Administrative orders are subject to the principles of natural justice if they influence a citizen’s rights: Orissa High Court
The objective of natural justice standards is to prevent miscarriage of justice, and there is no dispute that the principles of natural justice apply to administrative decrees that impact a citizen’s rights. Arriving at a judgement, the goal of both quasi-judicial and administrative investigations; an unjust judgement in an administrative investigation may have a more far-reaching impact than a decision in a quasi-judicial investigation. There is no question that the norms of natural justice apply even in administrative proceedings. The judgment was passed by The High Court of Orissa in the case of Biswanath Sethi V. The State of Odisha &amp; Ors. [W.P.(C) NO. 26951 OF 2019] by a Single Bench consisting of Hon’ble Shri Justice B.R.Sarangi. The petitioner, who was working as an Assistant Teacher (Level-V, Elementary Cadre) in Aptira UGME School, has filed this writ petition challenging the office order dated 16.12.209 under Annexure terminating his service with immediate effect under Rule-15 of OCS (CCA) Rules, 1962 on the ground of submission of fake C.T. pass certificate. Learned Counsel for the petitioner contended that while imposing the harsh penalty of termination of service, the procedure as envisaged under OCS (CCA) Rules, 1962 has not been complied with nor the petitioner has been given the opportunity of hearing while passing the order of punishment and, more so, no inquiry has been conducted on the allegations, thereby, the order so passed in Annexure terminating the services of the petitioner cannot sustain in the eye of law. Learned Counsel for respondent referring to the counter affidavit filed by opposite party vehemently contended that since the petitioner has produced fake C.T. pass certificate to get employment as an Asst. Teacher and on verification of documents the same was found to be forged, action as deemed fit has been taken against the petitioner. Thereby, the authorities have not committed any illegality or irregularity in passing the order impugned. It is further contended that once the petitioner has got employment by producing a fake certificate if it is detected that the same is a forged one, the authority has got every right to take action against the petitioner. Therefore, it is contended that this Court should not interfere with the same at this stage and, as such, he seeks for dismissal of the writ petition.
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 26951 OF 2019 In the matter of an application under Articles 226 and 227 of the Constitution of India. Biswanath Sethi versus State of Odisha and others Opp. Parties For petitioner M s. Bimbisar Dash A. Nayak and A.K. Behera For opp.parties Mr. B. Satpathy Standing Counsel S&ME For O.Ps.1 to 6) P R E S E N T : THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing and judgment : 28.05.2021 Dr. B.R.Sarangi J. The petitioner who was working as an Assistant Teacher in Aptira UGME School has filed this writ petition challenging the office order dated 16.12.2019 under Annexure 12 terminating his service with immediate effect under Rule 15 of OCS Rules 1962 on the ground of submission of fake C.T. pass certificate The factual matrix of the case in hand is that after completion of H.S.C. examination conducted by the Board of Secondary Education the petitioner took admission in Secondary Teachers Training School Agarpada prosecuting C.T. course in the year 1999. In July 2001 he appeared in all the subjects but could not clear some papers. In 2002 the petitioner again appeared and cleared all but eight papers. In October 2003 the petitioner appeared in those eight papers and having not come out successful he appeared in the compartmental examination and cleared all the papers. After clearing the Secondary Teachers’ Training Certificate examination Board of Secondary Education Odisha issued necessary certificate in favour of the petitioner on 30.12.2003. The Secretary Board of Secondary Education Odisha vide letter no.3142 4781) dated 17.09.2004 sent the provisional certificate cum memorandum of marks of the petitioner to the Headmaster S.T. School Agarpada Bhadrak. Though there were some wrong recording of marks by the Board of Secondary Education Odisha after scrutiny Board of Secondary Education Odisha issued revised mark sheet in favour of the petitioner. Thereafter the petitioner joined as an Asst. Teacher in Aptira UGME School Agarpada. While the petitioner continuing as such the Block Education Officer Bonth vide letter dated 05.11.2019 called upon the petitioner to produce all the 06.11.2019. In response to the same the petitioner submitted all the documents before the Block Education Officer Bonth for verification. On 11.11.2019 Block Education