The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11878 of 2017 Minati Sahu …. Petitioner Mr. S. Behera, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 16.07.2024 Order No. 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer: - “Under the circumstances, it is humbly prayed that this Hon’ble Court may graciously be pleased to admit this writ petition, issue a writ in the nature of mandamus or any other appropriate writ (s) by quashing the order of disengagement dated 06.05.2017 passed by the opp.party no.4 under Annexure-7 and quash the order of appointment dated 16.05.2017 issued in favour of the opp.party No.6 under Annexure-9; And further be pleased to direct the opp.party No.3 to allow the petitioner to discharge the duties of Head Cook as usual”.
Legal Reasoning
prima facie satisfied that Petitioner is not discharging her duties as assigned, she was rightly disengaged vide the impugned order dtd.06.05.2017 under Annexure-7. 5.4. With regard to the engagement of private Opposite Party No.6 within nine days of the order of disengagement issued in favour of the Petitioner, it is contended that Opposite Party No.6 was so appointed on being duly selected. 5.5. It is accordingly contended that the Petitioner because of her conduct, the show cause under Annexure-5 was issued. Considering the admission of the Petitioner vide Annexure-6-Series, she was rightly disengaged vide order under Annexure-7 and it requires no interference. 6. To the submissions made by learned Addl. Government Advocate for the State, learned counsel for the Petitioner contended that since along with the show cause notice issued on 19.04.2017 under Annexure-5, complaint of the Head-Mistress-cum-Secretary were never supplied to the Petitioner, the same suffers from non- compliance of the principle of natural justice. The stand taken in Para-5 of the Rejoinder affidavit reads as follows:- “5. That it is pertinent to state here that before passing the impugned order, the opportunity of hearing has not been given to the petitioner, in as much as though in the show cause notice dated 19.04.2017 at Annexure-5, the Page 6 of 10 // 7 // opposite party No.4 initiated action in pursuance of complaint of the Warden of the KGBV, report of the girls education Coordinator, RTE-SSA, Gajapati dated 28.03.2017, but the copies of the complaint and the report have not been supplied to the petitioner so as to enable her to prepare and submit a befitting show cause to the allegations made against him. Thus, the impugned order at Annexure-7 suffers from the vice of non-observance of principle of natural justice especially when the petitioner has been continuing for last 10 years without any blemish”. 6.1. It is further contended that since her engagement in the year 2007 till the show cause was issued on 19.04.2017 under Annexure-5, there was no such allegation made against the Petitioner. But basing on the complaint which was never provided to the Petitioner at any point of time, Petitioner was disengaged from her work vide the impugned order dtd.06.05.2017 under Annexure-7 and Opposite Party No.6 was appointed within 9 days of such disengagement without facing any recruitment process. 7. Even though notice of the writ petition has been served on Opposite Party No.6, but no appearance has been made on behalf of the said Opposite Party. Therefore, in absence of the private Opposite Party No.6, the matter was decided basing on the available materials on record. 8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was engaged as a Cook vide order dtd.28.08.2007 under Annexure-3. Petitioner was so Page 7 of 10 // 8 // appointed basing on the interview conducted by Opposite Party No.4 and the application submitted by the Petitioner under Annexures-1 and 2. No document was enclosed by the Opposite Party No.4 showing any complaint made against the Petitioner, along with show cause issued on 19.04.2017 under Annexure-5. 8.1. It is also found that even though such a show cause was issued by Opposite Party No.4 basing on the compliant made by the Headmistress –cum-Secretary of the Institute, Petitioner at no point of time was provided with copies of such complaint and thereby enabling her to make her reply. 8.2. It is also found that the evidence collected by Opposite Party No.4 while visiting the Hostel on 13.04.2017 as reflected in Annexure-5 was also never provided to the Petitioner. It is the view of this Court that without providing copies of the complaint and the evidence collected by Opposite Party No.4, show cause issued under Annexure-5 could not have been issued and such a show cause is not in accordance with law. 8.3. Therefore, in view of such irregularity in the show- cause so issued on 19.04.2017 under Annexure-5 which is apparent on the face of the show cause, this Court is inclined to quash the order of disengagement so issued vide order dtd.06.05.2017 under Annexure-7 basing on the show-cause and quash the same accordingly. Page 8 of 10 // 9 // 8.4. It is also found from the record that Petitioner though was disengaged vide order dtd. 06.05.2017 under Annexure-7 and such appointment of the Petitioner was made by following due recruitment process, but no document has been enclosed to the counter affidavit showing any selection process initiated after 6.5.2017 to appoint Opposite Party No.6 vide order of appointment issued on 16.05.2017 under Annexure-9. 8.5. In view of the same and due to non-appearance of Opposite Party No.6 in spite of service of notice, this Court is also of the view that Opposite Party No.6 has been appointed without following due recruitment process. Accordingly, this Court is also inclined to quash the order dtd.16.05.2017 so issued by Opposite Party No.4 under Annexure-9. While quashing the order of disengagement issued against the Petitioner on 06.05.2017 under Annexure-7 and order of appointment issued in favour of Opposite Party No.6 on 16.05.2017 under Annexure-9, this Court remits the matter to Opposite Party No.3 to take a fresh decision with regard to the allegations made against the Petitioner. Opposite Party No.3 is directed to issue a fresh show-cause enclosing therein the show-cause so issued by Headmistress-cum-Secretary of the Institute with the proof of their service on the Petitioner and the evidence collected by Opposite Party No.4 on 13.04.2017. Such a show cause as directed be issued within a period of four Page 9 of 10 // 10 // (4) weeks from the date of receipt of this order. Petitioner will be allowed further four (4) weeks’ time to give her reply, Opposite Party No.3 shall take a lawful decision on the same by giving due opportunity of hearing to the Petitioner and Opposite Party No.5. Till a fresh decision is taken, Petitioner be allowed to discharge the duties of cook, which will be subject to the decision to be taken by Opposite Party No.3 as directed. 8. With the aforesaid observation and direction, the
