Sri Sushanta Kumar Pattnaik,
Aged about 50 years,
Son of Late Amulya Ratna Pattnaik,
At: Jail Road,
P.O.: Keonjhargarh,
District:Keonjhar,
At present working as Gram
Panchayat Technical Assistant,
Kusumi Block,
Mayurbhanj. ... Petitioner
1. State of Odisha,
represented through its
Commissioner-cum-Secretary,
Panchayati Raj Department,
Odisha Secretariat Building,
Bhubaneswar, District: Khordha.
2. Collector and District Magistrate,
District Rural Development
Agency, Mayurbhanj,
At/PO/Town/District :Mayurbhanj.
3. Project Director,
District Rural Development
4. Block Development Officer,
Kusumi Block,
At: Badampahar,
Via: Rairangpur,
Town/District: Mayurbhanj. ... Opposite Parties.
Pursuant to such order, the petitioner has been
discharging his duties as entrusted to him in Kusumi
Block under MGNREG scheme.
5. Opposite party no.3 issued show-cause notice dated
06.02.2017 to the petitioner taking into account the
allegation levelled against him by one Sk. Rashid and
other villagers of Kusumi Gram Panchayat with respect
to irregularities in execution of six projects. Accordingly,
a joint enquiry report was submitted. The petitioner has
proffered explanation to each point of allegation vis-à-vis
the observations made in the report in response to show
cause notice.
6. On 13.04.2017, the Petitioner was appeared for personal
hearing before the Opposite Party No.2, pursuant to the
notice issued to him. But vide letter dated 21.04.2017
under Annexure-8 has come to be issued by the
Collector and District Magistrate, Mayurbhanj-Opposite
Party No.2 instructing the Block Development Officer,
Kusumi to disengage the petitioner from the post of
GPTA, Kusumi Block. The said letter was issued by the
Collector and District Magistrate, Mayurbhanj after
taking decision on 13.04.2017 (Annexure-7).
7. Dissatisfied thereby, the Petitioner has approached this
Court by way of filing this writ petition invoking
extraordinary jurisdiction under Articles 226 and 227 of
the Constitution of India.
8. Sri Umesh Chandra Patnaik, learned counsel appearing
for the Petitioner vehemently contended that though a
detailed reply with reference to each of the allegations
has been submitted to the Collector-cum-DPC,
MGNREGS, Mayurbhanj, not a single explanation has
been referred to or taken into consideration while taking
decision on 13.04.2017 vide Annexure-7. Therefore, he
submitted that the decision on show-cause submitted by
the petitioner is a terse one being bereft of reason
leading to depict that the letter dated 21.04.2017 read
with decision dated 13.04.2017 is arbitrary and fanciful.
The petitioner is entitled for reason for rejection of his
explanation offered in connection with the show cause
notice. It is submitted that the show-cause notice and
reply thereto cannot be an empty formality.
9. Sri Anshuman Sethy, learned Additional Standing
Counsel appearing for the opposite parties-State
submitted that the decision dated 13.04.2017 of the
Collector and District Magistrate, Mayurbhanj vide
Annexure-7 is depicting sufficient reason to disengage
the petitioner for the irregularities found on enquiry
being made pursuant to allegation by the villagers.
Therefore, he submitted that though a detailed reasons
for rejecting the show-cause reply being not given, the
Administrative Authority, i.e., Collector and District
Magistrate, Mayurbhanj has taken appropriate decision
which warrants no interference of this Court in exercise
of power under Articles 226 and 227 of the Constitution
of India.
10. Pleadings, being completed and exchanged between the
learned counsel for respective parties, on their consent,
this matter is taken up for final hearing at the stage of
admission.
10.1. Accordingly, heard Sri Umesh Chandra Patnaik, learned
counsel appearing for the petitioner and Sri Anshuman
Sethy, learned Additional Standing Counsel appearing
for the opposite parties-State.
11. At the outset, it is necessary to have reference to the
decision dated 13.04.2017 taken by the Collector and
District Magistrate, Mayurbhanj, pursuant to which
instruction to disengage the petitioner was issued by the
said Authority to the Block Development Officer, Kusumi
vide letter dated 21.04.2017. The said decision dated
13.04.2017 is reproduced hereunder:-
2. Manipulation/fabrication of master roll.
3. Non-signature in the CS forms.
4. Photographs (three stages) are not kept in the case
record.
5. Non-preparation of work estimate.
6. Initial measurement has not taken in the level
section.
7. Improper maintenance of Measurement Books.
8. Non maintenance of the work site register.
9. Improper maintenance or non-maintenance of
running account bill.
And whereas, out of the above irregularities, the following
serious financial irregularities detected on execution of the
work "Improvement of play ground at Kendrai under
Kusumi G.P. of Kusumi Block".
i. There is no pit found from where earth has been
borrowed.
ii. Project-4 i.e. "Renovation of Rehedagadha MIP at
Kendrai" is very adjacent to this project. The soil has
been excavated from the pond and spread over the
playground development project.
iii. As per online report dated 09.01.2017 an amount of
Rs.1,25,280/- has been expended in the play
ground development project towards wage
component.
iv. Though, the project is shown as complete in online,
physically it was not completed.
And whereas, the enquiry team suggested to take
stringent action as deemed fit against the concerned
GPTA and other executants of the above projects,
therefore, Sri Sushanta Kumar Pattnaik, GPTA was
noticed to show cause as to why disengagement
proceeding shall not be initiated against him for such
financial irregularities and dereliction in Government
duties.
