The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36733 of 2023 Gitanjali Barik …. Petitioner Mr. G. Namtor, Advocate State of Orissa and Others -versus- …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 21.12.2023 Order No. 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
“6. There is no dispute with regard to the fact that the petitioner was continuing as an Asst. Teacher by producing a C.T. pass certificate. But, the Block Education Officer, Bonth, pursuant to letter dated 05.11.2019 called upon the petitioner to produce relevant documents on 06.11.2019 and on that basis the Block Education Officer requested the Secretary, Board of Secondary Education, Odisha to verify the genuineness of the C.T. certificate produced by the petitioner. When such process was continuing, on the basis of the allegations made by one Bikash Kumar Dhal, the District Project Coordinator, SSA, Bhadrak, vide letter dated 26.11.2019, requested the Block Education Officer, Bonth to conduct an enquiry into the aforesaid allegation and to take Page 2 of 9 // 3 // appropriate action. But the Principal, District Institute of Education and Training, Agarpara, Bhadrak vide memo dated 28.11.2019 clarified the position that the petitioner has passed the C.T. examination 2003 as a compartmental candidate and serial number of such certificate is 030858 and, as such, the revised mark sheet issued by Board of Secondary Education, Odisha and other relevant documents were also forwarded by the District Institute of Education and Training, Agarpara, Bhadrak. 7. The impugned order indicates that the service of the petitioner has been terminated with immediate effect as per Rule-15 of OCS (CCA) Rules, 1962. On perusal of the provisions contained in Rule-15 of the OCS (CCA) Rules, 1962, it appears that elaborate procedure has been prescribed for imposing penalties of termination from service. As per sub-rule (2) of Rule-15 of Rules, 1962, the disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority but not ordinarily exceeding one month, a written statement of his defence and also to state whether he desires to be heard in person. Sub-rule(3) of Rule-15 of Rules, 1962 prescribes that the government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the public to allow him access thereto. Similarly, for causing inquiry, presenting officer and inquiry officer are to be appointed by the disciplinary authority as per sub- rule(5) of Rule-15. Rule-15(6) and (7) provides examination of witnesses. As per sub-rule 10(b) of the Rule-15, the disciplinary authority is to impose any of the penalties as specified in clauses (vi) to (ix) of Rule-13 of OCS (CCA) Rules, 1962. If such elaborate procedure has been prescribed under imposing major penalty of termination from service vide order impugned in Annexure- 12 dated 16.12.2019, the aforesaid procedures have not been followed and more so there is non-compliance of principles of natural justice. Nothing has been placed on record to elucidate that due procedure has been followed to award the punishment of termination from service. law, while 8. Furthermore, when report was called for from the Board of Secondary Education, Odisha on 11.11.2019 under Annexure-6, whether such report has been received from the Board or not, that has not been placed on record. Therefore, on the basis of mere allegation of an outsider, the action so taken for termination of service of the petitioner without following due procedure, cannot sustain in the eye of law. 9. It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act Page 3 of 9 // 4 // must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 : AIR 1936 PC 253 who stated as under:- "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." The same view has also been taken by the apex Court in Babu Verghese and others v. Bar Council of Kerala & Ors., AIR 1999 SC 1281 at page 1288. In view of detailed procedure envisaged under Rule-15 of the OCS (CCA) Rules, 1962, if the same has not been followed in letter and spirit as to the law discussed above, any action taken in violation of such rules cannot sustain in the eye of law. 10. Apart from the above, the Principal, District Institute of Education and Training, Agarpara, Bhadrak vide memo dated 28.11.2019 addressed to the Block Education Officer, Both with regard to genuineness of the secondary teachers training certificate issued to the petitioner, has specifically clarified that the petitioner having Roll No.02CP002 has passed the C.T. examination, 2003 (Compartmental) and serial no. of certificate is 030858. Consequentially, a revised mark sheet was also issued by the Board of Secondary Education, Odisha. Therefore, there should not have been any doubt about the certificate produced by the petitioner to get into the job as an Asst. Teacher. In such view of the matter, this Court is of the considered opinion that without making any proper inquiry and without ascertaining the correctness of the certificate and also without giving opportunity of hearing to the petitioner, the order so passed in Annexure-12 dated 16.12.2019, is contrary to the provisions of law and violates the principles of natural justice. 