Subash Chandra Baliarsingh v. Bharat Petroleum Corporation Ltd.
2019-06-25
B.R.SARANGI
body2019
DigiLaw.ai
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, by means of this writ petition, seeks for following reliefs: ":.....to issue a Rule NISI calling upon the opp-parties to show cause as to why Annexure-11 refusing acceptance of Caste Certificate of the petitioner which was submitted under Annexure-10 shall not be accepted and as to why the order of termination shall be quashed and as to why the petitioner shall not be reinstated in his service as before; And if the opposite parties fail to show cause or show insufficient cause the rule may be made absolute against the opp-parties and a writ of mandamus may be issued to the opp-parties particularly the opp-party No. 2 and 3 to allow the petitioner to join in his post;" 2. The factual matrix of the case, in hand, is that the petitioner belonged to scheduled tribe community being sub tribe 'Sabar' and is a permanent resident of village Bajpur under Khurda district in the State of Odisha. He was selected by following due process of selection and appointed as Operator-V (Field) in the L.P.G. Bottling Plant at Khurda, as a scheduled tribe candidate, pursuant to order dated 25.01.1999 issued by opposite party No. 3 in Annexure-1, At the time of his entry into service, the petitioner had produced a caste certificate issued by the Tahasildar, Khurda in Misc. Case No. 330 of 1991. The opposite parties, being satisfied with the documents produced by the petitioner, allowed him to discharge his duty and confirmed his service by letter dated 18.05.2000 in Annexure-3. Subsequently, considering the performance of the petitioner, the opposite parties promoted him to the post of Operative-IV(F) (Mobile) Lab. Attendant-cum-Helper, by letter dated 10.02.2004 in Annexure-4. 2.1. When the position stood thus, opposite party No. 2 wrote a letter to the petitioner on 02.05.2006 calling upon him to submit an explanation within seven days as to why his service with the Corporation would not be terminated, as the information and certificate furnished by him with regard to his caste is not genuine. The petitioner sought for time to produce caste certificate, but he could not do so within time specified. Again, vide letter dated 30.07.2007, the petitioner was intimated that he failed to produce the caste certificate, as almost 1 year and 2 months passed, therefore submit the same without further delay.
The petitioner sought for time to produce caste certificate, but he could not do so within time specified. Again, vide letter dated 30.07.2007, the petitioner was intimated that he failed to produce the caste certificate, as almost 1 year and 2 months passed, therefore submit the same without further delay. Since he could not submit the caste certificate, as demanded by the authority, he was terminated from service vide letter dated 18.03.2008 in Annexure-7 granting one month salary. Subsequently, the petitioner obtained a caste certificate on 25.04.2008 issued by the Tahasildar, Khurda in Misc. Case No. 66, and submitted a representation on 28.04.2008 to opposite party No. 2 for reinstating him in service. As no action was taken on his representation, the petitioner approached this Court by filing W.P.(C) No. 16013 of 2009 seeking direction to the opposite parties to accept the caste certificate issued by the Tahasildar, Khurda in Misc. Case No. 66 dated 25.04.2008 and reinstate the petitioner in service by quashing, Annexure-7. This Court disposed of the said writ application by order dated 26.03.2014 directing the opposite parties to consider the grievance of the petitioner taking into; account caste certificate issued by the Tahasildar, Khurda under Annexure-10 dated 25.04.2008 and pass necessary order. Though such order was produced before the authority concerned, along with the caste certificate issued by the competent authority, the opposite party No. 2 passed the order impugned on 25.04.2014 in Annexure-11 stating that under Clause 8(i) of the appointment letter dated 25.01.1999, while he was appointed as Operator-V (Field) in the Corporation, the appointment was offered on the basis of correct information furnished regarding his past service, and that if at any time it is revealed that employment has been obtained by furnishing false information or withholding pertinent information, the Corporation will be free to terminate the service at any time with notice as required. Hence, this writ application. 3. Mr. B. Dash, learned counsel for the petitioner contended that Annexure-11 dated 25.04.2014 passed by opposite party No. 2 is an outcome of non-application of mind and non-compliance of order dated 26.03.2014 passed by this Court in W.P.(C) No. 16013 of 2009. As such, the opposite parties, while considering the case of the petitioner, have not given him opportunity of hearing in compliance of principles of natural justice, and thereby the order impugned cannot sustain in the eye of law. 4. Mr.
As such, the opposite parties, while considering the case of the petitioner, have not given him opportunity of hearing in compliance of principles of natural justice, and thereby the order impugned cannot sustain in the eye of law. 4. Mr. S. Patnaik, learned counsel for the opposite parties argued with vehemence that once the petitioner has entered into service by furnishing a fake caste certificate, the action taken in consonance with clause 8(i) of the appointment letter is well justified. It is further contended that as the petitioner had got employment by furnishing false information and withholding pertinent information, the opposite party Corporation is justified in taking such action against him. It is further contended that the order impugned in Annexure-11 has been passed by the authority with due application of mind. In order to substantiate his contention he has relied upon a judgment of the apex Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board, AIR 2016 SC 1098 . 5. This Court heard Mr. B. Dash, learned counsel for the petitioner and Mr. S. Patnaik, learned counsel for the opposite parties and perused the record. Pleadings having been exchanged between the parties arid with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. Admittedly, the petitioner had got employment by producing a caste certificate issued by the Tahsildar, Khurda in Misc. Case No. 330 of 1991 stating that the petitioner belonged to scheduled tribe community being sub-caste 'Sabar'. While he was discharging his duty, pursuant to the judgment passed by Delhi High Court with regard to verification of caste certificates produced by Scheduled Caste and Schedule Tribe candidates, the opposite parties caused verification of caste certificate produced by the petitioner and found to be a fake one. During such enquiry, no opportunity of hearing was given to the petitioner and was done behind his back. Accordingly, a proceeding was initiated against the petitioner for terminating him from service. In the said proceeding, the petitioner had candidly stated that he belonged to scheduled tribe community being sub-caste 'Sabar' and furnished a genuine caste certificate issued by the Tahasildar, Khurda in Misc. Case No. 66 dated 25.04.2008.
