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2017 DIGILAW 248 (ORI)

Shishir Kumar Sahoo v. State of Odisha

2017-03-08

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. Filing this writ petition the petitioner has assailed the order of removal dated 6.8.2016 passed by the Director, Panchayati Raj Department, Government of Odisha vide Annexure-7 thereby removing him from the post of Chairman, Khandapada Panchayat Samiti, Nayagarh on the premises that further continuance of the petitioner to hold public office like Chairman of Panchayat Samiti would impair the morale and erode the credibility of the Panchayati Raj Institutions and would be detrimental to the interest of the said Samiti. 2. Short background involved in this case is that the petitioner was elected as the Chairman of the Khandapada Panchayat Samiti in the month of March, 2012 and while the petitioner was continuing as such, he was implicated in a criminal case under Section 13(2) read with 13(1) of the Prevention of Corruption Act, 1988 vide Vigilance P.S. Case No.25 under the allegation of possession of disproportionate assets to the tune of Rs.5,56,04,106/-followed with the assets of the petitioner on 19.5.2016. It further comes out that basing on a letter from the Superintendent of Police, Vigilance and a letter from the Collector in the said connection, the opposite parties issued the petitioner a show cause notice dated 21.6.2016 asking him to show cause as to why he shall not be removed from the Office of the Chairman, Khandapada Panchayat Samiti for being in possession of disproportionate assets and further being involved in a Vigilance P.S. Case. Petitioner in his response on 4.7.2016 requested the authorities to provide copy of the documents negotiating the allegations made against him in the matter of disproportionate assets while formally denying the allegations made in Annexure-1. Notwithstanding the request of the petitioner for supply of document to enable to him to a justified response, the Under Secretary to Government by its letter dated 15.7.2016 addressed to the Collector intimating therein that the personal hearing in the matter of the petitioner shall be held at the Secretariat Office of the Minister of Panchayati Raj on 22.7.2016 with a communication to the petitioner also to attend with relevant documents on the scheduled date, place and time. District Panchayat Officer also in the meantime asked the Block Development Officer to attend the Office of the Minister with the relevant documents on 22.7.2016 to participate in the personal hearing involving the proceeding against the petitioner. District Panchayat Officer also in the meantime asked the Block Development Officer to attend the Office of the Minister with the relevant documents on 22.7.2016 to participate in the personal hearing involving the proceeding against the petitioner. In the meantime, the petitioner also made a communication to the Minister requesting him therein for deferment of the proceeding intimating therein the non-cooperation of the employer in the matter of supply of relevant documents to enable him to have an appropriate contest in the matter. It is alleged that in spite of petitioner’s repeated request, there was no supply of documents to him and on the other hand, the proceeding was concluded against the petitioner without affording minimum natural justice. The petitioner was served with the order of removal dated 6.8.2016 on the premises of misappropriation of public funds, which is under challenge in the present writ petition. 3. Challenging the order of removal vide Annexure-7, learned counsel for the petitioner referring to the provisions contained in Section 40(A) and Section 52 of the Orissa Panchayat Samiti Act contended that the petitioner being a public servant, a proceeding involving the issue through a full-fledged enquiry should have been maintained. It is alleged that the procedure adopted by the opposite parties in the matter of removal of the petitioner not only remain contrary to the provisions contained in Section 40(A) and Section 52 of the Act but a procedure also unknown to law. It is thus, claimed that the order of removal being in the nature of capital punishment, no order of removal is permissible in absence of a full-fledged enquiry involving the specific charges set out, communicated and established. Referring to the decisions reported in the AIR 2003 SC 2041 and a decision as reported in 2006 (Supp.I) O.L.R. 939 Sri Das, learned counsel for the petitioner contended that his case is squarely covered by the judgment rendered by the Orissa High Court in the above reported case and the order of removal was therefore, not sustainable in the eye of law which is required to be interfered with and set aside. 4. 4. Sri K.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties referring to the counter affidavit filed by the opposite party Nos.1 & 3 on the other hand, contended that admittedly, the petitioner is facing a Vigilance P.S. Case under Section 13(2) read with 13(1) of the Prevention of Corruption Act on the allegation of disproportionate assets to the tune of Rs.5,56,04,106/-and now he is on bail. Further, looking to the allegations made against the petitioner, it is also apparent that the petitioner is unfit to hold the public Office like Chairman, Khandapada Panchayat Samiti, Nayagarh. In the enquiry conducted under Section 52 of the Act, 1959 the Government after being satisfied that further continuance of the petitioner in the post of Chairman, Khandapada Panchayat Samiti, Nayagarh is prejudicial to the interest of the common people of the Panchayat Samiti and also to degenerate the morale of the Block functionaries with eroding the credibility of the Panchayati Raj Institutions, no sympathy should be shown to the petitioner upon interfering in such matters. 