Orissa High Court
Karunakar Khandapani vs State Of Orissa And Others on 3 April, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
OJC No. 6272 OF 1994
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Karunakar Khandapani ......... Petitioner
- versus -
State of Orissa and others ......... Opp. Parties
For Petitioners: M/s. C.A. Rao, S.K. Purohit, S.K. Behera,
P.K. Sahoo.
For Opp.Parties: Addl. Government Advocate.
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 10.03.2015 | Date of Judgment: 03.04.2015
Dr. B.R.Sarangi, J.The petitioner, who was working as Field Assistant under the Dangaria Kandho Development Agency, a Government of Orissa undertaking, has filed this application challenging the order of termination dated 12.03.1993 under Annexure-8 and seeking for a direction to pay all the financial benefit as due and admissible to him in accordance with law.
2. The short fact of the case, in hand, is that the Dangaria Kandho Development Agency is a Government of Orissa undertaking under the direct control and supervision of the Integrated Tribal Development Agency, which is a Government of Orissa undertaking 2 dedicated to the service of the Schedule Tribe people's development in respect of Agriculture and Horticulture. The petitioner being a Matriculate belonging to Scheduled Caste and having requisite qualification and experience, was engaged on daily wage basis as mate since 1985. Thereafter, he was appointed as a Field Assistant on 1st July, 1988 under the Dangaria Kandho Development Agency, Parsal in K. Singhpur Block, vide Annexure-1. Feeling the necessity of a second Field Assistant, a clarification was sought from the Government vide letter dated 19.11.1989 in Annexure-2. Accordingly, the State Government vide letter dated 22.12.1989 in Annexure-3 clarified that the Chairman, Dangaria Kandho Development Agency, Parsali is the appointing authority for direct appointees like Field Assistants. After obtaining necessary instruction and clarification, the matter was passed in the agenda notes for the Governing Body meeting held on 13.09.1990, pursuant to which the Governing Body resolved to create a post of Field Assistant. A selection Board was formed for the purpose of appointing a regular Field Assistant. A number of candidates were interviewed on 07.04.1991 in which the petitioner being the most suitable, was selected and appointed as a regular Field Assistant w.e.f. 13.08.1991 in the time scale of Rs. 950-1500/- per month, vide Annexure-4. The Governing Body, for the creation of the second post of Field Assistant, wrote to opposite party no.3, pursuant to which the State Govt. replied that the Governing Body is competent enough either to create/delete a post. Therefore, the selection and 3 appointment was made by the Dangaria Kandho Development Agency for giving regular appointment to the petitioner, pursuant to which the petitioner joined in the post and was receiving salary in the time Scale of pay prescribed for the post till August, 1992. After joining of a new Special Officer, the petitioner was not given regular salary since the month of September. 1992 and when he approached the opposite party no.4 on 15.10.1992 requesting for his salary as he was getting earlier, he was informed that he shall be paid at the rate of his basic pay of Rs.950/- only after clearance from the Government regarding his appointment in the post of Field Assistant. Thereafter, when his salary was not paid till November, 1992, he again approached the opposite party no.4 who advised him to give his complaint in writing. So, the petitioner represented to opposite party no.4 on 23.11.1992 stating that due to non-payment of salary since last two months, he was not able to purchase daily domestic articles for his food and essential medicines so badly needed for his seriously ailing wife. Finally, the opposite party no.4 told the petitioner on 07.02.1993 that his services have been terminated w.e.f. September, 1992 as per the resolution of Governing Body dated 30.12.1992. As per the said resolution, the petitioner may receive the salary at Rs.750/- per month on daily wage basis starting from September, 1992 till date. The said amount has also not been paid to the petitioner. Therefore, due to non-payment of salary and disallowing to work, the petitioner filed a writ petition bearing O.J.C No. 1429 of 1993. In course of hearing on 4 27.08.1994, it was disclosed that the services of the petitioner had been terminated w.e.f. 12.03.1993 but such copy was not given to the petitioner so as to challenge the same before the appropriate forum. But subsequently, on receipt of such letter of termination in Annexure- 8 dated 12.03.1993, he approached this Court by filing the present writ application.
3. Mr. C.A. Rao, learned counsel for the petitioner strenuously urged that when the petitioner was appointed by following due procedure of selection on the basis of the resolution passed by the Governing Body in its meeting held on 13.09.1990 under the Chairmanship of P.A.I.T.D.A., Rayagada-cum- Vice Chairman with other 15 members Board at Item No. 12(ii) approved for creation and posting of " another Field Assistant", the service of the petitioner could not have been terminated without following due procedure of law. It is further urged that while terminating the services of the petitioner, neither the principles of natural justice have been complied with nor has any reason been assigned though he was duly appointed by following due procedure of selection. In addition to that the petitioner was receiving the salary in the time Scale of Rs.780-1160/-, pursuant to his terms of appointment in Annexure-6. But the same has been denied for no reasons. Therefore, he seeks to quash the order of termination issued by the authorities in Annexure-8 dated 12.03.1993 as the same is violative of principle of natural justice and release of 5 financial benefits as due and admissible in accordance with law. In order to substantiate his case he has relied upon the judgments of apex Court in Basudeo Tiwari v. Sido Kanhu University and others, AIR 1998 SC 3261, in Raj Rani (Smt.) v. Haryana State of Social Welfare Advisory Board and Another, 1998 supp (2) Supreme Court Cases 759, in Laxman Dundappa Dhamanekar and another v. Management of Viswa Bharata Seva Samiti and another, AIR 2001 SC 2836 and in Biecco Lawrie Ltd. v. State of West Bengal and another, AIR 2010 SC 142.