And whereas, the show cause reply submitted by Sri
Pattnaik, GPTA found not satisfactory as against the
charges of above financial irregularities, therefore, for the
principle of natural justice, Sri Pattnaik was directed vide
No.4859 dated 31.03.2017 to appear in person before the
Collector & District Magistrate, Mayurbhanj to avail the
opportunity of being heard.
And whereas, in course of hearing, except challenging the
joint enquiry report, no satisfactory reply given by Sri
Sushanta Kumar Pattnaik, GPTA against the irregularities
detected.
And whereas, the work executed under MGNREGS is
implemented by the Govt. for development of rural people
and accordingly, agreement has been executed with
certain terms and condition engaging the GPTA in the
Block for execution of the work smoothly within the
targeted period. Sri Sushanta Kumar Pattnaik, GPTA had
to perform his duty according to the terms and condition
of agreement. But, the performance/conduct of the GPTA
is found quite violation of the terms & condition of the
agreement executed by him, causing gross financial
irregularities. Therefore, I have no hesitation to hold that
further continuance of Sri Pattnaik as GPTA may
detrimental to smooth execution of projects under
MGNREGS.
And whereas, the Collector-cum-C.E.O., Zilla Parishad is
vested with the power of engaging 2nd party, transferring
him from one block to other within the district and taking
disciplinary action including removal as and when
required on getting feedback from the Program Officer."
Now, therefore, I am inclined to order to disengage Sri
Sushanta Kumar Pattnaik from the post of GPTA of
Kusumi Block for violation of terms and conditions of
agreement for the interest of public.
Intimated all concerned.
Sd/-
Collector, Mayurbhanj"
12. Sri Umesh Chandra Patnaik, learned counsel appearing
for the petitioner drew attention of this Court to the
aforesaid decision by laying emphasis on the following
sentence:-
"And whereas, in course of hearing, except challenging
the joint enquiry report, no satisfactory reply given by Sri
Sushanta Kumar Pattnaik, GPTA against the irregularities
detected."
13. Perused the reply to show-cause notice, as submitted by
the petitioner, which is placed at Annexure-6 to the writ
petition. From the said reply, it is discernable that the
petitioner has elaborately and minutely furnished
explanation to each of the allegations. It transpires from
the decision dated 13.04.2017, as extracted hereinabove,
that none of the explanations has been taken note of or
objected to by the Collector and District Magistrate,
Mayurbhanj save and except saying that the reply is not
satisfactory. This Court on very many occasions
deprecated such practice of authorities who decided
matters against the noticee without considering and
discussing the explanation on merits. Such bald order
without ascribing reason is untenable in the eye of law.
The decision taken by the Collector and District
Magistrate, Mayurbhanj against the petitioner leads to
civil consequence, which demands adherence to
principles of natural justice. Sri U.C. Patnaik, learned
counsel urged that the Collector has never afforded
opportunity of personal hearing to the petitioner.
14. In Canara Bank Vrs. Debasis Das, (2003) 2 SCR 968, it
has been enunciated with regard to principles of natural
justice as follows:
"Residual and crucial question that remains to be
adjudicated is whether principles of natural justice have
been violated; and if so, what extent any prejudice has
been caused. It may be noted at this juncture that in some
cases it has been observed that where grant of
opportunity in terms of principles of natural justice do not
improve the situation, "useless formality theory" can be
pressed into service. Natural justice is another name for
commonsense justice. Rules of natural justice are not
codified canons. But they are principles ingrained into the
conscience of man. Natural justice is the administration.
of justice in a commonsense liberal way. Justice is based
substantially on natural ideals and human values. The
administration of justice is to be freed from the narrow
and restricted considerations which are usually
associated with a formulated law involving linguistic
technicalities and grammatical niceties. It is the
substance of justice which has to determine its form.
The expressions „natural justice‟;, and „legal justice‟ do
not present a water-tight classification. It is the substance
of justice which is to be secured by both, and whenever
legal justice fails to achieve this solemn purpose, natural
justice is called in aid of legal justice. Natural justice
relieves legal justice from unnecessary technicality,
grammatical pedantry or logical prevarication. It supplies
the omissions of a formulated law. As Lord Buckmaster
said, no form or procedure should ever be permitted to
exclude the presentation of a litigants‟ defence.
The adherence to principles of natural justice as
recognized by all civilized States is of supreme importance
when a quasi-judicial body embarks on determining
disputes between the parties, or any administrative action
involving civil consequences is in issue. These principles
are well settled. The first and foremost principle is what is
commonly known as audi alteram partem rule. It says
that no one should be condemned unheard. Notice is the
·first limb of this principle. It must be precise and
unambiguous. It should appraise the party
determinatively the case he has to meet. Time given for
the purpose should be adequate so as to enable him to
make his representation. In the absence of a notice of the
kind and such reasonable opportunity, the order passed
becomes wholly vitiated. Thus, it is but essential that a
party should be put on notice of the case before any
adverse order is passed against him. This is one of the
most important principles of natural justice. It is after all
an approved rule of fair play. The concept has gained
significance and shades with time. When the historic
document was made at Runnymede in 1215, the first
statutory recognition of this principle found its way into
the „Magna Carta‟. The classic exposition of Sir Edward
Coke of natural justice requires to „vocate interrogate and
adjudicate‟. In the celebrated case of Cooper Vrs.
