Orissa High Court
Sankar Chandan vs State Of Odisha And Others ....... Opp. ... on 16 January, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 19375 of 2015
An application under Sections 226 and 227 of the Constitution of
India)
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Sankar Chandan ...... Petitioner
-Versus-
State of Odisha and others ....... Opp. Parties
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. U.K. Samal, C.D. Sahoo,
S.P. Patra & S. Naik,
Advocates
For Opp. Parties : Mr. B. Seth &
N. Maharana,
Advocates (For O.P. No.6)
Mr. A.K. Sahoo, A.K. Parida &
S.R. Pati, Advocates
(For O.P. No.7)
Mr. R.N. Mishra,
Additional Government Advocate
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
16th January, 2023 SASHIKANTA MISHRA, J.
The petitioner has approached this Court seeking the following relief:-
Page 1 of 9
"It is prayed therefore, that this Hon'ble Court may graciously be pleased to:-
a) Admit the writ application:
b) Call for the records:
c) Issue rule Nisi calling upon the Opposite Parties as to why the order dated 06.08.2015 passed by the Collector, Bolangir, under Annexure-10 shall not be quashed.
d) If the Opp. parties do not show case or shown insufficient cause, issue a writ in the nature of mandamus or any other appropriate writ/writs, order/orders, direction/directions in quashing the order dated 06.08.2015 passed by the Collector, Bolangir, under Annexure-10.
e) And pass such other orders(s) which will deem fit and proper for the ends of Justice.
And for this Act of kindness the petitioner as in duty bound shall ever pray."
2. The facts of the case are that the petitioner claims to have been engaged as Jogan Sahayak at Madhulpada Gram Panchayat as per order dated 22.01.2015 of the BDO, Titilagarh, copy of which is enclosed as Annexure-8. Such engagement is said to have been made pursuant to a selection process in which the present opposite party nos.6 and 7 were also applicants. The present opposite party no.7 approached this Court in W.P.(C) No. 5381 of 2015, which was disposed of by passing the following order:-
Page 2 of 9
"Heard Mr. A.K. Sahoo, learned counsel for the petitioner The petitioner files this petition challenging the action of the opposite parties with regard to selection of Jogan Sahaya" in Madhulpada Gram Panchayat under Titilagarh Block in the district of Bolangir and seeking for a direction to appoint him as "Jagan Sahayak" in respect of Madhulpada Gram Panchayat in pursuance of the notification under Annexure-2. To that extent he has filed representation before the opp. party no.2 in Annexures-9 and 10 which is pending for consideration.
In course of hearing, Mr. A.K. Sahoo, learned counsel for the petitioner states that direction may be given to consider the representation in Annexure-9 and 10 within a stipulated time.
Considering the limited nature of grievance made by the petitioner without expressing any opinion on the merits of the case, this writ petition is disposed of directing opposite party no.2 to consider the representation in Annexure-9 and 10 and pass appropriate order within a period of three months from the date of receipt of the certified copy this order. The petitioner is directed to produce a certified copy of this order along with copy of the writ petition with all its Annexure before the opp. party no.2 who shall act upon the same within the time stipulated.
Requisites for communication of this order along with copy of the writ petition and all its annexures be filed by Monday (04.05.2015).
Sd/-Dr.B.R. Sarangi, J."Page 3 of 9
3. Pursuant to such order, the Collector, Bolangir issued notice to the petitioner (present opposite party no.7), the BDO, Titlagarh, Sarapanch, Mahulpada G.P. and Executive Officer, Mahulpada G.P. to appear in person fixing a date. The BDO was also directed to file a report in the matter and the Sarpanch was directed to produce the relevant documents regarding the appointment of the present petitioner. Ultimately by order dated 06.08.2015, the Collector held that the appointment of the petitioner as Jogan Sahayak was not proper as it was based on certain manipulated documents and accordingly the present opposite party no.7 was held to be suitable for post and certain directions were issued for taking appropriate action against the Sarpanch Mahulpada G.P. for his alleged manipulation in the selection process.
4. Assailing the impugned order, Mr. U.K. Samal, learned counsel appearing for the petitioner submits that the order is illegal and contrary to the settled position of law inasmuch as the principles of natural justice were not adhered to in any manner. He further submits that the Page 4 of 9 question of engagement of the petitioner having been raised and decided, it was incumbent upon the Collector to have heard him before passing any adverse order. Mr. Samal has also relied upon the decision of the Apex Court in the case of Canara Bank and others vs. Debasis Das and others, reported in (2003) 4 SCC 557 wherein the Apex Court held as follows:-
"15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi- judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and Page 5 of 9 shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works2 the principle was thus stated: (ER p.420) "[E]ven God himself did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" (says God), 'where art thou? Hast thou not eaten of the tree whereof, I commanded thee that though should not eat?'".
Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond"
5. Mr. Samal therefore submits that the impugned order is unsustainable in the eye of law.
6. Mr. R.N. Mishra, learned Additional Government Advocate submits that in view of the clear finding in the report submitted by the BDO that the petitioner's engagement was on the basis of manipulated documents, he was rightly disengaged from service. However, he fairly concedes that petitioner ought to have been heard before Page 6 of 9 passing any adverse order against him as per the settled position of law.
7. Mr. Bhojraj Seth, learned counsel appearing for the opposite party no.6 submits that his client should have been validly considered for engagement and as the petitioner was found to have been engaged on the basis of manipulated documents, the entire selection process should be scrapped and direction should be given for fresh selection.
8. Mr. A.K. Sahoo, learned counsel appearing for the opposite party no.7 submits that no fruitful purpose would be served by granting any opportunity of hearing to the petitioner as the materials on record are adequate to prove that the selection was faulty.
9. Having heard learned counsel for the parties, this Court is of the view that when the question of disengagement of a person is concerned, the concerned authority should keep in view the fact that any order passed to the detriment of such person has to conform to the salutary principle enshrined under Article 21 of the Constitution inasmuch as right to livelihood is included Page 7 of 9 within Right to Life as per the said provision. In the case of Canara Bank (supra), the Apex Court has also reiterated the fundamental principle of law, namely the rule of Audi Alteram Partem. Coming to the impugned order, it is seen that the same was passed in obedience to the order passed by this Court in the earlier writ petition, i.e., W.P.(C) No.5381 of 2015. Though there was no specific direction in the said order to hear the petitioner, yet it is the fundamental rule of law that the principles of natural justice need to be followed by every quasi judicial authority as has been held in the decision cited supra.
10. For the foregoing reasons therefore, this Court is of the considered view that the impugned order cannot be sustained in the eye of law. Resultantly, the impugned order is set aside and the matter is remitted to the Collector, Bolangir to consider the representation submitted by opposite party no. 7 afresh as directed by this Court in the earlier writ petition, but only after hearing all concerned, including the present petitioner, namely, Sankar Chandan. For convenience, the parties are directed to appear before the Collector, Bolangir on Page 8 of 9 30th or 31st January, 2023 for receiving further instructions from him. It is made clear that this Court has not expressed any opinion on the merits of the case and the Collector is at liberty to decide the matter on the basis of the contentions putforth by the parties before him as also the materials on record. It is further directed that the Collector shall take a final decision in the matter within a period of six weeks from the date of appearance of the parties.
11. The writ petition is disposed of accordingly.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 16th January, 2023/ B.C. Tudu Page 9 of 9