Allowed

Natabara Maharana v. Collector,Dhenkanal

Orissa HC1 Oct 2019WP(C)/19262/2009

Case brief

AI extract

What is this about?

Disengagement of a residential girls’ school teacher-cum-office assistant and warden was challenged for non-supply of inquiry reports. The Court quashed both orders for violation of natural justice and directed immediate continuation in service with admissible consequential benefits within four months.

What did the court decide?

Disengagement orders quashed; continuation in service forthwith and admissible consequential benefits within four months of communication of the judgment.

Natabara Maharana Vs Collector,Dhenkanal — Service and Employment | Orissa HC (2019)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C) No. 19262 of 2009 And

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W.P.(C) No. 19527 of 2009

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In the matter of an application under Articles 226 & 227 of the Constitution of India.

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AFR

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W.P.(C) No. 19262 of 2009

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Natabara Maharana ……… Petitioner

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-versus-

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Collector-cum-Chairman, ……… Opp. Parties Sarva Sikhya Abhiyan, Dhenkanal, and others

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For Petitioner : M/s. Susanta Kumar Dash, A.K. Otta, S.K. Dash, B.P. Dhal and A. Dhalsamant, Advocates.

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For Opp.Parties : Mr. P.K. Panda, Standing Counsel, S&ME (O.P.Nos.1 to 3)

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W.P.(C) No. 19527 of 2009

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Nibedita Patra ……… Petitioner

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-versus-

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Collector-cum-Chairman, ……… Opp. Parties Sarva Sikhya Abhiyan, Dhenkanal, and others

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For Petitioner : M/s. Susanta Kumar Dash, A.K. Otta, S.K. Dash, B.P. Dhal and A. Dhalsamant, Advocates.

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For Opp.Parties : Mr. P.K. Panda, Standing Counsel, S&ME (O.P.Nos.1 to 4)

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P R E S E N T :

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THE HONOURABLE DR. JUSTICE B.R.SARANGI

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Date of hearing:27.09.2019: Date of judgment : 01.10.2019

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DR. B.R.SARANGI, J. Both the writ petitions, having arisen out of

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the selfsame cause of action, were heard together and are disposed of by this common judgment.

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W.P.(C) No.19262 of 2009 has been filed by

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Natabara Maharana, who was working as a Part Time Teacher-cum-Office Assistant in Kasturaba Gandhi Balika Vidyalaya of Kankadahad Block in the district of Dhenkanal, seeking to quash the order of disengagement passed by the Collector-cum-Chairman, Sarva Sikhya Abhiyan on 15.09.2009 in Annexure-4, and issue direction to the opposite parties to grant all consequential benefits as due and admissible to him in accordance with law.

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Whereas W.P.(C) No.19527 of 2009 has been

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filed by Nibedita Patra, who was working as a Warden in Kasturaba Gandhi Balika Vidyalaya in Dangapal U.P. School under Kankadahad Block in the district of Dhenkanal, seeking to quash the order of disengagement dated 05.12.2009 in Annexure-10, and further seeks for a direction to the opposite parties to grant all consequential benefits as due and admissible to her in accordance with law.

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The factual matrix of the case, in hand, is that Sarva Sikhya Abhiyan (hereinafter referred to as ‘SSA’) is a programme through which an effort has been made to universalize elementary education by community ownership of the school system. It is in response to the demand for quality basic education all over the country. SSA is a Government of India’s flagship programme for achievement of universalization of elementary education in a time bound manner as mandated by 86^th Amendment to the Constitution of India, 1950 making free and compulsory education available to the children between the age group

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of 06 to 14 years, a fundamental right. SSA is being implemented in partnership with respective State Governments to cover the entire Country and address the needs of the children. SSA has special focus on girls’ education and children with special needs.

