The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5191 of 2024 An application under Articles 226 & 227 of the Constitution of India Jitendriya Mohanty . Petitioner Represented By Adv. Mr.Subir Palit, Senior Advocate with Mr. Niranjan Nayak, Advocate. -versus- State of Odisha and Another . Opposite Parties Represented By Adv. Mr. Jayant Kumar Bal, AGA (For O.P. No.1) Mr. Ashok Mohanty, Senior Advocate along with Mr.G.P. Dutta, Advocate (For O.P. No.2) CORAM: THE HON’BLE MR. JUSTICE A.K.MOHAPATRA Date of hearing : 21.04.2025 | Date of Judgment : 28.07.2025 A.K. Mohapatra, J. : 1. The present Writ Petition has been filed with a prayer to quash the impugned order No.5190 dated 02.03.2024, under Annexure-6 to the Writ Petition and the impugned advertisement dated 03.03.2024, under Annexure-7 to the present Writ Petition. Along with a further prayer to direct the Opposite Parties, particularly Opposite Party No.2 to allow the Petitioner to continue as the Company Secretary in the “Odisha Police Housing & Welfare Corporation Ltd.” And extend all consequential service benefits as are due and admissible to the Petitioner. FACTS 2. A concise overview of the facts leading to the filing of the present Writ Petition is as follows; initially, the Odisha State Police Housing & Welfare Corporation Ltd. (herein referred to as “the Corporation”) floated an online advertisement dated 10.07.2023, a copy of which has been attached as Annexure-1 to the present Writ Petition, inviting prospective applications for appointment to the sanctioned regular post of Company Secretary, with 14.08.2023 fixed as the last date for applying to the said post. Following such advertisement, the Petitioner sent his application dated 03.08.2023, under Annexure-2. After the Petitioner had submitted his application, he received a letter No.l1776/OPHWC dated 24.08.2023, under Annexure-3 to the present Writ Petition, issued by the DGM (Admn.), requesting him (the Petitioner) to appear at the Corporate Office of the Odisha State Police Housing & Welfare Corporation Ltd. for the Personal Interview scheduled to be held on 01.09.2023. 3. Subsequently, the Petitioner along with some other candidates appeared for the Personal Interview before a panel comprising of the Chairman, one Independent Director and one domain expert. In the end, the Petitioner stood successful in the interview process and was offered Page 2 of 36 appointment vide Office Order No.18125/OPHWC dated 02.09.2023, annexed to the Writ Petition as Annexure-4. The appointment of the Petitoner has also been approved at the 152nd Board meeting of the Corporation (a copy of the minutes of the said meeting has been attached as Anexure-5 to the Writ Petition). Following his appointment, the Petitioner has joined in his duty on 03.10.2023. 4. While the matter stood thus, the Petitioner was continuing in his post. On 02.03.2024, the Petitioner had availed sick leave and during his sick leave, the Petitioner received a termination letter No.5190/OPHWC dated 02.03.2024, annexed to the present Writ Petition as Annexure-6, wherein the Petitioner was communicated that his service has been terminated with immediate effect and he has been directed to handover the charge to Shri Manoranjan Mohapatra, the Financial Advisor of the Corporation. Aggrieved by the aforesaid letter of termination, under Annexure-6, the Petitioner has approached this court with the prayer as made hereinabove. CONTENTIONS OF THE PETITIONER 5.
