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2015 DIGILAW 549 (ORI)

Pravat Kumar Mishra v. State of Orissa

2015-09-22

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. The petitioner, who was working as Assistant Director, MIS under Orissa Primary Education Programme Authority (in short hereinafter referred to as OPEPA) has filed this application challenging his termination from contractual engagement with immediate effect as per Rule-28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 by giving him one months salary in lieu of one month notice pursuant to office order dated 09.04.2015 vide Annexure-1. 2. The short facts of the case in hand are that Orissa Primary Education Programme Authority is established by a memorandum of association by the Government of Odisha under the School and Mass Education Department with an objective to propagate primary education in the State. The Sarva Siksha Abhiyan (SSA) was launched with the objective to achieve universalization of Elementary Education and fulfill the constitutional mandate of providing free and compulsory education for life to the children of age group 6-14 years. The reduction in drop out and repletion rate, enhancement in the achievement levels and making learning joyful are some of the objectives of SSA. Computer Aided Learning (CAL) is implemented under SSA in Odisha. This programme started in the year 2004-05 and in the 1st phase, it was implemented in 600 numbers of Upper Primary Schools and subsequently 1003 U.P. Schools were included in the programme prior to 2012-13. To achieve the aims and objectives of SSA, steps have been taken for procurement of computer and other accessories. The petitioner was selected following a direct recruitment process for the post of Programmer by the OPEPA vide letter dated 27.09.97. Accordingly, he was issued appointment letter on 06.01.1998 to join as Programmer-cum-Training Officer at DPEP, Keonjhar. Thereafter, on 01.08.2000 he was transferred to the State Project Office, OPEPA and was in-charge of System Analyst from 28.09.2005. He was adjusted against the vacant post of System Analyst with effect from 01.03.2006. Thereafter the post of System Analyst, OPEPA was re-designated as Asst. Director, MIS as per the decision of the 23rd Executive Committee meeting of OPEPA held on 05.12.2006. From that date the petitioner was discharging his duty as Assistant Director, MIS. The petitioner has undertaken all assigned IT related tasks seriously for its timely completion and implementation. He has done various works which has been duly recognized by the authority concerned. He has successfully completed 17 years of service. From that date the petitioner was discharging his duty as Assistant Director, MIS. The petitioner has undertaken all assigned IT related tasks seriously for its timely completion and implementation. He has done various works which has been duly recognized by the authority concerned. He has successfully completed 17 years of service. While continuing as Assistant Director, MIS since 2006, all on a sudden on 13.04.2015 he has been served with the order of termination vide Annexure-1 dated 09.04.2015 terminating his contractual engagement with immediate effect as per Rule-28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 by giving one months salary in lieu of one month notice without affording the chance of hearing in violation of the principles of natural justice. Hence this case. 3. Mr. R.K. Rath, learned Senior Counsel appearing for the petitioner strenuously urged that even if the petitioner was engaged on contractual basis, his termination has been made without following the principles of natural justice which cannot sustain in the eye of law as the authority has passed the said order of termination without conducting any inquiry. Merely because the impugned order was passed as per the provisions of Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 that does not disentitle the authority to follow the principles of natural justice as such the petitioner was terminated from service on the basis of allegations made against him. If there was allegation against the petitioner, opportunity of hearing was required to be given to him. Even though the petitioner has availed remedy under Rule-33 of the OPEPA Rules and Regulations-1996, that has become meaningless because the authority–the Chief Secretary-cum-Chairman, Executive Committee, OPEPA-opposite party no.1 was apprised and dealt with the matter by approving the order of termination before it was passed and intimated to the petitioner by opposite party no.3. To substantiate his contentions he has relied upon Jarnail Singh and others, etc. v. State of Punjab and others, AIR 1986 SC 1626 , Smt. Rajinder Kaur v. Pubjab State and another, AIR 1986 SC 1790 , Km. Neelima Misra v. Dr. Harinder Kaur Paintal and others, AIR 1990 SC 1402 , Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 , Union Carbide Corporation, etc., etc. v. Union of India, etc. etc., AIR 1992 SC 248 , Committee of Management & Anr. Neelima Misra v. Dr. Harinder Kaur Paintal and others, AIR 1990 SC 1402 , Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 , Union Carbide Corporation, etc., etc. v. Union of India, etc. etc., AIR 1992 SC 248 , Committee of Management & Anr. V. Vice-Chancellor & Ors., 2009 AIR SCW 398, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, AIR 1999 SC 22 , Satwati Deswal v. State of Haryana and others, (2010) 1 SCC 126 , Karunakar Khandapani v. State of Orissa and others, 2015 (II) OLR 26 and R. Sulochana Devi v. D.M. Sujatha and others, AIR 2005 SC 4152 . 