Monalisha Dash Vs State of Odisha

This Interlocutory Application has been filed by the petitioner for amendment of inadvertent typographical error crept in the prayer portion of the writ petition.

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Heard learned counsel for the parties.

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Mr. Ranjit Mohanty, learned counsel appearing for the petitioner submitted that due to inadvertent mistake in the prayer portion, the year of engagement is mistakenly typed out as “02.01.2023” instead of “02.01.2013”. No objection is raised by the learned Additional Standing Counsel appearing for the opposite parties-State in this regard.

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Considering the grounds taken in the Interlocutory Application and so also the submissions advanced by the learned counsel for the parties, the prayer for amendment is allowed. The order of engagement of the petitioner dated “02.01.2023” typed out in the prayer portion of the writ petition be read as “02.01.2013”.

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Accordingly, the I.A. stands disposed of.

(M.S. Raman)

Judge

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Order No.

05. W.P.(C) No.16718 of 2023

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Assailed in the writ petition is the order dated 03.05.2023 issued by the Collector, Gajapati (District Child Protection Unit, S.W. Section) vide Annexure-8, whereby the petitioner was terminated from the post of Assistant- cum -Data Entry Operator (ADEO) of CWC, Gajapati with effect from 04.05.2023. The petitioner has approached this Court by way of filing this writ petition craving to invoke extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India with the following prayer(s):

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“It is, therefore, most humbly prayed that this Hon‟ble Court may graciously be pleased to issue Rule NISI calling upon the opp. Parties to show cause as to why appropriate writ / writs shall not be issued setting aside the impugned order dt. 03.05.2023, annexure-8, and further to show cause as to why direction shall not be issued to allow the petitioner to perform her duties as Assistant-cum-Data Entry Operator in pursuance to her order of engagement dt.02.01.2013 and upon perusal of causes shown, if any, or upon insufficient causes shown, make the said RULE absolute and may pass such other order / orders as deem just and proper.

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And for this act of kindness, the petitioner shall as in duty bound ever pray.”

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Facts as adumbrated in the writ petition reveal that pursuant to the resolutions passed in the CWC meeting held on 11.12.2012 and 12.12.2012, applications were invited from the intending candidates for the post of Assistant- cum -Data Entry Operator (for short “ADEO”) by publishing notice at the office notice board and different places on 12.12.2012.

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2.1. In response to such notice, as many as six numbers of candidates responded and submitted their applications. On scrutiny of the applications, the Selection Committee sent call letters to the candidates

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fixing the date of interview to 27.12.2012. Out of such six numbers of candidates, only two women candidates appeared on the date of interview and, accordingly, as per the criteria fixed by the Selection Committee, tests were conducted in the office of the Child Welfare Committee (CWC) in presence of all the CWC members.

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2.2. The writ petitioner came out successful in the said selection tests and order of appointment was issued in her favour by the Chairperson, CWC, Gajapati vide letter No.28 dated 02.01.2013 and, accordingly, she joined on the very same day and discharging her duties.

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2.3. While the petitioner was discharging her duties, the Government of Odisha in Women & Child Welfare Department issued a guideline for engagement of contractual staff in Odisha State Child Protection Society, CWC and JJB vide letter No.17136 dated 27.08.2013 and the same was communicated to all the Collectors throughout the State. 2.4. Upon receiving the aforesaid guideline, the Office of the Collector, Gajapati issued an open advertisement on 26.11.2013 inviting applications from the intending candidates for filling up different posts under the DCPU, CWC & JJB. Being aggrieved by such action of the Collector, Gajapati, the petitioner submitted a representation before the Collector, Gajapati on 29.11.2013, so also to the Director, Women and Child Welfare Department, Government of Odisha.

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2.5. Since no decision was taken on the representation of the petitioner, she approached this Court by filing a writ petition bearing W.P.(C) No.28070 of 2013 wherein while issuing notice to the opposite parties therein passed an interim order on 08.01.2014 directing that the selection process for engagement of Assistant- cum -Data Entry Operator under CWC, Gajapati, on contractual basis in pursuance of

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advertisement dated 26.11.2013 shall continue, but no engagement order shall be issued without leave of this Court.

