Orissa High Court
Harekrushna Behera vs Deputy Registrar on 11 August, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 9690 OF 2015
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
Harekrushna Behera ..... Petitioner
-Versus-
Deputy Registrar, Odisha
Administrative Tribunal,
Cuttack Bench, Cuttack
and others ..... Opp. Parties
For petitioner : M/s. Dayanidhi Lenka, P.P. Rout,
B.N. Lenka and S. Mahunta
Advocates.
For opp. parties : M/s. S.N. Nayak,
Addl. Standing Counsel
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing: 08.08.2023:: Date of Judgment: 11.08.2023 DR. B.R. SARANGI, J. The petitioner, who was working as Grama Rakshi in Hatabadra Outpost under Rairangpur Police Station in the district of Mayurbhanj, has filed this writ petition seeking to quash the order dated 27.10.2014 Page 1 of 36 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1301 (C) of 2003 under Annexure-10, by which the order of discharge/termination of the petitioner passed by the authority was confirmed.
2. The factual matrix of the case, in a nutshell, is that the petitioner was engaged as a Grama Rakshi in the year 1995 for more than one beat, i.e., Sunapoly, Neujoda and Gopalpur under Rairangpur Police Station in the district of Mayurbhanj. While he was discharging his duty as such, he was called upon by the Superintendent Police, Mayurbhanj, vide Annexure-1, to explain as to why he shall not be dismissed from service having been involved in Rairangpur P.S. (Rural) Case No.99/01. Pursuant to the said notice, the petitioner filed his explanation on 08.03.2002 vide Annexure-2 refuting the allegations. He specifically denied his involvement in the incident and inter alia requested not to terminate him from service in absence of any enquiry. He also submitted that he has been falsely implicated in the said case by some interested persons alleging that the petitioner had assisted the accused Page 2 of 36 persons in committing the crime. He further contended that the allegations made against the petitioner in criminal case are false and fabricated, and that at the instance of opposite party no.5-Officer-in-Charge, Rairangpur Police Station (Rural), he has been falsely implicated in the said case.
2.1 According to the petitioner, on 25.10.2001, while he was on his beat at Neujoda, he found some persons were holding meeting to perform "Sri Laxmi Puja" in a disputed land. Apprehending disturbance in the village, he immediately came to the Hatabadra Outpost and reported the matter and also made a note in his "Note Khata". The A.S.I., Hatabadra Outpost was not in favour of such report and got annoyed and at his instance the petitioner was implicated in the case despite of such report. On the basis of an F.I.R. filed by one Gellamani Singh of village Neujoda, the investigation of the case was taken up by opposite party No.6 and the same was sent to the O.I.C., Rairangpur (R) Police Station for registration. Thereafter, the petitioner was released on bail by executing P.R. Bond. The allegation in Page 3 of 36 the F.I.R. was that the petitioner had abated the offences and instigated the villagers to take the law into their hands. Therefore, Rairangpur P.S. Case No.66 of 2001 was registered for alleged commission of offence under Sections 143/147/148/323/427/506/109/149 IPC. After completion of investigation, charge sheet was filed. 2.2 While the matter was subjudice before the appropriate Court and the trial of the said case was to be commenced, the Superintendent of Police, Mayurbhanj, vide his order no.222 dated 25.7.2002, communicated the petitioner vide memo no.3504/A dated 27.07.2002, that his service is terminated/discharged on the ground that the explanation submitted by the petitioner was found unsatisfactory. Against such order of termination/ discharge dated 25.07.2002, the petitioner preferred an appeal before opposite party no.3 on the plea of non- compliance of the principle of natural justice. But the said appeal was rejected and the order of rejection was communicated vide MBJ DO No.4 dated 10.01.2003. Therefore, the petitioner approached the Odisha Page 4 of 36 Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1301 (C) of 2003. But the order dated 25.7.2002 passed by the authority terminating/discharging the petitioner from service was affirmed by the Tribunal in the impugned order dated 27.10.2014 under Annexure-10. Hence, this writ petition.