4. Mr. P.K. Mohanty, learned Senior Counsel appearing for the opposite parties has raised a preliminary question regarding maintainability of the writ petition in view of the alternative remedy preferred by the petitioner by way of appeal under Rule 33 of the OPEPA Services Rules and Regulations 1996. He stated that since the petitioner has failed to discharge his duties in a responsible manner, the same has resulted in terminating the contractual engagement of the petitioner on the basis of the inquiry report which is apparent from the impugned order. Therefore, no illegality and irregularities have been committed by the authority in taking steps in consonance with the provisions contained in the Rules governing the field. Accordingly, this Court should not interfere with the same. 5. On the facts pleaded above, it is to be considered whether this Court can entertain this application if there is gross violation of the principles of natural justice or not. It is the admitted fact that the petitioner has been engaged by following due procedure of selection in the post of Programmer by the OPEPA. Pursuant to decision of the Executive Committee, the petitioner was allowed to discharge his duty as System Analyst which was subsequently re-designated as Assistant Director MIS on the basis of his experiences, qualification, sincerity, honesty and dedication to his duty. He has rendered 17 years of service to the OPEPA and from 2006 he has discharged his duty as Assistant Director MIS. But, his services have been terminated vide Office Order dated 09.04.2015 under Annexure-1 as per the provisions under Rule-28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 by giving one months salary in lieu of one month notice. But, his services have been terminated vide Office Order dated 09.04.2015 under Annexure-1 as per the provisions under Rule-28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 by giving one months salary in lieu of one month notice. Rules-28(i) (iv) (a) (b) & (c) & 29 of OPEPA Service Rules and Regulations, 1996 is quoted below:- “28. Termination of Service:- (i) The services of an employee appointed on contract basis either retired or directly recruited on lump sum pay basis can be terminated after giving him one months notice in advance or one months salary in lieu thereof. (ii) Termination of service of an officer directly appointed by the State Government in exercise of power given in these Rules and Regulations attached to the Memorandum of Association shall be with approval of State Government after giving one months notice in advance or giving one months salary in lieu thereof. (iii) The Chairman shall have the power to surrender any officer appointed on deputation from State/Central Government or other body or undertaking before expiry of the original period of deputation or of its extended period, and can fill up the post by any other suitable officer either on deputation or otherwise. (iv) Termination of service of an employee under this rule or replacement as contemplated in this rule may be made for the following reasons. (a) For inefficiency, insubordination and insincerity in doing the work of the Authority. (b) For any misconduct and (c) Committing irregularities and impropriety of administrative and financial nature. 29. Conduct Rules:- 1. Every employee shall at all time maintain absolute integrity and devotion to duty. 2. Every employee shall abide by and comply with the rules and regulations of the Authority and all orders and directions of his superior authority. 3. Every employee shall extend utmost courtesy and due attention to all persons with whom he has to deal in course of his duties. 4. Every employee shall try to promote the interest and objectives of the authority and shall not act in any manner prejudicial thereto. 5. No employee of the Authority shall take part in any unlawful activities of political or communal nature. 6. Every employee shall report to the Authority any acquisition or movable or immovable property by him/her with value exceeding Rs.10,000/-. 7. 5. No employee of the Authority shall take part in any unlawful activities of political or communal nature. 6. Every employee shall report to the Authority any acquisition or movable or immovable property by him/her with value exceeding Rs.10,000/-. 7. Unless in any particular case it is permissible under law in force:- (i) No employee shall enter into or contract a marriage with a person having a spouse living and (ii) No employee having a spouse living shall enter into or contract a marriage with any person. 6. On perusal of Annexure-1, it appears that the entire action has been taken against the petitioner following an enquiry caused on the allegation. Therefore, the action taken in terminating the services of the petitioner is not a termination simplicitor. Therefore, the rule as contemplated in Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 mentioned above are not applicable to the petitioner. Rather, the action of the authorities is absolutely punitive one inasmuch as the purport of the office order clearly indicates that following an inquiry the action has been taken against the petitioner with his immediate termination from contractual engagement as per Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996. 7. Mr. R.K. Rath, learned Senior Counsel appearing for the petitioner strenuously urged that the action taken in terminating the petitioner from his services vide Annexure-1 is in gross violation of the principles of natural justice, which vitiates the decision. Where there is violation of natural justice no result or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with observance of natural justice the same conclusion would have been reached. 