Nabakishore Mohapatra Vs. Cuttack Development Authority and ors.

Nabakishore Mohapatra vs Cuttack Development Authority and ors.

Disposition Petition allowed Court Orissa Decided Nov 18, 2008

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Citation: sooperkanoon.com/536990
Court: Orissa High Court
Judge: B.P. Das and; R.N. Biswal, JJ.
Decided On: Nov 18, 2008
Subject: Service
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Service
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Nabakishore Mohapatra

Advocate Mr. Mishra

Respondent

Cuttack Development Authority and ors.

Legal References

Cases Referred: Ajit Kumar Nag v. General Manager
Reported In: 107(2009)CLT207

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ..........provision contained in rule-6 of the oda rules.3. our attention is drawn to a decision of the apex court rendered in ajit kumar nag v. general manager, indian oil corporation ltd. and ors. 2005 air scw 4986, wherein the apex court held that the order of dismissal of an employee without inquiry and without following the rule of audi alteram partem cannot be termed to be an illegal one. on perusal of the aforesaid decision, we find that the standing order applicable to the employees of the indian oil corporation authorizes the general manager to dismiss an employee without following the rule of audi alteram partem. so the apex court held that the order of dismissal was correct even though no chance of being heard was given to the employee concerned.4. the facts of the case at hand are different from the case cited above. here is a case, where the cca rules are applicable to the employees of the authority and admittedly, the said rules have not been followed while passing the impugned order.5. as the said procedure has not been followed in the case of the petitioner, we have no hesitation to set aside the order dated 25.3.2001 passed by the vice-chairman, cuttack development authority, vide annexure-7 and remit the matter back to the authorities to frame definite charges against the petitioner and proceed and conclude the inquiry in terms the provisions of cca rules. accordingly, we do so.the writ application is accordingly disposed of.r.n. biswal, j.i agree.

Full Judgment

B.P. Das, J.

1. The Petitioner has filed this writ application challenging the order of his removal from service passed by the Vice-Chairman, Cuttack Development Authority (CDA) on 25.3.2001; in purported exercise of power conferred under Rule-6 of the Orissa Development Authorities Rules, 1983 (ODA Rules), vide Annexure- 7.

2. According to Mr. Mishra, Learned Counsel for the Petitioner, the impugned order of removal from service was passed on the allegation that the Petitioner was indulged in preparation of forged documents like approval of building plan and permission letter in favour of one B.K. Panda of Nayabazar. After the order of removal was passed, a criminal case was registered against the Petitioner and ultimately, he was acquitted of the charges in the criminal proceeding. Mr. Mishra submits that in view of acquittal of the Petitioner in the criminal proceeding, the order of removal from service passed on the selfsame charges should be set aside. Apart from the aforesaid ground, Mr. Mishra has taken the ground that Rule-6 of the ODA Rules even though empowers the Vice-Chairman of the CDA to remove or dismiss an employee, it requires prior approval of the authorities, such approval having not been obtained in the present case, the impugned order cannot stand. As per Rule-6, prior approval is required in case of removal or dismissal of any officer belonging to Class-I and Class-II post, the post held by the Petitioner being Class-I or Class-II, the submission of the Learned Counsel for the Petitioner can not be accepted.

Mr. Mishra, Learned Counsel for the Petitioner, further submits that the GDA adopted the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 (CCA Rules)-mutatis and mutandis by virtue of its resolution dated 11.6.1984. Rule-15 of the CCA Rules provides that the disciplinary authority shall frame definite charges on the basis of the allegations, on which the inquiry is to be held and major penalty shall be imposed. Admittedly, in this case without following the aforesaid procedure, recourse has been taken to the provision contained in Rule-6 of the ODA Rules.

3. Our attention is drawn to a decision of the Apex Court rendered in Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd. and Ors. 2005 AIR SCW 4986, wherein the Apex Court held that the order of dismissal of an employee without inquiry and without following the rule of audi alteram partem cannot be termed to be an illegal one. On perusal of the aforesaid decision, we find that the Standing Order applicable to the employees of the Indian Oil Corporation authorizes the General Manager to dismiss an employee without following the rule of audi alteram partem. So the Apex Court held that the order of dismissal was correct even though no chance of being heard was given to the employee concerned.

4. The facts of the case at hand are different from the case cited above. Here is a case, where the CCA Rules are applicable to the employees of the authority and admittedly, the said Rules have not been followed while passing the impugned order.

5. As the said procedure has not been followed in the case of the Petitioner, we have no hesitation to set aside the Order Dated 25.3.2001 passed by the Vice-Chairman, Cuttack Development Authority, vide Annexure-7 and remit the matter back to the authorities to frame definite charges against the Petitioner and proceed and conclude the inquiry in terms the provisions of CCA Rules. Accordingly, we do so.

The writ application is accordingly disposed of.

R.N. Biswal, J.

I agree.

Same Court & Year Orissa · 2008 Same Parties Nabakishore Mohapatra vs Cuttack Development Authority and ors. Same Subject Service Same Judge B.P. Das and; R.N. Biswal, JJ.

Service