Orissa High Court
Harekrushna Behera vs Deputy Registrar on 11 August, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 9690 OF 2015
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
Harekrushna Behera ..... Petitioner
-Versus-
Deputy Registrar, Odisha
Administrative Tribunal,
Cuttack Bench, Cuttack
and others ..... Opp. Parties
For petitioner : M/s. Dayanidhi Lenka, P.P. Rout,
B.N. Lenka and S. Mahunta
Advocates.
For opp. parties : M/s. S.N. Nayak,
Addl. Standing Counsel
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 08.08.2023:: Date of Judgment: 11.08.2023
DR. B.R. SARANGI, J. The petitioner, who was working as Grama
Rakshi in Hatabadra Outpost under Rairangpur Police
Station in the district of Mayurbhanj, has filed this writ
petition seeking to quash the order dated 27.10.2014
passed by the Odisha Administrative Tribunal, Cuttack
Bench, Cuttack in O.A. No. 1301 (C) of 2003 under
Annexure-10, by which the order of discharge/termination
of the petitioner passed by the authority was confirmed.
2. The factual matrix of the case, in a nutshell, is
that the petitioner was engaged as a Grama Rakshi in the
year 1995 for more than one beat, i.e., Sunapoly, Neujoda
and Gopalpur under Rairangpur Police Station in the
district of Mayurbhanj. While he was discharging his duty
as such, he was called upon by the Superintendent Police,
Mayurbhanj, vide Annexure-1, to explain as to why he shall
not be dismissed from service having been involved in
Rairangpur P.S. (Rural) Case No.99/01. Pursuant to the
said notice, the petitioner filed his explanation on
08.03.2002 vide Annexure-2 refuting the allegations. He
specifically denied his involvement in the incident and inter
alia requested not to terminate him from service in absence
of any enquiry. He also submitted that he has been falsely
implicated in the said case by some interested persons
alleging that the petitioner had assisted the accused
persons in committing the crime. He further contended that
the allegations made against the petitioner in criminal case
are false and fabricated, and that at the instance of
opposite party no.5-Officer-in-Charge, Rairangpur Police
Station (Rural), he has been falsely implicated in the said
case.
2.1 According to the petitioner, on 25.10.2001, while
he was on his beat at Neujoda, he found some persons were
holding meeting to perform "Sri Laxmi Puja" in a disputed
land. Apprehending disturbance in the village, he
immediately came to the Hatabadra Outpost and reported
the matter and also made a note in his "Note Khata". The
A.S.I., Hatabadra Outpost was not in favour of such report
and got annoyed and at his instance the petitioner was
implicated in the case despite of such report. On the basis
of an F.I.R. filed by one Gellamani Singh of village Neujoda,
the investigation of the case was taken up by opposite party
No.6 and the same was sent to the O.I.C., Rairangpur (R)
Police Station for registration. Thereafter, the petitioner was
released on bail by executing P.R. Bond. The allegation in
the F.I.R. was that the petitioner had abated the offences
and instigated the villagers to take the law into their hands.
Therefore, Rairangpur P.S. Case No.66 of 2001 was
registered for alleged commission of offence under Sections
143/147/148/323/427/506/109/149 IPC. After
completion of investigation, charge sheet was filed.
2.2 While the matter was subjudice before the
appropriate Court and the trial of the said case was to be
commenced, the Superintendent of Police, Mayurbhanj,
vide his order no.222 dated 25.7.2002, communicated the
petitioner vide memo no.3504/A dated 27.07.2002, that his
service is terminated/discharged on the ground that the
explanation submitted by the petitioner was found
unsatisfactory. Against such order of termination/
discharge dated 25.07.2002, the petitioner preferred an
appeal before opposite party no.3 on the plea of non-
compliance of the principle of natural justice. But the said
appeal was rejected and the order of rejection was
communicated vide MBJ DO No.4 dated 10.01.2003.
Therefore, the petitioner approached the Odisha
Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No. 1301 (C) of 2003. But the order dated 25.7.2002 passed
by the authority terminating/discharging the petitioner
from service was affirmed by the Tribunal in the impugned
order dated 27.10.2014 under Annexure-10. Hence, this
writ petition.
3. Mr. D.N. Lenka, learned counsel appearing for
the petitioner vehemently contended before this Court that
discharge/termination of the service of the petitioner
without conducting regular inquiry and without affording
opportunity of being heard cannot be sustained in the eye
of law and, as such, while terminating/discharging the
petitioner from service, the statutory provisions available
under the Odisha Gram Rakshi Act, 1967 have not been
followed. Even the appellate authority mechanically has
rejected the same without application of mind. Also the
Tribunal, without scrutinizing the judgment of learned
S.D.J.M., Rairangpur in G.R. Case No.420/2001 and T.C.
