The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 45 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Samir Kumar Swain …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : Mr. L. Pangari, Sr. Advocate For Opp. Parties : along with Mr. S.K. Ojha, Advocate Mr. B. Nayak, Addl. Govt. Advocate Mr. B.K. Dash, Advocate (Opp. Party Nos. 2 to 4) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 04.08.2025 & Date of Judgment: 04.08.2025 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. L. Pangari, learned Sr. Counsel appearing for the Petitioner along with Mr. S.K. Ojha, learned counsel, Mr. B. Nayak, // 2 // learned Addl. Govt. Advocate appearing for the State-Opp. Party and Mr. B.K. Dash, learned counsel appearing for Opp. Party Nos. 2 to 4. 3. Though the present writ petition was originally filed challenging order dtd.31.12.2021 so passed by the Govt.-Opp. Party No. 1 under Annexure-2, but it is fairly contended in the Bar that after passing of the said order and taking into account the interim order passed by this Court on 04.01.2022, Petitioner was not only allowed to continue but also was allowed to resign from his services and in the meantime, he has joined in some other organization. 4. It is however contended that since while passing the impugned order, Govt.-Opp. Party No. 1 observed that continuance of the Petitioner is detrimental to the interest of the organization, which is a stigma attached to the order, the same could not have been used by Govt.-Opp. Party No. 1 against the Petitioner. 5. Learned Sr. Counsel appearing for the Petitioner contended that the very word ‘Detrimental to the interest of the Organization’ is a stigma attached with the order and in absence of any material such an observation could not have been made. In support of the same he relied on the decision in the case of Jagdish Mitter Vs. Union of Page 2 of 10 // 3 // India (AIR 1964 SC 449). Hon’ble Apex Court in Para 22 of the said Judgment has held as follows:- “22. However, the appellant’s contention that the order of discharge passed against him on the face of it shows that it is not discharge but dismissal, cannot be rejected. We have already observed that Article 311 applies to temporary servants or probationers, so that if it is shown that instead of terminating their services by one month’s notice under the terms of the contract or the relevant rules, the authority proceeds to dismiss them, it is incumbent on the authority to afford to the said temporary servants or probationers the protection guaranteed by Article 311(2). The appellant’s contention is that in the present case, the order itself shows that it is not a discharge but a dismissal, and that naturally involves the question as to the construction of the order. The order reads, thus: “Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in government service is hereby served with a month’s notice of discharge with effect from November 1, 1949.” 22. No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month’s notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its Page 3 of 10 // 4 // power to terminate the services of the appellant on one month’s notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be : does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal, the appellant has been denied the protection guaranteed to temporary servants under Section 240(3) of the Government of India Act, 1935, or Article 311(2) of the Constitution, and so, the order cannot be sustained.” 5.1. It is also contended that the dictionary meaning of the word detrimental reads as follows:- Page 4 of 10 // 5 // “damaging, deleterious, harmful, injurious, prejudicial” 5.2. It is accordingly contended that since without having any material, while passing the impugned order dtd.31.12.2021 under Annexure-2, an observation was made that further continuance of the Petitioner is detrimental to the interest of the Organization i.e. OPTCL, the said observation being in the nature of a stigma requires interference of this Court. 5.3. It is also contended that in terms of the order passed by this Court though an affidavit has been filed by the State enclosing therein the relevant file with regard to appointment of the Petitioner as Director, Finance in OPTCL on 21.02.2023 and his termination vide the impugned order dt.31.12.2021 under Annexure-2, but in the said file no material is available against the Petitioner, to take a view that further continuance of the Petitioner is detrimental to the interest of OPTCL. 6. Mr. B. Nayak, learned Addl. Govt. Advocate on the other hand contended that since after appointment of the Petitioner as Director, Finance in OPTCL vide order dtd.28.05.2020 under Annexure-1, it was found that Petitioner’s further continuance is not in the better Page 5 of 10 // 6 // interest of the OPTCL, the impugned order dtd.31.12.2021 under Annexure-2 was issued. Even though the impugned order was stayed by this Court vide order dtd.04.01.2022, but in the meantime while continuing in terms of order under Annexure-1, Petitioner was allowed to resign from his post. 6.1. It is also contended that pursuant to the order dtd.16.02.2023, an affidavit has already been filed by Opp. Party No. 1 enclosing therein the relevant file relating to appointment and termination of the Petitioner. Since while dealing with the issue, it was found that further continuance of the Petitioner is not in the interest of OPTCL, the impugned order under Annexure-2 was passed with the observation that Petitioner’s further continuance is detrimental to the interest of the Organization. It is accordingly contended that such an observation has been rightly made and it requires no interference. 