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2.1 Kastruraba Gandhi Balika Vidyalaya (KGBV) scheme was launched in July, 2004 and was merged with SSA from 11^th Five Year Plan for setting up of residential schools at upper primary level for girls belonging predominantly to the S.C., S.T., O.B.C. and other minority communities. The scheme is being implemented in educationally backward Blocks of the country that do not have residential schools of upper primary level for girls under any other scheme of Ministry of Social Justice and Empowerment, Ministry of Tribal Affairs of the State Government, where the female rural literacy is below the national average (46.13%) and gender gap in literacy is above the national average (21.67%). The KGBV scheme ran as a separate scheme for two years, but from 1^st April, 2007 it is merged with SSA as a separate component of the

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programme. Further, the scope of the scheme is enlarged to cover the Blocks that have rural female literacy below 30% and urban areas with female literacy more than the national female literacy. Within these Blocks, KGBV schools are to be located in areas with concentration of S.C., S.T., O.B.C. and minority population, with low female literacy and/or a large number of girls remaining out of schools. In view of the targeted nature of the scheme, a minimum of 75% of the seats stand reserved for girls belonging to such communities and for the remaining 25%, priority is accorded to girls from the families below poverty line for BPL group.

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2.2 The funds for KGBV scheme are released as

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per SSA pattern to the State SSA societies. An advisory State level coordination committee consisting of nominees from relevant State Government Departments, Government of India, experts in the field of girls’ education, educationists etc., as approved under the NPEGEL scheme, provides direction and support to the programme. The SSA pattern of financing with 75:25 ratio of sharing between the

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Centre and the States during the tenth five year plan, and thereafter with a 50:50 ratio, has been adopted for KGBV as well. Commitments regarding sharing of cost are taken from the State Governments in writing. The provisions for KGBV are in addition to the provisions already made under SSA and for NPEGEL.

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2.3 In order to achieve the above objectives, several residential schools under the KGBV scheme have been opened in some selected Blocks of Dhenkanal district. The petitioner in W.P.(C) No.19262 of 2009 was engaged as a Part Time Teacher-cum-Office Assistant by office order no.395 dated 12.03.2007 issued by the District Project Coordinator, SSA by order of the Collector-cum-Chairman, SSA, Dhenkanal-opposite party no.1 on the basis of the selection held in pursuance of an advertisement. Pursuant thereto, the petitioner joined in the post and discharged his duties. On 02.02.2009, the petitioner was served with a notice by opposite party no.2 to show cause in response to a newspaper clipping by which it was alleged that a girl student belonging to the community of Scheduled Caste has

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left the KGBV being tortured by the school authorities, namely, B.R.C. Coordinator, Headmaster, the Warden, teacher-cum-office assistant, i.e., the petitioner and the cook. The petitioner submitted his reply on 09.02.2009 refuting such allegations and it was also clarified in the said reply that the girl was reading in Class-VI and on 16.01.2009 at about 9 A.M. in the morning, she had been to the river side along with other schoolmates to take bath, whereafter she did not return to school. It was learnt that she had been to the house of one of her relatives and she came to the school on the next day along with her local guardian who reported that the student has no further intention to continue her studies. Therefore, the allegation published in the newspaper is false and concocted. But, without causing an inquiry and without giving opportunity of hearing, the petitioner was disengaged from service on 15.05.2009. Consequentially, he approached this Court by filing W.P.(C) No.8330 of 2009 and this Court disposed of the said writ petition, vide order dated 09.07.2009, by quashing the order of disengagement issued by the

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Collector-cum-Chairman, SSA, Dhenkanal on 15.05.2009 and directed to make a de-novo inquiry into the matter within a period of one month from the date of receipt of the order by giving an opportunity of personal hearing to the petitioner. It was also observed that in the event the petitioner is not found guilty, he may be reinstated in service and allowed to get the arrear salary within a period of one month thereafter. After disengaging the petitioner, when the process of selection was started by the opposite parties due to consequential vacancy caused, this Court further held that there shall be no interview pursuant to the notification dated 28.05.2009 for selection to the said post till finalization of the case of the petitioner. Notwithstanding the direction that a de-novo inquiry into the matter was directed to be held within a period of one month from the date of receipt of the order, the District Project Coordinatoropposite party no.2 called upon the petitioner by letter dated 11.08.2009 to remain present in his office at 11 A.M. on 18.08.2009 for the purpose of hearing. Thereafter, opposite party no.1 directed the District Welfare Officer,