No. 83/2002, wherein the learned Magistrate has come to a
finding that the prosecution miserably failed to prove his
case against the accused persons beyond all reasonable
doubt, declined to interfere with the impugned order of
termination/disengagement of the petitioner. Therefore, the
observation of the Tribunal is against the judicial
pronouncement of the fact finding court. Thereby, the
Tribunal has committed a gross error apparent on the face
of the record. Consequentially, he seeks interference of this
Court.
3.1 He further contended that Section-7 of the
Odisha Grama Rakshi Act, 1967 deals with the provision of
punishment of Grama Rakshis for negligence in duties.
Sub-Section (2) of Section-7 of the Act provides, when the
appointing authority passes an order suspending, fining, or
dismissing any Gram Rakshi under Sub-Section (1) he shall
record such order with the reason therefor and note of the
enquiry in writing and no such order shall be passed unless
the Grama Rakshi concerned has been given an
opportunity of being heard in his defence. Thereby, since no
opportunity of hearing was given to the petitioner, while
discharging/terminating the services of the petitioner, in
compliance to the provisions of the Act and the Tribunal
has failed to take note of such provision and come to an
erroneous conclusion that there was compliance of the
principles of natural justice, the order impugned passed by
the Tribunal cannot be sustained and is liable to be set
aside.
3.2 To substantiate his contention, learned counsel
for the petitioner has placed reliance on Karunakar
Khandapani v. State of Orissa, 2015 (II) OLR 26;
Dolamani Bishi v. State of Odisha, 2020 (II) OLR 950;
Niranjan Nayak v. State of Orissa, 2007 (II) OLR 197;
Khem Chand v. Union of India, AIR 1958 SC 300; State
of Orissa v. Dr. Binapani Dei, AIR 1967 SC 1269; State
of Tamil Nadu v. S. Subramanium, AIR 1996 SC 1232;
S.L. Kapoor v. Jagmohan, AIR 1981 SC 136; Fazal Bhai
Dhala v. Custodian-General of Evacuee Property, Delhi,
AIR 1961 SC 1397; and State of Assam v. Shri Kanak
Chandra Dutta, AIR 1967 SC 884.
4. Per contra, Mr. S.N. Nayak, learned Addl.
Standing Counsel appearing for the State-opposite parties
contended that the petitioner, while discharging his duty
under Rairangpur Rural Police Station, was involved in
Rairangpur Rural P.S. Case No.66 dated 25.10.2001 for
commission of offence under Sections 143/ 147/ 148/
323/ 427/ 506/ 109/ 149 I.P.C. (S.R. Case No. 399/01).
He was called upon to explain as to why he shall not be
discharged from Grama Rakshi post. He submitted his
explanation on 08.03.2002 contending that he has been
falsely implicated in the case. But, after due investigation in
Rairangpur P.S. Case No.66/2001, evidence was well made
out against him and the case was charge sheeted vide
charge sheet no. 04 dated 13.01.2002 under Sections 143/
147/ 148/ 323/ 427/ 506/ 109/149 I.P.C. Therefore, he
was discharged/terminated from service on 25.07.2002, as
his explanation was found unsatisfactory. Even in appeal,
the same was also made confirmed. According to him, while
discharging/terminating the service of the petitioner,
opportunity of hearing was given to the petitioner.
Therefore, the same is well justified. He further contended
that since the petitioner was discharging the duty of Grama
Rakhsi and is not the holder of civil post, the claim made by
him cannot be sustained in the eye of law. To substantiate
his contention, reliance has been placed on Union of India
v. P. Gunasekharan, (2015) 2 SCC 610.
5. This Court heard Mr. D.N. Lenka, learned
counsel appearing for the petitioner and Mr. S.N. Nayak,
learned Addl. Standing Counsel appearing for the State in
hybrid mode and perused the records. Pleadings have been
exchanged between the parties and with the consent of
learned counsel for the parties, the writ petition is being
disposed of finally at the stage of admission.
6. On the basis of the pleadings available on record
and the arguments advanced by learned counsel for the
parties, the following issues are formulated for the purpose
of effective adjudication of this case:-
(i) Whether Grama Rakshi is the holder of a civil
post and consequentially at the instance of the
petitioner the Tribunal was well justified in
entertaining the Original Application or not?
(ii) If the aforesaid question is answered in
affirmative, then it is to be decided whether while
discharging/terminating the service of the
petitioner, the principles of natural justice have
been complied with by giving him opportunity of
hearing or not?
Issue No.(i)
7. In course of hearing, this Court, vide order dated
18.04.2022, passed the following orders:-
"This matter is taken up through hybrid
mode.
2. Mr. S.N. Nayak, learned Additional Standing
Counsel seeks time to obtain instructions whether
Grama Rakhi is the holder of a civil post in view of
the judgment of this Court in case of Niranjan
Nayak Vrs. State of Orissa and Others : 2007
(II) OLR 197 and, as such, the said judgment has
been referred to larger Bench for consideration or
not.
