JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.17700 of 2016 (An application under Articles 226 & 227 of the Constitution of India). Nihar Ranjan Rout …. Petitioner -versus- 1. T.P. Central Odisha Distribution Ltd., …. Opposite Parties represented though it’s Chief Executive Officer 2. The Superintendent Engineer, TPCODL 3. Senior General Manager, HR, TPCODL 4. Manager (Elect.). TPCODL Salipur Electrical Division 5. S.D.O. (Elect.), TPCODL, Mahanga 6. Junior Manager, TPCODL Erakana 7. Chief Vigilance Officer, TPCODL 8. State of Odisha, represented by the Secretary Department of Energy, Govt. of Odisha For Petitioners For Opposite Parties : : Mr. D. Tripathy, Advocate Mr. P.K. Sahoo, Advocate CORAM: JUSTICE V. NARASINGH DATE OF HEARING :05.01.2024 DATE OF JUDGMENT: 30.05.2024 V. Narasingh, J. 1. Heard learned counsel for the Petitioner and learned counsel for the Opposite Parties. W.P.(C) No.17700 of 2016 Page 1 of 13 2. The Writ Petition has been filed assailing Order of termination dated 13.10.2011 at Annexure-14 passed by the Opposite Party No.4 and Appellate Order dated 16.09.2016 at
Facts
Annexure-19 confirming the order of punishment. 3. The nub of the issue mooted before this Court is whether the Petitioner even after completion of the period prescribed for probation in absence of any confirmation order will be treated as a employee under probation or regular employee and if so whether any principle of natural justice is required to be followed while severing the relationship with him by the employer particularly when such discharge or termination is on account of some allegation but not with respect to efficiency or performance. 4. In order to answer the aforesaid issues and to test the sustainability of the termination order dated 13.10.2011 at Annexure-14 so also the rejection order passed by the Appellate Authority dated 16.09.2016 at Annexure-19, it is apt to set out the factual matrix as under. 4-A. Following a due procedure of selection after being declared successful in the recruitment test, the Petitioner joined in the post of Junior Artisan B on contractual basis on 08.11.2007 in the establishment of Salipur Electrical Division, Salipur. Thereafter, on 07.08.2009 he was sent to undergo internship training. Opposite Parties took decision to regularise all Junior Artisan B (contractual 2007) batch as Junior Artisan A (training) as per circular dated 16.07.2010. Accordingly, the Petitioner was appointed as Junior Artisan A (training) as per office order dated 09.11.2010 and as per order dated 15.11.2010 his job was regularised and was appointed in the regular post of Junior Artisan A in the electrical division cadre allowing him to enjoy the benefits attached to the said post. W.P.(C) No.17700 of 2016 Page 2 of 13 5. The conditions regulated in order dated 15.11.2010 is that appointment in the post of Junior Artisan A is to be with effect from 08.05.2010 with a period of 6 months on probation which is completed on 07/11/2010 and accordingly increments are to be sanctioned in his favour. 6. It is contended by the Petitioner that though he was discharging his duties satisfactory but on 24/09/2011, office Memo No.266 was issued to him on the allegation that he had received Rs.4000/- from one Bharat Chandra Pradhan on 06/07/2011 to give electric connection to his new house. In which it was further alleged that such payment was made to the Petitioner to show favour by giving him a new electric connection illegally to said Bharat Chandra Pradhan and he misappropriated the money. 7. It is urged on behalf of the Petitioner that no opportunity whatsoever was provided by the Opp. Parties leading to the punitive action against him. Similarly copy of the allegation petition was not given to the petitioner and also no examination of witnesses were conducted in his presence. 8. The Petitioner further contented that there was no enquiry though he submitted his explanation as desired but without expressing any opinion on the grounds raised by the Petitioner refuting the allegation, without conducting any enquiry to ascertain the truth behind the same and grossly violating the principle of natural justice, the disciplinary authority, Manager Electrical, Salepur Electrical Division issued the impugned order of termination, without assigning any reason. 9. Being aggrieved with such illegal termination order the
Legal Reasoning
