Pramod Kumar Swain V. Union of India and others

WP(C)/4689/2008

AI Insights

The case involves Pramod Kumar Swain, a Constable in the Border Security Force, who was dismissed from service due to unauthorized absences. Swain had been absent to care for his ailing mother and wife, and upon his return, he was dismissed without adequate opportunity to respond to the show cause notice. The dismissal and subsequent rejection of his appeal were challenged in the High Court under Articles 226 and 227 of the Constitution of India. The court found that the dismissal was procedurally improper as it did not allow Swain sufficient opportunity to defend himself, violating principles of natural justice.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 820407 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 20-11-2017
• Assessment Year: misc
• Laws Referred To: Articles 226 and 227 of the Constitution of India, Border Security Force Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: S K PATRA; DAYANIDHI LENKA; A K BOSE
• Assessee Lawyers: ALEKHA MOHANTY; G N ROUT; B PRADHAN; S BHAGAT
• Keywords: Disciplinary Authority; Dismissal from Service; Natural Justice; Show cause notice; Writ petition
• Section: 19-A

Judgement Text

"HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No.4689 of 2008 In the matter of application under Articles 226 and 227 of the Constitution of India. --------- Pramod Kumar Swain …… Petitioner - Versus- Union of India and others …… Opposite Parties For Petitioner : M/s Alekha Chandra Mohanty, G.N.Rout,B.Pradhan, S.Bhagat For Opp.Parties : Mr. S.K.Patra, Dayanidhi Lenka and A.K.Bose (C.G.C.) --------- PRESENT: THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD ------------------------------------------------------------------------------------------ Date of hearing and judgment : 20.11.2017 ------------------------------------------------------------------------------------------ S. N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order dated 25.2.2008 passed by the Appellate Authority has been challenged with further direction upon the opposite parties to reinstate him in service with all consequential benefits. 2. Brief facts of the case of the petitioner is that he has joined his service as Constable under the Border Security Force on 22.6.1999 through process of selection. The petitioner due to some unavoidable circumstances was absent without leave on 15.1.2006 to attend his ailing mother since the petitioner was not granted leave at the relevant time. While he was facing Record of Evidence Proceeding under section 19(a) of the Border Security Force Act because of his 2 absent without leave, he got a telephonic message from one of his relatives that his wife is in death bed and since no adequate medical facility was available in the local hospital, she was shifted to Bhubaneswar by the villagers. On the next day, when he could knew that his mother was fell victim of paralysis during her way to Bhubaneswar, while accompanying her daughter-in-law, he appraised the matter to his higher authorities and asked for leave to attend his bed-ridden wife and paralyzed mother, but the same has not been given heed to by the authorities. Accordingly, he left duty for his home on 28.4.2006 by duly filled application at the Headquarters. While he was looking after his ailing mother and bed-ridden wife, he received a letter dated 8.5.2006 directing him to report back duty immediately, failing which he will be persecuted under the provisions of the Board Security Force Act and Rules. He has reported back his place of posting at Painthee, Samba in the state of Jammu & Kashmir in the first week of July,2006 but was not allowed to continue in service and after remaining there for about a month, he was constrained to return to his home desperately. He again received letter of show cause dated 13.7.2006 asking him to reply to the show cause within 30 days from the date of receipt, failing which it will be assumed that the petitioner has nothing to state in his defence against the proposed action, i.e. dismissal from service. The petitioner has sent his reply on 27.8.2006 through one Constable M.Mohapatra who was also in the posting strength of the opposite party no.4. The petitioner had contended in the reply to the show cause that enclosed photo copies of the Court of Inquiry proceedings was not legible, hence legible copies of Court of Inquiry proceedings may please be sent to him so as to enable him to reply to the show cause effectively but he has not been communicated with any of the decision of the authorities, hence he has made an application before 3 the authorities, which ultimately has been communicated him that the appeal has been rejected, accordingly he has approached this Court by filing this writ petition only on the ground that he could be able to know that he has been dismissed from service vide order dated 12.8.2006 passed by the Commandant, 58th Bn, Border Security Force, Jammu & Kashmir, that is the reason the petitioner could not have challenged the order dated 12.8.2006 since it has not been communicated