3. Mr. D.N. Lenka, learned counsel appearing for the petitioner vehemently contended before this Court that discharge/termination of the service of the petitioner without conducting regular inquiry and without affording opportunity of being heard cannot be sustained in the eye of law and, as such, while terminating/discharging the petitioner from service, the statutory provisions available under the Odisha Gram Rakshi Act, 1967 have not been followed. Even the appellate authority mechanically has rejected the same without application of mind. Also the Tribunal, without scrutinizing the judgment of learned S.D.J.M., Rairangpur in G.R. Case No.420/2001 and T.C. No. 83/2002, wherein the learned Magistrate has come to a finding that the prosecution miserably failed to prove his Page 5 of 36 case against the accused persons beyond all reasonable doubt, declined to interfere with the impugned order of termination/disengagement of the petitioner. Therefore, the observation of the Tribunal is against the judicial pronouncement of the fact finding court. Thereby, the Tribunal has committed a gross error apparent on the face of the record. Consequentially, he seeks interference of this Court.
3.1 He further contended that Section-7 of the Odisha Grama Rakshi Act, 1967 deals with the provision of punishment of Grama Rakshis for negligence in duties. Sub-Section (2) of Section-7 of the Act provides, when the appointing authority passes an order suspending, fining, or dismissing any Gram Rakshi under Sub-Section (1) he shall record such order with the reason therefor and note of the enquiry in writing and no such order shall be passed unless the Grama Rakshi concerned has been given an opportunity of being heard in his defence. Thereby, since no opportunity of hearing was given to the petitioner, while discharging/terminating the services of the petitioner, in Page 6 of 36 compliance to the provisions of the Act and the Tribunal has failed to take note of such provision and come to an erroneous conclusion that there was compliance of the principles of natural justice, the order impugned passed by the Tribunal cannot be sustained and is liable to be set aside.
3.2 To substantiate his contention, learned counsel for the petitioner has placed reliance on Karunakar Khandapani v. State of Orissa, 2015 (II) OLR 26; Dolamani Bishi v. State of Odisha, 2020 (II) OLR 950; Niranjan Nayak v. State of Orissa, 2007 (II) OLR 197; Khem Chand v. Union of India, AIR 1958 SC 300; State of Orissa v. Dr. Binapani Dei, AIR 1967 SC 1269; State of Tamil Nadu v. S. Subramanium, AIR 1996 SC 1232; S.L. Kapoor v. Jagmohan, AIR 1981 SC 136; Fazal Bhai Dhala v. Custodian-General of Evacuee Property, Delhi, AIR 1961 SC 1397; and State of Assam v. Shri Kanak Chandra Dutta, AIR 1967 SC 884.
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4. Per contra, Mr. S.N. Nayak, learned Addl. Standing Counsel appearing for the State-opposite parties contended that the petitioner, while discharging his duty under Rairangpur Rural Police Station, was involved in Rairangpur Rural P.S. Case No.66 dated 25.10.2001 for commission of offence under Sections 143/ 147/ 148/ 323/ 427/ 506/ 109/ 149 I.P.C. (S.R. Case No. 399/01). He was called upon to explain as to why he shall not be discharged from Grama Rakshi post. He submitted his explanation on 08.03.2002 contending that he has been falsely implicated in the case. But, after due investigation in Rairangpur P.S. Case No.66/2001, evidence was well made out against him and the case was charge sheeted vide charge sheet no. 04 dated 13.01.2002 under Sections 143/ 147/ 148/ 323/ 427/ 506/ 109/149 I.P.C. Therefore, he was discharged/terminated from service on 25.07.2002, as his explanation was found unsatisfactory. Even in appeal, the same was also made confirmed. According to him, while discharging/terminating the service of the petitioner, opportunity of hearing was given to the petitioner. Page 8 of 36 Therefore, the same is well justified. He further contended that since the petitioner was discharging the duty of Grama Rakhsi and is not the holder of civil post, the claim made by him cannot be sustained in the eye of law. To substantiate his contention, reliance has been placed on Union of India v. P. Gunasekharan, (2015) 2 SCC 610.
5. This Court heard Mr. D.N. Lenka, learned counsel appearing for the petitioner and Mr. S.N. Nayak, learned Addl. Standing Counsel appearing for the State in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
6. On the basis of the pleadings available on record and the arguments advanced by learned counsel for the parties, the following issues are formulated for the purpose of effective adjudication of this case:-
(i) Whether Grama Rakshi is the holder of a civil post and consequentially at the instance of the Page 9 of 36 petitioner the Tribunal was well justified in entertaining the Original Application or not?
