(An application under Articles 226 & 227 of the Constitution of India.) Srikanta Gadtya v. State of Odisha and others
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Dec-2024 17:06:06 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19855 of 2022 (An application under Articles 226 & 227 of the Constitution of India.) Srikanta Gadtya …… Petitioner Versus State of Odisha and others …... Opposite Parties Advocate(s) appeared in this case :- For Petitioner For Opposite Parties : :
Legal Reasoning
Mr.U.K.Samal, Advocate Mr.G.Tripathy, AGA CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 29th November 2024 B.P. Routray,J. 1. Heard Mr.Samal, learned counsel for the Petitioner and Mr.Tripathy, learned Additional Government Advocate for the State. 2. The Petitioner was initially engaged on 4th September 2017 as Programme Assistant (Social Security) at Loisinga Block under SSEPD Department through outsourcing basis (Annexure-1). During his continuance as such, he was found with some financial irregularities and transferred immediately to Bangomunda Block. Thereafter the Petitioner was asked to deposit an amount of Rs.99,000/- and he deposited the said W.P.(C) No.19855 of 2022 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Dec-2024 17:06:06 amount. Subsequently, his order of disengagement was issued on 28th July 2022 under Annxure-1, which is the subject matter of challenge in present writ application. 3. It is submitted by Mr.Samal that such disengagement of the Petitioner in the impugned order without following due procedure of initiating disciplinary proceeding against him is illegal and arbitrary. He further submits that the impugned order, being punitive in nature, demands adequate opportunity of hearing in terms of Article 311 of the Constitution of India. He further submits that the Petitioner being engaged for discharge of Government duty is entitled for all such precautions meant in respect of Government service. 4. The State has filed its counter admitting the facts of engagement of the Petitioner through outsourcing basis and his disengagement consequent upon irregularities committed by him. As seen from record, the Petitioner was initially issued with a show-cause notice dated 5th July 2022 and 14th July 2022 under Annexure-5 and 9 respectively. In reply to said show cause notices, the Petitioner submitted his explanation under Annexure-6 & 10 respectively after depositing a sum of Rs.99,000/- on 8th July 2022. 5. It is stated by the Petitioner in show cause reply that he did not have any intentional negligence and in ignorance he disbursed the pension in favour of some deceased beneficiaries. The authorities upon consideration of his explanation, being found the same unsatisfactory, disengaged the Petitioner on 28th July 2022. 6. What is submitted on behalf of the Petitioner that initiation of disciplinary proceeding is mandatory to grant adequate opportunity of hearing to the petitioner before his disengagement, is a contention devoid W.P.(C) No.19855 of 2022 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Dec-2024 17:06:06 of merit and without substance for the reason that the Petitioner was engaged through outsourcing. 7. Mr.Samal, learned counsel for the Petitioner draws support from the decisions of the Hon’ble Supreme Court in Swati Priyadarshini vrs. State of Madhya Pradesh and others, 2024 SCC OnLine SC 2139, and Canara Bank and others vrs. Debasis Das and others, (2003) 4 SCC 557. 8. In Canara Bank (supra), the facts of the case was regarding dismissal of an employee of the bank and in that case the regulations governing the employees of the bank demands specific procedure for disciplinary action. In Swati Priyadarshini (supra), the Petitioner was appointed in the post of Assistant Project Coordinator on contract basis. As stated above, the facts of the above cited case are different from the facts of the present case and as such are of no help to the Petitioner. However, it is important here to reproduce the observation of Hon’ble Supreme Court in the case of Canara Bank. At para-19 & 21 of said decision, Hon’ble Supreme Court has observed as follows: “19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. xxx xxx xxx 21. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing W.P.(C) No.19855 of 2022 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Dec-2024 17:06:06 the principles of natural justice in judicial process, including therein quasi- judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is “nemo judex in causa sua” or “nemo debet esse judex in propria causa sua” as stated in Earl of Derby's case that is, “no man shall be a judge in his own cause”. Coke used the form “aliquis non debet esse judex in propria causa, quia non potest esse judex et pars” (Co. Litt. 1418), that is, “no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party”. The form “nemo potest esse simul actor et judex”, that is, “no one can be at once suitor and judge” is also at times used. The second rule is “audi alteram partem”, that is, “hear the other side”. At times and particularly in continental countries, the form “audietur et altera pars” is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely “qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit” that is, “he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right” [see Boswel's case (Co Rep at p. 52-a)] or in other words, as it is now expressed, “justice should not only be done but should manifestly be seen to be done”. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon (sic open). All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.” 9. In the instant case, the Petitioner was admittedly engaged through outsourcing agency, namely M/s L&K Services (O.P.No.7). Such financial irregularities committed by the Petitioner while acting as Programme Assistant in Loisingha Block is admitted. The Petitioner never denies such fact in his explanation, rather deposited the amount as directed to him by the authorities. As stated in the counter affidavit, the Petitioner when immediately transferred to another block i.e. Bangomunda Block, he did not join there and remained absent unauthorizedly till the date of disengagement. The show cause notices issued to the Petitioner asking him to explain his reasons for commission of such irregularity and submission of explanation of the Petitioner under Annexure-6 & 10 in addition to deposit of the alleged money, do satisfy the compliance of requirement of nature of justice of granting opportunity of hearing in the W.P.(C) No.19855 of 2022 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Dec-2024 17:06:06 present case. The submission of the Petitioner that the authorities were required to proceed for disciplinary action is not warranted in the present facts of the case particularly when the Petitioner was engaged through outsourcing. It is not the case of the Petitioner that the conditions of engagement by outsourcing demand disciplinary action before disengagement. The agreement of engagement of the Petitioner through outsourcing being not allegedly violated while disengaging the Petitioner, no case is made out in favour of the Petitioner to challenge the order of disengagement. 10.
Decision
In the result, the writ petition is dismissed being devoid of merit. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.19855 of 2022 Page 5 of 5