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2019 DIGILAW 58 (ORI)

Rabi Narayan Panda v. State of Odisha

2019-01-24

BISWAJIT MOHANTY, K.S.JHAVERI

body2019
JUDGMENT : K.S. Jhaveri, J. Heard Mr. S.K. Swain, learned counsel for the petitioner and Shri M.S. Sahoo, learned Additional Government Advocate for the State opposite parties. 2. By way of this writ petition, the petitioner has challenged the judgment and order dated 08.01.2010 passed by the learned Odisha Administrative Tribunal, Bhubaneswar in O.A. No.593 of 2008, whereby the learned Tribunal has dismissed the original application. 3. Shri Swain, learned counsel for the petitioner has contended that the petitioner was originally appointed vide order dated 20.06.1989 (Annexure-1) and subsequently vide order dated 29.01.1999 (Annexure-4) issued by the General Manager, DIC, Ganjam, Berhampur. The relevant portions of the said orders are extracted hereinbelow: Sri Rabinarayana Panda, S/o. Sri Anata Panda, At-Anka Street, P.O. Parlakhemundi, Dist-Ganjam is appointed temporarily as peon in the existing vacancy for a period of 89 days or till regular appointment is made by Collector, Ganjam whichever is earlier. xx xx xx Sri Rabinarayana Panda, S/o. Sri Anata Panda, At-Anka Street, P.O. Parlakhemundi, Dist-Ganjam who belongs to Gen. Category and now working on adhoc basis is here by temporarily appointed as messenger against the vacant post in the scale of pay of Rs.2550-55-2660-60-3200/- with usual D.A. and other allowances as admissible by the Govt. from time to time. The appointment is purely temporary and can be terminated at any time without assigning any reason there of. Subsequently his service book and GIS Pass Book were opened and he was allowed annual increments. But the General Manager, DIC, Gajapati passed the impugned order dated 31.05.2007 by which the petitioner was disengaged from service with effect from 31st May, 2007. 4. The main contention of learned counsel for the petitioner is that in view of the above facts and circumstances, the petitioner has acquired a right under Article 311 of the Constitution which reads as under: 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. Therefore, the petitioner had a right to be heard before termination/disengagement from service. In support of his contention, learned counsel for the petitioner has strongly relied upon para-8 of the decision of the Hon'ble Supreme Court in the case of Shridhar S/o Ram Dular vs. Nagar Palika, Jaunpur and Ors., (1990) AIR SC 307, wherein the Hon'ble Court has held as under: 8. The High Court committed serious error in upholding the order of the Government dated 13.2.80 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner's Order setting aside the appellant's appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law. 5. He also relied upon para-13 of a Division Bench decision of this Court in the case of Somanath Mohapatra and Anr. vs. State of Orissa and 3 Ors., (2009) 2 OrissaLR 89, wherein this Hon'ble Court has held as under: 13. So far as fourth question is concerned, law is well settled that any order passed by an authority/tribunal/court must be supported by reasons. In Krishna Swami v. Union of India and Ors., (1993) AIR SC 1407, the Apex Court observed that reasons are the links between the material, the foundation for these erections and the actual conclusions. They would also administer how the mind of the marker was activated and there rational nexus and syntheses with the facts considered and the conclusion reached. Least it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21 of the Constitution. It is the settled proposition of law that even in administrative matters the reasons should be recorded, as it is incumbent upon the authorities to pass a speaking and reasoned order. In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors., (1991) AIR SC 537, the Apex Court has observed as under: Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that 'be you ever so high, the laws are above you.' This is what a man in power must remember always. It is the trite law that 'be you ever so high, the laws are above you.' This is what a man in power must remember always. In State of West Bengal v. Atul Krishna Shaw and Anr., (1991) Supp1 SCC 414, the Hon'ble Supreme Court observed that 'giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. In the present case, notice dated 10.3.2003 under Annexure-10 has been issued by the opposite parties not to run Somanath Hat in view of Notification No. 1662 dated 18.01.1982 issued in pursuance of Section 4 and Notification No. 8105 dated 05.06.1994 and provisions contained in Section 4 (3) of the Act 1956. This notice was received by the petitioner on 10.03.2003. Immediately thereafter on 13.03.2003, petitioners submitted reply contending therein that nowhere they had violated the provisions of the Act, 1956 and the allegations were totally unfounded. In the said reply, the petitioners also requested the Chairman, RMC, Jagatsinghpur to call them for a meeting so as to enable them to explain the matter and doubts, if any. As it appears, no opportunity was offered to the petitioners. In paragraph 11, we