to him. 3. Learned counsel for the petitioner has assailed the decision of the appellate authority on the following grounds: (i) The show cause notice has been issued to him on 13.7.2006 whereby and whereunder he has been given 30 days from the date of his receipt to file its response but even before the period of 30 days, as would be evident from the order of removal from service dated 12.8.2006, he has been removed from service. It is evident that the authorities have not waited even that period of 30 days. (ii) Copy of the Court of Inquiry has not been furnished which he could read out and as such he has specifically mentioned in the reply to show cause to provide legible copy to give proper reply. (iii) The appellate authority has passed order on 25.2.2008 whereby and where under the order passed by the appellate authority has not been communicated to the petitioner rather communication has been given regarding rejection of the appeal which has been said to be devoid of merit, hence the petitioner has been denied opportunity go through the reason of the appellate authority in taking decision while 4 rejecting the appeal and thereby he has been denied with the principles of natural justice. (iv) The petitioner has been denied adequate and sufficient opportunity to defend and on this ground alone the impugned action of the authorities are liable to be set aside. 4. Per contra, the Board Security Force/opposite party has entered appearance and the learned counsel representing it has submitted that the provision of Border Security Force Act and Rules has been followed and the petitioner, after having availed the opportunity and considering the habitual absentees he has been removed from service, hence there is no need to interference by this Court. Learned counsel has submitted that the petitioner being member in the disciplined force and as such was expected to discharge his duty with all diligence and honesty but by absenting from duty time and again he has not only committed misconduct he has not followed the norms of being member of disciplined force, learned counsel on the strength of this argument has submitted that the writ petition may be dismissed. 5. Heard learned counsel for the parties and on appreciation of the rival submissions it is evident that the petitioner was engaged as a member of the disciplined force in the Border Security Force on 22.6.1999. He has absented himself from duty on the ground of ailment of his wife and mother. Court of Inquiry was initiated in which allegation leveled against him is found to be proved and thereafter show cause notice has been issued upon him on 13.7.2006 asking him to give reply within a period of 30 days from the date of its receipt. The petitioner has been dismissed from 5 service. The petitioner has not been communicated regarding the outcome of the show cause and in course thereof he has made application before the appellate authority i.e. the Deputy Inspector General, Border Security Force but he has been communicated with a communication 25.2.2008 informing him that the appeal filed by him has been considered but found devoid of merit, hence rejected. The petitioner, accordingly, has filed this writ petition challenging the order of the appellate authority with a prayer to allow him to continue him in service with all consequential benefits. 6. The Border Security Force has appeared and filed counter affidavit wherein the order of dismissal from service has been annexed to the counter affidavit as Annexure-L/4 which was on 12.8.2008 passed by the Commandant, 58 BN, Border Security Force, Jammu & Kashmir. The petitioner has raised the issue that the order dated 12.8.2006 could not have been challenged by him since it has not been communicated to him but he submitted by referring to the order dated 12.8.2006 that the same has been passed on 12.8.2006 which is within the stipulated period in the show cause notice dated 30.7.2006 whereby and where replies to be given from 30 days of its receipt but within that period of 30 days the order of dismissal has been passed, hence the same is not sustainable. 7. This Court, before going into legality and propriety of the decision taken by the authority has thought it proper to pass order regarding maintainability of the writ petition since the order passed by the authorities is of 58th Bn, Border Security Force which was situated at the relevant time in the State of Jammu and Kashmir. Learned counsel for the petitioner has asserted that he was selected in the State of Odisha and after being dismissed from service within 6 the State of Odisha and all the communication which has been made to him in his address of the native place, hence the part of cause of action has arisen in the territorial jurisdiction of this Court and as such the writ petition is maintainable within this Court. Learned counsel for the Border Security Force has not disputed this factual aspect regarding the communication of the orders. 