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2017 DIGILAW 1347 (ORI)

Sripati Naik v. State of Odisha

2017-11-24

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order dated 23.10.2017 passed by the Managing Director, Odisha Cooperative Housing Corporation Limited, Bhubaneswar under Annexure-4 is under challenge whereby and whereunder the petitioner has been reverted from the post of Recovery Officer to that of the Deputy Manager on the ground of pendency of vigilance case making it operative till disposal of the vigilance case. 2. The brief fact of the case is that he, while working as Deputy Manager, was temporary promoted to the post of Recovery Officer, a post as under Category-II (Officer Grade-I) vide order dated 20.10.2014. The petitioner, while working as Recovery Officer, has been served an Office Order dated 23.10.2017 whereby and whereunder he has been reverted to the post of Deputy Manager on the ground of pendency of the vigilance case making it operative till the disposal of the vigilance case. The petitioner, being aggrieved with the said order, is before this Court by way of the instant writ petition. 3. The petitioner has taken the following two grounds in assailing the said order :- (i) The order passed by the Managing Director is without jurisdiction, since the petitioner is holding the post of Category-II, Grade-I Officer. Hence, the Chairman is the competent authority to appoint and the moment he has been appointed by the Chairman, he will be said to be appointed by the Chairman and hence, he can only be reverted by the Chairman and not by the Managing Director. (ii) While passing the order dated 23.10.2017, the principle of natural justice has not been followed. 4. Learned counsel appearing for the petitioner has submitted that since the order of reversion is there, which is punishment under the Discipline and Appeal Rule, hence the order of natural justice ought to be followed and since it has not been followed and as such, on this ground alone the order dated 23.10.2017 needs to be quashed also on the ground of jurisdiction. 5. 5. The opposite party no.3 has appeared and filed a detailed counter affidavit inter alia therein it has been stated that there is no infirmity in the order passed by the authority on the basis of the fact that a vigilance case being Bhubaneswar Vigilance P.S. Case No. 57 of 2009 dated 26.12.2009 was instituted for misappropriation of fund of the society to the tune of Rs.1,26,117/- as Secretary, Sub-Divisional Housing Cooperative Society, Patnagarh and Rs.53,000/- as Secretary, Sub-Divisional Housing Cooperative Society, Bhawanipatna, total comes to Rs.1,79,117/- which is still pending in which charge-sheet has been submitted by Vigilance Department and the trial is be commenced very soon. But the authority, without taking into consideration the charge-sheet which has already submitted, has granted him promotion. Learned counsel for the opposite party no.3 has submitted that the Surcharge Proceeding Case Nos. 58 of 2001 and 101 of 2000-01 under Section-67 of Odisha Cooperative Societies Act, 1962 are pending before the Assistant Auditor General of Cooperative Societies, Balangir. It has been submitted that under the vigilance case, charge sheet has been submitted against the petitioner before the order of promotion dated 20.10.2014 and as such, promotion ought not to have given to the petitioner to the higher post, rather the matter of promotion ought to have been kept in the sealed cover in view of the proposition laid down by Hon’ble the Supreme Court in the case of Union of India Etc. Etc. v. K.V. Jankiraman Etc. Etc., reported in 1991 AIR 2010. Etc. v. K.V. Jankiraman Etc. Etc., reported in 1991 AIR 2010. So far as the contention raised by the petitioner regarding following of principle of natural justice as also the jurisdiction of the Managing Director, submission has been made by learned counsel for the opposite party no.3 that even the order of promotion dated 20.10.2014 has been passed by the Managing Director by order of Management-In-Charge which was taken in pursuance of the decision of the Appointment Sub-Committee meeting was held on 29.9.2014 while it is evident from the order of reversion dated 23.10.2017 that the same has also been passed by the Managing Director by order of the Committee of the Management in terms of the decision of the Committee of the Management and as such, even the order of promotion since has been granted by the Managing Director which has been accepted by the petitioner and as such, now this point cannot be raised by him taking the plea of the jurisdiction of the same authority who is passing the order of reversion. So far as non-following the principle of natural justice is concerned, she submits that the following of the principle of natural justice is not a straight jacket formula, rather if there is no likelihood of change in the situation even after reply submitted by the petitioner on the ground of non-following the principle of natural justice, the order should not have been quashed. According to the learned counsel for the opposite party no.3, in the instant case, before order of promotion dated 20.10.2014, a vigilance case has been instituted way back in the year 2009 in which charge-sheet has already been submitted. Hence, even if the principle of natural justice would be provided to be followed by quashing the impugned order dated 23.10.2017, there is no likelihood of change in factual position, hence it will only lead to empty formality and futile exercise, a legal position has been settled by Hon’ble the Supreme court in this regard in the case of Union of India Etc. Etc. (supra) would be changed. In view thereof, it has been submitted that on technicality, the matter may not be remitted before the authority. 