The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 26426 of 2017 An application under Articles 226 and 227 of the Constitution of India. ------------------ Dharmendra Mohanta ...… Petitioner -Versus- State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. K.K. Swain, B. Jena, P.K. Mohanty, R.P. Das & K. Swain, Advocates.
Legal Reasoning
For Opp. Parties : Mr. B. Mohanty, Standing Counsel for School and Mass Education Department. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 10th February, 2023 SASHIKANTA MISHRA, J. The petitioner was working as Night Watchman –cum- Sweeper in Talapada High School, Talapada in the district of Mayurbhanj having been Page 1 of 7 appointed on 26.11.1991 against the 3rd post of peon by the Managing Committee. He joined on the same day. His appointment was also approved and he claims to be in receipt of monthly salary under the direct payment scheme as per Rule 9 of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short “1974 Rules”). While the matter stood thus, the petitioner was involved in a criminal case, being Thakurmunda P.S. Case No.66 of 2015 registered under Section 380 of IPC. Upon completion of investigation, final report was submitted as “FRT no clue” on 09.04.2016. By order dated 28.12.2015 passed by the President of the Managing Committee, the petitioner was placed under suspicion. The same was followed by a memorandum of charges issued by the President of the Managing Committee on 19.06.2017 (copy enclosed as
Decision
Annexure-5 to the writ petition). The said memorandum is impugned in the present writ petition. Page 2 of 7 2. Heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. B. Mohanty, learned Standing Counsel for School and Mass Education Department. 3. Mr. Swain contends that the first part of the prayer made in the writ petition no longer survives in view of the fact that by order dated 13.11.2021 the petitioner was reinstated in service with immediate effect by the Headmaster. He further submits that the President of the Managing Committee has no power to draw disciplinary proceeding against the petitioner, who is a lower grade employee. Referring to the provision of the 1974 Rules, Mr. Swain contends that in so far as the petitioner is concerned, only the Headmaster is competent to impose penalty and initiate disciplinary proceeding. He has referred to Rule 21 of the said Rules in this regard. Additionally Mr. Swain has referred to a judgment passed by a Division Bench of this Court in the case of Govinda Chandra Rout vs. Managing Committee of Chitrotpala High School and others, reported in 1985 (I) OLR 379. On such basis it is submitted that the impugned order Page 3 of 7 under Annexure-5 having been passed without jurisdiction, cannot be sustained in the eye of law. 4. Mr. B. Mohanty submits that the Managing Committee had placed the petitioner under suspension pending drawal of disciplinary proceeding acting under Rule 21 of the 1974 Rules. As such, no illegality was committed in the matter. 5. Reference to the provision of the 1974 Rules would make it clear that as per Rule 2(g), “Lower Grade Post” means the posts of Duftaries, Peons, Chowkidars, Watchers and Sweepers and includes any other post involving comparable duties and carrying comparable emoluments. There is no dispute that the petitioner was working as Night Watchman-cum-Sweeper at the relevant time and therefore, was occupying a lower grade post within the meaning of Section 2(g) of 1974 Rules. Further, Rule 21, which is relevant, is quoted hereinbelow. “21. Disciplinary authorities –(1) the Director may impose any of the penalties specified in Rule 20 on any employee : Provided that the Director shall not initiate any disciplinary proceeding unless the Managing Committee or the Governing Body, as the case Page 4 of 7 may be, refuses or neglects to take disciplinary action against any employee. (2) Without prejudice to Sub-rule (1) but subject to the provisions of Sub-rules (3) and (4) any of the penalties specified in Rule 20 may be imposed – (a) in respect of a lower grade employee, by the Headmaster or the Principal, as the case may be; and (b) in respect of any other employee, by the Managing Committee or the Governing Body, as the case may be: [Provided that in case of suspension of employees failing under Clauses (a) and (b) the prior approval of the Inspector in respect of any employee serving in a School and of the Director in relation to any other employee is obtained ] that further [Provided the Managing Committee or the Governing Body, as the case may be, may place an employee under suspension at initiation of disciplinary proceedings for a period of thirty days, pending approval of Inspector or the Director, as the case may be.] the (3) No penalty shall be imposed on any employee the authority by an authority other mentioned in Sub-rules (1) and (2) hereinafter referred to as the disciplinary authority. than (4) No penalty shall be imposed on a person appointed to any post in an aided institution on deputation in accordance with the provisions of Rule 25.” the Government except from Sub-Rule(2) of Rule 21 is very clear that in respect of a lower grade employee, the penalties referred to in Rule 21 and a disciplinary proceeding can be initiated only by the Headmaster of the Institution. Page 5 of 7 6. In the case of Govinda Chandra Rout (supra) the Division Bench of this Court held under paragraph-5 as follows: “5. Annexure-8 had been issued by the Secretary. Under sub-rule (2) of Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (for short 'the Rules',), the disciplinary authority as regards the lower grade employee. The expression 'Lower Grade Post' has been defined in Section 2(1 )(g) of the Rules as : the Headmaster is "Lower Grade Post' means the posts of Duftaries, Peons, Chowkidars, Watchers and Sweepers and includes any other posts involving comparable emoluments;" to Hence, the disciplinary authority as regards the petitioner, a peon, was the Headmaster and not the Secretary. It has been contended that the Managing Committee being superior the Headmaster could take action and Annexure-8 issued by the Secretary was, therefore, competent. This contention militates against the specific provision contained in Sub-rule (2) of Rule 21 of the Rules, which does not authorise the Secretary to impose any penalty on an employee of the School. Mr. Rath for opposite party No. 1 has also not placed before us any decision of the Managing imposition of Committee penalty. So, we have no hesitation in declaring Annexure-8 ultra vires and we quash the same.” imposing or directing 7. In view of what has been discussed hereinbefore, there remains further doubt that the President of the Managing Committee was not competent to issue the impugned order initiating disciplinary Page 6 of 7 proceeding against the petitioner. As such, the impugned order is rendered unsustainable in the eye of law. 8. For the foregoing reasons therefore, the writ petition is allowed in part. The impugned order under Annexure-5 is hereby set aside. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 10th February, 2023/ A.K. Rana. Page 7 of 7