Accordingly, a proceeding was initiated against the petitioner for terminating him from service. In the said proceeding, the petitioner had candidly stated that he belonged to scheduled tribe community being sub-caste 'Sabar' and furnished a genuine caste certificate issued by the Tahasildar, Khurda in Misc. Case No. 66 dated 25.04.2008. Before that, the petitioner had also produced two certificates; one issued by the local Sarpanch and the other by the M.L.A., to the effect that the petitioner belonged to scheduled tribe community being sub-caste 'Sabar', awaiting the certificate to be issued by the competent authority. But the opposite parties, without considering the same, terminated the services of the petitioner, relying upon clause 8(i) of the appointment letter. Therefore, the petitioner approached this Court by filing W.P.(C) No. 16013 of 2009, which was disposed of by order dated 26.03.2014 directing the opposite parties to consider the case of the petitioner taking into account the caste certificate produced by him in Annexure-10. But, in compliance of the said order dated 26.03.2014 passed by this Court in W.P.(C) No. 16013 of 2009, the opposite party No. 2 passed the order impugned in Annexure-11 dated 25.04.2014 assigned the reason in paragraph-5 thereof, which reads thus :- "Your subsequent production of another Caste Certificate dated 25.04.2008 and as attached as Annexure-10, to the Corporation does not merit any consideration by the Corporation as in the first instance during the year 1999, you have resorted to production of fake certificate to the Corporation. You are also aware that the said action of yours was contrary to what mentioned in the appointment letter dated 25.01.1999 issued to you." A bare reading of the above would go to show that the opposite party No. 2 in the order impugned has only reiterated the earlier stand that the petitioner resorted to falsehood by producing fake caste certificate to the Corporation and such action of the petitioner was contrary to what mentioned in the appointment letter dated 25.01.1999. But this was not the purport of the order dated 26.03.2014 passed by this Court in W.P.(C) No. 16013 of 2009, in which this Court had clearly directed the opposite parties to consider the case of the petitioner taking into account the caste certificate produced by him in Annexure-10 and pass appropriate order.
But this was not the purport of the order dated 26.03.2014 passed by this Court in W.P.(C) No. 16013 of 2009, in which this Court had clearly directed the opposite parties to consider the case of the petitioner taking into account the caste certificate produced by him in Annexure-10 and pass appropriate order. Furthermore, opposite party No. 2, while passing the order dated 25.04.2014 in Annexure-11, has not complied the principles of natural justice by affording opportunity of hearing to the petitioner. 7. In Maneka Gandhi vs. Union of India, (1978) 1 SCC 248 , Hon'ble Justice P.N. Bhagwati stated that the soul of natural justice is 'fair play in action'. 8. In Swadeshi Cotton Mills vs. Union of India, AIR 1981 SC 818 , the apex Court while considering the meaning of natural justice held as follows: "The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formula. Historically, "natural justice" has been used in a way "which implies the existence of moral principles of self-evident and unarguable truth", "Natural Justice" by Paul Jackson, 2nd Ed., page 1. In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice." 9. In D.K. Yadav v. 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. 10.
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. 10. In Nagarjuna Construction Company Limited v. 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. 11. '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 or correcting anything prejudicial to their view. 12. In Union of India v. 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 charges 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....." 13. In Charan Lal Sahu v. 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.
In Charan Lal Sahu v. 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 viewpoint before the forum or the authority enjoined or obliged to take a decision affecting their right." 14. In Bharat Barrel & Drum Mfg. Co. v. 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." 15. Therefore, the basic rudiment of law requires that an opportunity of hearing has to be given to the aggrieved party while passing the order by a quasi-judicial or administrative authority and the order impugned does not indicate the reason for non-acceptance of the caste certificate produced by the petitioner in Annexure-10. In absence of the same and for non-compliance of the principles of natural justice, this Court is of the considered view that the order impugned in Annexure-11 cannot Sustain in the eye of law and the same is liable to be quashed. 16. Reliance has been placed by the opposite parties on the judgment of the apex Court in Ram Kumar Gijroya (supra), it does not support the claim of the opposite parties, rather it supports the case of the petitioner in view of the observation made in paragraph 17 thereof which is extracted hereunder:- "17. The matter can be looked into from another angle also. As per the advertisement dated 11th June, 1999 issued by the Board, vacancies are reserved for various categories including 'SC' category. Thus in order to be considered for the post reserved for 'SC' category, the requirement is that a person should belong to 'SC' category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage.
Thus in order to be considered for the post reserved for 'SC' category, the requirement is that a person should belong to 'SC' category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit to such candidate for his belonging to 'SC' category. It is not that petitioners did not belong to 'SC' category prior to 30th June, 1998 or that acquired the status of being 'SC' only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30th June, 1998 would be clearly arbitrary and it has no rationale objective sought to be achieved." In view of such position, factually and legally the petitioner is entitled to be given an opportunity of hearing. 17. For the foregoing discussions, order impugned in Annexure-11 dated 25.04.2014 is hereby quashed. The matter is remitted back to opposite party No. 2 for fresh adjudication, in the light of the observation made above, by affording opportunity of hearing to the petitioner. Needless to mention, this being a year old case, the opposite party No. 2 shall consider and dispose of the matter as expeditiously as possible/preferably within a period four months from the date of production of a certificated copy of this judgment. 18. In the result, the writ petition is allowed. No order as to costs.