Legal Reasoning
Heard Mr.Subir Palit, learned Senior Counsel appearing for the Petitioner along with Mr. Niranjan Nayak, learned counsel. The Learned Senior Counsel for the Petitioner, at the outset, has questioned the legality of the impugned termination order dated 02.03.2024, under Annexure-6, Page 3 of 36 on the ground that the termination order is wholly unjustified and un- sustainable in law. It is the contention of the Learned Senior Counsel for the Petitioner that the impugned termination order has been issued by the Opposite Party No.2 without following the well-established principles of natural justice. Referring to the said termination order dated 02.03.2024, the Learned Senior Counsel for the Petitioner further submitted that the Opposite Party No.2 has not given any opportunity of hearing to the present Petitioner before issuing such termination order. Moreover, the aforesaid termination order also does not reflect any grounds on which the Petitioner’s service has been terminated. To substantiate his contentions, the Learned Senior Counsel for the Petitioner has referred to observations of the Hon’ble Supreme Court in Sridhar vs. Nagarpalika, Jaunpur and Ors. reported in AIR 1990 SC 397; Nagarjuna Construction Company Ltd. Vs, Govt. of Andhra Pradesh, reported in (2008) 16 SCC 276 and Smt. Kanungo vs. State of Orissa and Ors. reported in 2023 (III) ILR-CUT-36 6. At this point, the Learned Senior Counsel for the Petitioner referred to the Counter Affidavit filed by the Opposite Party No.2, specifically paragraphs-11 & 12 of the said Counter Affidavit and contended that in the said paragraphs of the Counter Affidavit, the Opposite parties have, for the first time, pointed out the reason for termination of the service of the Petitioner. However, nothing in this respect was ever communicated Page 4 of 36 to the Petitioner before the impugned termination order was passed against him. As such, it was contended that the impugned termination order dated 02.03.2024, under Annexure-6, is an entirely arbitrary and non-speaking order since no reason has been spelt out in the said order for the termination of the Petitioner. It is the Learned Senior Counsel’s contention that the abrupt order of termination issued against the Petitioner does not in any way align with the actual performance of the Petitioner during his period of engagement. It was submitted that during the entire time the Petitioner was engaged in his duty as the Company Secretary, he has satisfactorily discharged all the different works assigned to him and at no point in time was the Petitioner communicated/ noticed with regard to any deficiency in the discharge of his duties. 7. Next, the Learned Senior Counsel for the Petitioner has contended that on the face of the record the impugned order of termination passed vide the order No.5190 dated 02.03.2024 is clearly a non-speaking order which does not contain any grounds/ reasons for such termination of the Petitioner’s service. Therefore, the impugned order cannot in any way be termed as a termination simpliciter. Rather, the order of termination is clearly punitive in nature and it has been passed in gross violation of the established principles of natural justice., The Learned Senior Counsel further stated that, the termination of service of an employee is considered as one of the harshest punishments in service jurisprudence, Page 5 of 36 especially when such an order of termination has been passed against the Petitioner without there being any inquiry into the matter and without there being any definitive reasoning provided by the Opposite Party- Corporation for passing such an order of termination. 8. The learned Senior Counsel for the Petitioner went on to refer to the impugned advertisement dated 10.07.2023 under Annexure-1 to the Writ Petition and submitted that the advertised post of ‘Company Secretary’ is a regularly sanctioned post. Moreover, the said advertisement does not contain any stipulation with regard to the selected candidate undergoing a Probation period after appointment. However, when the appointment letter dated 02.09.2023, under Annexure-4, was issued in favour of the Petitioner, the said appointment letter, specifically under clause (6), provides for a probation period of one year form the date of joining. It is also the Learned Senior Counsel’s contention that the Opposite Party No.2 has also not disputed the aforesaid fact that the advertisement dated 10.07.2023, under Annexure-1, did not contain any stipulation whatsoever with regard to the period of probation, whereas, the appointment order dated 02.09.2023, issued by the Opposite Party No.2, has, for the first time, inculcated such criteria of undergoing a probation period of one year after appointment. The relevant Clause-6 of the aforesaid appointment order dated 02.09.2023, under Annexure-4, is reproduced herein below for better appreciation; Page 6 of 36 “6. Probation: You will be under probation for a period of one year from the date of your joining. The management shall confirm on completion of probation period on satisfactory performance and conduct and attendance during the period of