3. Put up this matter after two weeks."
8. In Shri Kanak Chandra Dutta (supra), the
Constitution Bench of the apex Court, while considering the
case of Mauzadar in the Assam Valley, who was dismissed
from office without complying with the provisions of Article
311(2) of the Constitution and the High Court had allowed
his writ petition on the ground that he held a civil post
under the State of Assam and was entitled to the protection
of the Article, held as follows:-
"In the light of the system of recruitment,
employment and functions, a Mauzadar is a
servant and the holder of a civil post, under the
State, entitled to the protection of the Article. A civil
post means a post not connected with the defence
and outside the regular civil services. It is an office
or a position to which duties in connection with
the affairs of the State are attached. It is under
the administrative control of the State but need
not necessarily carry "a definite rate of pay" and
may involve only part-time employment. A person
holding the post is a person serving or employed
under the State. The existence of the relationship
of master and servant between the State and a
person holding a post under it, is indicated by the
State's right to select and appoint the holder of
the post, its right to suspend and dismiss him., its
right to control the manner and method of his doing
the work and the payment by it of his wages or
remuneration. Such a relationship may be
established by -the presence of all or some of these
indicia in conjunction with other circumstances,
and its existence is a question of fact in each case.
Under the Mauzadari system of collecting revenue,
prevailing in the Assam Valley, the revenue charge
of a Mauza and the responsibility for the whole
revenue of it, in the first instance, rest with the
Mauzadar. Originally he may have been a revenue
farmer and an independent contractor but under
the existing system, he is subordinate public
servant working under the supervision and control
of the Deputy Commissioner. He is a Revenue
Officer and ex-officio Assistant Settlement Officer
exercising delegated powers of Government, and
the State has the power and the right to select
and appoint him and the power to suspend and
dismiss him. Though he may not be a whole-time
employee and receives by way of remuneration
a commission on his collections and sometimes a
salary he holds an office on the revenue side of the
administration to which specific and onerous
duties in connection with the affairs of the State
are attached."
Accordingly, the apex Court held that 'Mauzadar' is the
holder of a civil post.
9. Applying the aforesaid analogy, it is to be seen
whether 'Grama Rakshi' is the holder of a civil post or not.
Under the Odisha Grama Rakshi Rules, 1969, so far as the
post of 'Grama Rakshi' is concerned, it prima facie means
an appointment or office in the civil side of the
administration as distinguished from a post under the
defence force. All persons who hold any post under the
administrative control of the Union or the State hold a civil
post for discharge of public duties. The expression is wide
enough to include all such employees whether permanent
or temporary or on probation or on officiating basis.
10. The Odisha Grama Rakshi Act, 1967 and Odisha
Grama Rakshi Rules, 1969 govern the conditions of service
of Grama Rakshis. Sections 4 and 5 in particular of the
aforesaid Act envisage the provision of administration and
control of Grama Rakshis and appointment of Grama
Rakshis respectively. The power of administration and
control of the Grama Rakshis within a district is vested
with the District Magistrate subject to the control and
direction of the Revenue Divisional Commissioner. The
Magistrate of the District may appoint, within his
jurisdiction, persons as Grama Rakshis having prescribed
qualification or delegate his power to the Superintendent of
Police of the District with approval of the Revenue
Divisional Commissioner. From the above it reveals that
Grama Rakshi posts are under the administrative control of
the District Magistrate and the Grama Rakshi post is a civil
post.
11. The expression "civil post" prima facie means an
appointment or office in the civil side of the administration
as distinguished from a post under the defence force. The
only persons who are excluded from the purview of Article
311(1) are:-
"(i) members of defence service;
(ii) persons holding a post connected with defence
but not police officers.
All persons who hold any post under the
administrative control of the Union or State hold a
civil post for discharge of public duties. The
expression is wide enough to include all such
employees whether permanent or temporary, or on
probation or on officiating basis."
12. In order to provide for the regulation of Grama
Rakshi in the State of Odisha following the abolition of the
Chowkidary system and the reported defects in the working
of the Beat constable system, the need for setting up of a
suitable village administrative agency to help in
maintenance of law and order and certain other
administrative functions at the village level was keenly felt
and with this object in view, it was considered necessary to
introduce the Grama Rakshi Scheme. Section 3 deals with
constitution of Grama Rakshi Force, Section-4 deals with
administrative control of Grama Rakshis, Section-5 deals
with appointment of Grama Rakshis, Section-6 deals with
power and duties of Grama Rakshis, Section-7 deals with
punishment for Grama Rakshis, neglect of duties, etc.,
Section-8 deals with Grama Rakshis to be public servant,
Section-9 deals with the power to make rules.
