Sanju Dora Vs. State of Orissa and ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 3. the order of detention is challenged on various grounds including non-supply of translation of certain documents, such as, charge-sheets, written in english, in oriya, the only language known to the detenu, thereby seriously prejudicing his constitutional as well as statutory right of representation. ' after the above paragraph are detailed the rest of the incidents, old as well as new ,date 15-12-1985. 12-6-1987. 13-4-1988. 14-11-1989 26-11.1989.27-11-1989, 26-11-1991. 16-11-1992 ,26-3-1992, 25-4-1993, 15-5-1993, 12-8-1993 and 12-2-1994. 5. reading of annexure 2 as a whole leaves no manner of doubt that not march, 1994 and february. ,it is well-settled that failure to supply translation of material documents in the language known to the detenu affects his constitutional as well as statutory right to makes a representation and such failure vitiates the order of detention hence the order of detention cannot stand legal scrutiny. 6. our attention is invited by the learned government advocate to section 5a of the act and on that basis it is contended that the grounds are severable and even if translation of documents relatable to some of the grounds are not given, that failure does not vitiate the order of detention. this is a complete misreading of the letter as well as spirit of section 5a. the objective and legislative background of section 5a is too well known to be elaborately stated. it is brought on the statute to overcome the effect of the decision of certain courts due to which orders of detention were held liable to be struck down even if one out of several grounds was found to be invalid or non-existing. section 5a is intended to achieve the result of saving the order even if one ground is valid and sustainable and others are considered either (i) vague, or (ii) non-existent, or (iii) not relevant, or (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever section 5a has nothing to do with the effect of non-compliance of other mandatory requirements, absence of which adversely affects the constitutional as welt as statutory right of representation of the detenu against the order of detention failure to supply translation o1 materials relied upon in the language known to the detenu does not attract section 5a.v.a. mohta, c.j. 1. this is a habeas corpus petition by the wife of a detenu under section 3 of the national security act, 1980 (the act).2. the impugned order of detention dated 6-3-1994 is based on various grounds including the two recent incidents dated 5-3-1994 and 23-2 1934 and the past incidents of various dates from 15-2-1986 to 11-2-1994. they all relate to the criminal and anti-social activities of the detenu, biswanath dora.3. the order of detention is challenged on various grounds including non-supply of translation of certain documents, such as, charge-sheets, written in english, in oriya, the only language known to the detenu, thereby seriously prejudicing his constitutional as well as statutory right of representation. undisputed position is that copies of some charge-sheets for various offences referred to in the grounds of detention and supplied to the detenu are in english and their translation in oriya has not been supplied thought translation of some charge-sheets in oriya has been supplied. the only justification put forth by the learned advocate for the state is that the charge-sheets, translation of which is not supplied, are pertaining to the old incidents, which are merely in the nature of preamble and are not the grounds of detention and hence non-supply of translated copies of those documents does not vitiate the order of detention.4. the submission does not appeal to us. 'grounds' of detention, as envisaged in article 22(5) of the constitution or section 8(1) of the act means the basic facts and materials which have gone in the formation of subjective satisfaction of the detaining authority in' making the order of detention. preamble means merely the prefatory note or the introductory paragraph containing casual or passing reference to insignificant facts not intended to be relied upon, which are neither meant for nor have the potentiality of influencing the judgment of the detaining authority in the matter of passing or not passing the order of detention. having regard to the placement of the old anti-social activities, which is in the middle of the grounds, and the contents of the incidents, it cannot be said that they were only in the nature of preamble. annexure 2, the grounds, begins with the caption 'grounds of detention' and in it there is not even a whisper about the word 'preamble' or 'introduction'. the two recent incidents dated 5-3-1994 and 23-2-1984, with which the grounds begin, are also not in order of time. first the incident of march. 1994 is stated and thereafter the incident of february. 1994. after narrating these two incident it is stated:'besides the above, you were involved in the following cases in the past which amply proves how you have been persistently indulging yourself in various anti-social activities causing grave sense of insecurity and fear in the minds of peace loving people.'after the above paragraph are detailed the rest of the incidents, old as well as new , date 15-12-1985. 12-6-1987. 13-4-1988. 14-11-1989 26-11.1989.27-11-1989, 26-11-1991. 16-11-1992 , 26-3-1992, 25-4-1993, 15-5-1993, 12-8-1993 and 12-2-1994.5. reading of annexure 2 as a whole leaves no manner of doubt that not march, 1994 and february. 1994 but also the other incidents-umpteen in number have been the foundation of the order of detention. ,it is well-settled that failure to supply translation of material documents in the language known to the detenu affects his constitutional as well as statutory right to makes a representation and such failure vitiates the order of detention hence the order of detention cannot stand legal scrutiny.6. our attention is invited by the learned government advocate to section 5a of the act and on that basis it is contended that the grounds are severable and even if translation of documents relatable to some of the grounds are not given, that failure does not vitiate the order of detention. now. this is a complete misreading of the letter as well as spirit of section 5a. the objective and legislative background of section 5a is too well known to be elaborately stated. simply put. it is brought on the statute to overcome the effect of the decision of certain courts due to which orders of detention were held liable to be struck down even if one out of several grounds was found to be invalid or non-existing. section 5a is intended to achieve the result of saving the order even if one ground is valid and sustainable and others are considered either (i) vague, or (ii) non-existent, or (iii) not relevant, or (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever section 5a has nothing to do with the effect of non-compliance of other mandatory requirements, absence of which adversely affects the constitutional as welt as statutory right of representation of the detenu against the order of detention failure to supply translation o1 materials relied upon in the language known to the detenu does not attract section 5a.7. under the circumstances, the impugned order of detention is quashed and set aside and this petition is allowed. the detenu be forthwith released from prison, it not requited in connection with any other case.r.k. patra, j.8. i agree.