petitioner had approached this court in W.P.(C) No. 27644 of 2011 on 24.10.2011. The Opposite Parties in their counter admitted that W.P.(C) No.17700 of 2016 Page 3 of 13 the services of the Petitioner was a regular employee before termination. However, as the Petitioner had not exhausted the statutory remedy in shape of appeal before the Appellate Authority against order of termination, the Writ Petition was disposed of on 21.09.2015 granting liberty to the Petitioner to file appeal before the Appellate Authority. 10. Accordingly, appeal was filed by the Petitioner on 06.10.2015. But, it is asserted that the appellate authority rejected the appeal on 16.10.2016 without application of mind and without discussing the grounds raised by the Petitioner in his appeal. 11. As such challenging the order of termination and the rejection of appeal at Annexure-14 & 19 respectively, the present Writ Petition has been filed. 12. Per Contra, the Opposite Parties by filing counter affidavit seeking rejection of the prayer of the Petitioner to interfere with the order of termination as well as rejection of appeal, submitted that several allegations were received against Petitioner regarding receiving money from beneficiaries unlawfully on different occasion from different persons. 13. However, to justify their action particularly with respect to maintainability of the decision to terminate the Petitioner, it is stated that at the relevant point of time the Petitioner was not a regular employee rather he was under probation for which there is no necessity to conduct any formal enquiry since, the employer reserves the right to terminate such professional at any point of time. 14. It is also stated in the same breath that an opportunity through show cause was given to the Petitioner but his reply was W.P.(C) No.17700 of 2016 Page 4 of 13 not found to be satisfactory for which the authority decided to terminate his service. Grounds of challenge:- 15. The petitioner assails the impugned orders giving emphasis on the point that the authorities have committed grave error in treating him as an employee under probation without acknowledging the fact that in the meantime, he has already been regularised and he has been treated as such and given benefits with the benefits as it is extended to a regular employee. Similarly the approach of the Appellate Authority has been questioned on the ground that there is complete non-application of mind on the part of Appellate Authority who failed to appreciate that the decision to terminate his service cannot be held sustainable on account of non- compliance with the principle of natural justice including non- supply of the documents, non-examination of the material witnesses and above all non-supply of the inquiry report which has been taken into consideration at the time of taking a decision to terminate him from service. 16. Although the Petitioner was directed to submit an explanation but the copy of the document basing upon which such explanation was sought for was not supplied to him. 17. No opportunity of personal hearing was given to the Petitioner at any point of time and the decision has been taken behind his back including collecting the statement of different persons. 18. The decision of the authority that the Petitioner was continuing on probation at the time of termination is ex-facie dehors the record. W.P.(C) No.17700 of 2016 Page 5 of 13 19. The Opposite Parties tried to justify their action relying on the grounds taken in counter affidavit wherein, it is admitted that the Petitioner was engaged as Junior Artisan B on contractual basis and after completing 2 years of tenure of contract and on successful completion of trade test, he was appointed as Junior Artisan A with effect from 07.11.2009. After receiving complaint from one Bharat Chandra Pradhan against Petitioner regarding collection of Rs.4000/- for providing him a new electricity connection. But failed to give such connection and did not refund such amount. Such allegation was enquired by Chief Vigilance Officer, CESU on 17/9/2011 and during enquiry, it was found that such amount was actually paid to the Petitioner in presence of one Prakash Chandra Pradhan. Shri Pradhan was also examined as witness who also stated that he had paid Rs.1000/- to the Petitioner for providing authorized temporary connection in his favour but illegally provided power supply to him by hooking and misappropriated the said amount without issuing any money receipt. Apart from these, 2 cases the CVO got information with respect to many such allegations against the Petitioner. It is also contended by the opposite parties that the Petitioner during enquiry admitted before the CVO, CESU regarding accepting Rs.1800/- from one Sarwar Khan while denying of accepting the money from other persons as alleged. It came to notice during enquiry that the Petitioner is in regular habit of taking bribe from different persons with a view to provide them power supply without giving any money receipt and was facilitating and encouraging consumers to avail power supply in unauthorised manner. W.P.