Disposed

Dibya Suitra Xaxa v. State of Odisha

Orissa HC20 Mar 2023WPC(OAC)/1030/2016

Case brief

AI extract

What is this about?

The High Court of Odisha addressed a termination dispute wherein a probationer was dismissed for furnishing a forged sports identity card. The Court held that the termination, based on an untested enquiry report, violated natural justice. It refused to deem the departmental appeal disposed of and directed the appellate authority to decide the appeal on merits after affording a proper hearing.

What did the court decide?

Issued a writ of mandamus to the Secretary cum Commissioner to consider and dispose of the pending appeal within six months after affording the petitioner a reasonable opportunity of being heard.

Dibya Suitra Xaxa Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA : CUTTACK.

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WPC (OAC) No. 1030 of 2016

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(An Application under Articles 226 and 227 of the Constitution of India, 1950)

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Dibya Sumira Xaxa … Petitioner @ Dibya Sumitra Xaxa, D/o: Binod Xaxa, R/o: Dhudi Nuagaon, P.O.: Khampur,

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P.S.: Talsara, Dist: Sundargarh

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VERSUS
State of Odisha
and Others … Opposite Parties
Advocates appeared in the case:
For the Petitioner : Mr. Devashis Panda, Advocate
with Ms. P. Priyambada,
Advocate
For the Opposite parties : Mr. Manoj Kumar Khuntia,
Additional Government Advocate

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CORAM:
JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 24.02.2023 :: Date of Order : 20.03.2023

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ORDER

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MURAHARI SRI RAMAN, J.—

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1. The petitioner, Assistant Revenue Inspector posted at Tahasil Office, Kutra, lays challenge before the Odisha Administrative

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Tribunal, Cuttack Bench, Cuttack under Section 19 of the Administrative Tribunals Act, 1985, with a prayer to quash the order of the Opposite Party No.2-Collector, Sundargarh in terminating her service vide Memorandum No.1722 dated 2^nd June, 2015 (Annexure-5). A prayer is also sought for reinstatement of the petitioner.

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1.1. After abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A- 1014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019, said Original Application has been converted to Writ Petition before this Court and renumbered as WPC (OAC) No.1030 of 2016.

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1.2. Since the matter has been pending since 2016 and the matter relates to termination of service of the petitioner, it was conceded by the counsel for both the sides for disposal of the case even in absence of response from the opposite parties. Though on 24^th February, 2023 the hearing of the case was concluded and both parties were “allowed to file written note of submissions within fifteen days” from said date, none preferred to do the needful. Therefore, on the basis of material available on record and taking into consideration the arguments advanced during the course of hearing, the afore-noted writ petition has been disposed off.

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Fact of the case:

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2. Shorn off unnecessary detail narration of facts, suffice it for the purpose of present case to describe that the petitioner-Dibya Sumira Xaxa @ Dibya Sumitra Xaxa in response to

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Advertisement No.1796/Estt., dated 11^th July, 2013 (Annexure-1) applied for the Post of “ASSISTANT REVENUE INSPECTOR” against vacancy reserved for Scheduled Tribe (Woman) claiming herself to be sports person in the district of Sundargarh in the pay scale of Rs.5,200/- — Rs.20,200/- with Grade Pay of Rs.1,900/-.

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2.1. The advertisement required qua the applicants-candidates under the category “sports person” inter alia to enclose along with Application Form an attested copy of “Identity Card” issued by the Director of Sports, Odisha. The advertisement specified as follows under the heading “DOCUMENTS TO BE FURNISHED ALONG WITH THE APPLICATION FORM”:-

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“xxx xxx xxx xxx xxx (xii) Attested copy of certificate in case of Exserviceman/Persons with Disabilities/ sports person . The candidate claimed as sports person shall produce the identity card issued by the Director of Sports, Odisha .”

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2.2. The Petitioner/Applicant for consideration of her application for the post of ASSISTANT REVENUE INSPECTOR in the category of “sports person”, enclosed attested copy of Merit Certificate issued by the Sports Authority of India, Ministry of Youth Affairs & Sports showing “third position” in the Discipline: HOCKEY in the All India Rural Sports Tournament, Group-III held at Bhiwani (Haryana), during 2^nd February, 2006 to 5^th June, 2006 (Annexure-2). However, it is admitted fact that she did not furnish copy of Identity Card as specified in the Advertisement.

