University and also a Member of the Orissa State Bar Council. He was the Editor of Cuttack Law Times and continued as its Chief Editor till the last. In recognition of his merit, he was appointed as a permanent Judge of this on On 1st May, 1969 he became the Chief Justice of this. Justice Mishra was very upright and a strict disciplinarian. Though he appeared to be very strict in his exterior, he had a kind and loving heart. He discharged the duties of a Judge without fear and favour and his ability was popularly known to all. As Judge-in-charge of Judicial Administration in the State he was familiar entire judicial machinery prevailing in Orissa. His sincere attempt enthuse efficiency and to weed out corruption while insisting better service condition of the subordinate judiciary is well known. While functioning as Chief Justice of Orissa, he remained in charge of the Governor of Orissa on two occasions, i.e. from to and from to He is survived by three sons and three daughters who are well placed. Unfortunately, his wife predeceased him recently. On his death, the State has lost a great legal luminary. We pray God that his departed soul may rest in peace and to give strength to the members of the bereaved family to bear the loss. ADDRE

7 5 HON BLE JUDGES OF THE ORISSA HIGH COURT HON BLE THE ACTING CHIEF JUSTICE Hon ble Shri Justice I.M.Quddusi, LL.B HON BLE JUDGES * ** ** ** Hon ble Shri Justice P.K. Tripathy, M.A., LL.B. Hon ble Shri Justice B.P. Das, M.A., LL.B. Hon ble Shri Justice L. Mohapatra, B.Sc., LL.B. Hon ble Shri Justice A.S. Naidu, B.Sc., LL.B. Hon ble Shri Justice Pradip Kumar Mohanty, LL.B. Hon ble Shri Justice S.R.Singharavelu, B.Sc., B.L. Hon ble Shri Justice M.M. Das, M.A., LL.B. Hon ble Shri Justice R.N. Biswal, M.A., LL.M. Hon ble Shri Justice I. Mahanty, LL.M. Hon ble Kumari Justice Sanju Panda, B.A., LL.B. Hon ble Shri Justice B.N. Mahapatra, M.A., LL.B., PGDTL. Hon ble Shri Justice B.P. Ray, LL.B. Hon ble Shri Justice S.C. Parija, LL.B. Hon ble Shri Justice L.K. Mishra, M.A., LL.M. Hon ble Shri Justice B.K. Patel, M.A., LL.B. Hon ble Shri Justice B.K. Nayak, LL.M. Hon ble Shri Justice S.K.Mishra, M.A., LL.B. Hon ble Shri Justice C.R.Dash, LL.M. (* Retired on ) ( ** Elevated to the Bench on )

8 6 I N S P E C T I O N (An Article by Hon ble Shri Justice P.K. Tripathy) In Article 227 of the Constitution of India (Chapter V) vests in the High s the responsibility and power of superintendence over all s and Tribunals throughout the territories in relation to which the High exercises jurisdiction. Exercise of jurisdiction under Article 227 by the High is for dual purposes, viz. Administrative and Judicial. This Article proposes to deal with the administrative function of the High, which comprises of : (1) Administrative control by calling for the statistics/returns; (2) Makes general rules and prescribe forms for regulating the practice and proceedings of courts, and (3) Settle the tables of fees to be allowed to (a) Shariff, Clerks and Officers; (b) Attorneys, Advocates and Pleaders practicing in courts etc. Such table of fees is not to be inconsistent with the provision of law for the time being in force and the rules made there under, prescribing the table of fees must receive the previous approval of the Governor. Thus, it is by virtue of the provision in Article 227 that the High exercises power of superintendence over all s and Tribunals functioning within its jurisdiction except the Tribunals constituted by or under any law relating to the Armed Forces. The General Rules and Circular Orders of the High of Judicature, Orissa, comprises of two parts, one relating to the civil side and the other one is relating to criminal side. In each of the G.R. & C.O. (Civil and Criminal), provisions have been made relating to the proper way of functioning of subordinate courts, starting from the stage of prescribing the dress-code upto the method of regulating the proceeding after institution of cases as well as of the Judicial and Administrative matters arising in course of discharge of the duties by the Presiding Officers of the courts and their subordinate staffs. If the provision in G.R. & C.O. is systematically and properly followed by the staff and the officers in course of their discharge of duties both on administrative and judicial side, then that not only brings efficiency to the system but also it helps in regulating the proceedings in systematic and suitable manner and maintains transparency in such functioning. To ensure that, each of such subordinate courts and their chief ministerial officers are required to perform their duties properly and in accordance with law. The G.R. & C.O. both civil and Criminal, provide for various method of inspection. It provides for annual inspection of his own record by the Presiding Officers of the s, it provides for inspection and verification of the records by the chief ministerial staff and the presiding officer for preparation of returns and submission of statistics to the superior authority and ultimately to the High. It provides for inspection by the officers of subordinate courts, by the District Judge in civil side and by the Chief Judicial Magistrate and the Sessions Judge on criminal side. Object of such inspection is to satisfy at the first instance that the work, both Judicial and Administrative, in each of the subordinate courts is conducted strictly according to law and the rules prescribed by the High. Another purpose of such inspection is to find out disposal of the court proceedings and the administrative files in accordance with law and procedure, punctually and efficiently. In that process, if defects and errors are detected, then they are to be corrected after taking note of the relevant provision of law or the rules prescribed by the High. In other words, the inspection provided in the G.R. & C.O. intends to educate Judicial Officers and the chief ministerial officers of the manner in which the judicial and administrative files are to be dealt with and to follow such law and the rules, so that both transparency and efficiency are exhibited.

9 7 Power of superintendence of the High by regular inspection comes over and above the aforesaid rules for inspection by the Presiding Officers of each of the subordinate courts and also by the District and Sessions Judge and the Chief Judicial Magistrate, so as to find out if the subordinate courts and the tribunals were functioning within its jurisdiction are following the law and the rules and discharging their duties as per law and the rules and that too with proper responsibility. The Chief Judicial Magistrate conducts periodical inspection of each of the magisterial courts subordinate to each. He notes the defects and his impression on the manner in which the offices and the magisterial court proceedings are managed by the Presiding Officer and is required to forward the same to the High, through the office of the Sessions Judge. In course of such inspection, it is the duty of the Inspecting Officer to correct as many defects as possible and is not relieved of their duty by simply mentioning the defects. On perusal of such inspection note prepared by the Chief Judicial Magistrates and comments made thereon, the Sessions Judge is required to make his own observation about the quality of inspection and lapses and lacuna, if any, in the inspection report. In addition to that, the Sessions Judge is also required to give his comments, if the Chief Judicial Magistrate has wrongly referred to any rules or circular or provision of law or has omitted to do so. He is also required to make his own assessment on the notes of inspection submitted by the Chief Judicial Magistrate. The Sessions Judge thereafter forwards the notes of inspection together with his comments to the High for approval. On the other hand, when the District and Sessions judge conducts the inspection, his notes of inspection and synopsis of the defects found and the impression he gathers about the officer and the office of the inspected courts to the High. In its turn, the High, with the aid and assistance of the Special Officer (Special Cell) and the Registrar (Inspection and Enquiry) is required to peruse the inspection notes and gives its comments. On receipt of the same, the officer concerned takes note of the instructions from the High and may issue directions to remove the defects. The aforesaid exercise as provided under the rules are provided for in Article 227, which makes it amply clear that, the over all responsibility to ensure that all subordinate courts and tribunals function appropriately, is that of the High. Therefore, the High not only has to regularly and promptly attend to the notes of inspection forwarded to the High court (Inspection Notes of the Chief Judicial Magistrates and District and Sessions Judges) but also to adhere and to regulate proper and thorough inspection of the courts and tribunals. The past records of the High in the inspection wing would indicate that inefficiency, if any, of the Judicial Officers was being determined on the basis of such inspection notes besides the observations made by the High in course of their inspection both on administrative and judicial side. Conducting of inspection in accordance with rule is an important part. The other important aspect is to take proper follow up action regarding compliance of defects pointed out in the notes of inspection (if approved by the High ). Non-compliance in the absence of compelling circumstances or very good reason should be viewed seriously as gross lapses amounting to misconduct. In the present day scenario, callousness has developed in maintaining the court proceedings, a few examples are (i) not giving the serial numbers of the orders, (ii) not giving the case numbers and the page number at the top of the order-sheet, (iii) not properly indexing the L.C.R., while forwarding it to the High for reference in Appeals or Revisions, (iv) not properly making inspection of the court Malkhana, Copying Section, process serving unit i.e. the Nizarat and the sections maintaining the accounts and the expenditure etc. Time has perhaps again come for the High to see that the practice of adhering to the law and rules is restored by regular inspections. Discipline in the subordinate judiciary in our State is at an appreciable level and that may be maintained by effectively exercising power/obligation of superintendence by the High.

