The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5653 of 2023 Golak Bihari Nayak State of Odisha and Others …. Petitioner Mr. L.K. Mohanty, Advocate -versus- …. Opposite Parties Mr. H.K. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 10.11.2023 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Facts
2. Heard learned counsel for the Parties. 3. Petitioner has filed the present Writ Petition challenging the order dtd.01.02.2023 so passed by the Collector-cum-Executive Officer, Zilla Parisad, SSA, Rayagada-opposite Party No.3 under Annexure-10. Vide the said order, the order passed by the self-same authority on 17.12.2022 in terms of the order passed by this Court in W.P.(C) No.801/2013 has been withdrawn. 4.
Legal Reasoning
service approached this Court in W.P.(C) No.801/2013. This Court vide order dtd.04.03.2020 under // 2 //
Arguments
Learned counsel for the Petitioner contended that Petitioner apprehending disengagement from his
Decision
Annexure-6 disposed of the said writ petition inter alia with the following order: “ Heard Mr. S.D. Routray, learned counsel for the petitioner and Mr. B. Satpathy, learned Standing Counsel for School and Mass Education Department. The petitioner has filed this writ petition to quash the order dated 07.12.2012 passed by opposite party no.2 by which the petitioner has been disengaged from service. He further seeks direction to opposite party no.2 to allow him to continue his service as Sikshya Sahayak. Mr. S.D. Routray, learned counsel for the petitioner contended that this Court vide order dated 15.01.2013 had directed to maintain status quo in respect of services of the petitioner in Misc. Case No.709 of 2013, pursuant to which the petitioner is continuing in service till date. He also contended that similar question had come up before this Court for consideration in Smt. Minati Nayak v. State of Odisha and others in W.P.(C) No.26886 of 2013 and this Court vide order dated 06.04.2018 set aside the order of disengagement issued against the petitioner therein and directed the Secretary, School and Mass Education Department to find a place for the petitioner by issuing a fresh appointment order in any nearby center and since the petitioner has not worked although, she may not be entitled to any salary. It is further contended that the case of the present petitioner is squarely covered by the ratio decided in Smt. Minati Nayak (supra). Therefore, direction be issued to the authority to consider the case of the petitioner in the light of Smt. Minati Nayak (supra). Mr. B. Satpathy, learned Standing Counsel for School and Mass Education Department contended that in the case of Smt. Minati Nayak (supra), she was disengaged from service and as such her disability came to 14%, but in the present case, the disability has come to 30%. Therefore, action has been taken by following due procedure of law. Thus the order of disengagement of the petitioner should not be interfered with. Considering the contentions raised by learned counsel for the parties and after going through the records, it appears that the petitioner has already engaged on the basis of disability certificate produced by him. Unless the same is duly verified and examined by the competent authority, same cannot be said to be illegal. Thereby, the continuance of the petitioner cannot be said contrary to the provisions of law. Therefore, the order so passed by this Court in Smt. Minati Nayak (supra) is covered to the present petitioner. Page 2 of 13 // 3 // In that view of the matter, this Court directs the authority to consider the case of the petitioner in the light of ratio decided in Smt. Minati Nayak (supra). With the above observation and direction, the writ petition stands disposed of. Issue urgent certified copy as per rules”. 4.1. It is contended that when the order passed on 04.03.2020 was not complied with, Petitioner filed CONTC No.7318/2021. This Court vide order dtd.21.10.2022 disposed of Contempt Petition by allowing further three months’ time for compliance of the order. 4.2. It is also contended that the Review Petition filed by the State challenging the order dtd. 04.03.2020 was also dismissed vide order dtd.21.10.2022 itself. 4.3. It is contended that after dismissal of the review petition, the order passed by this Court on 04.03.2020 in W.P.(C) No.801/2013 was implemented by Opposite Party No.3 with passing of an order on 17.12.2022 under Annexure-8. Vide the said order, Petitioner was appointed as regular primary school teacher subject to verification of his certificate etc. 4.4. It is contended that subsequently without giving any prior notice or show cause and without following the principle of natural justice, the order passed by Opposite Party No.3 on 17.12.2022 under Annexure-8 was withdrawn vide the impugned order dtd.01.02.2023 under Annexure-10. Page 3 of 13 // 4 // 4.5. It is contended that since by complying the order passed by this Court on 04.03.2020, Petitioner was appointed as a regular Primary School Teacher vide order dtd.17.12.2022 under Annexure-8, the said order could not have been withdrawn without following the principle of natural justice and without issuing a show cause. It is accordingly contented that the said order is not sustainable in the eye of law. 4.6. Mr. L.K. Mohanty, in support of his aforesaid stand relied on the decisions of the Hon’ble Apex Court in the case of Menaka Gandhi vs. Union of India reported in AIR 1978 SC-597, Manohar Manikara Anchula vs. State of Maharastra reported in AIR 2013 SC-681 & Ware House Corporation vs. Vijay Narayan Vajpayee reported in AIR 1980 SC 840. 