13. In exercise of powers conferred by Sub-sections
(1) and (2) of Section 9 of the Act, 1967, the State
Government, made the Rules called the Odisha Grama
Rakshi Rules, 1969. Chapter-I of the said Rules deals with
Constitution of Grama Rakshi Force (Rule 3-5). Chapter-II
of the Rules deals with eligibility for Appointment or
Retention (Rule 6). Chapter-III of the rules deals with
manner of selection and appointment (Rules 7-13).
Chapter-IV of the Rules deals with pay and allowances
(Rule 14). Chapter-V of the Rules deals with condition of
service (Rule 15). Chapter -VI of the Rules deals with duties
and responsibility (Rules 16-23). Chapter-VII of the Rules
deals with DISCIPLINE (Rules 24 and 25). Chapter-VIII of
the Rules deals with rewards (Rule 26), where as Rule 27
deals with executive instruction.
14. In view of the statutory provisions mentioned above,
the 'Grama Rakshis' specified in Section -8 of the Act, shall be
deemed to be public servant within the meaning of Section 21 of
the Indian Penal Code, 1860.
"Section-21 of Indian Penal Code reads as follows:-
"Public Servant":- the words "public servant"
denote a person falling under any of the
descriptions here in after following, namely ;
xxx xxx xxx
Seventh- Every person holds any office by virtue of
which he is empowered to place or keep any
person in confinement. (Corresponding Rules-17 of
Rules, 1969).
Eight -- Every officer of the Govt. whose duty it is,
as such , to prevent offences, to give information of
offences, to bring offenders to justice, or to protect
of public health, safety or convenience.
(Corresponding Rules-18-23 of the Rules, 1969)
Twelfth- Every person-
(a) in the service or pay of the Government or
remunerated by fees or commission for the
performance of any public duty by the Government.
(Corresponding Rule- 14, Chapter-IV Pay and
Allowances of the Odisha Grama Rakshi Rules)."
Therefore, under the provisions of the Odisha Grama Rakshi
Act, 1967, every Grama Rakshi shall exercise and discharge the
powers and duties as enumerated under Section 6 of the Act,
which includes information on unnatural, suspicious or sudden
death, every offence specified in the schedule, all disputes which
are likely to lead to a riot or serious affray, to the best of his
ability to prevent and interpose for the purpose of preventing the
commission of any offence, making such arrest and to report
such arrest to the OIC, to observe all the movements of bad
character and also of the arrival of any suspicious character, to
report the births and deaths which have occurred within his
jurisdiction, to supply any local information to the Magistrate of
the District, SDO or any Police Officer may require, to assist
Revenue Officer, Gram Panchayat in making collection of taxes
levied by the Gram Panchayat and of dues payable to the Govt.,
to assist the Police Officer in investigation of the offences and in
identification of witnesses, persons summoned by a court and
persons against whom warrant of arrest by a court, to report
immediately any damage to any protected monument or public
property , to regulate and control the traffic in the streets and to
prevent obstruction therein, to take care of govt. land, orchards,
trees and other govt. property entrusted to him and exercise and
perform such other powers and duties as may be prescribed.
15. The provisions contained in Chapters-II, III, IV, V &
VI of the Odisha Grama Rakshi Rules, 1969 envisage the
method of selection and appointment, dismissal from service,
pay and allowances, condition of service, duties and
responsibilities. Whereas Rules 24 and 25 of Chapter - VII of the
said Rules deals with discipline and punishment.
16. In service jurisprudence, the term "civil post" refers
to apposition or job in the civil services which may mean other
than job related to military or armed forces. Said term, though
not explicitly defined in any specific legislation, the meaning and
purport of the same can be derived from various provisions
contained in the Act, Rules framed thereunder and/or
Regulation, if any, connected thereto. Thereby, the scheme of
rules, as mentioned above, made it clear that Grama Rakshi is
generally an influential and well-to-do resident of his beat. Every
Grama Rakshi before his appointment has to execute a bond of
declaration in the prescribed Form-III. The manner of drawing
and disbursement of monthly allowances as envisaged under
Rule 14 in Chapter-IV: "Pay and Allowances", Conditions of
Services vide Chapter-V and nature of "Duties and
Responsibilities" provided in Chapter-VI of the Odisha Grama
Rakshi Rules, 1969 make it undoubtedly clear that the post of
"Grama Rakshi" is a "Civil Post".
17. Taking into consideration the law laid down by the
apex Court, a post under the State is an office or a position to
which duties in connection with the affairs of the State are
attached, an office or a position to which a person is appointed
and which may exist apart from and independently of the holder
of the post. Article 310(2) contemplates that a post may be
abolished and a person holding a post may be required to vacate
the post, and it emphasises the idea of a post existing apart
from the holder of the post. A post may be created before the
appointment or simultaneously with it. A post is an
employment, but every employment is not a post. A casual
labourer is not the holder of a post. A post under the State
means a post under the administrative control of the State. The
State may create or abolish the post and may regulate the
conditions of service of persons appointed to the post. In the
instant case before introducing the Grama Rakshi Scheme
Chowkidary systems and the beat Constable System was
existed. The need of setting of a suitable village administrative
agency was felt to help in maintenance in law and order and
certain administrative functions at the village level and with this
objects in view it was considered to bring an Act to provide for
the regulation of Grama Rakshi in the State of Odisha. In the
light as narrated above, a Grama Raskhi is a holder of civil post
under the State. The State has the power and the right to select
and appoint a Gram Rakshi.
