Orissa High Court

Dr. Saumya Darsan Mohanty vs State Of Odisha & Ors on 16 August, 2021

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              W.P.(C) No.18561 of 2021


            Dr. Saumya Darsan Mohanty              ....            Petitioner
                                                             Mr. D.N. Rath,
                                                                  Advocate
                                        -versus-
            State of Odisha & Ors.                 ....     Opposite Parties
                                                          Mr. R.N. Mishra,
                                             Addl. Govt. Adv. for the O.P.1
                                                           Mr. A.P. Bose,
                                                    Advocate for the O.P.2
                                                       Mr. T.K. Satapathy,
                                                    Advocate for the O.P.3


                      CORAM:
                      JUSTICE BISWANATH RATH
                                      ORDER

16.08.2021 Order No.

04. 1. For the factual background involved in this case, the case

involved can be decided on the basis of documents appearing as

counter and on consent of the parties, this Court does not find any

requirement of counter at the instance of the State. This Court,

therefore, proceeds to decide the matter finally only hearing the

learned counsel for the Petitioner and the learned counsel for the

contesting Opposite Parties herein.

2. This writ petition involves the following prayer:

// 2 //

"Under the above circumstance, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ. Direction or order by quashing the order passed by the opposite party no.2 vide Annexure-7 and 9 to the writ application since such orders have been passed, illegally, arbitrary, whimsically and in an pre- determined mind without affording opportunity of hearing to the petitioner and without following the principle of natural justice.

And this Hon'ble Court be pleased direct the opposite parties to allow the petitioner to discharge his duty as usual in the institution.

And this Hon'ble Court be pleased to pass any further order/ orders, direction/ directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case."

3. Drawing the attention of this Court to the factual background

of the case Mr. Rath, learned counsel for the Petitioner submitted

that the notice of show cause involving the charge vide Annexure-5

issued giving 48 hours time for filing response to such charge,

remains improper. It is, hereby, submitted by Mr. Rath, learned

counsel that finding difficulty to file response to such notice vide

Annexure-5 the Petitioner, however, made request to the Institution

involved in question on 5.01.2021 for granting at least two weeks

time to file his response pursuant to the notice vide Annexure-5.

Taking this Court to the decision of the Institution vide Annexure-7,

// 3 //

Mr. Rath, learned counsel for the Petitioner submitted that at one

hand in allowing the application at the instance of the Petitioner vide

Annexure-6 the authority while granting time to the Petitioner to file

show cause, in the same order also passed release of the Petitioner

from service, but however, disclosing therein that such release order

shall be subject to the scrutiny of the response to be filed by the

Petitioner. It further appears, in the meantime the Petitioner has

already filed his response vide Annexure-8.

4. It is, in the above background of the matter, Mr. Rath,

learned counsel for the Petitioner drawing the attention of this Court

to the decision of the Hon'ble apex Court in the case of Chhel Singh

Vrs. M.G.B. Gramin Bank as reported in (2014)13 SCC 166, a

decision of this Court in the case of BDN Food Products Vrs. State

of Odisha and Ors. in W.P.(C) No.17276 of 2021 decided on

5.07.2021, again a decision of this Court in the case of Uttam

Kumar Samanta Vrs. KIIT University as reported in 2014 (Supp.II)

OLR 852 involving W.P.(C) No.17171 of 2011 decided on

29.09.2014 taking support of rulings through the above judgment,

attempted to justify the challenge of the Petitioner to the order vide

Annexure-5.

// 4 //

5. In his first attempt, Mr. Bose, learned counsel for the

Opposite Party No.2 taking this Court to the status of the Institution

involved herein challenged the maintainability of the writ petition

under the premises that since the institution involved herein is in the

nature of private, no writ petition against such Institution is

maintainable. Further, taking this Court to the conditions in the

agreement Mr. Bose, learned counsel, however, made it clear that

there cannot be any dispute that the Institution involved herein is not

only imparting education and discharging public duties, but the

Institution is also recognized under the provisions of the AICTE Act

and an Institution under the aid and advise of the B.P.U.T. Mr. Bose,

learned counsel for the Opposite Party No.2 next taking this Court to

the condition at clause 13 at page 21 of the brief, also attempted to

challenge the stand taken by the Petitioner in the writ petition on the

premises that for the specific condition imposed therein, the parties

are bound by such condition and the Petitioner being a probationer

can be fired without requirement of any notice or compliances. It is,

in the circumstance and further taking this Court to the averments

made in the counter affidavit at the instance of the Opposite Party

No.2, Mr. Bose, learned counsel prayed this Court for dismissal of

// 5 //

the writ petition. Mr. Bose, learned counsel fairly submitted that in

the event this Court interferes in the order at Annexures-7 & 9, then

there cannot be complete exoneration of the Petitioner and the matter

should go back at least to the stage of consideration of his response.

6. On the question of maintainability of the writ petition, this

Court finds, undisputedly the Opposite Party No.2 is not only

imparting education, but thereby also discharging public duty.

