Orissa High Court

Basanta Kumar Swain vs State Of Odisha & Ors. .... Opposite ... on 25 June, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                              W.P.(C) No.7516 of 2019
                                                        &
                                              W.P.(C) No.7514 of 2019

                    (In the matter of an application under Articles 226 and 227 of the
                    Constitution of India, 1950).

                     Basanta Kumar Swain                         ....              Petitioner(s)
                    (in W.P.(C) No.7516 of 2019)
                    Bibhuti Bhusan Pani
                    (in W.P.(C) No.7514 of 2019)

                                                      -versus-
                    State of Odisha & Ors.                       ....        Opposite Party (s)

                    Advocates appeared in the case through Hybrid Mode:
                    For Petitioner(s)       :                     Mr. P.C.Mishra, Adv.


                    For Opposite Party (s)        :                   Mr. Isswar Mohanty, ASC



                                   CORAM:
                                   DR. JUSTICE S.K. PANIGRAHI

                                        DATE OF HEARING:-29.04.2024
                                       DATE OF JUDGMENT: -25.06.2024
                 Dr. S.K. Panigrahi, J.

1. Since common question of facts and law are involved in both the Writ

Petitions, the same were heard together and are being disposed of by

this common judgment. However, this Court felt it apposite to deal the

W.P.(C) No.7516 of 2019 as the leading case for proper adjudication of

both the cases.

Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14

2. The Petitioners through these Writ Petitions challenge the order passed

by the Commandant General Home Guards, Cuttack City, Cuttack

(O.P.No.5) vide it's Order (Memo) No.1235 dated 30.03.2019 thereby

dismissing the Petitioners from the Home Guard Organization thereby

dismissing the appeal.

          I.     CASE OF THE PETITIONER:

          3.     The brief fact of the case is that:

          (i)    It is submitted that A.C.P. Traffic, Cuttack UPD Letter No.778 dated

06.08.2018 it was intimated that from 10am to 11am a news was

broadcasted in News 7 channel in (electronic media) under the caption

operator traffic police. It is alleged that both the Petitioners chased on

Bolero vehicle bearing No. WB-23-D-7449 coming with fry and

detained Lakheswar filling station. It is alleged that both the Petitioner

demanded and accepted money from the vehicle.

(ii) It is submitted that after receipt of above letter both the Petitioners were

asked to explain within one month as why disciplinary action be taken

against the present Petitioner.

(iii) It is submitted that that they were serving as Home Guard under

Opp.Party No.6 and on the fateful day that is on 06.08.2018 the

Opp.Party No.3 allocated duty to the Petitioner No.1 at Kajipatna and

to B.K. Swain in the same place as Kajipatna (series No.8 & 9). It is

alleged that the Petitioner detained the vehicle at Lakheswar filling

station and demanded and accepted money.

(iv) It is submitted that there is no materials and against Petitioner warrant

Signature Notsuch a heavy punishment at no point of time the Petitioner cased in Verified Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 such vehicle and demanded money. It is submitted that the Petitioner

is allowed to perform his duty at Kajipatna, the cause of action arose at

Phulnakhara, Lakheswar filling station, so the Petitioner has no role in

this alleged offence. The Petitioner has not chased any vehicle nor

detained for acceptance of money.

(v) It is submitted that the cause of action arose on 06.08.2018 and without

giving any opportunity of hearing terminated to the Petitioners from

services.

(vi) It is submitted that sub-Section 2 of Section 5 of the Home Guards Act

clearly states that no protection shall be instituted against the Home

Guard in respect of anything done or purporting to be done by him in

the discharge of his functions of duties as such members except with

the previous sanction of the Commandant General.

(vii) It is submitted that in the instant case no such sanction has been

obtained. That the Opp. Party No.4 Deputy Commandant General as

well as Opp. Party No.5 hurriedly and without applying their judicial

mind terminated the Petitioner from his service which is under

Annexures - 4 and 7.

(viii) It is submitted that there is no materials against the Petitioners. Nothing

has been seized from the Petitioner, no Bolero vehicle has been seized

no cash has been recovered from the Petitioners. Hence, it is a false case

foisted against the present Petitioner. The termination order passed

was without any departmental proceedings was not sustainable in the

eye of law.

(ix) Hence, this Writ Petition.

Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 II. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES 3 TO 5 :

4. Learned counsel for the Opposite Party No.2 earnestly made the

following submissions in support of his contentions.

