Orissa High Court

Assessment of performance of an examinee in an examination is not ordinarily entertained by Courts but if facts of a particular case justify interference, Court should not shirk its responsibility- OHC

Posted on by in Orissa High Court and tagged , .

(1990) 70 CutLT 303

ORISSA HIGH COURT

DIVISION BENCH

( Before : R.C. Patnaik, Acting C.J.; K.C. Jagdeb Roy, J )

JASHODHARA PADHI  Vs. COUNCIL OF HIGHER SECONDARY EDUCATION, ORISSA AND OTHERS

O.J.C. No. 2749 of 1989

Decided on : 16-10-1989

Constitution of India, 1950 – Article 14

Counsel for Appearing Parties

P.K. Mishra, A.K. Nanda, S.K. Swain and R.K. Nayak, for the Appellant; R.K. Mohapatra, B. Routray, S.K. Nayak, R.K. Dash and S. Pati, for the Respondent

JUDGMENT

R.C. Patnaik, A.C.J.

1. The Petitioner, a candidate for the +2 examination, 1989, conducted by the Council of Higher. Secondary Education, Orissa, Bhubaneswar, has filed this writ application for revaluation/reassessment of her answers have regard to her career and performance at the, examination and the extra-ordinary and peculiar situations that prevailed on account of the strike of the college teacher.

2. The Courts do not ordinarily trespass into the field exclusively ear-marked for the universities and examining bodies in the matter of assessment of performance of candidates at examinations. The reasons are obvious. The Judges by and large do not have the requisite expertise or capability for the purpose and secondly, as a matter of policy. Hence, it is said that revaluation or reassessment of performance of an examinee at an examination conducted by the statutory authorities like the universities and the Council of Higher Secondary Education etc. are out of bounds of Courts. We are cognizant of this aspect of law.

3. However, the aforesaid is not and cannot be an absolute proposition. If cases arises where there has been gross undervaluation either due to malice, caprice, negligence or incompetence, can it still be said that the principle shall apply. Even if it is perceived that a candidate who is entitled to ear marks out of 100 but has been awarded 20 marks only, should the Courts still be injuncted? Where the undervaluation is demonstrably gross and there can be no doubt about it, should it still be said that the Courts should not interfere?

Where the career and future of a student are in great jeopardy, should the Courts still look on helplessly? We are of the view that total prohibition, whatever may be the facts and circumstances, would be contrary to the rule of law under Article 14 of the Constitution of India.

4. It has been asserted by the Petitioner that she secured 90 per cent of marks in the I.C.S.E. held in the year 1987. She has contended that she would secure not less than 79 per cent of marks in English whereas she has been awarded 50 marks in Paper I and 46 marks in Paper II. In view of the allegation, the answer Papers in English were produced before us; pursuant to our request to the counsel for the opposite party. We went through the answer papers. We were very much impressed by the literary style, diction, vocabulary potential and the control over grammar and composition of the Petitioner. Her essay on. An unforgettable day was of high order in literary style. The introduction to the essay was a beautiful piece. So also the conclusion. We were surprised that a candidate who had such strong vocabulary literary style diction and attainments in literature was awarded only 34 per cent (vide question No. 7 in English Paper II) – a bare pass mark. In our opinion the performance of the candidate was such as regards the essay and other answers that she’ could not have secured less than first class marks. We, therefore, suggested to the counsellor the parties that the answer papers should be revalued by an expert. The counsel suggested that the identity of the expert should not be disclosed. We, therefore, without disclosing the identity, requested Prof. (Mrs.) Pravat Nalini Das, M.A. (All), M.A. (Minn), a retired professor and Head of the Department of English of Utkal University, an acknowledged authority in and for three decades an examiner for under-Graduate, Graduate and Post-graduate students in English and a former Pro-Chancellor of Nehru University to reassess the answers and furnish her opinion. She revalued 0 each answer. She opined that the Petitioner was entitled to 71 marks out of 100 in Papa I in place of 50 marks that she had secured and 79 marks out of 100 in Paper- II in place of 46. In the opinion of Prof. Das the Petitioner was entitled to 18 marks out of 25 in the essay, i.e. she has entitled to 72 percent marks in place of 34 per ‘Cent” that the had secured. In our opinion, the Petitioner could not have secured a bare pass mark in the essay. Regarding her performance, Prof. Das has said:

As requested by you in your telephonic message to me, I have valued the two answer papers. The standard of the student in question is very much higher than those who pass the examination in English at the Higher Secondary level. The language is almost flawless idiomatic and reveals a vocabulary control which is difficult to find at the Hons. and M.A. stages in the present state of our education system these days. In addition, the subject matter is more than adequate. In grades, I would evaluate the papers as A.

We are firmly convinced that the answers of the Petitioner bad been grossly undervalued and revaluation of Prof, Das, who is an erudite scholar and vastly experienced as an examiner is just and correct. There ought to be proper valuation of performance though there is scope of difference of opinion. No two opinions would be the same. But where the difference is 21 in one paper and 33 in the other, there is justification for holding that the answers have been grossly undervalued and under-assessed which might have been due to several causes.

5. We have proceeded strictly objectively. We have taken no note of the situation that prevailed in the State sometime back, namely, that the college teachers went on strike and valuation of answer papers became a problem for the authorities. There has been much clamour against the system of central valuation and the debate is going on. We have not been influenced by the same. That is a matter within the exclusive jurisdiction of the educationists, and the experts. They should decide if the present system of valuation of answer papers is just and proper. If having regard to the circumstance, the answers are being properly valued by competent and honest examiners or if there is any flaw in the system of selection and assessment of answer papers. There ought not to be any doubt in the system which was not there previously. But central valuation is being assailed more often now than before. Hundreds of cases have been filed in this Court itself. Even in some cases, the performance of candidates has been reviewed by the examining authority. In some case, the candidate who was declared to have passed in the third division has been declared to have passed in the first division. Upon the intervention of this Court, the error came to light. In some cases, there have been gross mistakes in addition of marks. Thousands of students have approached the Board for revaluation and readdition. This has never happened previously. Hence, something happened this year.

