The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 22768 of 2016 (Application under Articles 226 and 227 of the Constitution of India) Motilal Behera ...… Petitioner -------------- -Versus- Chief Secretary and Others ..…. Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner
Legal Reasoning
It is well settled that when an order seeks to visit an employee with the extreme penalty of termination of his employment, it is incumbent upon the authorities to provide all opportunity to him to have his say in the matter. This is in consonance with the principles of natural justice. Where there is violation of natural justice no result or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with observance of Page 4 of 6 natural justice the same conclusion would have been reached. In Union Carbide Corporation, etc. v. Union of India, etc. AIR 1992 SC 248, the Supreme Court held as follows:- “Omission to comply with the requirements of the rule of Audi Alteram Partem, as a general rule, vitiates a decision. Where there is violation of natural justice no result or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with observance of natural justice the same conclusion would have been reached. The citizen “ is entitled to be under the rule of law and not the Rule of Discretion” and “to remit the maintenance of constitutional right to judicial discretion is to shift the foundations of freedom from the rock to the sand”. But the effects and consequences of non-compliance may alter with situational particularities, illustrating a “flexible use of discretionary remedies to meet novel legal situations”. “One motive” says Prof. Wade “for holding administrative acts to be voidable where according to principle they are void may be a desire to extend the discretionary powers of the Court”. As observed by Lord Reid in Wiseman V. Borneman, 1971 AC 297, natural justice should not degenerate into a set of hard and fast rules. There should be a circumstantial flexibility”. variations and 8. Moreover, it goes without saying that mere institution of a criminal case against a person cannot be treated as conclusive prove of his guilt. Viewed in light of these propositions, the impugned order cannot stand the scrutiny of law and therefore, warrants interference. Page 5 of 6 However, considering the fact that several allegations have been leveled against the petitioner apparently based on official records an opportunity ought to be given to the authorities to have a re-look at the matter but only after considering the contentions of the petitioner. 9. The writ application is therefore, allowed. The impugned order under Annexure-6 is set aside. The matter is remitted to the Commissioner-cum-SPD to pass order afresh after granting opportunity of personal hearing to the petitioner and taking into account the explanation that may be submitted by him. Necessary orders in this regard shall be passed within four weeks from the date of production of certified copy of this order by the petitioner. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 9th of July, 2025/ Puspanjali Ghadai Jr. Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 18-Jul-2025 11:12:30 Page 6 of 6
Arguments
: Mr. B.N. Mohanty, Advocate For Opp. Parties : Mr. S.S. Routray, [Addl. Standing Counsel] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 09.07.2025 SASHIKANTA MISHRA, J. The petitioner was appointed as Technical Consultant as per order passed by the erstwhile State Commissioner-cum-State Project Director of Primary Education Authority which is presently called Odisha School Education Programme Authority (OSEPA). While working as such, he was served with show cause notice on 26.03.2010 asking him to explain the allegations leveled Page 1 of 6 against him relating to gross negligence in duty, misconduct, disobedience of orders of higher authority, misappropriation of Government money, committing irregularities and impropriety of administrative and financial nature. Further, it was alleged that he had remained unauthorizedly absent from duties since 18.12.2009. The petitioner submitted his detailed reply on 21.04.2010. While the matter stood thus, without affording any opportunity of personal hearing an office order was passed by the Director on 29.06.2010 holding him guilty of the charges and directing his termination from service with immediate effect. 2. The Opposite Parties in their counter have taken a stand that originally a case was registered by the Vigilance Department against the petitioner basing on which show cause notice was issued and he submitted his reply. Considering the explanation submitted by the petitioner vis-(cid:224)-vis the enquiry report of the Vigilance Department, the impugned order was passed. It is also alleged that the petitioner, though belongs to the Other Backward Classes Page 2 of 6 (OBC) category had obtained employment by falsely projecting himself as a Schedule Caste(SC) candidate. 3. Heard Mr. B.N. Mohanty, learned counsel for the petitioner and Mr. S.S. Routray, learned Addl. Standing Counsel for the State. 4. Mr. Mohanty would argue that the impugned order is fundamentally wrong for not adhering to the principles of natural justice inasmuch as the petitioner was never given an opportunity of personal hearing. Had such opportunity been given to the petitioner, he would have been in a better position to explain and clarify the so-called discrepancies in the show cause notices. Mr. Mohanty further argues that the petitioner was not a party to the inquiry conducted by the Vigilance Department and therefore, the findings results are unilateral and cannot be utilized against him. 5. Mr. Routray, on the other hand would argue that the petitioner’s explanation to the show cause notice was duly considered and a reasoned order was passed. He therefore, cannot complain that the principles of natural justice were violated. Page 3 of 6 6. Perusal of the impugned order, enclosed as Annexure-6, reveals that the concerned authority has taken note of the allegations leveled against the petitioner as reflected in the show cause notice as also the explanation submitted by him. It appears that the petitioner had explained the manner of utilization of Government funds in his explanation as also regarding his unauthorized absence. It is further noticed that the authority has placed heavy reliance on the report of the Vigilance team which holds the view that the petitioner had misappropriated Government money. 7.