4.7. In Menaka Gandhi vs. Union of India reported in AIR 1978 SC-597, Hon’ble Supreme Court in Paragraphs-57, 58 and 61 has held as under:- 57. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the, test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without to show cause cannot but be giving reasonable opportunity condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is Page 4 of 13 // 5 // 25 Indian Kanoon January, true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Maneka Gandhi vs Union Of India on - 1978 http://indiankanoon.org/doc/1766147/ 57 Board of Works(2). "A long course of decision---, beginning with Dr. Bentley's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet-the justice of the common law will supply the omission of (1) [1974]2S.C.R.348. (2) [1863]14C.B.N.S.180. the legislature". The principle of audi alteram partem, which mandates that no one shall be condemned unheard, part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport ? 58. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with' fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth- y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception ? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose %,,ill not be fulfilled; it lacks more exalted inspiration." (Current Legal Problems, 1973, Vol. 26, p. 16) And then again, in his speech in the House of Lords in Wiseman v. Borneman(1), the learned Law Lord said in words of inspired felicity: "that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has Page 5 of 13 // 6 // been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abundant riches : there we may find what Byles, J., called "the justice of the common law". Thus, the soul of natural justice is fair play in action' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Henning, M.R. in these terms in Schmidt v. Secretary of State for Home Affairs(1) :- where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of International Law, Vol. 67, page 479. Magarry, J., describes natural justice "as a distillate of due process of law". Vide Fontaine v. Chesterton(2). It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", ,or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every law Lord was whether the procedure followed was "fair in all the circumstances" and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?. 61. This Court, speaking through Hegde, J., in ,I. K. Kraipak's case quoted with approval the above passage from the judgment of Lord Parker, C.J., and proceeded to add : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it-Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the, application of the rules of natural justice. The validity of Page 6 of 13 // 7 // that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice One fails to see why those rules should be made inapplicable, to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-.judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. (1969)1 S.C.R. 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principles of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case." This view was reiterated and re-affirmed in a subsequent decision of this Court in D.F.O. South Khari v. Ram Sanehi Singh(1). The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable. 4.8. In Manohar Manikara Anchula vs. State of Maharastra reported in AIR 2013 SC-681. Hon’ble Supreme Court in Paragraph-17 has held as under:- 17. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designated Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements of natural justice. It is not expected of the Commission to breach any of these principles, particularly when its orders are open to judicial review. Much less to Tribunals or such Commissions, the Courts have even made compliance to the principle of rule of natural justice obligatory in the class of administrative matters as well. In the case of A.K. Kraipak & Ors. v. Union of India & Ors. [(1969) 2 SCC 262], the Court held as under : 17. It is not necessary to examine Page 7 of 13 // 8 // those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line from quasi-judicial that demarcates administrative enquiries enquiries. Enquiries which were considered administrative at one time are now being considered as quasi- judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an Manohar vs State Of Maharashtra & Anr on 13 December, 2012 Indian Kanoon - http://indiankanoon.org/doc/136770833/ 6 administrative enquiry may have more far reaching effect than a decision in a quasijudicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. 