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2.6. Upon receiving notice in the aforesaid writ petition, the Collector and District Magistrate, Gajapati and District Social Welfare Officer, Gajapati have filed their counter affidavit. The petitioner has also filed her rejoinder affidavit to the said counter affidavit. That apart, the District Child Protection Officer, Gajapati also preferred an Interlocutory Application being registered as I.A. No.16658 of 2022 seeking vacation / variation / modification of the interim order dated 08.01.2014 passed by this Court in the aforesaid writ petition.

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2.7. All on a sudden, though the interim order passed by this Court was in operation, the Collector, Gajapati issued a letter to the petitioner bearing No.797 dated 03.05.2023 directing termination of the services of the petitioner with effect from 04.05.2023.

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2.8. It is alleged that such a drastic step was taken without giving any opportunity of hearing to her to have her say with regard to such allegations made against her and thereby there was complete violation of principles of natural justice. The said impugned letter dated 03.05.2023, which is under challenge in the present writ petition, is re-produced hereunder:-

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“ OFFICE OF THE COLLECTOR, GAJAPATI (DIST. CHILD PROTECTION UNIT, S.W. SECTION) L.No.797/DCPU Dated:03-05-2023 To

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Mrs.Monalisa Das, Assistant-cum-Data Entry Operator, OdiyaBhandariSahi, Paralakhemundi, Gajapati.

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Sub:- Termination from the post of Assistant-cum-Data Entry Operator (ADEO) of CWC, Gajapatiw.e.f. 04-05-2023.

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Madam,

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I regret to inform you that, your engagement as Assistantcum-Data Entry Operator (ADEO) in CWC, Gajapati will be terminated with effective from 04-05-2023 for the following reasons for larger interest of functioning of Child Welfare Committee, Gajapati.

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1. You operated PFMS for paying seating charges to the Chairperson and Member of Child Welfare Committee without approve of Collector and in this regard Collector had asked show cause notice vide letter no.1319/DCPU, Dtd. 3008-2022, but you have not submitted its answer till date .

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2. As per order of Collector, Auditor had visited to the office of Child Welfare Committee for auditing purpose but you have not produced attendance sheet and absent statement of Data Entry Operator.

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3. Inspite of instruction of the Collector and the OSCPS you have not handed over the User ID and Password of PFMS as well as financial record to Accountant of DCPU.

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4. Many times without submitting absent statement you have taken your consolidated salary from your authority.

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5. Your performance also not satisfactory in the time of submission of MPR, QPR and MFR.

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6. Inspite of repeated request you are not submitting your Performance Appraisal Report (PAR).

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7. Many times you have returned children neither facilitated to take production nor communicate to Chairperson of Child Welfare Committee.

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8. You have not maintained Accounts properly of Child Welfare Committee, Gajapati as a result payment has been made without entry of Stock Register.

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9. You have disobeyed the authorities regarding checking of Claim sheets of Chairperson and Members of CWC. This amount to gross of violation of duty intentionally and

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disobedience to the authority under such circumstances you are disengaged from the post of ADEO of Child Welfare Committee, Gajapati with effect from 04-05-2023.

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Sd/-

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Collector, Gajapati”

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2.9. Since the Collector, Gajapati issued the impugned letter/order under Annexure-8 terminating the petitioner from service when this Court was in seisin over the matter by passing interim order in W.P.(C) No.28070 of 2023, the petitioner immediately preferred an Interlocutory Application bearing I.A. No.6805 of 2023 in the said writ petition seeking stay operation of the impugned letter/order dated 03.05.2023 and to direct the opposite parties to allow her to continue as ADEO with all service and financial benefits.

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2.10. While considering said Interlocutory Application, the writ petition itself was taken up for hearing on 15.05.2023 and on the same day this Court disposed of said writ petition reserving liberty to file fresh writ petition. Hence, the present writ petition.

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Mr. Ranjit Mohanty, learned counsel appearing for the petitioner submitted that the impugned letter/order dated 03.05.2023 passed by the Collector, Gajapati vide Annexure-8 is untenable in the eye of law, inasmuch as it has been passed without application of conscientious mind.

