Application under Articles 226 & 227 of Constitution of India. Sudam Maharana … v. State of Odisha & Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 4476 of 2017 Application under Articles 226 & 227 of Constitution of India. Sudam Maharana …… Petitioner --------------- - Versus - State of Odisha & Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Prasanta Kumar Satapathy & K.C. Panda, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 22nd November, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court seeking the following relief “The petitioner, therefore, pray that your Lordships would be graciously pleased to admit this writ petition, call for the records and after hearing the parties allow the nature of the same, further certiorari/mandamus and/or any issue writ/writs other in Page 1 of 11
Decision
writ/direction, quashing the disengagement order dated 4.10.2014 passed by the Collector, Ganjam under Annexure-1. And further be pleased to direct payment of arrear remuneration of the petitioner from the period Oct-2011 to Mar-2012 and Oct-2012 to June-2013 for an amount of Rs.45,000/- during pendency of the writ petition.” 2. The facts of the case, briefly stated, are that, the petitioner after being selected was appointed as Gram Rozgar Sevak under Arakhpur Gram Panchayat under Block Development Officer of Purushottampur of Ganjam District. He joined on 07.01.2008. He was assigned duties under the MGNREGS Scheme and other kinds of work in the Gram Panchayat. While he was working as such, a show cause notice was issued to him on 29.11.2013 by the Project Director, DRDA, Ganjam alleging that he had not performed his duties satisfactorily and that he would be disengaged for the same. The petitioner submitted his reply on 30.11.2013 specifically explaining that he had done 327 person days before 15.06.2013 and as there was no feasible project in the Gram Panchayat and the new proposal had been submitted for approval, he could not render better performance. The petitioner was called upon for personal hearing on 24.12.2013 Page 2 of 11 by the Project Director, DRDA. He appeared and explained the practical difficulties faced by him in providing employment to job seekers of the Gram Panchayat and also indicated a plan of action for accelerating the pace of work by providing employment to the job seekers. The Collector, however, without considering the ground realities and the explanation so submitted, rejected the same and passed an order on 31.12.2013 disengaging him from the job of GRS. The petitioner submitted a written prayer for reconsideration of the disengagement order and to allow him to continue to work as GRS. The Collector, considering the prayer of the petitioner postponed the order of disengagement and allowed the petitioner to continue as such. While the matter stood thus and the petitioner was working, the Project Director, DRDA issued an order on 04.10.2014 purportedly on the order of the Collector disengaging him from the job of GRS. Said order was not preceded by any show cause notice or any opportunity of hearing. It is further stated that the petitioner despite working had not received his legitimate dues from October, 2011 to March, 2012 and from October, 2012 to June, 2013 for a total Page 3 of 11 amount of Rs.45,000/- till date. Same is reflected in the letter of the BDO, Purushottampur addressed to the Project Director, DRDA, Ganjam. On such facts, the petitioner has filed the writ application with the prayer as quoted above. 3. Counter affidavit has been filed by the State- opposite parties refuting the averments made in the writ application. It is stated that the petitioner’s performance was not satisfactory, for which he was asked to show cause. His explanation was found to be also not satisfactory. He was granted opportunity of personal hearing and thereafter it was decided to disengage him from service. On his prayer the order of disengagement was postponed. Despite the same, he did not improve upon his performance for which he was ultimately disengaged from service. The explanation submitted by the petitioner is not acceptable because, as a GRS he is supposed to be aware of the duties and responsibilities cast upon him, which he did not discharge to the satisfaction of the authorities. As regards the unpaid remuneration dues, it is stated that the petitioner not having performed his duties properly, he is not entitled to any remuneration for the said periods. It is finally stated that the Page 4 of 11 order of disengagement was passed on justified grounds and after affording due opportunity of hearing to the petitioner. 4. Counter affidavit has also been filed on behalf of the opposite party No. 3. The counter averments of the State opposite parties have been reiterated and the order of disengagement has been sought to be justified on the same grounds as highlighted by the State-opposite parties. 5. Heard Mr. P.K. Rath, learned Senior Council appearing with Mr. P.K. Satapathy, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 6. Learned Senior Counsel Mr. Rath would assail the impugned order of disengagement by submitting that the Project Director, DRDA, Ganjam is not competent to issue the order of disengagement in view of the Government instruction dated 21.03.2013. He further argues that the Collector, Ganjam has not provided opportunity of hearing to the petitioner before issuing the order of disengagement dated 04.10.2013. Mr. Rath would further argue that the original order of disengagement was passed on 31.03.2013 but it was Page 5 of 11 never given effect to and therefore, it must be deemed to have been recalled. So if the authority wanted to disengage the petitioner, it should have issued a fresh show cause notice and granted opportunity of hearing before taking the drastic step. Mr. Rath also argues that the petitioner’s remuneration for the periods in question could not have been withheld on the ground of poor performance. 