Tapas Kumar Das vs Government Of Odisha And Others

Sashikanta Mishra, J

The petitioner was a Diploma Civil Engineer and as such, was placed in a panel prepared by the Engineer-in-Chief (Civil), Odisha. On 23.07.2005 his name was sponsored by Engineer-in-Chief (Civil) to the State Project Director, Odisha Primary Education Programme Authority (OPEPA) for being contractually engaged for implementation of School building under Sarva Sikshya Abhiyan (SSA). An engagement order was issued in his favour on 25.08.2005 appointing him as Technical Consultant in the District Project Office, Mayurbhanj on a consolidated remuneration of Rs.6,000/-per month, pursuant to which he joined on 01.09.2005. He was initially appointed as Technical Consultant in Karanjia and Thakurmunda Block and thereafter transferred to Sukruli Block in April, 2006, Jamda Block in November, 2009 and Tiring Block in June, 2013. While he was working as such, he was served with show cause notices regarding negligence in duty, to which he replied. On 03.04.2014, the Collector-cum-Chairman, SSA, Mayurbhanj (Opposite Party No.4) issued a show cause to him for his poor performance in completing the account finalization of each projects. The petitioner submitted his detailed reply on 05.04.2014 specifically refuting the allegations. It was stated that the allegations are baseless, inasmuch as the delay in completion of work of the School buildings was because of other reasons like lack of coordination between teachers of the School and Village Education Committee, over whom he had no control. He had in the past reported the same before the Disciplinary Authorities and the Collector but there was no response. On 01.07.2014, the service of the petitioner was terminated on the ground of gross-negligence in duty and insincerity towards official work invoking Rule 28(i)(iv)(c) of OPEPA Service Rules and Regulations, 1996 (in short “Regulations, 1996”).  Since  reply  to  the  show  cause  submitted  by  the petitioner had not been taken into consideration before terminating his service, the petitioner approached this Court in W.P.(C) No.12947 of 2014. However, during pendency of the said case, the petitioner preferred appeal on 17.08.2015 before the Chairman, OPEPA under Rule 33 of Regulations, 1996. The appeal was rejected by order dated 19.08.2016 of the State Project Director basing on the report of the Additional Director General and the performance appraisal report. The petitioner therefore, amended the writ petition to incorporate such facts. On 10.07.2017 this Court disposed of the writ petition by setting aside the order of the appellate authority and remitted the matter to the said authority for reconsideration, as the State Project Director was not competent to pass the order and the order passed was a non-speaking one. Being thus remitted, the appellate authority heard the petitioner in person but rejected the appeal vide order dated 10.10.2017 confirming the order of termination. Under such circumstances, the petitioner has approached this Court seeking the following relief;

“Under the above circumstances, it is therefore humbly prayed that the Hon‟ble Court be graciously pleased to quash the order of disengagement dtd: 01.07.2014 and the consequential appellate order dtd:10.10.2017 under Annexure-5 and 12 respectively and direct the opposite parties to reinstatement the petitioner in service with all consequential service and financial benefits.

And/or pass any other appropriate writ/writs, order/orders and direction/directions in the fitness of the case.”

The case of the opposite party Nos. 1 and 2 is that the engagement of the petitioner was contractual in nature, renewable from time to time subject to satisfactory performance of work. Since the petitioner failed to satisfy the said requirement, his contractual engagement was rightly terminated as per Rule 28 of the Regulations, 1996. It is their further case that the petitioner was not able to complete the work assigned to him in each of the years beginning from 2011-12 to 2013-14. He did not take sincere and effective steps for timely completion of the project, which is time bound in nature.

The District Project Coordinator (opposite party No.5) has also filed a counter stating more or less the same thing as the opposite party Nos. 1 and 2. It is reiterated that the performance of the petitioner towards completion of the projects and finalization of the account of the completed projects did not improve. He was therefore, asked to show cause on multiple occasions but he could not offer any satisfactory explanation. His poor performance was against the terms of reference of his engagement and therefore, he was rightly terminated. The petitioner also could not present any evidence before the appellate authority to refute the allegations, for which his appeal was rightly rejected.

Heard Mr. S.K. Das, learned counsel for the petitioner; Mr. S.Pattanaik, learned Addl. Government Advocate for the State and Mr. P.K. Mohanty, learned Senior Counsel along with Mr. P.K. Pasayat, learned counsel for OPEPA.