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2.3. The candidature of the Petitioner/Applicant was accepted as reflected in the Office Order No.638/Estt., dated 1^st February,

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2014 issued from the Collectorate, Sundargarh-Opposite Party No.2 and she was provisionally appointed as ‘ASSISTANT REVENUE INSPECTOR’ with the above Pay Scale, Grade Pay in Pay Band-1 and other allowances admissible from time to time being selected in the category of “Scheduled Tribe (Woman)” with special category “Sportsman”. The petitioner was instructed to report before the Additional District Magistrate, Sundargarh within fifteen days from the date of issue of the order, failing which the said order would be cancelled.

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2.4. Aforesaid Office Order dated 01.02.2014 stipulated certain terms and conditions, the relevant of which for the present purpose are reproduced hereunder:

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“Terms and conditions:

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1. The appointment is purely temporary and terminable at any time without prior notice and assigning any reason thereof or in case of reduction of establishment.

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2. The candidate shall remain on probation for a period of 2 (two) years with effect from the date of their joining in the post.

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3. The Appointing Authority may terminate his/her service or extend probation for such period as he may consider necessary , during the period of probation, if the performance of the candidate and conduct is found to be unsatisfactory of there are reasons to believe that the candidate will not improve.

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7. She/he is required to submit a copy of self-attested Educational Qualification Certificate, Caste Certificate, Residential Certificate, Employment Registration Card, etc. at the time of joining .

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***”

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2.5. It is averred by the petitioner that after receipt of communication for submission of copy of Identity Card issued by the Director of Sports, Odisha, she had gone to the Office of the District Sports Officer, Sundargarh-opposite party No.3 to secure the requisite identity card. As instructed, she deposited necessary fees and submitted requisite documents so that her application for issue of Identity Card could be processed. It is claimed that she was issued with the Identity Card.

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2.6. But, the Opposite Party No.2-Collector, Sundargarh vide Memorandum No.1722, on 2^nd June, 2015 informed the Petitioner/Applicant that it was proposed to hold an enquiry into charges framed against her for alleged violation of the Odisha Government Servants’ Conduct Rules, 1959 because the District Sports Officer, Sundargarh being asked to confirm the authenticity of said Identity Card, informed that said Identity Card was a forged one inasmuch as the same was denied to have been issued by the Director, Sports and Youth Services Department. Therefore, she was charged with furnishing of false declaration in her Application Form and submission of forged Identity Card. It is stated that the Collector, Sundargarh lodged an F.I.R. against her.

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2.7. Vide Letter No.2746, dated 11^th September, 2015, the Collector, Sundargarh had communicated the Order of termination from service to the petitioner indicating therein that though adequate time was granted to submit statement of defence, she did not do so, which warranted no further enquiry in the matter. On the contrary, it is the case of the petitioner that, having approached

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this Court under Section 438, Code of Criminal Procedure, 1973, in order to be protected from being arrested on account of F.I.R. lodged against her, no explanation to the Article of Charges could be proffered within the stipulated period.

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2.8. Aggrieved, to ventilate grievance, the petitioner-applicant has stated to have preferred “statutory appeal” before the Government of Odisha, Secretary- cum -Commissioner, Revenue and Disaster Management Department, vide Annexure-7, challenging the Order of termination dated 11.09.2015 at

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Annexure-6; inter alia on the following:

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Respected Sir,

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I Miss. Dibya Sumitra Xaxa, Asst. R.I. Joined in the present post (Asst. Revenue Inspector) lastly stationed at Kutra Revenue Circle under the District of Sundargarh.

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1. That, I appeared interview in reference to the Advertisement No.1796 dt. 11.7.2013 thereafter submitted all the documents as required including the certificate issued by Director General Sports Authority of India and than being satisfied the Collector, Sundargarh appointed me in the post of Asst. Revenue Inspector, I joined on 7^th February, 2014 After joining I have worked satisfactory in different stationed. Unfortunately I got one notice from the Collector, Sundargarh vide No.3182 dt.2.9.2014 calling upon me to furnish the Identity card.

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2. That, after receiving such notice myself and some other proceeded to the Office of the Dist. Sports Officer, Sundargarh, requested him to issue Identity Card. Myself furnished the certificate of Participation in All Indian Rural Hockey being represented by State. There after the D.S.O. asked fees of Rs.200/- also took voter card, certificate, pass port photo etc and advised me to wait for

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10 days. After 10 days the D.S.O. handed over one sports Identity Card I received it with a bonafide belief looking into the designation of the said D.S.O.

