The High Court
Case Details
Order No. 54. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15821 of 2016 Mihir Kumar Swain …. Petitioner Mr. S.N. Biswal, Advocate CESU, Bhubaneswar & others …. Opposite Parties Mr. Ashok Mohanty, Sr. Advocate -versus- CORAM: JUSTICE A.K. MOHAPATRA ORDER 21.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Shri S.N. Biswal, learned counsel appearing for the Petitioner and Mr. A. Mohanty, learned Senior Counsel appearing for Opposite Parties along with Mr. D.K. Mohanty, learned counsel. Perused the writ application as well as the documents which have been annexed to the writ application. This Court also perused the other pleadings like counter affidavit filed by the Opposite parties and rejoinder affidavit thereto by the Petitioner. In course of hearing also this Court took note of several affidavits filed by the respective parties which are part of their pleadings. 3. On perusal of the writ application, this Court observed that a batch of employees of Central Electricity Supply Utility (CESU) who are initially recruited on contractual basis pursuant a valid recruitment process on being duly selected for a period of two years were subsequently terminated from service on the ground that they had produced fake ITR certificates at the time of verification of documents. Although a criminal case was registered against 40 such candidates, // 2 //
Facts
however, in the trial they have been acquitted by the learned trial court. The present writ application has been filed with a prayer for a direction to the Opposite parties to re-instate the Petitioner with all consequential service and financial benefits as has been extended to their counterparts within a stipulated time keeping in view the order of acquittal passed by the learned J.M.F.C., Khordha under Annexure-34 and confirmation of such order by the learned Additional District and Sessions Judge-cum- Special Judge, CBI, Bhubaneswar in Criminal Appeal No.9 of 2018. 4. The factual background of the case leading to filing the present writ application, in short, is that initially the CESU published an advertisement for engagement of Jr. Artisan-B on contractual basis. Such advertisement reveals that the appointment shall be for a period of two years and that the targets who are familiar with the CESU distribution system shall be given preference. Pursuant to such advertisement, the Petitioner along with many other candidates submitted their candidature. On being duly selected by the Selection Committee, the Petitioners were given appointment pursuant to the order under Annexure-2 to the writ application, accordingly, the Petitioner joined in service. While the Petitioner was continuing in service as a contractual employee, all of a sudden, the authorities terminated the service of the Petitioner vide order under Annexure-3 to the writ application. On the allegation of furnishing fake ITI certificates. The order of such termination under Annexure-3 was assailed before this Court by filing a series of the writ application, a Division Bench of this Court after hearing the batch of writ application, disposed of the aforesaid batch of writ application, vide order dated 02.02.2011 with an observation that after termination if the Petitioner submit representation for being appointed on contractual basis against any non-ITI post and such posts are required to be filled up by the Opposite Parties, their cases may be considered for such appointment // 3 // along with others by taking into account their past experiences with the Opposite parties-authority. 5. Pursuant to the aforesaid order dated 02.02.2011 the Petitioners approached the Opposite Parties by filing a representation. The Opposite Party-authorities after considering the representation of the petitioner, rejected the same on the ground that the petitioner had intentionally submitted a false and fake certificate and as such a criminal case has already been registered agaist him in the local police station. Thereafter, the Petitioner focused on the criminal case, which was pending before the J.M.F.C., Bhubaneswar vide G.R. Case No.1952 of 2009 and Trial No.1395 of 2015. The learned Trial Court finalized the trial by recording evidence and finally vide judgment dated 27.01.2016, under Annexure-34 in the writ application, acquitted the Petitioner from all charges, on the ground that the prosecution has miserably failed to bring home to charges. 6. After conclusion of the above noted criminal trial in acquittal, the criminal appeal bearing CRLA No.9 of 2018 was preferred by the informant-CESU which has been dismissed by confirming the order to acquittal. After the aforesaid acquittal of the Petitioner in the trial, the Petitioners again approached by the authorities by filing a representation with a prayer to reinstate them in service and for regularisation of their service like their counterparts. The Opposite Parties once again rejected the representation of the petitioner vide order under Annexure-36 to the writ application. Being aggrieved by such order of rejection under Annexure-36 the Petitioners have approached this Court by filing the present writ application with a specific prayer for a direction to the Opposite Parties to reinstate them in service.
