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The Indian Law Reports THE INDIAN LAW REPORTS (CUTTACK SERIES, MONTHLY) Containing Judgments of the High Court of Orissa and some important decisions of the Supreme Court of India. Mode of Citation 2020 (I) I L R - CUT . APRIL - 2020 Pages : 625 to 800 Edited By BIKRAM KISHORE NAYAK, ADVOCATE LAW REPORTER HIGH COURT OF ORISSA, CUTTACK. Published by : High Court of Orissa. At/PO-Chandini Chowk, Cuttack-753002 Printed at - Odisha Government Press, Madhupatna, Cuttack-10 Annual Subscription : 300/- All Rights Reserved. Every care has been taken to avoid any mistake or omission. The Publisher, Editor or Printer would not be held liable in any manner to any person by reason of any mistake or omission in this publication ii ORISSA HIGH COURT, CUTTACK CHIEF JUSTICE The Hon’ble Shri Justice MOHAMMAD RAFIQ, M.Com., LL.B. (From 27.04.2020) PUISNE JUDGES The Hon’ble Justice KUMARI SANJU PANDA, B.A., LL.B. (Acting Chief Justice from 05.01.2020 to 26.04.2020) The Hon’ble Shri Justice S.K. MISHRA, M.Com., LL.B. The Hon’ble Shri Justice C.R. DASH, LL.M. The Hon’ble Shri Justice BISWAJIT MOHANTY, M.A., LL.B. The Hon’ble Shri Justice Dr. B.R. SARANGI, B.Com.(Hons.), LL.M., Ph.D. The Hon’ble Shri Justice DEBABRATA DASH, B.Sc. (Hons.), LL.B. The Hon’ble Shri Justice SATRUGHANA PUJAHARI, B.A. (Hons.), LL.B. The Hon’ble Shri Justice BISWANATH RATH, B.A., LL.B. The Hon’ble Shri Justice S.K. SAHOO, B.Sc., M.A. (Eng.&Oriya), LL.B. The Hon’ble Shri Justice PRAMATH PATNAIK, M.A., LL.B. The Hon’ble Shri Justice K.R. MOHAPATRA, B.A., LL.B. The Hon’ble Shri Justice Dr. A.K.MISHRA, M.A., LL.M., Ph.D. The Hon’ble Shri Justice BIBHU PRASAD ROUTRAY, LL.B. The Hon’ble Shri Justice SANJEEB KUMAR PANIGRAHI, LL.M. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri SATYA NARAYAN MISHRA, Registrar General Shri RAJENDRA KUMAR TOSH, Registrar (Administration) Shri LALIT KUMAR DASH, Registrar (Judicial) iii N O M I N A L I N D E X PAGE Arun Kumar Jena -V- O.T.D.C. Ltd., Managing Director & Anr. 784 Devi Prasad Panda -V- Union of India & Ors. 739 Henalata Swain & Ors. -V- Divisional Railway Manager, East Coast 756 Railway & Anr. Hiranya Kumar Behera @ Mitu -V- State of Orissa. 699 Jaga Pradhan -V- State of Odisha & Ors. 765 M/s Oriental Insurance Co. Ltd. Cuttack -V- Santosh Kumar Das. 782 M/s. Noble Pharmacare Ltd., Cuttack -V- State of Odisha & Ors. 712 M/s. Parida Constructions -V- State of Odisha & Ors. 708 Mangayakarasi -V- M. Yuvaraj. 625 New India Assurance Co. Ltd. -V- Hilli Multipurpose Cold Storage 633 Pvt. Ltd. Nirmala Nayak -V- State of Odisha & Ors. 749 OCL India Limited & Anr. -V- Union of India & Ors. 655 Odisha Gramya Bank-V- Deputy Chief Labour Commissioner 788 (Central), Bhubaneswar & Ors. Puspak Ranjan Nayak -V- Union of India & Ors. 743 Rabindra Kumar Mohanty-V- The Registrar, Income Tax Appellate 718 Tribunal, Cuttack Bench. Rankanidhi Dakua -V- State of Odisha. 704 Rector Public School, Jeypore -V- Smt. Saraswati Rout & Ors. 796 Santha Charan Pattnaik -V- State of Odisha. 723 Shivsankar Mohanty (In Person) -V- S tate of Odisha & Ors. 694 Sunita Nayak -V- State of Odisha & Ors. 775 Urmila Shah -V- Presiding Officer, Industrial Tribunal & Ors. 644 iv ACTS Acts & No. 1908 - 5 Code of Civil Procedure, 1908 1950 Constitution of India, 1950 1952-60 Commissions of Inquiry Act, 1952 1986-68 Consumer Protection Act, 1986 1923- 8 Employee Compensation Act, 1923 1955-25 Hindu Marriage Act, 1955 1961-43 Income Tax Act, 1961 1964-1 Odisha Grama Panchayat Act, 1964 1989-24 Railways Act, 1989 1961- 22 Odisha Home Guards Act, 1961 v S U B J E C T I N D E X PAGE CIVIL PROCEDURE CODE, 1908 – Order 18 Rule 17 – Recall of witness – Trial court allowed the application without recording any reason – Order of trial court challenged – Held, recall of witness cannot be made in a routine manner – The power can only be exercised sparingly in a fit case assigning good reasons thereto for clarification of the doubt. Rector Public School, Jeypore -V- Smt. Saraswati Rout & Ors. 2020 (I) ILR-Cut…… 796 COMMISSIONS OF INQUIRY ACT, 1952 – Section 3(4) – Provisions under – Public Interest Litigation seeking direction to the State of Odisha to follow the procedure of law in accordance with the provisions of section 3(4) of the Commissions of Inquiry Act, 1952 in laying the inquiry report of Hon’ble Justice (retd.) C.R. Pal Commission before the Legislature of the State of Odisha – Plea that such report is having public importance and as such cannot be kept pending for years together – The question arose as to whether the provision of the Act is mandatory and whether the court can issue mandamus? – Held, No. – Reasons indicated. Shivsankar