Wandsworth Board of Works, (1963) 143 ER 414, the
principle was thus stated:
„Even God did not pass a sentence upon Adam, before he
was called upon to make his defence. „Adam‟ says God,
„where art thouhas thou not eaten of the tree whereof I
commanded thee that though should not eat‟.
Since then the principle has been chiselled, honed and
refined, enriching its content. Judicial treatment has
added light and luminosity to the concept, like polishing of
a diamond.
Principles of natural justice are those rules which have
been laid down by the Courts as being the minimum
protection of the rights of the individual against the
arbitrary procedure that may be adopted by a judicial,
quasijudicial and administrative authority while making
an order affecting those rights. These rules are intended
to prevent such authority from doing injustice. What is
meant by the term 'principles of natural justice' is not easy
to determine. Lord Summer (then Hamilton, L.J.) in Ray v.
Local Government Board, (1914) 1 KB 160 at p.199:83
LJKB 86) described the phrase as sadly lacking in
precision. Jn General Council of Medical Education &
Registration of UK.Vrs. Sanckman, (1943) AC 627 =
(1948) 2 All ER 337, Lord Wright observed that it was not
desirable to attempt „to force it into any procrustean bed‟
and mentioned that one essential requirement was that
the Tribunal should be impartial and have no personal
interest in the controversy, and further that it should give
„a full and fair opportunity‟ to every party of being heard.
Lord Wright referred to the leading cases on. the subject.
The most important of them is the Board of Education Vrs.
Rice, (1911) AC 179 = 80 LJKB 796, where Lord Loreburn,
L.C. observed as follows:
„Comparatively recent statutes have extended, if they
have originated, the practice of imposing upon
departments or offices of State the duty of deciding or
determining questions of various kinds. It will, I suppose
usually be of an administrative kind, but sometimes, it
will involve matter of law as well as matter of fact, or
even depend upon matter of law alone. In such cases, the
Board of Education will have to ascertain the law and
also to ascertain the facts. I need not and that in doing
either they must act in good faith and fairly listen to both
sides for that is a duty lying upon everyone who decides
anything. But I do not think they are bound to treat such
a question as though it were a trial. The Board is in the
nature of the arbitral tribunal, and a Court of law has no
jurisdiction to hear appeals from the determination either
upon law or upon fact. But if the Court is satisfied either
that the Board have not acted judicially in the way I have
described, or have not determined the question which
they are required by the Act to determine, then there is a
remedy by mandamus and certiorari‟.
Lord Wright also emphasized from the same decision the
observation of the Lord Chancellor that the Board can
obtain information in any way they think best, always
giving a fair opportunity to those who are parties to the
controversy for correcting or contradicting any relevant
statement prejudicial to their view". To the same effect are
the observations of Earl of Selbourne, LO in Spackman
Vrs. Plumsiead District Board of Works, (1985) 10 AC 229
= 54 LJMC 81 ), where the learned and noble Lord
Chancellor observed as follows:
„No doubt, in the absence of special provisions as to how
the person who is to decide is to proceed, law will imply
no more than that the substantial requirements of justice
shall not be violated. He is not a judge in the proper sense
of the word; but he must give the parties an opportunity of
being heard before him and stating their case and their
view. He must give notice when he will proceed with the
matter and he must act honestly and impartially and not
under the dictation of some other person or persons to
whom the authority is not given by law. There must be no
malversation of any kind. There would be no decision
within the meaning of the statute if there were anything of
that sort done contrary to the essence of justice‟.
Lord Selbourne also added that the essence of justice
consisted in requiring that all parties should have an
opportunity of submitting to the person by whose decision
they are to be bound, such considerations as in their
judgment ought to be brought before him. All these cases
lay down the very important rule of natural justice
contained in the oft-quoted phrase „justice should not only
be done, but should be seen to be done‟.
Concept of natural justice has undergone a great deal of
change in recent years. Rules of natural justice are not
rules embodied always expressed in a statute or in rules
framed thereunder. They may be implied from the nature
of the duty to be performed under a statute. What
particular rule of natural justice should be implied and
what its context should be in a given case must depend to
a great extent on the fact and circumstances of that case,
the frame-work of the statute under which the enquiry is
held. The old distinction between a judicial act and an
administrative act has withered away. Even an
administrative order which involves civil consequences
must be consistent with the rules of natural justice.
Expression „civil consequences‟ encompasses infraction of
not merely property or personal rights but of civil liberties,
material deprivations, and non-pecuniary damages. In its
wide umbrella comes everything that affects a citizen in
his civil life.
Natural justice has been variously defined by different
Judges. A few instances will suffice. In Drew v. Drew and
Lebura, (1855) 2 Macg. 1.8, Lord Cran worth defined it as
„universal justice‟. In James Dunber Smith v. Her Majesty
the Queen, (1877-78) 3 App. Case 614, 623 JC Sir Robort
P. Collier, speaking for the judicial committee of Privy
council, used the phrase 'the requirements of substantial
justice', while in Arthur John Specman v. Plumstead
District Board of Works, (1884-85(10) App. Case 229,
240), Earlof Selbourne, S.C. preferred the phrase „the
substantial requirement of justice‟. In Vionet Vrs. Barrett,
(1885 (55) LJRD 39, 41), Lord Esher, MR defined natural
justice as „the natural sense of what is right and wrong‟.