10 8 SANCTIONED STRENGTH & VACANCIES IN HIGH COURT (As on ) Sanctioned Strength Working Strength Vacancies * = * = 18 4 (A)* (B) Addl. Judges Two Hon ble Judges of this have been transferred to other High s and two Hon ble Judges of other High s have come on transfer to this High. INSTITUTION, DISPOSAL AND PENDENCY OF CASES IN THE HIGH COURT (From to ) MAIN CASES Pendency Institution during the period Total disposal during the period Pendency Civil Criminal Civil Criminal Civil Criminal Civil Criminal MISC. CASES Pendency Institution during the period Total disposal during the period Pendency Civil Criminal Civil Criminal Civil Criminal Civil Criminal TOTAL NO. OF CIVIL & CRIMINAL CASES DURING THE PERIOD (From to ) Civil Criminal Opening Balance Institution Disposed of Pending

11 9 SANCTIONED STRENGTH & VACANCIES IN DISTRICT AND SUBORDINATE COURTS (A) DISTRICT & SUBORDINATE COURTS (As on ) (Regular Establishment) Sl. No. Category of Posts 1. District Judge including Additional District Judge 2. Civil Judge (Sr. Divn.) 3. Civil Judge (Jr.Divn.) & Magistrates Sanctioned Strength Working Strength Vacancies Special Judicial Magistrates (B) FAST TRACK COURTS (As on ) Functional Strength Present Strength Vacancies

12 10 Name of the Judgeship Balasore Bolangir Cuttack Dhenkanal Ganjam Kalahandi Keonjhar Khurda Koraput Mayurbhanj Phulbani Puri Sambalpur Sundargarh Total : Opening Balance STATEMENTS SHOWING INSTITUTION, DISPOSAL & PENDENCY OF CIVIL & CRIMINAL CASES IN THE SUBORDINATE JUDICIARY FROM TO CIVIL SUITS CIVIL APPEALS CIVIL MISC. APPEALS Institution Disposed of Pendency Opening Balance Institution Disposed of Pendency Opening Balance Institution Disposed of Pendency

13 Name of the Judgeship CIVIL REVISIONS Opening Balance Institution Disposed of Pendency EXECUTION PROCEEDINGS M.J.Cs. / SPECIAL ACT CASES Opening Balance Institution Disposed of Pendency Opening Balance Institution Disposed of Pendency Balasore Bolangir Cuttack Dhenkanal Ganjam Kalahandi Keonjhar Khurda Koraput Mayurbhanj Phulbani Puri Sambalpur Sundargarh Total :

14 Name of the Judgeship M.A.C.T. CASES Opening Balance Institution Disposed of Pendency SESSIONS CASES CRIMINAL APPEALS Opening Balance Institution Disposed of Pendency Opening Balance Institution Disposed of Pendency Balasore Bolangir Cuttack Dhenkanal Ganjam Kalahandi Keonjhar Khurda Koraput Mayurbhanj Phulbani Puri Sambalpur Sundargarh Total :

15 Name of the Judgeship CRIMINAL REVISIONS Opening Balance Institution Disposed of Pendency CRIMINAL MISC. CASES SPECIAL ACT CASES Opening Balance Institution Disposed of Pendency Opening Balance Institution Disposed of Pendency Balasore Bolangir Cuttack Dhenkanal Ganjam Kalahandi Keonjhar Khurda Koraput Mayurbhanj Phulbani Puri Sambalpur Sundargarh Total :

16 14 Name of the Judgeship Balasore Bolangir Cuttack Dhenkanal Ganjam Kalahandi Keonjhar Khurda Koraput Mayurbhanj Phulbani Puri Sambalpur Sundargarh Total : Opening Balance PREVENTION OF CORRUPTION ACT (VIG. + C.B.I.) Institution Disposed of Pendency

17 15 Name of the Judgeship Balasore Bolangir Cuttack Dhenkanal Ganjam Kalahandi Keonjhar Khurda Koraput Mayurbhanj Phulbani Puri Sambalpur Sundargarh Total : CRIMINAL CASES OF MAGISTERIAL COURTS Opening Balance Institution Disposed of Pendency Gen. File Trial File Total Gen. File Trial File Total Gen. File Trial File Total TOTAL NO. OF CIVIL AND CRIMINAL CASES DURING THE PERIOD FROM TO Opening Balance Institution Disposed of Pendency CIVIL CRIMINAL

18 16 OUTLINES OF SOME RECENT ORISSA HIGH COURT JUDGEMENTS DANDAPANI NAHAK -V- STATE CRIMINAL APPEAL NO. 169 OF ( Dt ) CRIMINAL TRIAL Appreciation of evidence - Occurrence took place at 9.P.M.- F.I.R lodged at A.M next day - F.I.R. shrouded with doubt - P.W.4 is the only eye witness to the occurrence - It is improbable that when the deceased and P.W.4 were present, it would not have been possible on the part of one person to attack both with knife and cause injuries to P.W.4 and death of the deceased - There was also previous enmity between the appellant and the deceased. Evidence of P.W.4 is unbelievable and cannot be relied upon and it creates a room for benefit of doubt in favour of the accused-appellant - Held, conviction & sentence U/s. 302 & 307 IPC. is setaside. (B.P.Das, J. & S.R.Singharavelu, J.) PURNA CHANDRA SENAPATY -V- ORISSA FOREST DEVELOPMENT CORPORATION LTD. & ANR. W.P. ( C ) NO OF ( Dt ) ORISSA FOREST CORPORATION SERVICE RULES, RULE 123 & 123-A. Petitioner retired from service on Continuance of three disciplinary proceedings after retirement - Rules framed by OFDC authorising the management to initiate and continue proceedings after retirement came into force w.e.f. February Rules have no retrospective application. Petitioner has duly participated in all the proceedings without raising any objection - He has preferred three appeals before the Board of Directors against the decisions of the Disciplinary authorities without taking a ground regarding maintainability of the proceedings. Held, petitioner having participated in the disciplinary proceedings even after retirement and allowed the same to conclude without any objection, is estopped from raising such a plea now for the first time in the present writ petition. (A.S.Naidu, J & S.C.Parija, J.) RAGHUNATH MAHAKUD -V- THE PRESIDING OFFICER, LABOUR COURT & ORS. O.J.C NO OF ( ) CONSTITUTION OF INDIA, ART Compulsory retirement - Object of - To weed out persons of doubtful integrity or patent inefficiency in public service - While doing so, Government should consider the entire record of service, particularly the performance during the later years, even uncommunicated entries in the confidential record can be taken in to consideration - Moreover it is not punitive and rules of natural justice have no application in such Cases. In the present case the petitioner workman was appointed as a conductor in the erstwhile state transport service - He faced departmental proceedings for carrying passengers in the bus without

19 17 ticket in many occasions- Government passed order for compulsory retirement - Petitioner raised Industrial dispute - Labour court passed order that the action is justified - Hence the Writ petition. This held, no impropriety or illegality have been committed by the Labour. (S.C.Parija, J.) BINOD BIHARI SINGH.-V- CUTTACK MADHU BAISYA BHADRAKI GUDIA SAMITI & ORS. W.P. ( C) NO OF ( Dt ) CIVIL PROCEDURE CODE, ORDER 1, RULE 10. Joinder of Parties - Suit for eviction of a tenant - Petitioner Claims possession on the strength of the deed of agreement - Petition rejected Hence the Writ petition. Trial was prima facie not satisfied about the Bonafide of the petitioner-intervenor nor the plausibility of his claim and the genuineness of his interest in the litigation which was found to be suspicious-held, petition deserves to be rejected. N.D.P.S. ACT, - SEC. 55. JADABA DEHERY.-V- STATE OF ORISSA. CRIMINAL APPEAL NO. 52 OF (Dt ) (I. Mahanty, J.) Section 55 N.D.P.S. ACT clearly enjoins a duty upon the Officer-in-Charge of the Police station to receive and keep in safe custody the articles seized and delivered to him - It is mandatory to affix a seal to such articles and to take samples of the articles from them and all samples so taken are required to be sealed by the seal of the officer in charge of the P.S. and non- compliance of the same is an infraction of the stipulations contained in section 55 of the N.D.P.S.Act. In the present case there was seizure of Ganja plants and the appellant was convicted U/s. 20 (a) (i) of the NDPS Act - However mandates of section 55 of the N.D.P.S.Act not complied with - Held, impugned order of conviction & sentence quashed. CONSTITUTION OF INDIA, ART. 16. MANAS CHANDRA MAHANTA V- UNION OF INDIA & ORS. W.P. ( C ) NO OF 2005.( Dt ). (I. Mahanty, J.) Petitioner is a visually handicapped person - Notification to fill up Group-D vacancies in Railways - Petitioner applied and was found suitable - He was sent for medical test and was declared fit - He was posted as Ty.chowkidar - A complaint was received with regard to his degree of visual disability - He was again sent for medical test and was found unfit - Service of the petitioner terminated - Order challenged before the Tribunal - Tribunal declined to interfere - Hence the writ petition - Since two doctors of the same Railway Administration have given two different opinions one in favour and the other is against, it would have been appropriate to get the petitioner examined by a Board consisting of more that one eye specialists. Held, impugned judgment of the Tribunal as well as the order of termination is set aside -