6. We began saying that challenge to the assessment of performance of an examinee at an examination is not ordinarily entertained by the Courts but if the facts of a particular case justify interference, we are of the view, this Court should not shirk its responsibility. There should not be any apprehension that this Court has opened the floodgate. Because this Court has refused to entertain hundreds of cases seeking interference by this Court by way of revaluation. But occasionally one case of exceptional merit might stand out pleading for interference. And this is that case.

Anybody who peruses the answer papers of this Petitioner would be highly impressed and would agree with Prof. Das that her performance in English was not average but extraordinary and of A grading.

7. These are the reasons for our order dated 27-9-1989 requiring the Council to modify the marks secured by the Petitioner in English Paper I and Paper II.

K.C. Jagadeb Roy, J.

I agree.

Writ petition allowed.

He who acts in an arbitrary manner never attain even happiness: Injunction by Lord Krishna affirmed by Orissa HC

Posted on by in Administrative Law, Orissa Grama Panchayat Act, 1964, Orissa High Court and tagged , .

Therefore, the scripture alone is your guide in determining what should be done and what should not be done. Knowing this, you ought to perform only such action as is ordained by the scriptures.

Having cast aside the injunctions of the scriptures, he who acts in an arbitrary way according to his own sweet will neither attains perfection nor the supreme goal nor even happiness.

ORISSA HIGH COURT

DIVISION BENCH

( Before : N. Prusty, J; I.M. Quddusi, J )

BISHNUPRIYA JENA — Appellant

Vs.

STATE OF ORISSA AND OTHERS — Respondent

Writ Petition (C) No. 3174 of 2006

Decided on : 19-09-2006

Constitution of India, 1950 – Article 14
Orissa Grama Panchayat Act, 1964 – Section 115(1), Section 115(4)

Cases Referred

Counsel for Appearing Parties

Sanjit Mohanty, N.C. Sahoo, S.P. Panda, R.R. Swain and A. Mohapatra, for the Appellant; Additional Government Advocate, for the Respondent

JUDGMENT

I.M. Quddusi, J.

1.  Tasmat sastram pramanam te karyaa karya vyavasthito gyatwa sastra vidhanoktam karma kartu miharhashi ya sastra bidhi mutsrujya vartate kaam karatah na sa sidhim vaa proti na sukham na param gatim

were the words of Lord Krishna to Arjun, applicable universally which mean:

Therefore, the scripture alone is your guide in determining what should be done and what should not be done. Knowing this, you ought to perform only such action as is ordained by the scriptures.

Having cast aside the injunctions of the scriptures, he who acts in an arbitrary way according to his own sweet will neither attains perfection nor the supreme goal nor even happiness.

(Srimad Bhagabat Gita Chapter-XVI sholk 24 and 23)

That is why Lord Byles J. in Cooper v. Wandsworth Board of Works: (1863) 14 CB (NS) 180 has observed:

The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence,”Adam (says God), where art thou ? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat,” And the same question was put to Eve also.

and so in the instant matter which has been filed by the Petitioner against her removal from the office of Sarpanch of the Grama Panchayat, we have to consider as up to what limit the “reasonable opportunity of showing cause” provided in Section 115(1) of the Orissa Grama Panchayat Act, 1964 (for short “the Act”) before removal of a person from the office of the Sarpanch of a Grama Panchayat should be confined. The provisions of Sub-section (1) of Section 115 of the Act are quoted as under:

115. Suspension and removal of Sarpanch/Naib-Sarpanch and member- (1) If the State Government, on the basis of a report of the Collector or Project Director, District Rural Development Agency, or suo motu are of the opinion that circumstances exist to show that the Sarpanch or Naib Sarpanch of a Grama Panchayat willfully omits or refuses to carry out or violates the provisions of this Act or the rules or orders made thereunder or abuses the powers, rights and privileges vested in him or acts in a manner prejudicial to the interest of the inhabitants of the Grama and that the further continuance of such person in office would be detrimental to the interest of the Grama Panchayat or the inhabitants of the Grama, they may after giving the person concerned a reasonable opportunity of showing cause, remove him from the office of Sarpanch or Naib-Sarpanch, as the case may be.

2. Before proceeding further, it is necessary to go through the brief facts of the case which are as under:

The Petitioner having been elected as Sarpanch of Birapratappur Grama Panchayat in the district of Puri on 28.2.2002 assumed office on 10.3.2002 and vide order dated 31.8.2005 she was placed under suspension on the basis of the alleged enquiry report dated 24.2.2005 submitted by the Project Director, District Rural Development Agency (DRDA) Birapratappur Grama Panchayat (OP No. 3) recording the irregularities committed at the said Grama Panchayat. The charge memo was also annexed with the order of suspension in which the following charges were levelled against her:

(i) though Rs. 14,10,827/- has been allotted to GP between 2000-2001 to 2004-2005 under different programmes yet the said money is lying unutilised in the said Panchayat due to casual attitude of Sarpanch;

(ii) Due to non-convening of Palli Sabha or Grama Sabha annual working plan was not prepared as a result of which development of people are being hampered;

(iii) Due to casual attitude of the Sarpanch 420 quintals of rice was not given to simple labourers for which BDO, apprehending wastage of rice, utilized the same in other projects.

3. Against her order of suspension, the Petitioner had filed a writ petition registered as W.P. (P) No. 11731 of 2005 before this Court on which an order was passed on 5.10.2005 to the extent that she would be allowed to continue as Sarpanch but financial power would be subject to approval of District Panchayat Officer. The said writ petition was finally disposed of vide order dated 21.12.2005 directing the State Government to consider the grievance of the Petitioner in accordance with law provided she files show-cause within a period of two weeks and to conduct the disciplinary proceeding expeditiously and complete the same within a period of six weeks from the date of filing of the show-cause. Status quo about her position which was existing on the date of the order was directed to continue for a period of eight weeks and if there would be delay in disposal of the proceeding due to a latches of the opposite party No. 1 therein, status quo order was to continue till disposal of the disciplinary proceeding. Thereafter the Petitioner submitted her show-cause on 2.1.2006. The District Panchayat Officer, Puri (O.P. No. 4) vide memo No. 134 dated 10.2.2006 intimated the Petitioner to appear before the Minister, Panchayati Raj Department on 13.2.2006 at 11.45 A.M. in the official chamber of the Secretariat, Bhubaneswar for personal hearing and she was informed to appear before the Minister as desired on the date, place and time fixed positively for personal hearing.