While, however, deciding Hookings Vrs. Smethwick Local
Board of Health, (1890 (24) QBD 712), Lord Fasher, M.R.
instead of using the definition given earlier by him in
Vionet‟s case (supra) chose to define natural justice as
„fundamental justice‟. In Ridge Vrs. Baldwin,1963 (I) WB
569, 578, Harman LJ, in the Court of Appeal countered
natural justice with „fair-play in action‟ a phrase favoured
by Bhagawati, J. in Maneka Gandhi Vrs. Union of India,
(1978) 2 SCR 621). In re R.N. (An Infant)1967 (2) B617,
530, Lord Parker, CJ, preferred to describe natural justice
as „a duty to act fairly‟. In fair mount Investments Ltd.
Vrs. Secretary to State for Environment, (1976 WLR 1255)
Lord Russell of Willowan somewhat picturesquely
described natural justice as „a fair crack of the whip‟
while Geoffrey Lane, LJ. in Regina Vrs. Secretary of State
for Home Affairs Ex ParleHosenball, (1977 (1) WLR 766)
preferred the homely phrase „common fairness‟.
How then have the principles of natural justice been
interpreted in the Courts and within what limits are they
to be confined? Over the years by a process of judicial
interpretation two rules have been evolved as
representing the principles of natural justice .in judicial
process, including therein quasi judicial and
administrative process. They constitute the basic elements
of a fair hearing, having their roots in the innate sense of
man for fair-play and justice which is not the preserve of
any particular race or country but is shared in common by
all men. The first rule is „nemojudex in causasua‟ or
„nemodebetessejudex in propriacausasua‟ as stated in
(1605) 12 Co.Rep.114 that is, „no man shall be a judge in
his own cause‟. Coke used the form „aliquis non debet
esse judex in propria causa quia non potest esse judex at
pars‟ (Co.Litt. 1418), that is, „no man ought to be a judge
in his own case,because he cannot act as Judge and at
the same time be a party‟. The form „nemo potest esse
simul actor et judex‟, that is, „no one can be at once suitor
and judge‟ is also at times used. The second rule is „audi
alteram partem‟, that is, „hear the other side‟. At times
and particularly in continental countries, the form
„audietur at altera pars‟ is used, meaning very much the
same thing. A corollary has been deduced from the above
two rules and particularly the audi alteram partem rule,
namely „qui aliquid statuerit parte inaudita alteram act
quam licet dixerit, haud acquum facerit‟ that is, „he who
shall decide anything without the other side having been
heard, although he may have said what is right, will not
have been what is right‟ (See Bosewell‟s case (1605) 6 Co.
Rep. 48-b, 52-a) or in other words, as it is now expressed,
„justice should not only be done but should manifestly be
seen to be done‟. Whenever an order is struck down as
invalid being in violation of principles of natural justice,
there is no final decision of the case and fresh
proceedings are left. upon. All that is done is to vacate the
order assailed by virtue of its inherent defect, but the
proceedings are not terminated.
What is known as „useless formality theory‟ has received
consideration of this Court in M.C. Mehta Vrs. Union of
India, (1999) 6 SCC 237. It was observed as under:
„Before we go into the final aspect of this contention, we
would like to state that case relating to breach of natural
justice do also occur where all facts are not admitted or
are not all beyond dispute. In the context of those cases
there is a considerable case-law and literature as to
whether relief can be refused even if the court thinks that
the case of the applicant is not one of „real substance‟ or
that there is no substantial possibility of his success or
that the result will not be different, even if natural justice
is followed (See Malloch Vrs. Aberdeen Corpn: (1971) 2 All
ER 1278, I-IL) (per Lord Reid and Lord Wilberforce), Glynn
Vrs. Keele University: (1971) 2 A.II ER 89; Cinnamond
Vrs. British Airports Authority: (1980) 2 All ER 368, CA)
and other cases where such a view has been held. The
latest addition to this view is R Vrs. Ealing Magistrates‟
Court, ex p. Fannaran (1996 (8) Admn. LR 35 I, 358) (See
de Smith, Suppl. P.89 (1998) where Straughton, L.J. held
that there must be „demonstrable beyond doubt‟ that the
result would have been different. Lord Woolf in Lloyd Vrs.
McMohan, (1987) (I) All ER 1118: CA) has also not
disfavoured refusal of discretion in certain cases of
breach of natural justice. The New Zealand Court in
McCarthy Vrs. Grant (1959 NZLR 1014) however goes
halfway when it says that (as in the case of bias), it is
sufficient for the applicant to show that there is „real
likelihood-not certainty of prejudice‟. On the other hand,
Garner Administrative Law (8th Edn. 1996. pp.271-72)
says that slight proof that the result would have been
different is sufficient. On the other side of the argument,
we have apart from Ridge Vrs. Baldwin (1964 AC 40 =(
1963) 2 All ER66, I-IL), Mcgarry, J. in John Vrs. Rees
(1969) (2) All ER 274) stating that there are always „open
and shut cases‟ and no absolute rule of proof of prejudice
can be laid down. Merits are not for the court but for the
authority to consider. Ackner, J has said that the. „useless
.formality theory‟ is a dangerous one and, however
inconvenient, natural justice must be followed. His
Lordship observed that „convenience and justice are often
not on speaking terms‟. More recently, Lord Bingham has
deprecated the „useless formality theory‟ in R. v. Chief
Constable of the Thames Valley Police Forces, ex p. Cotton
( 1990 IRLR 344) by giving six reasons (see also his article
„Should Public Law Remedies be Discretionary?‟1991 PL.