(ii) If the aforesaid question is answered in affirmative, then it is to be decided whether while discharging/terminating the service of the petitioner, the principles of natural justice have been complied with by giving him opportunity of hearing or not?
Issue No.(i)
7. In course of hearing, this Court, vide order dated 18.04.2022, passed the following orders:-
"This matter is taken up through hybrid mode.
2. Mr. S.N. Nayak, learned Additional Standing Counsel seeks time to obtain instructions whether Grama Rakhi is the holder of a civil post in view of the judgment of this Court in case of Niranjan Nayak Vrs. State of Orissa and Others : 2007 (II) OLR 197 and, as such, the said judgment has been referred to larger Bench for consideration or not.
3. Put up this matter after two weeks."
8. In Shri Kanak Chandra Dutta (supra), the Constitution Bench of the apex Court, while considering the Page 10 of 36 case of Mauzadar in the Assam Valley, who was dismissed from office without complying with the provisions of Article 311(2) of the Constitution and the High Court had allowed his writ petition on the ground that he held a civil post under the State of Assam and was entitled to the protection of the Article, held as follows:-
"In the light of the system of recruitment, employment and functions, a Mauzadar is a servant and the holder of a civil post, under the State, entitled to the protection of the Article. A civil post means a post not connected with the defence and outside the regular civil services. It is an office or a position to which duties in connection with the affairs of the State are attached. It is under the administrative control of the State but need not necessarily carry "a definite rate of pay" and may involve only part-time employment. A person holding the post is a person serving or employed under the State. The existence of the relationship of master and servant between the State and a person holding a post under it, is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him., its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. Such a relationship may be established by -the presence of all or some of these indicia in conjunction with other circumstances, and its existence is a question of fact in each case. Under the Mauzadari system of collecting revenue, prevailing in the Assam Valley, the revenue charge of a Mauza and the responsibility for the whole revenue of it, in the first instance, rest with the Mauzadar. Originally he may have been a revenue farmer and an independent contractor but under the existing system, he is subordinate public servant working under the supervision and control of the Deputy Commissioner. He is a Revenue Officer and ex-officio Assistant Settlement Officer Page 11 of 36 exercising delegated powers of Government, and the State has the power and the right to select and appoint him and the power to suspend and dismiss him. Though he may not be a whole-time employee and receives by way of remuneration a commission on his collections and sometimes a salary he holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached."
Accordingly, the apex Court held that 'Mauzadar' is the holder of a civil post.
9. Applying the aforesaid analogy, it is to be seen whether 'Grama Rakshi' is the holder of a civil post or not. Under the Odisha Grama Rakshi Rules, 1969, so far as the post of 'Grama Rakshi' is concerned, it prima facie means an appointment or office in the civil side of the administration as distinguished from a post under the defence force. All persons who hold any post under the administrative control of the Union or the State hold a civil post for discharge of public duties. The expression is wide enough to include all such employees whether permanent or temporary or on probation or on officiating basis.
10. The Odisha Grama Rakshi Act, 1967 and Odisha Grama Rakshi Rules, 1969 govern the conditions of service Page 12 of 36 of Grama Rakshis. Sections 4 and 5 in particular of the aforesaid Act envisage the provision of administration and control of Grama Rakshis and appointment of Grama Rakshis respectively. The power of administration and control of the Grama Rakshis within a district is vested with the District Magistrate subject to the control and direction of the Revenue Divisional Commissioner. The Magistrate of the District may appoint, within his jurisdiction, persons as Grama Rakshis having prescribed qualification or delegate his power to the Superintendent of Police of the District with approval of the Revenue Divisional Commissioner. From the above it reveals that Grama Rakshi posts are under the administrative control of the District Magistrate and the Grama Rakshi post is a civil post.
11. The expression "civil post" prima facie means an appointment or office in the civil side of the administration as distinguished from a post under the defence force. The only persons who are excluded from the purview of Article 311(1) are:-
Page 13 of 36
"(i) members of defence service;
(ii) persons holding a post connected with defence but not police officers.