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3. That, after some day I received a notice from the Collector, Sundargarh vide No.1722 dated 2.6.2015 regarding the forgery of the Identity card and directed the Tahasildar to lodge one F.I.R. against me.

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4. That, to prove my innocency I took shelter of the Lordship of Odisha High Court in Bail application No.12186 of 2015 and got an order not to be arrested. Similarly in order to ascertain the authenticity of my certificate issued by the Director General Sports authority of India I made correspondences and then received one certificate “to whom it may concern” I also made a correspondence to other authority.

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5. That, the Director cum Addl. Secretary Govt. of India made a correspondence on my clarification that as per the resolution by Govt. of Odisha Sports and Youth Services Deptt. C.1 Nayapalli, Bhubaneswar-75101 vide No.VII Sys-SA-83-14-11982-Sys Bhubaneswar dated the 19.9.2014 have given eligibility criteria for issuance of Sports Identity Card, wherein I have been denied to obtain Identity Card.

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It is pertinent to mention herewith that the notification of interview as issued on 11.7.2013. I joined in my job on 2.1.2014. The correspondences made by the Collector for production of Identity Card was on 2.9.2014 and as such the circular issued disqualifying me to obtain Sports Identity Card is on the basis of a circular on 19.9.2014 which is not applicable my case as I have got the appointment prior to the resolution No.11982 dt.19.9.2014 So my termination on that ground is in contravention with law.

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6. That, the Collector, Sundargarh without verifying all these documents in absence of my show cause passed an order for termination in an ex-parte manner. After getting relief from High Court I have filed the show cause and

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explanation with a prayer to revoke the termination vide one petition dated 1.10.2015.

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7. That, unless my legal and genuine grievance is not considered I shall put to irreparable loss. My bright future shall be foiled.

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It is therefore prayed the authority be pleased to issue an instruction to the Collector, Sundargarh for revocation of termination order dated 11.9.2015 and for which I shall ever pray.”

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Arguments of respective parties:

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3. During the course of hearing, Sri Devashis Panda, learned counsel submitted that even though written statement of defence was not furnished to the authority, the proceeding should have been continued by confronting the document(s)/report obtained behind the back of the petitioner and undertaken by affording opportunity to cross-examine the witness(es). As the petitioner at the relevant point of time was pursuing her remedy before this Court against imminent danger of being arrested, there was sufficient and reasonable cause available for not submitting the explanation/written statement of defence in response to the MEMORANDUM containing ARTICLE OF CHARGES vis-à-vis STATEMENT OF IMPUTATION IN SUPPORT OF CHARGES. Therefore, there was flagrant violation in adherence of principles of natural justice. It has been vehemently contended by Sri Panda that once the petitioner was considered for appointment in the post of “ASSISTANT REVENUE INSPECTOR” on the basis of documents furnished, there was no scope for the Authority later on to insist upon production of document like “Identity Card” issued by the Director of Sports, which is an alternative document in terms of

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item (xii) of Clause 5 of the Advertisement dated 11.07.2013. He further submitted that the appeal as filed by the petitioner has not yet been considered. As nothing fruitful came out by preferring appeal, the same does require to be treated as “deemed to have been disposed of” and the writ petition is to be considered on its merits. Hence, this case deserves indulgence and accordingly, the order of termination is liable to be set aside.

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3.1. Sri Manoj Kumar Khuntia, learned Additional Government Advocate opposing the contentions of the learned counsel for the petitioner, while supporting the action of the Collector of Sundargarh vide Order dated 11.09.2015, urged that the Office Order dated 01.02.2014 under the head “TERMS AND CONDITIONS” clearly mentioned about submission of self-attested documents, namely “Educational Qualification Certificate, Caste Certificate, Residential Certificate, Employment Registration Card, etc.” at the time of joining. Since the petitioner did not furnish “Identity Card” as contemplated in the Advertisement dated 11.07.2013 under the heading “DOCUMENTS TO BE FURNISHED ALONG WITH THE APPLICATION FORM”, though the same is couched in the language “shall produce the identity card issued by the Director of Sports, Odisha” , false declaration having been made by the petitioner-delinquent at the stage of application and forged document being furnished while under probation, no further inquiry was warranted; thereby the termination order is, thus, justified.