6. Etc. (supra) would be changed. In view thereof, it has been submitted that on technicality, the matter may not be remitted before the authority. 6. Heard the learned counsel for the parties and on appreciation of their rival submissions, it would be appropriate by the Court to first discuss the legal position before going through the factual aspect of this case. It is settled that promotion is not a matter of right, but equally it is also settled that the consideration to get promotion is the fundamental right. Earlier due to the malicious prosecution or the false implication of an employee in the departmental proceeding, the concerned employee was being remained out of from the benefit of promotion by not considering the case on the garb of pendency of criminal or departmental proceeding and as such, Hon’ble the Supreme Court in the case of Union of India Etc. Etc. (supra) while dealing with an order of legality and propriety of the order passed by Central Administrative Tribunal before it a memorandum of Government of India was under its scrutiny has laid down proposition in the case of Union of India Etc. Etc. (supra) where it has been laid down that in case of pendency of the criminal or departmental proceeding, the cases of such employees will be considered, but their cases will be kept in sealed cover to be opened after the conclusion of the departmental proceeding in exoneration or acquittal in the criminal case by the competent court of the criminal jurisdiction. It has also been stipulated therein that the material date for initiation of criminal proceeding would be the date of submission of charge-sheet while in the matter of departmental proceeding, the service of memorandum of charge upon the delinquent employee will be said to be the date of initiation of departmental proceeding. The proposition has been laid down that if against an employee, a criminal or departmental proceeding is pending on the due date of consideration, his case will be kept in sealed cover. 7. The proposition has been laid down that if against an employee, a criminal or departmental proceeding is pending on the due date of consideration, his case will be kept in sealed cover. 7. Now, the fact of the instant case is that the petitioner, while working as Deputy Manager, was implicated in a criminal case in Bhubaneswar Vigilance Case No. 57 of 2009 dated 26.12.2009 and it has been admitted by the learned counsel for the petitioner at Bar that charge-sheet has been submitted against the petitioner in the said criminal case before the date of granting promotion i.e. 20.10.2014. In view of such factual aspect, the authorities have considered the case of the petitioner for promotion as Recovery Officer vide Office Order dated 20.10.2014 decision to that effect has been taken by the Appointment Sub-Committee meeting which was held on 29.9.2014. 8. As has been stated hereinabove regarding the legal proposition as settled by Hon’ble the Supreme Court in the case of Union of India Etc. Etc. (supra) that if on due date of promotion any departmental or criminal case is pending, the proper course would be for the Appointing Authority to consider the case of one or the other employees for promotion, but keep it in the sealed cover to be opened after exoneration or acquittal in the departmental or judicial proceeding. But, here in the instant case, the authorities, even after knowing the fact that the petitioner is subjected to a criminal case being Bhubaneswar Vigilance Case No. 57 of 2009 dated 26.12.2009 in which charge sheet has been submitted, has granted him promotion vide order dated 20.10.2014 in pursuant to the decision taken by Appointing Sub-Committee meeting which was held on 29.9.2014 instead of keep his case in sealed cover. Thus, the serious procedural irregularities have been committed by the authorities and in view thereof, the authorities has come out with the order dated 23.10.2017 reverting the petitioner from the post of Recovery Officer to that of the post of Deputy Manager on the ground of pendency of the vigilance case. 9. Learned counsel appearing for the petitioner has challenged the said order on the ground of jurisdiction and on the ground of non-observing the principle of natural justice. 