Boudharam Guru vs State Of Odisha & Others
2022 Latest Caselaw 4142 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                  WPC(OAC) No.2769 of 2003

     In the matter of an application under Section 19
          of the Administrative Tribunals' Act, 1985.
                         ..................

 Boudharam Guru                       ....                 Petitioner


                               -versus-


 State of Odisha & Others             ....         Opposite Parties


         For Petitioner            :Mr. Dinesh Ku.Panda,
                                    A.K. Mishra-2, R. Das,
                                    Advocate

         For Opp. Parties          :Mr. R.N. Mishra,
                                    Additional Govt. Advocate

  PRESENT:
     THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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 Date of Hearing: 12.7.2022 and Date of Judgment: 24.8.2022
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Biraja Prasanna Satapathy, J.

1. Heard Mr. Dinesh Kumar Panda, learned

counsel appearing for the petitioner and Mr. R.N.

Mishra, learned A.G.A for the State-Opp. Parties.

2. The present writ petition has been filed

challenging the order of punishment passed against // 2 //

the petitioner under Annexure-3 and the confirmation

of the same by the appellate authority in its order

under Annexure-5.

3. It is submitted that while the petitioner was

continuing as a Junior Engineer in Paikmal Block of

Bargarh district, he was issued with a notice on

17.8.2000 under Annexure-1 with a stipulation that it

is proposed to take action against him under Rule 16 of

the OCS(CCA) Rules, 1962. It is submitted that along

with the said show-cause, the petitioner was also

issued with the charges. It is submitted that the

petitioner on receipt of the said show-cause under

Annexure-1 submitted a detailed reply before Opp.

Party No.2 on 26.9.2000 under Annexure-2. It is

submitted that even though in the show-cause under

Annexure-1 it was proposed to take action against the

petitioner under Rule 16 of the OCS(CCA) Rules, 1962,

which contemplates no enquiry and the authority

concerned has to take into consideration the reply

submitted by the delinquent-employee prior to taking a

decision, but the Opp. Party No.2 on receipt of the

reply, passed the impugned order under Annexure-3 on

5.7.2002 wherein the said authority while imposing the

// 3 //

order of punishment relied on a report submitted by

the concerned B.D.O on 14.12.2001. Mr. Panda,

learned counsel appearing for the petitioner submitted

that since the said report dated 14.12.2001 was

submitted and taken into consideration by the

Disciplinary authority-Opp. Party No.2 after

submission of the reply by the petitioner on 26.9.2000,

the said report should have been provided to the

petitioner prior to relying on the same and passing the

impugned order. It is submitted that since the said

report was never supplied to the petitioner and is the

basis of the order of punishment passed under

Annexure-3, it amounts to non-compliance of the

principle of natural justice. Mr. Panda, learned counsel

for the petitioner in support of the aforesaid

submission relied on the decision of the Hon'ble Apex

Court in the case of State of U.P and others v. Saroj

Kumar Sinha reported in AIR 2010 Supreme Court

3131. Paragraph 28 to 30 of the said judgment relied

on by Mr. Panda is quoted hereunder.

28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to

// 4 //

ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."

29. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:

"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."

30. In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.

4. Similarly, Mr. Panda, learned counsel appearing for

the petitioner also relied on a decision of this Court in the

case of Kamalesh Kumar Niranjan V. Union of India

and others reported in 69 (1990) C.L.T 623. This Court

in Para 6 of the said judgment held as follows:

6. It is an established position in law that materials collected behind the back of a person are not to be utilized without giving him a

// 5 //

reasonable opportunity of making submission in that regard. The authorities have denied that they have utilized any such material. However, if the authorities propose to utilize any material which has any bearing on the disciplinary proceeding and the details of which have not been supplied to the petitioner, they shall furnish these to the petitioner before utilization thereof in the proceeding".

5. It is further submitted that on being

communicated with the order of punishment passed under

Annexure-3, the petitioner preferred an appeal before Opp.