8. In Union Carbide Corporation (supra), the apex Court held as follows:- “Omission to comply with the requirements of the rule of Audi Alteram Partem, as a general rule, vitiates a decision. Where there is violation of natural justice no result or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with observance of natural justice the same conclusion would have been reached. Where there is violation of natural justice no result or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with observance of natural justice the same conclusion would have been reached. The citizen “is entitled to be under the Rule of law and not the Rule of Discretion” and “to remit the maintenance of constitutional right to judicial discretion is to shift the foundations of freedom from the rock to the sand”. But the effects and consequences of non-compliance may alter with situational variations and particularities, illustrating a “flexible use of discretionary remedies to meet novel legal situations”. “One motive” says Prof. Wade “for holding administrative acts to be voidable where according to principle they are void may be a desire to extend the discretionary powers of the Court”. As observed by Lord Reid in Wiseman v. Borneman, 1971 AC 297, natural justice should not degenerate into a set of hard and fast rules. There should be a circumstantial flexibility”. 9. In Jarnail Singh (supra), the apex Court held that when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. Applying the said principles to the present context it appears that the inquiry has been conducted by the authority and thereafter the action has been taken terminating the petitioner from services on the garb of invoking Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 by giving one month salary in lieu of one month notice, that termination cannot be termed as termination simplicitor. Therefore, the action of the authority cannot sustain in the eye of law. 10. In Smt. Rajinder Kaur (supra) the apex Court held that that though the impugned order of discharge was couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. Therefore, the action of the authority cannot sustain in the eye of law. 10. In Smt. Rajinder Kaur (supra) the apex Court held that that though the impugned order of discharge was couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. This order has been made without serving the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witnesses examined, that is, in other words the order has been made in total contravention of the provisions of Article 311(2) of the Constitution. Accordingly, the apex Court held impugned order so passed cannot be sustained in the eye of law and same has to be quashed. 11. In Neelima Misra (supra) the apex Court held as follows:- “For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a “lis”. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim Audi Alteram Partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is no not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin (1963 (2) All ER 66) (supra); State of Orissa v. Dr. Binapani Dei, (1967) 2 SCR 625 : ( AIR 1967 SC 1269 )”. 12. Ridge v. Baldwin (1963 (2) All ER 66) (supra); State of Orissa v. Dr. Binapani Dei, (1967) 2 SCR 625 : ( AIR 1967 SC 1269 )”. 12. In view of the provisions contained in Rule 28 (i) (iv) (a) (b) and (c) of the OPEPA Rules and Regulations 1996, giving the petitioner one months salary in lieu of one month notice whether the termination is valid or not. Similar question came up for consideration before the Constitution Bench of the apex Court in Delhi Transport Corporation (supra) in which the pivotal question which arose for consideration is whether Regulation 9(b) of the Regulations framed under S.53 of the Delhi Road Transport Act, 1950 which provides for termination of services of permanent and confirmed employees by issuing a notice without assigning any reason on giving simply one months notice or pay in lieu thereof without recording any reason is arbitrary, illegal, discriminatory and violative of Audi Alteram Partem Rule and so constitutionally invalid and void. Considering the same, the apex Court in majority view held in Paragraphs-162 and 164 as follows:- “162. It is well-settled that even if there is no specific provision in a statute or rules made thereunder the showing cause against action proposed to be taken against an individual, which affects the right of that individual the duty to give reasonable opportunity8 to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. 164. Even executive authorities when taking administrative action which involves any deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. In the very same judgment, the apex Court held that Rule 9(i) can aptly be called as “Henery VIII Clause” as it confers arbitrary and absolute power upon the Corporation to terminate the service of a permanent employee by simply issuing a notice or pay in lieu thereof without recording any reason in the order and without giving any opportunity of hearing to the employee and accordingly held that the same is totally unconstitutional. 