4. The record was summoned and the same was produced before this Court. A perusal of the same shows that the Petitioner appeared for personal hearing at the Secretariat on 13.2.2006 at 11.45 A.M. but the Minister, Panchayati Raj Department due to sudden urgent engagement in the Assembly works, could not hold the hearing at 11.45 A.M.. However, at a later stage the Minister recording the absence of the Petitioner, decided the matter ex parte passing the order of removal of the Petitioner from the office of Sarpanch. Consequently a Government order which is impugned in this writ application was issued under the signature of the Deputy Secretary to Government of Orissa in the Panchayati Raj Department vide order No. LS-I-82/2005.(pt) 2343/P.R. BBSR, Dated the 21.2.2006.

5. As it is revealed, in the enquiry report submitted by the Project Director, DRDA dated 24.2.2005 he has inter alia, mentioned the following:

The funds have remained unspent since 2000-01 to 2004-05 which has been received at different times. On enquiry the Sarapanch stated that she has already taken steps for financing 31 different projects amounting to Rs. 3,31,315/- out of which she has sent case records for an amount of Rs. 2,65,000/- to Block Office for check-measurement and approval.

But the case records of these projects are kept in Block office without any action. xx xx xx

2. Conduct of meetings:

(a) On perusal of the resolution book of the GP it was found that the meetings of the GP were held on the following dates after the present Sarapancha took over charge since 10.3.2002. The concerned resolution book shows that GP meetings from April 2002 to Nov 2003 could not be produced for verification. From another Resolution Book it is noticed that meetings were held on 29.12.2003, 25.01.04, 28.02.04, 25.03.04, 29.05.04, 21.06.04, 31.07,04, 30.09.04, 30.11.04 and 31.12.04, out of which proceedings of the meeting dated 30.11.04. and 31.12.04 have not been released. It was also revealed from the enquiry that on some of the dates the meetings were held outside the GP office and that too not in public place. On perusal of the proceeding it was also seen that only 6 to 7 ward members out of 18 have attended the meetings and others were absent. It clearly discloses that there is total non-cooperation among majority of members.

(b) Due to absence of the majority of the members full body of the GP is not being held. That is why no authorization has been given to the GP Secretary to operate bank account for more than one year. It will not be out of place to mention that the present Secretary was suspended by the Sarpanch on 24.5.2003 and he was re-instated by order of the Hon’ble High Court on 12.10.2003. During the suspension of the present Secretary the Executive Officer (VLW) of the GP was in charge of the Secretary. During this period the Sarpanch and the Secretary were not in good terms and there was no working relationship between them, for which the activity of the GP got a serious set back.

6. The record also reveals that in the order dated 12.1.2005 of the Commissioner-cum-Secretary to Government of Orissa in Panchayati Raj Department addressed to all Collectors it was mentioned that the State Government has been pleased to make the observations as follows:

2. In order to ensure that Grama Panchayat’ function properly and in the larger public interest, the State Government have been pleased to order:

xx xx xx xx

(c) the Grama Fund shall operate under the joint signature of the Sarpanch, Executive Officer and the Secretary,

(d) that the Secretary shall record the proceedings of the Grama Sabha, Palli Sabha and of the G.P.,

(e) that all Bills shall be prepared by the Secretary and shall be scrutinised by the Executive Officer before the same is passed for payment by the Sarpanch;

xx xx xx

4. In case of a G.P. where there is no Secretary, all the functions as enumerated above shall be discharged by the Executive Officer and in that case the Grama Fund shall operate under the joint signature of the Executive Officer and the Sarapanch.

xx xx xx

7. In reply to the charges, the Petitioner denied the allegations and specifically mentioned that she could not be held responsible for non-utilisation of the fund prior to the assumption of the office of Sarpanch and in spite of non-cooperation of the Executive Officer and the Secretary Rs. 9,37,000/- has been utlised and since the Executive Officer, Secretary along with Sarpanch jointly operate the G.P. fund as per the Government letter No. L-S 1-87/04 (pt) 949/GP dtd 12.1.2005, the former two officers at times did not co-operate and this was brought to the notice of the all concerned officers including the State Government by way of representations dated 29.6.2005, 27.7.2005, 10.8.2005 and G.P. resolutions dated 30.6.2005, 25.7.2005 and 20.8.2005 passed through majority of ward members and though the said letters were sent to the State Government, no response was received.

8. There is an application of the Petitioner available on the record of the State Government requesting the Minister to allow her to appear through or along with her Counsel Shri Mrutyunjay Banerjee for convenience. But no decision was made thereon. The Petitioner submitted a letter dated 13.2.2006 which is also available on the record which is reproduced as under:

To

The Minister,
P.R. Department
Govt. of Orissa, BBSR.

Sub: With regard to non-conductance of finalisation of proceeding as per letter No. 134 dated 10.02.2006 of D.P.O., Puri.

Sir,

With due regards, I humbly submits that after waiting till 2.30 P.M. at your office chamber for the conductance of meeting at 11.45 A.M. along with others, I request to inform you that no body of your office turned up to intimate me about the proposed meeting to be held. It is pertinent to mention that no notice/letter or its copy was issued to me in this regard. However, I was only intimated by D.P.O. Puri by letter No. 134 dtd. 10.02.2006. Hence, I am to depart for my home being failure to receive any information from you or your office as per the aforementioned letter. My letter to represent through the concerned advocate may kindly be considered and intimated me accordingly.

Hoping you would consider my application sympathetically.

Bhubaneswar

Yours sincerely,
Secretariat
Sd/- Bishnu Priya Jena
Sarpanch
Birapratappur Gram Panchayat
Puri Sadar Block

Dt. 13.02.2006

9. From the above facts it is clear that the Petitioner attended the office of the Minister at 11.45 A.M. but there was nothing on record to show that she was informed about any other time or date for personal hearing. The Minister, Panchayati Raj Department in his order dated 13.2.2006 has made observations as follows:

13.2.2006

Hearing was taken up today.