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3.2. Referring to the Advertisement dated 11.07.2013 (Annexure-1), Sri Manoj Kumar Khuntia urged that the requirements to be

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fulfilled by furnishing documents was within the knowledge of the petitioner. Amongst other documents, as per item (xii) in Clause 5 of the Advertisement under the heading “DOCUMENTS TO BE FURNISHED ALONG WITH THE APPLICATION FORM”, it was essential to submit the following:

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i. Attested copy of certificate in case of sports person;

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ii. The Identity Card issued by the Director of Sports, Odisha.

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Since the petitioner-probationer did not submit Identity Card as afore-mentioned along with Application Form, she was instructed to furnish the same during the period of probation. Such a cumulative condition being not satisfied, the petitioner is not entitled to be granted relief prayed for.

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3.3. Amplifying his submission the learned Additional Government Advocate has drawn the attention of this Court to Explanation (h) appended to Rule 13 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962, which reads thus:

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“(h) Termination of the services.—

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(i) of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; or

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(ii) ***

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(iii) ***”

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3.4. Sri Khuntia, therefore, submitted that it is explicit in the Office Order dated 01.02.2014 itself that “the appointment is purely temporary and terminable at any time without prior notice and

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assigning any reason thereof”. Thus, there was no necessity to initiate disciplinary proceeding prior to effecting termination of service. The petitioner had chosen not to avail the opportunity by filing written statement of defence and insist for personal hearing. Strong reliance has been placed by Sri Manoj Kumar Khuntia on Clause 9 of the “TERMS AND CONDITIONS” stipulated in the Office Order dated 01.02.2014 vide Annexure-3, which reads as under:

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“Any adverse report on her/his character, and antecedent is found after necessary verification, he/she will be liable for termination from the service and legal action will be initialed against her/him.”

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It is, hence, contended that no question could be raised against the order of termination in absence of continuance of disciplinary proceeding.

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3.5. Sri Manoj Kumar Khuntia, learned Additional Government Advocate vehemently argued that the points raised by the learned counsel for the petitioner being factual in nature, this Court is not required to go into such adjudication. He submitted that whereas the authority had, on enquiry, ascertained that the Identity Card as furnished by the petitioner was forged one and a criminal case is also directed to be instituted in that context, the claim of the petitioner that she was innocent as she was delivered with said Card by the District Office after complying with formalities is unbelievable and myth.

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3.6. Per contra , Sri Panda brought to the notice of this Court to Annexure-5, wherein the Collector, Sundargarh had stated to

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have issued Memorandum, dated 02.06.2015 with Article of Charges invoking provisions contained in Rule 15. The following opening paragraph of said “MEMORANDUM” has been pressed into service by Sri Panda:

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“Ms. Dibya Sumira Xaxa, Assistant Revenue Inspector, Tahasil Office, Kutra is hereby informed that it is proposed to hold inquiry on charges against her, elaborated at Annexure-I, i.e. the Article of Charges, under Rule 15 of OCS (CCA) Rules, 1962 for violation of Odisha Government Servants’ Conduct Rules.”

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3.7. Therefore, Sri Panda submitted that had it been a case of Explanation (h) to Rule 13 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962, the procedure laid down in Rule 15 should not have been initiated. Once such a course is exercised by the Authority, there is no scope to abandon the same and the Authority, thereby, should have led the matter to logical conclusion by adhering to provisions contained thereto.

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3.8. Sri Devashis Panda, learned counsel appearing for the petitioner forcefully contended that the tenor of Order of termination dated 11.09.2015 is punitive having impact of civil consequence. Therefore, opportunity to test the material (report) collected behind the back of the petitioner was required to be granted by the competent authority by supplying copy thereof. Given a chance to cross-examination the authority/witness upon whose statement the Identity Card in question was stated to be forged the truth or otherwise of the allegation would have been brought to the surface. In absence of extending such an opportunity renders the Order of termination vitiated as the authority could

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not rely on untested material to form positive opinion against the petitioner.

