Bimal Kumar Agarwalla v. State of Odisha & Anr. and batch

Case Number: CRLMC Nos. 1922, 1924 and 1925 of 2023
Date of decision: 3rd May, 2023

Court must be satisfied of non-execution of bailable warrant and non-cooperation
of accused in the Court proceedings before issuing non-bailable warrants.

In this case, the petitioners had challenged the order of issuance of Non-bailable Warrant (NBW) against them without calling for a report from the police the reason for non-execution of the bailable warrants and without recording his/her satisfaction that the petitioners were avoiding to appear before the Court. This Court relied on Raghunath Das vs Hari Mohan Pani (1988) 1 OCR 136 and clarified that the matters of issue of bailable or non bailable warrant and representation of the accused is between the accused and the Court and the complainant need not be heard.

This Court held that in view of its disastrous consequences on the personal liberty of an individual, NBW should not be issued mechanically. Article 21 of the Constitution imposes a duty on the Courts to protect the liberty of the citizens. So the Court should be extremely cautious while issuing NBW and should do so only after considering the totality of the facts and circumstances and only after the Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally.

This Court also held that the impugned order does not reveal that the S.D.J.M. had received or called for any report from the police regarding non-execution of the bailable warrant. Nor does the order reveal that the learned S.D.J.M. was satisfied that the accused was avoiding the Court’s proceedings intentionally. The impugned order issuing NBW was set aside.

Khagendra Sethi v. Smt. Arnapurna Sethi & Anr.

Case Number: MATA No. 20 of 2017
Date of decision: 17th May 2023
Coram: Former Chief Justice S. Talapatra, Justice Savitri Ratho

In this case, this Court examined whether the learned trial Court was justified in dismissing the suit basing on the alleged admission of the Appellant in an earlier proceeding i.e. C.P. No.1056 of 2010 filed by him, by relying on Photostat copies of documents filed by the Respondents.

This Court held that the settled proposition of law is that the admission which is clear, unequivocal and unconditional may entitle the plaintiff or defendant to a judgment based on such admission. But this admission has to be unequivocal. If this is so, the defendant should not be relegated to the rigors of a long drawn trial. As per the provisions of Order 12 Rule 6 of the CPC, a suit can be dismissed on the basis of admitted facts, admitted documents and admitted pleadings. Order 12 Rule 6 of the CPC can therefore be resorted to by a defendant for the dismissal of the suit on the basis of admitted averments.

This Court further held that “Admission” has not been defined in the CPC but Section-17 of the Indian Evidence Act defines admission to be a statement made in the oral, documentary or electronic form suggesting an inference to a fact-in-issue or relevant fact. Section 58 of the Indian Evidence Act provides that where a fact has been admitted by the parties or their agents, there would be no requirement to prove such facts. However it has to be proved before the Court that such fact has indeed been admitted and the proviso to the Section gives a discretionary power to the Court to require such admitted facts to be proved by other means.

This Court further held that without calling for the original case record or the certified copies of the plaint and order, the Court on perusal of the photocopies of the plaint in the earlier case – C.P.No.1056 of 2010 / C.P.No.136 of 2013, has dismissed the suit. The dismissal was set aside.

M/s. JSW Steel Ltd. v. Micro and Small Enterprises Facilitation Council & Ors.

Case Number: W.A No. 601 of 2022
Date of decision: 29th September 2023
Coram: Former Chief Justice S. Talapatra, Justice Savitri Ratho

Liberal interpretation cannot be given to the definition
of ‘small enterprise’ under the MSMED Act.

The writ application filed by the Appellant challenging the award passed by the Micro and Small Enterprises Facilitation Council, Cuttack directing the Appellant to pay the principal amount of Rs 1,00,57,533.32 and interest claim of Rs 4,03,10,934.91 calculated upto 31.12.2014 with compound interest with monthly rests at the rate of 3 times of the bank rate as notified by the Reserve Bank of India till realization of dues, had been dismissed by the learned Single Judge. Writ Appeal had been filed against the order passed in the writ petition. Allowing this Writ Appeal, this Court held that the purpose and objective of the MSMED Act would be defeated if each unit of an enterprise or company like Respondent No.2 is taken to be a separate enterprise for the purpose of maintaining a claim under Section 18 and that it would not be in the interest of justice to give a liberal interpretation to the definitions of “supplier” and “small enterprise”. This Court further held that the four units of the Respondent No.2 constitute a single enterprise and in view of the total value of the investment towards plant and machinery for the relevant years, the classification of Respondent No.2 cannot be “small enterprise” for the purpose of maintaining the claim under Section 18, for which the impugned award is liable to be set aside as it is without jurisdiction. The Judgment in the writ petition was set aside.

Pradyumna Kumar Patra & Ors. v. State of Odisha and Ors. and batch

Case Number: W.P.(C) No. 15738 of 2022 and batch
Date of decision: 1st May 2023
Coram: Former Chief Justice S. Talapatra, Justice Savitri Ratho

Requirement of consultation with State Public Service Commission under
Article 320(3) of the Constitution is not an empty formality.

The common grievance of the petitioners in the writ petitions was the substitution of the method of selection contained in Rule 7 of the Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 by Rule 4 of Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Amendment Rules, 2021. Through this amendment, marks awarded for career marking, written test and vive voce had been substituted by the highest GATE Score obtained in the last three years, preceding the advertisement.

This Court held that there is no gainsaying that the State Government is within its power under Article 309 of the Constitution of India to prescribe the procedure for recruitment to the post of Assistant Executive Engineer and consequently amend the OES Rules 2012 which have been framed for this purpose. But the Rules so framed have to withstand the test of arbitrariness and rationality besides being transparent on the procedure. In this case the OPSC, which was consulted by the Government in accordance with Article 320 (3) of the Constitution had expressed its reservation regarding the advantage and purpose of the proposed amendment to Rule 7 of the OES 2012 Rules. But while amending the OES Rules 2012, the provisions of Article 320 (3) of the Constitution and the Rules of Business have been given a go by. It is the admitted case that the OPSC has been consulted and it did not agree to the part of the proposed amendment relating to Rule 7. But the consultation with OPSC has been made an empty formality and short shrift has been made of its advice. Although the OPSC has consistently expressed its reservation to amendment of Section 7 of the OES Rules 2012 by substituting Rule 7 (2) and 7 (3), method of selection by replacing the marks awarded for career, written examination and vive voce with GATE scores, this had not been brought to the notice of the Cabinet. The Cabinet has been misled that the OPSC has given its concurrence to such amendment. This is in contravention to the procedure laid down in the Rules of Business and Instructions for carrying out the Rules of Business. This contravention amounting to suppression has vitiated the process of consultation adopted for carrying out the proposed amendment of Rule 7. Rule 4 (i) and Rule 4 (ii) of the Amendment Rules 2021, amending Rule 7 (3) and 7 (4) of the OES Rules 2012 was held to be illegal and struck down and consequently, the impugned advertisement having prescribed the highest valid GATE scores of the preceding three years to be the basis of selection, was quashed.