The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SarikaPurohit W.P.(C)No.35322of 2021 …. Petitioner Mr. Pravat Kumar Muduli, Advocate along with Mr. IpsitAurobindo Acharya, Advocate -versus- State of Odishaand another …. Opposite Parties Mr. Sailaza Nandan Das, ASC CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 04.09.2024 Order No. 05. This matter is taken up through Hybrid Mode. 2. Questioning the propriety of order dated 02.11.2021 issued by the Collector and Chairperson, District Child Protection Unit (for short “the DPCU”), Balangir vide Annexure-5, whereby the performance of the petitioner being recorded as “not proficient” thereby the contract with her was discontinued, the petitioner has approached this Courtby way of filing this writ petition craving to invoke extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India with the following prayer(s): “It is, therefore, humbly prayed that in the circumstances stated above, this Hon‟ble Court may graciously be pleased to admit the Writ Petition, issue a Rule Nisi in the nature of Mandamus and/or any other appropriate Writ/Writs calling upon the Opp. Parties to show cause as to why: (1) The letter dated 02.11.2021 issued by the Opposite Party No.2 vide Annexure-5 shall not be quashed; Page 1 of 31 (2) The Opposite Parties shall not be directed to allow the Petitioner to continue as „Social Worker‟ in terms of the appointment order and its renewal; And, if the Opposite Parties fail to show cause or show false/insufficient cause, make the said Rule absolute; And, pass such other Order/Orders, as this Hon‟ble Court may deem fit, just and proper in the facts and circumstances of the present case; And, for this act of kindness, the petitioner shall remain duty bound ever pray.” 3. Facts as adumbrated in the writ petition reveal that in response to advertisement for the post of Social Worker in the District Child Protection Unit (“DCPU”) (which is constituted in terms of Section 62A as inserted by virtue of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 by the State Government), Balangir, the petitioner applied and faced interview on 03.01.2023 and was engaged videLetter dated 08.02.2013. 3.1. Since the date of engagement, she has been continuously discharging her assigned duty.The authorities being satisfied, the contractual assignment has been extended from time to time and the last of such contract was extended videLetter dated 30.08.2019 (Annexure-4), whereby the term was specified with effect from 01.05.2019 to expire on 30.04.2022 under DPCU, Balangir. 3.2. It is alleged by the petitioner that the husband of the District Child Protection Officer, Balangir (DCPO), the DCPU, Balangir, who was usually visitor to the office during the office hours embarrassed her while the DCPO is absent from her official Page 2 of 31 chamber. Objection being raised, complaint against the petitioner got triggered. 3.3. It is submitted that though the allegation was against husband of the DCPO, she has been involved in preparation submission of Performance Appraisal Report of the petitioner. It is apparent from the documents furnished along with counter affidavit that show-cause notices have been issued by the DCPO by counter alleging misconduct and misbehaviour of the petitioner. 3.4. The Collector & Chairperson, DCPU, Balangir passed an order dated 02.11.2021 on the basis of Performance Appraisal Report for the year 2020-21 submitted by the DCPO.The Chairperson, DCPU recorded finding vide impugned Order that the petitioner was “found to be not proficient by the authority”.The findings being alleged to be tainted by the petitioner, tenability of Order dated 02.11.2021 is questioned. 4.