18. Taking into the aforementioned provisions, this
Court in Niranjan Nayak (supra), held that Grama
Rakshis are holders of civil post. As such nothing has been
placed on record to indicate that the judgment passed by
this Court in the case of Niranjan Nayak (supra) has been
challenged in higher forum. Therefore, it has reached its
finality.
It may be appropriate to refer to State of Assam
v. Shri Kanak Chandra Dutta, AIR 1967 SC 884, wherein
it is said that a "civil post" is distinguished in Article 310
from a post connected with defence; it is a post on the civil
as distinguished from the defence side of administration, an
employment in a civil capacity under the Union or a State.
In State of Gujarat v. Raman Lal Keshan Lal, (1980) 4
SCC 653, it has been propounded that the true test for
determination of the question whether a person is holding a
civil post or is a number of the civil service is the existence
of a relationship of master and servant between the State
and the person holding post under it and that the existence
of such relationship is dependent upon the right of the
State to select and appoint the holder of the post, its right
to suspend and dismiss him, its right to control the manner
and method of his doing work and the payment by it of his
wages and remuneration.
In view of such position of law, this Court
unhesitatingly holds that Grama Rakshis are holders of
Civil post and accordingly the issue no.(i) is answered in
favour of the petitioner.
Issue No.(ii)
19. Section 7 (2) of the Odisha Grama Rakshi Act,
1967 states as follows:-
"(2) When the appointing authority passes an order
suspending, fining or dismissing any Grama
Rakshi under Sub-Sec. (1) he shall record such
order with the reasons therefor and note of the
enquiry in writing and no such order shall be
passed unless the Grama Rakshi concerned has
been given an opportunity of being heard in his
defence."
20. Rule 15 (1) (d) and Rule-24 of the Odisha Grama
Rakshi Rules, 1969 reads as follows:-
"15. (1) Grama Rakshi -
xx xx xx
(d) shall be liable to be discharged, if he changes
his residence from the Beat for which he is
appointed, if at any time during the tenure of his
appointment found physically unfit to perform the
duties of a Grama Rakshi, or if he is convicted or
reasonably suspected to be concerned in any
offence;
CHAPTER - VII
DISCIPLINE
24. Punishment -
(a) The punishment specified in Column (1) below
may be imposed on a Grama Rakshi by the
authorities mentioned in column (2) against each
thereof
Sl. No Punishment Authorities
1. Censure or By Superintendent of
Warning in the police of the district
Service Book or by the Sub-
2 Fine up to a divisional Police
maximum of officer so attached by
Rs.10 at a time the Superintendent of
Police of the district
3. Dismissal Only by
Superintendent of
Police of the district.
(b) Whenever the Grama Rakshi is found to be
guilty of negligence or dereliction of duty or failure
to obey any order or direction given to him or
misconduct, the officer-in-charge of the Police-
station shall call for an explanation from the Grama
Rakshi, and intimate the fact to the concerned sub-
divisional police-officer.
(c) If the Grama Rakshi offers his explanation
called for under Clause (d) he shall submit the
same to the Officer-in-charge of the police-station
who shall forward it to the Sub-divisional Police-
officer. The Sub-divisional Police-officer shall,
forward the paper with his comments to the
Superintendent of Police of the district. In case the
Grama Rakshi desires to be heard in person, he
shall be given as opportunity to appear before the
said Superintendent of Police of the district at a
date & time to be specified by the Superintendent
of police of the district and submit his explanation,
if any, to the Superintendent of police of the district
through the Sub-divisional Police-officer. The final
orders passed by the Superintendent of police of
the district shall be communicated to the Sub-
divisional Police-officer who in turn will cause it to
be communicated to the Grama Rakshi through the
Officers-in-charge of the police-station.
(d) The Sub-divisional Police-officer shall, after
due consideration and after holding such enquiry
as he deems necessary, pass orders. In such cases
where the Sub-divisional Police-officer comes to the
conclusion that dismissal shall be appropriate
punishment, he shall record the grounds thereof
and call for the explanation of the Grama Rakshi to
show cause within a specified period against the
proposed punishment.
(e) If the Grama Rakshi offers his explanation
the Officer-in-charge of the police-station shall
forward it to the Sub-divisional Police-officer. The
Sub-divisional Police-officer shall then forward the
paper with his comments to the Superintendent of
Police of the district. In case the Grama Rakshi
desires to be heard personally he may appear
before the Superintendent of Police of the district
within the period specified and submit his
explanation to the Superintendent of police of the
district through the Sub-divisional Police-officer.