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Dhenkanal by order dated 29.08.2009 to hold an inquiry and accordingly on 01.09.2009, the District Project Coordinator, Dhenkanal called upon the office bearers of KGBV, Kankadahad, namely, the former Headmaster of the said school, BRC Coordinator as well as the members of the village education committee to remain present on 04.09.2009 at 11 A.M. in the BRC building, Kankadahad for the purpose of inquiry. The District Welfare Officer, opposite party no.3 conducted the inquiry on 04.09.2009 which was concluded on that date itself, but the petitioner has not been served with copy of the inquiry report. Consequentially, the petitioner’s disengagement order, which had been passed earlier on 15.05.2009, was held to be justified.

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2.4 Similarly, the petitioner in W.P.(C) No.19527 of 2009 who was working as a Warden in the said residential school was entrusted with the duty of looking after the health and education of the girls enrolled in the school, providing remedial teaching as well as qualitative academic education to them, maintaining the stock register,

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supervising the cooking work and ensuring that nutrious food is supplied to the students, looking after the regular attendance of the students in the class room and arranging PTA meetings, annual functions as well as different competitions among the students in the school. On 27.01.2009, Girls Education Coordinator visited KGBV running at Dangapal U.P. School and on the basis of the tour report submitted by the said opposite party on 29.01.2009, opposite party no.2 vide letter dated 30.01.2009 called upon the petitioner as well as the peon, cook and the Headmaster of the school to show cause within a week as to why steps would not be taken for their removal from engagement on account of the alleged irregularities committed by them and the alleged negligence in duty, as a result of which one of the inmates of the residential school could manage to leave the hostel and resided elsewhere. Thereafter, by letter dated 02.02.2009, the District Project Coordinator called upon the staff of the residential school, including the petitioner, to show cause along with documentary evidence by 10.02.2009 on the

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issue relating to the alleged torture to the student which was reported in local daily newspapers. In response to the same, the petitioner submitted detailed reply on 09.02.2009 stating inter alia that she was not responsible in any manner for alleged irregularities on the issue relating to the alleged torture of the girl student of Class-VI and an inmate of the hostel. The petitioner categorically stated that on 16.01.2009 at about 9 A.M., she left hostel along with other students to the river side for taking bath but did not return and when the said fact was brought to the notice of the petitioner at the time of taking attendance in the class room, a thorough search was made and finally she was traced in the house of her relative and on the next date, i.e., 17.01.2009, she came to the school with her local guardian and requested for issuance of transfer certificate, but that could not be issued on that date due to absence of the Headmaster. Consequentially, she left with her local guardian by making necessary endorsement. Thereafter, she came on 19.01.2009 to collect her clothes from the hostel. It is also stated therein that this fact was also

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enquired into by the President, Zilla Dalit Mahasangha, Dhenkanal and after thorough fact finding enquiry, sent a letter on 05.02.2009 to opposite party no.1 giving clean chit to the school administration on the issue relating to the student. On 26.03.2009, the petitioner was served with a letter dated 21.03.2009 issued by opposite party no.1 calling upon her to explain within a week as to why she should not be disengaged from the post of Warden for the alleged negligence in duty and unauthorized absence from the hostel. The petitioner reiterated the same explanation on 30.03.2009 before opposite party no.1, who, without taking into consideration the explanation so submitted by the petitioner and without giving opportunity of hearing, disengaged her from service on 15.05.2009. Challenging the same, the petitioner approached this Court by filing W.P.(C) No.8202 of 2009 praying that the order of disengagement was passed without causing inquiry and without giving opportunity of hearing and this Court vide order dated 26.08.2009 set aside the order of disengagement and directed opposite party no.1 to initiate a disciplinary

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proceeding against the petitioner and enquire into the matter de-novo, which shall be completed within a period of three months from the date of receipt of the order. It was further directed that in the said disciplinary proceeding, opportunity of hearing should be given to the petitioner. Since the impugned order was quashed, the petitioner was directed to be paid her monthly emoluments and was also allowed to continue in the said post subject to result of the disciplinary proceeding and the petitioner was also directed to cooperate with the authorities and discharge her duties in terms of the order of appointment and guidelines of the State Government. In compliance thereof, opposite party no.1 called upon the petitioner to submit show cause and accordingly, the petitioner submitted her show cause reply on 12.10.2009 stating inter alia that the proceeding is liable to be dropped for being actuated by mala fide charges framed prior to submission of the show cause. But opposite party no.1 appointed opposite party no.4 as inquiry officer, who submitted his inquiry report behind the back of the petitioner and, as such, the inquiry report has not been