Party No.1 under Annexure-4 and in the said memo of

appeal, the petitioner took a specific stand regarding non-

supply of the report dated 14.12.2001, which is the basis

for holding the petitioner guilty of the charges. It is

submitted that the petitioner in the said memo of appeal

also relied on some decisions of the Hon'ble Apex Court in

support of his grounds. But the appellate authority

without assigning any reason whatsoever and without

considering the grounds taken in the memo of appeal

mechanically passed the order under Annexure-5, by

confirming the order of punishment passed by the

Disciplinary Authority. It is submitted that since no reason

whatsoever was assigned by the appellate authority while

confirming the order of punishment in his order under

Annexure-5 and the grounds taken regarding non-supply

// 6 //

of the report of the B.D.O dated 14.12.2001 was never

considered in its proper prospective, the said order is also a

nullity in the eye of law.

6. Mr. Panda, learned counsel appearing for the

petitioner in support of his aforesaid submission relied on a

decision of this Court in the case of Ch. Gobinda Rao V.

Asst. General Manager, State Bank of India and others

reported in 2017 (I) OLR-909. Paragraph 7 to 14 of the

said reported judgment is quoted hereunder.

7. A perusal of the impugned order dated 10.08.2002 (Annexure-11) passed by the disciplinary authority imposing penalty of dismissal from service with immediate effect and treating the suspension period as not on duty, as well as the order dated 04.10.2002 (Annexure-12) of the appellate authority would show that both are cryptic and no reason has been assigned in support of the same. Imposition of such penalty of dismissal from service, being a major one, on receipt of reply from the delinquent, the authority has to give reason why such major penalty has been imposed. The impugned orders, having not contained any reason in support of imposing such major penalty, cannot sustain in the eye of law.

8. In Mahipal Singh Tomar v. State of Uttar Pradsh, 2013 (12) SCALE 304, the apex Court held that in administrative law, the 'rules of natural justice' have traditionally been regarded as comprising 'audi alteram partem' and 'nemo judex in causa sua'. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. This has been used by the Courts for nullifying administrative actions. The premise on which the Courts

// 7 //

extended their jurisdiction against the administrative action was that the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure.

9. In Menaka Gandhi v. Union of India, AIR 1978 SC 597, the apex Court held as follows:

"Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice.

Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be: Does fairness in action demand that an opportunity to be heard should be given to the person affected?"

10. In Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915, the apex Court with regard to assigning reasons held as follows:

"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. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinion or decisions recorded be shown to be manifestly just and reasonable."

11. In Tarachand v. Delhi Municipality, AIR 1977 SC 567, the apex Court held as follows:

"While it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusion arrived at and the recommendations made by the inquiring officer in view of the scheme of the particular enactment or the rules made thereunder, it would be laying a proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case has to be judged in the light of its own facts and circumstances."

Similar view has also been taken by this Court in Chandramohan Singh v. Chairman, Orissa State

// 8 //

Handloom Development Corporation Ltd., 2017 (I) OLR

251.

12. Franz Schubert said:

" Reason is nothing but analysis of belief."

In Black's Law Dictionary, 5th Edition 'reason' has been defined as:

"faculty of the mind by which it distinguishes truth from falsehood good from evil, and which enables the possessor to deduce inferences from facts or from prepositions."

13. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. The requirement of giving reasons is based on sound principles. The requirement is intended to achieve the following objects and laudable purposes:

In the first instance, the requirement to give reasons ensures application of mind to the material, for, how does one give reasons for an order unless one applied one's mind to the material which it is called upon to consider.

Secondly, it incorporates a built-in safeguard against arbitrariness in the exercise of power. It immediately introduces an element or rationality into an executive decision-making process. The requirement makes the authority pause for a moment and articulate for itself why it was making the order. It feels that it is answerable for its order and the validity of the order would be tested at the touch-stone or reasoning, rationality and logic.