Legal Reasoning
Officer, Balangir, this Court ex facie finds that when the petitioner has made complaints against husband of the DCPO, the said DCPO should not have submitted Performance Appraisal Report to the Collector and the DCPO ought not to have involved herself in the process. 6.1. A document enclosed at Annexure-H/2 to the counter affidavit which is a letter of the petitioner addressed to the Collector-cum-DCPU, Balangir on 09.04.2021 reflects as follows: “That I am to inform the authority that the husband of the DCPO, DCPU, Balangir was repeatedly coming to this office at office hour and he was sitting in the chamber of DCPO and the DCPO without having any reason was calling me to her chamber and during that time the DCPO was leaving her chamber. But her husband was present and try to make unnecessary talks with me for no reason. I was avoiding all these things. Hence the DCPO was annoyed with me and try to harass me. The matter of concern Page 9 of 31 that at office hour we few staff were in the DCPU Office. So the husband of the DCPO was creating disturbance in Office hours.” 6.2. Notwithstanding such attack was made against her husband, the DCPO had issued show cause notice on 30.04.2021 (Annexure- I/2 to the counter affidavit). This Court takes cognizance of the fact that even as the Order of the Collector & Chairperson, DCPU is under challenge, before this Court though DCPO is not made party to the present proceeding, whereas the State of Odisha, Principal Secretary, Department of Women and Child Development, Bhubaneswar and Collector as Chairperson, District Child Protection Unit, Balangir are made parties, it is not understood as to why Smt. Laxmi Singh, working as District Child Protection Officer, DCPU, Balangir has sworn to the affidavit on behalf of the opposite party No.2. 6.3. The Collector and Chairperson, DCPU, Balangir has passed the following impugned order: Office of the Collector and District Magistrate, Balangir (District Child Protection Unit) ______________________________________________________ In front of Collectorate, Balangir, Phone no-06652-231886, Mail Id-dcpo.balangir,[email protected] Order No.934/DCPU/2021/Balangir Date-02/11/2021 As per the performance appraisal report for the year 2020- 2021, the performance of Smt. SarikaPurohit, Social Worker of the DCPU, Balangir is found to be not proficient by the authority. As such her contract for further period is not renewed. Hence, she is Page 10 of 31 relieved of her duties from the DCPU, Balangir with immediate effect. Sd/- Collector & Chairperson, DCPU, Balangir” 6.4. As is revealed from the aforesaid order that the Collector and Chairperson, DCPU, Balangir has not applied his conscientious mind and failed to assign reasons for his conclusion that the petitioner was found to be “not proficient”. 6.5. “Reason”, being heartbeat of every decision making process, it has been restated in Nareshbhai Bhagubhai Vrs. Union of India, (2019) 15 SCC 1 as follows: “In Kranti Associates (P) Ltd.Vrs. Masood Ahmed Khan, (2010) 9 SCC 496 this Court held that: “12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court inA.K. KraipakVrs. Union of India, (1969) 2 SCC 262. *** 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. Page 11 of 31 (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) (i) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision- making justifying the principle that reason is the soul of justice. Judicial or even quasi-judicial opinions these days can be as different as the Judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. Page 12 of 31 (k) (l) (m) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber- stamp reasons” is not to be equated with a valid decision-making process. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the Judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. [See David Shapiro in “Defence of Judicial Candor”, (1987) 100 Harvard Law Review 731-37]. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision- making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz TorijaVrs. Spain, (1994) 19 EHRR 553, EHRR, at p. 562 para 29 and AnyaVrs. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of the European Convention of Human Rights which requires,„adequate and intelligent reasons must be given for judicial decisions‟. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.” 6.6. Conceding the position that giving reasons facilitates the detection of errors of law by the Court, this Court in Santosh Kumar Paikray Vrs. State of Odisha, 2016 (II) OLR 1131 (Ori) Page 13 of 31 discussed importance of assignment of reason in the following lines: “8. The meaning of the expression „reason‟ as stated by Franz Schubert: „reason is nothing but analysis of belief.‟ In Black‟s Law Dictionary, 5th Edition, „reason‟ has been defined as: „a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts and from propositions.‟ In other words, reason means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. The importance of giving reason, it reveals a rational nexus between facts considered and conclusions reached. In Union of India Vrs. Madal Lal Capoor, AIR 1974 SC 87 and Uma Charan Vrs. State of MP, AIR 1981 SC 1915, the Apex Court held reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. The fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi-judicial or administrative. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record Page 14 of 31 9. and it is vital for the purpose of showing a person that he is receiving justice.” 6.7. In Canara Bank Vrs. Debasis Das, (2003) 2 SCR 968, it has been enunciated with regard to principles of natural as follows: “Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory" can be pressed into service. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration. of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. The expressions „natural justice‟;, and „legal justice‟ do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form Page 15 of 31 or procedure should ever be permitted to exclude the presentation of a litigants‟ defence. The adherence to principles of natural justice as recognized by allcivilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the ·first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for thepurpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the „Magna Carta‟. The classic exposition of Sir Edward Coke of natural justice requires to „vocate interrogate and adjudicate‟. In the celebrated case of Cooper Vrs. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated: „Even God did not pass a sentence upon Adam, before he was called upon to make his defence. „Adam‟ says God, „where art Page 16 of 31 thou has thou not eaten of the tree whereof I commanded thee that though should not eat‟. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. Jn General Council of Medical Education & Registration of UK. Vrs. Sanckman, (1943) AC 627 = (1948) 2 All ER 337, Lord Wright observed that it was not desirable to attempt „to force it into any procrustean bed‟ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give „a full and fair opportunity‟ to every party of beingheard. Lord Wright referred to the leading cases on. the subject. The most important of them is the Board of Education Vrs. Rice, (1911) AC 179 = 80 LJKB 796, where Lord Loreburn, L.C. observed as follows: Page 17 of 31 „Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari‟. Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Selbourne, LO in Spackman Vrs. Plumsiead District Board of Page 18 of 31 Works, (1985) 10 AC 229 = 54 LJMC 81 ), where the learned and noble Lord Chancellor observed as follows: „No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice‟. Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done'. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressed 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 Page 19 of 31 should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work 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. 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. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura, (1855) 2 Macg. 1.8, Lord Cran worth defined it as „universal justice‟. In James Dunber Smith v. Her Majesty the Queen, (1877- 78) 3 App. Case 614, 623 JC Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works, (1884-85(10) App. Case 229, 240), Earl of Selbourne, S.C. preferred the phrase „the substantial requirement of justice‟. In Vionet Vrs. Barrett, (1885 (55) LJRD 39, 41), Lord Esher, MR defined natural justice as „the natural sense of what is right and wrong‟. While, however, deciding Hookings Vrs. Smethwick Local Board of Health, (1890 (24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet‟s case (supra) chose to define natural justice as „fundamental justice‟. In Ridge Vrs. Baldwin, 1963 (I) WB 569, 578, Page 20 of 31 Harman LJ, in the Court of Appeal countered natural justice with „fair-play in action‟ a phrase favoured by Bhagawati, J. in Maneka Gandhi Vrs. Union of India, (1978) 2 SCR 621). In re R.N. (An Infant) 1967 (2) B617, 530, Lord Parker, CJ, preferred to describe natural justice as „a duty to act fairly‟. In fairmount Investments Ltd. Vrs. Secretary to State for Environment, (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as „a fair crack of the whip‟ while Geoffrey Lane, LJ. in Regina Vrs. Secretary of State for Home Affairs Ex Parle Hosenball, (1977 (1) WLR 766) preferred the homely phrase „common fairness‟. 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 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 (1605) 12 Co.Rep.114 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 at 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 Page 21 of 31 „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 at 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 in audita alteram act quam licet dixerit, haud acquum facerit‟ 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 Bosewell‟s case (1605) 6 Co.Rep. 48-b, 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. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. What is known as „useless formality theory‟ has received consideration of this Court in M.C. Mehta Vrs. Union of India, (1999) 6 SCC 237. It was observed as under: „Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant Page 22 of 31 is not one of „real substance‟ or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch Vrs. Aberdeen Corpn: (1971) 2 All ER 1278, I-IL) (per Lord Reid and Lord Wilberforce), Glynn Vrs. Keele University: (1971) 2 A.II ER 89; Cinnamond Vrs. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R Vrs. Ealing Magistrates‟ Court, ex p. Fannaran (1996 (8) Admn. LR 35 I, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be „demonstrable beyond doubt‟ that the result would have been different. Lord Woolf in Lloyd Vrs. McMohan, (1987) (I) All ER 1118: CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy Vrs. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is „real likelihood-not certainty of prejudice‟. On the other hand, Garner Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge Vrs. Baldwin (1964 AC 40 = ( 1963) 2 All ER66, I- IL), Mcgarry, J. in John Vrs. Rees (1969) (2) All ER 274) stating that there are always „open and shut cases‟ and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J Page 23 of 31 has said that the. „useless .formality theory‟ is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that „convenience and justice are often not on speaking terms‟. More recently, Lord Bingham has deprecated the „useless formality theory‟ in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton ( 1990 IRLR 344) by giving six reasons (see also his article „Should Public Law Remedies be Discretionary?‟ 1991 PL. p.64). A detailed and emphatic criticism of the „useless formality theory‟ has been made much earlier in „Natural Justice, Substance or Shadow‟ by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real Page 24 of 31 likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their „discretion‟, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364, Rajendra Singh Vrs. State of MP., (1996) 5 SCC 460 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. We do not propose to express any opinion on the correctness or otherwise of the „useless formality theory‟ and leave the matter for decision in an appropriate case, inasmuch as the case before us, „admitted and indisputable‟ facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J.