11. Lord Reid in Ridge v. Baldwin, (1964) AC 40 : (1963) 2 All ER 66 (HL) very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. 12. In A.K. Kraipak v. Union of India, AIR 1970 SC 150, the apex Court held that the principles of natural justice which are meant to prevent miscarriage of justice are also applicable to domestic enquiries and administrative proceedings. The same view has also been taken by the apex Court in Dr. G. Sarana v. University of Lucknow, AIR1976 SC 2428. 13. In State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669, the apex Court held that ’Natural Justice’ means ’fair play in action’. 14. In Union of India v. E.G. Nambudiri, (1991) 3 SCC 38, the apex Court held as follows: "The purpose of the rules of ’natural justice’ is to prevent miscarriage of justice and it is no more in doubt Page 4 of 9 // 5 // that the principles of natural justice are applicable to administrative orders if such orders affect the rights of a citizen. Arriving at the just decision in the aim of both quasi- judicial as well as administrative enquiry; an unjust decision in administrative enquiry may have more far reaching effect than decision in a quasi-judicial enquiry. Now, there is no doubt that the principles of natural justice are applicable even to administrative enquiries. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions to do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural the administrative authority to record reasons for the decision, as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority, which has no statutory or implied duty to state reasons of the grounds of its decision, is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reason should be given for decision. Though the principles o natural justice do not require reasons for decision, there is necessity for giving reasons in view to enable the citizens to discover the reasonings behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to the right of a citizen, it is therefore desirable that reasons should be stated." justice do not require 4.3. It is also contended that since petitioner was allowed to continue as an Assistant Teacher w.e.f. 1989 till the order of dismissal was passed in the year 2023 and by that time she had already rendered more than 34 years of service, in view of the decision of this Court in the case of Bikash Mahalik vrs. State of Odisha and Others (W.P.C(O.A.) No.923 of 2015) so followed by this Court in its order dated 03.10.2023 in W.P.(C) No.11614 of 2023, no order of termination could have been passed. It is Page 5 of 9 // 6 // accordingly contended that while quashing the impugned order under Annexure-9, petitioner be allowed to continue as usual. 5. To the submissions made by learned counsel for the petitioner, Mr. S. Jena, learned Addl. Govt. Advocate contended that pursuant to the order passed by this Court in Writ Petition Civil No.18752 of 2018, a special drive was made against those teachers, who got the benefit of appointment by producing fake certificate. Since it was found that the petitioner has produced a fake C.T. certificate, petitioner was issued with a show-cause on 30.05.2019 under Annexure-7. Even though the show- cause was duly served on the petitioner, but petitioner never filed her reply. Thereafter, petitioner vide order dated 07.02.2020 was placed under suspension pending initiation of the proceeding. 5.1. It is also contended that w.e.f. 05.11.2019, petitioner is not attending the School nor she submitted her reply to the show-cause so issued under Annexure-7. The authority without having any alternative passed the order of dismissal vide order dated 06.01.2023 under Annexure-9. It is accordingly contended that there is no illegality or irregularity with regard to the impugned order of dismissal, so passed against the petitioner. With regard to the submission of the learned counsel for the petitioner that the petitioner in view of her long continuance, cannot be terminated from her service, learned Addl. Govt. Page 6 of 9 // 7 // Advocate relied on a decision of the Hon’ble Apex Court in the case of Indian Oil Corporation Ltd. Vrs. Rajendra D. Harmalkar, 2022 SCC OnLine SC 486. The view of the Hon’ble Apex Court in Para-29 of the said judgment is reproduced hereunder:- for <29. In the present case, the original writ petitioner was dismissed from service by the the Disciplinary Authority producing the fabricated/fake/forged SSLC. Producing false/fake certificate is a grave misconduct. The question is one of a TRUST. How can an employee who has produced a forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate. Therefore, in our view, in the Disciplinary Authority was from imposing service.