All persons who hold any post under the administrative control of the Union or State hold a civil post for discharge of public duties. The expression is wide enough to include all such employees whether permanent or temporary, or on probation or on officiating basis."
12. In order to provide for the regulation of Grama Rakshi in the State of Odisha following the abolition of the Chowkidary system and the reported defects in the working of the Beat constable system, the need for setting up of a suitable village administrative agency to help in maintenance of law and order and certain other administrative functions at the village level was keenly felt and with this object in view, it was considered necessary to introduce the Grama Rakshi Scheme. Section 3 deals with constitution of Grama Rakshi Force, Section-4 deals with administrative control of Grama Rakshis, Section-5 deals with appointment of Grama Rakshis, Section-6 deals with power and duties of Grama Rakshis, Section-7 deals with punishment for Grama Rakshis, neglect of duties, etc., Page 14 of 36 Section-8 deals with Grama Rakshis to be public servant, Section-9 deals with the power to make rules.
13. In exercise of powers conferred by Sub-sections (1) and (2) of Section 9 of the Act, 1967, the State Government, made the Rules called the Odisha Grama Rakshi Rules, 1969. Chapter-I of the said Rules deals with Constitution of Grama Rakshi Force (Rule 3-5). Chapter-II of the Rules deals with eligibility for Appointment or Retention (Rule 6). Chapter-III of the rules deals with manner of selection and appointment (Rules 7-13). Chapter-IV of the Rules deals with pay and allowances (Rule 14). Chapter-V of the Rules deals with condition of service (Rule 15). Chapter -VI of the Rules deals with duties and responsibility (Rules 16-23). Chapter-VII of the Rules deals with DISCIPLINE (Rules 24 and 25). Chapter-VIII of the Rules deals with rewards (Rule 26), where as Rule 27 deals with executive instruction.
14. In view of the statutory provisions mentioned above, the 'Grama Rakshis' specified in Section -8 of the Act, shall be Page 15 of 36 deemed to be public servant within the meaning of Section 21 of the Indian Penal Code, 1860.
"Section-21 of Indian Penal Code reads as follows:-
"Public Servant":- the words "public servant"
denote a person falling under any of the descriptions here in after following, namely ; xxx xxx xxx Seventh- Every person holds any office by virtue of which he is empowered to place or keep any person in confinement. (Corresponding Rules-17 of Rules, 1969).
Eight -- Every officer of the Govt. whose duty it is, as such , to prevent offences, to give information of offences, to bring offenders to justice, or to protect of public health, safety or convenience. (Corresponding Rules-18-23 of the Rules, 1969) Twelfth- Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government. (Corresponding Rule- 14, Chapter-IV Pay and Allowances of the Odisha Grama Rakshi Rules)." Therefore, under the provisions of the Odisha Grama Rakshi Act, 1967, every Grama Rakshi shall exercise and discharge the powers and duties as enumerated under Section 6 of the Act, which includes information on unnatural, suspicious or sudden death, every offence specified in the schedule, all disputes which are likely to lead to a riot or serious affray, to the best of his ability to prevent and interpose for the purpose of preventing the Page 16 of 36 commission of any offence, making such arrest and to report such arrest to the OIC, to observe all the movements of bad character and also of the arrival of any suspicious character, to report the births and deaths which have occurred within his jurisdiction, to supply any local information to the Magistrate of the District, SDO or any Police Officer may require, to assist Revenue Officer, Gram Panchayat in making collection of taxes levied by the Gram Panchayat and of dues payable to the Govt., to assist the Police Officer in investigation of the offences and in identification of witnesses, persons summoned by a court and persons against whom warrant of arrest by a court, to report immediately any damage to any protected monument or public property , to regulate and control the traffic in the streets and to prevent obstruction therein, to take care of govt. land, orchards, trees and other govt. property entrusted to him and exercise and perform such other powers and duties as may be prescribed.
15. The provisions contained in Chapters-II, III, IV, V & VI of the Odisha Grama Rakshi Rules, 1969 envisage the method of selection and appointment, dismissal from service, pay and allowances, condition of service, duties and Page 17 of 36 responsibilities. Whereas Rules 24 and 25 of Chapter - VII of the said Rules deals with discipline and punishment.