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3.9. In furtherance of such submission, it is brought to notice by Sri Panda that in Annexure-II— “STATEMENT OF IMPUTATION IN SUPPORT OF CHARGES” forming part of MEMORANDUM vide Annexure-5 to the writ petition it has been admitted by the Collector, Sundargarh as follows:

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“That, upon detection of non-submission of the required document, the Delinquent was asked to furnish the Identity Card vide Notice No, 3182 dated 2.9.2014. She did not respond to the said notice. A reminder notice bearing No. 4537 dated 17.12.2014 was issued. Finally, she submitted the Identity Card issued by Director, Sports vide her letter No. Nil dated 31.12.2014 duly attested by the Assistant Surgeon, UPHC, Subdega, Sundargarh. ”

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The letters referred to by the Collector does not reveal proper enquiry has been conducted and it seems no statement of persons involved has been brought on record.

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3.10. Sri Manoj Kumar Khuntia, learned Additional Government Advocate repelling such a contention of Sri Devashis Panda, learned advocate for the petitioner submitted that when the document submitted by the petitioner is itself forged one, granting opportunity would be an empty formality inasmuch as she might not be able to establish that such Identity Card was genuinely issued, more so when by way of report vide Letter bearing No.176, dated 04.05.2015 issue of such Identity Card by the Director of Sports and Youth Services has been denied.

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3.11. It has also been submitted by Sri Khuntia that merely acceptance of candidature on the basis of part compliance of requirement as contemplated in item (xii) of Clause 5 of the Advertisement, dated 11.07.2013 would not confer any right on the petitioner to the post, especially when she was appointed provisionally as probationer.

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Observations of the Court:

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4. Be that as it may, it appears that the petitioner could not take advantage of opportunity granted by way of filing written statement of defence. The enquiry report remained untested. The termination order passed after completion of enquiry would render it punitive or otherwise is also required to be addressed to with reference to Explanation (h) to Rule 13 as extracted herein above. Sri Manoj Kumar Khuntia, learned Additional Government Advocate while opposing the contention of Sri Devashis Panda, the counsel for the petitioner that validity of termination of a probationer by termination order simpliciter can be decided by the Secretary- cum -Commissioner, Department of Revenue and Disaster Management, Government of Odisha before whom the petitioner has claimed to have filed appealpetition which can be considered to be representation. Sri Khuntia urged that the suggestion of Sri Panda that the said appeal-petition (Annexure-7) is “deemed” to have been disposed off cannot be accepted inasmuch as there is no statutory provision envisaging such a fiction.

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4.1. Sri Devashis Panda being quizzed could not cite any provision laying such a fiction.

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4.2. There is no cavil that legal fiction created for the limited purpose of seniority, pay and pension cannot be extended for other purpose as held in State Bank of India Vrs. D. Hanumantha Rao, (1998) 6 SCC 183 . The statutory fiction should be applied for the very purpose or object for which the fiction has been created and it cannot be extended for any other purpose. Refer CIT Vrs. Ajax Products Ltd., (1965) 55 ITR 741 (SC); CIT Vrs. Mother India Refrigeration Industries Pvt. Ltd., (1985) 155 ITR 711 (SC); CIT Vrs. Express Newspapers Ltd., (1964) 53 ITR 250 (SC) ; Paharpur Cooling Towers Ltd. Vrs. CIT, (2011) 338 ITR 295 (Cal); RPG Industries Ltd. Vrs. CIT, (2011) 338 ITR 313 (Cal) .

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4.3. Therefore, this Court is not persuaded by the submission of Sri Panda that the appeal is to be treated as if disposed of.

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4.4. It is followed from the arguments that item (xii) in Clause 5 under the heading “DOCUMENTS TO BE FURNISHED ALONG WITH THE APPLICATION FORM”, required submission of “Attested copy of certificate in case of Ex-serviceman/Persons with Disabilities/ sports person. The candidate claimed as sports person shall produce the identity card issued by the Director of Sports, Odisha”. Since there is no conjunction “and” or “or” used between two sentences, it remains ambiguous whether there is requirement to furnish both the documents cumulatively. There is no iota of doubt entertained by the authority with regard to copy of Merit Certificate issued in favour of the petitioner by the

