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2017 DIGILAW 763 (ORI)

Debadutta Panda v. State of Orissa

2017-07-20

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. The petitioner has approached this Court under Article 226 and 227 of the Constitution of India assailing the order dated 9.12.1999 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 57 of 1999 whereby and where under the Tribunal while dismissing the original application has approved the decision of the authority whereby and where under the petitioner has been terminated from service. 2. The fact of the case is that the applicant was initially serving as Branch Manager, Bangriposi LAMP under M.C.C. Bank, a departmental proceeding was started against him on the allegation of misappropriation of funds, causing disappearance of evidence etc, during pendency of the proceeding, he has submitted his resignation. He in the meanwhile has been selected as Lower Division Clerk in the office of the Collector, Mayurbhanj at Baripada, while he was on probation, the said bank reported about his misconduct to the Collector, and thereafter the Collector has issued explanation from the petitioner and on receipt of the reply, he has been terminated from his service which has been challenged before the Tribunal on the ground that the termination order has been passed without resorting to the regular departmental proceeding, hence there is violation of the provision of principle of Article 311(2) of the Constitution of India. 3. The authorities have appeared before the Tribunal and have submitted that under the service jurisprudence, there is no provision of having two service simultaneously, since the petitioner without relinquishing the post in a proper manner, has joined the other government service in suppression of the fact. He submits that the Bank subsequently has initiated departmental proceeding for the allegation of misappropriation of funds in which charge has been proved and the petitioner has been directed to deposit the misappropriated amount, which the petitioner has accepted and thereafter on that condition the resignation has been accepted w.e.f. 30.12.1987, hence there is no dispute about the fact that on the date when the order of appointment has been issued by the office of the Collector, Mayurbhanj i.e., on 21.03.1989 he was serving under the M.C.C. Bank, hence the Collector, being the competent authority, has issued the order of termination on the basis of the terms and conditions of the appointment order which provides that the appointment is purely temporary and terminable at anytime without assigning any reason and without notice. He further submits that the plea of the petitioner for following the principle as laid down under Article 311(2) of the Constitution of India is not applicable herein, because the enquiry required only where the fact is in dispute but from the record itself the allegation which has been leveled in the show cause is not in dispute rather the petitioner himself has filed rejoinder annexing the copy of the report pertaining to the departmental proceeding initiated by the Collector, Mayurbhanj regarding the charge of misappropriation and the charge after having been proved he has deposited the amount and on that condition his resignation was accepted w.e.f 30.12.1987 which suggests that the petitioner was the employee of M.C.C. Bank and during the subsistence period of his employment before the M.C.C. Bank he has managed to get Government appointment in the office of the Collector, Mayurbhanj by suppressing the material fact and against the service jurisprudence of having two service in the simultaneous period. 4. The Tribunal after taking into consideration all these aspects of the matter has declined to interfere with the order of termination and as such it has been prayed that this Court also may not interfere the order of the Tribunal. We have heard the learned counsel for the parties and perused the documents available on record. 5. The admitted position in this case is that the petitioner was working under MCC Bank, while he was working there, a departmental proceeding was initiated which ultimately culminated by proving the charge against him in which he has participated fully and in pursuance of the charge he has deposited the defaulted amount and thereafter his resignation was accepted w.e.f. 30.12.1987 as would be evident from Annexure-9 annexed to the rejoinder affidavit filed by the petitioner. The petitioner in the meanwhile has participated in the selection process to be appointed as Lower Division Clerk in the office of the Collector, Mayurbhanj and suppressing the material fact regarding his employment in the MCC Bank and the departmental proceeding initiated against him on the charge of misappropriation and defalcation, has been appointed by virtue of the appointment letter dated 4.8.1988. The authorities of the MCC Bank subsequently has communicated to the Collector, Mayurbhanj regarding the employment of the petitioner in the post of Branch Manager in the MCC Bank, wherein a departmental proceeding is going on for defaulting of government money, the Collector, Mayurbhanj after verifying the fact has issued a show cause notice and thereafter in view of the terms and conditions of the offer of appointment and considering the fact that the appointment was temporary in nature, has issued the termination order. The petitioner, being aggrieved with the order of termination, has approached the Tribunal, the Tribunal, after taking note of the conduct of the petitioner and also taking note of the nature of allegation leveled by his employer i.e., the MCC Bank, has declined to interfere with the order of termination. 