Legal Reasoning
orders passed by a Division Bench of this Court in W.P.(C) No.15158 of 2009 disposed of on 02.02.2011 submitted before this Court by taking note of all the aforesaid facts, the Hon’ble Division bench disposed of the writ application, with an observations that after termination if the petitioner submitted the representation for being appointed on contractual basis against any post where ITI qualification is not required, their cases may be considered for such appointment along with others specifically taking into account their past experience with the authorities. Since, the representation submitted pursuant to the order dated 02.02.2011 was rejected by the authorities, the Petitioner once again approached this Court by filing W.P.(C) No.18871 of 2011. Again a Division Bench of this Court vide order dated 01.03.2012 disposed of the writ application preferred by the petitioner as well as similar other writ applications with observations that if the Petitioners are eligible for any other posts according to their qualification and they apply for the same, the allegation of the O.P.-authorities regarding genuineness of their I.T.I. certificates shall not stand as a bar for their recruitment after taking into consideration the relevant Rules. The Hon’ble Division Bench further observes that authorities shall consider the experience of the Petitioners, who have already served three years in the Organization and also consider the relaxation of their upper age limit, if such a request is made. The order dated 01.03.2012, further // 5 // reveals that the Hon’ble Division Bench has taken a note of fact that the Mr. Dora, learned counsel appearing for the Petitioner, alleged that some of the employees, whose certificates were found to be not genuine, have been allowed to continue, which is stoutly denied by Mr. B.K. Nayak, learned counsel for the C.E.S.U. Ultimately, the Division Bench directed that if the allegation of Mr. Dora, is found to be true, he shall draw the attention of this Court by filing an application in the very same writ application, even if the same was being disposed of vide order dated 01.03.2012. 9. Learned counsel for the Petitioner further contended that after disposal of W.P.(C) No.18871 of 2011, the CESU preferred an appeal before the Hon’ble Supreme Court by filing Special Leave to Appeal (Civil) No.16679/2012. The Hon’ble Supreme Court vide order dated 19.11.2013 has been pleased to dismiss the appeal thereby the order passed by the Hon’ble Division Bench vide order dated 01.03.2012 has attained finality. Learned counsel for the Petitioner at this juncture submitted that since the order dated 01.03.2012 has attained finality, the same has to be given effect to by the Opposite Parties in letter and spirit. However, he alleged that such order has not been given effect to by the Opposite parties although the petitioner along with others through their federation has approached the Opposite parties in several occasions. Learned counsel for the Petitioner further referring to document under Annexure-21 to the writ application submitted that in said document is a merit list for recruitment to the post of Helper Trainee. Further, taking this Court through the aforesaid select list, learned counsel for the petitioner pointed out that at Sl. No.212, name of one Ratnakar Nayak and at 219, name of one Sibananda Dash finds place in the said list. By referring to the aforesaid name of two persons, learned counsel for the petitioner submitted that earlier they were engaged along with the Petitioner and their certificates were also found // 6 // to be not genuine, however, the Opposite parties have appointed them as Helper Trainee in the year 2011. Since the case of the petitioner has not been considered in the light of the order passed by the Division Bench on 01.03.2012, learned counsel for the Petitioner urged that this Court direct the Opposite Parties to consider the case of the Petitioner and to reinstate tem in service against any vacant post of contractual service. 10. Mr. Ashok Mohanty, learned Senior Counsel appearing for the Opposite parties at the outset submitted that the petitioners were although recruited initially by following the valid recruitment process, however, subsequently their certificates were found to be fake one. As a result of which the Opposite Parties have rightly terminated the service of the Petitioner. Mr. Mohanty, learned Senior Counsel in course of his argument, although did not dispute the factual aspects involved in the present writ application, however, he further contended that in the meantime many developments were taken place. He further contended that the present Petitioner stands in a different footing inasmuch as the two persons who have been alleged to have been appointed by the petitioner under Annexure-21 to the writ application stand in a different footing than the present Petitioner. The above named two persons, were engaged prior to the Petitioners were appointed through an outsourcing service provider against him. It was also contended that pursuant to tri- patted settlement agreement in the year 2010, the outsourcing agency recommended the names of the certain employees, who were engaged by them under the Opposite Parties. The names which were recommended by the outsourcing agency were put to a screening test and they have made to appear in a recruitment examination. After they were selected through the screening test, they were sent for training. After subsequent completion of training they have been appointed as Helper Trainee. Therefore, the above named two persons stand in a // 7 // completely different footing than the petitioner and that the Petitioner cannot equate