Thirdly, it makes any further examination or review in appeal or other proceedings before courts more meaningful and effective. It enables all subsequent authorities dealing with the matter to know how the mind of the authority, which made the order, was functioning; what is it that appealed to it when it made the order and how it dealt with the objections as to why the order should or should not be made.

Lastly, it is intended to inform the person aggrieved, if an individual, or if it involves wider rights, interest, freedoms the public in general, as to why the action has been taken. This requirement would be particularly important where there remains a superadded requirement of publication in a Gazette. Such an order has to meet the larger public gaze. The authority in such cases is answerable to the people in general because the nature of the order is such

// 9 //

that all of them must be informed as to what order has been made and why it has been made.

14. In view of the law discussed above, applying the same to the present fact, it appears that the impugned orders in Annexure-11 and 12 passed by the disciplinary authority, as well as the appellate authority, having been passed without reasons, the same cannot sustain in the eye of law. Accordingly, the same are hereby quashed. The matter is remitted back to the disciplinary authority to consider and pass a reasoned order in accordance with law by affording reasonable opportunity of hearing to the petitioner. Needless to say that it is a year old case, the authority shall do well to dispose of the matter by passing a reasoned order as expeditiously as possible.

7. Mr. Panda further submitted that even though in

the counter, a stand has been taken that in a proceeding

initiated under Rule 16 of the OCS(CCA) Rules, 1962, no

enquiry is required to be made and the Disciplinary

Authority is to take a decision considering the reply

submitted by the delinquent- employee, but Mr. Panda,

learned counsel appearing for the petitioner submitted that

the said proposition of law cannot be made applicable to

each and every case. Mr. Panda in support of his aforesaid

submission also relied on a decision of the Hon'ble Apex

Court in the case of Food Corporation of India,

Hyderabad & Others Vs. A. Prahallad Rao and Another

reported in 2001 Supreme Court Cases (L&S) 186.

Hon'ble Apex Court in the said decision, in Para 5 has held

as under.

5. In our view, on the basis of the allegation that Food Corporation of India is misusing its power of imposing minor

// 10 //

penalties, the Regulation cannot be interpreted contrary to its language. Regulation 60(1)(b) mandates the disciplinary authority to form its opinion whether it is necessary to hold enquiry in a particular case or not. But that would not mean that in all cases where employee disputes his liability, a full-fledged enquiry should be held. Otherwise, the entire purpose of incorporating summary procedure for imposing minor penalties would be frustrated. If the discretion given under Regulation 60(1)(b) is misused or is exercised in arbitrary manner, it is open to the employee to challenge the same before the appropriate forum. It is for the disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. This discretion cannot be curtailed by interpretation which is contrary to the language used.

a. Further, Regulation 60(2) itself provides that in a case if it is proposed to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to employee and in such other cases as mentioned therein, the disciplinary authority shall hold enquiry in the manner laid down in Regulation 58 before making any order imposing any such penalty. Hence, it is apparent that b. High Court erroneously interpreted the regulation by holding that once the employee denies the charge, it is incumbent upon the authority to conduct enquiry contemplated for imposing major penalty. It also erred in holding that where employee denies that loss is caused to the Corporation either by his negligence or breach of order, such enquiry should be held. It is settled law that Courts power of judicial review in such cases is limited and Court can interfere where the authority c. held the enquiry proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry and imposing punishment or where the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached. As per the Regulation, holding of regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by d. considering the facts of each case and if it is misused or used arbitrarily, it would be subject to judicial review.

8. Mr. Panda, learned counsel appearing for the

petitioner making all these submissions submitted that

the impugned order of punishment passed under

Annexure-3 and confirmed by the appellate authority

// 11 //

under Annexure-5 are liable to be declared as illegal by

this Court.