6. The sole question raised by the petitioner is that the order of termination is bad in the eye of law since the same has been issued without following the principle of natural justice and to substantiate his argument he has rendered the judgment rendered by this Court in the case of Smt. Sushila Tiria vrs. Sri Sambhunath Nayak reported in 1986 (I) OLR 117 and the judgment pronounced by the Hon’ble Supreme Court in the case of Ratnesh Kumar Choudhury vrs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others reported in AIR 2016 SC 467 . There is no dispute about the fact that the order of termination is a capital punishment for a public servant. It is also not in dispute that merely on the ground principle of natural justice or following regular departmental proceeding the order of termination cannot be vitiated in the eye of law, the reason being if the fact is not in dispute there is no requirement to conduct any enquiry as because the enquiry is to be conducted to see the legality and propriety of the allegation leveled against one or the other delinquent employee. If the thing is admitted, relegating the matter for the departmental proceeding, will be said to be futile exercise. If the thing is admitted, relegating the matter for the departmental proceeding, will be said to be futile exercise. Here, in the instant case the fact of the case is that the petitioner has admitted the fact that he was the employee of MCC Bank working as Branch Manager, at the time when he was engaged in the office of the Collector, Mayurbhanj and a departmental proceeding was going on against him which was continued till acceptance of resignation i.e., w.e.f. 30.12.1987. It is also not in dispute that the charge in the departmental proceeding has been proved. 7. It is settled that a public servant cannot get appointment simultaneously in two places under the Government establishment, if any employee working in any of the department under the Government, intends to join better post then the foremost requirement is that he should relinquished the post held by him before the erstwhile employer. The petitioner knowing all these facts very well, made an application published by the Collector, Mayurbhanj and got his employment suppressing the material fact regarding this employment and the pendency of the departmental proceeding. The Collector after knowing this fact and considering the nature of appointment which is temporary and following the terms and conditions of the appointment order i.e., the appointment can be terminated at any time without any notice and also considering the fact for not initiating a departmental proceeding since the things are admitted as such there is no requirement of any enquiry. 8. The petitioner has taken a ground that since he has tendered his resignation and as such it will be deemed to have accepted immediately after lapse of one month and to substantiate his argument he has relied upon the judgment in the case of Smt Sushila Tiria (supra). 9. 8. The petitioner has taken a ground that since he has tendered his resignation and as such it will be deemed to have accepted immediately after lapse of one month and to substantiate his argument he has relied upon the judgment in the case of Smt Sushila Tiria (supra). 9. We, after going through the judgment are of the view that the judgment has been passed taking into consideration the provision of Rule 18 of Orissa Education (Conditions of Service etc.) Rules, 1974, where there is provision that in case of non-acceptance of resignation for the period of one month, it will be deemed to have accepted but when we have put a specific query to the learned counsel for the petitioner as to whether there is any specific rule of the Bank regarding the deemed acceptance of resignation after lapse of the statutory period of one month, he fails to satisfy this Court, and as such, we are of the view that the judgment rendered in the case of Smt. Sushila Tiria (supra) in the facts and circumstance of this case is not applicable. 10. So far as the judgment rendered by the Hon’ble Supreme Court in the case of Ratnesh Kumar Choudhury (supra) is concerned, the same is in the different context, that is regarding the complaint having been made by one intruder and without holding any enquiry, the order of termination has been passed, the Hon’ble Supreme Court in that pretext has held that the concept of motivation and foundation is to be seen and in that pretext the provisions are also to be given the right to defend themselves, if the order of dismissal is to be passed. 11. According to our considered view, the facts and circumstances of the said case is not applicable in the facts and circumstances of this case for the reason that herein the petitioner himself is admitting the entire aspect of the matter, which is the subject matter of show cause and even if the enquiry is directed to be held, no change is likely to come, rather it will lead to futile exercise. In this context the judgment rendered by the Hon’ble Supreme Court in the case of Escorts Farms Ltd. Vrs. Commissioner, Kumaon Division, Nainital, U.P. & others, (2004) 4 SCC 281 at paragraph-64, which is being quoted herein below for ready reference :- “64. In this context the judgment rendered by the Hon’ble Supreme Court in the case of Escorts Farms Ltd. Vrs. Commissioner, Kumaon Division, Nainital, U.P. & others, (2004) 4 SCC 281 at paragraph-64, which is being quoted herein below for ready reference :- “64. 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.” In another judgment the Honb’le Supreme Court in the case of Dharampal Satyapal Limited vrs. Deputy Commissioner of Central Excise, Gauhati and others, wherein it has been 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. 12. 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. 12. We, after taking into consideration the propositions laid down in the case referred herein above and the facts and circumstances and also the reason given by it, are of the view that the order passed by the Tribunal does not warrant any interference. Hence, the writ petition fails and it is dismissed.