9. Learned counsel appearing for the petitioner has challenged the said order on the ground of jurisdiction and on the ground of non-observing the principle of natural justice. So far as the ground of jurisdiction is concerned, it is evident from the rule governing the field, which is known as Orissa Cooperative Housing Corporation Limited Officers and Staff Service Rules, 1986 wherein the post of Manager is under the Category-II in Officer Grade-I and the Appointing Authority of Officer Grade-I and Grade-II is the Chairman to appoint the employees in such category on the recommendation of the Appointment Sub-Committee. It is further evident from the provision of Rule-16 Orissa Cooperative Housing Corporation Limited Officers and Staff Service Rules, 1986 that the Chairman is the Appointing Authority, so far as the employees belonging to all categories save and except the staff category. The petitioner has also relied upon the provision of Rule-50 Orissa Cooperative Housing Corporation Limited Officers and Staff Service Rules, 1986 which relates to the rules governing the disciplinary action against the officers and staff of the Corporation and the power conferred to initiate the disciplinary action has been conferred upon the Chairman. It is submitted that reduction to lower post is the major punishment, which can only be done after following the due procedure as laid down therein. 10. This Court has examined the argument advanced on behalf of the petitioner in this regard and is of the view that the Chairman, i.e., the Appointing Authority of the Officers of Category-I and Category-II, who will make appointment on the recommendation of the Appointment Sub-Committee. 11. Here in the instant case, the petitioner has been granted promotion by order of Management-In-Charge under the seal and signature of the Managing Director which is in pursuant to the decision of the Appointing Sub-Committee and has accepted the order of promotion while Office Order dated 23.10.2017 is also by the order of the Committee of the Management under the seal and signature of the Managing Director which decision was taken in pursuant to the Committee of the Management. 12. 12. The petitioner has raised the jurisdiction of Managing Director, while issuing the order dated 23.10.2017 which he cannot raise for the reason that even the order of promotion has been issued by the Managing Director in pursuant to the decision of the Appointment Sub-Committee and when he has accepted the order of promotion having been issued by the Managing Director, then challenging the order of reversion by the same authority is having no substance. 13. It is not in dispute that the promotion is a mode of appointment and rule especially provides to appoint an Officer Grade-I and Officer Grade-II by the Chairman on the recommendation of the Appointment Sub-Committee and if the petitioner is questioning the authority of the Managing Director in issuing the office order dated 20.10.2014, then the order of promotion dated 20.10.2014 issued by the Managing Director will also be held to be illegal. In view thereof, since the order of promotion as well as order of reversion both are passed by the same authority, hence this argument of the petitioner is not fit to be accepted and accordingly, the same is rejected. 14. So far as the contention raised by the petitioner regarding non-observance of principle of natural justice and to strengthen his argument, submission has been made that reversion being a major punishment and as such, it is only to be passed by the Chairman by following the due procedure, but it is evident from the provision of Rule-50 of the Orissa Cooperative Housing Corporation Limited Officers and Staff Service Rules, 1986 that which contains the rule governing the disciplinary action and the Chairman has been conferred with the power for the purpose of disciplinary action against any of the officer/staff of the Corporation will be held to be the disciplinary authority except Ex-Cadre Officer. The Disciplinary Authority shall framed definite charge on the basis of allegation on which the enquiry is to be held. It is not in dispute that the reduction to lower post is punishment on account of misconduct and it is only in case of misconduct, the question of taking a disciplinary action would rise and in that situation, the regular inquiry as contemplated under the provision of Rule-50 of the Disciplinary and Appeal Rule will be attracted. It is not in dispute that the reduction to lower post is punishment on account of misconduct and it is only in case of misconduct, the question of taking a disciplinary action would rise and in that situation, the regular inquiry as contemplated under the provision of Rule-50 of the Disciplinary and Appeal Rule will be attracted. But here in the instant case, it is not a case of misconduct basis upon which the reversion order has been passed, rather it has been passed in order to rectify the illegality committed by the authority as because the promotion which ought to have been kept in sealed cover has been given vide order dated 20.10.2014 even though against the petitioner the charge-sheet has been submitted in the criminal case on the due date of consideration of promotion or even on the date of granting promotion i.e. 29.9.2014 and 20.10.2014 respectively and as such, it cannot be said that the reversion is by way of punishment, rather it is on another ground, hence the provision of Rule-50 Orissa Cooperative Housing Corporation Limited Officers and Staff Service Rules, 1986 will not be attracted and as such, there is no requirement to go for regular inquiry. 