Orissa High Court
Bablu Bhatra & Others vs State Of Odisha & Others .... Opposite ... on 28 August, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
In the matter of an application under Articles -226 &
227 of the Constitution of India.
W.P.(C) No.836 of 2016
.... Petitioners
Bablu Bhatra & Others
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner :M/s. N. Panda, Advocate
For Opp. Parties :M/s. B. Mohanty,
Additional Govt. Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 28.08.2024 and Date of Judgment: 28.08.2024
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. Petitioners have filed the present Writ Petition inter alia challenging the order of disengagement issued // 2 // dtd.12.12.2015 by Opposite Party No.3 under Annexure-6.
4. Learned counsel for the Petitioners contended that pursuant to the Resolution made by the School Management Committee on 08.09.2015 under Annexure-3, Petitioners were issued with the order of engagement vide office order dtd.10.09.2015 under Annexure-4.
4.1. It is contented that while so continuing in terms of the order of engagement issued under Annexure-4, Petitioners were disengaged vide the impugned order dtd.12.12.2015 under Annexure-6 without any prior notice and without following principle of natural justice.
4.2. It is accordingly contended that since principle of natural of justice was never followed prior to issuance of the impugned order under Annexure-6, the same is not sustainable in the eye of law.
4.3. With regard to non-compliance of the principle of natural justice, learned counsel for the Petitioner relied on the decisions of Hon'ble Apex Court in the case of Menaka Gandhi vs. Union of India reported in AIR 1978 SC-597, Manohar Manikara Anchula vs. State of Maharastra reported in AIR 2013 SC-681 & Ware House Corporation vs. Vijay Narayan Vajpayee reported in AIR 1980 SC 840.
Page 2 of 11// 3 // 4.4. In Menaka Gandhi vs. Union of India reported in AIR 1978 SC-597, Hon'ble Supreme Court in Paragraphs-57, 58 and 61 has held as under:-
57. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the, test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Maneka Gandhi vs Union Of India on 25 January, 1978 Indian Kanoon -
http://indiankanoon.org/doc/1766147/ 57 Board of Works(2). "A long course of decision---, beginning with Dr. Bentley's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet-the justice of the common law will supply the omission of (1) [1974]2S.C.R.348. (2) [1863]14C.B.N.S.180. the legislature". The principle of audi alteram partem, which mandates that no one shall be condemned unheard, part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport ?
58. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with' fairness and to secure justice and over the years it has grown into a widely pervasive Page 3 of 11 // 4 // rule affecting large areas of administrative action. Lord Morris of Borth- y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception ? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose %,,ill not be fulfilled; it lacks more exalted inspiration." (Current Legal Problems, 1973, Vol. 26, p. 16) And then again, in his speech in the House of Lords in Wiseman v. Borneman(1), the learned Law Lord said in words of inspired felicity: "that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abundant riches : there we may find what Byles, J., called "the justice of the common law". Thus, the soul of natural justice is fair play in action' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Henning, M.R. in these terms in Schmidt v. Secretary of State for Home Affairs(1) :-
where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide Page 4 of 11 // 5 // American Journal of International Law, Vol. 67, page 479. Magarry, J., describes natural justice "as a distillate of due process of law". Vide Fontaine v. Chesterton(2). It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", ,or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every law Lord was whether the procedure followed was "fair in all the circumstances"
and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?.
61. This Court, speaking through Hegde, J., in ,I. K. Kraipak's case quoted with approval the above passage from the judgment of Lord Parker, C.J., and proceeded to add : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it-Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the, application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice One fails to see why those rules should be made inapplicable, to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-.judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. (1969)1 S.C.R. 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principles of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case." This view was reiterated Page 5 of 11 // 6 // and re-affirmed in a subsequent decision of this Court in D.F.O. South Khari v. Ram Sanehi Singh(1). The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.