‟ As was observed by this Court we need not go into „useless formality theory‟ in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a Page 25 of 31 case, this Court may refuse to exercise said jurisdiction (see Gadde Venkateswara Rao Vrs. Govt. of A.P. and Ors., AIR 1966 SC 828. It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the Appellate Authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing. (See Charan Lal Sahu Vrs. Union of India etc., AIR 1990 SC 1480. Additionally there was no material placed by the employee to show as to how he has been prejudiced. Though in all cases the post-decisional hearing cannot be a substitute for pre-decisional hearing, in the case at hand the position is different. The position was illuminatingly stated by this Court in Managing Director, ECIL, Hyderabad and Ors. Vrs. B. Karunakara and Ors., (1993) 4 sec 727 at para 31 which reads as follows: „Hence, in all cases where the enquiry officer‟s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of Page 26 of 31 punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide Page 27 of 31 according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.‟ The position was again reiterated in Union Bank of India Vrs. Vishwa Mohan, (1998) 4 SCC 310 at page 314). The relevant para 9 reads as follows: „We are totally in disagreement with the above-quoted reasoning of the High Comt. The distinction sought to be drawn by the High Court that the first charge-sheet served on the respondent related to the period when he was a clerk whereas the other three charge-sheets related to the period when he was promoted as a bank officer. In the present case, we are required to see the findings of the enquiry authority, the order of the Disciplinary Authority as well as the order of the Appellate Authority since the High Court felt that the charges levelled against the respondent after he was promoted as an officer were not of a serious nature. A bare look at these charges would unmistakably indicate that they relate to misconduct of a serious nature. The High Court also committed an error when it assumed that when the respondent was promoted as a bank officer, he must be having a good repo1i Page 28 of 31 otherwise he would not have been promoted. This finding is totally unsustainable because the various acts of misconduct came to the knowledge of the Bank in the year 1989 and thereafter the first charge-sheet was issued on 17.02.1989. The respondent was promoted as a bank officer sometime in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed by the Bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High Court that in the facts and circumstances of the case „it is difficult to apply the principle of severability as the charges are so inextricably mixed up‟. If one reads the four charge-sheets, they all relate to the serious misconduct which includes taking bribe, failure to protect the interests of Bank, failure to perform duties with utmost devotion, diligence, integrity and honesty, acting in a manner unbecoming of a bank officer etc. In our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be applied in the present case. The finding in this behalf is unsustainable. As stated earlier, the appellant had in his possession the enquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing of the report would have made any difference to the result in the case and Page 29 of 31 thereupon pass an appropriate order. In para 31, this Court in Managing Director, ECIL has very rightly cautioned: (SCC p. 758) „The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts‟.***” 10. It seems from the record that the enquiry report has never been confronted to the petitioner by the Collector and Chairperson before taking action vide order dated 02.11.2021. It is manifest that vide order dated 30.08.2019, the Collector & Chairperson, DCPU, Balangir has renewed the period of contract entered into with the petitioner from 01.05.2019 to 30.04.2022. Without having appreciated such order and having not borne in mind such aspect, he fell in flagrant error by making observation in the impugned order that “her contract for further period is not renewed”. In order to discontinue with the contract, the authority was required to adhere to modalities contained in the contract. 11. The very finding that she was found to be “not proficient” is not countenanced by any plausible reason and from the documents enclosed to the counter affidavit which is sworn to by DCPO, who is not party to the writ proceeding, it is unequivocal that the Collector has been accessing enquiry reports against the petitioner. Without discussing the contents and without confronting the adverse material to the petitioner, the stigmatic finding recorded in the impugned order is vulnerable and deprecated. Utilisation of Page 30 of 31 incriminating material against the petitioner to her detriment leads to civil consequences. It is by now well settled that material collected behind the back of the person and utilised to her detriment offends the principles of natural justice. Therefore, the order dated 02.11.2021 is not sustainable in the eye of law. 12. This Court is inclined to exercise the power of judicial review and the impugned order dated 02.11.2021 in Annexure-5
Arguments
