The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2948 OF 2020 (An application under Articles 226 and 227 of the Constitution of India) Kailash Chandra Behera … Petitioner -versus- State of Odisha and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.K.C.Sahu, Advocate -versus- For Opposite Parties : Mr.Subhasis Pattnaik, Addl. Govt. Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 25.7.2023. Sashikanta Mishra,J. The Petitioner was initially engaged as Sikshya Sahayak, on 20th November, 2012 after undergoing a recruitment process conducted by the Page 1 of 10 Zilla Parishad, Puri. On completion of three years of interrupted service as such, he became a Junior Teacher w.e.f. 14th January, 2016 pursuant to Government Resolution as also the minutes of proceeding held on 24th August, 2018 under the Chairmanship of Collector-cum-CEO, Zilla Parishad, Puri. On 7th March, 2019 the Government in School and Mass Education Department issued an order for regularization of Junior Teachers, who had completed uninterrupted contractual service for 6 years as Sikshya Sahayak and Junior Teacher. Such regularization was to be as a Primary School Teacher from the date of completion of six years of service. Accordingly, the Block Education Officer (BEO), Astarang vide letter dated 10th September, 2019 submitted proposal to the District Project Co-ordinator RTE-SSA, Puri (Opposite Party No.5) for regularization of six Junior Teachers including the name of the Petitioner as regular (Asst. Teacher) of Level-V cadre. While such proposal was pending, the Petitioner was arrested by Astarang Police on 6th October, 2019 in W.P.(C) No. 2948 of 2020 Page 2 of 10 connection with Astarang P.S. Case No.99 dated 6th October, 2019 registered under Sections 341/323/324/294/307/302/34 of I.P.C. He was also remanded to jail custody from 6th October, 2019 to 4th December, 2019. While he was in jail, the Opposite Party No.5 issued a show cause notice to him on the ground of his purported unauthorized absence asking him to reply within 30 days. The Petitioner submitted his reply to such notice on 17th December, 2019 (copy enclosed as Annexure-7) intimating the fact of his arrest in the aforementioned police case. Without any further notice or opportunity of hearing the Opposite Party No.5 by order dated 24th December, 2019, (copy enclosed as Annexure-8) disengaged the Petitioner from the post of Junior Teacher with immediate effect referring to the terms and conditions prescribed by the Government in School and Mass Education Department in the order dated 5th January, 2019 specifically to Point No.10.5 thereof. Being aggrieved, the Petitioner has approached this Court seeking the following relief; W.P.(C) No. 2948 of 2020 Page 3 of 10 the “The Hon’ble Court be graciously pleased to admit and allow this writ petition, to of quash disengagement dtd.24.12.2019 under Annexure-8 by further directing the opp. parties to reinstate the Petitioner into service with all consequential service and financial benefits within a time bound period for the interest of justice.” impugned
Decision
order 2. A counter affidavit has been filed by Block Education Officer (BEO), Astarang (Opposite Party No.6) rebutting the averments made in the Writ Petition. It is stated that the Petitioner was named in the F.I.R. and his vehicle was involved in the alleged occurrence. He was arrested on 8th October, 2019 and was remanded to jail custody on the same day as per order passed by learned J.M.F.C., Nimapara. It is admitted that the concerned I.I.C., Astarang informed the Opposite Party No.6 about the involvement of the Petitioner and of his arrest in the Police case. Therefore, it was held a violation of condition under Clause 10.5 of the Resolution dated 5th January, 2019 and as such, he was disengaged from service after giving him an opportunity to show cause. W.P.(C) No. 2948 of 2020 Page 4 of 10 3. Heard Mr. K.C. Sahu, learned counsel for the Petitioner and Mr. Subhasis Pattnaik, learned Addl. Government Advocate for the State. 4. Assailing the impugned order, Mr. K.C. Sahu would argue that firstly, mere involvement in a criminal case does not amount to violation of the terms and conditions of the engagement of the Petitioner and secondly, the Petitioner’s so-called unauthorized absence from duties was because of his detention in the criminal case and therefore, not willful or deliberate. Though he was asked to show cause and he submitted a reply stating all relevant facts, the same was never considered by the authority. 