5. Referring to the records involving the petitioner and taking this Court particularly to the allegations made against the petitioner involved in the proceedings vide Vigilance P.S. Case, learned Additional Government Advocate appearing for the State-opposite parties strenuously urged that there is no illegality in the impugned order leaving any scope for interfering in the same by this Court. 6. Considering the submissions made by both the parties and after perusal of the records, this Court vide Annexure-1 finds, the petitioner has been issued with a show cause notice asking him as to why he shall not be removed from the post of Chairman of Khandapada Panchayat Samity, Nayagarh in exercise of power under Section 40(A) of the Act, 1959 for his possessing disproportionate asset to the tune of Rs.5,56,04,106/-. On perusal of the show cause notice it clearly demonstrates that the basis of the show cause is a report submitted by the Superintendent of Police, Vigilance involving the petitioner in a Vigilance P.S. Case under Section 13(2) read with 13(1) of the Prevention of Corruption Act. On perusal of the show cause notice it clearly demonstrates that the basis of the show cause is a report submitted by the Superintendent of Police, Vigilance involving the petitioner in a Vigilance P.S. Case under Section 13(2) read with 13(1) of the Prevention of Corruption Act. It appears that the petitioner by Annexure-2 upon receipt of the show cause notice had requested the Director, Panchayati Raj Department to provide him the copies of the documents based on which the alleged disproportionate case has been initiated, for at least enabling him to file an appropriate show cause to prove his innocence. Further, the document filed by the petitioner along with the writ petition at Annexures-5 & 6 also establishes that the petitioner after receiving the notice of hearing had requested for supply of documents to enable him to give a satisfactory reply to establish his innocence. The show cause appears to have been issued in exercise of power under Section 40(1) of the Orissa Panchayat Samiti Act, 1959. 7. Section 40(1) of the Act, 1959 reads as follows: “Government’s power to take action in default of a Samiti or its Chairman – (1) If at any time, it appears to the Government that a Samiti or its Chairman has made default in performing any duty imposed by or under this Act or any other law for the time being in force they may, by order in writing fix a period for the performance of such duty.” Reading of the provision, this Court finds, there is no doubt that a Chairman or a Vice-Chairman of the Samiti can be removed upon satisfaction of the Government that continuance of such person in the Office would be detrimental to the interest of the said Samiti. Section 52 of the Act, 1959 reads as follows: “52. Chairman, Vice-Chairman and employees to be public servants – (1) The Chairman, the Vice-Chairman and the employees of the Samiti shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code, 1980 (45 of 1860). (2) The employees of the Samiti shall be governed by the Orissa Government Servants’ Conduct Rules, 1959.” Bare reading of the above provisions makes it clear that the Chairman and Vice-Chairman as well as employees of Samiti shall be deemed to be the public servant within the meaning of Section 21 of the Indian Penal Code. (2) The employees of the Samiti shall be governed by the Orissa Government Servants’ Conduct Rules, 1959.” Bare reading of the above provisions makes it clear that the Chairman and Vice-Chairman as well as employees of Samiti shall be deemed to be the public servant within the meaning of Section 21 of the Indian Penal Code. Reading of the aforesaid provisions and considering the submission made by the learned counsel for the petitioner that the petitioner being a public servant under Section 21 of the I.P.C. if can be terminated on mere satisfaction of Government that continuance of such person is detrimental to the Panchayat Samiti is or not?, this Court finds that admittedly, there is a proceeding vide Vigilance P.S. Case No.25 dated 19.5.2016 under Section 13(2) read with 13(1) (e) of the Prevention of Corruption Act. The only fact brought forth through the submission of the parties and from the documents filed by both the sides is that the said vigilance case is still pending consideration and there is as such no finality to the vigilance proceeding. Consequently, the allegation against the petitioner is far from being established. Therefore, the allegation involved in the vigilance case remain in shape of allegation, unless be established it cannot be construed that the petitioner is liable to be convicted under Section 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act and therefore, does not deserve to hold the post of Chairman of the Panchayat. 8. Be that as it may, the further facts reveals from the pleadings and materials available on record that the show cause notice vide Annexure-1 clearly appears to have been issued on the basis of a report of the Superintendent of Police, Vigilance, Bhubaneswar vide his letter No.4246 dated 20.5.2016 and letter No.681 dated 8.6.2016 of the Collector, Nayagarh which admittedly cannot be taken to be proved. Entire reading of the show cause, this Court nowhere finds any other allegation made against the petitioner except the allegations in the Vigilance P.S. Case. Further looking to the repeated letters at the instance of the petitioners, it also becomes clear that the petitioner has time and again asked for supply of documents supporting the allegations made against him through the show cause notice and admittedly, there is no supply of documents to the petitioners