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3.1. It is pointed out by the learned counsel for the petitioner that in the impugned letter/order under Annexure-8 the petitioner is shown to have not submitted her reply to the show-cause notice issued by the Collector, Gajapati is concerned. It is submitted by the learned counsel for the petitioner that show-cause notice was issued vide letter No.1319/DCPU dated 30.08.2022 under Annexure-D/4 to the counter affidavit whereby only three days were given to submit her reply, which is quite arbitrary, which is inadequate. The relevant portion of the showcause notice reads as thus:-

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“This is to inform you that, as per instruction of Government Letter No.1419/OSCPS/GIA/CES/2021-22 on dated 30.09.2021, CWC has been instructed that allowance W.r. to CWC shall be released as per the terms and conditions mentioned in the letter No.858/dcpu, dt-20/05/22 with due approval of Collector, Gajapati& file should be moved to ADM & Collector through DCPU, Gajapati.

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Whereas, this has been came to the notice of the District Administration that Sitting Charges of Chairperson (I/C) & Member of CWC, Gajapati for the month of April to June-2022 been released without maintaining above procedure. Hence, why disciplinary action shall not be taken against you for such financial irregularities. Your show cause in the matter should reach to the undersigned within 3 days positively. ”

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3.2. Learned counsel for the petitioner also submitted that pursuant to the show-cause notice dated 30.08.2022 issued by the Collector, Gajapati, the petitioner has already submitted her reply vide letter dated 02.09.2022 under Annexure-12 series to the rejoinder affidavit. But, the Collector, Gajapati, while issuing the impugned letter/order under Annexure-8 has not taken into consideration the same. The show-cause reply of the petitioner dated 02.09.2022 is reproduced hereunder:-

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“To

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The Collector,

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District Gajapati, Parlakhemundi.

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Sub:- Show cause notice isused against Smt. Monalisha Dash, A.D.E.O. CWC, Gajapati.

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Ref:- Letter No.1319/DCPU, dated 30.08.2022 of Collector, Gajapati.

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Respected Sir,

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With profound honours and humble submission, I Smt. Monalisha Dash, ADEO, CWC, Gajapati am to put forth the following few facts against the show cause issued against me vide your aforesaid letter.

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That as an A.D.E.O., I have not been empowered to withdraw any funds or work to look after the accounts of CWC, Gajapati. The Chairperson, Child Welfare Committee is the Authority of Office of CWC and looking after all accounts. As such, I have to obey orders and instructions issued by him time to time. Moreover, the Chairperson, CWC, Gajapati has been directed to furnish information in a prescribed format and put up filed relating to CWC through DCPU, Gajapati vide letter No.858/DCPU, dated 20.5.2022 of District Child Protection Officer, DCPU, Gajapati. Thus, as Head of Office, he has to move files of CWC through DCPU, and as an ADEO, I have no role in it. That I have not released any amount for the month of April to June 2022 in any manner.

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However I am to beg pardon for procedural irregularity committed by me if any. Further I will assure you Sir, in future I will abide by all the orders of my higher authorities. That for I request you Sir, to withdraw show cause notice for which act of kindness I shall be grateful to you and oblige.”

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3.3. It is further submitted by the learned counsel for the petitioner that the finding recorded by the Collector, Gajapati cannot be countenanced in law and the same being rendered without affording proper opportunity of being heard, the impugned order / letter under Annexure-8 is liable to be quashed.

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3.4. Mr. Ranjit Mohanty, learned Advocate submitted that the commendations of the authorities concerned would go a long way to show that the petitioner has been sincere, upright and a good hand for the office. It is revealed from the counter affidavit at paragraph 12 that “the then Chairman, CWC had not submitted the performance report of the petitioner at any point of time to the opposite party No.4 in prescribed format which is mandatorily to be submitted once a year”. There is no scope or occasion for the petitioner to furnish performance appraisal

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report and such a fact could not be attributable to the conduct of the petitioner.