15. So far as the contention for principle of natural justice, which according to the petitioner, has not been followed, it is not in dispute that if there is any civil consequence by decision taken by the authority, the principle of natural justice is to be followed, but it is not a straight jacket formula, rather the principle of natural justice is to be followed where there is dispute in the fact while the legal position is that if there is no chance of change in the decision, merely on the ground of non-observance of principle of natural justice, quashing the decision taken by the authority will nothing but will be a futile exercise and empty formality. 16. Here in the instant case, the petitioner is not disputing the fact that on the due date of consideration of his promotion i.e. 29.9.2014 or on the due date of issuance of office order dated 20.10.2014 in the criminal case the charge-sheet has already been submitted and as such, in view of the judgment rendered by Hon’ble the Supreme Court in the case of Union of India Etc. Etc. Etc. (supra), the case of the petitioner ought to have been kept in sealed cover, but instead of keeping it in sealed cover, final order has been passed and as such, the decision which has been taken by the authority by granting promotion to the petitioner vide order dated 20.10.2014 has been rectified by issuing the office order dated 23.10.2017, that has only been done to follow the legal position as settled by Hon’ble the Apex Court in the case of Union of India Etc. Etc. (supra) although principle of natural justice has not been observed. 17. Now the question is that even if the order will be quashed by this Court on the ground of non-observation of principle of natural justice, what changed material will come, since the fact is not in dispute that on the due date of consideration or the date of granting promotion, the charge-sheet has been submitted against the petitioner in the said criminal case. Hence, there is no chance of change of any factual aspect. In this respect, the proposition laid down by Hon’ble the Supreme Court in the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015)8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below : “39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, 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.” In the case of Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & others, reported in (2004) 4 SCC 281 wherein Hon’ble the Apex Court has held at paragraph-64 which is being quoted herein below : “64. Right of hearing to a necessary party is a valuable right. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” 18. This Court has come to the conclusion that the authorities while issuing the order of promotion has not followed the judgment rendered by Hon’ble the Supreme Court in the case of Union of India Etc. Etc. (supra) and as such, the order of reversion is not to be interfered with, but simultaneously, the part of the order by which the authorities have observed therein that the reversion will be having its effect till disposal of the vigilance case, this part of the order also contrary to the ratio laid down by the Hon’ble Supreme Court in the said case for the reason that if the petitioner would be acquitted in the criminal case, he would be granted promotion subject to suitability and eligibility from the date when the order of promotion would be issued and in that way, the petitioner will be made to suffer and that is the reason for adopting the principle of sealed cover so that if the petitioner would be acquitted in criminal case or the departmental proceeding initiated against him, the sealed cover would be opened and he would be entitled to be given benefit of promotion from the said date. Hence, the part of the order dated 23.10.2017 whereby and whereunder it has been observed that the reversion order will be operative till disposal of the vigilance case needs to be modified for its consideration by the competent authority to consider the case of the petitioner in the light of the judgment rendered by Hon’ble the Supreme Court in the case of Union of India Etc. Etc. (supra) by passing fresh order within a period of six weeks from the date of receipt of certified copy of this order. Considering the position of law as well as factual aspect of this case, the point raised by the petitioner regarding non-observation of principle of natural justice on the ground of order of reversion (impugned order) needs to be quashed, is having no force. Accordingly, the same is rejected. At this juncture, learned counsel for the petitioner has submitted that at least petitioner’s case ought to have been considered on the basis of Office Memorandum dated 4th July, 1995 which speaks regarding the ad hoc promotion, but in the entire pleading this point has not been taken. However, without making any comment on this, it is left upon the petitioner to approach the authority to consider the case in the light of the said Office Memorandum dated 4th July, 1995 and the authority will liberty to take decision in accordance with law. Accordingly, the writ petition is disposed of.