The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 19427 of 2015 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Rina Bhainsa ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : M/s. P.K.Rath, Sr. Advocate with A.Behera, Advocate For Opp. Party : Mr. S.N.Pattnaik, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 7th November, 2024 Being aggrieved by the rejection of her representation by the Collector, vide order under Annexure-1, the petitioner has filed this writ application with the following prayer:
Legal Reasoning
“It is therefore prayed that this Hon’ble Court may graciously be pleased to admit this writ petition, call for the records and after hearing the parties, allow the same, of further certiorari/mandamus and/or any other issue writ/writs nature the in Page 1 of 12 writ/direction quashing the order dared 26.09.2015 passed by the Collector-cum-CEO, Zilla Parishad, Sambalpur under Annexure-1 and the disengagement order dated 05.07.2013 under annexure-18. And for this act of kindness, the petitioner shall as in duty bound ever pray. 2. The facts of the case, briefly stated, are that the petitioner, having undergone a selection process was engaged as Gram Rozgar Sevak vide letter dated 21.01.2008 of the Sarpanch, Laidunga Gram Panchayat. Upon execution of an agreement she joined as such and worked satisfactorily by executing similar agreements every year. On 23.11.2012, a notice was issued by the Project Director, DRDA, Sambalpur to Gram Rozgar Sevaks of seven different Gram Panchayats including the petitioner as to why they should not be disengaged for non-performance of assigned duty. In response, the Gram Rozgar Sevaks submitted that they were assigned with several other duties and as such could not discharge the MGNREGS duties properly. However, by another notice issued by the Collector, Telitileimal 12.06.2012 to the petitioner, certain allegations were leveled against her and she was asked to show cause as to why she shall not be disengaged. She was permitted to inspect the case Page 2 of 12 records of the projects in the Block Office to prepare her statement of defence and to inspect the inquiry report kept in the office of the DRDA. The petitioner submitted a reply on 18.06.2012 requesting for supply of the copies and records basing on which the charges were leveled against her. By order dated 22.05.2013, the Collector referred to four specific charges and asked her to show cause again. The petitioner submitted her show cause on 30.05.2013. Again on 25.06.2013, the Project Director, DRDA called upon Gram Rozgar Sevaks of different Gram Panchayats to show cause for their alleged un- satisfactory performance. The petitioner submitted reply refuting all the charges. It is further stated that the Sarpanch issued a certificate in favour of the petitioner indicating that her performance was satisfactory. However, the Collector, vide order dated 05.07.2013, directed disengagement of the petitioner. Challenging such action, the petitioner approached this Court in W.P.(C). No. 16447 of 2013. By order dated 31.07.2015, the impugned order of disengagement was quashed and the matter was remitted to the Collector to take decision Page 3 of 12 afresh after considering the reply of the petitioner. Pursuant to such order, the Collector, considering the copies of the show cause reply annexed to the said writ application found that the petitioner’s representation carried no merit and therefore, rejected the same. 3. Separate counter affidavits has been filed by the Opposite Parties. In his counter affidavit, the Opposite Party No. 2 has stated that the impugned order was passed after following the principles of natural justice. On facts, it is stated that the petitioner was responsible for irregularities committed in implementation of projects under MGNREGS scheme during the year 2009-10 and 2010-11 and as reported by the inquiry committee, she was involved in misappropriation of MGNREGS funds amounting to Rs. 9,96,383/- along with other officials. She had also signed on fraudulently maintained Muster Rolls to make payment to ghost job cardholders. 4. In the Counter affidavit, filed jointly Opposite Parties No. 2 and 3, the same facts have been reiterated and the passing of the impugned order of disengagement has been sought to be justified. Page 4 of 12
Legal Reasoning
5. Heard Mr. P.K.Rath, learned senior counsel with Mr. A.Behera for the petitioner and Mr. S.N.Pattnaik, learned Addl. Government Advocate for the State. 6. Mr. Rath would argue that from the materials on record, it would be clear that the authorities were hell- bent upon disengaging the petitioner from service on some pretext or the other. He further submits that the show cause notice issued jointly to several Gram Rozgar Sevaks cannot be sustained in the eye of law. Moreover, the original order of disengagement was issued on grounds not specifically mentioned in the show cause notices. Mr. Rath further contends that the reasoning cited by the Collector to reject the representation is unacceptable inasmuch as the petitioner being assigned with works other than her own by the authority, could not have refused to do the same. That apart, her assurance in the show cause reply that she would improve her performance cannot imply that she had not been diligent in the past. Mr. Rath further argues that the Collector has drawn adverse inference against the petitioner for not producing any supporting documents Page 5 of 12 to establish herself forgetting the fact thereby that she could not have adduced negative evidence and it is for the employer to positively show that she was guilty of negligence in duty. Finally, Mr. Rath draws attention of the Court to the performance reports of the petitioner under different heads to buttress his contention that the allegations of non-performance of duty is completely baseless. 7. Mr. S.N.Patnaik, learned Additional Government Advocate for the State would submit that the petitioner was time and again called upon to show cause but she never replied. The copies of show cause notices enclosed to the earlier writ application were never submitted by her. Nevertheless, the Collector while considering the matter afresh took note of the copies of the said show cause replies and found no merit therein. That apart, an inquiry was conducted, which revealed that the petitioner had grossly neglected her duties and was also guilty of misappropriation of public funds. 