On notice B.D.O., Puri Sadar, D.P.O., Puri, Executive Officer and the Secretary, Birapratappur G.P. were present. On receipt of notice Smt. Bishnupriya Jena, Sarapanch had come to my Secretariat office at scheduled time at 11.45 A.M. But due to my sudden urgent engagement in the Assembly works, I could not hold the hearing at 11.45 A.M. and hearing was deferred to 4.00 P.M. on the same day. But the Sarpanch Smt. Jena with an ulterior motive to avoid personal appearance did not attend the hearing and submitting a protest letter left my office as is understood from her letter.

Perused her protest letter. Her plea that she had not been duly noticed is not a fact. From her representation, it is clearly evident that she had been duly intimated by the D.P.O., Puri regarding holding of personal hearing on 13.2.2006. The hearing was taken up as per the direction of the Hon’ble High Court to finalise the proceedings drawn up against the Sarpanch. But it appears to me that the Sarpanch Smt. Jena is non-cooperative to finalise the proceedings in the scheduled time as stipulated by the Hon’ble High Court with ulterior motive to take certain legal advantage. After careful consideration I had no other alternative except to reject her representation and took up hearing ex parte for early compliance of the order of Hon’ble High Court.

While taking up (of) the hearing ex-parte I perused all the relevant papers of the file submitted to me with regard to the charges against Smt. Jena. Her show cause reply was examined.

Her plea that she is not responsible for non- expenditure/non-utilisation of the balance fund of previous years pertaining to the period of her predecessor is not tenable. The huge unspent funds were there. As a successor, it is her duty to find out the ways how to spend the money for the development of inhabitants of the G.P. xx xx From her show cause reply one thing becomes clear to me that she is quite inefficient and incapable to handle affairs of G.P. and her continuance is certainly detrimental to the interest of public. xx xx

Further, she has tried in her show cause reply to put entire blame on the Secretary and the Executive Officer of the G.P. for non-execution of projects. Normally, the works are executed through Pallisabha for execution of the projects. xx xx

Hence, I order that Smt. Jena be removed from the office of Birapratappur G.P. forthwith.

xx xx

Sd/- Dr. Damodar Rout
Minister,
Panchayati Raj and Culture, Orissa

10. In Byrne v. Kinematograph Renters Society Ltd., 1958 2 ALL ER 579 Lord Harman, J. had made his observations as under:

What, then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made, secondly that he should be given an opportunity to state his case and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more.

11. In the case of Tom Boevey Barrett v. African Product Ltd. reported in AIR 1928 PC 261, the Privy Council had observed that no forms or procedure should ever be permitted to exclude the presentation of a litigant’s defence.

12. In the case of Russell v. Duke of Norfolk and Ors. reported in (1949) 1 All E.R. 109, Lord Tucker, J. observed:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.

Lord Denning J. in Russell’s case (supra) has given separate observation as under:

It is sufficient that they should act honestly and in good faith, but when they are exercising the far more serious power of withdrawing a licence under Rule 102 on the ground of misconduct, they must, in my opinion, give the trainer an opportunity of defending himself. Rule 102 creates the offence of “misconduct” in a trainer, and prescribes the penalty, which is the withdrawal of his licence and disqualification. This penalty of disqualification is the most severe penalty that the stewards can inflict. It is the same penalty as that which is imposed on persons guilty of corrupt practices. It disqualifies the trainer from taking any part in racing and thus takes away his livelihood. Common justice requires that before any man is found guilty of an offence carrying such consequences, there should be an inquiry at which he has the opportunity of being heard. It might, perhaps, be possible for the stewards to stipulate expressly for power to condemn a man unheard, but I should doubt it. It may be that such a stipulation would be contrary to public policy.

13. The Hon’ble apex Court in the case of Swadeshi Cotton Mills Vs. Union of India (UOI), has observed:

xx xx Even so, the question of natural justice does not arise in this case. It is too late now to contend that the principles of natural justice need not apply to administrative order or proceedings; in the language of Lord Denning M.R. in R. v. Gaming Board for Great Britain, ex parte Benaim (1970) 2 WLR 1009, “that heresy was scotched in Ridge v. Baldwin 1964 AC 40.

(2) The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stock in this matter. The concept of natural justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in In re. H.K. (an infant) 1965 AC 201 (HL). It only means that such measure of natural justice should be applied as was described by Lord Roid in Ridge v. Baldwin 1964 AC 40, as insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. However, even the application of the concept of fair play requires real flexibility. Everything will depend on the actual facts and circumstances of a case.

14. In the case of Charan Lal Sahu Vs. Union of India, a constitution Bench of the apex Court referring to the case of Union of India and Another Vs. Tulsiram Patel and Others, held that the principle of natural justice are not the creation of Article 14 of the Constitution. Article 14 is not the negetter of the principle of natural justice but they are (their) constitutional guardian. The principles of natural justice consist, inter alia, of the requirement that no man should be condemned unheard.

15. The principle of Natural Justice has been thoroughly defined by the apex Court in a land mark judgment in the case of Canara Bank and Others Vs. Shri Debasis Das and Others, . Paragraph 19, 20 and 21 of the same are reproduced as under:

19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

20. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855) (2) Macg. 18 Lord Cranworth defined it as ‘universal justice’. In James Dunber Smith v. Her Majesty the Queen (1877) (3) App Case 614, 623 JC) Sir Robort P. Collier, speaking for the Judicial Committee of Privy Council, used the phrase ‘the requirements of substantial justice,’ while in Arthur Juhn Specman v. Plumstead District Board of Works (1884) (10) App Case 229, 240). Earl of Selbourne, S.C. preferred the phrase ‘the substantial requirement of justice.’ In Vionet v. Barrett (1885) (55) LJRD 39, 41), Lord Esher,MR defined natural justice as ‘the natural sense of what is right and wrong.’ While, however, deciding Hookings v. Smethwick Local Board of health (1890) (24) QBD 712), Lord Fashter, M.R. instead of using the definition given earlier by him in Vionet;s case (supra) chose to define natural justice as ‘fundamental justice.’ In Ridge v. Baldwin (1963 (1) WB 569, 578), Harman LJ, in the Court of appeal countered natural justice with ‘fair-play in action’ a phrase favoured by Bhagawati, J. in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . In Re R.N. (An Infaot) ( 1967 (2) B 617, 530), Lord Parker, C.J., preferred to describe natural justice as duty to act fairly.’ In Fairmount Investments Ltd. v. Secretary to State of Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as a ‘a fair crack of the whip’ while Geoffrey Lane, LJ in Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase ‘common fairness.’

21. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quashi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debet esse judex in propria causa sua’ as stated in (1605) 12 Co. Rep. 114 that is, ‘no man shall be a judge in his own cause.’ Coke used the form ‘aliquis non-debet esse judex in propria causa quia non-protest esse judex at pars’ (Co. Litt. 1418), that is ‘no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party.’ The form ‘nemo potest esse simul actor et judex,’ that, is ‘no one can be at once suitor and judge’ is also at times used. The second rule is ‘audi alteram partem,’ that is, hear the other side.’ At times and particularly in continental countries, the form ‘audietur at altera part’s is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely, ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit’ that is, ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ (See Bosewell’s case (1605) 6 Co. Rep. 48-b 52-a) or in other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done.’ Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

16. The Hon’ble apex Court in the case of Canara Bank (supra) has laid down that Natural Justice is another name of common sense justice. Rules of natural justice are not codified cannons. ‘But they are Principles ingrained into the conscience of man. Natural Justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical nieeties. It is the substance of justice which has to determine its form.

The expressions “natural justice” and “legal justice” do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedentry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant’s defence.

17. A bare perusal of Sub-section (1) of Section 115 of the Act as quoted in paragraph-1 above shows that it is necessary for the Government to form their opinion before removing a Sarpanch from his office if he willfully omits or refuses to carry out or violates the provisions of the Act or the rules or orders made thereunder or abuses the powers, rights and privileges vested in him or acts in a manner prejudicial to the interest of the inhabitants of the Grama and that the further continuance of such person in office would be detrimental to the interest of the Grama Panchayat or the inhabitants of the Grama, This opinion can be formed by the State Government either suo motu or on the report of the Collector or the Project Director, District Rural Development Agency. But in any case it has nowhere now been provided that any preliminary enquiry is to be conducted at any stage. Therefore, a person holding the office of Sarpanch against whom action for removal is to be taken has no other way to get opportunity to participate in the proceedings except the proceedings conducted under Sub-section (1) of Section 115 of the Act.

18. When there is any allegation against a person holding an office and he is informed the same without pointing him about the material available on which such an allegation is based, it remains mere allegation only and if such person denies the same, no action can be taken against him as it cannot be termed as ‘charge’ against him but when he is informed about the material on the basis of which an allegation is made against him it becomes ‘charge’. An allegation cannot take place of a ‘charge’ if the same is not based on some corroborative evidence. As such on the basis of a charge only a penal action can be taken against him after providing him a reasonable opportunity to defend himself and on arriving at the conclusion by the complaining authority about his guilt.

19. According to Sub-section (4) of Section 115 of the act a person who is removed from the office of Sarpanch would also be ceased to be a member of the Grama Panchayat and would not be eligible for election of Member for a period not exceeding four years as the State Government may specify. Therefore, removal of a person from the office of Sarpanch of a Grama Panchayat has a far-reaching penal consequences.

20. On the basis of the above discussion and the principles enumerated by the Hon’ble apex Court in various decisions, this Court is of the opinion that in absence of any specific procedure or rule in arriving at a conclusion by the Government against a person holding the office of Sarpanch, it is necessary that such person should be informed about the charges against him; should also be informed regarding the evidence relied upon in support of the charges; should be provided an opportunity to submit his explanation; should be asked as to whether he desires to adduce any evidence in rebuttal and also desires to be heard in person; and should be provided such opportunity accordingly. The decision should only be taken thereafter taking into consideration all evidence relied upon in support of the charges as well as produced by the person so charged in rebuttal thereof.

21. In the instant case, the Petitioner was served with a charge-sheet without mentioning about any documents or evidence relied upon in support of the charge-sheet. She was also not granted any opportunity to adduce or file any document in rebuttal thereof. However, a perusal of the record shows that the charge regarding non-utilisation of funds was for the period of 2000-2001 to 2004-2005 including the period before the Petitioner assumed charge of the office of Sarpanch (i.e. 10.3.2002). In the absence of any evidence or document shown in support of the charge-sheet, she could only deny the charges which she did in her reply. No further proceeding was conducted except that she was informed about the date and time of hearing, i.e., 13.2.2006 at 11.45 A.M. There is no dispute about it that she attended the office of the Minister where she had to remain present for personal hearing. But the hearing did not take place as per schedule. The record also shows that no further time of meeting or postponing the meeting to some other time was ever intimated to the Petitioner and the Minister while passing the ex-parte order, did not consider the contentions raised by the Petitioner in her reply to the charges. Therefore, it cannot be said that the Petitioner was afforded reasonable opportunity of showing cause or the principle of natural justice was followed in conducting the enquiry and passing the impugned order of removal.

22. For the facts and circumstances, discussed above, this Court is of the opinion that the impugned order of removal of the Petitioner from the office of Sarpanch is not sustainable in the eye of law and the same is liable to be quashed.

23. In the result the writ application is allowed. The order dated 13.2.2006 removing the Petitioner from the office of Sarpanch passed by the Minister, Panchayati Raj Department and the consequential order dated 21.2.2006 of the State Government, are quashed. However, it will be open for the State Government to proceed against the Petitioner in accordance with law after providing her reasonable opportunity of showing cause following the principles of natural justice.

No order as to costs.