Officer Bonth requested the Secretary Board of Secondary Education Odisha to verify copy of the C.T. certificate produced by the petitioner and to confirm about its genuineness. At that point of time one Bikash Kumar Dhal alleged that the petitioner submitted fraudulent and forged C.T. certificate and as such the petitioner never passed C.T. examination from the Board of Secondary Education Odisha. Basing upon such allegations the District Project Coordinator SSA Bhadrak vide letter dated 26.11.2019 requested the Block Education Officer Bonth to conduct an the aforesaid allegations and take appropriate action and submit compliance report thereof. On 27.11.2019 Block Education Officer Bonth claimed that the certificate submitted by the petitioner is forged one and sought explanation from the petitioner to be submitted within a period of seven days failing which the higher authority will be requested to initiate disciplinary action against him. The Principal District Institute of Education and Training Agarpara Bhadrak vide memo dated 28.11.2019 clarified the position that the petitioner has passed C.T. examination the year 2003 as a compartmental candidate and the serial number of such certificate was 030858. As such the revised mark sheet issued by Board of Secondary Education Odisha and other relevant documents were also forwarded by the District Institute of Education and Training Agarpara Bhadrak. Accordingly on 02.12.2019 the petitioner submitted his explanation before the Block Education Officer Bonth clarifying that the C.T. certificate received from District Institute of Education and Training Agarpada Bhadrak is genuine and original. Though the petitioner submitted such explanation and clarification was given by the Principal District Institute of Education and Training but without considering the same the Block Education Officer Bonth proceeded with the matter by initiating proceeding against the petitioner. Challenging the above action of the opposite parties the petitioner approached this Court by filing W.P.(C) No.24972 of 2019 which was disposed of vide order dated 10.12.2019 directing the Block Education Officer Bonth to consider the documents submitted by the petitioner and pass appropriate orders in presence of the petitioner within a period of four months from the date of communication production of the order. In compliance thereof the petitioner representation on 16.12.2019 before the District Education Officer Bhadrak and Block Education Officer Bonth enclosing the order dated 10.12.2019 passed in W.P.(C) No.249719. But without considering the documents submitted by the petitioner and without giving any opportunity of hearing to him the Block Education Officer Bonth vide office order dated 16.12.2019 terminated the services of the petitioner with immediate effect under Rule 15 of the OCS Rules 1962 on the ground of production of fake C.T. pass certificate. Hence this application. Mr. Bimbisar Dash learned counsel for the petitioner contended that while imposing harsh penalty of termination of service the procedure as envisaged under OCS Rules 1962 has not been complied with nor the petitioner has been given opportunity of hearing while passing the order of punishment and more so no inquiry has been conducted on the allegations thereby the order so passed in Annexure 12 dated 16.12.2019 terminating the services of the petitioner cannot sustain in the eye of law. Mr. B. Satpathy learned Standing Counsel for School and Mass Education Department referring to the counter affidavit filed by opposite party no.6 vehemently contended that since the petitioner has produced fake C.T. pass certificate to get an employment as an Asst. Teacher and on verification of documents the same was found to be forged action as deemed fit has been taken against the petitioner. Thereby the authorities have not committed any illegality or irregularity in passing the order impugned. It is further contended that once the petitioner has got employment by producing fake certificate if it is detected that the same is forged one the authority has got every right to take action against the petitioner. Therefore it is contended that this Court should not interfere with the same at this stage and as such he seeks for dismissal of the writ This Court heard Mr. Bimbisar Dash learned counsel for the petitioner and Mr. B. Satpathy learned Standing Counsel for School and Mass Education Department by virtual mode and perused the records. Pleadings having been exchanged with the consent of learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. There is no dispute with regard to the fact that the petitioner was continuing as an Asst. Teacher by producing a C.T. pass certificate. But the Block Education Officer Bonth pursuant to letter dated 05.11.2019 called upon the petitioner to produce