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2009 DIGILAW 351 (ORI)

BASANT KUMAR PATNAIK v. STATE OF ORISSA

2009-04-21

B.P.DAS, B.P.RAY

body2009
JUDGMENT : B.P. Das, J. - The Petitioner, on being selected by the Selection Committee headed by the Secretary to the Govt. of Orissa in Tourism Department-Opposite Party No. 1, was, appointed as Financial Controller-cum-Secretary in the Orissa Tourism Development Corporation (hereinafter Corporation) by Order Dated 29.08.1988 (Annexure-1). The Petitioner after serving the Corporation for more than fifteen years was terminated from service by the Order Dated 30.06.2003 (Annexure-2) passed by the Managing Director of the Corporation-Opposite Party No. 2. Aggrieved by the said order of termination, the Petitioner on 08.07.2003 filed an appeal before the Chairman of the Corporation-Opposite Party No. 3. Since the Chairman did not dispose of the appeal, the Petitioner approached this Court in a writ application bearing W.P.(C) No. 3321 of 2004, which was disposed of on 23.11.2004 with a direction to the Opposite Parties to dispose of the appeal filed by the Petitioner within a period of two months from the date of receipt of the order. On receipt of the aforesaid order of this Court, Opposite Party No. 3, on 08.07.2005 disposed of the appeal filed by the Petitioner with a direction to the Managing Director to hear the Petitioner & dispose of the appeal by a speaking order as the Disciplinary Authority while imposing major penalty had not followed the principle of natural justice. On 21.11:2005, Opposite Party No. 2 without conducting any enquiry as provided under Rule-15 of the Orissa Civil Service (Classification, Control & Appeal) Rules, 1962 passed the order of termination vide Annexure-6, even though the Petitioner was superannuated since 31.01.2005. The said order under Annexure-6 is now impugned in this writ application. 2. Though counter affidavit has not yet been filed in this case, yet the entire record pertaining to this case was produced before us by the Counsel for the Opposite Parties. 3. Mr. Acharya, appearing for Opposite Parties 2 & 3 submits that since the Petitioner was an ad hoc employee, the question of affording opportunity of hearing did not arise. That apart, the Petitioner was not qualified to hold the aforesaid post, hence the order of termination. 4. Before considering the merits & the contentions of the Opposite Parties, we refer to Annexure-1, the appointment order of the Petitioner dated 29.08.1988, which indicates that the Petitioner was appointed as Financial Controller-cum-Secretary in the Head Office of the Corporation in the scale of pay of Rs. 4. Before considering the merits & the contentions of the Opposite Parties, we refer to Annexure-1, the appointment order of the Petitioner dated 29.08.1988, which indicates that the Petitioner was appointed as Financial Controller-cum-Secretary in the Head Office of the Corporation in the scale of pay of Rs. 2550-3650 & his appointment was purely temporary terminable at any time without prior notice & without assigning any reason thereof. The undisputed fact is that the Petitioner has served the Corporation for a period of fifteen years. Annexure 2, the order of termination of the Petitioner dated 30.06.2003, indicates that the service of Sri Basanta Kumar Pattnaik, Financial Controller-cum-Secretary of the Corporation, stands terminated with effect from 30.06.2003 afternoon & in consideration of his long services rendered to the Corporation, the Management was pleased to pay him three months' salary in addition to the terminal benefits due to him. 5. Challenging the order of termination dated 30.06.2003 passed by Opposite Party No. 2, the Petitioner filed an appeal before Opposite Party No. 3, who passed the Order Dated 08.07.2005, in Annexure 4 remanding the mater to the Managing Director. The relevant portion the order passed by Opposite Party No. 3 is extracted herein below: xxx xxx xxx 5. From a perusal of records I find that charges were framed against the Appellant vide letter No. 1277/OTDC dt. 11.03.2003. The Appellant submitted his written explanation in this regard. The Managing Director then issued an office order No. 3427/P-OTDC dt.30.06.2003 terminating his service with effect from 30th June, 2003 & paying him three months salary in addition to the terminal benefits due to him. 6. In my opinion, due opportunity should have been given for personal hearing of the Appellant before imposing the above major penalty of termination of service with three months of pay. The disciplinary authority should have heard him before imposing any major penalty on him. I find that in the written memo filed before me on 6th Jan, 2005, the Appellant has given his representation on the charges framed against him. 7. I am, therefore, of the opinion that as per principles of natural justice, the Managing Director should hear the Appellant before imposing any major penalty on the Petitioner. The disciplinary authority should also pass a speaking order while imposing any major penalty against the Appellant. xxx xxx xxx 6. 