N. Prusty, J.

24. I agree.

(2007) Sup CutLT 630

Swadeshi Cotton Mills Vs. Union of India (UOI), AIR 1981 SC 818 : (1982) 1 CompLJ 309 : (1981) 1 SCALE 90 : (1981) 1 SCC 664 : (1981) 2 SCR 533
Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621
Canara Bank and Others Vs. Shri Debasis Das and Others, AIR 2003 SC 2041 : (2003) 3 JT 183 : (2003) 2 LLJ 531 : (2003) 3 SCALE 220 : (2003) 4 SCC 557 : (2003) SCC(L&S) 507 : (2003) 2 SCR 968 : (2003) 2 SLJ 345 : (2003) 2 UJ 1129 : (2003) AIRSCW 1561 : (2003) 2 Supreme 793
Charan Lal Sahu Vs. Union of India, AIR 1990 SC 1480 : (1990) 1 CompLJ 125 : (1989) 4 JT 582 : (1991) 2 SCALE 841 : (1990) 1 SCC 613 : (1989) 2 SCR 597 Supp
Union of India and Another Vs. Tulsiram Patel and Others, AIR 1985 SC 1416 : (1985) 3 CompLJ 45 : (1985) 51 FLR 362 : (1985) 2 LLJ 206 : (1985) 2 SCALE 133 : (1985) 3 SCC 398 : (1985) 2 SCR 131 Supp : (1985) 2 SLJ 145

Human conducts are regulated by the law as settled in Bhagabat Gita: Orissa HC

Posted on by in Orissa High Court and tagged .

It is true that human conduct & the reactions with regard to save life of another close relation or person cannot be measured in any mathematical term. Human conduct, what Bhagabat Gita calls “Guna” & Prakruti”, contains a measure of dark & light, of good & bad. All have the potential to love as much as potential to hurt & also the potential for kindness, generosity & selflessness. How does one ensure that is inter-personal, Lord Krishna drew attention to the crucial & significant link that runs through the entire creation wherein all created beings are inter-dependant & sustain one another with their action. What mankind needs is social order which will be preserved through selfless & constant action. It is the human nature to take tough decisions.

ORISSA HIGH COURT

DIVISION BENCH

( Before : I.M. Quddusi, Acting C.J.; Sanju Panda, J )

MANORANJAN ROUT AND ANOTHER — Appellant

Vs.

STATE OF ORISSA AND OTHERS — Respondent

Decided on : 12-01-2010

Constitution of India, 1950 – Article 226
Transplantation of Human Organs and Tissues Act, 1994 – Section 2, Section 3, Section 9

JUDGMENT

Sanju Panda, J.—Petitioners have challenged the order passed by the Authorization Committee which was communicated vide letter No. 12210 dated 16.11.2009 as the same violates the direction of this Court dated 30.10.2009 passed in W.P.(C) No. 14344 of 2009.

2. Petitioner No. 1, a doctor working as the Chief Medical Officer, Ispat Hospital, Mecon, Ranchi in the district of Jharkhand, is suffering from Renal Failure & being treated at Appolo Hospital, Chennai. The doctor of the Appolo Hospital recommended for Kidney Transplantation as soon as possible & his case was referred for Kidney Transplantation to the Kalinga Hospital (P) Ltd., Chandrashekharpur, Bhubaneswar. The view of the doctors of Kalinga Hospital is that there is no other alternative than to transplant the Kidney to save his life. Therefore, Petitioner No. 1 searched for kidney from his near relatives. As his wife & other family members’ blood group did not match, he searched for a kidney from his other relatives & finally Petitioner No. 2 agreed to donate one of his kidneys which matched with Petitioner No. 1. Petitioner No. 2 is the father’s sister’s son of Petitioner No. 1. They applied to the Authorization Committee through Kalinga Hospital for Issuance of No objection Certificate so that Petitioner No. 2-doner can donate one of his kidneys to No. 1. The said Committee did not consider the application & called for some further document though the Petitioners had complied with all the requirements. However, on 11.5.2009 the Committee refused to issue NOC. The said order was challenged before this Court in W.P.(C) No. 11750 of 2009 which was disposed of on 12.8.2009 with a direction to the Authorization Committee to examine whether transplantation of human organ is absolutely necessary or not & whether the donor is the father’s sister’s son of Petitioner No. 1. No Objection Certificate was refused by the Secretary to Government, Health & Family Welfare Department all the ground that the emotional bond or relationship between the donor & the donee had not been established. Challenging the refusal, Petitioner No. 1 filed W.P. (C) No. 14344 of 2009 which was disposed of on 30.10.2009. This Court while quashing the order of refusal to grant NOC specifically observed that there is no provision in the Act, which prohibits a person, ‘who is not a near relative’ from donating a Kidney for transplantation. This Court further observed that when the blood group of the near relatives did not match, Petitioner No. 2 volunteered to donate his kidney out of affection & attachment with Petitioner No. 1 & directed the Committee to take a decision as early as possible preferably within a week of production of copy of the Judgment. Accordingly, Petitioner No. 1 submitted the certified copy of the Judgment on 10.11.2009 before the Directorate of Medical Education & Training, Orissa (in short, “DMET”). On 12.11.2009 the DMET instructed over telephone to the Superintendent of Kalinga Hospital that the applicant may be present along with his donor at 3.30 P.M. on 12.11.2009. Even though- Petitioner No. 1 had undergone dialysis on the same day, he appeared before the DMET at about 8.30 PM in the night & prior to that also the Committee sat on 16.10.2009 & directed the Superintendent, Kalinga Hospital to produce the documentary evidence of relationship between Petitioner No. 1 & Petitioner No. 2. Even though everything was submitted before the Committee, vide Order Dated 16.11.2009 it again refused to grant NOC observing as follows:

XXX XXX XXX

In respect of Dr. Manoranjan Rout, it is stated that, this case was taken up for consideration in pursuance of the orders dt. 30.10.2009 of the Hon’ble High Court, Orissa in W.P.(O) No. 14344/09. During pendency of this Writ Petition in the Hon’ble High Court, the case of Dr. Rout was also review again by the Authorization Committee in its last meeting dt. 16.10.2009. In pursuance to another orders of Hon’ble High Court dt. 24.09.2009 in W.P.(C) No. 14344/09& views of the Authorization Committee communicated to you in this Directorate letter No. 11112 dt. 21.10.2009 this time also the committee vie we a the same thing & thus N.O.C. not issued.