16. In service jurisprudence, the term "civil post" refers to apposition or job in the civil services which may mean other than job related to military or armed forces. Said term, though not explicitly defined in any specific legislation, the meaning and purport of the same can be derived from various provisions contained in the Act, Rules framed thereunder and/or Regulation, if any, connected thereto. Thereby, the scheme of rules, as mentioned above, made it clear that Grama Rakshi is generally an influential and well-to-do resident of his beat. Every Grama Rakshi before his appointment has to execute a bond of declaration in the prescribed Form-III. The manner of drawing and disbursement of monthly allowances as envisaged under Rule 14 in Chapter-IV: "Pay and Allowances", Conditions of Services vide Chapter-V and nature of "Duties and Responsibilities" provided in Chapter-VI of the Odisha Grama Rakshi Rules, 1969 make it undoubtedly clear that the post of "Grama Rakshi" is a "Civil Post".
17. Taking into consideration the law laid down by the apex Court, a post under the State is an office or a position to Page 18 of 36 which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. In the instant case before introducing the Grama Rakshi Scheme Chowkidary systems and the beat Constable System was existed. The need of setting of a suitable village administrative agency was felt to help in maintenance in law and order and certain administrative functions at the village level and with this objects in view it was considered to bring an Act to provide for the regulation of Grama Rakshi in the State of Odisha. In the light as narrated above, a Grama Raskhi is a holder of civil post Page 19 of 36 under the State. The State has the power and the right to select and appoint a Gram Rakshi.
18. Taking into the aforementioned provisions, this Court in Niranjan Nayak (supra), held that Grama Rakshis are holders of civil post. As such nothing has been placed on record to indicate that the judgment passed by this Court in the case of Niranjan Nayak (supra) has been challenged in higher forum. Therefore, it has reached its finality.
It may be appropriate to refer to State of Assam v. Shri Kanak Chandra Dutta, AIR 1967 SC 884, wherein it is said that a "civil post" is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of administration, an employment in a civil capacity under the Union or a State. In State of Gujarat v. Raman Lal Keshan Lal, (1980) 4 SCC 653, it has been propounded that the true test for determination of the question whether a person is holding a civil post or is a number of the civil service is the existence of a relationship of master and servant between the State Page 20 of 36 and the person holding post under it and that the existence of such relationship is dependent upon the right of the State to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing work and the payment by it of his wages and remuneration.
In view of such position of law, this Court unhesitatingly holds that Grama Rakshis are holders of Civil post and accordingly the issue no.(i) is answered in favour of the petitioner.
Issue No.(ii)
19. Section 7 (2) of the Odisha Grama Rakshi Act, 1967 states as follows:-
"(2) When the appointing authority passes an order suspending, fining or dismissing any Grama Rakshi under Sub-Sec. (1) he shall record such order with the reasons therefor and note of the enquiry in writing and no such order shall be passed unless the Grama Rakshi concerned has been given an opportunity of being heard in his defence."
20. Rule 15 (1) (d) and Rule-24 of the Odisha Grama Rakshi Rules, 1969 reads as follows:-
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"15. (1) Grama Rakshi -
xx xx xx
(d) shall be liable to be discharged, if he changes his residence from the Beat for which he is appointed, if at any time during the tenure of his appointment found physically unfit to perform the duties of a Grama Rakshi, or if he is convicted or reasonably suspected to be concerned in any offence;
CHAPTER - VII DISCIPLINE
24. Punishment -
(a) The punishment specified in Column (1) below may be imposed on a Grama Rakshi by the authorities mentioned in column (2) against each thereof Sl. No Punishment Authorities
1. Censure or By Superintendent of Warning in the police of the district Service Book or by the Sub-
2 Fine up to a divisional Police
maximum of officer so attached by
Rs.10 at a time the Superintendent of
Police of the district
3. Dismissal Only by
Superintendent of
Police of the district.
(b) Whenever the Grama Rakshi is found to be
guilty of negligence or dereliction of duty or failure to obey any order or direction given to him or misconduct, the officer-in-charge of the Police- station shall call for an explanation from the Grama Rakshi, and intimate the fact to the concerned sub- divisional police-officer.
