1. This Original Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed by Shri Samita Taudu, wherein this Tribunal is to adjudicate/decide as to whether the order of cancellation of his appointment as Chowkidar (under Annexure-4 dated 9th January, 1991) in the Office of the Asst. Commissioner of Income Tax (Berhampur) is legal, valid, and justified on the face of the fact as enumerated by the Applicant in his Original Application.
2. For effective adjudication of this matter, a few fact of the case is necessary to be referred to. The fact remains that the Applicant was engaged on 4.4.1985 as a contingent paid staff in the Office of the Income Tax Officer, Ganjam. While discharging his duties as such, intermittently, a Criminal Case was instituted against him (under Section 498-A and 304-B, IPC read with Section 4 of the Dowry Prohibition Act) and he was taken to custody on 31.9.1987. Ultimately, on 4.4.1989, the Learned Additfonal Sessions Judge (Ganjam at Berhampur) in Session Trial Case No. 19/1988 convicted the Applicant and sentenced him for eight years imprisonment. Applicant preferred appeal against the said order of conviction and sentences in the Hon'ble High Court of Orissa and, ultimately, by order dated 17.12.1992, he acquitted. In the meantime, vide order dated 24.12.1990 (of the Assistant Commissioner of Income Tax (Hqrs.) Orissa, Bhubaneswar) under Annexure-3 he was enlisted and appointed as Chowkidar in the Office of the CIT being a contingent paid worker.
Subsequently, under Annexure-4, dated 9.1.1991) the said order of appointment dated 2.1.1991 was cancelled. It is the case of the Applicant that, on being acquitted, he had submitted representations for his reinstatement/appointment; but the same was rejected (under Annexure-6 dated 22.4.1996) intimating him (the Applicant) the reason of the cancellation of the appointment. It was disclosed that as he was in Jail custody (as a result of the order of conviction) at the time of issuance of the order of his appointment, the same was cancelled, on detection of the fact of his conviction.
3. The Respondents have filed their counter stating inter alia that engagement/services of the Applicant as a contingent paid worker (since his services were no more required) was terminated under Annexure-R/3 dated 21.4.89. As the said fact of disengagement/ termination of the services of the Applicant was never intimated to the Head Office (as he was a contingent paid employee of the Department) he was regularised in the post of Chowkidar, by mistake, vide order dated 24.12.1990; but, on 2.1:1991, it came to the notice of the Respondent No. 2 that the services of the Applicant has been terminated/disengaged w.e.f.
21.4.1989 and he was no more in the roll of the contingent paid worker; the order of appointment (which was issued on 24.12.1990) was cancelled under Annexure-4 dated 9.1.1991 and, as such, he is not entitled to get any relief as claimed in this O.A.4. Heard learned Counsel for both sides and perused the records.
Learned Counsel for the Applicant, in course of hearing submitted that as the order of termination was cancelled without giving any opportunity to the Applicant, the same is illegal being arbitrary and violative of the principles of natural justice. Further it was submitted by the learned Counsel for the Applicant that as he has been acquitted in the meanwhile, he ought to have been reinstated in service. Mr. Bose, Learned Senior Standing Counsel appearing for the Respondents submitted that conviction order has nothing to do which regard to the order of cancellation of the appointment. As the order of appointment was issued in favour of the applicant by mistake, the authorities/Department have the power to correct their mistake at any point of time; more so, when the same was issued when the applicant was in custody pursuant to the order of conviction passed on 4.4.1989 by the Learned Additional Sessions Judge (Ganjam) in S.T. Case No.19/1988. It has, further been submitted by Mr. Bose, learned Senior Standing Counsel that as the Applicant had not joined the post (even after issuance of the order of appointment) no right can said to have been accrued in his favour and, as such, principles of natural justice was not at all attracted in this case requiring reinstatement/ regularisation of the Applicant.
5. Upon hearing the counsel for the parties and on perusal of the records, it is to be noted here that it is the well settled principle that an order, which is ab initio illegal/void is unsustainable and liable to be set aside; whenever such a deviation is noticed. It has been disclosed by the Respondents that the order of appointment dated 24.12.1990 (Annexure-3) was issued by the Asst. Commissioner of Income Tax (Hqrs.), Bhubaneswar by mistake and that was rectified in cancelling the said order, on 9.1.1991, under Annexure-4. The action of correcting a mistake by the competent authority was held valid in the case of Sundar Lal v. State of Punjab, reported in 1970 SLR 59 and the same view was also taken in the case of Sanjeev Kumar Agarwal and Ors.
v. Union of India and Ors., reported in (1987) 3 SLJ (CAT) 353 and in the case of K.S. Srinivasan v. Union of India, reported in AIR 1958 SC 419 and I also note here that at the time when appointment order was issued (under Annexure-3 dated 24.12.1990) the Applicant was in custody being convicted and, as such, he ought not to have been appointed to the said post. He had never resumed duty, pursuant to the order of appointment. As such, question of giving opportunity before cancelling the same does not arise. For cancellation of an order, which has never been acted upon, no natural justice is required to be given. (It may be noted here that the order of disengagement of the Applicant as a contingent paid worker, on 21.4,1989, is also not under challenge in this O.A.; which was filed during 1996). In the said premises, I find no merit in this Original Application; which is, accordingly, dismissed; by leaving the parties to bear their own costs.