20 18 Direction to OP.2 to set up a medical board consisting of eye specialists for examination of the petitioner If the petitioner found fit for employment he should be allowed to continue in service, if not a fresh order be passed on the basis of the report of the Medical board. (L.Mohapatra, J. & B.N.Mahapatra, J.) MOHAMMED AFSAR & ORS. -V- STATE OF ORISSA & ORS. W.P.( C) NOS & OF 2008.( Dt ) SERVICE LAW - Regularization - Eligibility - In order to claim regularization the employee has to prove that he had been appointed through regular recruitment process and his appointment is not illegal Apart from the above, the employee is required to prove that he is working against sanctioned vacancies which are permanent in nature and without intervention of orders of the or of Tribunals. In the present Case the above factors are not considered, while turning down the claim of the applicants - Held, Tribunal was justified in directing the employers to reconsider the case of the applicants SAYED SARWAR ALI -V- GOVT. OF INDIA & ORS. O.J.C NO OF ( Dt ) (L.Mohapatra, J & B.N.Mahapatra, J.) SERVICE - Petitioner became medically unfit - Removed from service - Subsequently when he became medically fit he requested for a class - IV Post - Prayer refused - Hence this Writ Petition. Petitioner was a Constable in CRPF - Completed 8 years satisfactory service - Medical Board opined him fit for service other than those not involving fire arms - This sought for an affidavit from the Opp.Parties whether any Peon or Dufftary Post in the establishment is lying vacant - There was no response - Similarly situated personnel were rehabilitated - Held, Opp.Party No.6 is directed to appoint the petitioner in a suitable supernumerary post to be created w.e.f with all back wages from that date. (B.P.Das, J. & S.R.Singharavelu, J.) JAYANTA KUMAR BAKSHI -V- PRINCIPAL SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, ORISSA, BHUBANESWAR & ORS & STATE OF ORISSA & ANR.-V- JAYANTA KUMAR BAKSHI. W.P. ( C ) NOS & OF 2007 ( Dt ) ORISSA CIVIL SERVICES ( CCA ) RULES RULE 15, (10) ( i ) (a ) & (b). Whether the Disciplinary Authority while disagreeing with the findings of the Enquiry Officer can order for re-enquiry without assigning any reason and without giving an opportunity of hearing to the delinquent officer - No. In the present Case Disciplinary Authority has decided to disagree with the findings of the Enquiry Officer after a lapse of about five years without recording any Procedural irregularity committed by the Enquiring Officer and in the absence of any provision in the CCA Rules and without giving

21 19 an opportunity of hearing to the petitioner - Order challenged in O.A - Tribunal held re-enquiry is not justified - State challenged the order in Writ petition. Held, this upholds the impugned order passed by the Tribunal. (I.M.Quddusi, ACJ, & S.C.Parija, J.) SRI BASU BASUDEV BARAD & ORS -V- STATE OF ORISSA. CRLMC NO OF 2009 ( Dt ) CRIMINAL PROCEDURE CODE, SEC.319. Magistrate can not exercise power U/s. 319 Cr.P.C to associate any other person as accused while committing a case U/s. 209 Cr.P.C. to the of Sessions. In the present Case Magistrate took cognizance against the petitioners in exercise of power U/s. 319 Cr.P.C. who were not named as accused persons in the charge sheet. Held, the impugned order is unsustainable in law which is liable to be quashed. (M.M.Das. J.) THE CHAIRPERSON, CUTTACK MUNICIPAL CORPN., CUTTACK & ANR. -V- BIJAY KUMAR JENA. W.P. ( C) NO OF (Dt ) CIVIL PROCEDURE CODE, ORDER 6 RULE 17. Amendment of plaint during pendency of appeal - Purpose of - To minimize litigation - Plaintiff has neither introduced any new facts nor has taken away any admission made by him - Amendment was felt necessary in the interest of justice and for a just decision of the suit Held, learned District Judge has rightly allowed the amendment which needs no interference. SRIKANTA MOHAN MISHRA - V- STATE OF ORISSA & ANOTHER. O.J.C NO OF ( Dt ) CONSTITUTION OF INDIA, ART.16. (Sanju Panda, J.) Appointment - Select list prepared - One person recommended for the post - Right of the Candidates placed in the select list - One eligible Candidate took benefit and got appointment - Petitioner approached Tribunal for relief which was refused - Hence this Writ petition. Mere inclusion of Candidates name in the select list does not confer any right to be selected even if some of the vacancies remain unfulfilled - In this Case petitioner filed the Case after eight years from the date of recommendation of the OPSC - Held, Tribunal has rightly refused to entertain the OA filed by the petitioner on the ground of limitation. (L.Mohapatra, J & B.N.Mahapatra, J.)

22 20 PUBLIC INFORMATION OFFICER & ANR. -V- ORISSA INFORMATION COMMISSION & ANR. W.P.( C ) NO OF ( Dt ) RIGHT TO INFORMATION ACT, SEC 20 ( I ) Public information Officer unable to furnish information within time - Negative answer given by the referred PIO after a delay of 77 days - Orissa Information Commission imposed penalty U/s.20 (1) of the Act although complainant filed petition to withdraw his complaint - Hence this Writ Petition. In the present Case complainant did not chose to appear in the case and sought for withdrawal of his complaint - Held, complaint case can not proceed - Chief Information Commission has committed manifest error of law in proceeding with the complaint Case. ( I.M.Quddusi, ACJ & S.R.Singharavelu, J.) SMT.CHANDRAKANTI DAS & ORS. -V- STATE OF ORISSA & ORS. W.P ( C ) NO OF 2009.( Dt ) LEGAL SERVICES AUTHORITIES ACT, SEC. 21 (1) r/w RULE 22 (2) OF THE ORISSA MV (ACCIDENT CLAIMS TRIBUNAL) RULES Accident claim - Settled through Lok Adalat - Whether claimants can receive the claim without depositing fee - Yes. In this Case award passed in Lok Adalat was deposited - As fee not paid Tribunal insisted payment of fee - Order challenged. The Act provides that where fee is paid but the Case settled through Lok Adalat, the said fee shall be returned in the manner provided under the fees Act Similarly the Act is also silent about the fact that where fee not paid, the Party shall be insisted to pay fee first then the award is to be executed - Held, this directed the Tribunal to disburse the awarded amount without insisting the claimants to pay fee. (I.M.Quddusi, ACJ & S.R.Singharavelu, J.) REBATI NATH -V- DIVISIONAL MANAGER, LIFE INSURANE CORPORATION OF INDIA & ANR. W.P. ( C ) NO OF ( Dt ) CONSTITUTION OF INDIA, Art Death of Policy holder - Nominee applied for payment of death claim - Corporation paid the sum assured with interest but did not pay additional sum as per clause 10.2(b) of the Policy - Action challenged. Corporation denied additional sum on the ground that death was not by accident but it was due to a Case of murder - Post-mortem report reveals death was due to burn injuries - Police investigation indicates death was due to blast occurred in a marriage procession where fire crackers were used - Case of the petitioner does not come within the exclusions stipulated in clause 10.2 (b) and she is entitled to the additional sum equal to the sum assured under the Policy - Held, Direction issued to the Corporation to pay balance amount with interest within one month. (B.P.Das, J. & I. Mahanty, J.)