7. Similar contention was also raised by Mr. B.K. Dash, learned counsel appearing for the OPTCL. In addition to that and with regard to the observation made in the impugned order that further continuance of the Petitioner is detrimental to the interest of OPTCL, learned counsel appearing for the OPTCL relied on a decision of the Hon’ble Apex Court in the case of Punjab State Power Corporation Page 6 of 10 // 7 // Ltd. & Ors. Vs. Hari Kishan Verma reported in (2015) 13 SCC 156. Hon’ble Apex Court in Para 19 to 21 of the said Judgment has held as follows:- “19. In the present case, on an anxious and careful scrutiny of the words used in the order, there can be no quarrel over the fact that previous misconduct and the punishment visited to the respondent have been stated. The decision-making process of the Committee has been reflected in the order. It includes the disciplinary proceedings, personal records and the reputation. The reputation here has insegregable nexus, as is seen, with his ACRs and poor performance. The use of words like “inefficiency” and “not fit” cannot be put on a pedestal to confer on them such status so that they convey the meaning of “stigmatic”. It cannot be remotely so. 20. On the contrary, the order in R.K. Panjetha [(2002) 10 SCC 590] was ex facie stigmatic. It is worth noting that the learned Single Judge has drawn a parity solely on the ground that the relationship between an employer and in employee is common and the employer, PSEB has passed the order on two different occasions in respect of two different employees. Their status is absolutely irrelevant for the purpose of determination of the controversy in question. It is the nature of the order which will judge its character, namely, simpliciter or stigmatic. 21. The learned counsel for the respondent has canvassed with immense enthusiasm that one of the punishment has been set aside. Be that as it may, in such a case it will not make any difference. It cannot be said there is non-application of mind. The entire record has been scrutinised, valid punishments have been taken into consideration and the ACRs have been critically Page 7 of 10 // 8 // scrutinised. The order, according to us, dwells totally in a different realm than the order passed in R.K. Panjetha case [(2002) 10 SCC 590]. The distinction is obvious and the same has been obviously missed by the High Court, which makes its order fallacious.” 7.1. Placing reliance on the aforesaid submission, it is contended that taking into account the performance and conduct of the Petitioner after his appointment as Director (Finance) and while reviewing the same, since it was found that, Petitioner is not efficient to discharge his duty, the order under Annexure-2 was issued by the Govt.. It is contended that Petitioner could not discharge his duty efficiently and because of such inefficiency on his part, while issuing the order under Annexure- 2, it was observed that Petitioner’s further continuance is detrimental to the interest of the Organization. It is accordingly contended that such an observation has been rightly made. 8. Having heard learned counsel appearing for the Parties and considering the submissions made, it is found that Petitioner vide office order dtd.28.05.2020 under Annexure-1 so issued by Opp. Party No. 1, was appointed as Director (Finance) to the Board of Directors in OPTCL for a period of 5 years or till he attains the age of superannuation i.e. 60 years, whichever is earlier. Page 8 of 10 // 9 // 8.1. After such order of appointment issued under Annexure-1, it is found that, vide the impugned order dtd.21.12.2021 under Annexure- 2, Petitioner was terminated with immediate effect and such an order of termination was issued on the ground that further continuance of the Petitioner is detrimental to the interest of the Organization. On the face of such order passed under Annexure-2 and while continuing under OPTCL by virtue of the interim order, Petitioner was allowed to resign from his service. Therefore, it is the view of this Court that challenge made to the order of termination has become academic. 8.2. However, with regard to the challenge made to the observation in the impugned order that further continuance of the Petitioner is detrimental to the interest of the Organization, this Court finds no materials being placed either by the State or by OPTCL, inter alia permitting to take the view that further continuance of the Petitioner is detrimental to the interest of the Organization. 8.3. Since there is no material placed before this Court either by the State or by the Corporation showing that Petitioner’s further continuance is detrimental to the interest of the Organization, this Court in absence of any such material, is of the view that such an observation could not have been made by Opp. Party No. 1 while Page 9 of 10 // 10 // issuing the order dtd.31.12.2021. Placing reliance on the decision in the case of Jagdish Mitter as cited (supra) and the dictionary meaning of the word detrimental, this Court is also of the view that such an observation is in the nature of a stigma on the career of the Petitioner. 8.4. Therefore, this Court is inclined to quash the observation that further continuance of the Petitioner is detrimental to the interest of the Organization so taken in the impugned order dt.31.12.2021 under
Decision
Annexure-2. While quashing the observation, the writ petition stands disposed of. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 4th August, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Aug-2025 10:50:21 Page 10 of 10