7. Mr. S.N. Pattnaik, learned State Counsel on the other hand, would argue that the petitioner was asked to show cause as to why he would not be disengaged for his poor performance. He submitted his explanation, which was found to be unsatisfactory. He was further granted opportunity of personal hearing. The petitioner despite being granted such opportunity could not satisfactorily explain his poor performance. As such, the Collector decided to disengage him from service. The order of disengagement was passed but was postponed as the petitioner requested and assured that he would improve his performance. Since the petitioner’s performance was also not found to be satisfactory, he was disengaged. On the so called non-grant of remuneration, it is stated that the petitioner being Page 6 of 11 engaged as GRS, is required to create jobs in the Gram Panchayat, which he miserably failed to do. As such, he is not entitled to any remuneration for the period in question. 8. From the rival pleadings and contentions it appears, the petitioner was asked to show cause on 29.11.2013, to which he submitted his explanation on 30.11.2013. Perusal of the show cause notice reveals that the petitioner was asked to explain as to why he had only generated 327 number of person days and that he would not be able to achieve the target for the Gram Panchayat. The petitioner submitted his reply admitting that he had done 327 person days before 15th June, 2013 but there was no feasible project in the GP and new proposal had been submitted for approval and after sanction of new proposal the number of person days would be generated. The petitioner appears to have been granted opportunity of personal hearing by the Collector. It has been stated that he submitted the same explanation in course of personal hearing. The Collector however, did not accept the same and decided to disengage him by order dated 31.12.2013. Said order dated 31.12.2013 does not appear to have been acted upon inasmuch as the petitioner Page 7 of 11 was not disengaged but was allowed to continue in service purportedly on his assurance of improving his performance. The so-called postponement of the order of disengagement is unknown to service jurisprudence. Either the person concerned would be disengaged or he would be allowed to continue but both cannot happen simultaneously. In the instant case the Collector, after having passed the order dated 31.12.2013 disengaging the petitioner from service has nevertheless allowed him to continue in service. This is completely incongruous. This Court is therefore, of the considered view that the order dated 13.12.2013 was impliedly recalled or withdrawn or never acted upon and therefore, it carries no legal sanctity. The Collector subsequently passed an order on 04.10.2014 referring to his earlier order and taking note of the performance of the petitioner again decided to disengage him. It is stated in the impugned order of disengagement that he had helped generate only 3062 person days during 2013-14 and only 264 person days during 2014-15. As already stated, the earlier order of disengagement has no legal sanctity. Therefore, if the Collector was not satisfied with the performance of the Page 8 of 11 GRS subsequently he should have been issued with further show cause notice asking him to explain the poor performance as reflected in the order of disengagement. As it appears, the order of disengagement was not preceded by any show cause notice or grant of opportunity of personal hearing. The earlier show cause notice was on a different point altogether. Even otherwise the explanation submitted by the petitioner in reply to the earlier show cause notice has not been taken note of. Be that as it may, fact remains that the impugned order of disengagement dated 04.10.2014 was not preceded by any show cause notice or grant of opportunity of personal hearing. As such, such order becomes bad in law and cannot be sustained. 9. As regards the non-payment of remuneration, it is seen that by letter dated 18.09.2013, the BDO, Purushottampur intimated the Project Director, DRDA that the remuneration for the period from October, 2011 to March, 2012 and October, 2012 to June, 2013 i.e., for a period of 15 months amounting to Rs.45,000/- was not paid to the petitioner on the ground of poor performance. Nothing has been placed before this Court to Page 9 of 11 indicate that the payment of remuneration is definitely linked to the performance of the GRS. It has not been further stated that the petitioner has not rendered any work during such period though it is stated that his performance is not up to mark. If his performance was not up to the mark, action could have been taken against him but if he has rendered work, there is no way by which his remuneration could be withheld. 10. For the foregoing reasons therefore, this Court finds that the action of the authorities in disengaging the petitioner without granting him any opportunity of hearing cannot be sustained in the eye of law. Further, withholding the petitioner’s remuneration for 15 months is also entirely unjustified and not acceptable in law. 11. In the result, the writ petition is allowed. The impugned order of disengagement under Annexure-1 is hereby quashed. The authorities are directed to reinstate the petitioner in service forthwith. He shall however not be entitled to any financial benefits for the period between his disengagement and reinstatement on the principle of no work no pay. Further, the authorities are directed to release his unpaid remuneration for Page 10 of 11 the period indicated hereinbefore without any further delay and in any case, not later than two months from the date of production of certified copy of this order. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 22nd November, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2024 12:09:10 Page 11 of 11