3. Petitioners challenging the said rejection order of the Committee have filed this Writ Petition.

4. Learned Counsel appearing for the Petitioners submitted that from observation made by the Committee it would appear that the Committee did not consider the application of Petitioner No. 1 as per the direction given by this Court. Rather, the Committee repeated its earlier decision taken on 21.10.2009. He submitted that the Committee did not apply its mind as per the direction given by this Court to consider the application of Petitioner No. 1 afresh. He further submitted that as the condition of Petitioner No. 1 is very serious & deteriorating day by day, he has approached this Court by invoking the jurisdiction under Article 226 of the Constitution of India for a direction to the Committee to grant NOC in order to save his life. In support of his submission, the Learned Counsel for the Petitioner cited an unreported decision of the Punjab & Haryana High Court at Chandigarh dated 10th April, 2008 rendered in CWP No. 5389 of 2008 (Jaswinder Singh v. State of Punjab and Ors.) wherein a division Bench of the said Court directed the Authorisation Committee to grant necessary approval to the Petitioner therein forthwith to receive the kidney proposed to be donated by the donor on the ground that the donor knew the recipient as they had visiting terms in the family & it was because of sheer love & affection & humanitarian grounds.

5. The Learned Government Advocate submitted that what is relevant such matters is the subjective satisfaction of the Authorization Committee. Since the Petitioners have not established the same, the Committee rightly did not take into consideration his application.

6. From the contentions made by the Learned Counsel for the as the Learned Government Advocate & on perusal of the doctor’s report, it is crystal clear that the transplantation of kidney of Petitioner No. 1 is necessary. This Court on 4.12.2009 directed the State Counsel to produce the relevant records. On perusal of the said records, it appears that the Committee did not consider the case of Petitioner No. 1 as per the direction given by this Court earlier in W.P.(C) No. 11750 of 2009 disposed of on 12.8.2009.

7. With a view to provide the Transplantation of Human Organs Act, 1994 & the Transplantation of Human Organs Rules, 1995 (hereinafter referred to as “the Act” & “the Rules”) are enacted to regulate the removal of organs from living as well as deceased persons & transplantation of such organs. The intention of the said Act is to provide for regulation of removal, storage & transplantation of human organs for therapeutic purposes & for prevention of commercial dealings in human organs & for matter connected therewith or incidental thereto. For better appreciation, the relevant provisions of “Donor” & “recipient” have been defined u/s 2 of the Act:

2. Definitions,- In this Act, unless the context otherwise requires-

(a) to (e) xxx xxx

(f) “donor” means any person, not less than eighteen years of age, who voluntarily authorizes the removal of any of his human organs for therapeutic purposes under Sub-section (1) or Sub-section (2) of Section 3;

(g) to (1)xxx xxx xxx

(m) “recipient” means a person into whom any human organ is, or is proposed to be, transplanted;

8. Transplantation of by the regulated human organs is Transplantation of Human Organs Act, 1994. The said Act provides for removal of human organs & also imposed on restriction removal & has transplantation of human organs. For better appreciation, Sections 3 & 9 of the Act are extracted below:

3. Authority for removal of human organs.-(1) Any donor, may, in such manner & subject to such conditions as may be prescribed, authorize the removal, before his death, of any human organ of his body for therapeutic purposes.

(2) If any donor had, in writing & in the presence of two or more witnesses (at least one of whom is a near relative of such person), unequivocally authorized at any time before his death, the removal of any human organ of his body, after his death, for therapeutic purposes, the person lawfully in possession of the dead body of the donor shall, unless he has any reason to believe that the donor had subsequently revoked the authority aforesaid, grant in a registered medical practitioner all reasonable facilities for the removal for therapeutic purposes, of that human organ from the dead body of the donor.

(3) Where no such authority as is referred to in Sub-section (2), was made by any person before his death but no objection was also expressed by such person to any of his human organs being used after his death for therapeutic purposes, the person lawfully in possession of the dead body of such, person may, unless he has reason to believe that any near relative of the deceased person has objection to any of the deceased person’s human organs being used for therapeutic purposes, authorize the removal of any human organ of the deceased person for its use for therapeutic purposes.

(4) The authority given under Sub-section (1) or Sub-section (2) or, as the case may be, Sub-section (3) shall be sufficient warrant for the removal, for therapeutic purposes, of the human organ; but no such removal shall be made by any person other than the registered medical practitioner.

(5) Where any human organ is to be removed from the body of a deceased person, the registered medical practitioner shall satisfy himself, before such removal, by a personal examination of the body from which any human organ is to be removed, the life is extinct in such body or, where it appears to be a use of brain-stem death, that such death has been certified under Sub-section (6).

(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form & in such manner & on satisfaction of such conditions & requirements as may be prescribed, by a Board of Medical Experts consisting of the following, namely:

(i) the registered medical practitioner in charge of the hospital in which brain-stem death has occurred:

(ii) an independent registered medical practitioner, being a specialist to be nominated by the registered medical practitioner specified in Clause (i), from the panel of names approved by the Appropriate Authority;

(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in Clause (i), from the penal of names approved by the Appropriate Authority; &

(iv) the registered medical practitioner treating the person whose brain-stem death has occurred.

(7) Notwithstanding anything contained in Sub-section (3), where brain-stem death of any person, less than 18 years of age, occurs & is certified under Sub-section (6), any of the parents of the deceased person may give authority, in such form & in such manner as may be prescribed, for the removal of any human organ from the body of the deceased person.

9. Restrictions on removal & transplantation of human organs.- (I) Save as otherwise provided in Sub-section (3), no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.

(2) Where an) donor authorises the removal of any of his human organs after his death under Sub-section (2) of Section 3 or any person competent or empowered to give authority for the removal of any human organ from the body of any deceased person authorises such removal, the human organ may be removed & transplanted into the body of any recipient who may be in need of such human organ.

