The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25252 of 2013 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Urmila Sahu … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.A.K.Mohanty, Advocate. -versus- For Opposite Parties : Mr. S.N.Patanaik, A.G.A --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA 15.07.2024. JUDGMENT W.P.(C) No.25252 of 2013 Page 1 of 10 Sashikanta Mishra,J. The Petitioner has filed this Writ Petition with the following prayer; “Under the above circumstances it is humbly prayed that this Hon’ble Court may graciously be pleased to issue writ in appropriate nature to quash the impugned order dated 19.10.2013 of the Collector and District Magistrate, Kalahandi and the consequential orders of disengagement dated 5.11.2013 & 8.11.2013 and notice dated 8.11.2013 for a fresh selection issued by the MO, CHC, Junagarh and taken thereon and may further direct the respondents to allow the petitioner to continue as Asha Worker of Dundelmal sub center under CHC Junagarh in the forthwith or any other district of Kalahandi order/orders as would be deemed fit and proper be issued and for which act of kindness the petitioner shall as in duty bound shall ever pray.” the consequential action 2. The facts of the case lie in a narrow compass. The Petitioner was engaged as Asha worker under the C.D.M.O., Kalahandi in June, 2005. On 9.6.2012 a complaint was submitted by one Gouranga Majhi alleging that his wife Jira Majhi had delivered a still born child because of negligence and dereliction of duty by the Petitioner. After about a year, i.e. on 9.7.2013, the Petitioner was called upon by the CDMO, Kalahandi, to show cause as to why appropriate disciplinary action should not be taken against her for such negligence in duty. In her reply submitted on W.P.(C) No. 25252 of 2013 Page 2 of 10 23.8.2013, the Petitioner stated all the facts in detail specifically taking the ground that being intimated at 1.30 A.M. about the onset of labour pain of the complainant’s wife, she had tried her level best to contact the Janani Express to shift the patient to the Hospital, but without success. She therefore, suggested to hire a private vehicle for the purpose whereupon the family members of the patient demanded Rs.2,000/- from her. Since no funds had been allotted to her she could not pay them. She also brought it to the notice of the Medical Officer in writing on the next day. In the meantime instead of heeding to the advice of the Petitioner, the family of the patient got the delivery conducted through a local Kabiraj, which ultimately led to delivery of a still born girl child. Upon receipt of the reply of the Petitioner as above, the CDMO in his letter dated 26.9.2013 stated that the reply submitted by the Petitioner was not acceptable but warned her to be committed to her work as Asha worker. It was further given out that she would be under observation for one month and unless her W.P.(C) No. 25252 of 2013 Page 3 of 10 performance improved, action would be taken against her. While the matter stood thus, the Collector in his letter dated 19.10.2013, purportedly acting on the direction of the Odisha Human Rights Commission (OHRC) in OHRC Case No.2590/2012, directed the CDMO to take steps for disengagement of the Petitioner. Pursuant to such letter, the CDMO issued appropriate instructions to the Medical Officer of C.H.C., Junagarh, who, vide letter dated 8.11.2013 passed order disengaging the Petitioner. Further, a fresh advertisement for selection of new Asha worker for the same Sub-centre was issued. It is stated that the Petitioner was never a party before the OHRC nor in the inquiry conducted pursuant to its directions. As such, the impugned order of disengagement is in violation of the principles of natural justice. 3. Counter affidavit has been filed by the State- Opposite Parties (Opp.Party Nos.3 and 4) seeking to justify the action taken against the Petitioner. It is stated that the Petitioner was negligent in her duty W.P.(C) No. 25252 of 2013 Page 4 of 10 which resulted in delivery of a dead child and therefore, she was rightly disengaged. Moreover, the complainant Gouranga Majhi had brought the entire facts to the notice of the OHRC and a direction to conduct inquiry was issued to the Collector. The CDMO, Kalahandi, through the ADMO conducted the enquiry wherein the negligence in duty of the Petitioner was proved. 4. The petitioner has filed a rejoinder to the counter affidavit specifically stating that she was never instructed to appear during the inquiry and the order of disengagement was issued without following the rules of natural justice. Since her earlier explanation was accepted by keeping under observation for one month and there is no proof of any misconduct committed by her during such period, the order of disengagement is unjustified. 5.