have already held that the petitioners have not violated the provisions of Section 4 (3) of the Act 1956. Subsequently, opposite party No. 2 vide notice dated 16.03.2003 (Annexure-12) directed the petitioners to pay market fees to the tune of Rs. 13,46,978/- for the years 1994-2003 by 31.03.2003. In the said notice, no basis was also indicated as to how the Hat days are fixed and market fee per day is determined. No opportunity of hearing was also afforded to the petitioners before assessing the petitioners for such huge amount of market fees for the year 2002-2003 so also for the preceding eight years. No reason whatsoever was assigned as to why the opposite party No. 2 had not taken any step for collection of such market fee during past eight years. The opposite party No. 2 could not able to satisfy us as to under which provision of the law such amount of fees was demanded from the petitioners. Section 11 of the Act 1956 authorizes the market committee only to levy and collect market fees from purchaser of agricultural produce and not from owner of any Hat. The opposite party No. 2 could not able to satisfy us as to under which provision of the law such amount of fees was demanded from the petitioners. Section 11 of the Act 1956 authorizes the market committee only to levy and collect market fees from purchaser of agricultural produce and not from owner of any Hat. In absence of any statutory provision for levying and collecting such fees from the owner of a Hat, the levy is not sustainable in law. 6. Learned counsel for the petitioner also relied upon another decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., (2006) AIR SC 1806. He put strong emphasis upon para-44 of the said decision, which reads as under: 44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 7. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 7. Learned counsel for the petitioner relying on the aforesaid decision of the Hon'ble Supreme Court as well as this Court vehemently contended that the services of the petitioner has been terminated without due process of law which is illegal and arbitrary. 8. We have heard learned counsel for the parties and perused the record. 9. The learned Tribunal, while considering the Original Application filed by the petitioner-applicant, has observed in paragraph-6, which reads as under: 6. We have considered the submissions made by the learned counsels. We have also perused the documents enclosed. It is a fact that the applicant was appointed as a Peon against an existing vacancy for a period of 89 days or till regular appointment is made by Collector, Ganjam on 20.6.1989. His appointment on ad hoc basis was continued with breaks till he was regularly appointed as a Messenger against a vacant post in order dated 29.1.1999 (Annexure-4). He was disengaged from service in order dated 31.5.2007 of respondent No.4 (Annexure-6). Respondents have submitted that the appointment of the applicant along with a few others by respondent No.4 was without following the prescribed procedure of recruitment. The engagement was beyond Government Rules and procedures and also contrary to the Government instructions in this regard. Further the appointments were made without concurrence of the Finance Department. The applicant has also not tried to establish in the O.A. that his appointment was as a result of due procedure of recruitment prescribed under Rules in which he was selected on merit while competing with other applicants. In view of the order of Hon'ble Apex Court in Uma Devi s case, (2006) AIR SC 1806, employees recruited without following prescribed procedure under applicable Rules through open competition do not have any vested right for continuance in service. In view of the order of Hon'ble Apex Court in Uma Devi s case, (2006) AIR SC 1806, employees recruited without following prescribed procedure under applicable Rules through open competition do not have any vested right for continuance in service. Similarly in Nazira Begum Lashkar vs. State of Assam, 2001 SCC 143 , the Hon'ble Apex Court held that the initial appointment having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorized and no right would accrue to the incumbent on that score. The Court had also held that it cannot be said that the principles of natural justice were violated or full opportunity was not given to the employees concerned to have their say in the matter before their appointments were recalled and terminated in such a case. Under the circumstances, we are unable to endorse the reliefs sought for. The O.A. is, therefore, dismissed. 