The final orders passed by the Superintendent of
Police of the district shall be communicated to the
Sub-divisional Police-officer who in turn will cause
it to be communicated to the Grama Rakshi through
the Officer-in-charge of the police-station.
(f) The order of punishment by the appointing
authority shall be entered in the District Order
Book.
(g) Notwithstanding anything contained in the
aforesaid provisions, the Sub-divisional Police-
officer and the Superintendent of police of the
district are competent to start suo motu proceedings
against the Grama Rakshi; but subject to the
limitation that only the Superintendent of Police of
the district may pass orders of dismissal against
the Grama Rakshis."
21. On perusal of the aforementioned provision of
law, it is made clear that as per Section 7(2) of the Act,
when an appointing authority passes an order suspending,
fining or dismissing any Grama Rakshi under Sub-section
(1), he shall record such order with the reasons therefor
and note of the enquiry in writing and no such order shall
be passed unless the Grama Rakshi concerned has been
given an opportunity of being heard in his defence.
22. Similarly, Rule 15 (1)(d) of the Rules prescribes
that Grama Rakshi shall be liable to be discharged, if he
changes his residence from the Beat for which he is
appointed, if at any time during the tenure of his
appointment found physically unfit to perform the duties of
a Grama Rakshi, or if he is convicted or reasonably
suspected to be concerned in any offence.
Rule 14 of the Odisha Grama Rakshi Rules, 1969
lays down that Grama Rakshi is paid monthly allowance
and the Superintendent of Police of the district is the
Drawing Officer for the purpose. Further, Rule 15(1)(b)
provides that Grama Rakshi on actual appointment would
remain on probation for one year and after said period, on
his performance and conduct being found satisfactory, he is
appointed permanently to his post.
Entire procedure has been prescribed under
Rule-24 as mentioned above. Therefore, the basic principle
requires that he must be given reasonable opportunity of
being heard.
23. In Karunakar Khandapani (supra), the
judgment of which was authored by one of us (Dr. Justice
B.R. Sarangi), this Court had taken into account the
judgment of the apex Court in Basudev Tiwari v. Sido
Kanhu University, AIR 1998 SC 3261, wherein it was held
as follows:-
"9. The law is settled that non-arbitrariness is
an essential facet of Article 14 pervading the entire
realm of State action governed by Article 14. It has
come to be established, as a further corollary, that
the audi alteram partem facet of natural justice is
also a requirement of Article 14, for, natural justice
is the antithesis of arbitrariness. In the sphere of
public employment, it is well settled that any action
taken by the employer against an employee must
be fair, just and reasonable which are components
of fair treatment. The conferment of absolute power
to terminate the services of an employee is
antithesis to fair, just and reasonable treatment.
This aspect was exhaustively considered by a
Constitution Bench of this Court in Delhi Transport
Corporation v. D.T.C. Mazdoor Congress, reported
in AIR 1991 SC 101.
10. In order to impose procedural safeguards, this
Court has read the requirement of natural justice in
many situations when the statute is silent on this
point. The approach of this Court in this regard is
that omission to impose the hearing requirement in
the statute under which the impugned action is
being taken does not exclude hearing - it may be
implied from the nature of the power - particularly
when the right of a party is affected adversely. The
justification for reading such a requirement is that
the Court merely supplies omission of the
legislature, (vide Mohinder Singh Gill v. The Chief
Election Commissioner, AIR 1978 SC 851) and
except in case of direct legislative negation or
implied exclusion (vide S. L. Kapoor v. Jagmohan,
AIR 1981 SC 136).
11. In the light of these principles of law, we have
to examine the scope of provision of S. 35(3) which
reads as follows :-
"35(3) Any appointment or promotion
made contrary to the provisions of the
Act, Statutes, rules or regulations or in
any irregular or unauthorised manner
shall be terminated at any time without
notice.
Finally in paragraph-13 the apex Court held that
admittedly, since notice has not been given to the appellant
before holding that his appointment is irregular or
unauthorized and ordering termination of his service, the
impugned order terminating the services of the appellant
cannot be sustained.
23.1 This Court had also taken into consideration the
decision of the apex Court in the case of Raj Rani (Smt.) v.
Haryana State of Social Welfare Advisory Board, 1998
supp (2) SCC 759, wherein the apex Court held as follows :-
"if the ad hoc services subsequently regularized,
termination of such service on the ground of alleged
illegality of the regularization being held bad, the
incumbent ought to have rather been relegated to
the position of ad hoc employee, but his services
could not have been terminated."