9. Mr. R.N. Mishra, learned Additional Government

Advocate appearing for the State-Opp. Parties while

supporting the impugned orders on the other hand

submitted that since the proceeding as reflected in

Annexure-1 was initiated under Rule 16 of the OCS(CCA)

Rules, 1962, the Departmental authority is only required

to take a decision after going through the reply submitted

by the delinquent-employee. Since the same has been

followed in the present case, no illegality has been

committed by the Disciplinary authority in holding the

petitioner guilty of the charges. Mr. Mishra, learned A.G.A

further submitted that the appellate authority after going

through the grounds taken in the appeal rightly confirmed

the order of punishment passed under Annexure-3 vide

his order under Annexure-5. Accordingly, Mr. Mishra,

learned A.G.A submitted that no illegality or irregularity

has been committed either by the Disciplinary authority or

by the appellate authority while passing the impugned

order under Annexures-3 & 5 respectively.

10. Heard learned counsel for the parties. Perused the

materials available on record.

// 12 //

11. This Court after going through the same finds that

the petitioner issued with the show-cause on 17.8.2000

under Annexure-1 and in the said notice, it was clearly

indicated that the Disciplinary Authority is to proceed

under Rule 16 of the OCS(CCA) Rules, 1962. This Court

further finds that on receipt of the said show-cause, the

petitioner submitted his reply on 26.9.2000 under

Annexure-2 by explaining in detail to each of the charges

framed against him. But this Court finds that the

Disciplinary Authority passed the impugned order by

relying on the report submitted by the concerned B.D.O on

14.12.2001. The said report from the pleadings available,

was never supplied to the petitioner and thereby enabling

him to submit his views against the said report. The

Disciplinary authority without providing the report should

not have accepted the same and used the same against the

petitioner. The decision relied on by Mr. Panda, learned

counsel for the Petitioner in that regard in AIR 2010 S.C

3131 & 69 (1990) CLT 623 (supra) supports his stand.

This Court further finds that the petitioner in his appeal

has taken a specific stand that the report dated

14.12.2001 was never supplied to the petitioner and hence

it should not have been used against the petitioner. But

// 13 //

the appellate authority without taking into account the

said stand, passed the order under Annexur-5 by

confirming the order of punishment. This Court finds that

no reason whatsoever has been assigned by the appellate

authority while confirming the order of punishment. Since

no reason has been assigned by the appellate authority for

upholding the order of punishment, the decision cited by

Mr. Panda, learned counsel appearing for the petitioner in

2017 (I) OLR 909 also supports his stand.

12. Considering the submission of the learned A.G.A

that in a proceeding initiated under Rule 16 of the

OCS(CCA) Rules, 1962, no enquiry is required to be made,

but in view of the decision relied on by Mr. Panda in 2001

SCC (L & S) 186, the said stand of the learned Additional

Government Advocate cannot be treated a straight jacket

formula. Each case has to be decided on its own merit

and taking into account the materials available on record

and the points raised by the parties. Since in the reply

under Annexure-2, the petitioner submitted various

communications/orders issued by the authorities

concerned, this Court finds that the Disciplinary authority

should have caused an enquiry prior to passing the order

of punishment under Annexure-3. Therefore, in view of the

// 14 //

aforesaid analysis, this Court is of the view that the

Disciplinary Authority as well as the appellate authority

have not applied their mind prior to passing the impugned

order under Annexures-3 & 5.

13. Since the petitioner is a retired employee and the

order of recovery is stayed vide order dated 1.10.2003, this

Court is not ready and willing to accept the submission

made by the learned Additional Government Advocate to

remand the matter to the Disciplinary Authority for fresh

adjudication. Therefore, this Court has got no hesitation

in quashing both the orders under Annexures-3 & 5 and

while quashing the same, this Court directs the Opposite

Parties to extend all admissible dues as due and proper in

favour of the petitioner within a period of three months

from the date of receipt of this order.

14. The Writ Petition is allowed.

15. There shall be no order as to costs.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 24th of August, 2022/sangita