(C) No.17700 of 2016 Page 6 of 13 In view of such illegal act committed by the Petitioner and his involvement in corrupt practice, the disciplinary authority decided that the services of the Petitioner is no more required and accordingly terminated his services as per order dated 13.10.2011 vide at Annexure-14 by paying him one month salary in cheque in lieu of the notice. It is further clarified in the counter that although the Petitioner had submitted his reply to the explanation called for but the same was not found to be satisfactory while considering it in terms of the report of the CVO , CESU. 20. Regarding the status of the Petitioner that whether he was still a probation at the time of termination of service, it has been clarified by the Opposite Parties that the Petitioner was under probation and as per clause 3 of the terms and conditions of appointment, on satisfactory completion of the probation which shall not be deemed to have been completed unless it is confirmed in writing, their services are liable to be terminated at any time without assigning any reason whatsoever by giving one months’ notice or one month pay in lieu of the notice on either side. Accordingly, it is contended that in absence of anything in writing about confirmation of the Petitioner mere completion of the period of probation cannot bestow upon him the status of a regular employee, at the time of his termination. As he was not a regular employee of the organization and his service was terminated by making the payment of one month salary as per the terms and condition of his appointment which he readily accepted. Therefore, the claim of the Petitioner regarding violation of the principle of natural justice and initiation of a W.P.(C) No.17700 of 2016 Page 7 of 13 proceeding before termination of his service are not sustainable in the eye of law. As the appointment order contains a clear stipulation that the confirmation in service is required in writing, therefore, the Petitioner is deemed to be on probation and as such the manner in which the decision has been taken by the authorities to terminate the service cannot be said as illegal or irregular. Rather proper procedure has been adopted by conducting preliminary enquiry, as much as collecting the evidences both in support of as well as against the allegations vis-à-vis the Petitioner and an opportunity to submit his explanation was given to him. And, the Petitioner also admitted such explanation before the CVO, CESU admitting receiving of illegal gratification from one such person while denying the amount in respect of others. 21. From the submission and counter submission of respective parties, it is found that undisputedly, Clause-3 of the appointment order contains a stipulation that the period of probation shall not be deemed to over on completion of the probation rather it requires written confirmation. For convenience of ready reference, the said clause is extracted hereunder; “3. On satisfactory completion of probation period which shall not be demand to have been completed unless they are confirmed of it in writing their service are liable to be terminated at any time without assigning any reason whatsoever by giving one month notice or one month pay in lieu of the notice period on either side. The regularization of probation service is subject to receipt of satisfactory character. Antecedent verification (CVA) report from the concerned District Magistrate/Collector on the Attestation Forms submitted by them at the time of joining as Jr. Art B (Contract).” W.P.(C) No.17700 of 2016 Page 8 of 13 22. However, the stand of the Petitioner that on completion of probation he has been treated as regular employee and sanctioned increments etc. are sufficient to draw a conclusion that although a written confirmation order has not been issued by the authorities but the Petitioner has been treated as a regular employee. 23. The claim of the Petitioner that he was treated as a regular employee is fortified by the stand of the Opp. Party with respect to regular status of the Petitioner in the previous lis inter se between the parties before this Court. Such stand of the Opposite Party in W.P.(C) No. 27644 of 2011 is culled out hereunder for convenience of reference;
Decision
“8. That, in reply to Para 20 of the Writ Petition, it is submitted that the averment made by the petitioner in this paragraph is not correct and denied herewith. As per order No.5946 dtd. 15.11.2010 issued by the Divisional Manager, Salipur Electrical Division, Salipur the petitioner along with others who had term were appointed as Jr. completed Artisan-A in the Division cadre under probation for a period of six month from the date of appointment in the said post w.e.f. 8.5.2010 and after completion of six months, the petitioner was regularized on 8.11.2010. But no formal order to that effect was issued on completion of the probation period.” the service of training (Emphasized) As such, the action of the Opp. Parties in adopting a short cut method treating the Petitioner as a probationer is ex-facie illegal and evidently to avoid the rigours of the disciplinary procedure, the Petitioner has been terminated from service, treating him as a probationer. 24. The allegations were received against the Petitioner and the manner in which the CVO conducted the inquiry is nothing but W.P.