(c) If the Grama Rakshi offers his explanation called for under Clause (d) he shall submit the same to the Officer-in-charge of the police-station who shall forward it to the Sub-divisional Police- Page 22 of 36 officer. The Sub-divisional Police-officer shall, forward the paper with his comments to the Superintendent of Police of the district. In case the Grama Rakshi desires to be heard in person, he shall be given as opportunity to appear before the said Superintendent of Police of the district at a date & time to be specified by the Superintendent of police of the district and submit his explanation, if any, to the Superintendent of police of the district through the Sub-divisional Police-officer. The final orders passed by the Superintendent of police of the district shall be communicated to the Sub- divisional Police-officer who in turn will cause it to be communicated to the Grama Rakshi through the Officers-in-charge of the police-station.
(d) The Sub-divisional Police-officer shall, after due consideration and after holding such enquiry as he deems necessary, pass orders. In such cases where the Sub-divisional Police-officer comes to the conclusion that dismissal shall be appropriate punishment, he shall record the grounds thereof and call for the explanation of the Grama Rakshi to show cause within a specified period against the proposed punishment.
(e) If the Grama Rakshi offers his explanation the Officer-in-charge of the police-station shall forward it to the Sub-divisional Police-officer. The Sub-divisional Police-officer shall then forward the paper with his comments to the Superintendent of Police of the district. In case the Grama Rakshi desires to be heard personally he may appear before the Superintendent of Police of the district within the period specified and submit his explanation to the Superintendent of police of the district through the Sub-divisional Police-officer. The final orders passed by the Superintendent of Police of the district shall be communicated to the Sub-divisional Police-officer who in turn will cause it to be communicated to the Grama Rakshi through the Officer-in-charge of the police-station.
(f) The order of punishment by the appointing authority shall be entered in the District Order Book.
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(g) Notwithstanding anything contained in the aforesaid provisions, the Sub-divisional Police- officer and the Superintendent of police of the district are competent to start suo motu proceedings against the Grama Rakshi; but subject to the limitation that only the Superintendent of Police of the district may pass orders of dismissal against the Grama Rakshis."
21. On perusal of the aforementioned provision of law, it is made clear that as per Section 7(2) of the Act, when an appointing authority passes an order suspending, fining or dismissing any Grama Rakshi under Sub-section (1), he shall record such order with the reasons therefor and note of the enquiry in writing and no such order shall be passed unless the Grama Rakshi concerned has been given an opportunity of being heard in his defence.
22. Similarly, Rule 15 (1)(d) of the Rules prescribes that Grama Rakshi shall be liable to be discharged, if he changes his residence from the Beat for which he is appointed, if at any time during the tenure of his appointment found physically unfit to perform the duties of a Grama Rakshi, or if he is convicted or reasonably suspected to be concerned in any offence. Page 24 of 36
Rule 14 of the Odisha Grama Rakshi Rules, 1969 lays down that Grama Rakshi is paid monthly allowance and the Superintendent of Police of the district is the Drawing Officer for the purpose. Further, Rule 15(1)(b) provides that Grama Rakshi on actual appointment would remain on probation for one year and after said period, on his performance and conduct being found satisfactory, he is appointed permanently to his post.
Entire procedure has been prescribed under Rule-24 as mentioned above. Therefore, the basic principle requires that he must be given reasonable opportunity of being heard.
23. In Karunakar Khandapani (supra), the judgment of which was authored by one of us (Dr. Justice B.R. Sarangi), this Court had taken into account the judgment of the apex Court in Basudev Tiwari v. Sido Kanhu University, AIR 1998 SC 3261, wherein it was held as follows:-
"9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has Page 25 of 36 come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, reported in AIR 1991 SC 101.
10. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing - it may be implied from the nature of the power - particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature, (vide Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851) and except in case of direct legislative negation or implied exclusion (vide S. L. Kapoor v. Jagmohan, AIR 1981 SC 136).
11. In the light of these principles of law, we have to examine the scope of provision of S. 35(3) which reads as follows :-
"35(3) Any appointment or promotion made contrary to the provisions of the Act, Statutes, rules or regulations or in any irregular or unauthorised manner shall be terminated at any time without notice.
