The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)No.14762 2023 Jayaprakash Mohanty State of Odisha& others Petitioner Mr. Sujit Kumar Acharya, Advocate …. -versus- …. Opposite Parties Mr. Arnav Behera, ASC CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. 04.
Decision
ORDER 29.10.2024 This matter is taken up through Hybrid Mode. 2. Assailing the common appellate order dated 04.04.2023 passed by the Additional Director General of Police, Special Armed Police, Odisha, Bhubaneswar, in respect of six constables, whereby the order dated 03.12.2022 passed by the Commandant (SAG), Odisha Industrial Security Force, Bhubaneswar dismissing the petitioner from service with effect from 03.12.2022 for alleged gross misconduct, gross indiscipline conduct, disobedience of order, revolt against lawful authority and insubordination towards senior officers in contravention of Rules 3 and 4 of the Odisha Government Servants’ Conduct Rules, 1959 and Section 8 of Odisha Industrial Security Force Act, 2012, the instant writ petition has been filed craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer: therefore, prays that your Lordships would “The petitioner, graciously be pleased to admit this petition, call for the records, and after hearing the parties be pleased to issue Rule Nisi calling upon the Ops to show cause as to why the petitioner is dismissed from service when similarly situated colleagues have been kept in service. Page 1 of 5 AND failing to show cause and/or appropriate cause makes the rule absolute. AND be pleased to quash the impugned order of removal under Annexure-6. AND pass any other and/or further order/orders as deemed fit and proper under the circumstances of the case, AND for this act of kindness, the petitioner as in duty bound shall forever pray.” 2. The writ petitioner was initially appointed as a Constable on 30.04.2016 on temporary basis in the Odisha Industrial Security Force under the opposite parties and claimed to have performed his duties sincerely and diligently to the satisfaction of the authority concerned. 2.1. It is alleged that on 21.03.2019 while Sri H.K. Rath, Deputy Commandant, Odisha Industrial Security Force, Bhubaneswar was briefing the personnel at Odisha Industrial Security Force Camp Cyclone Centre, Jatni for deputation to Camp at Vedanta Alumina, Lanjigarh for security duty, the petitioner was allegedly found to have been instigating other constables for not to proceed to said Camp for performing security duty which is nothing but an indisciplined behaviour with insubordination. 2.2. It is further alleged that the petitioner had demanded withdrawal of all the Odisha Industrial Security Force personnel from the OISF Camp at Vedanta Alumina Limited, Lanjigarh and raised slogans against the authority. The petitioner and others physically assaulted the Deputy Commandant, Sri H.K. Rath, of Odisha Industrial Security Force, Bhubaneswar briefing at the Odisha Industrial Security Force, Jatani Camp. The violent Constables partly damaged the police vehicle bearing registration No.OD-05-Y-5580 by indulging in brick batting and stone pelting. Page 2 of 5 2.3. In view of the aforesaid allegations, proceedings were instituted against the petitioner along with others and F.I.R. was also lodged against them in Jatni Police Station, registered as Jatni P.S. Case No.102 dated 24.03.2019, for the alleged commission of offences under Sections 341, 294, 323, 353, 332, 427, 506 read with Section 34 of the Indian Penal Code, 1860. 2.4. In consideration thereof, the authority has initiated a disciplinary proceeding against the petitioner and others on 24.05.2029. When the petitioner and others were charged with the offence, they moved the Odisha Administrative Tribunal, wherein in the interim order it was directed that the departmental proceeding may proceed but no final order would be passed without the leave of the Tribunal. The petitioner and others filed application before this Court for withdrawal of the interim order on the ground that final orders in the departmental proceedings pending against them can be passed, taking a lenient view by the Disciplinary Authority, as some of the accused Odisha Industrial Security Force personnel were awarded with One or Two Black Marks. But the petitioner and five others were dismissed from Government service with effect from 03.12.2022 for their gross misconduct and indiscipline. On dismissal of the appeal, the petitioner filed present writ petition before this Court. 3. Mr. Arnav Behera, learned Additional Standing Counsel submitted that the impugned order passed by the Additional Director General of Police, Special Armed Police, Odisha, Bhubaneswar vide Annexure-9 relates to six persons as constables. In the case of one of the constables vide W.P.(C) No.17300 of 2023 (Jitendra Kumar Singh vs. State of Odisha & others) this Court vide order dated 20.09.2024 has Page 3 of 5 been pleased to set aside the common order by the appellate authority and passed the following order:- “6. Considering the aforesaid facts and circumstances of the case, so also the submissions advanced by the learned counsel for the parties, the impugned order vide Annexure-12 is not sustainable in the eye of law. Therefore, this Court is inclined to exercise the power of judicial review and the impugned order dated 06.04.2023 under Annexure-12 does warrant indulgence. In the result, the writ petition succeeds. As a sequel to the aforesaid discussions, the impugned appellate order under Annexure-12 is set aside and the appeal is remitted to the Appellate Authority-opposite party No.3 for a fresh consideration of the appeal. Needless to say, he has to dispose of the appeal by a reasoned order dealing with all the the appellant with points of challenge highlighted by reference to each charge with reference to material on record. It goes without saying that the petitioner shall have to be given opportunity of personal hearing. On passing the order in appeal, the same be communicated to the petitioner forthwith. It is requested the Appellate Authority shall take up the hearing of appeal at the earliest and conclude the same as expeditiously as possible preferably not later than three months from today. 7. With the aforesaid observations and directions, the writ petition stands disposed of.” 4. Mr. Sujit Kumar Acharya, learned counsel for the petitioner submitted that the matter requires to be reconsidered by the appellate authority in terms of observations of this Court in W.P.(C) No.17300 of 2023 (Jitendra Kumar Singh vs. State of Odisha & others) disposed of on 20.09.2024. 5. Considering the aforesaid facts and circumstances of the case, so also the submissions advanced by the learned counsel for the parties, the impugned order vide Annexure-9 is not found sustainable in the eye of law in view of the order dated 20.09.2024 passed in W.P.(C) No. 17300 of 2023 (Jitendra Kumar Singh vs. State of Odisha & others). Therefore, Page 4 of 5 this Court is inclined to exercise the power of judicial review and the impugned order dated 04.04.2023 under Annexure-9 does warrant indulgence. In the result, the writ petition succeeds. As a sequel thereto, the impugned appellate order under Annexure-9 is set aside and the appeal is remitted to the Appellate Authority-opposite party No.3 for a fresh consideration of the appeal. Needless to say, the appellate authority shall dispose of the appeal by a reasoned order dealing with all the points of challenge highlighted by the appellant with reference to each charge by considering material on record. The petitioner shall have to be given opportunity of personal hearing. On passing the order in appeal, the same be communicated to the petitioner forthwith. It is desired that the Appellate Authority shall take up the hearing of appeal at the earliest and conclude the same as expeditiously as possible preferably not later than three months from today. 6. With the aforesaid observations and directions, the writ petition stands disposed of. (M.S. Raman) Judge Aswini Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, COURT Date: 30-Oct-2024 11:50:07 Page 5 of 5