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served on the petitioner. But opposite party no.2 communicated the decision of opposite party no.1 vide order dated 03/05.12.2009, wherein opposite party no.1 held that on 23.11.2009 opportunity of personal hearing was given to the petitioner and, as such, the order of disengagement of the petitioner which was passed earlier on 15.05.2009 is justified and she has been rightly disengaged.

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Mr. S.K. Dash, learned counsel for the petitioners contended that before disengaging the petitioners no opportunity of hearing was given, and even though direction was given by this Court, in pursuance of the two separate writ petitions filed by both the writ petitioners, to make de-novo inquiry, but the same was conducted in a perfunctory manner with undue haste and without serving a copy of the said inquiry report on the petitioners, opposite party no.1 confirmed the order of disengagement passed against the petitioners on 15.05.2009, thereby, there is gross violation of principles of natural justice. It is further contended that basing upon

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certain allegations published in the newspaper clipping, order of disengagement was issued on 15.05.2009 without causing any inquiry and, therefore, this Court on being approached directed to cause de-novo inquiry and, as such, inquiry has been conducted, but copy of the said inquiry report has not been served on the petitioner and the disengagement order issued earlier has been confirmed. Thereby, it cannot be construed that order of disengagement is simplicitor, rather it is punitive one. It is thus contended that once the authorities have held that the petitioners are guilty of charges levelled against them, they should have been given opportunity of hearing in compliance of principles of natural justice. Though it has been specifically stated in the counter affidavit filed by the opposite parties that the District Welfare Officer was appointed as inquiry officer and he had given personal hearing, but as such no personal hearing was given to the petitioners and no such notice has been issued for the very same purpose. Thereby, the inquiry has been conducted in a perfunctory manner and, therefore, he seeks for quashing

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of the order impugned. It is further contended that the entire action has been taken relying upon the undertakings given by the petitioners at the time of their engagement. Therefore, the order of disengagement cannot sustain in the eye of law.

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Mr. P.K. Panda, learned Standing Counsel for School and Mass Education Department vehemently contended that both the petitioners are involved in the allegations which had been published in the newspaper and they were not discharging their duties assigned to them, thereby the action taken by the opposite parties cannot be said to be unjustified. Even after remanding the matter by this Court in two separate writ petitions preferred by the petitioners, inquiry was conducted in which the petitioners were found guilty and the order of disengagement passed against them earlier has been reaffirmed. Consequentially, no illegality or irregularity has been committed by the authority warranting interference of this Court at this stage. To justify his contention, he has relied upon the judgment of this Court in Prafulla Kumar Mohanta v. State of Odisha

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(W.P.(C) No.25385 of 2017 and batch, dismissed on 21.12.2017). It is contended that one of the writ petitioners

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in the batch of matter approached this Court by filing W.A. No.159 of 2018, but the same was dismissed vide order dated 06.03.2019. Thereby, the case of the petitioners having covered by the judgment of this Court, the order of disengagement so passed should be confirmed.

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This Court heard Mr. S.K. Dash, learned counsel for the petitioner and Mr. P.K. Panda, learned Standing Counsel for School and Mass Education Department for the opposite parties, and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.

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Undisputedly, both the petitioners, while working in KGBV, were roped in one incident which was published in local daily newspaper, but they were working in different capacity, namely, the writ petitioner in W.P.(C) No.19262 of 2009 was working as a part time teacher-cumoffice assistant whereas the writ petitioner in W.P.(C)

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No.19527 of 2007 was working as a Warden and both of them have been issued disengagement order on the very same day, i.e., 15.05.2009, which was subject-matter of consideration before this Court earlier in two separate writ petitions, i.e., W.P.(C) No.8330 of 2009, which has been disposed of on 09.07.2009, and W.P.(C) No.8202 of 2009, that has been disposed of on 26.08.2009, by which this Court quashed the order of disengagement and directed for de-novo inquiry and following that opposite party no.1 appointed the District Welfare Officer as inquiry officer, who conducted inquiry and on the basis of such inquiry report, opposite party no.1 reaffirmed the order of disengagement issued on 15.05.2009.

