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2018 DIGILAW 260 (ORI)

Rahimullah v. State of Orissa

2018-03-16

BISWANATH RATH

body2018
JUDGMENT : BISWANATH RATH, J. 1. Filing the writ petition the petitioner being a Member of the District Consumer Forum, Jharsuguda has challenged the order of his removal passed by the competent authority, vide Annexure-1. 2. Sri S.K. Pattnaik, learned senior counsel for the petitioner taking this Court to various documents filed along with the writ petition and placing reliance on the show cause notice at Annexure-10 and the averments made in paragraph-7 of the writ petition submitted that following receipt of show cause notice dated 16.4.2002, vide Annexure-10 asking the petitioner to submit his explanation by 23.4.2002, for the petitioner’s approaching the competent authority issuing the show cause notice for grant of time to file his response to the show cause on account of illness of his mother at the relevant point of time. Sri Pattnaik, learned senior counsel for the petitioner submitted that taking final decision pursuant to the show cause notice instead of granting bare minimum time is improper. Referring to the provision at Rule 3(6)(d) of the Orissa Consumer Protection Rules, 1987, for issuance of the show cause notice and for the charges and the allegations involving the petitioner, Sri Pattnaik, learned senior counsel for the petitioner contended that at the minimum one more chance should have been provided to the petitioner to submit his explanation to the show cause notice under Annexure-10. For the nature of ex-parte order and in absence of no consideration of the case of the petitioner, Sri Pattnaik prayed for interference of this Court in the impugned order at Annexure-1. 3. In his opposition, Sri K.K. Mishra, learned Additional Government Advocate for the State seriously objecting the submission of the learned counsel for the petitioner and taking this Court to the documents available in the writ petition itself more particularly the document at page-24 of the brief submitted that the petitioner had a checkered career and the petitioner was a habitual absentee. 4. Considering his previous absence and non-attendance in the court proceeding on earlier occasion, the petitioner was already exonerated previously. 4. Considering his previous absence and non-attendance in the court proceeding on earlier occasion, the petitioner was already exonerated previously. Further referring to the provision at Rule-3(6)(d) of the Orissa Consumer Protection Rules, 1988 inviting removal of service of the President or a Member for his remaining absent in three consecutive sittings of the Forum, Sri K.K. Mishra, learned Additional Government Advocate for the State thus contended that there is otherwise no illegality in the order of removal requiring this Court for interference in the same. 5. Considering the rival contentions of the parties, this Court finds, admittedly the petitioner was a Member in the District Consumer Forum, Jharsuguda. So far as the allegation made by Sri Mishra involving the petitioner at page-24 is concerned, this Court finds the allegations therein are all related to the President and not the Member, the present petitioner, thus has no bearing on the case of the petitioner. Accordingly, this Court finds, there is no substance in the above submission of Sri Mishra. 6. This Court taking into consideration the Rule-3(6)(d) of the Orissa Consumer Protection Rules, 1988 finds, the Rule reads as follows : “3(6) - The President or a member of a District Forum shall cease to be the President or members, as the case may be, if he: (d) remains absent in three consecutive sittings of the District Forum. The proviso to Rule-6 reads as follows: Provided that the membership on any of the grounds specified in Clauses (f), (g) and (h) above shall cease either on his own admission or on the basis of a finding by an enquiry causes by the State Government.” 7. Reading of the aforesaid provision in the Rules, this Court finds, the proviso attached to the Rule requires enquiry involving the allegation involving Clauses (f), (g) and (h) of Sub-Rule (6) of Rules-3. Therefore, there is no provision in the Rule, 1987 requiring enquiry involving other offences under Rule 3 of the Rule, 1987. Reading of the aforesaid provision in the Rules, this Court finds, the proviso attached to the Rule requires enquiry involving the allegation involving Clauses (f), (g) and (h) of Sub-Rule (6) of Rules-3. Therefore, there is no provision in the Rule, 1987 requiring enquiry involving other offences under Rule 3 of the Rule, 1987. But however, penalty being maximum, taking away the service of a person, this Court observes that even though there is no provision provided for entering into any enquiry involving an offence under the Clause (d) of Sub-Rule (6) for the nature of allegations against the petitioner involving Annexure-10 and explanation being called for from the petitioner, since the petitioner was not able to file any response to the show cause at the bare minimum a further chance to file response to the show cause to the petitioner should have been granted. It is under the circumstance and since the order of removal is passed without providing reasonable opportunity of objection to the show cause, this Court finds, the order of removal at Annexure-1 is not sustainable in the eye of law. It is at this stage, considering the allegation involving the petitioner at Annexure-10, a fresh consideration is required involving the allegation of unauthorised absence by the petitioner, this Court while setting aside the order at Annexure-1 directs the competent authority to accept the response of the petitioner to the show cause at Annexure10, which will be submitted by the petitioner within two weeks hence and pass a fresh order involving the show cause at Annexure-10 taking into consideration the explanation of the petitioner within a further period of one month but however giving opportunity of hearing to the petitioner also. Following the ratio held by the Hon’ble apex Court in the case of Managing Director ECIL Hyderabad vs. B. Karunakar, (1993) 4 SCC 727 , entitlement of any emolument by the petitioner shall be subject to the ultimate outcome in the fresh order to be passed by the competent authority. 8. The writ petition succeeds. No cost.