relevant documents on 06.11.2019 and on that basis the Block Education Officer requested the Secretary Board of Secondary Education Odisha to verify the genuineness of the C.T. certificate produced by the petitioner. When such process was continuing on the basis of the allegations made by one Bikash Kumar Dhal the District Project Coordinator SSA Bhadrak vide letter dated 26.11.2019 requested the Block Education Officer Bonth to conduct an enquiry into the aforesaid allegation and to take appropriate action. But the Principal District Institute of Education and Training Agarpara Bhadrak vide memo dated 28.11.2019 clarified the position that the petitioner has passed the C.T. examination 2003 as a compartmental candidate and serial number of such certificate is 030858 and as such the revised mark sheet issued by Board of Secondary Education Odisha and other relevant documents were also forwarded by the District Institute of Education and Training Agarpara The impugned order indicates that the service of the petitioner has been terminated with immediate effect as per Rule 15 of OCSRules 1962. On perusal of the provisions contained in Rule 15 of the OCS Rules 1962 it appears that elaborate procedure has been prescribed for imposing penalties of termination from service. As per sub rule of Rule 15 of Rules 1962 the disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges together with a statement of the allegations on which they are based shall be communicated in writing to the government servant and he shall be required to submit within such time as may be specified by the disciplinary authority but not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person. Sub rule(3) of Rule 15 of Rules 1962 prescribes that the government servant shall for the purpose of preparing his defence be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify provided that such permission may be refused if for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the public to allow him access thereto. Similarly for causing inquiry presenting officer and inquiry officer are to be appointed by the disciplinary authority as per sub rule(5) of Rule 15. Rule 15(6) and provides examination of witnesses. As per sub rule 10(b) of the Rule 15 the disciplinary authority is to impose any of the penalties as specified in clauses to of Rule 13 of OCS Rules 1962. If such elaborate procedure has been prescribed under law while imposing major penalty of termination from service vide order impugned in Annexure 12 dated 16.12.2019 the aforesaid procedures have not been followed and more so there is non compliance of principles of natural justice. Nothing has been placed on record to elucidate that due procedure has been followed to award the punishment of termination from service. Furthermore when report was called for from the Board of Secondary Education Odisha on 11.11.2019 under Annexure 6 whether such report has been received from the Board or not that has not been placed on record. Therefore on the basis of mere allegation of an outsider the action so taken for termination of service of the petitioner without following due procedure cannot sustain in the eye of law. It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any Statute the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor 63 Ind App 372 : AIR 1936 PC 253 who stated as under: “where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.” The same view has also been taken by the apex Court in Babu Verghese and others v. Bar Council of Kerala & Ors. AIR 1999 SC 1281 at page 1288. In view of detailed procedure envisaged under Rule 15 of the OCS Rules 1962 if the same has not been followed in letter and spirit as to the law discussed above any action taken in violation of such rules cannot sustain in the eye of law. Apart from the above the Principal District Institute of Education and Training Agarpara Bhadrak vide memo dated 28.11.2019 addressed to the Block Education Officer Bonth with regard to genuineness of the secondary teachers training certificate issued to the petitioner has specifically clarified the petitioner having Roll No.02CP002 has passed the C.T. examination 2003 Compartmental) and serial no. of certificate is 030858. Consequentially a revised mark sheet was also issued by the Board of Secondary Education Odisha. Therefore there should not have been any doubt about the certificate produced by the petitioner to get into the job as an Asst. Teacher. In such view of the matter this Court is of the considered opinion that without making any proper inquiry and without ascertaining the correctness of the certificate and also without giving opportunity of hearing to the petitioner the order so passed in Annexure 12 dated 16.12.2019 is contrary to the provisions of law and violates the principles of natural justice. Lord Reid