7. I am, therefore, of the opinion that as per principles of natural justice, the Managing Director should hear the Appellant before imposing any major penalty on the Petitioner. The disciplinary authority should also pass a speaking order while imposing any major penalty against the Appellant. xxx xxx xxx 6. Thereafter the matter was dealt with by Opposite Party No. 2, who is the Disciplinary Authority, & the Disciplinary Authority on 21.11.2005 passed the following order: In compliance to the order of the Appellate Court, second show cause notice was issued to Shri B.K. Patnaik, ex-F.C.-Cum-Secretary. Gone through the records. It reveals to me that Sri B.K. Patnaik while discharging his duties as F.C.-Cum-Secretary has committed serious irregularities. 1. He did not submit the Annual Accounts reports to the Register of Companies in time which is mandatory for which a criminal case was instituted against the Directors of the Corporation in the Court of Special CGM, Cuttack in the year 1999 & subsequently it was compounded. Even in such a serious issue - Sri B.K. Patnaik did not submit the Annual Accounts return for which Directors were issued show cause & finally the Corporation had to pay Rs. 55,000 as penalty for last 11 years. 2. Sri B.K. Patnaik mis-utilised his power, processed loan application of the employees of the Corporation & made the employees loan amount available of Rs. 67,59,000 without the knowledge of the Management. This amounts to serious lapses on the part of Sri B.K. Patnaik. 3. Being a responsible officer, Sri B.K. Patnaik has not submitted the tour diary even after several persuasion by the Managing Director. These are the. major causes for which the Management decided that the services of Sri B.K. Patnaik could be dispensed with. Therefore, I like to agree with the previous order passed against Sri Patnaik without any addition, deletion or modification. Sd/- 21.11.2005. Disciplinary Authority. 7. According to the Learned Counsel for the Petitioner, even though the original order seems to be a termination simpliciter, the subsequent order passed by the Disciplinary Authority makes out a new case against the Petitioner as several allegations have been made against him therein. Therefore, the order of termination is a stigmatic one & the same shows the determination of the management to get rid of the Petitioner by any means. Therefore, the order of termination is a stigmatic one & the same shows the determination of the management to get rid of the Petitioner by any means. The sum & substance of the arguments of the Learned Counsel for the Petitioner is that the Petitioner should have been given an opportunity to defend his case before passing the order to terminate his service. 8. In order to know the truth in the allegation of the Petitioner, we have first to examine whether the Disciplinary Authority had complied with the order passed by the Appellate Authority, i.e., the Chairman, in Annexure-4. On perusal of the record produced before us, we find that the Disciplinary Authority has not complied with the order passed by the Appellate Authority. The Appellate Authority had directed the Disciplinary Authority to hear the Appellant before imposing any major penalty on him but the Disciplinary Authority has not done so. Rather, the Disciplinary Authority has made out a new case against the Petitioner in the order passed by him in Annexure-6. Learned Counsel for the Opposite Parties submits that as the Petitioner was not holding a substantive post, disciplinary proceeding was not required to be initiated against him nor was any opportunity of hearing required to be given to him before passing the order of termination. We are at a loath to accept such a plea of the Opposite Parties. Law is fairly well settled in this regard. In the oftly quoted decision of the Apex Court in the case of Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another it was held: ...The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence & the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right & just & fair' & not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all & the requirement of Article 21 would not be satisfied. xxx xxx xxx Natural justice is a great humanising principle intended to invest law with fairness & to secure justice & over the years it has grown into a widely pervasive rule affecting large areas of administrative action.... 9. xxx xxx xxx Natural justice is a great humanising principle intended to invest law with fairness & to secure justice & over the years it has grown into a widely pervasive rule affecting large areas of administrative action.... 9. So, the order of termination passed by the Disciplinary Authority initially in Annexure-2 & reiterated subsequently in Annexure-6 fails to stand the judicial scrutiny inasmuch as the aforesaid orders are tainted with unreasonableness, arbitrary exercise of power & lack fair play. Accordingly, we allow this writ application & quash the Order Dated 30.6.2003 in Annexure-2 & the subsequent Order Dated 21.11.2005 in Annexure-6 passed by the Disciplinary Authority. As the Petitioner has already retired.from service in the meantime, he shall be given all back wages from the date of his termination till the date of his retirement on superannuation within a period of 3 months from the date of receipt of this order. No cost. B.P. Ray, J. I agree.