8. Before answering this issue it would be relevant to bring certain authorities of the Hon’ble Supreme Court regarding position of law in entertaining the writ petition. It is not in dispute that the writ petition is amenable under Article 226 of the Constitution of India if part of cause of action arises within the territorial jurisdiction of the High Court. Article 226 of the Constitution of India confers power upon the High Court to issue certain writs- “(1) notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari, or any of them or the enforcement of any of the rights conferred by Part-III and for any other purpose. (2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause(2) of Article 32.” The Constitution Bench of the apex Court in Election Commission, India –vs- Saka Venkata Rao, AIR 1953 SC 210 held that the writ court would not run beyond the territories subject to its jurisdiction and that the petitioner or the authority affected by the writ must be amenable to court’s jurisdiction either by residence or location 7 within those territories. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issued under Article 226 of the Constitution which makes no reference to any cause of action or where it arises but insist on the presence of the person or authority within the territories in relation to which High Court exercises jurisdiction. In K.S.Rashid and son –vs- Income Tax Investigation Commission and others, AIR 1954 SC 207 the Hon’ble Apex Court took similar view and held that the writ court cannot exercise its power under Article 226 beyond its territorial jurisdiction. It is also held that the exercise of power conferred by Article 226 was subject to two-fold limitations, firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. Both the judgments rendered by the Apex Court in the case of Election Commission, India –vs- Saka Venkata Rao(supra) and K.S.Rashid and son –vs- Income Tax Investigation Commission and others(supra) fell for consideration before the Larger Bench of Hon’ble Apex Court in Lt. Col.Khajoor Singh –vs- Union of India and another, AIR 1961 SC 532 and the view taken by the Hon’ble Apex Court in the earlier two judgments has been confirmed by the larger Bench of the Apex Court which stated that unless there are clear and compelling reasons, which cannot be denied, writ court cannot exercise jurisdiction under Article 226 of the Constitution beyond its territorial jurisdiction. Prior to the insertion of clause 1(A), it was held that the writ should not run beyond territories to which High Court exercise jurisdiction, but due to the aforesaid ratio which resulted undue hardship and inconvenience to litigants in respect of jurisdiction, 8 clause (1)(a) was inserted and that clause is numbered as Clause(2) of the 42nd amendment Act, if the cause of action arises wholly or in part, within the jurisdiction of that High Court, it may issue a writ against a person or authority resides within the jurisdiction of another High Court, as a result of insertion of the clause, a petition can be presented in the High Court within whose jurisdiction cause of action in respect of which relief is sought under Article 226 of the Constitution of India has arisen wholly or in part, reference in this regard may be made to the judgment rendered by the Apex Court in the case of Oil and Natural Gas Commission –vs- Utpal Kumar Basu and others, (1994) 4 SCC 711 wherein it has been held that High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part-III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial. Same view has been taken by the Hon’ble Apex Court while dealing with the matter in the case of Union of India and 9 others –vs- Adani Exports Ltd. and another, (2002)1 SCC 567, it has been held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and the entire or a part of it arose within its jurisdiction. In the judgment rendered by the Hon’ble Apex Court in the case of Kusum Ingots and Alloys Ltd. –vs- Union of India and another, (2004) 6 SCC 254, it has been held that keeping in view the expression used in Clause(2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action occurs within the jurisdiction of the Court, the Court will have jurisdiction in the matter. However, even if a small part of cause of action arises within territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenient, that a part of cause of action arise of one or the other forums, it will be for the petitioner to choose its forum. It is evident from the ratio laid down in all the judgments of the Hon’ble High Court that if part of cause of action arises within the territorial jurisdiction of this High Court, writ will be held to be maintainable and it is open to the litigant to chose as to in which High Court he wants to pursue his litigation. In the light of the settled proposition, the recent judgment rendered by the Hon’ble Apex Court in the case of Nawal Kishore Sharma –vs- Union of India(supra) , the Hon’ble Apex 10 Court, after taking into consideration the judgments rendered previously and taking intent of the provision of Article 226(2) of the Constitution of India, has held that the writ petition is maintainable within the territorial jurisdiction of the Patna High Court by considering the fact that letters have been communicated to him by the authorities concerned in his residence situated within the territorial jurisdiction of Patna High Court and taking into consideration every aspects of the matter that notice has been issued, and interim order has been passed, but the opposite parties have not raised any objection, hence the writ petition has been held to be maintainable. 