in Ridge v. Baldwin AC 40 : 2 All ER 66 very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular In A.K. Kraipak v. Union of India AIR 1970 SC 150 the apex Court held that the principles of natural justice which are meant to prevent miscarriage of justice are also applicable to domestic enquiries and administrative proceedings. The same view has also been taken by the apex Court in Dr. G. Sarana v. University of Lucknow AIR 1976 SC 2428. In State Bank of Patiala v. S.K. Sharma AIR 1996 SC 1669 the apex Court held that ‘Natural Justice’ means ‘fair play in action’. In Union of India v. E.G. Nambudiri 1991) 3 SCC 38 the apex Court held as follows: “The purpose of the rules of ‘natural justice’ is to prevent miscarriage of justice and it is no more in doubt that the principles of natural justice are applicable to administrative orders if such orders affect the rights of a citizen. Arriving at the just decision in the aim of both quasi judicial as well as administrative enquiry an unjust decision administrative enquiry may have more far reaching effect than decision in a quasi judicial enquiry. Now there is no doubt that the principles of natural justice are applicable even to administrative enquiries. The question is whether principles of natural justice require an administrative authority to record reasons. Generally principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice and its sweep depend upon the nature of the rights involved having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order or where civil consequences ensue principles of natural justice apply even if the statutory provisions to do not make any express provision for the same and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural administrative authority to record reasons for the decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons of the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reason should be given for decision. Though the principles o natural justice do not require reasons for decision there is necessity for giving reasons in view to enable the citizens to discover the reasonings behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to the right of a citizen it is therefore desirable that reasons should be stated.” justice do not In Suresh Chandra Nanhorya v. Rajendra Rajak 7 SCC 800 the apex Court held that ‘Natural justice’ is the essence of fair adjudication deeply rooted in tradition and conscience to be ranked fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. In Sahara India v. CIT 14 SCC 151 relying upon A.K. Kraipat v. Union of India 1969) 2 SCC 262 the apex Court held as follows: “Rules of ‘natural justice’ are not embodied rules. The phrase ‘natural juice’ is also not capable of a precise definition. The underlying principle of ‘natural justice’ evolved under the common law is to check arbitrary exercise of power by the State or its functionaries it implies a duty to act fairly i.e. fair play in action. The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.” In view of the law laid down by the apex Court as discussed above while passing the order impugned there is non compliance of the principles of natural justice and the entire action has been taken in gross violation of the provisions of law and thereby the order impugned cannot In the counter affidavit filed by opposite party no.6 the contention raised in paragraph 17(b) of the writ petition has remained uncontroverted inasmuch as no specific reply has been given with regard to conduct of inquiry. Rather reply has been given in paragraph 11 of the counter affidavit that when the C.T. certificate produced by the petitioner was proved as fake one opposite party no.6 took immediate steps by lodging FIR against the petitioner and at the same time terminated him from service with immediate effect vide office order no.2290 dated 16.12.2019. Thereby it is specifically admitted that the provisions contained under Rule 15 of OCS Rules 1962 with regard to conduct of inquiry have not been followed in the present case. More so compliance of the order dated 10.12.2019 passed by this Court in W.P.(C) No.249719 has not been done in letter and spirit. In view of the facts and circumstances as well as proposition of law as discussed above since the impugned order dated 16.12.2019 in Annexure 12 has been passed without following due procedure of law i.e. Rule 15 of OCS Rules 1962 and without complying the principles of natural justice inasmuch as no opportunity of hearing was given to the petitioner the same cannot sustain in the eye of law and is hereby quashed. The opposite parties are directed to reinstate the petitioner in service with immediate effect. be no order as to costs. The writ petition is thus allowed. There shall DR.B.R.SARANGI J. Orissa High Court Cuttack The 28th January 2021 Ashok GDS 