Mr. Pravat Kumar Muduli, learned counsel appearing for the petitioner submitted that the order dated 02.11.2021 passed by the Collector & Chairperson, DCPU, Balangirvide Annexure-5 is untenable in the eye of law. Inasmuch as no adverse report was ever confronted to the petitioner. He further submitted that the material being collected behind the back of the petitioner, such untested material could not be utilised. 4.1. The finding recorded by the Collector & Chairperson, DCPU that the petitioner was not found “to be not proficient” could not be sustained as such fact was rendered without affording proper Page 3 of 31 opportunity of being heard. Therefore, such stigmatic observation is liable to be deleted. 4.2. Referring to para-19 of the judgment of the Hon’ble Supreme Court in U.P. State Road Transport Corporation & others Vrs. Brijesh Kumar and another, 2024 INSC 638, he submitted that in absence of supply of report containing adverse material, recording of finding becomes stigmatic in nature and doing so would be violative of principles of natural justice. 4.3. He also referred to paragraphs 32, 33 and 34 of the judgment of the Hon’ble Supreme Court in Swati Priyadarshini vs. The State of Madhya Pradesh and others, 2024 INSC 620, which is extracted hereinbelow:- “32. Perusal of Clause 4 makes it clear that ordinarily, for inefficiency, one month‟s notice is sufficient. The Clause also makes it clear that if someone is found to have indulged in “undesirable activities”, the Mission Director was competent to terminate such person‟s services “with immediate effect”. We are afraid that the Respondents have placed themselves in a Catch-2 (Colloquially, when one is placed in a dilemma due to two contradictory conditions. The phrase was popularized by Joseph Heller‟s novel of the same name, first published in 1961) situation. If the order dated 30.03.2013 falls within the former part of Clause 4, as contended by the respondent, on the premise that it is a case of termination simpliciter and non-stigmatic, then one month‟s notice was required to be issued to the appellant, which admittedly was not done in the instant matter. Arguendo, were the order dated 30.03.2013 to be seen as falling under the latter part of Clause 4, it would be stigmatic, as made clear by the use of the words “indulged in undesirable activities amounting to degradation of dignity of Mission”. Page 4 of 31 33. In either of the above-noted eventualities, the Impugned Judgment would have to necessarily be set aside. Nevertheless, let us examine the reasoning of the Division Bench, which opined that the order is non-stigmatic and simpliciter non-renewal of contract. The order dated 30.03.2013 was, quite obviously, the culmination of the process set into motion by the two SCNs, which has been overlooked by the Division Bench. The mere non-mention of the background situation or the SCNs in the order dated 30.03.2013 cannot, by itself, be determinative of the nature of the order. As held by this Court in Samsher Singh Vrs State of Punjab, (1974) 2 SCC 831— The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. — and Anoop Jaiswal Vrs. Government of India, (1984) 2 SCC 369— It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. — the form of an order is not its final determinant and the Court can find out the real reason and true character behind terminating/removing an employee. Moreover, the Impugned Judgment also does not deal with Clause4. Interestingly, this Clause also escaped the attention of or/and was not brought to the notice of the learned Single Judge either. 34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra Vrs. Union of India, 1957 SCC OnLine SC 5: Page 5 of 31 the In either of (1955) 1 SCR 26. the misconduct, negligence, “28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand Vrs. Union of India, (1953) 1 SCC 420 = (1953) SCR 655. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in ShyamLal Vrs. State of Uttar Pradesh, two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh Vrs. Union of India, LR 58 Bom 673 = AIR (1956) Bom 455 wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other Page 6 of 31 than terminated otherwise disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under that although indicate form in Page 7 of 31 terminated the Government has the terms of the contract of employment or under the rules, in truth and reality the employment as and by way of penalty. The use of the expression “terminate” or “discharge” is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.” 4.4. Learned counsel for the petitioner submitted that the order dated 02.11.2021 of the Collector & Chairperson, DCPU, Balangir has no sanctity in law inasmuch as the authority has passed such order unaware of the fact that the contract has already been in vogue and renewed since 2019 retaining its validity till 30.04.2022. 5. Mr. Sailaza Nandan Das, learned Additional Standing Counsel appearing for the State-opposite parties refuting the allegations submitted that the DCPO had afforded opportunities calling upon the petitioner to submit reply. While submitting the Performance Appraisal Report to the Collector, she has taken into consideration misdemeanour and misconduct of the petitioner and apprised the Collector and Chairperson, DCPU, Balangir. Page 8 of 31 5.1. He further submitted that the Sub-Collector, Balangir has submitted joint enquiry report on 08.07.2021 pursuant to which the Collector, finding the petitioner “to be not proficient”, directed for non-renewal of contract. 6. Heard Sri Pravat Kumar Muduli, learned Advocate for the petitioner and Sri Sailaza Nandan Das, learned Additional Standing Counsel and considered rival contentions and submissions. Considering the contentions and averments contained in the writ petition and having gone through the contents of counter affidavit filed on behalf of opposite party no.2-District Child Protection
Decision
does warrant indulgence. In the result, the writ petition succeeds. As a sequel to the aforesaid discussions, the Order dated 02.11.2021 of the Collector and Chairperson, DCPU, Balangir is set aside and he is directed to take a decision afresh without being influenced by the observation made in the impugned order, which in the opinion of this Court is stigmatic. 13. Needless to say that by now the renewed period of contract, i.e., from 01.05.2019 to 30.04.2022 has long since expired. 14. With the aforesaid observations and directions, the writ petition stands disposed of. Laxmikant Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Sep-2024 21:00:36 (M.S. Raman) Judge Page 31 of 31