23 21 SATGUN PASWAN -V- STATE OF ORISSA. CRIMINAL APPEAL NO. 41 OF ( Dt ) INDIAN PENAL CODE, SECS. 302, 376, 377 & 201. Rape and Murder - No eye witness - Conviction based on circumstantial evidence - Conviction challenged. Doctor opined that there was attempted rape and sodomy and Cause of death was asphyxia due to throttling - He also examined the accused and found his frenum penile organ ruptured which is caused during forceful sexual intercourse- Opinion of the doctor tallies with the observation made by Modi s medical jurisprudence and Toxicology - Prosecution is able to prove its Case beyond all reasonable doubt - Held, conclusion arrived at by the Sessions Judge suffers from no infirmity. JOGESWAR GIRI - V - STATE OF ORISSA. CRLA NO. 47 OF ( Dt ) (A.S.Naidu, J. & S.C.Parija, J.) CRIMINAL TRIAL - Circumstantial evidence - In the absence of any eye witness to the crime, circumstantial evidence can be the basis for bringing home the charge and to convict an accused The only requirement is that the circumstantial evidence must be fully established, without leaving any gap in its chain and should lead to the only conclusion i.e. the guilt of the accused. In the present case there is no eye witness to the occurrence and on an analysis of the evidence of the prosecution witnesses the conclusion is irresistible that the accused Jogeswar was responsible for the death of the deceased Sarathi and had committed the act with the intention of causing her death- Held, there is no apparent error or illegality in the impugned judgment so as to warrant any interference by this. (A.S.Naidu, J. & S.C.Parija, J.) SRI PRATAP PATNAIK -V- COMMISSIONER, CONSOLIDATION & SETTLEMENT ORISSA, BHUBANESWAR & ORS. O.J.C NO OF 1999 ( Dt ) CONSOLIDATION OF HOLDINGS & PREVENTION OF FRAGMENTATION OF LAND ACT, SEC.37 (1) Revisional Power - Commissioner Consolidation exercised such power U/s. 37 (1) of the Act after passage of nearly twenty years - Order held to be improper and without jurisdiction. CONSTITUTION OF INDIA, 1950 ART.311. DR.SIBA PRASAD MISHRA -V- STATE OF ORISSA & ANR. W.P. ( C ) NO OF (Dt ) (M.M.Das, J.) Removal from service - Second show cause notice Dt issued to the petitioner giving 15 days time to submit representation against the proposed penalty - Letter Dt indicates that the Deputy Director (Inspection) Technical Education & Training allowed four weeks time to the petitioner to file effective reply to the show cause notice - O.P.2 acted in great haste in passing the

24 22 impugned order of removal effecting from without considering the representation of the petitioner and before lapse of four weeks time granted to him to file his effective reply. Held, order Dt is set-aside and O.P.1 is directed to convene a meeting of the BOG to re-hear the Case of the petitioner and take a decision afresh. EVIDENCE ACT, SEC. 32. STATE OF ORISSA -V- CHINTAMANI DAS & ANR. GOVERNMENT APPEAL NO. 28 OF1998 (Dt ) (B.P.Das, J. & S.R.Singharavelu, J.) Dying declaration has to be satisfied that the circumstances and surroundings when the dying declaration said to have been made were proper and the statement made is clear, cogent and convincing that the same is from reliable sources- In other wards, if the dying declaration is tainted with some doubt, the same should not be relied upon. In the present case as the dying declaration does not inspire confidence in the absence of corroboration and in the absence of any eye witness to the occurrence or any other cogent evidence connecting the accused persons, the learned Sessions Judge has rightly entertained doubt with regard to involvement of the accused with the alleged crime - No reason to interfere with the Order of acquittal. CRIMINAL PROCEDURE CODE, 1973 SEC GOPINATH MOHANTI -V- MANOJ KUMAR SAHU TRPCRL NO. 16 OF 2008 ( Dt ) (A.S.Naidu, J & S.C.Parija, J.) Transfer of complaint Case u/s. 138 NI ACT - There are five components of the said offence (1) drawing of the cheque ( 2) presentation of the cheque to the bank (3) returning the cheque unpaid by the drawee bank (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount (5) failure of the drawer to make payment within 15 days of the receipt of notice. In the present Case averments made in the complaint petition do not indicate that any of the acts towards commission of the alleged offence U/s. 138 of the Act was done in Bhubaneswar - It is averred in the complaint petition that the disputed cheque was presented to and returned unpaid by the bank situated within the jurisdiction of the of SDJM, Angul - Held, petitioner failed to make out a case for transfer of the complaint from the of SDJM, Angul to any at Bhubaneswar. (B.K.Patel, J.) PRADIP KUMAR BAI -V- DISTRICT JUDGE, JEYPORE /KORAPUT AND ORS., AND BATCH OF CASES. O.J.C. NOS / 1995, 18151/ 1997, & 15502/ 1998, 56, 1228 AND 1447 / & 17711/ 2001, O.J.C. NOS.1645 & 2722 OF 2002 & W.P.(C) NO. 370 / ( Dt ) ORISSA DISTRICT AND SUBORDINATE COURT S MINISTERIAL SERVICES ( METHOD OF RECRUITMENT & CONDITIONS OF SERVICE ) RULES 1969, RULE 6 (5). Select list - Period of validity - One Division Bench of this held that under the above

25 23 Rules select list can not be kept valid beyond the period of one year from the date of its publication - Another Division Bench held the list would remain valid for one year from the date of publication of the result of the examination - Hence this matter before this Bench. Held, according to the Rules the life of the select list is one year from the date of its publication. (I.M.Quddusi, A.C.J., P.K.Tripathy, J. & B.P.Das, J.) SRI DEBASIS PANIGRAHI -V- STATE OF ORISSA & ANR. AND SRI STYAJIT MOHANTY -V- STATE OF ORISSA & ANR. CRLMC NOS. 629 & 850 OF 2007 ( Dt ). CRIMINAL PROCEDURE CODE, SEC 482 r/w SEC. 197 (1). Complaint Case - Complainant alleged hard-core Criminals entered her house in the dead of the night and assaulted her - Allegation is injury caused to her due to the inaction of the petitioners in providing adequate security - Magistrate took cognizance against petitioners U/s. 323, read with Sec. 107/108 IPC and Sec. 29 of the Police Act - Hence this application. Direction of this to the petitioners to provide Security to the complainant - Round the Clock Security cover by armed police personnel provided to her - Despite the same how hard core criminals assaulted her - Allegations in the complaint case are absurd and inherently improbable and even if it is accepted, no offence is made out against the petitioners - Held, continuance of Criminal Proceeding against the present petitioners would be an abuse of the process of the - Moreover the impugned order of cognizance is also unsustainable in the absence of prior sanction of the appropriate Government as required U/s. 197 (1) Cr.P.C. HINDU MARRIAGE ACT, SEC. 13. SMT.PUSBATI GOUD -V- PABAN GOUD. MATA NO. 30 OF 2005 ( Dt ) (B.P.Das, J. & S.C.Parija, J.) Divorce Appellant-wife insisted to live separately one month after marriage - She misbehaved with all the family members - She insists for purchase of Fridge, T.V. & Two wheeler and when the respondent-husband expressed his inability she used to pick up quarrel and threatened to commit suicide and book them in Criminal Case - In fact she once took poison but P.W.3 made her to vomit. Held, conduct of the appellant amounts to mental cruelty and respondent having suffered mental cruelty is entitled for divorce on that ground alone. CONSTITUTION OF INDIA, ART. 14. STATE OF ORISSA & ORS. -V- SIBA PRASAD SWAIN W.P. ( C ) NO OF 2006 ( Dt ). (L.Mohapatra, J. & B.N.Mahapatra, J.) Equality - Merely because some similarly situated persons have got certain benefit wrongly by virtue of an order of the Tribunal, it does not confer any right on the opposite party to claim such negative equality out of the said order.

26 24 The Constitutional scheme of equality clause would apply only in a Case where the parties are similarly situated but no equality can be claimed on the basis of an illegality. Held, Art. 14 does not envisage for negative equality. (L.Mohapatra, J & B.N.Mahapatra, J.) SRI RANJAN KUMAR MISHRA -V- HEADMASTER, M.P.C. HIGH SCHOOl, BETNOTI & ANR CRLMC NO OF 2008.( Dt ). CRIMINAL PROCEDURE CODE, SEC.144, 145 & 146. In this Case Magistrate while directing the Parties to appear and file documents and W.S. restrained both Parties from entering upon the disputed land till finalization of the proceeding U/ s.145 Cr.P.C. - Order challenged No Prohibitory Order can be passed simultaneously alongwith a preliminary Order U/s. 145 Cr.P.C.- Held, Prohibitory order restraining the parties from entering upon the disputed land is set aside - In the event any emergent situation arises and an application is filed uner Chapter -X of Cr.P.C. the said application be dealt by the learned SDJM, Baripada. (M.M.Das, J.) MD.RAMJAN, SANTOSH YADAV & IMRAN KHAN.-V- STATE OF ORISSA. JCRLA NOS. 100, 102 & 105 OF ( Dt ) CRIMINAL TRIAL - Murder Case - No eye witness to the occurrence - There are three accused persons - Only one fatal injury - The assault w the main road and in front of the house of one Binod Sahoo - Neither Binod Sahoo nor the doctor who conducted post-mortem has been examined - one weapon seized although there are three accused persons - The weapn recovered did not tally with the descriptions - No evidence to establish as to who amongst the three accused persons had assaulted with the said weapon and caused the fatal injury - The prosecution has failed to complete the chain and there are more than one links missing. The entire prosecution story is shrouded with probabilities and there is a cloud of suspicion as to how the incident took place - Held, It is a fit case where benefit of doubt should be drawn in favour of the accused persons. (A.S.Naidu, J. & S.C.Parija, J.) ASKA CO-OPERATIVE SUGAR INDUSTRIES LTD.-V- SALES TAX OFFICER, BHANJANAGAR & OTHERS. W.P.(C) NO OF 2007 (Dt ) ORISSA VALUE ADDED TAX ACT SEC.12. Vat can not be collected where excise duty is paid. Section 12 of the OVAT Act provides for levy of tax on purchase - Clause (ii) (b) of the above section provides for levy of tax on purchase of the goods consumed or used in the manufacture of goods declared to be exempted from tax under this Act - Explanation to entry 108 in Part II of the schedule B of the Act suggests that sugar alongwith other goods shall not be subjected to levy of tax under this Act until such goods are subjected to levy of excise duty under the Additional Duties of Excise. ( Goods of special Imortance ) Act, 1957.