Finally in paragraph-13 the apex Court held that admittedly, since notice has not been given to the appellant Page 26 of 36 before holding that his appointment is irregular or unauthorized and ordering termination of his service, the impugned order terminating the services of the appellant cannot be sustained.
23.1 This Court had also taken into consideration the decision of the apex Court in the case of Raj Rani (Smt.) v. Haryana State of Social Welfare Advisory Board, 1998 supp (2) SCC 759, wherein the apex Court held as follows :-
"if the ad hoc services subsequently regularized, termination of such service on the ground of alleged illegality of the regularization being held bad, the incumbent ought to have rather been relegated to the position of ad hoc employee, but his services could not have been terminated."
23.2 Similarly in Laxman Dundappa Dhamanekar and another v. Management of Viswa Bharata Seva Samiti, AIR 2001 SC 2836, the apex Court found the management guilty of wilful default and non-observance of Rules in terminating services of the appellants therein and directed that the arrears of salary to the appellants shall be paid from its own funds and not from financial assistance received from Govt. Applying the said principle to the present context, this Court held that since the services of Page 27 of 36 petitioner, who had been appointed by following due procedure of selection, had been terminated by not complying with the principles of natural justice and without giving him opportunity of being heard, he is entitled to get the pay and arrears admissible to the post in conformity with the provisions of law.
23.3 In Biecco Lawrie Ltd. v. State of West Bengal, AIR 2010 SC 142, while terminating the services, principle of natural justice was not followed. The apex Court considered the same in paragraphs 12, 13 and 14 and having discussed various judgments held that the procedure to be followed is not a matter of secondary importance and in the broadest sense natural justice simply indicates the sense of what is right and wrong and even in its technical sense is now often equated with fairness. As a well-defined concept, it comprises of two fundamental rules of fair procedure that a man may not be a judge in his own cause and that a man's defence must always be fairly heard. Therefore, it is fundamental to fair procedure that both sides should be heard audi alteram partem, i.e., hear Page 28 of 36 the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice, i.e., a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated.
24. In Dolamani Bishi (supra), the Division Bench of this Court, in which one of us (Dr. Justice B.R. Sarangi) was a member, recorded as follows:-
"The soul of natural justice is 'fair play in action' In HK (An Infant) in re, 1967 1 All ER 226 (DC), Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'.
In Fairmount Investments Ltd. v. Secy of State for Environment, 1976 2 All ER 865 (HL), Lord Russel of Killowen somewhat picturesquely described natural justice as 'a fair crack of the whip' In R. v. Secy. Of State for Home Affairs, ex p. Hosenball, Geoffrey Lane, LJ, 1977 3 All ER 452 (DC & CA), preferred the homely phrase 'common fairness' in defining natural justice. Page 29 of 36 A.K. Kraipak and others v. Union of India, AIR 1970 SC 150:(1969) 2 SCC 262, is a landmark in the growth of this doctrine. Speaking for the Constitution Bench, Hegde, J. observed thus:
"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 far reaching effect than a decision in a quasi- judicial enquiry".
In Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248, law has done further blooming of this concept. This decision has established beyond doubt that even in an administrative proceeding involving civil consequences doctrine of natural justice must be held to be applicable.
In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the meaning of 'natural justice' came for consideration before the apex Court and the apex Court observed 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 urarguable truth".
"Natural justice" by Paul Jackson, 2nd Ed., page-1. In course of time, judges nurtured in the traditions of British jurispruduence, often invoked it in conjuction 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."Page 30 of 36
In Basudeo Tiwary v Sido Kanhu University and others (1998) 8 SCC 194, the apex Court held that natural justice is an antithesis of arbitrariness. It, therefore, follows that audi alteram partem, which is facet of natural justice is a requirement of Art.14.
In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh, (2008) 16 SCC 276, the apex Court held as follows:
"The rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Thus, whenever a man's rights are affected by decisions taken under statutory powers, the court would presume the existence of a duty to observe the rules of natural justice. It is important to note in this context the normal rule that whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principles of natural justice, but in that event, the validity of that rule may fall for consideration."
The apex Court in Uma Nath Panday and others v State of U.P. and others, AIR 2009 SC 2375, held that natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.