p.64). A detailed and emphatic criticism of the „useless
formality theory‟ has been made much earlier in „Natural
Justice, Substance or Shadow‟ by Prof. D.H. Clark of
Canada (see 1975 PL.pp.27-63) contending that Malloch
(supra) and Glynn (supra) were wrongly decided. Foulkes
(Administrative Law, 8th Edn. 1996, p.323), Craig
(Administrative Law, 3rd Edn. P.596) and others say that
the court cannot prejudge what is to be decided by the
decision-making authority. De Smith (5th Edn. 1994,
paras 10.031 to 10.036) says courts have not yet
committed themselves to any one view though discretion
is always with the court. Wade (Administrative Law, 5th
Edn. 1994, pp.526-530) says that while futile writs may
not be issued, a distinction has to be made according to
the nature of the decision. Thus, in relation to cases other
than those relating to admitted or indisputable facts, there
is a considerable divergence of opinion whether the
applicant can be compelled to prove that the outcome will
be in his favour or he has to prove a case of substance or
if he can prove a 'real likelihood' of success or if he is
entitled to relief even if there is some remote chance of
success. We may, however, point out that even in cases
where the facts are not all admitted or beyond dispute,
there is a considerable unanimity that the courts can, in
exercise of their „discretion‟, refuse certiorari, prohibition,
mandamus or injunction even though natural justice is not
followed. We may also state that there is yet another line
of cases as in State Bank of Patiala v. S.K. Sharma,
(1996) 3 SCC 364, Rajendra Singh Vrs. State of MP.,
(1996)5 SCC 460 that even in relation to statutory
provisions requiring notice, a distinction is to be made
between cases where the provision is intended for
individual benefit and where a provision is intended to
protect public interest. In the former case, it can be
waived while in the case of the latter, it cannot be waived.
We do not propose to express any opinion on the
correctness or otherwise of the „useless formality theory‟
and leave the matter for decision in an appropriate case,
inasmuch as the case before us, „admitted and
indisputable‟ facts show that grant of a writ will be in
vain as pointed by Chinnappa Reddy, J.‟
As was observed by this Court we need not go into
„useless formality theory‟ in detail; in view of the fact that
no prejudice has been shown. As is rightly pointed out by
learned counsel for the appellants unless failure of justice
is occasioned or that it would not be in public interest to
dismiss a petition on the fact situation of a case, this
Court may refuse to exercise said jurisdiction (see Gadde
Venkateswara Rao Vrs. Govt. of A.P. and Ors., AIR 1966
SC 828. It is to be noted that legal formulations cannot be
divorced from the fact situation of the case. Personal
hearing was granted by the Appellate Authority, though
not statutorily prescribed. In a given case post-decisional
hearing can obliterate the procedural deficiency of a pre-
decisional hearing. (See Charan Lal Sahu Vrs. Union of
India etc., AIR 1990 SC 1480.
Additionally there was no material placed by the
employee to show as to how he has been prejudiced.
Though in all cases the post-decisional hearing cannot be
a substitute for pre-decisional hearing, in the case at
hand the position is different. The position was
illuminatingly stated by this Court in Managing Director,
ECIL, Hyderabad and Ors. Vrs. B. Karunakara and Ors.,
(1993) 4 sec 727 at para 31 which reads as follows:
„Hence, in all cases where the enquiry officer‟s report is
not furnished to the delinquent employee in the
disciplinary proceedings, the Courts and Tribunals should
cause the copy of the report to be furnished to the
aggrieved employee if he has not already secured it
before coming to the Court/Tribunal and give the
employee an opportunity to show how his or her case was
prejudiced because of the non-supply of the report. If after
hearing the parties, the Court/Tribunal comes to the
conclusion that the non-supply of the report would have
made no difference to the ultimate findings and the
punishment given, the Court/Tribunal should not interfere
with the order of punishment. The Court/Tribunal should
not mechanically set aside the order of punishment on the
ground that the report was not furnished as is regrettably
being done at present. The courts should avoid resorting
to short cuts. Since it is the Courts/Tribunals which will
apply their judicial mind to the question and give their
reasons for setting aside or not setting aside the order of
punishment, (and not any internal appellate or revisional
authority), there would be neither a breach of the
principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds that the
furnishing of the report would have made a difference to
the result in the case that it should set aside the order of
punishment. Where after following the above procedure,
the Court/Tribunal sets aside the order of punishment,
the proper relief that should be granted is to direct
reinstatement of the employee with liberty to the
authority/management to proceed with the inquiry, by
placing the employee under suspension and continuing
the inquiry from the state of furnishing him with the
report. The question whether the employee would be
entitled to the back-wages and other benefits from the
date of his dismissal to the date of his reinstatement if
ultimately ordered, should invariably be left to be decided
by the authority concerned according to law, after the
culmination of the proceedings and depending on the final
outcome. If the employee succeeds in the fresh inquiry
and is directed to be reinstated, the authority should be at
liberty to decide according to law how it will treat the
period from the date of dismissal till the reinstatement
and to what benefits, if any and the extent of the benefits,
he will be entitled. The reinstatement made as a result of
the setting aside of the inquiry for failure to furnish the
report, should be treated as a reinstatement for the
purpose of holding the fresh inquiry from the stage of
furnishing the report and no more, where such fresh
inquiry is held. That will also be the correct position in
law.‟
The position was again reiterated in Union Bank of India
Vrs. Vishwa Mohan, (1998) 4 SCC 310 at page 314). The