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The writ petitioner in W.P.(C) No.19262 of 2009 has pleaded in paragraph-8 to the following effect:-

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“That the inquiry was completed on 04.09.2009 itself. The petitioner was not supplied with the copy of the inquiry report. It may be pertinent to state that the inquiry was conducted by the District Welfare Office, i.e., the opposite party no.3 as per the direction of the Collector-cumChairman, Sarva Sikhya Abhiyan, Dhenkanal as the Disciplinary Authority. It being the settled position of law that whenever an inquiry is conducted by some one other than the

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Disciplinary authority, a copy of the inquiry report is required to be furnished to the delinquent for submitting a show cause in response to the same. No such inquiry report was supplied to the petitioner. On 15.09.2009, the opposite party no.1 curiously held that the order of disengagement of the petitioner which was passed earlier on 15.05.2009 is justified.”

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To the above pleadings, though counter affidavit has been filed by the opposite parties, no parawise reply has been given. On perusal of the counter affidavit, it appears that in paragraph-14 it has been stated as follows:-

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“That pursuant to the above said lettered dated 29.08.2009 the District Welfare Officer, Dhenkanal, caused an enquiry into the allegations made against the petitioner and submitted his report before the Collector, Dhenkanal vide letter dated 05.09.2009. The District Welfare Officer during his course of enquiry perused/examined different documents and examined/recorded statement of witness Sri Dayanidhi Sethy, Ex-Headmaster, Bishnu Mahali, Ex-Headmaster and also recorded the statement of Village Education Committee (VEC) members and the enquiry officer also arrived at a conclusion that the behavior of the petitioner is not at all tolerable. He has never cooperated with the Headmaster in the official work. It is observed from the version of the president and other members of the VEC that there was always quarrel among the warden, lady attendant and Natabar Moharana and accordingly recommended to the Collector-cumChairman, SSA, Dhenkanal, that the petitioner is not at all acceptable as a responsible worker in such a residential girls school.”

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Similarly, the writ petitioner in W.P.(C) No.19527 of 2009 has pleaded in paragraph-8 to the

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following effect:-

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“That the opposite party no.1 allegedly appointed the opposite party no.4 as the Enquiring Officer, who submitted his report behind the back of the petitioner. The petitioner was not supplied with the copy of the inquiry report. It may be pertinent to state that the inquiry was conducted by the District Welfare Officer, i.e., opposite party no.4 as per the direction of the Collector-cum-Chairman, Sarva Sikhya Abhiyan, Dhenkanal as the Disciplinary Authority. It being the settled position of law that whenever an inquiry is conducted by some one other than the Disciplinary authority, a copy of the inquiry report is required to be furnished to the delinquent for submitting a show cause in response to the same. No such inquiry report was supplied to the petitioner. On 05.12.2009, the opposite party no.2 communicated the decision of the opposite party vide office order no.4724 dated 03/05.12.2009, wherein the opposite party no.1 has held that on 23.11.2009, opportunity of personal hearing has been extended to the petitioner and that the order of disengagement of the petitioner which was passed earlier on 15.05.2009 is justified or that she had been rightly disengaged.”

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Though no parawise reply has been given in the counter affidavit, but in paragraphs-9 and 10, it has been stated as

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follows:-

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“9. That in pursuance to the direction of opposite party no.1 vide Annexure-F/2, the

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opposite party no.4 conducted the de-novo inquiry and submitted a report on 29.10.2009 with a finding the allegation charged against the petitioner are based on reasonable facts and found negligence in duties, hence, she deserves punishment and suggested accordingly. The xerox copy of the inquiry report conducted by the opposite party no.4 dated 29.10.2009 is annexed at Annexure-G/2.

