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2016 DIGILAW 468 (ORI)

Saubhagyabati Jena v. State of Odisha

2016-06-29

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. This writ petition is against the order dtd.25.2.2016 passed by the Collector, Gajapati whereby and where under the petitioner has been disengaged from service on the ground of her involvement in the criminal case being Vigilance P.S. Case No.01 dtd.4.1.2014, U/s.13(2) read with 13(1)(d) / 7 P.C. Act, 1988, in consequence thereof the petitioner was taken into judicial custody and remained in custody till 19.1.2016, but however, she was subsequently released on bail. 2. Learned counsel for the petitioner while assailing the order dtd.25.2.2016 has submitted that the authority ought to have issued show cause notice prior to issuance of office order dtd.25.2.2016 by which she has been disengaged from service and as such there is violation of principle of natural justice, hence on this ground the order dtd.25.2.2016 is fit to be set aside. 3. Learned counsel representing the opposite party – State Miss Sanjivani Mishra has submitted that the petitioner was engaged as lady supervisor totally on contract basis, as would be evident from office order dtd.13.4.2010 and since she was found to be involved in a criminal case for getting illegal gratification of Rs.1,16,600/- on demand from one Smt. Kabita Nayak, as such she was caught red handed by the trap team constituted by the Vigilance Department of the State and thereafter a case being Vigilance P.S. Case No.01 dtd.4.1.2014, U/s.13(2) read with 13(1)(d) / 7 P.C. Act, 1988 has been registered against her and she was arrested on 6.1.2016 and thereafter was remanded to judicial custody where she remained till 19.1.2016, hence the petitioner was disengaged. So far as the contention raised by the petitioner regarding non-issuance of show cause notice, it has been contended by the learned counsel for opposite party – State that the show cause notice is required in such a situation where there is dispute in the factual aspect, but here the petitioner cannot dispute the factual aspect basing upon which she has been disengaged from service, hence even if the matter would be remitted before the authority for issuance of show cause notice, there would be no change in the factual aspect since the petitioner cannot deny the factual aspect and it would only be a futile exercise and empty formality. She further submits that the engagement of the petitioner was totally on contract and as such there is no requirement to issue show cause notice upon her since the nature of allegation is serious and based upon factual aspect, hence on this ground the order dtd.25.2.2016 cannot be set aside. 4. Heard the learned counsels for the parties and perused the documents on record. Admittedly, the petitioner was working as lady supervisor on contractual basis as would be evident from the office order dtd.30.4.2010. While the petitioner was working as lady supervisor, she was caught red handed while accepting bribe of Rs.1,16,600/- on demand from Stm. Kabita Nayak, the complainant and accordingly case being Vigilance P.S. Case No.01 dtd.4.1.2014, U/s.13(2) read with 13(1)(d) / 7 P.C. Act, 1988 has been registered and thereafter she was arrested on 6.1.2016 and remanded to judicial custody where she remained till 19.1.2016. The Collector, Gajapati being the competent authority after knowing about this fact has disengaged the petitioner from service. The petitioner has challenged the order of disengagement on two grounds:- (i) Show cause notice has not been issued, hence there is violation of principle of natural justice, and (ii) The order of disengagement has been passed disengaging the petitioner from duty with effect from 6.1.2016 and as such the disengagement cannot be made with retrospective effect. 5. So far as the first ground of non-issuance of show cause notice is concerned, there is no dispute about the fact that right to fair hearing, would mandate what is literally known as ‘hearing the other side’ which ensures taking of correct decision and procedural fairness and it is no the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. It is also settled law that proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is also well settled law that principles of natural justice are integral part of Article. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. It is also well settled law that principles of natural justice are integral part of Article. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. While the law on the principle of audi alteram partem has progressed but at the same time the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. There may be situations wherein for some reason – perhaps because the evidence against the individual is thought to be utterly compelling – it is felt that a fair hearing would make no difference – meaning that a hearing would not change the ultimate conclusion reached by the decision maker – then no legal duty to supply a hearing arises. The court does not act ion vain. No one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing. In such situations, fair procedures appear to serve no purpose since right result can be secured without according such treatment to the individual. In the case of Managing Director Vrs. E.C.I.L., (1993) 4 SCC 727 the view has been taken that in case of any prejudice having been caused to the employee merely on the ground of non-supply of enquiry report the order of punishment will not vitiate. Reference in this regard may be made to the judgment rendered by Hon’ble Apex Court in case of Dharampal Satyapal Ltd. Vrs. Deputy Commissioner of Central Excise, Gauhati and Others, (2015) 8 SCC 519 wherein their lordships have laid down that even if notice has been issued, if there is no chance of change in the factual aspect, merely on the ground of not following the principles of natural justice the order cannot be said to be illegal. It has been held thereby giving reference to the judgment rendered by Hon’ble Apex Court in the case of Escorts Farms Ltd. Vrs. It has been held thereby giving reference to the judgment rendered by Hon’ble Apex Court in the case of Escorts Farms Ltd. Vrs. Commissioner, Kumaon Division, Nainital, U.P. & Ors., (2004) 4 SCC 281 wherein it has been held that it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. On the basis of the principle laid down as indicated above there is no dispute about the fact that petitioner had been caught red handed while accepting bribe of Rs.1,16,600/- on demand from the complainant and thereafter vigilance case being Vigilance P.S. Case No.1 of 2016 has been registered U/s.13(2) read with 13(1)(d) / 7 P.C. Act, 1988 and the petitioner was arrested on 6.1.2016 thereafter remanded to judicial custody where she remained till 19.1.2016. The Collector, after taking into consideration the fact that the petitioner has been found involved in serious nature of allegation, has disengaged the petitioner considering the fact that petitioner was on contractual engagement and the engagement order also contains a condition that the appointment is purely temporary and can be terminated at any time as would be evident from annexure-2, hence even if show cause notice would be issued to the petitioner then also the factual aspect, basing upon which the petitioner has been disengaged would not change, as such merely for following the principles of natural justice the order dtd.25.2.2016 cannot be quashed, otherwise it will be said to be futile exercise and empty formality, since even if the order would be set aside and it would be remanded before the Collector, there cannot be any change in the factual aspect, hence merely on the ground of non-following the principle of natural justice the order is not fit to be quashed and it is not quashed. 6. So far as the second ground is concerned that the disengagement of the petitioner was with retrospective effect, but in my considered view, the same has also no substance as because the order was passed disengaging the petitioner from the date when she was arrested, i.e. 6.1.2016, hence it cannot be said that the order of disengagement on this ground is not sustainable. Moreover, for the regular employee there is provision to put the employee under suspension the moment the regular employee is taken into custody and remained in custody for 48 hours, but since the petitioner is working as lady supervisor which is a contractual engagement, she cannot be suspended, hence the authority cannot allow the employees like the petitioner to remain or continue in service taking into consideration of serious nature of allegation which relates to moral turpitude. Accordingly and in totality of facts and circumstances of the case the order dtd.25.2.2016 needs no interference. There is no merit in this writ application, hence dismissed.