Natural justice, another name of which is common sense justice, is the name of those principles which constitute the minimum requirement of justice and without adherence to which justice would be a travesty. Natural justice accordingly stands for that "fundamental quality of fairness which being adopted, justice not only be done but also appears to be done".
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25. In Binapani Dei (supra), the apex Court held that an order of the State to the prejudice of a person may be administrative in character, but the principle of natural justice has to be complied.
Similar view has also been taken by the apex Court in Khem Chand; S. Subramaniam; and Fazal Bhai Dhala (supra).
So far as S.L. Kapoor (supra) is concerned, the apex Court held that Court shall not pass order by ignoring the principle of natural justice.
26. Therefore, as required under Section 7 (2) of the Orissa Grama Rakshi Act, 1967, while passing an order suspending, fining or dismissing of any Grama Rakshi under Sub-section (1), the authority shall record such order with the reasons therefor and note of the enquiry in writing and no such order shall be passed unless the Grama Rakshi concerned has been given an opportunity of being heard in his defence.
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27. Much reliance was placed by the learned Addl. Standing Counsel appearing on behalf of the State-opposite parties on the judgment of the apex Court in the case of P. Gunasekharan (supra). But it has no assistance to them, because the apex Court held in the said case that High Court, in exercise of its powers under Arts. 226 and 227, cannot venture into re-appreciation of evidence or interfere with conclusions in enquiry proceedings if the same are conducted in accordance with law, or go into reliability/ adequacy of evidence, or interfere if there is some legal evidence on which findings are based, or correct error of fact however grave it may be, or go into proportionality of punishment unless it shocks conscience of court. It can only consider whether enquiry held by competent authority was in accordance with procedure established by law and principles of natural justice, whether irrelevant or extraneous considerations and/or exclusion of admissible or material evidence or admission of inadmissible evidence have influenced decision rendering it vulnerable. Further held, it can interfere where finding is wholly arbitrary and Page 33 of 36 capricious based on no evidence which no reasonable man could ever arrive at. Therefore, non-compliance of principle of natural justice is also a ground where the High Court can exercise its power under Articles 226 and 227 of the Constitution of India.
28. No doubt, in the present case, show cause was called for from the petitioner, to which he had given his reply. But, without conducting an enquiry in writing and without giving opportunity of hearing in the defence of the petitioner, the order of discharge/termination has been passed against the petitioner. Thereby, there was non- compliance of the principle of natural justice by not giving opportunity of being heard to the petitioner. More so, in the criminal case, the petitioner has already been acquitted by following due procedure. The same should have been considered and without conducting proper inquiry, the order of discharge/termination has been passed. The Tribunal has not taken into consideration these facts in their proper perspective, rather has come to an evasive Page 34 of 36 conclusion in paragraphs-10 and 11 of the order impugned, which are extracted hereunder:-
"10. Grama Rakhi is a part of the State Police who plays an important role in maintaining law and order and performing administrative functions at the village level. If benefit of acquittal is extended to the applicant ignoring the wording concern in any offence the very purpose of the rule will be defeated.
11. Learned counsel for the applicant relied on the decision in the case of Niranjan Nayak-Vrs- State of Orissa and others, 2007(II) OLR-197 wherein the order of discharge in respect of a Grarna Rakhi was set-aside, as no opportunity was given, but the present case is distinguishable as the impugned order was passed after calling for explanation from the applicant and following due procedure and hence, there is no scope for the applicant to raise any grievance."
By so observing, the Tribunal dismissed the Original Application filed by the petitioner, which cannot be sustained in the eye of law.
29. In view of the facts and law, as discussed above, the issue no.(ii) is answered in favour of the petitioner and accordingly the order dated 27.10.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1301 (C) of 2003 affirming the order of discharge/ termination of the petitioner which was confirmed in Page 35 of 36 appeal, cannot be sustained in the eye of law and is liable to be quashed and is hereby quashed. As a consequence thereof, the matter is remitted back to the opposite party no.4 to take necessary steps in accordance with law in compliance of the principles of natural justice.
30. In the result, the writ petition is allowed. However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 11th August, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 14-Aug-2023 12:33:22 Page 36 of 36