27 25 Held, due to the reason of payment of Excise duty under the Addl. Duties of Excise (Goods of Special importance ) Act, 1957 on Sugar Cane, VAT is not to be collected from the finished product. i.e. Sugar CONSTITUTION OF INDIA, ART. 311 (2). SRIKANTA SENAPATI -V- STATE OF ORISSA & ORS. W.P (C ) NO OF ( Dt ) (B.P.Das, J & I.Mahanty, J.) Termination of service on Involvement of the petitioner in several Criminal Cases - Acquittal in all the Cases - Petitioner did not challenge the order of termination till when he first made a representation - O.A. filed before the Tribunal 18 years after termination of service - Held, no infirmity in the order of the Tribunal rejecting the O.A. on the ground of limitation. (L.Mohapatra, J & B.N.Mahapatra, J.) NARAYAN CHANDRA PRADHAN -V- UNION OF INDIA & ORS., PRAHALLAD BARIK -V- UNION OF INDIA & ORS.,P.JAGADESWAR RAO & ORS. -V- UNION OF INDIA & ANR. A.APPALAKONDA -V- UNION OF INDIA & ANR. O.J.C.NOS , 16353, & OF 2001, (Dt ) Service Seniority & promotion - Petitioners were working as Khalasis in Group-D Category - They promoted to the post of junior Clerk through a test - They continued on ad hoc basis till they were regularly absorbed as junior Clerks - Such ad hoc promotion was neither made as a stop gap arrangement nor it was interrupted at any point of time - Held, the adhoc period of service of the petitioners as junior Clerk should be taken into account for the purpose of fixation of seniority in the rank of junior clerk. ( L.Mohapatra, J. & B.N.Mahapatra, J.) DR. SHAILENDRA KUMAR TAMOTIA - V- REPUBLIC OF INDIA REPRESENTED BY DY. SUPERINTENDENT OF POLICE, ( CBI ), BHUBANESWAR. MISC. CASE NO. 311 OF 2009 (ARISING OUT OF CRIMINAL APPEAL NO. 99 OF 2009 (Dt ) CRIMINAL PROCEDURE CODE, SEC.389 (1). Suspension of conviction, pending appeal - Such power ought to be exercised in rare and exceptional Cases and the exercising the power must take into account the consequences or ramifications if the order of conviction is not stayed. In the present case if the income as indicated by the Prosecution under annexure-a and the expenditure statement under annexure-b are accepted there would be hardly any Case for disproportionate assets against the appellant - Moreover the appellant is a highly qualified technocraft and retired from public service prior to filing of F.I.R and unless order of conviction is stayed he has to resign from the Directorship of other companies and sustain loss of livelihood. Held, This directed stay of conviction and sentence during pendency of the appeal (I. Mahanty, J.)

28 26 SRI M.GOURINATH -V- STATE OF ORISSA & ORS W.P. ( C ) NO.7711 OF ( Dt ) SERVICE LAW - Departmental Proceeding - Delay in finalizing the enquiry - Proceeding liable to be quashed on the ground of delay. In the present Case inquiry report submitted in the meantime - Direction made to consider the Case of the Petitioner for promotion - Held, pendency of the departmental proceeding will not be a ground for denying such promotion. (L.Mohapatra, J. & B.N.Mahapatra, J.) SRI RAMANATH MISHRA -V- STATE OF ORISSA & ORS. W.P. ( C ) NO OF ( Dt ) SERVICE LAW - Transfer of an employee - Petitioner continued in Bhubaneswar Office for about nine years - Order can only be challenged on the ground of infraction of any statutory Rule or malafides - Petitioner challenged the order on the ground of malafides which is neither specifically pleaded nor established - Merely because the petitioner has been transferred during pendency of departmental proceeding against him cannot be said that the order of transfer is punitive in nature - Held, there is no infirmity in the order of transfer. HIMANSU BARIK -V- STATE OF ORISSA. CRA NO. 190 OF ( Dt ) (L.Mohapatra, J. & B.N.Mahapatra, J.) CRIMINAL TRIAL - Merely because the accused was last seen with the deceased wife, the same may be a strong circumstance against the accused but that by alone in the absence of any other corroborating evidence, cannot be held to be conclusive to show that the accused husband was responsible for the death of his wife - There is also no evidence that the accused and the deceased were not having cordial relationship or there was any dispute or difference between them - No motive or any intention has been attributed to the accused-appellant for committing such dastardly act - Held, it is a fit Case where benefit of reasonable doubt must be given to the appellant. SHALIMAR CHEMICAL WORKS LTD. -V- STATE OF ORISSA & ORS. W.P.( C ) NOS OF 2006 & OF 2007 (Dt ) ORISSA VALUE ADDED TAX ACT, 2004 Sl. NO. 47 PART II OF SCHEDULE - B. ( A.S.Naidu, J. & S.C.Parija, J.) Coconut Oil in the State of Orissa, is not generally used as medium of Cooking Oil but it is widely used as hair oil Held, legislative mandate was to treat Coconut Oil differently from edible Oil and the same is liable to 12.5 %. (B.P.Das, J & I.Mahanty, J.)

29 27 ORISSA MUNICIPAL ACT, SEC. 19 & 20. SARAT CHANDRA MUKHI - V- SRI MOHAN NAIK & OTHERS. W.P.(C) NO.5736 OF 2009 (Dt ). Transfer of election Case from District Judge Dhenkanal to the of Addl. District Judge, Angul - Prayer refused - Hence this writ petition. As per Section 2 of the Orissa Civil s Act 1984 District Judge shall include the Addl. District Judge- However Sec. 21 of the Orissa Municipal Act, is very clear and specific that such District Judge ( referred to as Tribunal ) shall be deemed to exercise jurisdiction as persona designate and not acting in the capacity of a judge of a Civil and as such Orissa Civil s Act has no application to this Case. In other words Section 31 of the Orissa G.P. Act in its meaning and construction is completely different from that of Section 21 of the Orissa Municipal Act. Held, there is no illegality in the impugned Order. (Pradip Mohanty, J.) PRAHALLAD AGARWALLA -V- BIJAY SHANKAR CHANDGOTIA. W.P.( C ) NO OF (Dt ) CIVIL PROCEDURE CODE, 1908 ORDER 18, RULE 3. Rebuttal evidence - Prayer allowed by the trial - Order Challenged. In this Case defendant advanced the plea of adoption and he has to adduce evidence for the same So Plaintiff immediately after closer of his evidence filed petition under Order 18 Rule 3 C.P.C. for leave of the to adduce rebuttal evidence, otherwise he will be deprived of his right of defence without knowing the basis of the defendants plea of adoption - Held, learned Civil Judge rightly allowed the application of the plaintiff and this is not inclined to interfere with the same. (Sanju Panda, J.) BISWANATH HOTA & ORS. -V- STATE OF ORISSA & ANR. CRLMC NO. 816 OF (Dt ) CRIMINAL PROCEDURE CODE, SEC Complaint Case against public servants - While maintaining law and order situation petitioners are said to have committed the offence U/s. 294, 506, 323, 109 & 34 I.P.C The act complained of has reasonable nexus in discharge of their official duties - So the offence alleged to have been committed by the petitioners in course of discharge of their official duties cannot be sustained in the absence of sanction of the State Government U/s. 197 Cr.P.C.- Held, impugned order taking cognizance is quashed and the Criminal Proceeding is dropped. (B.P.Ray, J.)