23.2 Similarly in Laxman Dundappa Dhamanekar
and another v. Management of Viswa Bharata Seva
Samiti, AIR 2001 SC 2836, the apex Court found the
management guilty of wilful default and non-observance of
Rules in terminating services of the appellants therein and
directed that the arrears of salary to the appellants shall be
paid from its own funds and not from financial assistance
received from Govt. Applying the said principle to the
present context, this Court held that since the services of
petitioner, who had been appointed by following due
procedure of selection, had been terminated by not
complying with the principles of natural justice and without
giving him opportunity of being heard, he is entitled to get
the pay and arrears admissible to the post in conformity
with the provisions of law.
23.3 In Biecco Lawrie Ltd. v. State of West Bengal,
AIR 2010 SC 142, while terminating the services, principle
of natural justice was not followed. The apex Court
considered the same in paragraphs 12, 13 and 14 and
having discussed various judgments held that the
procedure to be followed is not a matter of secondary
importance and in the broadest sense natural justice simply
indicates the sense of what is right and wrong and even in
its technical sense is now often equated with fairness. As a
well-defined concept, it comprises of two fundamental rules
of fair procedure that a man may not be a judge in his own
cause and that a man's defence must always be fairly
heard. Therefore, it is fundamental to fair procedure that
both sides should be heard audi alteram partem, i.e., hear
the other side and it is often considered that it is broad
enough to include the rule against bias since a fair hearing
must be an unbiased hearing. One of the essential
ingredients of fair hearing is that a person should be served
with a proper notice, i.e., a person has a right to notice.
Notice should be clear and precise so as to give the other
party adequate information of the case he has to meet and
make an effective defence. Denial of notice and opportunity
to respond result in making the administrative decision as
vitiated.
24. In Dolamani Bishi (supra), the Division Bench of
this Court, in which one of us (Dr. Justice B.R. Sarangi)
was a member, recorded as follows:-
"The soul of natural justice is 'fair play in
action' In HK (An Infant) in re, 1967 1 All ER 226
(DC), Lord Parker, CJ, preferred to describe natural
justice as 'a duty to act fairly'.
In Fairmount Investments Ltd. v. Secy of
State for Environment, 1976 2 All ER 865 (HL),
Lord Russel of Killowen somewhat picturesquely
described natural justice as 'a fair crack of the
whip' In R. v. Secy. Of State for Home Affairs,
ex p. Hosenball, Geoffrey Lane, LJ, 1977 3 All
ER 452 (DC & CA), preferred the homely phrase
'common fairness' in defining natural justice.
A.K. Kraipak and others v. Union of
India, AIR 1970 SC 150:(1969) 2 SCC 262, is a
landmark in the growth of this doctrine. Speaking
for the Constitution Bench, Hegde, J. observed
thus:
"If the purpose of the rules of natural justice is
to prevent miscarriage of justice one fails to see
why those rules should be made inapplicable
to administrative enquiries. Often times it is
not easy to draw the line that
demarcates administrative enquiries from
quasi-judicial enquiries. Enquiries which were
considered administrative at one time are now
being considered as quasi-judicial in character.
Arriving at a just decision is the aim of both
quasi-judicial enquiries as well as
administrative enquiries. An unjust decision in
an administrative enquiry may have far
reaching effect than a decision in a quasi-
judicial enquiry".
In Maneka Gandhi v. Union of India, AIR
1978 SC 597: (1978) 1 SCC 248, law has done
further blooming of this concept. This decision has
established beyond doubt that even in an
administrative proceeding involving civil
consequences doctrine of natural justice must be
held to be applicable.
In Swadeshi Cotton Mills v. Union of
India, AIR 1981 SC 818, the meaning of 'natural
justice' came for consideration before the apex
Court and the apex Court observed as follows:-
"The phrase is not capable of a static and
precise definition. It cannot be imprisoned in
the straight-jacket of a cast-iron formula.
Historically, "natural justice" has been used in
a way "which implies the existence of moral
principles of self evident and urarguable truth".
"Natural justice" by Paul Jackson, 2nd Ed.,
page-1. In course of time, judges nurtured in
the traditions of British jurispruduence, often
invoked it in conjuction with a reference to
"equity and good conscience". Legal experts of
earlier generations did not draw any
distinction between "natural justice" and
"natural law". "Natural justice" was considered
as "that part of natural law which relates to
the administration of justice."
In Basudeo Tiwary v Sido Kanhu
University and others (1998) 8 SCC 194, the
apex Court held that natural justice is an antithesis
of arbitrariness. It, therefore, follows that audi
alteram partem, which is facet of natural justice is
a requirement of Art.14.
In Nagarjuna Construction Company
Limited v. Government of Andhra Pradesh,
(2008) 16 SCC 276, the apex Court held as follows:
"The rule of law demands that the power to
determine questions affecting rights of citizens
would impose the limitation that the power
should be exercised in conformity with the
principles of natural justice. Thus, whenever a
man's rights are affected by decisions taken
under statutory powers, the court would
presume the existence of a duty to observe the
rules of natural justice. It is important to note
in this context the normal rule that whenever it
is necessary to ensure against the failure of
justice, the principles of natural justice must
be read into a provision. Such a course is not
permissible where the rule excludes expressly
or by necessary intendment, the application of
the principles of natural justice, but in that
event, the validity of that rule may fall for
consideration."
