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2019 DIGILAW 410 (ORI)

Saroj Kumar Sahu v. State Of Orissa

2019-06-19

B.R.SARANGI

body2019
JUDGMENT B.R. Sarangi, J. - The petitioner, who was working as Assistant Manager (System) under Orissa State Police Housing and Welfare Corporation Limited, Bhawanipatna Division, Bhawanipatna in the district of Kalahandi, has filed this writ petition to quash the charges framed against him vide Proceeding No.2/2016 dated 30.04.2016 in Annexure-3 and show-cause notice issued about the proposed punishment vide letter dated 20.09.2016 in Annexure-10 and consequential final order of punishment of compulsory retirement from service passed by the appointing authority-cum-disciplinary authority (Chairman-cum-Managing Director) in Annexure-12 dated 20.10.2016. He further seeks for direction to allow him to continue in service by granting all financial benefits as admissible to him retrospectively. 2. Orissa State Police Housing and Welfare Corporation Limited (hereinafter referred to as "Corporation") is a public sector undertaking of the Government of Odisha having its registered office at Bhoi Nagar, Janapath, Bhubaneswar. It is committed to build Police Buildings innovatively to enhance police efficiency and thereby improve Police Community relations. The Corporation undertakes to construct buildings for housing of the employees of the Government of Orissa in the Police, Prisons, Home Guards, Fire Force Department and also Judicial Department. The Corporation floated an e-tender proposal, having bid identification No.21/OPHWC/2015-16, for selection of brands which were originally given for four numbers of commonly reputed brands, i.e., Bijay, Crompton Graves, Philips & GE. The said e-tender was allegedly tampered/altered by adding the word "or equivalent". The allegation was made against the petitioner committing serious misconduct with a will-ful and mala fide intention to accommodating some unbranded firms which might not be having adequate quality control. It was further alleged that such action on his part was unauthorized and amounted to serious dereliction of duty and mala fide intention of harming the credibility & reputation of the Corporation. With this allegation, the petitioner was called upon to submit his explanation pursuant to letter dated 11.03.2016 within six days. On receiving the said letter, the petitioner submitted his explanation on 14.03.2016 specifically contending that incorporation of word "or equivalent" in the tender documents for procurement and installation of High Mast lights was in consultation with the Joint Manager(Elect) and Dy. On receiving the said letter, the petitioner submitted his explanation on 14.03.2016 specifically contending that incorporation of word "or equivalent" in the tender documents for procurement and installation of High Mast lights was in consultation with the Joint Manager(Elect) and Dy. Manager 1/C (Elect.) during document preparation before floating of the tender with an objective to participate more firms or other reputed companies complying all specifications as per the Detailed Tender Call Notice (DTCN) and denied the allegation of willful intention with mala fide motive on his part to accommodate unbranded firms. It is further contended that the bid document was prepared taking references from the CVC guidelines and similar type of tender notices flashed by other governmental organizations in Odisha viz. IDCO, H & UD Dept., GoO & CESU etc. As such, he contended that he had nothing to do with the addition/alterations of tender documents and there was no willful act to malign the reputation of the Corporation. Therefore, he prayed for exoneration of the charges. 2.1 Having dissatisfied with the explanation submitted by the petitioner, on 30.04.2016, the opposite party no.2 issued charge-sheet and memo of evidence and called for submission of explanation within one month from the date of receipt of the letter in support of his defence. The petitioner submitted his explanation to the charges levelled against him on 27.05.2016 vide Annuxure-4 denying the allegations made against him. Consequentially, the disciplinary authority-opposite party no.2 having dissatisfied with the explanation, vide Annexure-5 dated 28.05.2016 appointed Mr. G.H. Pradhan, Joint Manager, Berhampur Division as Enquiry Officer, and Mr. Subash Ch. Sahoo, Sr. Steno-cum-Asst. to Chief Engineer, OSPH & WC, Bhubaneswar as Marshalling Officer to proceed with the enquiry. On 12.07.2016, the copies of statements were supplied to the petitioner with a direction to submit his defence by 22.07.2016. In compliance of the same, the petitioner submitted his explanation on 22.07.2016 reiterating the earlier facts stating, inter alia, that the word "or equivalent" had been incorporated in DTCN and the same was discussed with Joint Manager (Elect.) and Assistant Manager (Elect.) and as such, the tender document was not prepared solely and unilaterally by him but jointly with the concurrence of the officers. On the receipt of the same, the enquiry was concluded and report was submitted on 31.07.2016 suggesting imposition of suitable punishment as deemed appropriate for gross negligence in duty against the petitioner. 