4. Mr.B.Senapati, learned Addl. Govt. Advocate appearing for the opposite parties 1 to 4 strenuously urged that the appointment of the petitioner is highly irregular and illegal inasmuch as there was no sanctioned post in the agency although the Governing Body of the agency had created such post and there was necessity of the same at that point of time, which would be evident from the proceedings of the Governing Body meeting held on 13.09.1990, but the same was subject to the approval of the State Government and the Governing Body is not competent to create such post as the staffing pattern has been sanctioned by the Government in Harijan and Tribal Welfare Department on 02.01.1988. Therefore, any appointment against non- sanctioned post being illegal and irregular one, the services of the petitioner has been rightly terminated by the agency. It is further stated that the Special Officer of the agency without any sanction from 6 the Government had issued appointment letter even though he was not the appointing authority in respect of the Field Assistant and Class- IV employees, which has been clarified by the Government in its letter dated 22.12.1989 in Annexure-3. But it was made clear in the said letter that the Chairman of the said agency would be the appointing authority for direct appointees like Field Assistant etc. It is further urged that the petitioner has been paid his salary from 01.09.1992 to 20.03.1993 amounting to Rs.13,291.00 in the regular Scale on 05.10.1994. It is urged that the Government in Harijan and Tribal Welfare Department has never been intimated about the creation and appointment of 2nd Field Assistant in place of one sanctioned post by the then Special Officer of the agency. Therefore, the Government did not approve the post when the same was brought to its notice in a subsequent proceeding, which was brought to the notice of the Governing Body by the Special Officer of the agency and they resolved to terminate the services of the petitioner vide Annexure-C/3 dated 30.12.1992. Therefore, the opposite parties have not committed any irregularity or illegality in terminating the services of the petitioner.
5. On the basis of the aforesaid pleaded facts, it is admitted fact that the petitioner was selected and appointed as Field Assistant under the agency in the Scale of pay admissible to the post vide Annexure-6 dated 13.08.1991, pursuant to which he joined and continued in service and was discharging his duties till 12.03.1993. It 7 is urged in the impugned order that the Governing Body of the agency pursuant to Resolution dated 30.12.1992 has terminated the second post of Field Assistant appointed by the agency as the same has neither been sanctioned by the Government nor approved by the Governing Body of the agency. Therefore, the services of the petitioner were terminated w.e.f. 20.03.1983 and decision has been taken to pay from 9/92 till his termination on NMR basis @ 750/- per month. For all round development of 13 Vulnerable Tribal groups of 17 micro projects functioning in the State though the workload increased substantially, but the manpower structure are ill equipped to sustain the workload. Since all the villages are situated on the hill ranges and since it has become difficult on the part of one Field Assistant for frequent visit and supervision of the developmental work like agriculture/Horticulture etc., the authorities felt the necessity of one more Field Assistant. Keeping that in view since the Government order was not available, opposite party no.3 wrote a letter on 19.05.1989 to the State Government in Harijan and Tribal Welfare Department seeking clarification as to who is the appropriate authority to appoint staff like Field Assistant, Class -IV staff etc. vide Annexure-2. The Government of Orissa in its Harijan and Tribal Welfare Department vide letter dated 22.12.1989 informed the opposite party no.4 that the Chairman of the Agency would be the appointing authority for direct appointments like Field Assistants. Accordingly, the Governing Body of the agency in its meeting held on 13.09.1990 under the Chairmanship of PAITDA, 8 Rayagada-cum-Vice Chairman with other 15 members considered Item No. 12(ii) and approved the creation and posting of another Field Assistant for the agency. The relevant Clause-12(ii) is quoted below.
"12(ii) discussions were made for the creation and posting of another Field Assistant in the time Scale of Rs.780- 1160.- for the Agency in view of the heavy work load. During the year 90-91 all the 49 nos. of villages of the Agency have been covered for taking up different developmental work. All the Villages situated on the hill ranges. Since in order to cope up with the increased work load it is becoming difficult on the part of one "Field Asst."
for frequent visit and supervision of different developmental schemes like Agricultural/Horticulture, the G.B. have approved for the creation and posting of another Field Asst. for the Agency."