4.5. In Manohar Manikara Anchula vs. State of Maharastra reported in AIR 2013 SC-681. Hon'ble Supreme Court in Paragraph-17 has held as under:-
17. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designated Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements of natural justice. It is not expected of the Commission to breach any of these principles, particularly when its orders are open to judicial review. Much less to Tribunals or such Commissions, the Courts have even made compliance to the principle of rule of natural justice obligatory in the class of administrative matters as well. In the case of A.K. Kraipak & Ors. v. Union of India & Ors. [(1969) 2 SCC 262], the Court held as under : 17. It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority Page 6 of 11 // 7 // concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi- judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an Manohar vs State Of Maharashtra & Anr on 13 December, 2012 Indian Kanoon - http://indiankanoon.org/doc/136770833/ 6 administrative enquiry may have more far reaching effect than a decision in a quasijudicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
4.6. In State of Orissa vs. Binapani Das reported in AIR 1967 SC-1269 Hon'ble Supreme Court in Paragraph-12 has held as under:-
12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State.Page 7 of 11
// 8 // 4.7. In Ware House Corporation vs. Vijay Narayan Vajpayee reported in AIR 1980 SC 840, Hon'ble Supreme Court in Paragraph-14 has held as under:-
14. The appellant is a Corporation constituted under the Uttar Pradesh State Warehousing Corporation (Act 28) of 1956, which was subsequently replaced by the Central Act 58 of 1962. It is a statutory body wholly controlled and managed by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singh's case (ibid). The ratio of Sukhdev Singh's case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. The respondent was employed by the appellant-Corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross- examine the witnesses relied upon by the appellant- Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. Managing Director, Uttar Pradesh ... vs Vinay Narayan Vajpayee on 16 January, 1980 Indian Kanoon - http://indiankanoon.org/doc/156294/ 8 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held Page 8 of 11 // 9 // and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court".
4.8. It is accordingly contended that the impugned order is not sustainable in the eye of law and it requires interference of this Court.
5. Mr. B. Mohanty, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party Nos.2 and 3.
5.1. It is contended that without following the Resolution issued by the Government in SC & ST Development Department on 19.02.2013 under Annexure-A/3 and the letter issued by Opposite Party No.3 on 10.07.2015 under Annexure-B/3, since the Resolution dtd.08.09.2015 was passed by the School Management Committee under Annexure-3, basing on which Petitioners were engaged vide order dtd.10.09.2015 under Annexure-4, on coming to know about such illegality committed by the School Management Committee, Opposite Party No.3 issued the order of disengagement vide office order dtd.12.12.2015 under Annexure-6, even though Petitioners were so engaged vide order issued under Annexure-4 by the self- same Opposite Party No.3.
5.2. It is accordingly contended that since the guidelines issued by the Government in its Resolution Page 9 of 11 // 10 // dtd.19.02.2013 under Annexure-A/3 and the letter issued by Opposite Party No.3 on 10.07.2015 under Annexure-B/3 were never followed by the School Management Committee and passed the Resolution under Annexure-3, basing on which Petitioners were engaged vide order dtd.10.09.2015 under Annexure-4, Petitioners have been rightly disengaged vide the impugned order dtd.12.12.2015 under Annexure-6.
6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that basing on the Resolution passed by the School Management Committee on 08.09.2015, Opposite Party No.3 issued the order of engagement in favour of the Petitioners vide order dtd.10.09.2015 under Annexure-4. Since the Resolution dtd.08.09.2015 was duly acted upon by Opposite Party No.3 with issuance of the order of engagement vide order dtd.10.09.2015 under Annexure-4, as per the considered view of this Court, if some illegality was found with regard to the Resolution passed by the School Management Committee under Annexure-4, Opposite Party No.3 should have given a prior notice to the Petitioner before issuing the order of disengagement vide order dtd.12.12.2015 under Annexure-6.
6.1. Since principle of natural justice has not been followed prior to such order of disengagement issued Page 10 of 11 // 11 // under Annexure-6, this Court for the present while not inclined to interfere with the said order, permits the Petitioners to move an appropriate application before Opposite Party No.2 for consideration of their claim to get the benefit of re-engagement within a period three (3) weeks hence.
6.2. It is observed that that if such application is filed within the aforesaid time period, Opp. Party No.2 shall do well to take a lawful decision on the same within a period of three (3) months from the date of receipt of such application. The order so passed by the Opp. Party No.2 be communicated to the Petitioner.
6.3. It is further observed that while taking such a decision, Opposite Party No.2 shall provide due opportunity of hearing to the Petitioners.
7. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 28th August, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Sep-2024 19:09:31 Page 11 of 11