Mr. S.K. Das would argue that the impugned order of termination as well as rejection of the appeal cannot be sustained in the eye of law for the reason that neither contains reasons. Elaborating his arguments Mr. Das would further contend that pursuant to show cause issued, the petitioner submitted a detailed explanation touching all the allegations. However, the disciplinary authority without considering the explanation submitted by the petitioner straightaway terminated his engagement. Even before the appellate authority the petitioner had raised specific grounds on merits but the same were not considered. Mr. Das further submits that even on merits, the allegations levelled against the petitioner are on the face of it baseless inasmuch as, being the Technical Consultant he was supposed to lend technical support to the ongoing projects but the actual completion thereof was the sole responsibility of the persons/authority in-charge of the construction work, namely Headmaster of the School/Village Education Committee. The petitioner had in the past pointed out the factors resulting in delay in completion of the work but the authorities had paid no heed to it. Nevertheless, some action was taken by calling for explanation from the concerned Headmaster. Therefore, there being various factors responsible for delayed completion of the work, the petitioner could not have been singled out and visited with exemplary punishment of disengagement from service.

Mr. S. Pattanaik, learned Addl. Government Advocate submits that the petitioner was granted due opportunity to explain which he could not do satisfactorily. Further the appellate authority also granted him opportunity of personal hearing but was not convinced with the explanation submitted by the petitioner. Therefore, according to Mr. Pattnaik, the impugned orders do not warrant interference.

Mr. P.K. Mohanty, learned Senior Counsel has argued that the scope of interference by the Court exercising writ jurisdiction in the present case is very limited. The Court can only see whether the principles of natural justice and correct procedure were followed by the concerned authorities before passing the impugned orders. However, the Court cannot sit in appeal over the factual findings rendered by them. In this context Mr. Mohanty has relied upon a decision of this Court in the case Abhiram Samal vs. Indian Bank and Others [W.P.(C) No. 7848 of 2009, decided on 16.04.2015]. Mr. Mohanty further argues that the petitioner was a contractual employee, not holding a civil post and moreover, the Regulations, 1996 do not provide for a detailed disciplinary proceeding to be conducted. Regulations, 1996 provides for issuing show cause notice to the delinquent employee and of taking action against him on the basis of explanation submitted by him thereto. It is alternatively contended by Mr. Mohanty that if at all this Court feels that the grounds urged by the petitioner were not specifically considered by the appellate authority, the matter can be remitted for disposal afresh by the said authority but under no circumstances this Court can arrive at any factual finding as regards the guilt or otherwise of the petitioner.

Having regard to the undisputed facts and rival submissions as above, the first point that would engage the attention of this Court would be the scope of interference in a writ application.

In Dwarka Nath v. Income Tax Officer, Special Circle, D-Ward, Kanpur reported in AIR 1966 SC 81 explaining the scope of Article 226 of the Constitution of India, the Apex Court held as follows:

“This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. ………….”

As regards the scope of judicial review in administrative decisions, the Supreme Court in Tata Cellular v. Union of India, reported in (1994) 6 SCC 651 held that the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision.

However, in People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 : AIR 2004 sc 456, the Supreme Court observed that judicial review is permissible if it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practice. The order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the Legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder.

In the case of Lalit Popli v. Canara Bank, reported in (2003) 3 SCC 583, the Apex Court observed as follows:

“17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.”

The decision cited by Mr. Mohanty, Abhiram Samal (supra) is also on these lines. Keeping the limitations in exercise of the power of judicial review as referred above in mind, it would now be proper to examine the facts of the case to see as to whether any case for interference by this Court has been made out.

The petitioner was asked to show cause by letter dated 03.04.2014 (Annexure-4 series) asking him to explain certain acts of negligence and dereliction in duty. He submitted a detailed reply on 05.04.2014 on each of the points raised in the show cause notice. The impugned order of termination dated 01.07.2014 (Annexure-5) simply reiterates the allegations but does not whisper even a word as regards the specific points stated by the petitioner in his explanation. Moreover, nothing was stated as to why such explanation of the petitioner was not acceptable. In fact, there is no reference whatsoever to the explanation submitted by the petitioner. Thus, the impugned order of termination was passed unilaterally without considering the reply of the petitioner and as such, is one which does not indicate the grounds on which it was passed and therefore, unsustainable in the eye of law. It is well settled that in administrative matters it is incumbent upon the authorities to pass a reasoned and speaking order.

