Gurucharan Sahu vs Chairman and Others

A.S. Naidu, J.—Heard. Mr. Manoj Mohanty, Learned Counsel for the Petitioner & Mr. Nanda, Learned Counsel for Opp. Parties 1 to 3.

The Petitioner joined as a Class-IV employee on N.M.R. basis under the Executive Orissa State Engineer, Electricity Board, Jagatsinghpur way back in the year 1973. After serving about 15 years, in the year 1979 a decision was taken to regularize the work charged/N.M.R. employees. Consequently, a process for such regularization commenced. According to the Petitioner, a trade test was conducted by the Selection Committee consisting of three officers on 19.11.1988. On the basis of the results of the said trade test, on 3.1.1989, the then Executive Engineer, J.E.D., Jagatsinghpur regularized the services of the Petitioner as helper. He also regularized the services of 54 other N.M.R. employees out of which 48 employees belonging to general cast and rest 7 belonging to SC & ST. While the matter stood thus, without any rhyme or reason, the Secretary of the erstwhile Orissa State Electricity Board vide Order Dated 2.2.1989 cancelled the appointment of the Petitioner. Being aggrieved, the Petitioner approached this Court in OJC No. 582 of 1989. This Court while disposing of the said writ application on 18.7.1989 set aside the order of cancelation as the same was made unilaterally and directed the authorities to cause an enquiry. In consonance with the said direction, Opp. Party No. 2 issued a show cause notice to the Petitioner calling upon him to explain as to why his appointment in the post ''of Helper shall not be cancelled on the ground that the selection process was defective & appointment letter was issued much before finalization of the select list & also on the ground that the provisions of the O.R.V. Act were not followed. The Petitioner once again assailed the said show cause notice before this Court in OJC No. 1881 of 1998. The said writ application-was disposed of on 23.5.1990 with a direction that the Opp. Parties shall afford adequate opportunity to the Petitioner for filing show cause & in case the Petitioner wants to verify the records, he will be afforded an opportunity to do so.

It is alleged that without affording opportunity to the Petitioner to examine all the documents, the Secretary of the Orissa State Electricity Board by Order Dated 20.11.1990 held that the prescribed procedure was not adhered to before issuing the appointment letter and that the mandatory provisions of the O.R.V. Act were not kept in mind. Thus, the entire selection was vitiated. Consequently, the appointment of the Petitioner was cancelled.

The said order was again assailed by the Petitioner along with others before this Court in OJC No. 4687 of 1990. This Court after going through the order & other materials, set aside the order & remitted the matter for de novo disposal with the observation that the Opp. Party No. 2 shall make available all the documents for perusal of the Petitioners. The Petitioners of the said case were directed to appear before Opp. Party No. 2 at the time fixed by the Court for inspection of the documents. It appears, thereafter, the Petitioner appeared before the authorities along with his advocate, inspected some of the documents, but then, it is alleged that some of the documents were not made available to him. The Secretary after hearing the parties & considering the show cause once again came to the conclusion that proper procedure was not followed while conducting the trade test, as much as the provisions of the O.R.V. Act were not followed & as such, the order of engagement of the Petitioner and Ors. cannot be sustained & by Order Dated 6.1.1994 (Annexure-12), cancelled the appointment of the Petitioner in the post of Helper. The said order is assailed before this Court in the present writ application.

According to Mr. Mohanty, Learned Counsel for the Petitioner, the Secretary had acted illegally & with material irregularity & the order under Annexure-12 suffers from the vice of non-consideration of vital facts & documents. It is further submitted that adequate opportunity was not granted to the Petitioners or his advocate to go through the documents, consequently, the Petitioner was greatly prejudiced.

After receiving notice, a counter affidavit has been filed by the opposite parties denying all the allegations made in the writ application & stating that adequate opportunity was in fact granted to the Petitioner and Ors. to verify all documents, which were available, they were also granted opportunity to make their submissions at length & only thereafter, the Secretary by a well discussed reasoned order (Annexure-12) came to the conclusion that trade test conducted on 19.11.1988 suffered from inherent defects & proper procedure was not followed. It was further held that the orders were issued by the concerned Executive Officer much before the selection list was finalized & further while issuing orders, the provisions of the O.R.V. Act was not kept in mind & therefore, the consequential appointment letters cannot be sustained in the eye of law.

It appears, rejoinder affidavit was filed by the Petitioner & thereafter, further affidavit was also filed on behalf of the Opp. Parties. Mr. Mohanty strenuously submits that the Secretary, O.S.E.P. had not properly considered all the facts & the show cause filed by the Petitioner & opportunity was not also granted to inspect all the documents & as such, the order under Annexure-12 should be quashed. But then, perusal of the aforesaid order gives an impression that the said authority has meticulously gone through the cause shown & the documents available, discussed the same, heard Learned Counsel for the parties & arrived at cogent conclusions. The reasons assigned are not shocking to the commonsense. Law is well settled that while exercising certiorari power, this Court should not interfere with the finding arrived at by the authorities unless the same is contrary to the evidence or any error apparent on the face of the records is brought to the notice. Law is also well settled that this Court should not interfere with the order only on the ground that contrary view can possibly be taken unless & of course the view taken by the authorities is found to be in fragrant violation of the principles of natural justice & equity and/or shocking to the commonsense.

Be that as it may, fact remains, in the year 1995 the authorities conducted another trade test & the Petitioner in this case as well as the Petitioners of other cases appeared in the said test, were selected & their services have been regularized with effect from 29.9.1995. Appearing in a trade test held in the year 1995 itself reveals that the Petitioner and Ors. have forgone their earlier claims.

Admittedly, the Petitioner''s services were earlier regularized on 30.1.1989. He continued to hold regular post from the said date till 1.3.1994. Thereafter, as stated earlier, they were reverted to NMR status & were again regularized with effect from 29.9.1995. The dispute in this writ application is thus, confined to the period from 6.1.1994 to 28.9.1995, i.e. little less than two years. He was originally appointed as N.M.R. & while working as such, his service was regularized & was brought to the regular establishment. He is discharging his duties all through & as on date also he is discharging his duties in the regular establishment right from 28.9.1995.

In view of the aforesaid facts & circumstances & the chequered career of the dispute, we feel that ends of justice & equity will be better served if we dispose of this writ application without interfering with the impugned order, but directing the authorities to pay the salary/remuneration to the Petitioner for the post held by him between 6.1.1994 to 28.9.1995, if the same has not been paid to him. To shorten the litigation, we further direct that as the Petitioner is in the pay roll of the Opp. Parties, the period of services from 6.1.1994 to 28.9.1995 shall be treated towards his regular service.

With the aforesaid observation & direction, the writ application is disposed of.

B.N. Mahapatra, J.

I agree.