probation. However, the probation period may be extended due to non-performance and un-satisfactory conduct. You may please note that you will continue to be under probation till you are confirmed in writing” 9. With regard to the termination of the service of the Petitioner during his period of probation, the Learned Senior Counsel for the Petitioner contended that the law with regard to the termination of service of Probationers is no more res integra and it is a well settled principle of law that even though the Petitioner was a probationer, the termination of his service will require the observance of and compliance with the principles of natural justice. Since no such procedure has been followed in the present instance, the Learned Senior Counsel for the Petitioner contended that the Opposite Party-Corporation have punished the Petitioner, under the guise of him being a probationer, by terminating his service. To buttress his arguments the Learned Senior Counsel for the Petitioner has placed reliance on various decisions of the Hon’ble Supreme Court, such as; paragraph-36 of State Bank of India vs. Palak Modi reported in (2013) 3 SCC 607, paragraph 7 of V.P.Ahuja vs. State of Punjab, reported in AIR 2000 SC 1080; Radhey Shyam Gupta v. U.P. Page 7 of 36 State Agro Industries Corpn. Ltd., reported in (1999) 2 SCC 21; Abhay Jain v. High Court of Rajasthan, reported in (2022) 13 SCC 1; Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, reported in (1999) 3 SCC 60; Samsher Singh v. State of Punjab and Anr., reported in (1974) 2 SCC 831 and Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha reported in (1980) 2 SCC 593. 10. At this point, the Learned Senior Counsel for the Petitioner has referred to the Rejoinder Affidavit filed by the Petitioner, specifically the ‘Office Order for Amended Rule 9(C) of the Bye-Law of OSPH&WC’, under Annexure-A/1 to the Rejoinder Affidavit, and submitted that the Opposite Party No.2, while referring to the aforesaid rules in the Counter Affidavit filed on his behalf, has suppressed certain other relevant clauses of the said Rule. In this context, the Learned Senior Counsel for the Petitioner referred to Clause 9(C)(iii)(a) and 9(D) of the aforementioned amended rules and contended that in the event of a penalty of dismissal or removal being imposed on the delinquent officer by the chairman-cum- Managing Director, who is the appointing authority, a regular enquiry with reasonable opportunities as per the principles of natural justice shall be afforded to the delinquent. He further contended that the present Petitioner was appointed as the Company Secretary against a regularly sanctioned post and his appointment was approved by the Board of Page 8 of 36 Directors of the Corporation in their 152nd and 153rd Board Meeting. Also, it is clear from the impugned order of termination dated 02.03.2024 that the Petitioner has been removed from service. Therefore, the aforesaid rules clearly apply to the case of the Petitioner and the Petitioner should have been provided with reasonable opportunity of being heard before terminating his service. Additionally, the Learned Senior Counsel for the Petitioner also contended that the aforesaid rules cannot be read in isolation and the said rules must be in consonance with Article 14 of our Constitution. 11. Mr. Palit, the learned Senior Counsel for the Petitioner drew the attention of this Court to the circumstances surrounding the termination of the Petitioner and contended that the service of the Petitioner has been terminated only after four months of his probation period and there were still eight months left out of the one year probation of the Petitioner. In fact, for the last five months of his service, the Petitioner was completely kept in the dark and not a single notice/communication was issued to him demonstrating his inefficiency or pointing out any lacunae in his work. It was never brought to the notice of the Petitioner in what way his actions have been against the interest of the corporation, as has been stated in the Counter Affidavit filed by the Opposite Party No.2. Rather, during the last five months, the Petitioner has discharged his duties diligently by conducting different meetings and he has also been assigned various Page 9 of 36 additional works by the Chairman of the Corporation apart from his normal duties. In this context the Learned Senior Counsel for the Petitioner has referred to the copy of the office orders assigning additional works to the Petitioner, under Annexure-B/1 Series to the Rejoinder. However, it was only when the Petitioner availed a sick leave due to an illness that the order of termination, sans any reason, was passed against him without any prior notice or communication. 