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Mr. Arnav Behera, learned Additional Standing Counsel appearing for the State-opposite parties refuting the allegations submitted that the impugned order / letter under Annexure-8 does not warrant any interference of this Court and, as such, prays to dismiss the writ petition. As the petitioner did not perform her duties as entrusted “perfectly”, the termination of service is just and proper.

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Though this Court while considering I.A. No.24908 of 2013 in W.P.(C) No.28070 of 2013 directed that “no engagement shall be issued without leave off this Court”, yet the petitioner was terminated which gave rise to this Court to grant liberty to file fresh writ petition vide order dated 15.05.2023. Liberty is also granted to the petitioner in this order not only to assail the termination order but also agitate the ground that during pendency of the writ petition the termination order could not have been passed. It appears the authority concerned overlooked the interim order and terminated the service of the petitioner during pendency of said writ petition.

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5.1. This apart the authority having given barely 3 days for furnishing reply to the show cause notice and despite the petitioner having furnished reply to such show cause notice, the impugned order has been passed without taking into consideration such show cause reply of the petitioner. The decision taken to the detriment of the petitioner without considering the reply that too without granting adequate opportunity to defend her case is tainted by flagrant violation of principles of natural justice.

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5.2. In Canara Bank Vrs. Debasis Das, (2003) 2 SCR 968, it has been enunciated with regard to principles of natural justice as follows:

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“Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory" can be pressed into service. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration. of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

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The expressions „natural justice‟;, and „legal justice‟ do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants‟ defence.

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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 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

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natural justice. It is after all an approved rule of fair play. The concept has gained significance and 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 Vrs. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated:

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„Even God did not pass a sentence upon Adam, before he was called upon to make his defence. „Adam‟ says God, „where art thouhas thou not eaten of the tree whereof I commanded thee that though should not eat‟.

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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.

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Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasijudicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. Jn General Council of Medical Education & Registration of UK.Vrs. Sanckman, (1943) AC 627 = (1948) 2 All ER 337, Lord Wright observed that it was not desirable to attempt „to force it into any procrustean bed‟ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give „a full and fair opportunity‟ to every party of being heard.

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Lord Wright referred to the leading cases on. the subject. The most important of them is the Board of Education Vrs. Rice, (1911) AC 179 = 80 LJKB 796, where Lord Loreburn, L.C. observed as follows:

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„Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices

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ofState the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari‟.

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Lord Wright also emphasized from the same decision the observationof the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Selbourne, LO in SpackmanVrs. Plumsiead District Board of Works, (1985) 10 AC 229 = 54 LJMC 81 ), where the learned and noble Lord Chancellor observed as follows:

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„No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice‟. Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the

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person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done'.

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Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressed in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression „civil consequences‟encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

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Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura, (1855) 2 Macg. 1.8, Lord Cran worth defined it as „universal justice‟. In James Dunber Smith v. Her Majesty the Queen, (1877-78) 3 App. Case 614, 623 JC Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works, (1884-85(10) App.Case 229, 240), Earlof Selbourne, S.C. preferred the phrase „the substantial requirement of justice‟. In VionetVrs. Barrett, (1885 (55) LJRD 39, 41), Lord Esher, MR defined natural justice as „the natural sense of what is right and wrong‟. While, however, deciding HookingsVrs. Smethwick Local Board of Health, (1890 (24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet‟s case (supra) chose to define natural justice as „fundamental justice‟. In Ridge Vrs. Baldwin,1963 (I) WB 569, 578, Harman LJ, in the Court of Appeal countered natural justice with „fair-play in action‟ a phrase favoured by Bhagawati, J. in Maneka Gandhi Vrs. Union of India, (1978) 2 SCR 621). In re R.N. (An Infant)1967 (2) B617, 530,

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Lord Parker, CJ, preferred to describe natural justice as „a duty to act fairly‟. In fairmount Investments Ltd. Vrs. Secretary to State for Environment, (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as „a fair crack of the whip‟ while Geoffrey Lane, LJ. in Regina Vrs. Secretary of State for Home Affairs Ex ParleHosenball, (1977 (1) WLR 766) preferred the homely phrase „common fairness‟.

