Orissa High Court

Afr vs State Of Odisha And Others on 28 January, 2021

                      ORISSA HIGH COURT: CUTTACK

                           W.P.(C) NO. 26951 OF 2019

         In the matter of an application under Articles 226 and 227 of
         the Constitution of India.
                                 ----------

AFR Biswanath Sethi ......... Petitioner

-versus-

         State of Odisha and others                  .........      Opp. Parties

                   For petitioner     : M/s. Bimbisar Dash,
                                        A. Nayak and A.K. Behera,
                                        Advocates.

                  For opp.parties     : Mr. B. Satpathy,
                                        Standing Counsel, S&ME,
                                        (For O.Ps.1 to 6)




         PRESENT:

                  THE HONOURABLE DR. JUSTICE B.R.SARANGI

                     Date of hearing and judgment : 28.01.2021


Dr. B.R.Sarangi, J.                 The petitioner, who was working as an

Assistant Teacher (Level-V, Elementary Cadre) in Aptira

UGME School, has filed this writ petition challenging the

office order dated 16.12.2019 under Annexure-12

terminating his service with immediate effect under Rule-15

of OCS (CCA) Rules, 1962 on the ground of submission of

fake C.T. pass certificate

2. The factual matrix of the case, in hand, is that

after completion of H.S.C. examination conducted by the

Board of Secondary Education, the petitioner took admission

in Secondary Teachers Training School, Agarpada for

prosecuting C.T. course in the year 1999. In July, 2001, he

appeared in all the subjects but could not clear some

papers. In 2002, the petitioner again appeared and cleared

all but eight papers. In October, 2003, the petitioner

appeared in those eight papers and having not come out

successful, he appeared in the compartmental examination

and cleared all the papers. After clearing the Secondary

Teachers' Training Certificate examination, Board of

Secondary Education, Odisha issued necessary certificate in

favour of the petitioner on 30.12.2003. The Secretary,

Board of Secondary Education, Odisha vide letter no.3142

(4781) dated 17.09.2004 sent the provisional certificate-

cum-memorandum of marks of the petitioner to the

Headmaster, S.T. School, Agarpada, Bhadrak. Though there

were some wrong recording of marks by the Board of

Secondary Education, Odisha, after scrutiny, Board of

Secondary Education, Odisha issued revised mark sheet in

favour of the petitioner.

2.1 Thereafter, the petitioner joined as an Asst.

Teacher (Level-V of Elementary Education Cadre) in Aptira

UGME School, Agarpada. While the petitioner continuing as

such, the Block Education Officer, Bonth vide letter dated

05.11.2019 called upon the petitioner to produce all the

testimonials regarding educational qualification by

06.11.2019. In response to the same, the petitioner

submitted all the documents before the Block Education

Officer, Bonth for verification. On 11.11.2019, Block

Education Officer, Bonth requested the Secretary, Board of

Secondary Education, Odisha to verify copy of the C.T.

certificate produced by the petitioner and to confirm about

its genuineness.

2.2 At that point of time, one Bikash Kumar Dhal

alleged that the petitioner submitted fraudulent and forged

C.T. certificate and, as such, the petitioner never passed

C.T. examination from the Board of Secondary Education,

Odisha. Basing upon such allegations, 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 allegations and to take

appropriate action and submit compliance report thereof.

On 27.11.2019, Block Education Officer, Bonth claimed that

the certificate submitted by the petitioner is forged one and

sought explanation from the petitioner to be submitted

within a period of seven days, failing which the higher

authority will be requested to initiate disciplinary action

against him. The Principal, District Institute of Education

and Training, Agarpara, Bhadrak vide memo dated

28.11.2019 clarified the position that the petitioner has

passed C.T. examination in the year 2003 as a

compartmental candidate and the serial number of such

certificate was 030858. 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.

Accordingly, on 02.12.2019 the petitioner submitted his

explanation before the Block Education Officer, Bonth

clarifying that the C.T. certificate received from District

Institute of Education and Training, Agarpada, Bhadrak is

genuine and original. Though the petitioner submitted such

explanation and clarification was given by the Principal,

District Institute of Education and Training, but without

considering the same, the Block Education Officer, Bonth

proceeded with the matter by initiating proceeding against

the petitioner.

