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Bhimsen Mahanto Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 593 of 1982
Judge
Reported in1985(II)OLR467
AppellantBhimsen Mahanto
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateG.N. Misra and D. Patnaik
Respondent AdvocateStanding Counsel (Central)
DispositionApplication allowed
Excerpt:
.....of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 4 that though the latter was eligible, the inspector of post offices bad illegally selected the petitioner. 2 reviewed the case and found that the petitioner had failed to submit his school-leaving certificate by the date of his selection. if the allegation was correct, the petitioner could have no right to enjoy the benefit illegally gotten. 2) acted in contravention of the well-established principles of natural justice. 2 upon a preliminary enquiry was of the opinion that the petitioner bad failed to comply with the requirements, the least that was obligatory was to put the..........and his appointment papers should be collected and sent to his office with his original school-leaving certificate. the petitioner has alleged that he was appointed on a remuneration of rs. 100/-per month and got his appointment letter on 30. 10. 1979 and joined service four months later, he received the impugned order dated 6. 3 1980 informing him that the superintendent of post offices, keonjhar division, keonjhargarh, had removed him from service and had appointed one satrughna mohanto (opposite party no 4) in his place. his representation was rejected under annexure-4 dated 11.4.1980 on the ground that he was not eligible for the post. thereafter, he made representation to the superior authorities. the petitioner has impugned the order of removal from service as mala fides.....
Judgment:

R.C. Patnaik, J.

1. This is an application by a former Extra Departmental Delivery Agent for the annulment of the order issued by the Superintendent of Post Offices of Keonjhar Division, Keonjhargarh, removing him from service as communicated to him by letter dated 6 3. 1930 (Annexure-3) issued by the Inspector of Post Offices, Keonjhar South Subdivision.

2. Pursuant to an advertisement dated 15. 10. 1979 inviting applications for appointment of Extra Departmental Delivery Agents at Khuntapingu Branch Post Office under the Keonjhar Postal Services, the petitioner, opposite party No. 4 and others were the applicants. By Annexure-2 dated 28.10. 1976, the Inspector of Post Offices informed the petitioner that he had been provisionally selected and might be appointed observing usual formalities and his appointment papers should be collected and sent to his office with his original school-leaving certificate. The petitioner has alleged that he was appointed on a remuneration of Rs. 100/-per month and got his appointment letter on 30. 10. 1979 and joined service Four months later, he received the impugned order dated 6. 3 1980 informing him that the Superintendent of Post Offices, Keonjhar Division, Keonjhargarh, had removed him from service and had appointed one Satrughna Mohanto (opposite party No 4) in his place. His representation was rejected under Annexure-4 dated 11.4.1980 on the ground that he was not eligible for the post. Thereafter, he made representation to the superior authorities. The petitioner has impugned the order of removal from service as mala fides in law and violative of principles of natural justice.

3. Opposite party No. 4 has not entered appearance. Opposite parties 1 to 3 have submitted their return. Though the order of removal is cryptic and innocuous, the opposite parties 1 to 3 have furnished the reasons for the removal. When they have themselves lifted the veil, it has not been necessary to pierce the same. In justification of the order, it is stated that the petitioner did not fulfil the condition, namely, he had not furnished the school-leaving certificate, neither the original nor an attested copy thereof. It is averred that the petitioner had not been appointed by opposite party No. 3. He had been merely selected. Moreover, the appointment was irregular as all appointment papers had not been collected or scrutinised by the competent authority. It is averred in paragraph 5 that though the petitioner served from 30.10.1979 to 17. 3.1930, no appointment order was issued to him. In paragraph 6 it is asserted that no right of the petitioner had been infringed as he was riot posted to any post at any stage. It is alleged that before the petitioner was appointed, a complaint was received from opposite party No. 4 that though the latter was eligible, the Inspector of Post Offices bad illegally selected the petitioner. On receipt of the said complaint, opposite party No. 2 reviewed the case and found that the petitioner had failed to submit his school-leaving certificate by the date of his selection. Hence, he was not eligible- Opposite party No. 2, as revealed in paragraph 7, also took into account the allegation made by opposite party No. 4 that the petitioner had paid Rs. 600/- to the appointing authority as bribe through the Branch Post Master, Shri Pitambar Panda. Opposite party No. 2 has further averred that on appraisal of merit, be found that the petitioner and opposite party No. 4 were equally meritorious. Hence, as the petitioner had not submitted his school-leaving certificate, opposite party No. 4 alone remained in the field for appointment. Therefore, he issued the order for removal of the petitioner from and appointing the opposite party No.4 in service.

