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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 4492 of 2015 An application under Sections226 and 227 of the Constitution of India) Anjan Kumar Jaysingh ... Petitioner --------------- -Versus- State of Odisha and Others ... Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr.B. Routray, Sr. Advocate S. Das, R.P. Dalai, S.K. Samal S.P. Nath, S.D. Routray, S. Jena Advocate For Opp. Parties : Mr. A.R. Dash, [Additional Government Advocate] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 1st October, 2024 I.A. No. 13178 of 2024 1. This is an application filed by the petitioner for amendment of the writ petition to insert fresh averments and a further prayer as per the schedule. Page 1 of 9 2. Learned State Counsel has no serious opposition to the prayer being allowed. As such, the application for amendment is allowed. 3. Consolidated writ petition is filed in the Court after serving copy on the State Counsel. On request of the parties, the matter is taken up for final disposal. 4.
Decision
The I.A is disposed of. ……..………………….. (Sashikanta Mishra) Judge W.P (C) No. 4492 of 2015 1. Pursuant to an advertisement issued in the year 2011 for appointment of Sikshya Sahayaks, the petitioner submitted his application and was also duly selected. He joined pursuant to engagement order issued by the Collector-cum-CEO, Zilla Parishad, Khordha on 05.12.2011 and was posted at Sankarpur Primary School of Bargarh Block. An FIR came to be lodged against the petitioner in Bargarh police station being P.S. Case No.115 of 2014 for the alleged commission of offences under Sections 143/147/148/294/323/324/307/ Page 2 of 9 506/149 IPC. Several other persons were also implicated in the said case. It was alleged by the informant therein that on 07.10.2015, the accused persons being armed with deadly weapons formed an unlawful assembly and abused him in obscene language and also assaulted him by means of a farsa with a common object. After registration of the FIR, the petitioner was arrested and taken into custody on 29.10.2014. He remained in custody till 01.11.2014 when he was released on bail. The fact of submission of FIR was brought to the notice of the Director, OPEPA by one Bijaya Kumar Pradhan. Though no action was taken on such letter of Bijaya Kumar Pradhan yet, the petitioner was not allowed to discharge his duties purportedly on the basis of a letter issued by the Collector to the Additional Director (General), OPEPA. The petitioner submitted representation to the Collector for permitting him to discharge his duty. On 28.11.2014, the District Project Coordinator, Khordha sought for clarification from the State Project Co-coordinator, whether the petitioner being engaged as Sikshya Sahayak on contractual basis can be allowed to resume his duty, Page 3 of 9 since he had been in custody for more than 48 hours. While the matter stood thus, the Collector-cum-CEO issued a show-cause notice dated 10.03.2015 asking the petitioner to explain as to why his engagement as Shikshya Sahayak shall not be terminated for violation of the Government Rules and terms and conditions mentioned in the annual agreement. At this stage, the petitioner approached this Court in the present writ petition impugning the said shows-cause notice seeking a direction to allow the petitioner to discharge his duty as Shikshya Sahayak. In course of pendency of the writ petition, the petitioner was permitted to amend the writ petition as well as the prayer made therein to seek quashment of the show-cause notice dated 10.03.2015. 2. The stand of the opposite parties as reflected in the counter is that as per the Odisha Service Code, a Government servant, who is detained in custody under any law providing for preventive detention or as a result of proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be Page 4 of 9 under suspension from the date of detention until further orders as contemplated in the CCS (CCA) Rules. Since the petitioner remained in custody from 29.10.2014 to 01.11.2014 in connection with the criminal case, the show-cause was rightly issued. 3. Heard Mr. B. Routray, learned Senior Counsel with Mr. S. Sekhar, learned counsel for the petitioner and Mr. A.R. Dash, learned Additional Government Advocate for the State. 4. Mr. Routray, learned Senior Counsel would argue that merely because a criminal case was registered against the petitioner and he was taken to custody in connection therewith does not mean that he was convicted in the said case, since the case has not been concluded as yet. Furthermore the criminal case arose out of a purely private dispute not connected in the least with the petitioner’s official work as Shikshya Sahayak. Mr. Routray has relied upon a judgment passed by a learned Single Judge of this Court in the case of Chandrahasya Patel v. State Of Orissa and Others (WPC No.25685 of 2017), which was confirmed by a Page 5 of 9 Division Bench of this Court in W.A. No.185 of 2018, Citing these judgments Mr. Routray would argue that the impugned action of issuing a show cause and also preventing the petitioner from discharging his duties only because of pendency of the criminal case is contrary to law and otherwise unjustified. 