30 28 CRIMINAL PROCEDURE CODE, SEC RABINDRANATH SATPATHY -V- HINA SETHY. CRLMC NO.470 OF ( Dt ) Refusal to entertain F.I.R. by Police Not connected with the discharge of his official duty - Not entitled to get protection U/s.197 Cr.P.C. In this Case the OIC Hinjili P.S. did not entertain the F.I.R. filed by the Opp.Party-complainant rather he abused the complainant and torn the F.I.R.- Opp.Party filed complaint Case and Magistrate took cognizance U/s. 218, 294 I.P.C. & U/s. 3 & 4 SC & ST ( PA ) Act, 1989 Petitioner challenged the order on the ground that he being a public servant cannot be prosecuted without a valid sanction. Held, in such circumstances, the benefit of Statutorty provision U/s. 197 Cr.P.C. cannot be pressed in to service. INDIAN PENAL CODE, SEC.436. PRATAP CHANDRA SAHU -V- STATE OF ORISSA. CRIMINAL APPEAL NO.1 OF 1992.(Dt ) (B.P.Ray, J.) Same set of evidence - Trial acquitted co-accused persons - Should not have convicted the appellant without any cogent reasons. In this Case no definite allegation against the appellant and his co-accused persons - But in the complaint petition they were arrayed as accused persons - There was also animosity between the appellant & the complainant. Animosity is a double edged weapon which provides both motive for the crime as well as for false implication - No cogent evidence with regard to the complicity of the appellant rather it leans towards false implication - Held, impugned judgment of conviction is set aside. DUKHABANDHU SAHOO V- ANANTA CHARAN NAIK & STATE. CRLMC. NO.827 OF 2003 (Dt ). CRIMINAL PROCEDURE CODE, SEC.482. (B.P.Ray, J.) Quashing of cognizance - Offence U/s.408, 427, 506 IPC. -There is no prima-facie material on record constituting the offences alleged - Trial ought not have taken cognizance of the above offences - In such premises continuance of Criminal Proceeding against the accused will be an abuse of process of law and as such order of cognizance and the consequential order of issuance of process against the accused-petitioner are quashed. (B.P.Ray, J.)

31 29 CRIMINAL PROCEDURE CODE, SEC.482, SANATANA MALLIK & ORS. -V- STATE OF ORISSA & ANR. CRLMC. NO.275 OF (Dt ) Quashing of Criminal Proceeding - Offence U/s.498-A, 406,494/34 IPC. & Section 4 & 6 of D.P.Act. The Case in hand is an off shoot of a matrimonial dispute where in marriage is dissolved between the parties U/s.13-B of the Hindu Marriage Act and wife filed an affidavit that their dispute settled between them outside the and she received permanent alimony and she does not want to proceed with the case -In the above premises chance of conviction is bleak - No useful purpose will be served in continuance of the proceeding - Held, though the offences alleged are noncompoundable in nature but the same does not fetter the inherent power of the High to quash the Criminal Proceeding. LIMITATION ACT, SEC.5. SMT. GEETA MISHRA & ORS. -V- STATE OF ORISSA & ORS. CIVIL REVISION NO. 162 OF (Dt ) Application for condonation of delay - Each day of delay to be explained. (B.P.Ray, J.) Defendant No.3 expired in the month of November Applications for substitution, setting aside abatement and Condonation of delay filed on Dt stating the date of Knowledge as January, No explanation for the delay in filing the applications from January 2000 till 3 rd of April Delay condoned by the below. Hence this revision. Held, this sets aside the order Dt passed by the learned below in allowing the application U/s. 5 of the limitation Act. (Sanju Panda, J.) GENERAL MANAGER, SOUTH EASTERN RAILWAY & ORS. -V- MR.CHINTAMANI ACHARYA & ORS. W.P (C) NO.5645 OF (Dt ). CIVIL PROCEDURE CODE, SEC.11. Resjudicata - O.P.1 took voluntary retirement - His prayer for compassionate appointment of his son was rejected by the Tribunal - However his subsequent application for compassionate appointment of his daughter was allowed - Order challenged by Railways. Filing of another OA with similar prayer shows malafide intention - If the applicant was dissatisfied with the earlier order he could have approached this against the same - By not doing so the earlier order attained finality- Held, Second OA was not maintainable by application of the doctrine of resjudicata. (L.Mahapatra, J & B.N.Mahapatra, J.)

32 30 PRATAP KISHORE DASH - V- HIGH COURT OF ORISSA, REPRESENTED BY ITS REGISTRAR ( ADMN.) & ANR. W.P.( C ) NO OF 2008, ( Dt ) SERVICE LAW - Whether departmental proceeding against an employee can continue after retirement - No. In the present case petitioner had been compulsorily retired from Government Service - So the departmental proceeding is deemed to have lapsed with his retirement - In the event a disciplinary proceeding is kept pending by the employer, the employee can not be made to retire - So Departmental Proceeding against the petitioner after his retirement in the absence of any specific rule authorising continuation of the same is illegal and without jurisdiction - Held, order of punishment quashed, period of suspension shall be treated as duty and the petitioner is entitled to all consequential financial benefits. CRIMINAL PROCEDURE CODE, 1973 SEC BASANTA SWAIN -V- BIPIN BIHARI PARIDA. CRLMC NO OF 2007, ( Dt ) (I.Mahanty, J. & S.C. Parija, J.) Quashing of cognizance U/s. 302 IPC in a complaint case - Evidence shows the petitioner was loving the deceased but the deceased was not willing to marry him - P.W.2 disclosed that on the date of occurrence when deceased had gone to the pond to take bath she saw petitioner talking with her - P.W.3 had seen the petitioner running away from the pond with mud all over his body - Deceased was lying in the pond in an unconscious state - Depth of water of the pond was about five feet deep so prima-facie it cannot be said that deceased was drowned in the water and died - Petitioner remained absconded for more than two months after the occurrence - P.W.4 says that a relation of the petitioner told him that the petitioner committed murder of the deceased Held, there is prima-facie case to take cognizance and to issue NBW against the petitioner. RAM KISHAN KHETAN & ORS. - V- UDAYANATH PRADHAN. CRLMC.NO.519 OF (Dt ) CRIMINAL PROCEDURE CODE, SEC.146(1). (R.N.Biswal, J.) Attachment of subject of dispute - Magistrate is empowered U/s. 146 (1) Cr.P.C to attach the subject of dispute in three types of cases (i) If it is a Case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. In this case learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding U/s.145(1) Cr.P.C. but he had not recorded any finding regarding a case of emergency and that one of the Parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute - Held, the impugned orders are not sustainable in the eye of law. (Sanju Panda, J.)

33 31 RAJKUMAR BISWAL -V- SANTILATA BISWAL & ANR. FAO.NO.101 OF 2008 (Dt ). CIVIL PROCEDURE CODE, ORDER 39, RULE 1 & 2 Suit for partition - Plaintiff-appellant claims to be the adopted son of the original owner - He filed application for injunction not to transfer the suit property during pendency of the suit - Prayer refused - Hence this appeal. Appellant not adduced any oral or documentary evidence in support of his plea of adoption - No prima facie case or balance of convenience in his favour - He has also failed to prove that if order of injunction is not passed he will sustain irreparable loss or injury - Held, no illegality or impropriety in the impugned order. SMT. MARGARET PALAI & ANR. -V- SMT. SAVITRI PALAI & ORS. FIRST APPEAL NO. 71 OF 1993 (Dt ). HINDU MARRIAGE ACT, 1955 SEC.2,5, 7 & 8. (Sanju Panda, J.) A marriage outside the scope of Hindu Marriage Act is not a marriage in the eye of law and a child born out of such marriage between a Hindu male and a non-hindu female cannot succeed to the Coparcenary property left by his / her Hindu father. In the present case, it appears that the plaintiff has not proved by adducing cogent evidence regarding the fact that she being a Hindu has followed all Hindu rites and customs after her marriage or she converted to Hinduism before the marriage - She only stated that she is observing some of the Hindu festivals - She did not examine any caste man or other persons who are acquainted with her day to day life. Since plaintiff No.1 has failed to prove that she is the legally married wife of Debendra, she is not entitled to a share in the ancestral property - As plaintiff No.1 is not the married wife of Debendra, plaintiff No.2 cannot be said to be the daughter of Debendra.Held, Trial rightly dismissed the suit for partition filed by the appellants. THE NEW INDIA ASSURANCE CO.LTD.-V- SURENDRA PATRA & ORS. F.A.O NO.72 OF (Dt ) ( A ) WORKMEN S COMPENSATION ACT, SEC. 3 & 30. (Sanju Panda, J.) Driver of Taxi - Taxi hijacked - Driver missing and could not be traced - After 9 years his wife and children filed application for compensation - Owner of taxi admitted employment as well as incident - Commissioner allowed compensation alongwith interest Award challenged by the Insurance Company. In the present Case missing taxi was seized and hijackers were arrested and put to trial and there being no information with regard to the missing driver it justifies that the hijackers must have killed the deceased before forcibly taking away the taxi from him, so his death arose out of and in course of his employment as a driver of the said taxi In this case presumption U/s. 108 Evidence