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Sports Authority of India, Ministry of Youth Affairs & Sports (Annexure-2) and considering such document the authority had accepted the candidature of the petitioner and allowed her to join the post as probationer, which shows that the competent authority was satisfied with regard to fulfilment of eligibility criteria as well as requirement as per the Advertisement dated 11.07.2013. However there is no explanation by the opposite parties as to the requirement of both the documents as being satisfied with the production of documents at the time of joining the authority remained contended as if any one of the documents so specified was enough for the purpose of appointment of the petitioner in the post of ASSISTANT REVENUE INSPECTOR under the category Schedule Tribe (Woman) claiming to be “sports person”. If that is the case, calling for further document, like Identity Card issued by the Director of Sports and Youth Service would become redundant. In absence of response by the opposite parties despite the matter has been pending since 2016 and stood adjourned for quite number of times, the purport of requirement of furnishing both the documents could not be placed on record. No clarification could be given by the learned Additional Government Advocate whether two sentences appearing against the same item (xii) requiring submission of certain documents are to be read as alternative or cumulative.

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4.5. That apart, on specific query none of the counsel for the parties could apprise about the current status of investigation in connection with the F.I.R.

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4.6. Perusal of copy of Identity Card (Annexure-4) appears to have been issued from Directorate of Sports which bears No.1075 divulges the following information:

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GOVERNMENT OF ORISSA DIRECTORATE OF SPORTS ORISSA BHUBANESWAR

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This is to certify that Shri/Smt./Miss Dibya Sumira Xaxa, son/daughter/wife of Binod Xaxa of village Duri Nuagaon, P.O. Kural, district Sundargarh has represented the State of Orissa in XXXVI All India Rural Sports during the year held at Haryana 2^nd Feb. 2006 and in consequence thereof is entitled to the benefit of reservation in service/post in pursuance of General Administration Department Resolution No.25718/GA vide Letter No. Nil/111, dated 08.10.2014.

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4.7. It is apparent from the impugned order of termination dated 11.09.2015 read with Annexure-I— Articles of Charges appended to the Memorandum dated 02.06.2015 that the termination is based on confirmation of the District Sports Officer, Sundargarh, vide his Letter No. 176, dated 04.05.2015 to the effect that “the Director, Sports and Youth Service Department had not issued any identity card to the Delinquent employee. As such, Ms. Dibya Sumira Xaxa, Assistant Revenue Inspector, Tahasil Office, Kutra has submitted forged document before the authority”. The record does not disclose that during the course of inquiry with respect to genuineness of the Identity Card, the report obtained by the opposite party No.2-Collector, Sundargarh was confronted to the petitioner.

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4.8. It is the confirmation letter of the District Sports Officer which formed the foundation for passing final orders of termination by the Collector, Sundargarh. It has been laid down in Indian Bank Vrs. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592 that forgery and fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. No adverse inference against the petitioner could have been drawn by the Authority-Collector, Sundargarh merely on failure on her part to submit written statement of defence. There is nothing on record to suggest that copies of said letters have ever been supplied to the petitioner. Unless the material evidence is brought to the notice of the petitioner to set up proper defence with due opportunity to cross-examination, it could not have been said that the fact is conclusive that the document was obtained by practising forgery. There is no evidence placed on record by the opposite parties to show that the Director of Sports and Youth Services Department has ever been examined during the course of inquiry nor did the District Sports Officer verify the records of the Director of Sports and Youth Services Department to ascertain the veracity of issue of Identity Card.

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4.9. The cardinal value of natural justice has sound jurisprudential basis. It is significant to note that the function of the judicial and quasi judicial authorities is to secure justice with fairness. The principles of natural justice provide great humanising factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even

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to those who are vested with power to take administrative decision and who are not necessarily discharging judicial or quasi judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong. Natural justice is rooted in rule of law leading to good governance. The instrumental value of procedures should not be underestimated; the accurate application of authoritative standards is an important aspect of treating someone with respect. But procedures also have intrinsic value in acknowledging right of a person to understand his treatment, and thereby to determine his response as a conscientious citizen, willing to make reasonable sacrifices for the public good. If obedience to law ideally entails recognition of its morally obligatory character, there must be suitable opportunities to test its moral credentials. Procedures may also be thought to have intrinsic value in so far as they constitute a fair balance between the demands of accuracy and other social needs: where the moral harm entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express commitment of the society to equal concern and respect for all. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes.

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In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem , have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.

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4.10. It is well-settled the principles of natural justice are also applicable to administrative actions, even in emergent situations, compliance with at least minimum requirement of rules of natural justice is a condition precedent to take any action which has adverse civil consequences, and post decisional hearing is not sufficient in such cases. It is not out of context to mention that reason being one of the facets recognized as part of natural justice it has become as indispensable component of a decision making process for reasons facilitate the process of judicial

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review by superior Courts. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial/ quasi judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny.