2.2. On the receipt of the same, the enquiry was concluded and report was submitted on 31.07.2016 suggesting imposition of suitable punishment as deemed appropriate for gross negligence in duty against the petitioner. 2.2. On receipt of the enquiry report, opposite party no.2, vide letter dated 05.08.2016, called upon the petitioner to submit his written explanation/comment by 31.08.2016. In response to the same, the petitioner submitted his reply on 29.08.2016 reiterating the same fact which had been mentioned in earlier explanation. Having not satisfied with the explanation, on 20.09.2019, opposite party no.2 issued show-cause notice about proposed punishment in disciplinary proceeding against the petitioner and he was called upon to explain by 20.09.2016 as to why proposed punishment of compulsory retirement under Rule-9 (C)(h) of the Amended Bye-Laws (Annexure-11) of the Corporation (vide Annexure-9 of Operation and Accounts Manual) shall not be awarded to him. In response to the said show-cause notice, the petitioner submitted his explanation on 20.10.2016 at 10.20 AM, which was received by opposite party no.2 by 1.00 PM, and on receipt of the same, opposite party no.2 passed the order on the very same day, i.e. 20.10.2016 holding that the charges have been fully and conclusively proved against the petitioner and he was awarded the punishment of compulsory retirement from temporary-cum-ad hoc service with immediate effect, i.e., 20.10.2016 PM. Accordingly, the same was given effect to, on being served on the petitioner, at 6.00 P.M. on the very same day. Hence this application. 3. Mr. A.K. Mishra, learned Senior Counsel appealing along with Mr. D.K. Panda, learned counsel for the petitioner contended that the notice of show-cause for proposed punishment was issued on 20.09.2016 calling upon the petitioner to explain by 20.10.2016 On 20.10.2016, the petitioner at 10.20 AM submitted his reply by Gmail, which was received by opposite party no.2 on the very same day at 1.00 PM, and the order impugned was passed immediately on the very same day giving effect on that date itself Thereby, opposite party no.2 has shown undue haste in the matter of imposition of penalty of compulsory retirement from service without affording adequate opportunity of hearing to the petitioner, which has resulted in gross violation of the principles of natural justice. It is contended that mere receipt of show-cause reply is not sufficient when the authority proposed to impose penalty of compulsory retirement, rather for fair trial personal hearing to the petitioner was necessary and in absence of the same the order of punishment imposed on the petitioner cannot sustain in the eye of law and the same has to be quashed. To the question raised that there is availability of alternative remedy, it is contended by learned counsel for the petitioner that as per Rule-9(E) the Chairman of the Corporation is the appellate authority with regard to punishment imposed by the Managing Director or any other authority specified under Rule-9(D), but in the instant case the punishment having been imposed by the Chairman-cum-Managing Director, there is no availability of alternative remedy for the petitioner. Therefore, the petitioner has approached this Court by filing this writ petition. On the other hand, the punishment imposed by opposite party no.2 suffers from personal prejudice and bias because of the hastiness of passing of the impugned order. 4. Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr. G.P Dutta, learned counsel for the opposite parties raised preliminary objection with regard to maintainability of the writ petition due to availability of alternative remedy under the rules of the Corporation. It is contended that the petitioner has been awarded with punishment of compulsory retirement from temporary-cum-ad hoc service under Rule-9 (C)(h) of the Bye-Laws of the Corporation. As per Rule-9(E) of the Bye-Laws of the Corporation, the alternative remedy is available. The petitioner, without exhausting the said remedy, has filed the present writ petition, which is thus riot maintainable it is further contended that in course of enquiry proceeding with regard to charges framed against the petitioner, in Annexure-7 dated 22.07.2016, the petitioner has admitted his guilt to the extent that it was a great mistake on his part for involvement in preparation of electrical works tender document and has begged excuse for such mistake. Once the petitioner admitted his guilt, no other requirement is to be followed. Therefore, the authority is justified in passing the order impugned by imposing punishment of compulsory retirement from service against the petitioner. 5. This Court heard Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. D.K. Panda, learned counsel for the petitioner; and Mr. Once the petitioner admitted his guilt, no other requirement is to be followed. Therefore, the authority is justified in passing the order impugned by imposing punishment of compulsory retirement from service against the petitioner. 