Significant Judgments
JUSTICE SAVITRI RATHO
The facts of the case were such that the petitioner, the only child of one Anandananda Sahoo, a fireman working under respondent no.1, died in harness on 24th July, 1983 while working as a fireman. At that time, the petitioner was only four years old. On attaining 18 years ago, she applied on 5th April, 1999 for Rehabilitation Assistance Scheme (RAS) as per the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990. Her case was rejected alleging delay in applying. Thereafter, she submitted a representation to the D.G. & I.G. of Police, respondent no.2 for condonation of delay and after condonation of such delay and on the production of distress certificate, she was appointed as a Junior Clerk. At the time of submission of the application, she was an unmarried girl, but as the unreasonable delay was occasioned, she was married before the order of appointment was made. She had intimated about her marital status before the competent authority before joining in the post as a Junior Clerk in the Fire Services Department. On completion of satisfactory qualifying service of one year, she was made regular by the Department. However, without any notice, all of a sudden, she was discharged from service.
The Addl. Government Advocate had argued that as per the definition ‘family’ provided in Rule-22 of the Orissa District Police Ministerial Officers Cadre (Method of Recruitment and Conditions of Services) Rules, 1995 and Rule 2(b) of the OCS (Rehabilitation Assistance) Rules, 1990, she is not included in the family of late Anandananda Sahoo and therefore, her employment has been rightly terminated. The Bench consisting of Justice S.K. Mishra passed an order, which was supplemented by Justice Savitri Ratho, who said that the definition of “family members” in Rule 2 (1) (d) of the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, is offensive of gender equality and the right to equality enshrined in Article 14, 15 and 16 of the Constitution and the Directive Principles of State policy. Citing the case of Dr. (Mrs.) Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai 1987 AIR 1100 and Another, the Court quoted “A son is a son till he gets a wife but a daughter is a daughter all her life” and any such discrimination would be against “Convention on the Elimination of All Forms of Discrimination against Women”. Citing more judgments from the Supreme Court, Justice Ratho held that since the only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression “family”. In conclusion it was observed that judgment, the government was trusted to be an ideal employer and take appropriate steps to prevent the continued violation of gender equality and the right of equality guaranteed under the Constitution of India, in the matter of compassionate appointment.
The facts of the case were such that the petitioner-Chandan Parija had filed this Criminal Revision petition challenging the order dated 12.12.2008 passed by the learned Addl. Sessions Judge (FTC), Jagatsinghpur in S.T. Case No. 23 of 2008 / 273 of 2007 dismissing the petition filed by the petitioner along with the co-accused persons under Section 227 of Cr.P.C. to discharge them from the offenses CRL REV No 21 of 2009 Page 2 of 31 punishable under Section 395 of the I.P.C. and Section 25/27 of the Arms Act.
The prosecution case, in brief, was that on 27.05.2003 in between 7.30 P.M. to 8.00 P.M. while the informant, Kishore Kumar Parida was coming out from the shop of one Prabodh Kumar Ray, BapuParida, Baba Swain, and Pradip Pati came on a motorcycle and obstructed him. Baba assaulted him with nature and Bapu shot at him with a gun, but the shot missed him. When he was shouting for help the other four accused persons arrived on two other motorcycles armed with bhujali. When he fell, they assaulted him on his head and snatched Rs 60,000/- and a gold chain of two bharis. He managed to escape and entered the shop of Kapil Sahu and closed the grill gate. The accused persons left the spot with the cash and gold chain threatening to give the same treatment to anybody who reported the matter at the police station.The accused persons had filed an application under Section – 227 of the Crl.P.C to discharge them from the offenses under Section – 395 I.P.C and under Section – 25 / 27 of the Arms Act as no weapon had been seized and no sanction had been obtained.
The Court, relying on the judgment of N. Suresh Rajan agreed that “…. for conviction, the Court has to come to the conclusion that the accused has committed the offense.” Reference in this connection could be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. the State of U.P. [(2013) 11 SCC 476 and a few others. The allegations against the petitioner were that armed with the other four accused he arrived at the spot and they committed dacoity, hence prima facie the necessary ingredients for the commission of the offenses under Section 395 and Section – 397 of the IPC were available to proceed against the petitioner for framing of charge. As regards the meaning of the word “use” which appeared in Section – 397, it has been decided in a catena of decisions of the Hon’ble Supreme Court that holding a deadly weapon during the commission of dacoity is enough to attract the same and it is not necessary that any injury may have been caused by use of the weapon. Citing references of Phool Kumar v. Delhi Administration (AIR 1975 AIR 905), Ganesh v. State (2021 SCC OnLine SC 1023), the Court found no error in the impugned order, and hence accordingly it wasn’t interfered with. The Criminal Revision being bereft of merit was liable to be dismissed. It was however made clear that what had been observed in this judgment was only for disposal of the present Criminal Revision and any observation made shall not prejudice the rights of the parties during trial and the trial Court should not be influenced/inhibited by the observations made in this judgment and should proceed with the trial independently in accordance with the law.
In this case, the deceased was hit by the offending truck as a result of which he died at the spot.The present appeals had been preferred by both sides to challenge the judgment/award dated 08.03.2019. The claimants had filed MACA No.274 of 2019 as they alleged that the tribunal had wrongly calculated the compensation by undervaluing the income of the deceased. The insurance company filed MACA No.384 of 2019 seeking intervention because as the driver didn’t have a valid licence, it was a breach of their policy condition and hence they were not liable to indemnify, also submitting that since the sons of deceased were major, the compensation was on the higher side.
The Court noted that in absence of any documentary evidence regarding the age of deceased, the tribunal had relied on the charge sheet to hold that the deceased was 52 years old and applied the multiplier of 11 relying on the judgment of the Supreme Court rendered in Smt. Sarala Verma v. DelhiTransport Corporation, holding that considering the minimum wages at the time the monthly income fixed by the trial Court was not unreasonable. The Court however also observed by relying on the cases of National Insurance Company Ltd v.. Birender and others, (2020) 11 SCC 356, Gujarat SRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 , that even if some of the claimants were majors, it was no longer res integra that even major married sons who were earning and not completely dependent on the deceased would be entitled to compensation as they would be covered under the term “legal representative” wherein the tribunal was hence duty bound to consider their application and not limit it to conventional heads only.
The Court also decided that imposition of penal interest was illegal and set it aside by referring to the cases of National Insurance Co. Ltd. v..Keshav Bahadur & Ors, (2004) 2 SCC 370. Lastly, in accordance with National Insurance Co. Ltd v. Swaran Singh, (2004)3 SCC 297, the Court gave liberty to Insurance company to recover compensation from owner of vehicle in accordance with law.
