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

The Orissa 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." Factual Background: For the period between 23rd April 1984 and 1st August 1989, the petitioner worked on deputation with the Orissa State Handloom Weavers' Co-operative Society Limited, Bhubaneswar ('the Society'). Long after he was repatriated to his parent Department in the Government of Odisha, he was informed that some shortage was detected on the basis of an audit report concerning the Society. The shortage was to the tune of Rs.7,92,046.08, which was liable to be recovered from him. The dispute that arose was referred to the Arbitrator under Section 68 of the Orissa Cooperative Societies Act, 1962. The Petitioner contested the case by appearing before the Arbitrator and duly making his submissions. On 1st November, 2003, the Arbitrator delivered a judgment/Award holding that the Society was entitled to recover from the petitioner the aforementioned amount together with the interest @12% per annum from the date of filing of the dispute till the date of its realization. On 22nd March 2004, the Secretary of the Society wrote to the petitioner stating that in terms of the above Award/ Judgment, he was liable to pay the Society Rs. 14,16,442.40, which included the interest amount. When the petitioner did not respond to the above demand, the first impugned order dated 12th August 2004 was issued by the Directorate of Textiles, Orissa stating that the above amount would be recovered from his salary under Rules 182 and 183 of the Odisha Treasury Code (OTC) commencing from August, 2004 till his retirement. The Petitioner then challenged the above order before the Odisha Administrative Tribunal (OAT). Till the said petition was disposed of by the OAT, there was an interim stay granted to the petitioner, restraining the Directorate of Textiles and Handlooms, Orissa as well as the Society from making any recovery from his salary pursuant to the order dated 12th August, 2004. However, the OAT decided against the petitioner. Here, through this writ petition, the petitioner has challenged both the orders of Directorate of Textiles and of the OAT. While issuing notice in the petition, the Court ordered that no recovery would be made from the petitioner otherwise than in accordance with law relating to the execution of the award. Contentions of the Petitioner: Mr. Manoj Kumar Mohanty, counsel for the Petitioner intimated the Court that the petitioner has superannuated in the meanwhile. He placed reliance on the decision of the High Court in Swastik Agency v. State Bank of India, 2009 (II) OLR 201. He also relied on the law laid down in Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477, in which the Apex Court held that where a statute required a particular act to be done in a particular manner, it had to be done in that manner alone. Accordingly, he argued that without instituting a proper execution proceeding, the Society could not have sought to recover any amount from the petitioner pursuant to the Award in terms of Rule 182 of the OTC. Contentions of the Respondent: Mr. Sailaza Nandan Das, Additional Standing Counsel appearing for the State-Opposite Parties pointed out that the Award dated 1st November 2003 became final. To put it differently, the petitioner did not question or challenge the Award which required him to pay the Society over Rs. 14 lakhs. Thus, when the petitioner made no effort to make any payment whatsoever, the Society had to resort to recovery by invoking Rule 182 of the OTC. Further, in response to the plea that an execution proceeding should have been instituted, Mr. Das submitted that throughout these long years there has been a stay put on further steps to be taken by the Society, first by the OAT and then by the Court. Therefore, there was no occasion for execution proceedings to be filed by the Society. Observations and Decision of the Court: While examining the relevance of Swastik (supra), the Court pointed out that even in that case when the Court detected a procedural illegality, the relief was moulded to ensure that equities were balanced and that the defaulting party viz., the petitioner in that case was not allowed to escape liability by not making any payment whatsoever. The Court expressed its...

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

Jyoti Prakash Dutta

Tags