5. This Court heard Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. D.K. Panda, learned counsel for the petitioner; and Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr.G.P. Dutta, learned counsel for opposite parties no.2 and 3. Pleadings have been exchanged between the parties and with their consent, the matter is being disposed of finally at the stage of admission. 6. The facts narrated above are not in dispute. Admittedly, on the basis of notice of show-cause issued by opposite party no.2 on 20.09.2016 calling upon the petitioner to explain by 20.10.2016 with regard to proposed punishment of compulsory retirement imposed under Rule-9(C)(h) of the Amended Bye-Laws (Annexure-11) of OSPH&WC (vide Annexure-9 of Operation and Accounts Manual), the petitioner submitted his reply on 20.10.2016 at 10.20 AM, which was received by opposite party no.2 on the very same day, i.e., 20.10.2016 at 1.00 PM and as such, the order was passed on the very same day, i.e. 20.10.2016 awarding punishment of compulsory retirement from temporary-cum-ad hoc service with immediate effect, i.e., 20.10.2016 PM. This award of punishment of compulsory retirement appears to have been passed by opposite party no.2 with undue haste, as because on receipt of the explanation to the show-cause notice of proposed punishment, the petitioner, in compliance of the principle of natural justice would have been given an opportunity of hearing. 7. This Court called upon the opposite parties to produce the service rules applicable to the employees of the Corporation. Instead of producing the same, the opposite parties produced a letter dated 08.04.2013 titled as office order for amended Rule (9)(C) of the Bye-Laws of OSPH & WC, which has been annexed as Annexure-9 in the Operation and Accounts Manual of the Corporation. The said office order is extracted hereunder: "The Odisha State Police Housing And Welfare Corpn. Ltd. (A Government of Odisha Undertaking) Bhoinagar, Bhubaneswar-7510122 Ph. 0674-2541545/2542921.Fax:0674-541542/2541542/2541206, Email: policehousing@rediffmail.com. The said office order is extracted hereunder: "The Odisha State Police Housing And Welfare Corpn. Ltd. (A Government of Odisha Undertaking) Bhoinagar, Bhubaneswar-7510122 Ph. 0674-2541545/2542921.Fax:0674-541542/2541542/2541206, Email: policehousing@rediffmail.com. Web.: ophwc.ori.nic.in No. 4463/OPHWC Date:08-04-2013 Office Order For Amended Rule 9(C) Of The Bye-Law Of OSPH & WC The text of the amended Rule 9(C) of the Bye-Laws(Annexure-II) of the Odisha State Police Housing & Welfare Corporation Limited is as follows: 9(C) Punishment (i) The appointing authority is competent to dismiss/remove/ discharge/ reduce in rank and compulsorily retire any subordinate employee of the corporation other than those on deputation to this corporation. (ii) A temporary sub-ordinate officer who has not been declared permanent or who has served the Corporation for less than 3 years can be discharged by the appointing authority without showing any reason. (iii) The following punishments can be awarded by the competent officers explained below; (a) Dismissal, removal (b) Censure in the service book (c) Warning in the service book (d) Forfeiture of increment with or without cumulative effect. (e) Reduction in rank. (f) Monetary penalty. (g) Recovery for loss, dues, damage caused to the Government properties. (h) Compulsory retirement. (D) A regular enquiry with reasonable opportunities within the meaning of the principles of natural justice shall be afforded while penalties specified at (a), (d), (e) and (h) of rule 9(C)(iii) are imposed on the delinquent by the Chairman-cum-Managing Director, being the appointing authority. All other penalties as at (b), (c), (f) and (g) of Rule 9(C)(iii) are imposable by the CMD or Managing Director of the Corporation or by any other authority as may be specified in writing by the CMD in that behalf. (E) Appeals (i) Chairman of the Corporation will be the appellate authority with regard to the punishment imposed by the Managing Director or any other authority specified under Rule 9(D. Any Corporation employees aggrieved with the finding(s) of the appellate authority i.e. chairman of the corporation, may prefer a mercy petition to the Board of directors against the appellate order. When the Chairman-cum-Managing Director is a single entity, being the appointing and disciplinary authority, the appeal will lie to the Board of Directors of the corporation comprising of only three Directors, other than the Chairman-cum-Managing director, against the punishment/penalty awarded by the Chairman-cum-Managing director. When the Chairman-cum-Managing Director is a single entity, being the appointing and disciplinary authority, the appeal will lie to the Board of Directors of the corporation comprising of only three Directors, other than the Chairman-cum-Managing director, against the punishment/penalty awarded by the Chairman-cum-Managing director. Any corporation employee aggrieved with the finding(s) of the said appellate committee of three directors may prefer a mercy petition to the Board of directors against the appellate order. When the post of Chairman of the