The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 10167 of 2014 (An application under Article 226 & 227 of the Constitution of India) --------------- Anupama Patra ...… Petitioner -Versus- State of Odisha and others .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner For Opp. Parties : Mr. S.N.Das : Mr.R.Roy, Advocate. Additional Standing Counsel & Mr. M.K.Mohapatra (Opposite party No. 3) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 29th April, 2024 . The petitioner has approached this Court with the following prayer; is, therefore, humbly prayed “It that your lordships may be pleased to issue a Rule NISI calling upon the O.Ps to show cause as to why the impugned order of disengagement under Anx.9 shall not be quashed or set aside and if no show cause is filed or insufficient show cause is filed, then the Rule NISI be made absolute by quashing the impugned order of disengagement of the petitioner dt. 14.05.2014 at Annx.9 and the petitioner be allowed to continue in her post as Page 1 of 11 Gram Rozgar Sevak under the O.Ps And pass any other order/orders as your Lordships may deem fit and proper in the ends of justice, equity and good conscience. And for which act of kindness, the petitioner shall, as in duty bound, ever pray.” 2. The case of the petitioner, briefly stated, is that she was engaged as Gram Rozgar Sevak of Jayantagiri Gram Panchayat as per appointment order issued on 22.02.2008 by the Sarpanch of said Gram Panchayat. She executed an agreement on 22.02.2008, as required by the order of appointment. The agreement was renewed on 24.02.2014 for a further period of one year. In the meantime and while working as such, the petitioner was served with an inquiry report, dated 17.12.2013, of the ombudsman, MGNREGA, Koraput. Such inquiry was conducted with regard to irregularities in the implementation of MGNREGA in the construction of playground at Minaguda in the aforementioned Gram Panchayat. After conducting a field inquiry, the ombudsman passed the following award: “Accordingly it is recommended that: 1. It was found during the field inquiry spot verification and hearing of the cases that without work Rs.25,739.30/- has been transferred to the A/Cs of the Job Card Holders that violates the MGNREGA. The panchayat Executive Officer the Gram Rozagar Sevak of Jayantagiri GP and the respective GPTA/JE were found to be involved directly on this misappropriation and I do Page 2 of 11 strongly recommend to penalise these persons, as per the Act & IPC.” Pursuant to the inquiry report of the Ombudsman, the petitioner was asked to show cause by the Block Development Officer, Jeypore vide letter dated 04.01.2014. The Panchayat Executive Officer of Jayantagiri was also asked to show cause and submit compliance report by the very same letter. The petitioner submitted her reply on 08.01.2014 specifically stating that as per the verbal instructions of the Gram Panchayat Technical Assistant(GPTA) Jayantagiri/Junior Engineer, the Muster Role in question had been generated online pursuant to the sanction order in respect of 30 numbers of job card holders of Minaguda and Charagam villages. The payment however was not made in favour of the job card holders and was held up in the post office. As such, according to the petitioner, she had not misappropriated the amount of Rs. 25,739/-. A further show cause notice was issued on 13.02.2014 to the petitioner by the Project Director, DRDA also enclosing the field inquiry report of the Ombudsman. Pursuant to such notice, the petitioner submitted her explanation by letter dated 03.03.2014 stating more or less the same thing as in Page 3 of 11 her previous explanation. By order dated 14.05.2014, copy enclosed as Annexure-9 and which is impugned in the present writ application, the Collector-cum-CEO, Zilla Parishad, Koraput, after purportedly considering the show cause reply submitted by the petitioner and after personally hearing her, held that the reply submitted by her was not satisfactory. As such, she was disengaged from the post of GRS with effect from 14.05.2014. Feeling aggrieved, the petitioner has approached this Court in the present writ application. Inter alia taking the ground that, as per the field inquiry report submitted by the Ombudsman, the PEO and GPTA were also responsible for the irregularities in the matter of payment of wages to the job card holders but she had been singled out for punishment. 3. Counter affidavit has been filed on behalf of Opposite Party Nos. 1 and 2 stating that the petitioner was found to be involved in the irregularities committed in the MGNREGA work relating to construction of playground at Muniguda. The field inquiry report of Ombudsman clearly shows the complicity of the petitioner. It has been further stated that the petitioner was not the holder of a civil post and therefore, Page 4 of 11 the procedure to be followed in the case of misconduct committed by Government employees is not required to be followed her case. In the instant case, the principles of natural justice were followed by giving opportunity to the petitioner through show cause notices issued twice. Her show cause reply was found to be not satisfactory for which the Collector, being the competent authority, rightly decided to disengage the petitioner from service.