34 32 Act can be extended to the date of incident to give benefit to the poor claimants - Held, no impropriety or illegality is said to have been committed by the Commissioner, so as to warrant any interference by this. ( B ) WORKMEN S COMPENSATION ACT, SEC.4 - A (3). Award of interest - Commissioner awarded interest from the date of filing of the claim application which is challenged - The above section provides for payment of interest on the compensation amount from the date it fell due - Undoubtedly the compensation amount would fall due only when the same is adjudicated and determined by the Commissioner. Held, interest on the awarded amount shall only be payable from the date of award and not from the date of application. GANDHA MOHARANA & ANR. -V- STATE OF ORISSA. CRIMINAL APPEAL NO.47 OF (Dt ) (S.C.Parija, J.) CRIMINAL TRIAL - Appreciation of evidence. There is no doubt with regard to the involvement of the accused persons in the alleged crime - However it appears that Civil disputes pending between the parties - ill feeling between them not extinguished - On the date of occurrence both the accused persons and the informant went to take Handia (liquor) - After taking liquor the old vengeance again bubbled out and there was assault - Post Mortem report reveals that no weapon was used - Appellants had no intention to kill the deceased and in a drunken state they lost their balance of mind and assaulted the deceased by means of kick and fist blows - Held, appellants should have been convicted U/s. 3o4 Part-II IPC instead of Section 302 IPC. CONSTITUTION OF INDIA, ART.21. CHAITANYA BEHERA & ANR.-V-STATE OF ORISSA & ORS. W.P.(C) NO OF 2008.(Dt ) (A.S.Naidu, J & S.C.Parija, J.) Right to life- Murder of a convict by a Co-convict - Deceased was the only son - Parents knocked the door of this for compensation. Responsibility of the jail authorities to look after the safety and security of the convict - Assailant could able to procure the broken part of a big steel spoon from the kitchen and attacked the deceased - Jail authorities failed to provide protection - For negligence of the jail authorities Government is vicariously liable to pay compensation - Held, direction to state Government to pay Rs per month to each of the petitioners commencing from August, 2009 for their maintenance so long they are alive. (I.M.Quddusi, ACJ & Sanju Panda, J.) M/S. LUIS PACKAGING PVT. LTD. -V- STATE OF ORISSA & ORS. STREV NO.4 OF (Dt ) ORISSA SALES TAX ACT, SEC.12 (4). When the benefit under the IPR 1996 was promulgated with new industries becoming entitled to exemption from sales tax on sales and purchases, it has to be assumed that the State Government

35 33 was well aware of the concessions other wise available to the dealers under the OST ACT, 1947 and that the benefits under the IPR,1996 was over and above what was provided for under the OST Act. Held, tax liability of the petitioner has to be re-assessed and determined afresh in accordance with the provisions of the OST Act without reference to exemption under the IPR, ORISSA MUNICIPAL ACT, SEC.16 (1) (xii) DILLIP KUMAR SAHOO -V- SURESH SAHU. W.P.(C) NO.7761 OF 2009.(Dt ). (B.P.Das, J & I.Mahanty, J.) Election of the petitioner as Councilor - Election challenged on the ground that petitioner had not disclosed about G.R.Case No.218/2000 and 95/ Learned District Judge declared the election invalid - Hence this Writ Petition. As per Section 16(1)(xii) a person can be disqualified for election if he is sentenced by a Criminal for more than six months imprisonment but in G.R.Case No.218/2000 sentence imposed against the petitioner is only for six months and in G.R.Case No.95/2001 he is released U/s.4(1) & (3) of the P.O.Act - Held, it can not be said that the petitioner was disqualified for the election - Impugned Order is set aside. (I.M.Quddusi, ACJ & Sanju Panda, J.) GOREL VENKAT G.V.RATNAM -V- STATE OF ORISSA. CRLMC. NO.297 OF (Dt ) CRIMINAL PROCEDURE CODE, SEC.167 (2). Bail granted on Dt under the proviso to Section 167 (2) Cr.P.C. - Learned below accepted the bail bond of one surety but refused to accept the bail bond of the other surety on technical grounds - Charge sheet received on the same day at 4.30 PM.- On petitioner filed petition along with bail bond which was refused - Hence this application. In the instant Case petitioner was released on bail and was directed to furnish bail bond of Rs.20,000/- with two solvent sureties for the like amount before the charge sheet was filed - The below refused to accept the same on the ground that conditions of bail was not written on the bail bond - No finding that the bailer offered by the petitioner was not solvent to the extent of Rs.20,000/-Held, right acquired by the petitioner for non filing of charge sheet within the stipulated time can not be treated to have been extinguished - The petitioner shall be released on bail. OM OIL & FLOUR MILLS LTD. -V- STATE OF ORISSA & ANR. CRL.MISC.CASE NO.1430 OF 2007, (Dt ) CRIMINAL PROCEDURE CODE, SEC.156(3). (M.M.Das, J.) To exercise power U/s.156 (3) Cr.P.C. the Magistrate has to look in to the nature of allegations made in the complaint petition and if he is of the view that the same should be investigated by the Police he is authorized to direct the police to investigate in to the matter.

36 34 In the present Case nature of allegations made are required investigation by police which can not be substantiated by an inquiry U/s.202 Cr.P.C. - Held, finding of the revisional that the Magistrate did not apply his judicial mind is not based on any materials. BATAKRISHNA SAMAL -V- STATE OF ORISSA & ANR. W.P.(C) NO.3556 OF 2009, (Dt ) (M.M. Das, J.) CONSTITUTION OF INDIA, 1950 ART Civil has jurisdiction to declare the correct date of birth of a Party - In the present Case Board of Secondary Education, Orissa was a contesting defendant in the suit - Civil passed decree holding that the date of birth of the petitioner recorded in the matriculation Certificate is incorrect - Decree not challenged - Decree becomes final - Held, Direction issued to the Board to correct the date of birth of the petitioner in his matriculation Certificate within three weeks with a further direction that on production of the corrected Certificate, O.P.1 shall correct the date of birth of the petitioner in his service book within one month. (B.P.Das, J. & M.M.Das, J.) NIRANJAN ROUT & ANOTHER -V- STATE OF ORISSA & ORS. W.P.( C) NO OF 2008 ( Dt ) SERVICE - Petitioners were workmen - They were allowed to retire under the Voluntary Retirement Scheme (VRS) - Government passed resolution dt As per resolution petitioners submitted undertakings not to claim any dues from the State Government - Though petitioners had given undertakings, the settled legal position is that, unless the employees are relieved of their duty after acceptance of their request for Voluntary Retirement the jural relationship of the employees and the employer does not come to an end - Undertaking obtained from the concerned employee that he would not claim salary of the higher post or any other benefit was held to be illegal by the Apex. As admitted by the parties similarly situated employees of the same institution received their arrear dues. Held, direction issued to Opp.Parties to release the arrear salary of the petitioners in terms of the Voluntary Retirement scheme basing upon which the petitioners applied for voluntary retirement. (B.P.Das, J & R.N.Biswal, J.) ANADI CHARAN BHUYAN & ANR.- V -THE COLLECTOR, JAJPUR & ORS. W.P.(C) NO.246 OF 2008 ( Dt ) ORISSA LAND REFORMS ACT, SEC.23. Effect of transfer in contravention of the provision - Transfer of land belonging to schedule Caste person - Permission granted by revenue Officer not traceable - Petitioners proved the entry of the application for permission available in the office of the Sub-Collector which shows that the vendor Pranab Mallik obtained permission to sale the land to a non-schedule Caste person - Presumption U/s.114 (e) of the Evidence Act is attracted as the register is a public document kept in the public office in due discharge of official duty. Held, provision U/s.23 of the Act is not attracted and the opposite Parties 3 to 6 are not entitled to any relief. (Sanju Panda, J.)

37 35 NATIONAL SECURITY ACT, SEC.3 (2) SOURAV SAHA -V- STATE OF ORISSA & ORS. W.P.(Crl.) No.252 of (Dt ). Order of detention - Representation by Detenu - Delay in disposal of the representation - Representation submitted to Government on State Government received the same on which was rejected on No satisfactory explanation for the delay - Even though the period from to were working days, the day to day events dealing with the representation have not been explained - Government failed to explain the delay of 94 days in disposing of the representation - Held, order of detention liable to be set aside. (L.Mohapatra, J. & B.N.Mahapatra, J.) SUBHADRA DEBATA & ORS.-V-STATE OF ORISSA & ARJUNA CHARAN PANDA -V- SUBHADRA DEBATA & ORS. CRIMINAL APPEAL NO.302 OF 1990 & CRIMINAL REVISION NO.41 OF 1991.( Dt ). INDIAN PENAL CODE, SECS.498-A & 306. No credible evidence on record that the appellants meted the deceased with cruelty for nonfulfilment of their demand of dowry - Held, Trial erred in convicting the appellants U/s.498-A/ 34 IPC. - Consequently the order of acquittal U/s.306/34 IPC. Can not be said to be perverse warranting interference by this. (B.P.Ray, J.) SABITA SAMAL -V- BIJOYA KRUSHNA NAYAK. MATA NO.25 OF ( Dt ). HINDU MARRIAGE ACT, SEC.13. Prayer for Divorce on the ground of desertion and cruelty - Prayer refused- Respondent again filed another application for dissolution of marriage on the very same ground of desertion and cruelty - Learned family Judge held the proceeding maintainable - Order challenged before this. Allegation in both the proceedings are same except one allegation in the present proceeding that the respondent requested the appellant to join him after his father s death to maintain the house hold in the village and to look after the child but the appellant did not turn up - Held, additional allegation made in the present proceeding will amount to mental cruelty and direction issued to decide the dispute solely on the ground as to whether the appellant is guilty of cruelty or not. (L.Mahapatra, J & B.N.Mahapatra, J.) CONSTITUTION OF INDIA, 1950 ART.311, UNION OF INDIA & ORS. -V- P.SURESH KUMAR & ANR. W.P.(C) NO.5517 OF 2009 (Dt ). Reversion after working for almost three years in the promotional post - No notice to show cause issued prior to the order of reversion - Violation of principles of natural justice - Held, no infirmity in the order passed by the Central Administrative Tribunal in quashing the order of reversion. (L.Mohapatra, J & B.N.Mahapatra, J.)