Corporation remains vacant for any reason whatsoever, all the powers vested and exercisable by him under this BYE-LAWS shall be deemed to have been vested upon the Managing Director or any other person as may be decided by the Board and shall accordingly be exercisable by him. (ii) In such an event the appeal will lie to the Board of Directors of the Corporation comprising of only three Directors thereof other than the Managing director, against the punishment/penalty awarded by the Managing director. (iii) All appeals/mercy petitions filed by the affected employee shall be preferred positively within 30 days from the date of communication of the order intended to be impugned in appeal or under mercy petitions, as the case may be. The above amendment shall come into force with immediate effect. Sd/- Chairman-cum-Managing Director" 8. As per sub-clause (i) of Rule 9(C) mentioned above, the appointing authority is competent to dismiss/ remove/discharge/reduce any rank and compulsory retire any subordinate employee of the Corporation other than those on deputation to the Corporation. Under sub-clause (iii)(h) of Rule 9(C) the punishment of compulsory retirement has been mentioned. As mentioned above, under Rule 9(D) a regular enquiry with reasonable opportunities within the meaning of the principles of natural justice shall be afforded, while penalties specified at (a), (d), (e) and (h) of Rule 9(C)(iii) are imposed on delinquent by the Chairman-cum-Managing Director being the appointing authority. Since punishment of compulsory retirement, as specified under Rule 9(C)(iii)(h) has been prescribed, the regular enquiry with reasonable opportunities within the meaning of principles of natural justice has to be afforded to the petitioner. As per Rule 9(E) provisions for appeal have been prescribed where under Clause (i) of Rule 9(E) the Chairman of the Corporation would be the appellate authority with regard to punishment imposed by the Managing Director or any other authority specified under Rule 9(D). As per Rule 9(E) provisions for appeal have been prescribed where under Clause (i) of Rule 9(E) the Chairman of the Corporation would be the appellate authority with regard to punishment imposed by the Managing Director or any other authority specified under Rule 9(D). Thereafter, other remedies are also available under Rule 9(E). 9. The objection raised by Mr. R.K. Mohanty, learned Senior Counsel appearing for the opposite parties was that due to availability of alternative remedy of preferring appeal against the order of punishment imposed on the petitioner, the writ application is not maintainable. But fact remains that the punishment has been imposed in accordance with Rule 9(C)(iii)(h), but as per Rule 9(D) the said punishment can be imposed only on a regular enquiry with reasonable opportunity within the meaning of principles of natural justice to the delinquent, the petitioner herein. This case is clearly covered under exception to bar of alternative remedy in State of Uttar Pradesh vs. Md. Nooh, AIR 1958 SC 86 where the apex Court held that the doctrine has no application where the impugned order has been passed in violation of principles of natural justice. 10. The apex Court time and again held that personal hearing is a part of "reasonable opportunity of being heard". Therefore, the Court has always insisted that the opportunity of hearing as insisted in the article must be an effective opportunity and not a mere pretence. In view of such position, even if there is availability of alternative remedy of preferring appeal against the order of punishment impost by the disciplinary authority, due to non-compliance of principles of natural justice this Court can entertain the writ application and as such the same is maintainable. 11. On the materials available on record it reveals that show cause notice was issued on 20.09.2016 calling upon the petitioner to file his reply on the proposed punishment of compulsory retirement on 20.10.2016 ,and the petitioner submitted his reply on 20.10.2016 at 10.20 AM which was received by opposite party no.2 on the very same day and the final order was passed also on the very same day giving immediate effect on 20.10.2016 PM. 12. 12. In D.K. Yadav vs. J.M.A. Industries Ltd., (1993) 3 SCC 259 , the apex Court held that the order of termination of the service of an employee visits him with civil consequences of jeopardizing not only his livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice 13. In Nagarjuna Construction Company Limited vs. Government of Andhra Pradesh, (2008) 16 SCC 276 , the apex Court held that over the years by a process of judicial interpretation two rules have been evolved as representing the fundamental principles of natural justice in judicial process including therein quasi-judicial and administrative process, namely, an adjudicator should be disinterested and unbiased (nemo judex in causa sua) and that the parties must be given adequate notice and opportunity to be heard (audi alteram partem). 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. 14. 