relevant para 9 reads as follows:
„We are totally in disagreement with the above-quoted
reasoning of the High Court. The distinction sought to be
drawn by the High Court that the first charge-sheet
served on the respondent related to the period when he
was a clerk whereas the other three charge-sheets related
to the period when he was promoted as a bank officer. In
the present case, we are required to see the findings of
the enquiry authority, the order of the Disciplinary
Authority as well as the order of the Appellate Authority
since the High Court felt that the charges levelled against
the respondent after he was promoted as an officer were
not of a serious nature. A bare look at these charges
would unmistakably indicate that they relate to
misconduct of a serious nature. The High Court also
committed an error when it assumed that when the
respondent was promoted as a bank officer, he must be
having a good report otherwise he would not have been
promoted. This finding is totally unsustainable because
the various acts of misconduct came to the knowledge of
the Bank in the year 1989 and thereafter the first charge-
sheet was issued on 17.02.1989. The respondent was
promoted as a bank officer sometime in the year 1988. At
that time, no such adverse material relating to the
misconduct of the respondent was noticed by the Bank on
which his promotion could have been withheld. We are
again unable to accept the reasoning of the High Court
that in the facts and circumstances of the case „it is
difficult to apply the principle of severability as the
charges are so inextricably mixed up‟. If one reads the
four charge-sheets, they all relate to the serious
misconduct which includes taking bribe, failure to protect
the interests of Bank, failure to perform duties with
utmost devotion, diligence, integrity and honesty, acting in
a manner unbecoming of a bank officer etc. In our
considered view, on the facts of this case, this principle
has no application but assuming that it applies yet the
High Court has erred in holding that the principle of
severability cannot be applied in the present case. The
finding in this behalf is unsustainable. As stated earlier,
the appellant had in his possession the enquiry
report/findings when he filed the statutory appeal as well
as the writ petition in the High Court. The High Court was
required to apply its judicial mind to all the circumstances
and then form its opinion whether non-furnishing of the
report would have made any difference to the result in the
case and thereupon pass an appropriate order. In para
31, this Court in Managing Director, ECIL has very rightly
cautioned: (SCC p. 758)
„The Court/Tribunal should not mechanically set aside the
order of punishment on the ground that the report was not
furnished as is regrettably being done at present. The
courts should avoid resorting to short cuts‟.***"
14.1. In Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd., 2017
(II) ILR-CUT 1035, it has been succinctly laid down that:
"17. In South Delhi Municipal Corporation Vrs. Ravinder
Kumar and another, (2015) 15 SCC 545 the Apex
Court held that the Government being guardian of
public finance it has right to refuse lowest or any
other tender bid or bids submitted by bidders to it
provided its decision is neither arbitrary nor
unreasonable as it amounts to violation of
Article 14 of Constitution of India.
Similarly, in State of Assam and others Vrs. Susrita
Holdings Private Limited, (2014) 11 SCC 192, the
Apex Court held the validity of tender process
has to be considered in the light of fairness
and reasonableness and of being in the public
interest.
In Rajasthan Housing Board and another Vrs. G.S.
Investments and another, (2007) 1 SCC 477, similar
view has also been taken by the Apex Court. ***"
14.2. In Broom‟s Legal Maxims (1939 Edition, Page 97) there
can be found a useful principle, Cessante Ratione Legis
Cessat Ipsa Lex, that is to say, „Reason is the soul of the
law, and when the reason of any particular law ceases,
so does the law itself‟.
14.3. At this stage this Court takes note of direction contained
in Order dated 02.03.2023 passed in W.P.(C) No.6316 of
2023, wherein in the presence of learned Deputy
Solicitor General of India, Sri Prasanna Kumar Parhi, it
was directed that the Executive Director of Indian Oil
Corporation Limited would "consider the representation
filed by the petitioner" and "pass appropriate order in
accordance with law". However, reading of Letter dated
17.03.2023 vide Annexure-11, which is impugned in the
present writ application, does not reveal consideration of
the representation in proper perspective.
14.4. In Ram Chander Vrs. Union of India, AIR 1986 SC 1173,
it was held that the word „consider‟ occurring in the Rule
must mean the Authority shall duly apply its mind and
give reasons for its decision. The duty to give reason is
an incident of the judicial process and emphasized that
in discharging quasi-judicial functions the Authority
must act in accordance with natural justice and give
reasons for its decision.
14.5. "Consideration" does not mean incidental or collateral
examination of a matter by the Authority in the process
of assessment/adjudication/determination. There must
be something in the order to show that the Authority
applied his mind to the particular subject-matter or the
particular source of information with a view to arriving
at its conclusion. See, Additional Commissioner of Income
Tax Vrs. Gurjargravures Pvt. Ltd., AIR 1978 SC 40.
14.6. The word „consider‟ is of great significance. Its dictionary
meaning of the same is, „to think over‟, „to regard as‟, or
„deem to be‟. Hence, there is a clear connotation to the
effect that there must be active application of mind. In
other words, the term „consider‟ postulates consideration
of all relevant aspects of a matter. Thus, formation of
opinion by the statutory Authority should reflect intense
application of mind with reference to the material on
record. The order of the Authority should reveal such
application of mind. The Authority cannot simply adopt
the language employed in the document before it and
proceed to affirm the same. [Vide, Chairman, LIC of India
Vrs. A. Masilamani, (2013) 6 SCC 530; Nilamani Jal Vrs.
Collector, 2016 (II) OLR 190 (Ori)].