In Shrilekha Vidyarthi (Kumari) v. State of U.P., reported in (1991) 1 SCC 212 : AIR 1991 SC 537, the Apex Court observed as follows:

“Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that „be you ever so high, the laws are above you‟. This is what men in power must remember, always.”

In S.N. Mukherjee v. Union of India, reported in (1990) 4 SCC 594 it was held that the object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action”. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice and except in case where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.

A bare perusal of the impugned order goes to show that the concerned authority has failed to assign any reason whatsoever justifying his decision to terminate the contractual engagement of the petitioner. Surprisingly, all such facts and grounds also having been raised before the appellate authority appear to have been left completely untouched. The impugned order passed by the appellate authority under Annexure-12 is nothing but a mechanical reiteration of the order of termination passed by the disciplinary authority. No doubt the petitioner was heard in person by the appellate authority and the order under Annexure-12 also reflects specific grounds raised by him in course of such hearing but then, why the said grounds were not considered acceptable has not been mentioned at all. This Court is therefore constrained to observe that the order of the appellate authority suffers from the same defect as that order of the disciplinary authority.

In view of the settled position of law referred to hereinbefore particularly, the case of People's Union for Civil Liberties (supra), Lalit Popli (supra) this Court finds that the petitioner has succeeded in making out a good ground for interference by this Court.

As regards the argument advanced that the petitioner was not holding any civil post and therefore, the procedure for imposing penalties as per Conduct Rules of the State would not apply, can be considered only to be rejected. Firstly, the petitioner was not directly recruited by OPEPA but his name was recommended by the Engineer-in-Chief (Civil) from out of the panel of Diploma Engineers prepared for the entire State. So, the petitioner did not „opt to be engaged by OPEPA. Had he been recommended to any other Government Department, the matter would have been entirely different. In fact, this Court finds that by a Resolution dated 22.09.2008 (Annexure-8), the Government in Works Department, while enhancing the remuneration of such Junior Engineers engaged in different Government establishments have also provided for their absorption in regular establishment/post with regular scale of pay after satisfactory completion of six years of uninterrupted engagement on contractual basis.

Secondly, the absence of any provision in the Regulations, 1996 for conduct of detailed enquiry never means that the penal action can be arbitrary or unreasonable or contrary to the settled principles of law. As discussed earlier, the impugned orders do not in the least reveal the reasons for not considering or accepting the detailed explanation/contentions of the petitioner. An administrative authority is bound by law to justify its actions by assigning proper and cogent reasons failing which, the same becomes vulnerable and unconscionable in law.

Coming to the alternative argument advanced by learned Senior Counsel Mr. P.K. Mohanty that in view of the finding of the Court as referred above, the matter should be remitted to the appellate authority for reconsideration of the appeal, this Court finds the same not acceptable for the reason that when the original order of termination itself is not backed by reasons there would be nothing for the appellate authority to really decide, except may be for remitting the matter to the disciplinary authority to take a decision again. This Court is also conscious of the fact that the order of termination was passed way back in the year 2014. Admittedly, no fact finding enquiry was held to even prima facie establish the charges leveled against the petitioner. No doubt, the opposite party authorities have referred to several factual aspects in their counter affidavits to justify their action. But then, it would only be a case of improvement over the original action, which is not permissible in the eye of law. What can only be considered by this Court is the original order of termination, which as already discussed, cannot survive the test of law. It is reiterated that this Court feels inclined to interfere in the matter not on facts but entirely on the point of law. In doing so, this Court is persuaded by the fact that the action of the disciplinary authority as confirmed by the appellate authority is entirely unjust, arbitrary and illegal. So, giving a chance to the authorities to rectify the fundamental errors and/or relegating the petitioner to face the brunt of another round of administrative action at this distance of time would be, in the considered view of this Court, entirely unjust and improper. Moreover, the matter was once remitted to the appellate authority by this Court with a mandate to pass a reasoned order, which it chose not to follow. How many chances should then be given to the authorities against whom is pitted an ordinary citizen out of employment for the past 9 years?

For the foregoing reasons therefore, the writ petition is allowed. The impugned orders under Annexures-5 and 12 are hereby set aside. The opposite party authorities particularly, opposite party no.2 is directed to reinstate the petitioner in service with all consequential service benefits including continuity of service from the date of termination till reinstatement notionally. Necessary orders in this regard shall be passed by the opposite party No.2 within four weeks from the date of communication of this order or on production of certified copy thereof by the petitioner.

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