Further, it not only functions within the frame work of the AICTE

functioning under a Central Act, but is also being controlled by the

B.P.U.T which again functions under a State Act. It is, at this stage

of the matter, keeping in view a previous decision of this Court on

the maintainability of the writ petition involving such Institution

more particularly involving violation of fundamental rights

particularly taking away service without compliance of natural

justice, decided in the case of Uttam Kumar Samanta Vrs. KIIT

University on 29.09.2014 as reported in 2014 (Supp.II) OLR 852

and also taking into consideration the role of an Educational

Institution in the society and the Institution being recognized under

the All India Council For Technical Education i.e. a statutory

authority and is also being completely under the control of the

// 6 //

statutory body i.e. Biju Patnaik University of Technology, Odisha in

short B.P.U.T, this Court finds, the Institution at hand has no escape

from the rigor of providing natural justice so far as service dispute

involving its employees is concerned. The decision indicated

hereinabove also takes care of the position of the parties i.e.

particularly the employee and the Institution involved therein vis-à-

vis an employee in the status of probationer. Particularly considering

a case of probationer, if requires natural justice in connection with

his service dispute through paragraph no.25 therein, the Court has

come to observe as follows:

"25. Now, coming to answer on point no. ii, facts, as borne out demonstrate that the university initiated an in-house enquiry against the petitioner and the said in-

house committee admittedly holding an enquiry behind the back of the petitioner appears to have arrived against the petitioner, vide Annexure-C/1 recommended the authority not to extend the petitioner's probation and KIIT authority claims that it is only depending on such recommendation the authority passed order dismissing the petitioner from his services vide order under Annexure-4. Since enquiry ended with a stigma and the impugned order of dismissal was passed going away from the recommendation of the in-house committee and considering the fact that petitioner was a probationer compliance of natural justice was the minimum requirement. Law is well settled vide MANU/SC/0101/1999 : AIR 1999 S.C. 983, MANU/SC/0155/2000 : decisions of our own High Court referred to in paras N and O holding that termination in case of a probationer also requires

// 7 //

compliance of principle of natural justice and the same having not been followed the order of termination vide Annexure-4 cannot be sustained. There is gross violation of rights under Articles 14, 16 and 19 of the Constitution of India. In MANU / SC / 0546 / 2010 : (2010) 8 SCC 220 in para-43, the Hon'ble Apex Court has made it clear that finding against a probationer arrived at behind him which found to be the basis of discharge order such discharge order can only be passed after following principle of natural justice. A similar view is also taken by the Hon'ble Apex Court as reported in AIR MANU/SC/0167/1989 : 1989 S.C. 1461 at para-4 of the said judgment the Hon'ble Apex Court held that there cannot be a termination before the reason for termination is being communicated to the concerned employee.

In a land mark judgment the Hon'ble Apex Court as reported in MANU/SC/0133/1978 : AIR 1978 S.C. 597 in Paras 56 and 57 observed as follows:-

"The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be inconformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."

"The principle of audi alteram partem which mandates that no one shall be condemned unheard is part of the rules of Natural Justice."

Under the above facts, rulings and in view of settled law that there cannot be a termination/ dismissal order in absence of non-compliance of principle of natural justice. Thus, point no. ii is also answered against the opposite party University holding the action of the University in terminating the services of the petitioner

// 8 //

in absence of compliance of Natural Justice as bad and unsustainable.

7. It is, needless to mention here that above view of this Court

is also based on the decision of the Hon'ble Apex Court. Further

similar view of the Single Bench of the Madras High Court has also

been approved by the Hon'ble Apex Court in the case of Dr. Janat

Jayapal Vrs. S.R.M. University in C.A. No.14553 of 2015 decided

on 15.12.2015. It is, in this view of the matter, this Court observes,

the dispute so far it relates to termination of an employee is

concerned, can be challenged by way of petition under Article 226

of the Constitution of India and is very much maintainable. For the

decision of this Court at paragraph no.25 of the judgment in Uttam

Kumar Samanta (supra) also covering the case at hand, this Court

finds, the stand of the University on the premise of the status of the

employee being a probationer, is also covered by the aforesaid

judgment.

8. Now coming to the validity of the impugned order at

Annexure-6 and looking to the communication vide Annexure-5

being issued on 3rd June, 2021 at page 25 of the brief, this Court

finds, in the said communication the authority has observed that

// 9 //

there exists enough evidence to take appropriate action against the

Petitioner, it is deemed appropriate to offer the Petitioner an

opportunity to show cause in writing. This Court in considering the

issue on the maintainability of the show cause notice with clear

indication of the fact that the authority already comes to the view in

holding the employee guilty as it involved a predetermined issue and

in the circumstance, no purpose will be served in either issuing any

notice of this nature or even giving any response to it, in deciding

the case involving BDN Food Products Vs. State of Odisha and

Ors. involving W.P.(C) No.17276 of 2021, finds, the show cause

notice with predetermination on the action to be taken since involves

a prejudged action, is per se not maintainable. This decision also

gets support of the Hon'ble Apex Court's decisions. Consequent

upon such request of the Petitioner, it appears, again in issuing the

communication dated 5th June, 2021 vide Annexure-7 the authority

again directed as follows:

"1. Further to your reply dated 05 Jun.2021 to the show cause issued to you on 03 Jun. 2021, your request to grant you a duration of two weeks to enable you to gather documents / evidence has been considered and granted.

2. However, you are to treat this mail as a release order. Your services with RITE will stand terminated on 05 Jul. 2021, on completion of one month from the

// 10 //

date of issue of this release order, subject to your satisfactory and justifiable response to the show cause on or before 17 Jun. 2021;

3. The Institution will consider revoking this release order only upon your adherence to the code of conduct in the interest of the institution and, matter as stated in para 2, above."

On reading of the above communication vide Annexure-7,

this Court finds strange in the attitude of an Educational Institution.

This Court is of the opinion that once a party is provided with

opportunity to show cause, there was no question of passing release

order at the same time by way of penalty. This Court disapproves

such order. It is, at this stage of the matter, considering the response

of the learned counsel involved herein, this Court finds, for the

support of law to the case of the Petitioner the direction at para-2 of

the order vide Annexure-7 is not sustainable in the eye of law and as

a consequence, this Court declares, the order particularly in para-2

therein vide Annexure-7 so far as passing of the release order

involving the Petitioner therein is concerned, is not sustainable in the