6. Pursuant to such decision, interview was held on 07.04.1991 and the petitioner was appointed as Field Assistant with regular Scale of Pay of Rs. 950-1150/- and joined in the said post on 13.08.1991. While the petitioner was discharging the duties assigned to him, all on a sudden, his services were terminated w.e.f. 20.03.1993 vide order dated 12.03.1993 in Annexure-8, but no communication has been made from any quarter indicating his termination. When he was not paid the salary, he approached this Court by filing writ application bearing OJC No. 1479 of 1993. In course of hearing on 27.08.1994, it was brought to the notice of the Court that the petitioner's services have been terminated w.e.f. 12.03.1993 but subsequently he was paid his salary @ Rs.750/- as admissible to NMR employees for the period from 01.09.1992 to 20.03.1993 amounting to Rs.13,291.00 in the regular Scale on 05.10.1994. In course of such hearing, it was brought to notice that 9 the services of the petitioner have been terminated by the authority as the post was not duly sanctioned by the Government in Harijan and Tribal Welfare Department. The termination in question has not been done by following due procedure of law inasmuch as the same is violative of principle of natural justice as no notice has been given to the petitioner before such termination. In this context, now it is to be considered whether the termination of services of the petitioner in absence of giving an opportunity of being heard is valid or justified.
7. In Basudeo Tiwari (supra) in paragraphs-9, 10 and 11 the apex Court 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 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 :-10
"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 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.
8. In Raj Rani (Smt.) (surpa) the apex Court held that 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.
9. Applying the principle laid down by the apex Court mentioned above, even if in the appointment of the petitioner, the authorities found some illegalities or irregularities, then he could have been relegated to his position to continue on NMR basis. Instead of doing that, terminating his services without following due procedure of law, such recourse is contrary to the provisions of law and therefore, the termination order passed by the authority is not justified and cannot be sustained in the touchstone of reasonableness and non- arbitrariness and therefore, contrary to the provisions of articles 14 and 16 of the Constitution of India.
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10. In Laxman Dundappa Dhamanekar (supra) the apex Court found the management guilty of willful 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, since the services petitioner, who has been appointed by following due procedure of selection, have been terminated by not complying with the principle 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.
11. In Biecco Lawrie Ltd. (supra) while terminating the services, question of compliance of principle of natural justice came up for consideration. The Apex Court considered the same in paragraphs 12, 13 and 14 and discussed the various judgments and 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 the other side and it is often 12 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.
12. Keeping in view the above ratio laid down by the apex Court and applying the same to the present case, it appears that the petitioner has been terminated without following due procedure of law and without complying the principle of natural justice. In that view of the matter this Court is of the considered opinion that the order of termination in Annexure-8 cannot be sustained as the same has not been done complying the principles of natural justice and accordingly, the same is quashed and the petitioner is deemed to be continuing in service.
13. So far as back wages are concerned, as the petitioner has been deprived of discharging the duties not because of his own fault but because of the fault of the employer, he is entitled to get consequential benefit in accordance with law. The question of "consequential benefits" came up for consideration before the apex 13 Court in Union of India v. Madhusudan Prasad, AIR 2004 SC 977 wherein the apex Court held as follows:
"xxxxxx It may be noticed that the respondent was removed from service without any enquiry and he was not even given show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. X x x "
14. This Court in Jute Corporation of India Limited v. Judhistira Swain, reported in (2014) 11 ILR Cut.165 while considering a dispute under the Industrial Disputes Act in paragraph 11 has held to the following effect:
"In view of the above, "consequential benefit" to a person does not mean only back wages. It includes much more things beyond back wages, such as promotion, fixation of seniority and grant of financial benefits admissible to the post etc. Therefore, if the termination of the opposite party-workman in the guise superannuation has been declared as illegal and unjustified, then the opposite party-workman is entitled to get all the consequential service benefits admissible to the post. Back wages may be one facet of getting monetary benefits, but that is not the conclusive one. On the other hand, service benefit, which would have accrued to him had he continued in service cannot be denied by the petitioner-Management. Apart from the same, at best, the petitioner-Management may contend that since the opposite party-workmen has not rendered service for the period for which he was not in employment, he may not be entitled to get back wages. The said fallacy is not justified in view of the fact that it is the illegal and arbitrary action of the authorities for which the poor workman was out of employment on the plea of discrepancy in the date of birth. Had it been the out-come of a disciplinary proceeding and a punitive measure, then in that case consideration would have been different. But in the present case, because of the lapses on the part of the petitioner- Management, the opposite party-workman was out of employment and was deprived of discharging his duties. That ipso facto does not disentitle him to get the legitimate claim admissible to the post. X x xx "
15. Relying upon the above mentioned judgments this Court in Akhilanath Sahoo v. Joint General Manager, OSFC and 14 others, 119 (2015) CLT 281 also held that the petitioner in the said case is entitled to get back wages.
16. In view of the aforesaid facts and circumstances, since the petitioner was discharging his duties but due to wrong act of the opposite parties he faced termination without following due procedure of law and without complying the principle of natural justice, the impugned order in Annexure-8 having been quashed, he is entitled to get consequential service benefits as if he is continuing in service. The arrear back wages shall be computed and paid to him within a period of four months hence.
17. Accordingly, the writ application is allowed. There shall be no order as to costs.
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Dr. B.R.Sarangi, J.
Orissa High Court, Cuttack The 3rd April, 2015/Ajaya/PKSahoo