5. Mr. Dash, learned State Counsel would submit that the writ petition is premature inasmuch as only show cause notice has been issued but no action as yet has been taken against the petitioner to terminate his engagement. That apart, being a Shikshya Sahayak, he is expected to conduct himself appropriately as otherwise it would have an adverse impact on the students. Since the petitioner is alleged to have been involved in a criminal case involving physical assault, the impugned show cause was rightly issued against him. 6. After hearing learned counsel for the parties and on going through the materials available on record, this Court firstly observes that there is no such provision in the order of engagement issued to the petitioner or in the agreement signed by him at the time of his engagement to Page 6 of 9 the effect that mere involvement in a criminal case would lead to termination of his service. Even otherwise, this Court finds that the criminal case instituted on the basis of the FIR has not been concluded as yet. Therefore, as per criminal jurisprudence, the petitioner cannot, at least at this stage, be held to be guilty of the alleged offences. Even otherwise, this Court, upon reading of the FIR finds that the allegations are entirely private in nature having no nexus whatsoever with his engagement as Shikshya Sahayak. In the case decided by the Division Bench in W.A. No.185 of 2018, the following was held:- “5. The learned Single Judge held and in view of the Court rightly that the said Circular had no application to the case on hand since Respondent No.1 was taken into custody on the basis of a complaint by a private individual and the case in which he was imprisoned had nothing to do with his engagement whatsoever. Learned counsel appearing for the appellant is unable to explain to this Court why the learned Single Judge was wrong in coming to the above conclusion. 6. Before the learned Single Judge reliance was sought to be placed on another letter dated 5th December, 2012 in terms of which a non- performing GRS could be disengaged under Section 25 of the MGNREGS Act, 2005. That contravention of a provision provision of that Act in order to attract penalty. As rightly pointed out by the learned Single contemplates Page 7 of 9 Judge, there is no charge against Respondent No.1 that he violated Section 25 of the MGNREGS Act and therefore, that provision also had no application to the facts on hand. learned Single Judge had already 7. The observed that it will always be open to the Appellant to take appropriate action depending on the outcome of the criminal case. The Court is informed that the criminal case is still pending.” 7. The facts of the present case are almost identical to the facts of the case decided by the Division Bench. This Court therefore, has no hesitation in applying the ratio decided therein to the present case. 8. As regards the relief claimed by the petitioner, this Court is conscious of the fact that no order of disengagement as mentioned in the impugned show cause notice has yet been passed. The petitioner has been continuing on the strength of an interim order passed by this Court. Since law has been laid down to the effect that a person cannot be thrown out of engagement merely because of involvement in a criminal case not related to his engagement, this Court is of the view that there was no legal basis or justification for issuing the said notice more so, as the criminal case is still pending. It would be Page 8 of 9 relevant to note that the impugned show cause notice does not mention any reason other than the pendency of the criminal case. 9. For the foregoing reasons therefore and keeping in view the settled position of law as discussed hereinbefore, this Court is of the view that the impugned notice cannot be sustained in the eye of law. 10. Resultantly, the writ petition is allowed. The impugned show-cause notice dated 10.03.2015 is hereby quashed. It is however made clear that the authorities shall be at liberty to proceed against the petitioner depending on the result of the criminal case. Further, the petitioner having already completed more than ten years of engagement, the admissible service benefits may be granted to him subject to the outcome of the criminal case referred above. ……..………………….. (Sashikanta Mishra) Judge BC Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 07-Oct-2024 17:42:45 Page 9 of 9