Legal Reasoning
4. Heard Mr. R.Roy, learned counsel for the petitioner and Mr. S.N.Das, learned ASC for the State and Mr. M.K.Mohapatra, learned counsel appearing for the Sarpanch (Opposite Party No.3). 5. Mr. Roy would argue that the field inquiry report of the Ombudsman, copy of which has been enclosed as Annexure- 4, clearly reveals that the Panchayat Executive Officer, the Gram Rojgar Sevak of Jayantagiri, GP and the GPTA/JE were found to be involved directly in the matter of misappropriation and therefore, recommended the authorities to penalise them. As such, the petitioner alone could not have been selected for punishment. Mr. Roy has relied upon the decision of the Supreme Court in the case of Page 5 of 11 Man Singh vrs. State of Haryana & Ors1 wherein it was held that there cannot be any discrimination by the State as between employees in the matter of imposing liability. Mr. Roy also relied upon the judgment of the Supreme Court in the case of Rajendra Yadav vrs. State of Madhaya Pradesh & Ors.2 In this context. Mr. Roy further argues that even otherwise, there are materials to show that the amount in question was never misappropriated, but detained in the post which the authorities have not looked into. 6. Mr. Das on the other hand, while opposing the contentions raised, would argue that the award of the Ombudsman is in the form of a recommendation only and not binding on the authority concerned. Further, the petitioner was called upon to explain not once but twice, which she failed to do satisfactorily. That apart, by citing the ground of not taking of action against the other delinquents, the petitioner cannot claim negative equality. 6. Mr. Mohapatra, learned counsel appearing for the Opposite Party No.3 would submit that the petitioner being the Gram Rojgar Sevak was responsible for creating the 1 (2008)12 SCC 331 2 (2013) 3 SCC 73 Page 6 of 11 muster rolls in question and therefore, was rightly held responsible for the irregularities. He further argues that the Collector, being the competent authority has taken a decision after considering the relevant facts and circumstances, which is binding on all concerned. 7. Be it noted that by order dated 28.05.2014, this Court directed that any action taken pursuant to the impugned order under Annexure-9 shall be subject to the result of the writ application. 8. There is no dispute that the inquiry report of the Ombudsman, MGNREGA clearly mentions that not only the petitioner as Gram Rojgar Sevak but also the PEO and the respective JPTA/Junior Engineer were involved directly in the misappropriation. Accordingly, the Ombudsman had ‘strongly’ recommended to penalise these persons as per the Act and IPC. Nothing has been stated on behalf of the State Opposite Parties as to why on the face of such report of the Ombudsman, the petitioner alone was singled out for action. In the case of Man Singh (supra) the Supreme Court reiterating the principle of equality enshrined under Article 14 of the Constitution of India observed as follows: Page 7 of 11 “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of "fair play" and reasonableness. is that the same, namely, 21. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellate authority exonerated HC Vija Pal mainly on the ground of his acquittal by the criminal court in the excise case and after exoneration, he has been promoted to the higher post, where the appeal and the revision filed by the appellant against the order punishment have been rejected on technical ground that he has not exercise proper and effective control over HC Vijay Pal at the time of commission the excise offence by him in the State of Andhra Pradesh. The order of disciplinary authority would reveal that for the last about three decades appellant has served in the Police Department of Haryana in different capacities with unblemished record of service.” (Emphasis added) Similar view was taken in the case of Rajendra Yadav (supra) by observing as follows: “9. The doctrine of equality applies to all who are equally placed, even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be involvement of co- disproportionate while comparing the delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences. Page 8 of 11 10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan† wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. 11. In Shaileshkumar Harshadbhai Shah case the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit. imposing a comparatively
Decision
12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.” (Emphasis added) Thus, the legal position as it stands is clear to the effect that no person can be discriminated, particularly by the State, in its actions. If several persons were found to be jointly responsible for the irregularities it is only fair that all of them should face the consequences equally. By singling out only the petitioner, it would appear as if the State has allowed the other persons to go scot free even though as per the Page 9 of 11 Ombudsman’s report, they cannot be held to be definitely innocent. That apart, reading of the impugned order does not reveal as to why the show cause reply submitted by the petitioner was not found satisfactory. It is trite law that the order passed by a quasi judicial authority is required to be backed by sufficient reason as otherwise, it becomes vulnerable. This Court also notes that personal hearing was granted to the petitioner but then what transpired out of the said hearing has not been indicated in the impugned order in the least. 9. Thus, from a conspectus of the discussion made on the facts and law hereinbefore, this Court is left with no doubt that the impugned order suffers from the vice of absence of reasons and the action of disengagement of services of the petitioner also strikes at the principle of equality enshrined under Article 14 of the Constitution of India. The impugned order is therefore, rendered unsustainable in the eye of law. 10. In the result, the writ application is allowed. The impugned order under Annexure-9 is hereby quashed. The Opposite Party authorities are directed to reinstate the petitioner as GRS of Jayantagiri Gram Panchayat or any Page 10 of 11 other Gram Panchayat of Koraput district as early as possible preferably within a period of two months from the date of production of certified copy of this order by the petitioner. It shall be open to the concerned authorities to conduct further inquiry in the matter against all persons responsible as per the inquiry as per the report of the Ombudsman and proceed in accordance with law. 11. The writ application is disposed of accordingly. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 29th April, 2024/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHc,Cuttack Date: 03-May-2024 12:26:58 Page 11 of 11