38 36 DEEPAK RANJAN MOHANTY -V- STATE ELECTION COMNR. ORISSA & ANR. W.P.(C) NO.47 OF (Dt ) CONSTITUTION OF INDIA,1950 ART.16. Promotion - Criteria -Merit plays a dominant role. So far merit is concerned petitioner is on a better footing than Opp.Party No.2 - In the present Case selection Board recommended names for promotional post basing on the ratings made in the CCR for three preceding years - When petitioner, got three outstanding ratings, Opp.Party No.2 got two outstanding ratings and one very good rating in the preceding three years - No explanation as to how Opp.Party No.2 got promotion ignoring the case of the petitioner - However it is submitted from the Bar that in the meantime petitioner is officiating in the post of senior Assistant from Held, Direction to O.P.1 to treat the date of promotion of the petitioner with effect from the date it promoted O.P.2 i.e and grant all consequential benefits to him. (P.K.Tripathy, J. & B.N.Mahapatra, J.) DR.SUNITA MOHANTY & THREE ORS.-V- STATE OF ORISSA & ORS. W.P. (C) NO.8880 OF 2009 ( Dt ) Admission - Entrance test for P.G. ( Medical ) Courses, Prayer to fill up vacant seats by selected in-service candidates including the petitioners - Authorities denied admission Hence the writ petition. Two seats one in General Medicine and the other in Ophthalmology have fallen vacant owing to regignation of admitted candidates - Supreme fixed as final dead line for students to join allotted Course - Though candidates have been admitted to the said course but classes have not commenced and the courses being for three years no prejudice would be caused to the candidates admitted against the vacant seats. Held, direction issued to Opp.parties 3 & 4 to conduct counselling of the four petitioners and the two intervenors for filling the two vacant seats and complete the process of admission by SUSANT KUMAR BARAL -V- VICE CHANCELLOR, BERHAMPUR UNIVERSITY & ORS. W.P.(C) NO OF (Dt ) CONSTITUTION OF INDIA, ART.16. (M.M.Das, J.) Appointment of petitioner as Research Associate on He used to discharge the duties of a Lecturer - Recommendation of the University to U.G.C to re designate the post of Research Associate as Lecturer - Approval of the chancellor to re-designate w.e.f Petitioner prays for re-designation of the post from the date of his joining the post. Petitioner continued to discharge the duties as Lecturer from the date of joining - Petitioner shall not get any financial benefit as he is drawing the salary of a Lecturer - He has stated not to claim

39 37 seniority over any other Lecturers - No body will be affected if the petitioner would be re-designated as Lecturer from the date of his joining as Research Associate - Held, direction issued to the Opp.Parties to re-designate the petitioner as Lecturer from the date of his joining the post of Research Associate. JAYANTA KUMAR KHAMARI -V- RAILWAY BOARD W.P.(C) NO OF 2008.(Dt ) (B.P. Das, J. & I. Mahanty, J.) PERSONS WITH DISABILITIES ( EQUAL OPPORTUNITIES, PROTECTION OF RIGHT & FULL PARTICIPATION ) ACT SEC.33. Petitioner a physically handicapped person - Selected for Engineering services Examination He secured C-38 rank in the merit list - Railway Board allotted him Military Engineering service - He filed complaint - Chief Commissioner for persons with disabilities directed Railway Board to allot Railway service to the petitioner - Order not implemented - Hence this Writ petition,. Every establishment is obliged to make reservation for persons with disabilities U/s.33 of the Act unless exemption is granted by issuance of notification - The object of the Act can not be whittled down by the concerned authorities at their whims - Plea of the Railway Board that no post identified for P.H. Candidate was available in Railway Engineering service is absolutely incorrect and unjustified - Held, Direction issued to Railway Board to allot the petitioner Railway service within two months. (B.P.Das, J. & B.P.Ray, J.) MAJOR EVENTS 1. Observance of Foundation Day of Orissa High. 26th July of every year is being observed as Foundation Day of Orissa High. This year also it was observed on in the premises. Hon ble the Acting Chief Justice, Hon ble Judges of the and Members of the Bar offered floral tributes to the Statue of Justice Bira Kishore Ray as a mark of respect to the revered soul. All the officers and staff of the are also attended the ceremony. 2. Inauguration of Reading Room of Orissa High Library. The Reading Room of Orissa High Library has been inaugurated by Hon ble Shri Justice I.M.Quddusi, the Acting Chief Justice of Orissa High on in presence of Hon ble Judges of the & Members of the Bar. 3. Celebration of Independence Day in the High premises. On the occasion of celebration of Independence Day in the High premises, Hon ble Shri Justice P.K.Tripathy, Judge, Orissa High hoisted the National Flag on 15th August, Hon ble Judges of the, officers and staff also graced the function.

40 38 Names of Hon ble Judges of Orissa High participating Programmes/ Courses at Delhi & other place Sl. No. Names of the Hon ble Judges Period Topics 1. Hon ble Shri Justice I.M.Quddusi Acting Chief Justice & Attend the Conference of NALSA at Vigyan Bhavan, New Delhi. 2. Hon ble Shri Justice P.K.Tripathy to Attend the East Zone Conference on enhancing Timely Justice strengthening Criminal Justice Administration from 28-30, August, 2009 at Ranchi. ACTIVITIES OF ORISSA STATE LEGAL SERVICES AUTHORITY During the period under report, 6 Mediation Centres have been inaugurated in the Civil premises of Cuttack on , Bhubaneswar (Khurda) on , Berhampur (Ganjam) on , Sundargarh on , Sambalpur on and Bolangir on by Hon ble Mr. Justice I.M.Quddusi, Acting Chief Justice, Orissa High. 87-Civil Cases, 322-Criminal Cases, 15-Money Suits, 8-Execution Cases, 13-Matrimonial, MACT-19, BSNL-68 and 45-Pre-litigation cases have been disposed of through mediation process on the dates of inauguration of these Mediation Centres. As a part of implemention of Plan of Action prepared by NALSA, a Legal Aid Clinic at KIIT Law School, Bhubaneswar has been inaugurated by Hon ble Mr. Justice I.M.Quddusi, Acting Chief Justice, Orissa High on Further, State Level Lok Adalats were held at Cuttack on , Baripada (Mayurbhanj) on , Sundargarh on , Jeypore (Koraput) on , Bolangir on and Puri on , in which total 550 number of MACT cases have been settled/disposed on conciliation basis and a total sum of Rs. 5,86,49,000/- has been awarded as Compensation. Similarly, 178 number of District and Taluk Level Lok Adalats and 209 number of Legal Literacy/Awareness and Micro Legal Literacy Camps have been organized on different dates in the State of Orissa. In the above District and taluk Level Lok Adalats, 31,259 numbers of cases have been disposed of in total, which includes Civil-175, Criminal-10,407, Revenue- 18,647, Bank-1046, BSNL-450, Labour-21 and other cases (NREGA)-89. Criminal Fine of Rs. 27,87,374/- and Rs. 53,59,919/- towards revenue have been realized in the above noted cases. The benefits of the Scheme of Legal Aid and Assistance have been extended to 796 numbers of persons, which include SC-99, ST-71, OBC-65, Women-298, In-custody-102 and other weaker sections of the Society-161.

41 Observance of Foundation Day of Orissa High on (Birth Anniversary of Late Justice B.K. Ray, the first Chief Justice of Orissa High ) Farewell to Hon ble Shri Justice S.R. Singharavelu, Judge, Orissa High on his Lordship s retirement Cover designed by : Sanjay Kumar Mohapatra Printed at Graphic Art Offset Press, Cuttack-1 33