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How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice .in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is „nemojudex in causasua‟ or „nemodebetessejudex in propriacausasua‟ as stated in (1605) 12 Co.Rep.114 that is, „no man shall be a judge in his own cause‟. Coke used the form „aliquis non debet esse judex in propria causa quia non potest esse judex at pars‟ (Co.Litt. 1418), that is, „no man ought to be a judge in his own case,because he cannot act as Judge and at the same time be a party‟. The form „nemo potest esse simul actor et judex‟, that is, „no one can be at once suitor and judge‟ is also at times used. The second rule is „audi alteram partem‟, that is, „hear the other side‟. At times and particularly in continental countries, the form „audietur at altera pars‟ is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely „qui aliquid statuerit parte inaudita alteram act quam licet dixerit, haud acquum facerit‟ that is, „he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right‟ (See Bosewell‟s case (1605) 6 Co.Rep. 48-b, 52a) or in other words, as it is now expressed, „justice should not only be done but should manifestly be seen to be done‟. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left.

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upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

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What is known as „useless formality theory‟ has received consideration of this Court in M.C. Mehta Vrs. Union of India, (1999) 6 SCC 237. It was observed as under:

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„Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of „real substance‟ or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See MallochVrs. Aberdeen Corpn: (1971) 2 All ER 1278, I-IL) (per Lord Reid and Lord Wilberforce), Glynn Vrs. Keele University: (1971) 2 A.II ER 89; CinnamondVrs. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R Vrs. Ealing Magistrates‟ Court, ex p. Fannaran (1996 (8) Admn. LR 35 I, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be „demonstrable beyond doubt‟ that the result would have been different. Lord Woolf in Lloyd Vrs. McMohan, (1987) (I) All ER 1118: CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy Vrs. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficientfor the applicant to show that there is „real likelihood-not certaintyof prejudice‟. On the other hand, Garner Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge Vrs. Baldwin (1964 AC 40 =( 1963) 2 All ER66, I-IL), Mcgarry, J. in John Vrs. Rees (1969) (2) All ER 274) statingthat there are always „open and shut cases‟ and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the. „useless .formality theory‟ is a dangerous one and, however inconvenient, natural justice must be

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followed. His Lordship observed that „convenience and justice are often not on speaking terms‟. More recently, Lord Bingham has deprecated the „useless formality theory‟ in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton ( 1990 IRLR 344) by giving six reasons (see also his article „Should Public Law Remedies be Discretionary?‟1991 PL. p.64). A detailed and emphatic criticism of the „useless formality theory‟ has been made much earlier in „Natural Justice, Substance or Shadow‟ by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their „discretion‟, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364, Rajendra Singh Vrs. State of MP., (1996)5 SCC 460 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.

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We do not propose to express any opinion on the correctness or otherwise of the „useless formality theory‟ and leave the matter for decision in an appropriate case, inasmuch as the case before us, „admitted and indisputable‟ facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J.‟

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As was observed by this Court we need not go into „useless formality theory‟ in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise said jurisdiction (see GaddeVenkateswaraRaoVrs. Govt. of A.P. and Ors., AIR 1966 SC 828. It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the Appellate Authority, though not statutorily prescribed. In a given case postdecisional hearing can obliterate the procedural deficiency of a predecisional hearing. (See Charan Lal Sahu Vrs. Union of India etc., AIR 1990 SC 1480.

¶117

Additionally there was no material placed by the employee to show as to how he has been prejudiced. Though in all cases the postdecisional hearing cannot be a substitute for pre-decisional hearing, in the case at hand the position is different. The position was illuminatingly stated by this Court in Managing Director, ECIL, Hyderabad and Ors. Vrs. B. Karunakara and Ors., (1993) 4 sec 727 at para 31 which reads as follows:

¶118

„Hence, in all cases where the enquiry officer‟s report is not furnished to the delinquent employee in the disciplinary proceedings, 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. If after hearing the parties, the Court/Tribunal comes to the conclusion that the nonsupply 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