5. Per contra, Mr. Subhasis Patnaik has argued that as per terms and conditions of engagement of the Petitioner, involvement in a criminal case amounts to misconduct. Further, the Petitioner was granted opportunity to show cause. Therefore, the authority must be deeded to have complied with the principles of W.P.(C) No. 2948 of 2020 Page 5 of 10 natural justice before passing the impugned order of disengagement of Petitioner. 6. The facts of the case are undisputed inasmuch as the Petitioner was appointed as Sikshya Sahayak on contractual basis and also became a Junior Teacher w.e.f. 14th January, 2016. It is also not disputed that a proposal was sent by the Opposite Party No.6 for regularization of six Junior Teachers including the Petitioner. Unfortunately, the Petitioner came to be involved in a criminal case and was taken to custody on 8th October, 2019 till he was released on bail on 6th December, 2019. Being in custody, he was not in a position to inform his superior authorities regarding his absence from duties. This is perfectly understandable given the peculiar facts and circumstances. The question is, whether mere involvement in a criminal case can be treated as misconduct in employment. This Court in the case of Rajib Lochan Biswal vs. State of Odisha & others; reported in 2022 (2) OLR 772, held that mere W.P.(C) No. 2948 of 2020 Page 6 of 10 involvement in a criminal case cannot be treated as proof of guilt. Similar view was taken by this Court in the case of Abhimanyu Mallick vs. State of Odisha and others (W.P.(C) No.17307/2020 decided on 25th July, 2022). Even otherwise, it is not legally conscionable that on a mere allegation an employee would be visited with punitive action for misconduct. This Court is therefore, not inclined to accept the contention advanced on behalf of the State that merely because the Petitioner was involved in a criminal case, does not automatically make him guilty of the said offence until and unless the same is proved in the competent Court of law. To such extent therefore, it would be wholly unjustified to disengage an employee from service merely on such allegation. 7. Even otherwise, this Court finds that by letter dated 16th November, 2019 (copy of which is enclosed as Annexure-6), the District Project Co-ordinator asked the Petitioner to show cause as to why he shall not be disengaged from service for ‘such long unauthorized W.P.(C) No. 2948 of 2020 Page 7 of 10 absence in his duty from 15th October, 2019 till date for the involvement in criminal affairs’. It further appears that the Petitioner submitted his reply on 17th December, 2019 highlighting the circumstances under which he was forced to remain absent from duties. Submission of such reply by the Petitioner has not been specifically refuted/denied in the counter affidavit filed by Opposite Party No.6. The impugned order however, makes absolutely no mention of the reply submitted by the Petitioner to the show cause notice referred to above. Thus, the issuance of show cause notice towards purported compliance of the principles of natural justice is rendered an empty formality. The terms and conditions prescribed by the Government in School and Mass Education Department vide Resolution dtd.5th November, 2019 clearly provide under Clause-10.5. “xxx xxx xxx The Junior Teacher (Contractual) can be disengaged from the service with a prior notice of 30 days, if she/he violate the conditions of the contract on the basis of adverse report of the Block Education W.P.(C) No. 2948 of 2020 Page 8 of 10 i.e. Officer absence/misconduct/involvement criminal case.” on unauthorized in Even going by the requirement of Claue-10.5, the action of the opposite party-authorities in disengaging the Petitioner from service without considering the explanation submitted by him is entirely arbitrary, unjustified and untenable in the eye of law. 8. For the foregoing reasons therefore, the impugned order under Annexure-8 cannot be sustained. Resultantly, the Writ Petition is allowed. The impugned order under Annexure-8 is quashed. The Petitioner is directed to be reinstated in service by Opposite Party- authorities forthwith with all service benefits within two months. 9. It is made clear that the Petitioner shall not be entitled to any financial benefits for the period during which he did not render any service but such period shall count towards his service only notionally. W.P.(C) No. 2948 of 2020 Page 9 of 10 10. The Opposite Party-authorities shall act upon a certified copy of this order to be produced by the Petitioner. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 10:52:54 W.P.(C) No. 2948 of 2020 Page 10 of 10