(i) It is submitted that as per Letter No.778/ACP Traffic, dated 06.08.2018 of

the Assistant Commissioner of Police, Traffic, Cuttack UPD on

06.08.2018 from 10AM to 11AM a news was broadcasting in the News-7

Channel (Electronic Media) under the caption "Operation Traffic

Police". In that video, Ex-HG/464 (present petitioner) of N.H. Traffic PS

with others who were in civil dress chased one Bolero vehicle bearing

Registration No. WB-23-D- 7449 carrying with fry and detained near

Lakheswar Filling Station.

(ii) It is further submitted that it is alleged that they have demanded and

accepted money from that vehicle. After receipt of the letter under

Annexure- A/3, the petitioner had been asked vide Letter No.836/HGs,

dated 06.08.2018 (Annexure-2) to explain within one month as to why

disciplinary action shall not be taken against him. The petitioner has

also submitted his show cause and the same is found to be not

satisfactory. Thereafter, the petitioner has been discharged from Home

Guards Organization vide D.O. No. 64, dated 30.08.2018 (Annexure-4).

(iii) It is submitted that the petitioner was never show caused for dismissal,

rather one month notice has been served on him vide Annexure-2 to the

writ petition. It is submitted that before dismissal of the petitioner, he

was served with one month notice vide letter to the writ petition.







Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
          III.    COURT'S REASONING AND ANALYSIS:

5. Section 5 (2) of the Home Guards Act clearly states that "no prosecution

shall be instituted against the member of the Home Guard in respect of

anything done or purporting to be done by him in the discharge of his function

or duties as such member except with the previous sanction of the

Commandant General". In the present case in hand no such procedure

has been followed. Rather it is reported by the A.C.P. Traffic that the

Petitioner was in duty at Anand Bazar (Baranga P.S.) which is not true

rather the Petitioner has been allotted duty at Kazi Patna on 6.8.2018 he

was discharging his duty under the supervision of Traffic A.S.F..

6. Section 7(3) of Orissa Home Guards Act states that when the

Commandant General or Commandant passed an order suspending,

reduction of Rank, fining or dismissing the member of Home Guard

under Section 1 he shall record such order with the reasons therefore

and a note of inquiry in writing and no such order shall be passed by

the said commandant or Commandant General unless the person

concerned has been given an opportunity of being heard in his defence.

However, in the present case, no such inquiry has been done and the

Petitioner has not been given an opportunity of being heard.

7. Section 9 (3) of the Home Guards Act clearly states that no proceedings

shall be instituted under Sub-Section 1 or 2 without the previous

sanction of the Commandant General, but in the present case no

sanction has been sought for from the commandant General and

Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 hurriedly with ulterior motive the O.P.No.3 dismissed the service of the

Petitioner on the same day i.e. 6.8.2018.

8. In Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise,

Gauhati and Others1, this Court has highlighted that procedural

fairness is essential for arriving at correct decisions, by observing:

"27. It/ thus/ cannot be denied that the principles of natural justice are grounded in procedural fairness which ensures taking of correct decisions and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms."

9. Traditional English Law recognized and valued the rule against bias

that no man shall be a judge in his own cause, i.e. nemo debet esse judex in

propria causa. The obligation to hear the other or both sides as no person

should be condemned unheard, i.e. audi alteram partem. To these, new

facets sometimes described as subsidiary rules have developed,

including a duty to give reasons in support of the decision.

Nevertheless, time and again the courts have emphasized that the rules

of natural justice are flexible and their application depends on facts of

each case as well as the statutory provision, if applicable, nature of right

affected and the consequences. In A.K. Kraipak and others v. Union of

India and Others2, the Constitutional Bench, dwelling on the role of the

principles of natural justice under the Constitution, observed that as

every organ of the State is controlled and regulated by the rule of law,

(2015) 8 SCC 519 Signature Not

Verified (1969) 2 SCC 262 Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 there is a requirement to act justly and fairly and not arbitrarily or

capriciously. The procedures which are considered inherent in the

exercise of a quasi-judicial or administrative power are those which

facilitate if not ensure a just and fair decision. What particular rule of

natural justice should apply to a given case must depend on a great

extent on the facts and circumstances of that case, the frame work of law

under which the enquiry is held and the constitution of the body of

persons or tribunal appointed for that purpose. When a complaint is

made that a principle of natural justice has been contravened, the court

must decide whether the observance of that rule was necessary for a just

decision in the facts of the case.

10. With respect to the aforesaid discussion and the cases cited

hereinabove, this Court is inclined to quash the order passed by the