The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 22184 of 2013 (An application under Article 226 & 227 of the Constitution of India) --------------- AFR Bhaskar Chandra Khuntia ...… Petitioner -Versus- State of Odisha and others .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/S. L.K.Mohanty, B.K.Jena, Advocates.
Legal Reasoning
this Court in W.P.(C). No. 12092 of 2010, which was disposed of by order dated 21.09.2010 by directing the opposite Page 2 of 7 parties to comply with the order by end of September. The petitioner again approached this Court in a contempt application. Ultimately, on 04.01.2011 the opposite party No. 1 released a sum of Rs. 5,75,120/- in favour of the petitioner in terms of the order passed by the Tribunal. On 28.03.2011, the arrear bill for revision of pay of the petitioner as per O.R.S.P. Rules, 2008 w.e.f. 01.01.2006 was submitted for release of arrear salary of Rs. 7,58,486/-. Since no action was taken, the petitioner again approached this Court in W.P.(C). No. 25285 of 2011, which was disposed of by order dated 20.09.2011 to consider the case of the petitioner. But the petitioner again approached this Court in CONTC No. 217 of 2012, CONTC No. 1666 of 2012 and CONTC No. 2262 of 2012. Eventually, by order dated 06.05.2013, the opposite party No. 1 released a sum of Rs. 1,02,346/- against the bill submitted for Rs. 7,58,486/-. The claim of the petitioner was rejected by the Government by order dated 06.08.2013 holding that as per the latest inquiry report of the District Education Officer, Balasore, the petitioner had not actually worked from 01.03.2007 to 30.06.2010 in Bhagaban Chandra Sanskrit Toll, Jageswarpada or elsewhere and therefore, a sum of Rs. 5,75,120/- had been wrongly paid to him. As such, while directing initiation of major disciplinary Page 3 of 7 proceedings against the then Inspector of School, Balasore, it was also directed that the sum of Rs. 6,75,120/- shall be recovered from the petitioner as per rules. 3. Mr. L.K.Mohanty, learned counsel for the petitioner assails the impugned order on the ground that by the order under Annexure-11, the then Inspector of Schools by his letter dated 20.02.2010 had categorically stated that the petitioner was performing his duty from the date of order and moreover. The impugned order was passed without granting him any opportunity of hearing. 4. Mr. Biplab Mohanty, learned Standing Counsel for the School & Mass Education Department submits that the earlier order of the Inspector of Schools was found to be wrong in the subsequent inquiry conducted by the District Education Officer. It is for such reason that the Government decided to take disciplinary action against the said Inspector of Schools. 5. This Court finds that in view of the conflicting documents/reports relating to the claim of the petitioner of having worked during the period in question, the same can only be resolved by holding an independent inquiry basing on the documents and relevant records. In any event, this Court finds that the impugned order under Annexure-11 was Page 4 of 7 passed without granting any opportunity of hearing whatsoever to the petitioner. True, this Court in W.P.(C). No. 25285 of 2011 while directing the authority to consider and dispose of the representation of the petitioner did not specifically direct that personal hearing should be granted yet, it is the settled position of law that when an order is proposed to be passed to the detriment of an employee, it is incumbent upon the authorities to grant an opportunity of personal hearing. In other words, adherence to the principles of natural justice is a must before passing any order which would work to the disadvantage of the concerned employee. Reference in this regard may be had to the celebrated decision of the Apex Court in the case of State of Orissa vs. Dr. (Miss) Binapani Dei & Ors reported in 1967 AIR 1269. Wherein, it was observed as under: xxxx xxxx xxxx xxxx xxxx “ An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom in enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a Page 5 of 7 hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” This Court therefore, finds that the impugned order cannot
Arguments
For Opp. Parties : Mr. B.P.Tripathy _______________________________________________________ CORAM: Additional Government Advocate JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 6th March, 2023 . The petitioner has approached this Court with the following prayer; “It is therefore prayed that this Hon’ble Court may graciously be pleased to issue Rule ‘NiSi’ calling upon the Opp. Parties to file show-cause as to why the order dated 06.08.2013 issued by opposite party No.1 under Annexure-11 rejecting the claim of the petitioner towards release of revised arrear dues from 01.03.2007 to 30.06.2010 and to recover Rs. 5,75,120/- from his salary. If the opposite parties failed to file show-cause/insufficient show cause, this Hon’ble Court be pleased to quash the order date 06.08.2013 under Annexure-11 further direct to release the balance revised arrear dues of the petitioner for the period from 01.03.2007 to the period for Page 1 of 7 30.06.2010; within a date to be fixed by this Hon’ble Court; Such other order/orders, direction/directions be passed as deem fit proper for the interest of justice; for which act of kindness, the petitioner as in duty bound shall ever pray.” 2. The facts of the case in brief are that the petitioner was appointed as Head Pandit of Sanskrit Toll in the year 2004 and was transferred to Kishore Mohan Sanskrit Vidyalaya in Balasore district. Thereafter, he was transferred to Bhagaban Chandra Sanskrit Toll. On 07.09.2007, the petitioner was transferred to Sadhuprasad Sanskrit Vidyalaya, but against the post of Assistant Pandit. He challenged such reversion before the State Education Tribunal in Appeal Case No. 09 of 2008. By order dated 08.02.2010, the Tribunal allowed the Appeal Case by quashing the order of reversion and directed the opposite party authorities to release all earlier dues within four months. Consequent upon such order, the erstwhile Inspector of Schools, in his letter dated 22.02.2010 requested the Director of Secondary Education to release funds to clear the arrear dues of the petitioner. No action was taken on such recommendation for which, the petitioner approached
Decision
be sustained in the eye of law. The impugned order is here by quashed. The matter is remitted to the opposite party No. 1 for fresh disposal of the representation of the petitioner. In doing so, the opposite party No.1 shall cause an independent inquiry to be made to ascertain whether the petitioner had rendered service from 01.03.2007 to 30.06.2010 in Bhagaban Chandra Sanskrit Toll or elsewhere. It is needless to mention that such inquiry shall be conducted by a high ranking officer of the State Government, preferably of the rank of Joint Secretary. Further, the petitioner shall be granted an opportunity of personal hearing before disposal of the representation. 6. Further, considering the fact that the petitioner has already retired from service on attaining the age of superannuation on 31.12.2016 and it is claimed that he is Page 6 of 7 not being paid pension and other retirement dues on the ground of pendency of the present writ application, it is directed that the opposite party no.1 shall do well to dispose of the representation as early as possible preferably, within a period of three months from the date of communication of this order or on production of certified copy thereof by the petitioner. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 6th March, 2023/ Deepak Page 7 of 7