¶119

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not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply theirjudicial mind to the question and give their reasons for setting asideor not setting aside the 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. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the casethat it should set aside the order of punishment. 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 state of furnishing him with the report. 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 reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. 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 and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treatedas 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. That will also be the correct position in law.‟

¶121

The position was again reiterated in Union Bank of India Vrs. Vishwa Mohan, (1998) 4 SCC 310 at page 314). The relevant para 9 reads as follows:

¶122

„We are totally in disagreement with the above-quoted reasoning of the High Court. The distinction sought to be drawn by the High

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Court that the first charge-sheet served on the respondent related to the period when he was a clerk whereas the other three chargesheets related to the period when he was promoted as a bank officer. In the present case, we are required to see the findings of the enquiry authority, the order of the Disciplinary Authority as well as the order of the Appellate Authority since the High Court felt that the charges levelled against the respondent after he was promoted as an officer were not of a serious nature. A bare look at these charges would unmistakably indicate that they relate to misconduct of a serious nature. The High Court also committed an error when it assumed that when the respondent was promoted as a bank officer, he must be having a good report otherwise he would not have been promoted. This finding is totally unsustainable because the various acts of misconduct came to the knowledge of the Bank in the year 1989 and thereafter the first charge-sheet was issued on 17.02.1989. The respondent was promoted as a bank officer sometime in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed by the Bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High Court that in the facts and circumstances of the case „it is difficult to apply the principle of severability as the charges are so inextricably mixed up‟. If one reads the four chargesheets, they all relate to the serious misconduct which includes taking bribe, failure to protect the interests of Bank, failure to perform duties with utmost devotion, diligence, integrity and honesty, acting in a manner unbecoming of a bank officer etc. In our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be applied in the present case. The finding in this behalf is unsustainable. As stated earlier, the appellant had in his possession the enquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing of the report would have made any difference to the result in the case and thereupon pass an

¶125

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appropriate order. In para 31, this Court in Managing Director, ECIL has very rightly cautioned: (SCC p. 758)

¶127

„The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts‟.***”

¶128

5.3. This Court being convinced of the fact that there has been gross violation of principles of natural justice for want of granting adequate opportunity to the petitioner, there is no option left but to set aside the impugned order vide Letter No.797/DCPU, dated 03.05.2023 issued by the Collector, Gajapati is liable to be set aside.

¶129

Considering the aforesaid facts and circumstances of the case, so also the submissions advanced by the learned counsel for the parties, sufficient opportunity has not been given to the petitioner to have her say and the same also offends the principles of natural justice. Therefore, the impugned order vide Letter dated 03.05.2023 under Annexure-8 is not sustainable in the eye of law. Therefore, this Court is inclined to exercise the power of judicial review and the impugned order vide Letter dated 03.05.2023 under Annexure-8 does warrant indulgence. In the result, the writ petition succeeds. As a sequel to the aforesaid discussions, the order vide Letter dated 03.05.2023 of the Collector, Gajapati is set aside.

¶130

6.1. Having set aside the order vide Letter dated 03.05.2023 of the Collector, Gajapati it is made clear that this Court has not entered into the merits of the matter, but observes that it is open for the Collector, Gajapati to take fresh decision in accordance with law in the matter by granting adequate opportunity to the petitioner.

¶131

6.2. In view of decision rendered by the Hon’ble Supreme Court of India in Anantdeep Singh Vrs. The High Court of Punjab and Haryana, 2024 INSC 673 that once the termination order is set aside, the natural

¶132

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consequence is that the employee should be taken back in service and once the termination order is set aside then the employee is deemed to be in service, it is needless to observe that the petitioner would, thus, be entitled to full salary treating her to be in continuous service for the period during which she was not allowed to perform on account of erroneous approach of the Collector, Gajapati.

¶134

With the aforesaid observations and directions, the writ petition stands disposed of.

¶135

(M.S. Raman) Judge

¶136

Suchitra/MRS

¶137

Signature Not Verified

¶138

Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Sep-2024 19:23:50

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Monalisha Dash v. State of Odisha

Case brief

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Monalisha Dash v. State of Odisha

Case brief

What is this about?

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