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10. That after receipt of the inquiry report from the opposite party no.4 the Collector, Dhenkanal issued notice enclosing the copy of the inquiry report dated 29.10.2009 for personal hearing to the petitioner. The petitioner appeared before the office of the Collector, Dhenkanal on 23.11.2009 and a personal hearing was conducted and a statement was submitted by the petitioner. The xerox copy of the 2^nd show cause notice vide letter no.4560 dated 19.11.2009 and the statement of the petitioner dated 23.11.2009 are annexed at Annexure-H/2 & 1/2 respectively.”

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The aforesaid pleadings available on record clearly indicate that enquiry was conducted by the inquiry officer, but its report has not been supplied to both the petitioners and on the basis of such inquiry report, action has been taken confirming the order of disengagement dated 15.05.2009 passed against the petitioners, which amounts to non-compliance of principles of natural justice.

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The word ‘nature’ literally means the innate tendency or quality of things or objects and the word ‘just’

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means upright, fair or proper. The expression ‘natural justice’ would, therefore, mean the innate quality of being fair.

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The soul of natural justice is ‘fair play in

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action’.

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In HK ( An Infant ) in re , 1967 1 All ER 226

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(DC), Lord Parker , CJU, preferred to describe natural

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justice as ‘ a duty to act fairly’ .

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In Fairmount Investments Ltd. V. Secy of

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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 ’.

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In R. v. Secy. Of State for Home Affairs,

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ex p. Hosenball, Geoffrey Lane, LJ , 1977 3 All ER 452 (DC & CA), preferred the homely phrase ‘ common fairness ’ in defining natural justice.

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Natural justice, another name of which sense

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justice, is the name of those principles which constitute the minimum requirement of justice and without adherence to

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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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In Swadeshi Cotton Mills v. Union of

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India , AIR 1981 SC 818, the meaning of natural justice came up for consideration and the apex Court held as follows:-

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“The phase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of cast-iron formula. Historically, “natural justice” has been used in a way, “which implies the existence of moral principles of self evident and unarguable truth”, “natural justice” by Paul Jackson, 2^nd Ed. Page-1, In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction 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”.

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In Bhagwan v. Ramchand , AIR 1965

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SC 1767, the apex Court held that the rule of law demands

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that the power to determine questions affecting rights of

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citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice.

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In Union of India v. E. Bashyan , AIR 1988 SC 1000:(1988) 2 SCC 196, the apex Court held that an enquiry officer merely makes his recommendations, by his report in the light of the evidence recorded by him and the submission urged before him. The tentative view expressed by the enquiry officer may or may not be accepted by the disciplinary authority. It is the disciplinary authority who makes up his mind on the basis of the report and reaches the conclusion whether or not the delinquent is guilty. He may or may not accept the recommendations may or may not accept the report. The disciplinary authority builds his final conclusion on the basis of his own assessment of evidence taking into account the reasoning articulated in the enquiry officer’s report and the recommendations made therein. If the report is not made available to the delinquent, this crucial material which enters into the consideration of the disciplinary authority never comes to be known to the

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delinquent and he gets no opportunity whatsoever to have a say in regard to this critical material at any point of time till the disciplinary authority holds him guilty or condemns him.

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In Union of India v. Mohd. Ramzan Khan ,

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AIR 1991 SC 471 : (1991) 1 SCC 588, the Three-Judge Bench of the apex Court clarified that non-furnishing of the report would amount to violation of the rules of natural justice and make the final order liable to challenge.

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The aforesaid question had ultimately came up for consideration before a Constitutional Bench in the case of Managing Director, ECIL v. B. Karunakar , AIR 1994 SC 1074 : (1993) 4 SCC 727, wherein relying upon the Five-Judge Bench view in Union of India v. Tulsiram Patel , AIR 1987 SC 1919 : (1986) 3 SCC 35, the apex Court considered the question whether after Forty-second Amendment the charged employee was entitled to demand a second opportunity and came to the conclusion that whatever right such an employee had of a second opportunity to show cause against the proposed punishment had been taken away by the Forty-second Amendment and

