The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No. 21988 of 2014 Mamata Mani Biswal @ Mamata Rani Biswal …. Petitioner Mr. Sadasiv Patra, Advocate -Versus - State of Orissa and others …. Opposite Parties Mr. B. Mohanty, Standing Counsel (S& ME) Department CORAM: JUSTICE SASHIKANTA MISHRA ORDER_ 20.01.2023 Order No. 7. 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the petitioner and learned counsel for the State. 3. The petitioner was engaged as a Sikshya Sahayak in Bankeswarpur Primary School, Anantapur, Soro district Balasore by order dated 22.03.2011 issued by the Collector-cum-CEO, Zilla Parishad, Balasore. She was subsequently posted at Kanapur Primary School (Nandigan) with effect from 29.03.2011. Again by order dated 30.05.2011, she was transferred to Patimunda Primary School. While the matter stood thus, by office order dated 25.09.2014 of the Collector-cum-CEO, Zilla Parishad, Balasore, a list of 52 Sikshya Sahayaks was prepared who were considered eligible for being appointed as Junior Teacher wherein, the name of the petitioner found place at serial no.23. The petitioner was thereafter deputed to work at Bankeswarpur Primary School from 10.09.2014 till 17.09.2014 as per order dated 09.09.2014 issued by Page 1 of 6 the Block Education Officer, Bahanaga. On 17.09.2014 a girl student of the said Patimunda Primary School accidentally came in contact with a live electric wire and was electrocuted and died as a
Legal Reasoning
result. The father of the deceased girl lodged an FIR before the Soro. P.S. leading to P.S. Case No. 358 of 2014 under Sections 304/34 of the IPC read with Section 135 of the Electricity Act. A show cause was issued to the petitioner on 30.09.2014 and again on 17.10.2014 asking her to explain as to why disciplinary action shall not be taken against her for gross negligence of duty. The petitioner was on leave due to her ill health from 18.09.2014 till 17.10.2014, which was extended till 31.10.2014 by the authorities. The show cause notices as referred above, enclosed as Annexures-6 and 7 respectively, were served upon her on 20.10.2014. In the show cause notices, she was granted three days time to submit her explanation. However, without waiting for expiry of the stipulated period of three days, the District Project Coordinator, acting on the order of the Collector issued order dated 21.10.2014 disengaging the petitioner from the post of Sikshya Sahayak with immediate effect. The said order which is enclosed as Annexure-12 is impugned in the present writ petition. 4. On the above facts, the petitioner has approached this Court seeking the following relief:- “It is therefore humbly prayed that this Hon’ble Court may graciously be pleased to admit the writ petition, issue notices to the opposite parties to file show cause as to why this application shall not be allowed and if the opp. parties file no show cause or file insufficient cause, this Hon’ble Court may be pleased to issue a writ/wits in the nature of a writ of certiorari quashing Page 2 of 6 the order dated 21.10.2014 under Annexure-12 after declaring the same as illegal; and may further may be pleased to issue a writ/writs in the nature of a writ of mandamus directing the Opp. Parties to reinstate the petitioner to the concerned post/service with all service as well as financial benefits. And/or may pass any other order/orders as this Hon’ble Court may deem fit and proper; And for this act of kindness the petitioner as in duty bound shall every pray.” 5. Counter affidavit has been filed by the Opposite party No. 4 justifying the issuance of the impugned order on the ground that the petitioner was grossly negligent and had a big role to play in the death of the deceased student. 6. The petitioner has filed a rejoinder to the counter inter alia, stating that in the meantime, the criminal case being investigated, final report was submitted as mistake of fact on 12.10.2017. Thereafter, the Special Judge (E), Balasore in Special Case No. 97(E) of 2014 also issued notice to the informant inviting objection but no such objection was filed and therefore, by order dated 04.05.2018, the final report was accepted and the proceeding was closed.
Legal Reasoning
7. Heard Mr. Sadasiv Patra, learned counsel for the petitioner and Mr. Biplab Mohanty, learned Standing Counsel for the School and Mass Education Department. 8. Assailing the impugned order, Mr. Patra contends that firstly, the impugned order is entirely illegal being contrary to the principles of natural justice inasmuch as the same was passed without waiting for the expiry of the period granted to the petitioner to submit her show cause. Secondly, the impugned order mentions Page 3 of 6 that the petitioner did not submit any reply to the show cause notices, which is factually incorrect since she did submit her reply to the show cause notices on 22.10.2014. Thirdly, the criminal case, the basis of which was the main allegation against the petition having been closed with submission of the final report as mistake of fact, the entire action taken by the authorities is rendered illegal and unwarranted. 9. Per contra, Mr. Biplab Mohanty argues that the petitioner was admittedly residing in the school premises and as per the preliminary fact finding enquiry, she was found to have played a role in hooking of the electricity line which ultimately led to the mishap resulting in death of the child. He further submits that notwithstanding the result of the criminal case, it is open to the authorities to proceed against her departmentally. 10. After hearing learned counsel for the parties and on perusal of the case record, this Court finds that the petitioner was called upon to submit explanation vide show cause notice dated 30.09.2014. The said notice appears to have been delivered to the petitioner on 20.10.2014 as per copy of the postal endorsement
Decision
enclosed to the writ petition as Annexure-10 series. The petitioner was again called upon to submit her explanation vide show cause notice dated 17.10.2014. The said notice also appears to have been served upon her on 20.10.2014 as per copy enclosed under Annexure-10 series. The petitioner appears to have submitted her explanation to the show cause on 22.10.2014. Be it noted here that in both the show cause notices, the petitioner was allowed three days time to submit her explanation. As such, the petitioner must be Page 4 of 6 held to have submitted her explanation in time, i.e. 22.10.2014. A perusal of the impugned order, enclosed as annexure-12 reveals that according to the Collector, the petitioner did not submit reply to the show cause within the stipulated period, which indicates her involvement in the narrated case and shows her disobedience to the order of the higher authority. 11. Law is well settled that the principles of natural justice are required to be followed by every quasi judicial authority, more so when the person concerned is intended to be visited with any extreme measure like disengagement of service. The rule of audi alteram partem is well known to be re-emphasized here. Reference may be had to the decision of the Apex Court in the case of Siemens Engg. Mfg. Co. of India Ltd. v. Union of India, AIR 1976 SC 1785. Evidently, the impugned order was passed one day prior to the expiry of the stipulated period for submission of explanation by the petitioner. In such view of the matter, the impugned order cannot be sustained in the eye of law. 12. Another factor also needs to be considered, i.e. submission of final report by the Investigating Officer as mistake of fact. In fact the criminal proceeding itself has closed because no objection was filed to the submission of final report. Therefore, in so far as the criminal proceeding is concerned, the matter has attained finality. 13. For the foregoing reasons therefore, this Court is of the considered view that the concerned authority should revisit the issue by taking into account the explanation submitted by the petitioner as also the further development relating to closure of the criminal case. The impugned order under Annexure-12 is hereby set Page 5 of 6 aside. The matter is remitted to the Collector (Opposite Party No.3) to take a decision in the matter afresh in terms of the observations made hereinbefore but only after granting opportunity of personal hearing to the petitioner. The whole exercise should be concluded within a period of three weeks from the date of communication of this order or on production of certified copy thereof by the petitioner. Till such time, no coercive action shall be taken against the petitioner. 14. The writ petition is disposed of accordingly. (Sashikanta Mishra) Judge B.C. Tudu Page 6 of 6