The apex Court in Uma Nath Panday and
others v State of U.P. and others, AIR 2009 SC
2375, held that natural justice is the essence of fair
adjudication, deeply rooted in tradition and
conscience, to be ranked as fundamental. The
purpose of following the principles of natural
justice is the prevention of miscarriage of justice.
Natural justice, another name of which is
common sense justice, is the name of those
principles which constitute the minimum
requirement of justice and without adherence to
which justice would be a travesty. Natural justice
accordingly stands for that "fundamental quality of
fairness which being adopted, justice not only be
done but also appears to be done".
25. In Binapani Dei (supra), the apex Court held
that an order of the State to the prejudice of a person may
be administrative in character, but the principle of natural
justice has to be complied.
Similar view has also been taken by the apex
Court in Khem Chand; S. Subramaniam; and Fazal Bhai
Dhala (supra).
So far as S.L. Kapoor (supra) is concerned, the
apex Court held that Court shall not pass order by ignoring
the principle of natural justice.
26. Therefore, as required under Section 7 (2) of the
Orissa Grama Rakshi Act, 1967, while passing an order
suspending, fining or dismissing of any Grama Rakshi
under Sub-section (1), the authority shall record such order
with the reasons therefor and note of the enquiry in writing
and no such order shall be passed unless the Grama
Rakshi concerned has been given an opportunity of being
heard in his defence.
27. Much reliance was placed by the learned Addl.
Standing Counsel appearing on behalf of the State-opposite
parties on the judgment of the apex Court in the case of P.
Gunasekharan (supra). But it has no assistance to them,
because the apex Court held in the said case that High
Court, in exercise of its powers under Arts. 226 and 227,
cannot venture into re-appreciation of evidence or interfere
with conclusions in enquiry proceedings if the same are
conducted in accordance with law, or go into reliability/
adequacy of evidence, or interfere if there is some legal
evidence on which findings are based, or correct error of
fact however grave it may be, or go into proportionality of
punishment unless it shocks conscience of court. It can
only consider whether enquiry held by competent authority
was in accordance with procedure established by law and
principles of natural justice, whether irrelevant or
extraneous considerations and/or exclusion of admissible
or material evidence or admission of inadmissible evidence
have influenced decision rendering it vulnerable. Further
held, it can interfere where finding is wholly arbitrary and
capricious based on no evidence which no reasonable man
could ever arrive at. Therefore, non-compliance of principle
of natural justice is also a ground where the High Court
can exercise its power under Articles 226 and 227 of the
Constitution of India.
28. No doubt, in the present case, show cause was
called for from the petitioner, to which he had given his
reply. But, without conducting an enquiry in writing and
without giving opportunity of hearing in the defence of the
petitioner, the order of discharge/termination has been
passed against the petitioner. Thereby, there was non-
compliance of the principle of natural justice by not giving
opportunity of being heard to the petitioner. More so, in the
criminal case, the petitioner has already been acquitted by
following due procedure. The same should have been
considered and without conducting proper inquiry, the
order of discharge/termination has been passed. The
Tribunal has not taken into consideration these facts in
their proper perspective, rather has come to an evasive
conclusion in paragraphs-10 and 11 of the order impugned,
which are extracted hereunder:-
"10. Grama Rakhi is a part of the State Police
who plays an important role in maintaining law
and order and performing administrative functions
at the village level. If benefit of acquittal is
extended to the applicant ignoring the wording
concern in any offence the very purpose of the rule
will be defeated.
11. Learned counsel for the applicant relied on
the decision in the case of Niranjan Nayak-Vrs-
State of Orissa and others, 2007(II) OLR-197
wherein the order of discharge in respect of a
Grarna Rakhi was set-aside, as no opportunity
was given, but the present case is distinguishable
as the impugned order was passed after calling for
explanation from the applicant and following due
procedure and hence, there is no scope for the
applicant to raise any grievance."
By so observing, the Tribunal dismissed the Original
Application filed by the petitioner, which cannot be
sustained in the eye of law.
29. In view of the facts and law, as discussed above,
the issue no.(ii) is answered in favour of the petitioner and
accordingly the order dated 27.10.2014 passed by the
Odisha Administrative Tribunal, Cuttack Bench, Cuttack in
O.A. No. 1301 (C) of 2003 affirming the order of discharge/
termination of the petitioner which was confirmed in
appeal, cannot be sustained in the eye of law and is liable
to be quashed and is hereby quashed. As a consequence
thereof, the matter is remitted back to the opposite party
no.4 to take necessary steps in accordance with law in
compliance of the principles of natural justice.
30. In the result, the writ petition is allowed.
However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 11th August, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court
Date: 14-Aug-2023 12:33:22