12. In fact, it is the contention of the Learned Counsel for the Petitioner that the Opposite Party No.2 has, for the first time in his Counter Affidavit, stated that the Petitioner was not discharging his duties properly and his actions were detrimental to the affairs of the corporation. Such conduct of the Opposite Party No.2 is a clear illustration of their malafide intention and vindictiveness towards the Petitioner. Moreover, such sudden and unreasoned termination is most likely to hamper any future prospects of employment of the Petitioner especially considering the fact that the Petitioner is around 50 years of age and has never before in his career faced such adverse actions. The Learned Senior Counsel for the Petitioner again submitted that conduct of the Opposite Parties is especially confounding when considering the fact that the Petitioner is not a fresher and has a long service history of more than 16 years, and, in his prolonged service career the Petitioner has never received any complaints with regard to his work. Page 10 of 36 13. To further underscore the malafide intentions of the Opposite Parties, the learned senior counsel for the Petitioner has drawn the attention of this Court to the termination order dated 02.03.2024 and the newer advertisement issued just a day later on 03.03.2024 (under Annexures-6 and 7 respectively), and contended that after the illegal and unjust termination of the Petitioner, the Opposite Party-Corporation have floated a fresh advertisement the very next day in the local daily Samaj, inviting applications for the post of Company Secretary, with the walk-in interview set to be held on 06.03.2024 at the Corporate Offices of the Corporation. This undue urgency displayed by the Opposite Party- Corporation to fill-up the post of Company Secretary clearly indicates their malafide intention and deliberate attempt to harass the Petitioner. Further demonstrating the vindictiveness of the Opposite Parties towards the Petitioner, the Learned Senior Counsel has contended that once the Petitioner was terminated vide order No.5190 dated 02.03.2024, he handed over the charge of Company Secretary to the financial advisor to the corporation. However, after a few days another letter was issued to the Petitioner to hand over certain documents, to which the Petitioner responded that he had already handed over the said documents. The corporation again issued another letter to handover certain records and documents, to which the Petitioner replied that the records called for have already been handed over. Despite such intimation by the Petitioner, Page 11 of 36 another letter was issued by the corporation, bearing letter No.8213/OPHWC dated 08.04.2024, to the effect that if the Petitioner does not attend the office by 10.04.2024 and handover the documents, then an FIR would be lodged against him. The copies of all relevant letters and orders have been attached under Annexure-C/1 series. 14. Lastly, Learned Senior Counsel for the Petitioner submitted that the Petitioner has an old and ailing mother, a sister with mental illness and has a child with special needs who requires constant care and treatment. Being the sole bread-earner of his family, the abrupt and harsh nature of his termination has caused immense hardship and suffering to the Petitioner. Accordingly, it was prayed that the impugned termination order dated 02.03.2024, under Annexure-6 and the advertisement dated 03.03.2024, under Annexure-7, be quashed and that the Petitioner be reinstated in service along with all consequential service benefits. CONTENTIONS OF THE OPPOSITE PARTY-CORPORATION 15. Heard Mr. Asok Mohanty, learned Senior Advocate appearing for the Opposite Party No.2 along with Mr. G.P. Dutta, learned counsel. The learned Senior Counsel for the Opposite Party-Corporation, at the outset, vehemently opposed to the prayer made by the Learned Senior Counsel for the Petitioner and supported the impugned order of termination Page 12 of 36 bearing Order No.5190/OPHW dated 02.03.2024 issued against the Petitioner. 16. A counter affidavit has been filed by the Opposite Party No.2- Chairman-cum-Managing Director in opposition of the stance taken by
Decision
the Petitioner in the Writ Petition. The said Counter Affidavit reveals that the Petitioner’s service has been terminated due to the fact that he was not discharging his duties properly and his actions were detrimental to the affairs of the corporation. The Counter Affidavit further discloses that the Opposite Party No.2 has taken the stand that since the Petitioner was under probation, there was no requirement for adhering to the principles of natural justice while terminating the service of the Petitioner. Referring to the aforesaid Counter Affidavit filed by the Opposite Party No.2, the learned Counsel for the Opposite Parties further submitted that the appointment letter No.18125/OPHWC dated 03.10.2023, specifically Clause-8 thereof, titled “Rules and Regulations”, enumerates that in the event there is any infringement of any rules of the corporation or the terms of the appointment or disobedience of orders or negligence of duties by the Petitioner, the Petitioner will have to face dismissal/ discharge from service of the corporation. 