Orissa High Court Weekly Round-Up: May 30 To June 5, 2022

1. Dr. Pabitra Mohan Mallik v. State of Odisha & Ors., 2022 LiveLaw (Ori) 93

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

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

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

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

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

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

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

Judgments/Orders Reported This Week:

1. Election Cannot Be Said To Have Commenced If Notified By A Body Not Empowered To Do So: Orissa High Court

Case Title: Dr. Pabitra Mohan Mallik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 93

The Court quashed a notification issued by an appealing body of the Odisha Medical Services Association ('OMSA'), which notified election for the Association. A Single Bench of Justice Arindam Sinha, while concluding that the notification was issued without any authority as it was done in violation of the body's constitution, observed,

"This Bench is in respectful agreement with views expressed in Dillip Kumar Nayak (supra) on authority to conduct elections, as must be on basis of law so far as the association is concerned. Basis of law is its constitution. There is clear indication that the provisions therein were not complied with and followed in issuance of impugned notification."

After going through the facts and laws, the Court noted that the process of election was commenced by a committee not duly constituted under the association's constitution. In the circumstances, the Court held, it cannot be said that the process of election had commenced.

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

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

Citation: 2022 LiveLaw (Ori) 94

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

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

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

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

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

Citation: 2022 LiveLaw (Ori) 95

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

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

Case Title: Mohammad Arif v. Enforcement Directorate

Citation: 2022 LiveLaw (Ori) 96

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

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

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

Citation: 2022 LiveLaw (Ori) 97

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

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

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

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

Citation: 2022 LiveLaw (Ori) 98

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

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

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

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

Citation: 2022 LiveLaw (Ori) 99

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

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

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

Citation: 2022 LiveLaw (Ori) 100

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

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

Other Important Developments:

Orissa High Court Stays Single Judge Order Reinstating NLU-O Finance Officer Engaged On Contractual Basis

A vacation Bench comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo, has 'stayed' the operation of judgment dated 10^th May 2022, rendered by a Single Bench of Justice Biswanath Rath, reinstating services of an ex-Assistant Finance Officer, who was terminated by the National Law University, Odisha ('NLUO'). While issuing notice to the opposite parties, the Division Bench ordered, "As an interim, it is directed that there shall be stay operation of the impugned judgment dated 10th May, 2022 in W.P.(C) No.33209 of 2020 under Annexure-1 till 27th June, 2022."

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

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

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

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

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

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

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

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

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

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