14.7. It is felt apposite to refer to Kranti Associates (P) Ltd. Vrs.
Masood Ahmed Khan, (2010) 9 SCC 496 wherein the
Hon‟ble Supreme Court of India has summarised the
legal position as follows:
"47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
(b) A quasi-judicial Authority must record reasons in
support of its conclusions.
(c) Insistence on recording of reasons is meant to serve
the wider principle of justice that justice must not
only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been exercised
by the decision-maker on relevant grounds and by
disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a
component of a decision-making process as
observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by
superior courts.
(h) The ongoing judicial trend in all countries committed
to rule of law and constitutional governance is in
favour of reasoned decisions based on relevant
facts. This is virtually the lifeblood of judicial
decision-making justifying the principle that reason
is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days
can be as different as the judges and authorities
who deliver them. All these decisions serve one
common purpose which is to demonstrate by reason
that the relevant factors have been objectively
considered. This is important for sustaining the
litigants‟ faith in the justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial Authority is not candid
enough about his/her decision-making process then
it is impossible to know whether the person deciding
is faithful to the doctrine of precedent or to principles
of incrementalism.
(l) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or „rubber-
stamp reasons‟ is not to be equated with a valid
decision-making process.
(m) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the
judges and decision-makers less prone to errors but
also makes them subject to broader scrutiny. (See
David Shapiro in Defence of Judicial Candor, (1987)
100 Harvard Law Review 731-37).
(n) Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision-
making, the said requirement is now virtually a
component of human rights and was considered part
of Strasbourg Jurisprudence. See Ruiz Torija Vrs.
Spain, (1994) 19 EHRR 553 EHRR, at 562 para 29
and Anya Vrs. University of Oxford, 2001 EWCA Civ
405 (CA), wherein the Court referred to Article 6 of
the European Convention of Human Rights which
requires, „adequate and intelligent reasons must be
given for judicial decisions‟.
(o) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and
is virtually a part of „due process‟."
14.8. In Abhiram Caretaking & Expert Services Vrs. Bharat
Sanchar Nigam Limited, 2017 (II) ILR-CUT 1029 the
importance of assigning reason in detail has been
emphasized with the following observations:
"10. Franz Schubert said:
„Reason is nothing but analysis of belief.‟
In Black‟s Law Dictionary, reason has been defined
as a--
„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 propositions.‟
It means the faculty of rational thought rather than
some abstract relationship between propositions and
by this faculty, it is meant the capacity to make
correct inferences from propositions, to size up facts
for what they are and what they imply, and to
identify the best means to some end, and, in
general, to distinguish what we should believe from
what we merely do believe.
10.1 In Union of India Vrs. Mohan Lal Capoor, AIR 1974
SC 87 it has been held that 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 and reveal a rational nexus between the
facts considered and conclusions reached. The
reasons assure an inbuilt support to the
conclusion and decision reached. 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.
Similar view has also been taken in Uma Charan
Vrs. State of Madhya Pradesh, AIR 1981 SC 1915,
Patitapaban Pala Vrs. Orissa Forest Development
Corporation Ltd., 2017 (I) OLR 5; and Banambar
Parida Vrs. Orissa Forest Development Corporation
Limited, 2017 (I) OLR 625.
11. In S.N. Mukherjee Vrs. Union of India, (1990) 4 SCC
594 the Apex Court held that keeping in view the
expanding horizon of principles of natural justice, the
requirement to record reasons can be regarded as
one of the principles of natural justice which governs
exercise of power by administrative authorities.
Except in cases where the requirement has been
dispensed with expressly or by necessary
implication, an administrative authority is required
to record reasons for its decision.
12. In Menaka Gandhi Vrs. Union of India, AIR 1978 SC
597 the Apex Court observed that the reasons, if
disclosed, being open to judicial scrutiny for
ascertaining their nexus with the order, the refusal
to disclose the reasons would equally be open to the
scrutiny of the court; or else, the wholesome power
of a dispassionate judicial examination of executive
orders could, with impunity, be set at naught by an
obdurate determination to suppress the reasons."
14.9. Decision bereft of reason renders the decision making
process arbitrary. The Hon‟ble Supreme Court of India in
the case of State of Punjab Vrs. Bhag Singh, (2004) 1 SCC
547, observed as follows:
"6. Even in respect of administrative orders, Lord
Denning, M.R. in Breen Vrs. Amalgamated Engg.
Union, (1971) 1 All ER 1148 = (1971) 2 QB 175 =
(1971) 2 WLR 742 (CA) observed:
„The giving of reasons is one of the fundamentals of
good administration.‟
InAlexander Machinery (Dudley) Ltd. Vrs. Crabtree,
1974 ICR 120 (NIRC) it was observed:
„Failure to give reasons amounts to denial of justice.
Reasons are live links between the mind of the
decision-taker to the controversy in question and the
decision or conclusion arrived at.‟
Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision
reveals the „inscrutable face of the sphinx‟, it can, by
its silence, render it virtually impossible for the
courts to perform their appellate function or exercise
the power of judicial review in adjudging the validity
of the decision. Right to reasons is an indispensable
part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the
matter before court. Another rationale is that the
affected party can know why the decision has gone
against him. One of the salutary requirements of
natural justice is spelling out reasons for the order
made, in other words, a speaking-out. The
„inscrutable face of a sphinx‟ is ordinarily
incongruous with a judicial or quasi-judicial
performance."