Mohanty (In Person) -V- State of Odisha & Ors. 2020 (I) ILR-Cut…… 694 CONSUMER PROTECTION ACT, 1986 – Section 13 – Provisions regarding grant of time for filing of response – Reference to Constitution Bench – The reference made to Constitution bench relates to the grant of time for filing of response to a complaint under the provisions of the Consumer Protection Act, 1986 – The first question referred is as to whether Section 13(2)(a) of vi the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days – The second question which is referred is as to what would be the commencing point of limitation of 30 days stipulated under the aforesaid section – The Constitution bench after considering the question in detail answered the following. New India Assurance Co. Ltd. -V- Hilli Multipurpose Cold Storage Pvt. Ltd. 2020 (I) ILR-Cut…… 633 CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 – Writ petition – Disposal – Duty of the judge – Single Judge after narrating the facts of the case, the findings in the impugned order and the contentions raised on behalf of the respective parties, abruptly came to the conclusion that there is no impropriety or illegality in the order – No reason indicated – Effect of – Held, it is very easy to dispose of a case for the sake of disposal mentioning therein that there is no illegality or infirmity in the impugned order/judgment but when a party raises some vital points challenging the impugned order/judgment, it is the duty of a Judge to discuss such points and assign reasons for its acceptance or otherwise. Urmila Shah -V- Presiding Officer, Industrial Tribunal & Ors. 2020 (I) ILR-Cut…… 644 Articles 226 and 227 – Tender matter – Writ petition challenging the decision of the tender Committee declaring the tender of the petitioner to be disqualified – Plea that the vii tender was initially declared qualified and subsequently with malafide intention it was declared disqualified – State’s reply is that a mistake was committed while evaluating the technical bid and basing upon such mistake, consequential process was undertaken up to financial bid and subsequently the mistake in technical evaluation was detected by the Tender Evaluation Committee which rejected the tender as the tender was found to have not fulfilled the eligibility criteria – Rejection, whether can be interfered with? – Held, no, if a mistake with regard to eligibility is detected subsequently, it cannot be said that the mistake is beyond correction – No malafide can be attributed in the case at hand because the document containing annual turnover (ATO) filed by the petitioner itself makes the petitioner ineligible for participation. M/s. Parida Constructions -V- State of Odisha & Ors. 2020 (I) ILR-Cut…… 708 Articles 226 and 227 – Writ petition – Tender matter – Challenge is made to the issuance of a corrigendum notice excluding a eligibility criteria – Plea that such an action in the midst of the tender process not proper and excludes the petitioner from participating in the tender – State’s plea is that it has issued the corrigendum by exercising the power of another clause of the tender itself – Power of the State questioned – Held, certainly in our considered opinion, we cannot direct the opposite parties to insert an eligibility clause which is otherwise taken away in exercise of their power under Clause No. 6.15 of the tender document for the larger public interest – The right exercised by the authority is right – No interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is called for. viii M/s. Noble Pharmacare Ltd., Cuttack -V- State of Odisha & Ors. 2020 (I) ILR-Cut…… 712 CRIMINAL TRIAL – Fair trial – Offence under Section 302 of Indian Penal Code – Conviction – Doctor has stated that weapon of offence was not sent to him for examination and there was a possibility that deceased might have lived if timely medical attention was given to him – Chemical report of the weapon of offence not obtained – Enmity between the accused and deceased pleaded – Evidence do not appear clinching – Trial found to have been done with haste ignoring the basic principle to ensure fair trial – The learned Sessions Judge, as record reveals adjourned the case for chemical examination report but subsequently without taking any steps framed charge, examined witnesses and completed trial recording conviction – Held, the enmity as a double aged weapon assumes importance – As the conviction is based upon the sole eye witnesses and her evidence is found to be not credible enough due to prior enmity and contradiction with medical evidence, the accused is entitled to be given benefit of doubt.
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