Arguments
4. Learned counsel for the Petitioner contended that by facing due recruitment process, Petitioner was engaged as // 2 // a Cook under R. Udayagiri Block vide order of engagement issued on 28.08.2007 under Annexure-3. 4.1. It is contended that while so continuing in terms of the order of engagement issued under Annexure-3, Petitioner for the first time was issued with a show cause on 19.04.2017 inter alia with the following allegations:- “ With reference to the above cited subject I am to say that you were time and again show caused by the Head Mistress cum Secretary, KGBV, R. Udayagiri for creating habitual disturbance in the hostel for which the peaceful atmosphere of the Hostel had suffered. Further the HM had repeatedly warned to refrain from such practice but you never cared to her authorities. Further on receipt of complaint from the warden, KGBV R. Udayagiri on staff unrest, Girls Education Coorodinator, RTE-SSA, Gajapati was deployed to the Kasturba Gandhi Balika Vidyalaya, R. Udayagiri on 28.03.2017 to enquire and report compliance. Further the undersigned also paid a surprise visit to the Hostel o 13.04.2017 to assess the situation. On interaction with all concerned and evidence collected, it was confirmed that you were one amongst those involved in causing unwarranted situation. That being the Head Cook you should have discharged duties as per assignment with care and diligence and as and when instructed by the H.M. and Warden without involving in the management intricacies and official matters. Further being a subordinate staff you should have maintained office decorum and official courtesy with hierarchical authorities and contribute to the well-being of the hostel. Whereas instead of indulging in unhealthy arguments in defiance to the management you should have placed your grievance before the appropriate authority. You were discourteous to the Warden as well the HM on the day of surprise visit by the undersigned. Due to your unruly behavior and conduct the young wards have been affected adversely. As such you are hereby show caused as to why you shall not be disengaged from the post of Head Cook for above Page 2 of 10 // 3 // misconduct and branch of conditions as stipulated in the Contractual Agreement. Your reply to this show cause must reach to the undersigned within 3 days from the date of issue or else it shall be presumed that you have no explanation to offer and action deemed fit shall be initiated against you”. 4.2. It is contended that while issuing the show cause, Opposite Party No.4 never provided copy of the show- cause so made by Head Mistress-cum-Secretary, KGBV R. Udayagiri to the Petitioner nor the evidence collected by Opposite Party No.4 while causing an enquiry on 13.04.2017. 4.3. It is contended that since the show cause so issued under Annexure-5 never was enclosed with the complaint alleged to have been made by the Head Mistress –cum- Secretary KGBV R. Udayagiri, nor the evidence collected by Opposite Party No.4, Petitioner in absence of those documents only made a reply by admitting her fault with regard to the alleged wrong committed against the Head Mistress under Annexure-6-Series. 4.4. It is contended that without proper appreciation of the admission made vide Annexure-6-Series, Opposite Party No.4 disengaged the Petitioner vide the impugned order dtd.06.05.2017 under Annexure-7. 4.5. It is contended that since Petitioner was never provided with the show-cause issued by the Head Mistress nor the evidence collected by Opposite Party No.4 the same caused prejudice to the Petitioner to give a Page 3 of 10 // 4 // detailed reply. However, with a bona fide impression that she will be exonerated, she admitted her fault with regard to her conduct towards the Head Mistress while submitting the reply under Annexure-6-Series. 4.6. It is also contended that while the Petitioner was appointed by facing due recruitment process vide order of engagement issued under Annexure-3, but after her disengagement vide Office Order dtd.06.05.2017, private Opposite Party No.6 straight away was engaged vide Office Order dtd.16.05.2017 under Annexure-9. After such disagreement of the Petitioner, no further notice was ever issued by the competent authority for engagement of the Head Cook and Opposite Party No.6 just 9 days after her disengagement was engaged in her post. 4.7. It is accordingly contended that in order to accommodate, Opposite Party No.6 as against the post held by the Petitioner, Petitioner was disengaged vide order under Annexure-7. 4.8. It is accordingly contended that order of disengagement issued on 06.05.2017 under Annexure-7 and the order of appointment issued in favour of Opposite Party No.6 vide order dtd.16.05.2017 under Annexure-9 are not sustainable in the eye of law and requires interference of this Court. Page 4 of 10 // 5 // 5. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.4. 5.1. It is contended that even though Petitioner was engaged vide order issued under Annexure-3 of the Collector-cum-Chairman, Sarba Sikshya Abhiyan (SSA)- Opposite Party No.3, but in view of the decision taken by the OPEPA under Annexure-A/4, District Project Co- coordinator became the appointing authority in respect of all Group-D Officers of the district. In view of such authority conferred on the District Project Coordinator, Opposite Party No.4 passed the order of disengagement vide order under Annexure-7. The stand taken by the Petitioner that she has been dis-engaged by an incompetent authority is not correct. 5.2. Learned Addl. Government Advocate further contended that Petitioner though was noticed by the Headmistress –cum-Secretary of the Institution vide Annexure-H/4-Series, but in spite of such notices being issued to the Petitioner, she never corrected herself and because of that show cause under Annexure-5 was issued by Opposite Party No.4. 5.3. It is contended that taking into account the allegation made against the Petitioner by the Secretary vide Annexure-H/4-Series, Opposite Party No.4 on being Page 5 of 10 // 6 //
Decision
Writ Petition is disposed of. Subrat (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Jul-2024 10:59:15 Page 10 of 10