14.10. Given the aforesaid principles regarding
assignment of "reasons" and "consideration" by the
Authority to discern application of mind while taking
decision and conspectus of cases relating to scope of
judicial review, this Court is not persuaded with the
arguments advanced by the learned Additional Standing
Counsel that apt decision has been taken by the
Collector. Bald and flimsy reasons assigned to disengage
the petitioner do not indicate application of mind of the
Authority concerned.
15. In view of the aforesaid legal position, this Court is of the
considered view that the decision dated 13.04.2017 of
the Collector and District Magistrate, Mayurbhanj is
bereft of reason much less cogent reason and tainted
with non-compliance of the principles of natural justice,
which is the minimum requirement while considering
the show-cause reply to a notice issued by an Authority.
The decision of the Collector being not in consonance
with the principles set forth by the Courts, this Court is
inclined to show indulgence in the instant matter.
16. At this juncture, this Court may also take note of
submission of Sri U.C. Patnaik, learned counsel for the
petitioner citing decision of this Court vide Order dated
13.04.2018 in W.P.(C) No.9052 of 2017 (Rajendra Nath
Mohanta vrs. Secretary to Government, Panchayatiraj
Department, Secretariat, Bhubaneswar & others). It is
submitted that in a similar set of allegations with respect
to Rajendra Nath Mohanta, who was serving as Gram
Rojagar Sevak (GRS) in Kusumi Block in the district of
Mayurbhanj, this Court has been pleased to direct for
reinstatement of the petitioner therein. It may be
beneficial for the purpose of the present case to
reproduce the said order of this Court in extenso;
"Heard learned counsel for the parties.
This matter involves disengagement of Gram Rojagar
Sevak (G.R.S.) of Kusumi G.P. under Kusumi Block in the
District of Mayurbhanj.
Considering the submission of learned counsel for the
petitioner and on perusal of the allegation involving the
petitioner, this Court finds, the allegations made therein
are all involving technical aspects. Petitioner filing the
show cause vide Annexure-4 has already expressed his
innocence and bona fideness in the appearance of
mistakes and requested the authority for giving him a
further chance to improve his working capacity so as to
avoid the mistakes not to be repeated in future.
Perused the order of disengagement at Annexures-7 & 8.
This Court finds, there is no proper consideration of the
objection of the petitioner while passing the orders vide
Annexures-7 & 8.
From the records, it appears, looking to the educational
background and level of training involving the Gram
Rojagar Sevak, this Court finds, the defects shown there,
are all highly technical. It is, under the circumstance and
looking to the salary component involving the Gram
Rojagar Sevak engaged in the State, this Court interfering
in the decision involving disengagement of the petitioner,
directs the authority to reinstate the petitioner in his
service forthwith, but however, without entitlement of any
back wages and if necessary, by entering into a fresh
agreement.
The writ petition stands disposed of with the above
observation and direction.
Issue urgent certified copy on proper application."
17. A copy of the aforesaid order being served on Sri
Anshuman Sethy, learned Additional Standing Counsel
during the course of hearing, he has conceded such
position.
18. It is submitted by Sri U.C. Patnaik, learned counsel
appearing for the petitioner that the aforesaid order has
been implemented by the opposite parties.
19. In the present case, vide order dated 11.05.2017, this
Court while issuing notice, passed the following interim
order:-
"Mr. U.C. Patnaik, learned counsel for the petitioner
and Mr. Mishra, learned Addl. Government Advocate
for the State.
The petitioner files this application against the order
of Collector and District Magistrate, Mayurbhanj
dated 21.04.2017 vide Annexure-8, wherein it has
been directed to disengage the petitioner from the
post of GPTA, Kusumi Block for serious irregularities
detected in execution of some projects and violations
of terms and conditions of Agreement.
Mr. U.C. Patnaik, learned counsel for the petitioner
states that without applying the principle of natural
justice, an order to disengage the petitioner has been
passed, which is not permissible and more so, the
order dated 21.04.2017 has yet not been
communicated to the petitioner, where the petitioner
has been disengaged from service.
Issue notice.
Three extra copies of the writ petition be served on
Mr. A.K. Mishra, learned Addl. Government
Advocate, appearing for opposite parties no.1, 2 and
4 within three days.
Requisites for issuance of notice to opposite party
no.3 by speed post be filed within three days. Office
shall send notice fixing an early returnable date.
Issue notice as above.
Accept one set of process fee.
As an interim measure, status quo with regard to the
post held by the petitioner shall be maintained till
21st June, 2017.
Issue urgent certified copy as per rules."
20. It is submitted by Sri U.C. Patnaik, learned counsel for
the petitioner that the petitioner has been continuing in
the post of GPTA till date.
21. With the aforesaid discussion and for the reasons
enumerated supra, there is no other option left but to set
aside the direction of the Collector and District
Magistrate, Mayurbhanj, opposite party no.2, to the
Block Development Officer, Kusumi Block, opposite
party no.4 vide Letter No.5481/DRDA dated 21.04.2017
(Annexure-8) and also the decision dated 13.04.2017
taken by the Collector and District Magistrate,
Mayurbhanj (Annexure-7), which forms part of said
Letter dated 21.04.2017.
22. With the above observation(s) and direction(s) the writ
petition stands disposed of, but in the circumstances
there shall be no orders as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signed by: LAXMIKANT High Court of Orissa, Cuttack
MOHAPATRA
Designation: Senior Stenographer The 12th March, 2025//MRS/Laxmikant
Reason: Authentication
Location: High Court of Orissa,
Cuttack