4.9. In State of Orissa vs. Binapani Das reported in AIR 1967 SC-1269 Hon’ble Supreme Court in Paragraph-12 has held as under:- 12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We Page 8 of 13 // 9 // think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State. 4.10. In Ware House Corporation vs. Vijay Narayan Vajpayee reported in AIR 1980 SC 840, Hon’ble Supreme Court in Paragraph-14 has held as under:- 14. The appellant is a Corporation constituted under the Uttar Pradesh State Warehousing Corporation (Act 28) of 1956, which was subsequently replaced by the Central Act 58 of 1962. It is a statutory body wholly controlled and managed by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singh's case (ibid). The ratio of Sukhdev Singh's case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. The respondent was employed by the appellant-Corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross- examine the witnesses relied upon by the appellant- Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. Managing Director, Uttar Page 9 of 13 // 10 // Pradesh ... vs Vinay Narayan Vajpayee on 16 January, 1980 Indian Kanoon - http://indiankanoon.org/doc/156294/ 8 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court”. 5. Mr. H.K. Panigrahi, learned Addl. Standing Counsel for State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that initially this Court vide order dtd.04.03.2020 in W.P.(C) No.801/2013 disposed of the writ petition in the light of the order passed in the case of Smt. Minati Nayak. The State thereafter filed Review Petition No.51/2021 before this Court seeking review of the order dtd.04.03.2020. The said Review Petition when was dismissed by this Court vide order dtd.21.10.2022, Opposite Party No.3 complied the direction of this Court so issued on 04.03.2020 vide order dtd.17.12.2022 under Annexure-8. But subsequently basing on the request made by the Department-Opposite Party No.1 vide his letter dtd.06.01.2023 the order passed on 17.12.2022 was withdrawn vide the impugned order dtd.01.02.2023 under Annexure-10. 5.1. It is also contended that in the meantime the State has approached the Hon’ble Apex Court by filing Special Leave Petition (Civil) Diary No.44895 of 2023 on Page 10 of 13 // 11 // 28.10.2023, challenging the order dtd.04.03.2020 as well as the order dtd.21.10.2022 so passed by this Court in Review Petition No.51/2021. Since the State Government decided to challenge the order before the Hon’ble Apex Court, Opposite Party No.1 issued letter dtd. 06.01.2023 by directing Opposite Party No.2 to take steps to file appeal against such order before the Hon’ble Apex Court. 5.2. It is accordingly contended that since the State vide letter dtd.06.01.2023 decided to challenge the order passed by this Court before the Hon’ble Apex Court, the compliance order passed by Opposite Party No.3 under Annexure-8 was withdrawn vide order under Annexure-10. 5.3. It is accordingly contended that no illegality or irregularity has been committed by Opposite Party No.3 in withdrawing the order dtd.17.12.2022 vide order under Annexure-10. 5.4. It is also contended that the original order passed in the case of Smt. Minati Nayak has been stayed by the Hon’ble Apex Court in Special Leave Petition (Civil) Diary No.(s). 41710/2022. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the order passed by this Court on 04.03.2020 in W.P.(C) No.801/2013 under Annexure-6 was duly implemented by Opposite Page 11 of 13 // 12 // Party No.3 after dismissal of the review petition so filed by the State on 21.10.2022 with passing of the order on 17.12.2022 under Annexure-8. 6.1. It is also found that Opposite Party No.3 withdraw the order dtd.17.12.2022 vide the impugned order dtd.01.02.2023 under Annexure-10, basing on the letter issued by the Government on 06.01.2023. This Court after going through the said letter annexed vide Annexure-H to the counter finds that vide the said letter no direction was issued by the State directing Opposite Party No.3 to withdraw the order dtd.17.12.2022. In the said letter, Opposite Party No.2 was requested to take step to file the SLP against the order passed in the case of the present petitioner by this Court. Since in letter dtd.06.01.2023 there was no such direction to withdraw the order so passed by Opposite Party No.3 on 17.12.2022 under Annexure-8, the said order could not have been withdrawn on the ground indicated in Annexure-10. 6.2. In view of such position and taking into account the fact that no opportunity of hearing was given to the Petitioner prior to such withdraw of the order, this Court placing reliance on the decisions as cited (supra) is inclined to quash the order dtd.01.02.2023 so passed by Opposite Party No.3 under Annexure-10. While quashing the same, this Court upheld the order passed by the said authority on 17.12.2022 under Annexure-8. It is however observed that the order Page 12 of 13 // 13 // dtd.17.12.2022 so passed by Opposite Party No.3 under Annexure-8 shall be subject to final outcome of SLP Civil Diary No. 44895 of 2023. 7. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Nov-2023 14:02:12 Page 13 of 13