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4.11. It cannot be denied that the right of cross-examination in any quasi judicial proceedings is a valuable right given to the delinquent/noticee, as these proceedings may have adverse consequences to the delinquent. It is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the noticee as well, during the proceedings, which shall give him a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for forming the opinion. Only then, would it be possible for the affected party to challenge such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. The order/opinion formed by the quasi judicial authority is subject to appreciation by the appellate authority.

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4.12. It is not prudent to exercise power under Article 226 of the Constitution to issue a writ of certiorari in order to quash the error of fact, if found to be, with regard to conclusion arrived at by the Collector, Sundargarh holding that forged document was submitted, and thereby false statement was made by the

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WPC (OAC) No.1030 of 2016 Page 21 of 24

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petitioner. It has been fairly well settled vide Nagendra Nath Bora & Another Vrs. The Commissioner of Hills Division and Appeals, 1958 SCR 1240 = AIR 1958 SC 398 that exercise of power under Article 226 is permissible only where the error is one of law and that is apparent on the face of the record and any error of law or fact which can be corrected as a Court of Appeal or Revision cannot be a ground for the exercise of power under that Article. Thus, the scope of factual adjudication being limited under judicial review in exercise of power under Article 226 of the Constitution of India, interest of justice would be best subserved if the petitioner is relegated to pursue the appeal already stated to have been filed and pending before the Secretary- cum -Commissioner, Revenue and Disaster Management Department, Government of Odisha.

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4.13. In the pending appeal, it is hoped that the petitioner shall have proper and adequate opportunity to put forth her grievance on factual aspects before the Secretary- cum -Commissioner, Revenue and Disaster Management Department, Government of Odisha.

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Order and direction:

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5. Under the aforesaid premises, this Court faced with aforesaid situation finds it expedient for the Secretary- cum -Commissioner, Revenue and Disaster Management Department, Government of Odisha to determine factual aspects as also to put forth the intent of Government/Authority requiring both the documents to be furnished as per item (xii) under the heading “DOCUMENTS TO BE

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FURNISHED ALONG WITH THE APPLICATION FORM”, particularly when unimpeached document, i.e., Merit Certificate issued in favour of the petitioner by the Sports Authority of India, Ministry of Youth Affairs & Sports (Annexure-2) had already been considered and she was allowed to join in the post of “ASSISTANT REVENUE INSPECTOR” as probationer.

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6. There is nothing on record to suggest that whether the Order of termination could be understood as termination of the petitioner simpliciter “without stigma” or as “punitive” affecting her career. In absence of present status with regard to outcome of F.I.R. being provided by either of the counsel for the parties, no definite conclusion could be returned. Therefore, it is necessary to issue writ of mandamus to the Secretary- cum -Commissioner, Revenue and Disaster Management Department, Government of Odisha to consider and dispose of the Memorandum of Appeal, dated 03.10.2015 (Annexure-7) as stated to have been filed at the behest of the petitioner within a period of six months from the date of production of downloaded copy of this Order.

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7. For this purpose, the petitioner may approach the said Secretaryopposite party No.1 on or before 30^th of April, 2023 along with downloaded copy of this order and copy of the Memorandum of Appeal (Annexure-7 to the writ petition) for instructions. The opposite party No.1 shall proceed with the matter and dispose of said appeal-petition within the period stipulated above. After affording reasonable opportunity of being heard, the opposite party No.1 shall take appropriate decision which shall be communicated within the aforesaid period. The petitioner is at

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liberty to produce documents and/or lay evidence, documentary or otherwise, before the said Secretary-opposite party No.1, which shall be considered in proper perspective by said Authority while disposing of the appeal.

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8. It is clarified that this Court has not expressed any view on merits of the matter.

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9. With the aforesaid observation and direction, the writ petition is disposed of, but, there is no order as to costs in the

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circumstances.

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(MURAHARI SRI RAMAN)
JUDGE

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Orissa High Court The 20th of March, 2023 MRS/Laxmikant

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Dibya Suitra Xaxa v. State of Odisha

Case brief

What is this about?

What did the court decide?

Dibya Suitra Xaxa v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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