Legal Reasoning
Heard Mr. Ajit Kumar Mohanty, learned counsel for the Petitioner, and Mr. S.N.Patanaik, learned Addl. Government Advocate for the State. W.P.(C) No. 25252 of 2013 Page 5 of 10 6. Mr. Mohanty would argue that once the Petitioner had submitted her explanation pursuant to show cause notice issued to her and the same was acted upon by asking her to be committed to her work and by keeping her under observation for one month, it was wholly unjustified to again subject her to disciplinary action. Mr.Mohanty would further argue that even otherwise the so-called enquiry conducted by the ADMO was unilateral as the Petitioner was never called upon to participate therein. That apart, the order of disengagement was passed without granting any opportunity of hearing to the Petitioner. 7. Mr. S.N.Patnaik, learned Addl. Government Advocate, on the other hand, in supporting the impugned orders, would argue that the enquiry was conducted on the direction of OHRC. The allegation of negligence by the Petitioner was clearly proved during the inquiry. Therefore, granting her any further opportunity would have been an empty formality. W.P.(C) No. 25252 of 2013 Page 6 of 10 8. It is seen that the incident in question occurred on 09.6.2012, whereas the Petitioner was called upon to show cause after more than a year, i.e. on 09.7.2013. Such delay has not been explained. Be that as it may, the Petitioner submitter her detailed explanation, which was considered by the CDMO and though held to be not satisfactory yet, was ultimately accepted by advising her to improve upon her conduct with further stipulation that she would be under observation for one month. Nothing has been placed before this Court to show that the Petitioner’s performance was not up to mark during such period of observation. Therefore, proceeding against the Petitioner in the self-same matter again obviously would not stand to reason. 9. This Court however, finds that a complaint was submitted by Gouranga Majhi before the OHRC. In fact documents relating to two separate cases dealt with by the OHRC are on record i.e., OHRC Case Nos.1916/2012 and 2596/2012. In OHRC Case W.P.(C) No. 25252 of 2013 Page 7 of 10 No.2596/2012, an order was passed on 17.10.2012 directing the Collector to cause necessary enquiry and to submit a factual report. Though it is otherwise borne out from record that the Collector did cause an enquiry through the CDMO/ADMO, but what final order was passed in the said OHRC case has not been brought on record by any of the parties. In the other case i.e., OHRC Case No.1916/2012, by order dated 27.11.2012 the OHRC, inter alia, passed the following order; “xxx xxx xxx xxx Since negligence in providing medical care is admitted in the report, the Commission hereby awards a in favour of patient compensation of Rs.40,000/- Jeeradei Majhi, wife of Gouranga Majhi. The Chief District Medical Officer, Kalahandi should also initiate necessary departmental action against the erring ASHA for her lapse after giving her an opportunity of being heard. xxx (Emphasis Added) xxx xxx.” xxx 10. This Court has perused the enquiry report enclosed to the counter filed by the Opposite Parties, which mentions the names of the members present. It has not been disputed that the Petitioner was never called upon to participate in the inquiry. The inquiry W.P.(C) No. 25252 of 2013 Page 8 of 10 was thus held unilaterally. It is also significant to note that the Petitioner was not a party before the OHRC. Basing on the unilateral enquiry report, wherein the Petitioner was held guilty of negligence in duty, the Collector straight away directed the CDMO to take steps for disengagement of the Petitioner from service. Again, no opportunity whatsoever was granted to the Petitioner before taking such a drastic step. 11. It goes without saying that the Principle of audi alteram partem, i.e, no one is to be condemned unheard is the very back-bone of the principle of natural justice. If any action taken or order passed by an authority is found to be in violation of the principles of natural justice, same cannot be sustained. From what has been narrated hereinbefore, it is evident that the impugned order of disengagement cannot in any manner be sustained in the eye of law and warrants interference. 12. For the foregoing reasons therefore, the Writ Petition is allowed. The impugned order dated W.P.(C) No. 25252 of 2013 Page 9 of 10 19.10.2013 of the Collector, Kalahandi, and the consequential orders of disengagement dated 5.11.2013 and 8.11.2013 are hereby quashed. Further, the Notice dated 8.11.2013 inviting applications for fresh selection of Asha workers is also consequentially quashed. Necessary orders be passed to allow the Petitioner to continue as Asha worker of Dundelmal Sub-Centre under CHC, Junagarh, within two months from today by reinstating her if the impugned order of disengagement has actually been acted upon in the meantime. …………….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jul-2024 11:45:17 W.P.(C) No. 25252 of 2013 Page 10 of 10