(C) No.17700 of 2016 Page 9 of 13 a preliminary inquiry to ascertain whether any prima facie materials are available to justify the allegations raised against the Petitioner or not. 25. Therefore, the examination of witnesses as well as the Petitioner was conducted by the CVO, CESU. 26. It is not the case of the Opposite Parties that at the time of collecting the evidences by the CVO, CESU any examination and cross examination as well as examination of witnesses in presence of the Petitioner was made. 26-A. As such the report submitted by the CVO, CESU can only be utilised for the purpose of arriving at a finding regarding veracity of such allegation, to form the basis of initiating an action against Petitioner. But, under no circumstances such report can be treated as an enquiry by itself, for the disciplinary authority to utilise it to impose the penalty unless and until such statements of the persons along with the report prepared by CVO, CESU are supplied to the Petitioner before taking decision in terms of the report of CVO, CESU more particularly when at the time of submitting the explanation the Petitioner had asked for such documents which were admittedly not given to him. 27. On a conspectus of the materials on record, this Court is of the considered view that the Opposite Parties are right in their interpretation with respect to the status of the Petitioner whether under probation or regular employee taking the assistance of clause- 3 particularly when any written order has not been issued with respect to confirmation in service of the Petitioner but at the same time this Court cannot overlook that the Opposite Parties have not stated any reason in their counter for not issuing any written W.P.(C) No.17700 of 2016 Page 10 of 13 confirmation order even though the period of probation is already over. If the duty is to be discharged by the competent authority to issue a confirmation order in writing after completion of probation order, in absence of any allegation that the performance during the probation was not satisfactory which requires further extension, it is not open to the authority to take advantage of their own laches in not issuing a written confirmation order more particularly when the authorities have treated the Petitioner after completion of the probation period for all practical purpose as a regular employee, inter alia, granting him financial benefit at par with regular employee. 28. Be that as it may, since the Petitioner was awarded the maximum penalty of termination from service and the manner in which the allegations are made against him and the report of CVO has been utilised against him to terminate such service during the period of purported probation, this Court is of the considered view that the termination is not simpliciter rather punitive in nature. Therefore, the principle of natural justice is required to be adopted and the Opp. Parties have to follow appropriate procedure before taking a decision affecting the Petitioner. Mere asking for an explanation is not sufficient to terminate an employee, when such termination is punitive. 29. This Court is therefore of the considered view on the conspectus of pleadings on record and on careful consideration of rival submission that the order of termination and rejection of appeal treating the Petitioner to be a probationer at the relevant point of time is liable to be quashed. W.P.(C) No.17700 of 2016 Page 11 of 13 Hence termination order dated 13.10.2011 at Annexure-14 so also the rejection order passed by the Appellate Authority dated 16.09.2016 at Annexure-19 are hereby quashed. 29-A. However, considering the gravity of the allegation since it relates to corruption and since this Court’s interferences is primarily on account of the infirmities in the decision making process, in the considered view of this Court this is a fit case to remit the matter to the Opposite Parties granting them liberty to initiate a disciplinary proceeding to establish the complicity of the Petitioner. It is needless to state that the said proceeding shall be in accordance with the rules of such disciplinary proceeding in vogue. The period from the date of termination till the date of reinstatement will be governed on the basis of the outcome of the disciplinary proceeding 29-B. However, it is made clear that the departmental proceeding, if so initiated, shall be concluded within a period of nine months from the date of receipt/production of the copy of the judgment. Failing which the services of the Petitioner from the date of termination till the date of reinstatement shall qualify for consequential service as well as retrial benefits. 30. Keeping in view the ratio of the decision of the Apex Court in the case of Basudeo Tiwary vrs. Sido Kanhu University and others reported in AIR 1998 SC 3261 as regards the entitlement of an employee post his termination being adjudged illegal, the Opposite Parties are directed to reinstate the Petitioner in service within a period of three months from the date of receipt/production of the judgment. W.P.(C) No.17700 of 2016 Page 12 of 13 The Opp. Parties are at liberty to allow the Petitioner to continue in service or to place him under suspension after such reinstatement. 31. The period from termination till reinstatement as aforesaid, Petitioner’s pay shall be notionally fixed and he shall be paid 50% of the basic salary. 32. Accordingly, the Writ Petition stands disposed of. No. costs. ( V.Narasingh ) Judge Orissa High Court, Cuttack, Dated the 30th of May, 2024/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Jul-2024 15:39:27 W.P.(C) No.17700 of 2016 Page 13 of 13