8. I have my given anxious consideration to the rival submissions noted above and have also carefully perused Page 6 of 12 the materials available on record. Before proceeding, further, this Court would remind itself of the principle of law that the writ Court would always be slow to interfere with findings of fact rendered by a quasi-judicial authority unless it is shown that the same are such as no prudent man would arrive at. Keeping the above legal proposition in mind, this Court, on examination of the materials on record finds that the petitioner has been called upon to show cause multiple times jointly with other Gram Rozgar Sevaks and also individually on some occasions. In the joint show cause notice issued on 23.11.2012, it was alleged that the GRSs including the petitioner had not incurred any expenditure in the Gram Panchayat, which was answered by stating that the they were assigned with duties other than MGNREGS work for which such work had suffered but they assured to improve upon their performance. No further action being taken, the said matter must be deemed to have been set at rest. In the show cause notice dated 12.06.2012 some other allegations were levelled such as, tampering of muster rolls, making of fraudulent entries etc. The Page 7 of 12 petitioner asked for the document/records basing on which such charges were levelled. She was asked to inspect the documents/records and the inquiry report kept in the office. Again on 22.05.2012, another show cause was issued containing four different allegations. Significantly, the earlier allegation of tampering of the muster rolls was omitted. Again, by a joint show cause notice dated 25.06.2013, as many as 15 allegations were levelled against different Gram Rozgar Sevaks including the petitioner. The petitioner submitted reply specifically answering all the allegations. The impugned order now needs to be viewed in the above background. 9. As already stated, the earlier order of disengagement was quashed by this Court for non-consideration of the replies submitted by the petitioner. The matter being remitted to the Collector, he appears to have taken note of the stand of by the petitioner in her replies enclosed to the writ application. The original order of disengagement, which was quashed does not refer to any particular show cause notice out of the different show cause notices issued to the petitioner as referred above nor does it refer Page 8 of 12 to any specific allegations, save and except that her performance is not at all satisfactory, she remained absent from Gram Panchayat office unauthorizedly, she failed to fulfil the terms and conditions of the agreement and she is not regular in her duty and disrespectful to higher authority. It goes without saying that these are all vague and nonspecific allegations. In the impugned order dated 26.09.2015 also, there is simply no reference to the earlier order and to the different show cause notices issued on 12.06.2012, 23.11.2012, 22.05.2013 and 25.06.2013. The petitioner’s reply that she was assigned with other works such as BPL survey, Gram Sabha, Palli Sabha, distribution of PDS, distribution of Bhata etc has been brushed aside by holding that if she was burdened with such work she would have brought to the notice of the authorities so that alternative arrangement could not have been made. This is not a tenable reason at all because it is the authorities concerned who engaged the petitioner in the aforesaid works in the first place. It cannot be said that the authorities, while assigning such works to the petitioner, were not aware that it would not Page 9 of 12 affect her performance in the MGNREGS works. On the contrary, the explanation submitted by her is quite plausible and reasonable and therefore, ought to have been accepted. Secondly, the assurance given by the petitioner that she would take care of the job seekers and expedite the expenditure under MGNREGS cannot, ipso facto, lead to the conclusion that she had not worked properly as has been held by the Collector. It must be kept in mind that the employer has to come forward with a definite and positive case against its employee and not base its case upon the so-called weaknesses of the employee’s case. 10. Another aspect that needs mention is that in the show cause notice dated 25.06.2013 as many as 15 allegations were levelled. The petitioner has submitted a reply which is available in the case record. The Collector has drawn adverse inference against the petitioner for not producing any supporting documents to establish that she had committed any irregularities as mentioned in the show cause notices. This Court would reiterate that the employer should have come forward with a definite, Page 10 of 12 positive and specific case to prove its stand. The employee cannot be expected to prove the negative, he or she can only admit or deny the allegations. In case he or she denies, it is for the employer to prove the allegations by adducing appropriate proof. The Collector has proceeded the other way round which is unknown to service jurisprudence. 11. Thus, from a conspectus of the analysis of facts and law made hereinbefore, this Court has no hesitation in holding that the petitioner was visited with the extreme penalty of disengagement of service without any specific or justified cause. The impugned action appears to have been taken merely on allegations that were never satisfactory proved. Significantly, a stand has been taken in the counter affidavit that the petitioner was guilty of mis-appropriation of MGNREGS funds to the tune of Rs. 9,96,383/- along with other officials. Vague as it is, there is not a whisper of such allegation in any of the show cause notices. It is stated that some inquiry was conducted but neither the inquiry report was placed before this Court nor the specific findings thereof have Page 11 of 12 been informed. Thus, the impugned order not having considered these vital aspects cannot be sustained in the eye of law and the order of disengagement passed against the petitioner also therefore, cannot be sustained in the eye of law. 12. For the foregoing reasons therefore, the writ application is allowed. The impugned order under Annexure 1 is hereby quashed. ……..………………….. Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 07-Nov-2024 18:08:22 Page 12 of 12