their case with the above named two persons and take advantage of their appointment. In course of his hearing, learned Senior Counsel further contended that there were no posts in non-ITI category are available with the Opposite parties. To substantiate his argument, learned Senior counsel appearing for the Opposite Parties put this Court to the order passed by the Odisha Electricity Regulatory Commission (OERC) has turn down the request of distribution companies to increase the number of employees working in such distribution companies. In such background, learned Senior counsel appearing for the Opposite parties that there were no such posts available particularly in non-ITI category to accommodate the present Petitioner. In such view of the matter, learned Senior counsel submitted that the present writ application being devoid of merit and the same should be dismissed. 11. A rejoinder affidavit has been filed by the Petitioner wherein they have disputed the contention of the Opposite Parties to the extent that the present petitioner does not stand in a similar footing with the above named two persons who have been appointed by the Opposite Parties despite their certificates initially found to be in-genuine along with the present Petitioner. Although several affidavits have been filed from the either sides, however, this Court at this juncture is of the view that the same is relevant for adjudication of real dispute involved in the present writ application. 12. Having heard the learned counsels appearing for the respective parties as well as on a careful examination of the background facts and materials on record, this Court observed that the Petitioners were initially recruited on the basis of their ITI certificates produced by them before the Opposite Parties. However, such certificates were subsequently found to be fake ones. Moreover, such allegations of the Opposite parties have not been disputed by the learned counsel for the // 8 // Petitioner. Therefore, the Petitioner does not have a right to be reinstated in service on the ground that he has been removed illegally from the contractual service by the Opposite Parties. Furthermore, it is not disputed by the Opposite Parties that the Petitioners faced trial in a criminal and they have been acquitted from all charges with regard to production of fake certificates before the Opposite Party-authorities. In the aforesaid factual background, the Division Bench of this Court in the earlier writ application had directed to consider the case of the petitioner against non-ITI post according to their eligibility and suitability. However, on both the occasions, the representations submitted by the Petitioner have been rejected by the authorities. Although, this Court found that no valid reasons has been ascribed in such rejection order. Therefore, this Court is of the considered view that the earlier order passed by the Division Bench of this court has not been given effect to in letter and spirit. 13. On perusal of order dated 01.03.2012 in W.P.(C) No.18871 of 2011, this Court observed that the direction by the Division Bench is a very clear and specific i.e. to consider the case of the Petitioner subject to the condition that the petitioners are eligible for any of the post according to their qualification and apply for the same and while considering the case of the petitioner the fact with regard to genuineness of their ITI Certificates shall not stand as a bar for their recruitment according to the relevant rules. Further, while considering the case of the Petitioner for appointment, the authorities shall consider the experience of the Petitioner and shall grant them the age relaxation wherever the same is required and if such request is made. In the light of the aforesaid direction by a Division bench of this Court, the impugned rejection order under Annexure-36 was examined, however, this Court found that the same is not in terms of the order passed by a Division Bench of this Court as has been referred to hereinabove. // 9 // 14. In view of the aforesaid analysis of the factual background as well as keeping in view the order passed by this Court in the earlier writ application, this Court while setting aside the impugned order under Annexure-36 and reminds the matter back to the authorities to consider the case of the petitioner strictly in terms of the order passed by the Division bench in W.P.(C) No.18871 of 2011 on 01.03.2012 within a period of three months from the date of communication of a certified copy of this order. Within three months in the event, the Opposite Parties decide to go for a fresh recruitment for any such non-ITI post. Further, it is made clear that the case of the Petitioner shall be considered along with other eligible and suitable candidates. 15. With the aforesaid observations/ directions, the writ
Arguments
7. Mr. Biswal, learned counsel appearing for the Petitioner submitted that initially the Petitioners were duly selected by following a // 4 // valid recruitment process. However, such subsequently their certificates were found to be fake once on the basis of the report submitted by the SCTE & VT. Therefore, their services were terminated by the Opposite parties. The Criminal case which was initiated against the Petitioner and many other similar situated persons has ended in acquittal. Therefore, the authorities should have considered the case of the petitioner for their reinstatement in service against any available vacancy. 8. In course of hearing, learned counsel further referring to the
Decision
application stands disposed of. 16. Issue urgent certified copy of this order as per Rules Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Feb-2024 17:30:11