17. Furthermore, again referring to the same Counter Affidavit by the Opposite Party No.2, the learned Senior Counsel for the Opposite Party No.2 contended that the averments made by the Petitioner in paragraph-4 Page 13 of 36 of the Writ Petition, to the effect that the corporation does not have its own service rules, is not correct. It was submitted that the corporation has its own Employee’s Conduct Rules titled “The Odisha State Police Housing and Welfare Corporation Employees Conduct Rules, 2013”. Additionally, since it is already established that the Petitioner was under Probation after his appointment, the Appointing Authority i.e. Chairman- cum-Managing Director of the Corporation has rightly terminated the service of the Petitioner as per Rule-9(C)(i)(ii) of the aforesaid Odisha State Police Housing and Welfare Corporation Employees Conduct Rules that came into effect on 08.04.2013. 18. One of the primary arguments of Mr. Mohanty, the learned Senior Counsel for the Opposite Party-Corporation is that since the Petitioner was under probation during the termination of his service, there was no requirement of adhering to the principles of natural justice. At this point, the Learned Counsel for the Opposite Party-Corporation, has referred to the Clause-6 of the appointment order No.18125/OPHW dated 02.09.2023, headlined “Probation” and contended that the said clause clearly stipulates that the Petitioner is to remain under Probation for a period of one year from the date of his joining as the Company Secretary, which is liable to be extended based on his performance and he shall continue in probation until it is confirmed in writing that his period of probation is complete. The learned Senior Counsel for the Opposite Page 14 of 36 Parties contended that in the present case while the Petitioner was under probation, his performance was found not to be suitable for continuing in the post of Company Secretary, as is borne out from the Counter Affidavit filed by the Opposite Party No.2. As such, his service was terminated by the Order No.5190/OPHWC dated 02.03.2024, which is a simple order of termination. Furthermore, the learned Senior Counsel for the Opposite Parties has stated that the Petitioner being a Probationer cannot claim any right to the said post of Company Secretary. 19. The second crucial contention raised by the Learned Senior Counsel appearing for the Opposite party-Corporation is that the impugned order of termination dated 02.03.2024 issued against the Petitioner, is a termination simpliciter and not stigmatic in nature. The learned Counsel for the Opposite Parties further submitted that on the face of the order of termination dated 02.03.2024, under Annexure-6, it is evident that the said order is a termination simpliciter. As such, the Opposite Party-Corporation was under no legal obligation to conduct any proceeding or enquiry, neither was there any requirement to issue any notice to the Petitioner since, being a Probationer, it is well within the right of the Corporation to terminate the employment of the officer on probation by issuing a termination order which is simpliciter in nature. To buttress his arguments, the Learned Senior Counsel for the Opposite Party-Corporation has placed reliance on the decisions of the Hon’ble Page 15 of 36 Apex Court in State of Bihar vs. Gopi Kishore Prasad, reported in 1969 SCC OnLine 40 specifically para 6; Rajesh Kohli vs High Court Of J.&K. & Anr, reported in 2010 (12) SCC 783, specifically paragraphs 23 to 28; Krishnadevaraya Education Trust v. L.A. Balakrishna, reported in (2001) 9 SCC 319 specifically paragraphs 5, 6 and 7; State of Punjab v. Sukhwinder Singh reported in (2005) 5 SCC 569 and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences reported in (2002) 1 SCC 520. 20. Furthermore, as a counter to the Petitioner’s argument that the since the Counter Affidavit by Opposite Party No.2 provides the reason for the termination of the Petitioner, the order of termination becomes stigmatic in nature, the Learned Senior Counsel for the Opposite Party- Corporation submitted that the original order of termination dated 02.03.2024, under Annexure-6 to the writ petition, simply states that the service of the Petitioner has been terminated with immediate effect and nothing more. It is only in the Counter Affidavit filed by the Opposite Party No.2 where it has been stated that the Petitioner’s service has been terminated because the Petitioner was not discharging his duties properly and he had acted in detriment to the affairs of the Corporation. In such context, Mr. Mohanty, learned Senior Counsel for the Opposite Party- Corporation has advanced the argument that reliance cannot be placed on an affidavit to supplement or provide reasoning for an order which has Page 16 of 36 been passed earlier to the affidavit. To lend credence to his stance, he has relied on the decision of the Hon’ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, reported in (2002) 1 SCC 520, specifically paragraphs 33, 34 and 35, where the Hon’ble Apex Court has referred to the ratio expounded in the case of Mohinder Singh Gill v. Chief Election Commr., New Delhi, reported in (1978) 1 SCC 405; “33. It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their behalf: “It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his position, from the suppliers and maligned the reputation of the Institute.” 34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr., New