= the punishment of dismissal fake and justified 5.2. Learned Addl. Govt. Advocate also relied on another decision of the Hon’ble Apex Court reported in 2022 LiveLaw(SC) 572 in the case of The Chief Executive Officer, Bhilai Steel Plant, Bhilai Vrs. Mahesh Kumar Gonnade and Others. Hon’ble Apex Court in Para-14 of the said judgment has held as follows:- <14. As we notice, the High Court disregarded the Government’s circular dated 11.01.2016 whereby the previous circular (01.10.2011) was cancelled with the specific observation that Milind’s judgment was clarified subsequently in Dattatray, by declaring that when a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the fact, benefit of wrongful appointment. necessary actions were expected to be taken unmerited against appointment on false caste certificate. Pertinently, the respondent no.1 could have (but never did) challenge, the circular dated the basis of those who secured In Page 7 of 9 // 8 // 11.01.2016 which required the Government to cancel such unmerited appointment.= 5.3. Placing reliance on the aforesaid 2 (two) decisions of the Hon’ble Apex Court, learned Addl. Govt. Advocate contended that since petitioner got the benefit of Appointment by producing a fake certificate, she is not eligible and entitled to continue in service and the order of dismissal has been rightly passed. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the petitioner even though was appointed vide order dated 17.03.1989 under Annexure-1, but on the ground that at the time of her appointment, she had produced a fake C.T. certificate, a show-cause was issued to her on 30.05.2019 under Annexure-7. Petitioner after receipt of the said show-cause has not submitted any explanation nor any document to that effect has been enclosed to the Writ Petition. Petitioner thereafter was placed under suspension pending initiation of the proceeding vide office order dated 07.02.2020. 6.1. Since petitioner was a regular employee as per the considered view of this Court, no such order of dismissal could have been passed without initiating a proceeding in terms of the provisions contained under OCS(CCA) Rules, 1962. The stand taken by the State that since petitioner got the benefit of appointment by producing fake certificate and no proceeding is required to be initiated is not acceptable in view of the decision of this Court passed in the case of Biswanath Sethy Vrs. State of Odisha Page 8 of 9 // 9 // and Others. Since admittedly the provisions contained under OCS(CCA) Rules, 1962 has not been followed and petitioner was straight away dismissed from her service vide the impugned order dated 06.05.2023 under Annexure-9, this Court is inclined to quash the said order and quash the same accordingly. 6.2. However, the stand taken by the petitioner that in view of her long continuance, no proceeding can be initiated is not acceptable in view of the decision relied on by the learned Addl. Govt. Advocate in the case of Indian Oil Corporation Ltd. and The Chief Executive Officer, Bhilai Steel Plant, Bhilai as cited (supra). In view of such position, while quashing the order at Annexure-9 this Court dispose of the Writ Petition by permitting the Opp. Party No.3 to initiate a proceeding against the petitioner and to conclude the same in accordance with law, in which case this Court expresses no opinion. 7.
Arguments
2. Heard Mr. G. Namtor, learned counsel for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate for the State. 3. Petitioner has filed the present Writ Petition inter alia challenging order dated 06.05.2023, so passed by the BEO, Banspal-O.P. No.3 under Annexure-9. Vide the said order, petitioner was dismissed from government services w.e.f. 16.01.2023. 4. It is the case of the petitioner that the petitioner was appointed as an Assistant Teacher vide order dated 17.03.1989 under Annexure-1. It is contended that while so continuing and for the first time vide letter dated 30.05.2019 under Annexure-7, petitioner was issued with the show-cause inter alia on the ground that by // 2 // producing a fake certificate from the Board of Secondary Education, Odisha, Cuttack with regard to her C.T. qualification, Petitioner has got the benefit of appointment as an assistant teacher. 4.1. It is contended that subsequent to Annexure-7 and pending initiation of a proceeding, petitioner vide office order dated 07.03.2020 under Annexure-6 was placed under suspension. Thereafter, without initiating any proceeding in terms of the provisions contained under OCS(CCA) Rules, 1962, petitioner was straight away terminated from her services vide impugned order dated 06.05.2023. 4.2. It is contended that since the petitioner was a regular Primary School Teacher without initiating any proceeding in terms of the provisions contained under OCS(CCA) Rules, 1962, no order of termination could have been passed in support of the same. Learned counsel for the Petitioner relied on a decision of this Court passed on 28.01.2021 in W.P.(C) No.26951 of 2019 (Biswanath Sethy Vrs. State of Odisha). This Court in Para-9 to 16 of the said judgment has held as follows:-
Decision
The Writ Petition is disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 03-Jan-2024 11:38:23 Page 9 of 9