(3) If any donor authorizes the removal of any of his human organs before his death under Sub-section (1) of Section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed & transplanted without the prior approval of the Authorisation Committee,

(4)(a) The Central Government shall constitute, by notification, one or more Authorization Committees consisting of such members as may be nominated by the Central Government on such terms & conditions as may be specified in the notification for each of the Union territories for the purposes of this Section.

(b) The State Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Government on such terms & conditions as may be specified in the notification for the purposes of this Section.

(5) On an application jointly made, in such form & in such manner as may be prescribed, by the donor & the recipient, the Authorisation Committee shall, after holding an inquiry & after satisfying itself that the applicants have complied with all the requirements of this Act & the rules made thereunder, grant to the applicants approval for the removal & transplantation of the human organ.

(6) If, after the inquiry & after giving an opportunity to the applicants of being heard, the Authorization Committee is satisfied that the applicants have not complied with 1 he requirements on his Act & the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.

9. Apart from the above, Rule 6 & 6F of the Rules which has been instituted by G.S.R 571. (e), dated 31st, July, 2008 (w.e.f. 4-8-2008) provides for the different aspects on which the Authorization Committee shall fix its attention. The relevant portions of the said Rule are quoted hereunder:

6. The donor & the recipient shall make jointly an application to grant approval for removal & transplantation of a human organ, to the concerned competent authority or Authorization Committee as specified in Form 10. The Authorisation Committee shall take a decision on such application in accordance with the guidelines in the rule 6A.

6A to 6E. xxx xxx xxx

6F. The Authorisation Committee shall focus its attention on the following, namely:

(a) Where the proposed transplant is between persons related genetically, Mother, Father, (Brother, Sister, Son or Daughter above the age of 18 years) the concerned competent authority shall evaluate-

(ii) documentary evidence of relationship, e.g., relevant birth certificates & marriage certificate, certificate from Sub-Divisional Magistrate/Metropolitan Magistrate/or Sarpanch of the Panchayat;

(b) The papers for approval of transplantation would be processed by the registered medical practitioner & administrative division of the Institution for transplantation, while the approval will be granted by the Authorisation Committee.

(d) Where the proposed transplant is between individuals who are not “near relatives”, the Authorization Committee shall evaluate)-

(i) that there is no commercial transaction between the recipient & the donor. That no payment of money or moneys worth as referred to in the Act has been made to the donor or promised to be made to the donor or any other person. In this connection the Authorization Committee shall take into consideration.

xxx xxx xxx

10. On a plain reading of the aforesaid provisions, it is clear how a person will prove the relationship between the donor & the recipient. In the present case, the Petitioners stated on affidavit that the Sarpanch of Kuamara Grama Panchayat has certified the relationship between Petitioner No. 1 & Petitioner No. 2. Sarpanch of Kuamara Grama Panchayat has given the certificate dated 2.11.2009 annexed to the memo filed on 18.12.2009 wherein she has certified that late, Ramahari Rout & Ratnamani Rout have one son & one daughter, namely, Dinabandhu Rout & Madhuri Rout. Dinabandhu had three sons, namely, 1, Dr. Manoranjan Rout, 2) Gyanaranjan Rout & 3) Nihar Ranjan Rout. Madhuri Rout married to late Sagaresh Ray of village Purusottampur, Po-Remuna, Dist. Balasore, about 60 years back. Therefore, this Court on 18.12.2009 directed the Sarpanch of Kuamara Grama Panchayat to appear in person before this Court. Accordingly, Mrs. Ramadei Singh, Sarpanch of Kuamara Grama Panchayat appeared in person before this Court on 23.12.2009 & her statement was recorded in separate sheet wherein she has stated that late Dinabandhu Rout was the son of late Ramahari Rout. Late Dinabandhu Rout has 3 sons, namely, Dr. Manoranjan Rout, Gyanaranjan Rout & Nihar Ranjan Rout & one daughter, namely, Shantilata Rout. Madhuri Rout is Dr. Manoranjan Rout’s father’s sister. Present Petitioner No. 2 is the son of said Madhuri Rout. Since the relationship of the donor & the recipient is substantiated as per the statement of Mrs. Ramadei Singh, Sarpanch of Kuamara Grama Panchayat in accordance with the Rules, the DMET should have accepted the same. There is no material on records also regarding any chance of commercial transaction between the two cousin brothers & out of affection Petitioner No. 2 wants to donate his organ to save the life of his brother-Petitioner No. 1. There is also no material placed on records to doubt about the relationship between the donor & the recipient.

It is true that human conduct & the reactions with regard to save life of another close relation or person cannot be measured in any mathematical term. Human conduct, what Bhagabat Gita calls “Guna” & Prakruti”, contains a measure of dark & light, of good & bad. All have the potential to love as much as potential to hurt & also the potential for kindness, generosity & selflessness. How does one ensure that is inter-personal, Lord Krishna drew attention to the crucial & significant link that runs through the entire creation wherein all created beings are inter-dependant & sustain one another with their action. What mankind needs is social order which will be preserved through selfless & constant action. It is the human nature to take tough decisions. Hence, one is prompted to rise above selfish purpose & work for the mankind & the society.

11. In the present case, there is no material on record to disprove the relationship between the donor & the recipient. Therefore, the necessary approval cannot be denied on the ground of a mere suspicion. The question that the applicants have not produced relevant documents, establishing their relationship, as stated by the Committee, also does not arise when Mrs. Ramadei Singh, Sarpanch of Kuamara Grama Panchayat has certified the relationship between the donor & the recipient as per the Rules, 1995. After all, law is not cast in stone, nor is it that judicial interpretation remains unchanged over time.

12. In Jaswinder Singh’s case (supra), the Punjab & Haryana High Court had granted permission to transplant the human organ as there was no material on records contrary to the Act & Rules. In the present case also there is no material on record to deny such permission. The Authorisation Committee is directed to grant necessary. No Objection Certificate to the Petitioners. Accordingly, the Writ Petition is allowed.

I.M. Quddusi, A.C.J.

13. I agree.

(2010) 88 AIC 731 : (2010) AIR(Orissa) 99 : (2010) 1 CutLR 940 : (2010) 109 CutLT 225 : (2010) 40 RCR(Civil) 760