'Audi alteram partem' means hear the other side; hear both sides. Under the rule, a person who is to decide must give the parties an opportunity of being heard before him and fair opportunity to those who are parties in the controversy for contradicting correcting anything prejudicial to their view. 15. In Union of India vs. Tulsiram Patel, AIR 1985 SC 1416 , the apex Court held as follows:".... audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charge against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence " 16. It is a common saying: "One tale is good till another is told". And hence comes the advice: "hear the other side". In every cause, each of the opposite parties thinks he has a right on his side and that wrong abides with his adversary. 17. In Shakespeare's play Henry VI, Act II, Sc IV, just like the way Richard/Plantagenet and Duke of Somerset conversed when they plucked the white and red roses in the Temple garden thus: "Platagenet - The truth appears so naked on my side, That any purblind eye may find it out." 18. In Charan Lal Sahu vs. Union of India, AIR 1990 SC 1480 , the pervasiveness of the rule was indicated by the apex Court which reads as follows:- "No man or no man's right should be affected without an opportunity to ventilate his views. We are.. conscious that justice is a psychological yearning, in which men seek acceptance of their view point by having an opportunity of vindication of their view point before the forum or the authority enjoined or obliged to take a decision affecting their right." 19. In Bharat Barrel & Drum Mfg. Co. vs. L.K. Bose, AIR 1967 SC 361 the apex Court held as follows:- "Where a breach of principle of natural justice is alleged, the Court should not proceed as if there are any inflexible rules of universal application but has to consider whether in the light of the facts and circumstances of the issue involved in the inquiry, a reasonable opportunity of being heard was furnished to the affected party." 20. Where the opportunity of being heard is required to be reasonable, it does not in that event depend upon the sweet will of the authority concerned. The matter in such case being justiciable, it is judicially settled that the question whether the opportunity given is reasonable or not will be a matter for interpretation of the Court and not by the authority itself granting the opportunity. 21. The matter in such case being justiciable, it is judicially settled that the question whether the opportunity given is reasonable or not will be a matter for interpretation of the Court and not by the authority itself granting the opportunity. 21. In Fedco (P) Ltd. vs. S.N. Bilgrami, AIR 1960 SC 415 , the apex Court held as follows:- "There can be no invariable standard for 'reasonableness' in such matters except that the Court's conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him, that the grounds on which the action is proposed are either non-existent or even if they exist they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in show cause against such proposed action, the nature of the plea raised by him in reply, the request for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations in all other matters which help the mind in coming to a fair conclusion on the question." 22. The concept of reasonable opportunity is essentially objective in the sense that the opportunity must be reasonable in the context of the totality of the circumstances in which the person required to show cause is placed. 23. In view of Rule 9(D) read with the office order discussed above and examining the same keeping in view the factual matrix of the case in hand, this Court is of the considered view that undue haste has been shown by opposite party no.2 while passing the order impugned on 20.10.2016 imposing penalty of compulsory retirement from service without affording reasonable opportunity within the meaning of the principles of natural justice, and as such, the petitioner has not been given any opportunity of personal hearing, which is the requirement under the Bye-Laws of the Corporation before imposing punishment of compulsory retirement. Thereby, the order impugned in Annexure-12 dated 20.10.2016 imposing penalty of compulsory retirement from service cannot sustain in the eye of law. Thereby, the order impugned in Annexure-12 dated 20.10.2016 imposing penalty of compulsory retirement from service cannot sustain in the eye of law. Accordingly, the same is liable to be quashed and hereby quashed. The matter is remitted back to the appointing authority, who is the disciplinary authority in the present case, namely, opposite party no.2 to proceed, in compliance of the principles of natural justice by affording opportunity of hearing to the petitioner, from the stage of receiving show cause reply to the proposed punishment from the petitioner, which was done on 20.10.2016. The entire exercise shall be completed within a period of two months from the date of communication of this judgment. 24. The writ application is thus allowed with the above direction. There shall be no order as to costs. 25. The file which was produced for perusal of this Court be returned forthwith to Mr. G.P. Dutta, learned counsel for the opposite parties.