The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6257 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. ……………… Pramod Kumar Nayak …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. D.K. Panda & A.K. Mishra. For Opp. Parties : M/s. Mr. S.K. Jee, Addl. Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:09.12.2024 and Date of Judgment:09.12.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia challenging the order of disengagement 01.02.2021 so passed by Opposite Party No.4 under Annexure-7 and consequential order passed by Opposite Party No.6 on 02.02.2021 under Annexure-8. // 2 // 4. It is contended that Petitioner faced the selection process for engagement as Sikshya Sahayak being a disabled candidate. 4.1. It is contended that at the time of making his application he produced the disability certificate issued by the District Medical Board, Ganjam under Annexure-3, wherein his disability was found at 41%.
Legal Reasoning
4.2. It is contended that after being found eligible to get the benefit of selection, Petitioner was referred for fresh examination of his disability to S.C.B, Medical College & Hospital, Cuttack and vide Annexure-4 letter dtd.01.02.2013, disability of the Petitioner was found at 45 %. 4.3. It is contended that after submission of a fresh disability report by the authority of SCB, Medical College & Hospital, Cuttack under Annexure-4, Petitioner was appointed as Sikshya Sahayak vide order dtd.12.11.2012 so signed on 12.03.2013. 4.4. It is contended that after such engagement of the Petitioner, Petitioner was regularized as a Junior Teacher on completion of 3 years of service vide order dtd.28.04.2017 under Annexure-6. However, it is contended that while so continuing without any prior notice and without giving any opportunity of hearing, Petitioner was straight way disengaged from his services Page 2 of 7 // 3 // w.e.f. 20.12.2019 vide order dtd.01.02.2021 under Annexure-7 and consequential order issued on 02.02.2021 under Annexure-8 for her submitting fake disability certificate. 4.5. Learned counsel for the Petitioner contended that since on being duly selected and on being referred, Petitioner’s disability was found at 45% by the authority of SCB, Medical College & Hospital, Cuttack so available under Annexure-4 and after receipt of the said report, Petitioner was issued with the order of appointment so signed by the District Project Coordinator, SSA, Ganjam on 12.03.2013 vide Annexure-5, there was no occasion to disengage him basing on any further report submitted by the C.D.M.O & Public Health Officer, Ganjam as reflected in Annexure-7. 4.6. It is also contended that Petitioner at no point of time after his appointment and subsequent regularization as a Junior Teacher, was ever referred for fresh verification of his disability before the CDMO, Ganjam. It is also contended that the impugned order of disengagement has been passed in complete violation of the principle of natural justice as prior to such disengagement, Petitioner was never noticed and show caused. It is also contended that order of disengagement, disengaging the Petitioner from a retrospective date is not sustainable in the eye of law. Page 3 of 7 // 4 // 4.7. With regard to non-compliance of the principle of natural justice, Petitioner relied on the decision in the case of State Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1. 4.8. Hon’ble Apex Court in the case of Rajesh Agarwal in Para- 41 & 42 has held as follows:- “41. In State of Orissa v. Binapani Dei [State of Orissa v. Binapani Dei, AIR 1967 SC 1269], a two- Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to that an be heard. This Court administrative civil action which consequences must be made consistent with the rules further held involves of natural justice : (AIR p. 1271, para 9) “9. … The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” Page 4 of 7 // 5 // 42. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , a seven- Judge Bench of this Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.” 4.9. It is accordingly contended that the ground on which the Petitioner was disengaged from his services vide order under Annexure-7 is not sustainable in the eye of law and so also the consequential order issued under Annexure-8. 5. Even though notice of the Writ Petition has been issued since 24.02.2021, but no counter affidavit has been filed as yet. However, it is contended that since subsequent to engagement of the Petitioner as Sikshya Sahayak and his absorption as a Junior Teacher vide order dtd.28.04.2017 under Annexure-6, on fresh verification of his disability, it is found that the disability certificate produced by the Petitioner is a fake one, Petitioner was disengaged from his services vide order issued under Annexure-7 and consequential order issued under Annexure-8. It is contended that since Petitioner got the benefit of appointment by submitting a fake disability certificate, he has been rightly terminated from his service, which requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court Page 5 of 7 // 6 // finds that Petitioner after being found eligible to get the benefit of engagement as Sikshya Sahayak as a disabled candidate, he was referred for verification of his disability at SCB, Medical College & Hospital, Cuttack. As found from Annexure-4, the report forwarded to the District Project Officer, SSA, Ganjam, Petitioner’s disability was found at 45%. After receipt of the said report so communicated on 01.02.2013, the order of engagement dtd.12.11.2012 under Annexure-5, was signed by the competent authority on 12.03.2013 and accordingly Petitioner was engaged as Sikshya Sahayak. 6.1. As found further, vide order dtd.24.08.2017 under Annexure-6, on completion of three years of continuous engagement, Petitioner was absorbed as a Junior Teacher w.e.f. 18.03.2016 taking into account his initial date of engagement as 18.03.2013. But thereafter basing on the report submitted by the CDMO, Ganajm so submitted vide letter dtd.19.12.2019, Petitioner was disengaged from his services w.e.f. 20.12.2019 vide order dtd.01.02.2021 under Annexure-7 of Opposite Party No.4 and consequential order dtd.02.02.2021 of Opposite Party No.6 under Annexure-8. 6.2. It is found that Petitioner was so disengaged basing on the report submitted by the C.D.M.O, Ganjam on dtd.19.12.2019. Page 6 of 7 // 7 // 6.3. Since the stand taken by the Petitioner that the Petitioner at no point of time after his engagement vide order under Annexure-5 was ever referred for fresh verification of his disability by C.D.MO, Ganjam and no show-cause was issued prior to such order of disengagement, has been controverted with filing of any counter affidavit, this Court in absence of the same is inclined to quash order dtd.01.02.2021 so passed by Opposite Party No.4 under Annexure-7 and consequential order passed by Opposite Party No.6 on 02.02.2021 under Annexure-8 on the ground of non-compliance of principle of natural justice, placing reliance on the decision of the Apex Court as cited (supra). While quashing both the orders, this Court directs Opposite Party No.4 to reengage the Petitioner with passing of an appropriate order within a period of two (2) weeks from the date of receipt of this order. The break period of service be regularized in accordance with law.
Decision
7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 9th of December, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Dec-2024 11:28:13 Page 7 of 7