even as on date. Further looking to the repeated letters at the instance of the petitioners, it also becomes clear that the petitioner has time and again asked for supply of documents supporting the allegations made against him through the show cause notice and admittedly, there is no supply of documents to the petitioners even as on date. Learned Additional Government Advocate though produced the entire records but unable to satisfy this Court that the petitioner’s demand regarding supply of document relevant for an appropriate reply in the matter, has been met or not. Further, looking to the provisions contained in Section 52 of the Act, 1959 as referred to hereinabove, it has also been made clear that the petitioner is a public servant within the meaning of Section 21 of the Indian Penal Code. For the dispute involved removal of a public servant, this Court looking to the nature of the proceeding and the order of removal, observes the procedure adopted by the public authorities in the matter of removal of a public servant from his post is unknown to Law. Neither there is any charge-sheet nor the allegations against the petitioner have been established and surprisingly, the proceeding initiated against the petitioner has been concluded merely basing on some correspondences made by the Superintendent of Police, Vigilance as well as on the basis of some correspondence by the Collector, Nayagarh. This Court finds, there is gross failure of compliance of natural justice. This Court also finds it strange that there is no establishment of the allegation against the petitioner coming forth through the order of removal. Looking to the decision of the land in the matter of removal of public servant vis-à-vis compliance of natural justice, this Court on perusal of the judgment in a case between Canara Bank and others v. Shri Debasis Das and others as reported in AIR 2003 SC 2041 finds in paragraph Nos.19 & 21 the Hon’ble Apex Court held as follows : “19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly 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 framework 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. xxx xxx xxx 21. 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 ‘nemo judex in causa sua’ 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 at paras’ (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 from ‘audietur at altera pars’ is used, meaning very much the same thing. The second rule is ‘audi alteram partem,’ that is, hear the other side.’ At times and particularly in continental countries, the from ‘audietur at altera pars’ is used, meaning very much the same thing. A corollary has been deducted from the above two rules and particularly the audi alteram partem rule, namely, ‘qui aliquid statuerit parte inadita alteram actquam 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 Boswell’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.” 9. This Court has also the occasion for going through the decision given by this Court in a case in between Laxmidhar Tripathy v. State of Orissa and others as reported in 2006 (Supp.-II) OLR 939, where considering the case of removal of a Chairman of a Panchayat Samiti itself, this Court after finding that there was no enquiry on the allegation against the Chairman following the decision of the Hon’ble Apex Court as reported in AIR 2003 SC 2041 set aside the order of removal of the Chairman on the premise of noncompliance of natural justice and not being maintainable in absence of a full-fledged enquiry since it involved a removal of a public servant. Considering that there are serious allegations against the petitioner that a vigilance case is also pending against the petitioner, therefore, this aspect of the matter cannot be lost sight of. Considering similar situation, the Hon’ble Apex Court in a Civil Appeal bearing No.2641 of 2012 in the matter of State of West Bengal and others vs. Pronab Chakraborty along with several other Civil Appeals, the Hon’ble Apex Court held as follows: “It is therefore apparent, that it is not only for pecuniary loss caused to the Government that proceedings can continue after the date of superannuation. An employee can be proceeded against, after the date of his retirement, on account of “…grave misconduct or negligence…”. Therefore, even in the absence of any pecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retired from service. Obviously, if such grave misconduct or negligence, entails pecuniary loss to the Government, the loss can also be ordered to be recovered from the concerned employee. It was therefore not right for the High Court, while interpreting Rule 10(I) of the 1971 Rules to conclude, that proceedings after the date of superannuation could continue, only when the charges entailed pecuniary loss to the Government.” 10. For the observations made by this Court on the factual aspect involving the petitioner in the writ petition and taking into consideration the decision of the Hon’ble Apex Court as well as the decision of this Court referred to hereinabove, this Court has no hesitation to interfere in the impugned order and consequently, sets aside the order of removal vide Annexure-7. As a consequence of setting aside the order under Annexure-7 i.e. the order of removal of the petitioner, he would be treated to have been continuing as Chairman of the Panchayat Samiti till any further decision is taken or attached till expiry of period from the post whichever is earlier. However, looking to the nature of allegation made against the petitioner including initiation of a vigilance case, it is also open to the State authorities to deal with the matter in accordance with law. 11. As a result, this writ petition stands allowed but however, with the observations as above. No Cost.