9. The material which is available on record is that the petitioner while working outside jurisdiction of this Court was subjected to court of inquiry in which he was inflicted dismissal from service while working in 58th Bn., Border Security Service, Jammu & Kashmir. The communication has been made upon him in his native place as would be available from material available on record. He has filed an appeal and rejection order has been communicated to him. The writ petition has been filed way back in the year 2008 and since then 9 years has already been lapsed. The opposite parties have appeared, filed counter affidavit and not raised the issue regarding maintainability of the writ petition and taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of Nawal Kishor Sharma –vs- Union of India and others, 2014 AIR SCW 4713 wherein the writ petition is held to be maintainable before this Court on the basis of the fact that all the communications have been sent in the native place of the petitioner situated within the State of Odisha which comes under the 11 territorial jurisdiction of this Court, as such the writ petition is held to be maintainable. 10. So far as the merit of the case is concerned, it is not in dispute that the inquiry should be done in order to provide adequate and sufficient opportunity to the employee concerned. In the instant case, the Court of Inquiry has been conducted regarding unauthorized absence of the petitioner, thereafter show cause notice has been issued on 13.7.2006 whereby and where under he has been given 30 days time from the date of his receipt to file reply. The petitioner has given its reply as would be evident from Annexure-3 through post stating specifically therein that the copy of the enquiry report is not legible and as such requested the authorities to supply legible copy. The petitioner has not been communicated with any decision/outcome of the show cause notice, hence has filed appeal before the appellate authority which has been rejected, as has been communicated without supplying him the decision of the appellate authority. The opposite parties have filed counter affidavit, order of dismissal has been annexed i.e. 12.8.2006 which is within the period of 30 days as stipulated in the show cause notice dated 13.7.2006. Learned counsel for the Border Security Force has submitted that it is exact date of 30 days the order has been passed and as such it cannot be said that within the period of 30 days, but the submission is not acceptable for the reason that the said notice dated 13.7.2006 has been issued from the office situated at Jammu & Kashmir and the native address is falling in the district of Nayagarh, Odisha and as such even it will be sent through posts it will take at least 2 to 3 days and from 13.7.2006, two to three days will come to 16.7.2006 12 and from that days 30 days would be counted and taking into account the said date the order of dismissal which has been passed on 12.8.2006 would be said to be within the period of 30 days and as such the authorities have not taken into consideration the reply given by the petitioner in terms of the said notice, hence the action of the authorities is absolutely improper. 11. It is settled that justice is not only to be seen rather justice is to be given in real sense, that is the purpose of providing opportunity to be heard but it is evident on the face of the record that the authorities have not taken into consideration the reply to the show cause. It is further evident that the order of appellate authority is said to have passed without giving opportunity of being heard to the petitioner. Illegality committed by the authorities for the reasons that if any appellate authority passing an order it is duty on his part to furnish copy of the order so that the aggrieved party may be in a position to know on what reason it has been rejected, denial of the communication of the reason is also amounts to violation of the principle of natural justice. In view thereof, order dated 12.8.2008 is also not sustainable in the eye of law. Accordingly, the order of dismissal passed by the authority as well as the appellate authority are quashed. 12. Accordingly, the matter is remitted before the disciplinary authority to pass fresh order after giving opportunity to file show cause to the petitioner and to consider it in accordance with law, within period of six weeks from the date of receipt of copy of this order. 13 Further continuation of the petitioner will depend upon the final decision taken by the authorities. Accordingly, the writ petition is accordingly disposed of. …..……………… S.N. Prasad, J. Orissa High Court, Cuttack, Dated the 20th November,2017/Palai "