10. Apart from that pursuant to the notice of this Hon'ble Court, the opposite parties has filed counter affidavit. In paras-4 & 8, the opposite parties have stated as under: 4. That with regard to the averments made in para-3 of the writ petition, it is humbly submitted that the petitioner was engaged temporarily as a peon/Messenger on adhoc basis for a period of 89 days/44 days against the leave vacancy post and suspension vacancy with breaks by the then General Manager, D.I.C. Ganjam without concurrence of Finance Department. The appointment of the petitioner by the then General Manager was in gross violation of Govt. instruction imposing restriction on appointment of DLR/NMR/Adhoc posting vide their circular No.17815 (45)/F dt. 12.4.1993, Circular No.32916/F dt. 8.8.1997, Circular No.11172/F dt. 20.3.1998, Circular No.11804/F dt. 25.3.1998, Circular No.24021/F dt. 2.6.1998, Circular No.45318/F dt. 29.10.1998, Circular No.577/F dt. 5.1.1999 and Circular No.31271/F dt. 16.7.1999. The engagement of the petitioner by the then General Manager D.I.C., Ganjam was beyond his authority and the Government Rules and procedure, hence the same was illegal. xx xx xx 8. That the submissions made in para-7 of the writ petition is totally misconceived and incorrect. It is a fact that the petitioner was appointed temporarily as Messenger against vacant post vide order No.505 dt. xx xx xx 8. That the submissions made in para-7 of the writ petition is totally misconceived and incorrect. It is a fact that the petitioner was appointed temporarily as Messenger against vacant post vide order No.505 dt. 29.1.1999 by the then General Manager, DIC, Ganjam but the same was not done following any process of law, at least inviting application through either the employment exchange or through open advertisement keeping in view the Rules governing the field and Article 16 of the Constitution of India. 11. Responding to paragraphs-4 & 8 of the counter affidavit, the petitioner has replied in his rejoinder affidavit, which reads as under: 4. That, in reply to paragraph-4 of the counter affidavit, it is submitted here that, the appointment of this petitioner as a Peon/messenger on adhoc basis for 89 days/44 days was made against existing vacancy by the General Manager, DIC, Ganjam from time to time vide different orders, which are facts on record on due adherence to the relevant government instructions in this regard and the General Manager, DIC, Ganjam, who appointed the petitioner in the above post was the competent authority under law to do so. In this view of the facts, the allegations, made in the counter affidavit to the effect that, the appointment of the petitioner by the G.M., DIC, Ganjam was beyond his authority and was made without adherence to government rules and procedures is not correct. xx xx xx 6. That, in reply to paragraph-8 of the counter affidavit, it is submitted here that, the General Manager, DIC, Ganjam appointed the petitioner by adhering to all the relevant recruitment procedure to meet the exigency for filling up of the vacant post in temporary manner. 12. A perusal of paras-4 and 8 of the counter affidavit and the response of the petitioner to the same as quoted above in his rejoinder would show that the response of the petitioner has been vague. It appears from the records that the petitioner was never appointed on regular basis. No order of regularization has been filed by the petitioner. Throughout his service period, he had worked on temporary/adhoc basis. Further the petitioner was never appointed with concurrence of the Finance Department and was appointed in violation of Article 16 of the Constitution of India. Thus, he was a backdoor entrant, who has been rightly shown the door vide Annexure-6. 13. Throughout his service period, he had worked on temporary/adhoc basis. Further the petitioner was never appointed with concurrence of the Finance Department and was appointed in violation of Article 16 of the Constitution of India. Thus, he was a backdoor entrant, who has been rightly shown the door vide Annexure-6. 13. So far as Article 311 of the Constitution is concerned, the case of the petitioner is not coming under the purview of same as he has neither been removed nor dismissed nor any stigma has been attached to his conduct. The judgment of the Hon'ble Supreme Court which has been relied upon by the petitioner i.e. Shridhar S/o Ram Dular (supra) is factually distinguishable. It was a case where the High Court had rendered a judgment under Article 226 of the Constitution, but in the present case the scope of this Court under Article 227 of the Constitution while considering the legality of the order of the Tribunal is very limited particularly when the petitioner was engaged in violation of Article 16 of the Constitution of India. Further Shridhar S/o Ram Dular case (supra), the appellant was appointed pursuant to an open advertisement and selection which is not the case here. 14. The ratio decided by this Court in the case of Somanath Mohapatra (supra) is also not applicable to the facts of the present case. Similarly, Umadevi case (supra) no way helps the cause of the petitioner as it has been made clear there that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee (emphasis supplied). 15. In the present case, the petitioner was knowing that he was appointed on adhoc basis and was engaged in an irregular manner. In that view of the matter, the order dated 08.01.2010 passed by the learned Odisha Administrative Tribunal, Bhubaneswar in O.A. No.593 of 2008 is just and proper. No interference is called for. 16. The petition is devoid of any merit and deserves to be dismissed and the same is accordingly dismissed. All connected Misc. Cases/I.As are disposed of accordingly. No costs.