The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. WPC (OA) No.352 OF 2018 Purna Chandra Baghar …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. N. Rath, Advocate For Opp. Parties :M/s. S. Rath, Additional Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 02.07.2024 and Date of Judgment: 02.07.2024 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- // 2 // “(i) To quash the corrigendum dated 10.03.2017 issued by the B.D.O., Ullunda declaring the same to be illegal, unconstitutional and nonest in the eye of law and further be pleased to direct the respondents to implement the order of appointment dated 12.04.2016 in respect of the applicant by granting him all consequential service and financial benefits within a stipulated period by the Hon’ble Tribunal”. 4. Learned counsel for the Petitioner contended that basing on the advertisement issued by Opposite Party No.4 on 03.03.2016 under Annexure-5, Petitioner duly participated in the selection process. 4.1. It is contended that on coming out successful, Petitioner was appointed as a Choukidar-cum-Sweeper with regular scale of pay vide order of appointment issued on 12.04.2016 under Annexure-6. Not only that after being so appointed on regular basis vide office order dtd.04.08.2016 under Annexure-7, Petitioner was sanctioned with GIAs advance. However, without issuing any prior notice and without following the principle of natural justice, the order of appointment issued on regular basis vide order dtd. 12.04.2016 under Annexure-6, was converted to a contractual one vide the impugned order dtd.10.03.2017 under Annexure-8. 4.2. It is further contended that after treating the petitioner as a contractual employee vide the impugned order, Opposite Party No.4 vide his letter dtd.18.07.2017 under Annexure-9 and subsequent letter dtd. 28.07.2017 under Annexure-10, moved the Opposite Party Nos.1 and Page 2 of 12 // 3 // 2 seeking clarification with regard to appointment of the Petitioner as Choukidar-cum-Sweeper on regular basis. 4.3. Learned counsel for the Petitioner contended that since Petitioner basing on the advertisement issued under Annexure-5 faced the selection process with regard to his appointment as against the post of Choukidar-cum- Sweeper and Petitioner on coming out successful, was appointed on regular basis with regular scale of pay vide order of appointment issued on 12.04.2016 under Annexure-6, the same could not have been converted to a contractual one vide the impugned order dtd.10.03.2017 under Annexure-8 without issuing any prior show cause and without following the principle of natural justice. With regard to non-compliance of the principle of natural justice, learned counsel for the Petitioner relied on the decisions of 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. 4.4. 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:- Page 3 of 12 // 4 // 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 giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is 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 - 1978 on 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 ? January, Kanoon Indian 25 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 Page 4 of 12 // 5 // 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 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 Page 5 of 12 // 6 // 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 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. Page 6 of 12 // 7 // 4.5. 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 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 Page 7 of 12 // 8 // 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 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. 4.6. 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 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. 4.7. 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:- Page 8 of 12 // 9 // 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 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”. Page 9 of 12 // 10 // 4.8. It is accordingly contended that the impugned order is not sustainable in the eye of law and it requires interference of this Court.
Legal Reasoning
5. Mr. S. Rath, learned Addl. Standing Counsel for the State on the other hand while supporting the impugned order made his submissions basing on the stand taken in the counter affidavit. 5.1. It is contended that since by the time Petitioner in terms of Annexure-5 was appointed vide order of appointment issued on 12.04.2016, the provisions contained under the Orissa Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 had already come into existence with publication of the same in the Odisha Gazette on 12.11.2013, Petitioner’s appointment made on regular basis vide Annexure-6 was wrongly made and it was accordingly converted to a contractual one vide the impugned order dtd.10.03.2017 under Annexure-8. 5.2. It is accordingly contended that since Petitioner by the time he was issued with the order of appointment under Annexure-6, the aforesaid 2013 rule was already notified with its publication in the Gazette, no wrong can be found with the action of the Opposite Party No.4 in issuing the order under Annexure-8, making the appointment as a contractual one. Page 10 of 12 // 11 // 5.3. It is also contended that since the Petitioner’s services was treated as a contractual one vide order dtd.10.03.2017 under Annexure-8, Petitioner in the meantime must have been regularized on completion of six years of engagement on contractual basis and in view of the provisions contained under the Repealed Provision. 6. To the submissions made by the learned counsel for the State, learned counsel for the Petitioner contended that he has no instruction as to whether Petitioner in the meantime has been regularized after issuance of the impugned order under Annexure-8. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was appointed vide order of appointment issued on 12.04.2016 under Annexure-6, basing on the advertisement issued by Opposite Party No.4 on 03.03.2016 under Annexure-5. In the advertisement issued under Annexure-5, nothing was indicated that the selectee will be appointed on contractual basis. As found from order dtd.12.04.2016 under Annexure-6, Petitioner was appointed on regular basis with regular scale of pay. But after providing the Petitioner with such appointment, appointment of the Petitioner was treated to have been made on contractual basis vide the impugned order dtd.10.03.2017 under Annexure-8. In the counter so filed by the Opposite Party Page 11 of 12 // 12 // Nos.2 and 4, no document has been filed showing that prior to taking such a decision, Petitioner was provided with an opportunity of hearing. 7.1. Therefore, placing reliance on the decisions as cited (supra), this Court is of the view that the impugned order since has been passed without following the principle of natural justice, the said order cannot sustain in the eye of law. Therefore, this Court is inclined to quash the Office Order dtd.10.03.2017 so issued by Opposite Party No.4 under Annexure-8. While quashing the same, this Court upheld the order passed by the self-same Opposite Party No.4 on 12.04.2016 under Annexure-6.
Decision
8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 2nd July, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jul-2024 12:32:39 Page 12 of 12