2.3 Challenging the above action of the opposite

parties, the petitioner approached this Court by filing

W.P.(C) No.24972 of 2019, which was disposed of vide

order dated 10.12.2019 directing the Block Education

Officer, Bonth to consider the documents submitted by the

petitioner and pass appropriate orders in presence of the

petitioner within a period of four months from the date of

communication/production of the order. In compliance

thereof, the petitioner submitted representation on

16.12.2019 before the District Education, Officer, Bhadrak

and Block Education Officer, Bonth enclosing the order

dated 10.12.2019 passed in W.P.(C) No.24972 of 2019. But,

without considering the documents submitted by the

petitioner and without giving any opportunity of hearing to

him, the Block Education Officer, Bonth vide office order

dated 16.12.2019 terminated the services of the petitioner

with immediate effect under Rule-15 of the OCS (CCA)

Rules, 1962 on the ground of production of fake C.T. pass

certificate. Hence this application.

3. Mr. Bimbisar Dash, learned counsel for the

petitioner contended that while imposing harsh penalty of

termination of service, the procedure as envisaged under

OCS (CCA) Rules, 1962 has not been complied with nor the

petitioner has been given opportunity of hearing while

passing the order of punishment and, more so, no inquiry

has been conducted on the allegations, thereby, the order so

passed in Annexure-12 dated 16.12.2019 terminating the

services of the petitioner cannot sustain in the eye of law.

4. Mr. B. Satpathy, learned Standing Counsel for

School and Mass Education Department referring to the

counter affidavit filed by opposite party no.6 vehemently

contended that since the petitioner has produced fake C.T.

pass certificate to get an employment as an Asst. Teacher

and on verification of documents the same was found to be

forged, action as deemed fit has been taken against the

petitioner. Thereby, the authorities have not committed any

illegality or irregularity in passing the order impugned. It is

further contended that once the petitioner has got

employment by producing fake certificate, if it is detected

that the same is forged one, the authority has got every

right to take action against the petitioner. Therefore, it is

contended that this Court should not interfere with the same

at this stage and, as such, he seeks for dismissal of the writ

petition.

5. This Court heard Mr. Bimbisar Dash, learned

counsel for the petitioner and Mr. B. Satpathy, learned

Standing Counsel for School and Mass Education Department

by virtual mode, and perused the records. Pleadings having

been exchanged, with the consent of learned counsel for the

parties, this writ petition is being disposed of finally at the

stage of admission.

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 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 law, while 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.

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 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, Bonth 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,

AIR 1976 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 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 justice do not require 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."

15. In Suresh Chandra Nanhorya v. Rajendra

Rajak, (2006) 7 SCC 800, the apex Court held that 'Natural

justice' is the essence of fair adjudication, deeply rooted in

tradition and conscience, to be ranked fundamental. The

purpose of following the principles of natural justice is the

prevention of miscarriage of justice.

16. In Sahara India (Firm) v. CIT, (2008) 14

SCC 151 relying upon A.K. Kraipat v. Union of India,

(1969) 2 SCC 262, the apex Court held as follows:

"Rules of 'natural justice' are not embodied rules. The phrase 'natural juice' is also not capable of a precise definition. The underlying principle of 'natural justice', evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries, it implies a duty to act fairly i.e. fair play in action. The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice."

In view of the law laid down by the apex Court, as

discussed above, while passing the order impugned, there is

non-compliance of the principles of natural justice and the

entire action has been taken in gross violation of the

provisions of law and, thereby, the order impugned cannot

sustain.

17. In the counter affidavit filed by opposite party

no.6, the contention raised in paragraph-17(b) of the writ

petition has remained uncontroverted, inasmuch as, no

specific reply has been given with regard to conduct of

inquiry. Rather, reply has been given in paragraph-11 of the

counter affidavit that when the C.T. certificate produced by