13. In paragraph-264 of the said judgment, the apex Court further held as follows:- “Thus it could be held that Article 14 read with Article 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. Exercise of unbridled and uncanlised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively judiciously and without prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom than of mans other inventions. Absolute discretion marks the beginning of the end of the liberty. The conferment of absolute power to dismiss a permanent employee is antithesis to justness or fair treatment. The exercise of discretionary power wide of mark would breed arbitrary, unreasonable or unfair actions and would not be consistent with reason and justice. The provisions of a statute, regulations or rules that empower an employer or the management to dismiss, remove or reduce in rank of an employee must be consistent with just, reasonable and fair procedure. It would, further, be held that right to public employment which includes right to continued public employment will the employee is superannuated as per rules or compulsorily retired or duly terminated in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral facet of right to life assured by Article 21 of the Constitution. Any procedure prescribed to deprive such a right to livelihood or continued employment must be just, fair and reasonable procedure. In other words an employee in a public employment also must not be arbitrarily, unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void”. 14. Therefore, in view of the law laid down by the apex Court, the impugned order passed without complying with the principles of natural justice is nonest in the eye of law since no opportunity has been given before passing the order of termination under Annexure-1. More so, in R. Sulochana Devi (supra), the apex Court held considering the judgment in Krishan Lal v. State of J & K. (1994) 4 SCC 422 that an order passed in violation of the principles of natural justice renders the same invalid. Likewise, an order made without hearing the party affected is also bad in law. Applying the said principle to the present context, it appears that the order in Annexure-1 has been passed in violation of the principles of natural justice. Therefore, the same is void and as such it is a nullity in the eye of law. 15. Similar view has also been taken by the apex Court in Satwati Deswal (supra). 16. The further question raised by Mr. P.K. Mohanty, learned Senior Counsel appearing for the opposite party is that the writ petition is not maintainable due to availability of alternative remedy. In Committee of Management & Anr. (supra), the apex Court held in paragraph-21 as follows:- “21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors, (1998) 8 SCC 1 :- “15. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors, (1998) 8 SCC 1 :- “15. …… But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement or any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged….” [see also Guruvayoor Devaswom Managing Committee & Anr. V. C.K. Rajan & Ors. (2003) 7 SCC 546 ] In this case, albeit, before for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore”. Even if there is availability of alternative remedy, since there is non-compliance with the principles of natural justice, this Court has jurisdiction to entertain the challenge. 17. Similar view has also been taken in Whirlpool Corporation (supra). If there is gross violation of principles of natural justice as discussed above, the power to issue prerogative writs under Article 226 of the Constitution of India though plenary in nature, but it is not limited by any other provision of the Constitution. Principles of natural justice being inbuilt provision of Articles 14 and 16 of the Constitution of India, any action taken in violation of the said principles is without jurisdiction. Therefore, this Court has jurisdiction to entertain this application under Article 16 of the Constitution of India. 18. Mr. P.K. Mohanty learned counsel for the opposite party submits that the order under Annexure-1 has been passed in consonance with Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations 1996. It is stated that since the order has been passed in consonance with the provisions governing the field even if it violates the principles of natural justice, this Court should not interfere with the same. It is admitted that following an inquiry without supplying a copy thereof, to the petitioner the order impugned has been passed. It is stated that since the order has been passed in consonance with the provisions governing the field even if it violates the principles of natural justice, this Court should not interfere with the same. It is admitted that following an inquiry without supplying a copy thereof, to the petitioner the order impugned has been passed. Hence, this Court is of the considered view that the entire action has been taken in gross violation of the principles of natural justice though the same is inconsonance with the Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations 1996. In the present context the provision may be termed as “Henry (viii) Clause”. Therefore the impugned order having been passed without following principles of natural justice which is inbuilt in Articles 14 and 16 of the Constitution of India cannot sustain. 19. In view of the judgment in Karunakar Khandapani (supra) since the petitioner faced termination without following due procedure of law and without complying with the principles of natural justice, the order impugned under Annexure-1 cannot also sustain. 20. Accordingly, this Court sets aside the order passed in Annexure-1 dated 09.04.2015 and directs the opposite party to take the petitioner immediately into services and grant all consequential benefits as due admissible in accordance with law as if he has continued in service. The writ petition is allowed. No order to cost.