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there was no provisions of law under which a Government servant could claim that right. But in B. Karunakar (supra), the apex Court explained that in Tulsiram Patel (supra) the Court had not dealt with the procedure to be followed by the disciplinary authority after the inquiry officer’s report is received by it. The question whether the delinquent employee should be heard by the disciplinary authority to prove his innocence of the charges levelled against him when they were held to have been proved by the enquiry officer, although he need not be heard on the question of the proposed penalty, was neither raised nor answered in Tulsiram Patel (supra). The Constitution Bench in B. Karunakar (supra) approved the approach taken in E. Bashyan (supra) and the decision in Mohd. Ramzan Khan (supra) to the effect that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer held the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee was entitled to a copy of the report to enable him to make a representation to the disciplinary

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authority against it and the non-furnishing of the report amounted to violation of the principles of natural justice.

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The apex Court in the case said B.

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Karunakar (supra) had further explained the true basis as to why the employee concerned was entitled to a copy of the enquiry report and to make a representation thereon. The apex Court emphasized that the right to receive the report and to show cause against the findings in it was independent of the right to show cause against the penalty proposed. Therefore, some of the propositions have been laid down by the apex Court in Karunakar’s case to the following effect:-

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“ 1. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

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2. Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

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3. In the matter of all punishments, both Government servants and others are governed by their service rules. Whenever, therefore, the

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service rules contemplate an enquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority, the delinquent employee will have the right to receive the enquiry officer’s report notwithstanding the nature of the punishment.

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4. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

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5. The law laid down in Mohd. Ramzan should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject.

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Whatever the nature of punishment, further, whenever the rules require an inquiry to he held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him.

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As to what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases, would depend upon the prejudice caused. In some cases, non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him.

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Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case.

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Where, therefore, even after the furnishing of the report, no different consequence would have followed it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus

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to stretching the concept of justice to illogical and exasperating limits.

¶137

The Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report.

¶138

If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that report was not furnished as is regrettably being done at present. The Court should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity.

¶139

It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.

¶140

Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.

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The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his

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reinstatement if ultimately ordered, should be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.

¶144

If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law, how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, he will be entitled.

¶145

The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held.”

¶146

In view of the aforesaid law laid down by the apex Court in B. Karunakar (supra), this Court is of the considered view that if the enquiry has been conducted behind the back of the petitioners and copy of which has not been served on them, that itself violates the principles of natural justice.

¶147

So far as the contention raised by learned Standing Counsel relying upon the judgment of this Court in the case of Prafulla Mumar Mahanta (supra), the factual matrix of the said case is totally different from that of the present case. In the said case, the petitioner is a male

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¶149

person, who applied pursuant to an advertisement and duly selected and engaged as Part Time Teacher-cum-Office Assistant and pursuant to the decision taken by the State Project Director on 17.07.2014 consequential decision was taken for replacing the petitioner by removing male staff from KGBV and, as such, challenging the same, the petitioner approached this Court by filing the aforesaid writ petition, which was dismissed and, thereafter, writ appeal preferred by the petitioner was also dismissed. Therefore, the said case has nothing to do in the present context and, as such, the said judgment is not applicable to the present case being distinguishable.

¶150

In view of the aforesaid facts and law

¶151

discussed above, this Court is of the considered view that the impugned orders of disengagement passed by the authority on 15.09.2009 (Annexure-4 in WP(C) No. 19262 of 2009) and 05.12.2009 (Annexure-10 in WP(C) No. 19527 of 2009) against both the petitioners suffer from the vice of principles of natural justice and the same are liable to be quashed and are hereby quashed. Consequentially, the

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petitioners are entitled to continue in service as before. The opposite parties are directed to do so forthwith and extend

¶154

all consequential benefits, as due and admissible to them, in accordance with law within a period of four months from the date of communication of this judgment.

¶155

The writ petitions are allowed. However, there

¶156

shall be no order as to cost.

¶157

……………………….. Dr.B.R.Sarangi, J.

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Orissa High Court, Cuttack The 1^st October, 2019/Ashok/GDS

Natabara Maharana v. Collector,Dhenkanal

Case brief

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Natabara Maharana v. Collector,Dhenkanal

Case brief

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