4. In the rejoinder filed by the petitioner, it is emphatically stated that he submitted an attested copy of the school leaving certificate along with his application and the original was handed over to the departmental Overseer. The allegation that the petitioner bribed the appointing authority is refuted.

5. The counter affidavit filed by the contesting opposite parties contains contradictory statements. While at one place it is stated that the petitioner served the department from 30. 10.1979 ' to 17. 3. 1980, at another it is stated that the petitioner was not appointed to the post. It is difficult to understand how the petitioner served the department if he was not appointed. Issuance of an order is a formal matter as regards the petitioner is concerned. He did discharge the duties and render service with effect from 30. 10. 1979. The stand taken in the counter affidavit is inconsistent with the impugned order. The impugned ordar states:

'In his letter No. A-294, dt. 5. 3.1980, the Supdt. of Post., Keonjhar Divn., Keonjhargarh, has ordered for the removal of Shri Bhimsen Mohanto the present E. D. D. A. of Khunta-pingu B. O. in a/c with Udaypur S. O. and to appoint Shri Satrughan Mohanto in the said post.'

The Subject of the letter was 'Irregular appointment of E. D. D. A., Khuntapingu'. Unless there was an appointment, there could not be a case of irregular appointment and removal of the holder from the post. In the very letter also the petitioner has been described as Extra Departmental Delivery Agent of Khuntapmgu.

6. Now coming to the merits, we find that the removal is not a removal simpliciter as Annexure-3 purports to be because the reasons are furnished in the return submitted by opposite parties 1 to 3. The reasons are two. First, the petitioner secured his selection and appointment by illegal means, i. e, by bribing the appointing authority through one Pitambar Panda, Branch Post Master. Second, the petitioner had not submitted his school-leaving certificate, either in original or an attested copy. of it. Both the grounds operated and influenced opposite party No.2 as is evident from the return. The first allegation was serious enough being of a criminal nature. Securing a job by payment of bribe not only affected the petitioner and his job but also tarnished his dignity and reputation. If the allegation was correct, the petitioner could have no right to enjoy the benefit illegally gotten. But a mere allegation is not proof of the matter. It has to be substantiated by unimpeachable evidence. Between suspicion and proof lies an a abys which has to be covered by relevant materials by way of proof. The counter, however, dose not reveal an enquiry into the allegations. The allegations made by an interested party ( opposite party No. 4 ) that the petitioner had bribed the appointing authority carried the day. It also tarnished the image of the Branch Post Master through whom it was alleged that the bribe money was conveyed. Action was taken behind the back of the petitioner accepting the allegation as true without any endeavour at getting at the truth. The opposite party No. 4 was an interested party, who stood to gain by the petitioner's loss. The Superintendent of Post Offices (opposite party No. 2) acted in contravention of the well-established principles of natural justice. He set the selection and the appointment of the petitioner at nought by branding the latter as bribe-giver and the appointing authority as the bribe-taker and another person, the Branch Post Master as the middleman. All these were on the allegation of opposite party No. 4 and behind the petitioner's back. It was highly unjust and unfair for all the three aforesaid. The order which sprouted from suspicion of opposite party No.2 induced by the unsupported allegation of opposite party No 2 is therefore not acceptable. There is still another ground which renders the impugned order vulnerable. It is stated in the return that the petitioner was not eligible for selection as he had not submitted either the original school-leaving certificate or an attested copy thereof, as required. The petitioner, its his rejoinder has controverted the said allegation. He has asserted that he submitted an attested copy of the school-leaving certificate along with the application. The original certificate was given to the Overseer. Therefore, it may be presumed that the petitioner produced the papers necessary for selection. If four months after he joined his service it was considered that he was not eligible as he had not produced his school-leaving certificate and his eligibility was questioned, then the plain and simple course was to call upon him to produce his school-leaving certificate or its attested copy. If opposite party No. 2 upon a preliminary enquiry was of the opinion that the petitioner bad failed to comply with the requirements, the least that was obligatory was to put the petitioner to notice of the fact that he had not complied with the requirements. Trying him or parts was unfair and unjust. We are not assessing the question whether or not the petitioner had submitted his school-leaving certificate or its attested copy, but there is same indication in the counter affidavit itself that perhaps he had complied with the requirements. In the tabulation sheet, the petitioner's date of birth has been noted. Might be, the school-leaving certificate or its attested copy was missing or misplaced. May be, somebody tampered with the document. There can be many hypotheses. All these could and should have been gone into if there was an enquiry. As the removal of the petitioner from service was not a removal simpliciter, the law mandated an enquiry, compliance of the rule of audi alteram partem before action was taken. We, therefore, declare the order of removal as ultra vires and quash the same.

7. In the result, the writ application is allowed. But there would be no order as to costs.

B.K. Behera, J.

8. I agree.


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