The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC ) No.1637 of 2008 Paramananda Sahoo …. Petitioner -versus- Mr. H.N. Mohapatra, Adv. State of Odisha & Others …. Opposite Parties Mr. D.K. Mohanty, A.S.C CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 19.04.2023 Order No 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
dt.04.07.1986. In view of the decision of this Court in the case of Bikash Mahalik Vs. State of Orissa, the removal of the Petitioners after long continuance of around 16 years is not sustainable. This court in Para Nos. 8,27 & 28 of the case in Bikash Mahalik has held as follows: <8. There is no dispute with regard to the fact that the petitioner appeared in the written test and secured 234 marks Page 5 of 7 // 6 // out of 400 marks and also secured 31 marks in practical skill test out of 50. Opposite party no.3 prepared a select list taking into account marks secured in the written test as well as practical skill test and placed the petitioner at Sl. No.2 of the merit list. Subsequently, opposite party no.2 found out that marks secured in the practical skill test, being qualifying in nature, should not be added to the marks secured in the written test. Consequentially, he directed opposite party no.3 to redraw the final merit list on the basis of marks secured by the petitioner in the written test i.e. 234 marks excluding the marks secured in the practical skill test, in which the petitioner had qualified by securing 31 marks, which is above the qualifying mark of 15, out of 50 marks. But fact remains pursuant to merit list prepared by opposite party no.3, the petitioner has already joined and his service book has been opened. The amount towards GIS has been deducted from his salary and he has also been enrolled in the contributory pension scheme of the Government. As a result, a right has been accrued in his favour to continue in his post. Now, after lapse of one year 4 months, as per direction given by opposite party no.2, opposite party no.3 has redrawn the merit list and called upon the petitioner to show-cause why he shall not be removed from service. Whether such action of opposite party no.3 is hit by principle of estoppel, is the short question to be decided in the facts and circumstances of this case. 27. In Pratima Sahoo (supra), this Court held that the order of disengagement of the petitioner from the post of Sikhya Sahayak, pursuant to decision of the district administration, having found qualified in the selection process and appointed after resigning from her erstwhile post of Anganwadi Worker and having worked for six to eight months, amounts to putting the petitioner in prejudicial and disadvantageous position and the reason assigned for later finding the petitioner not suitable for securing less marks than other meritorious candidates do holds good, the petitioner cannot be found faulted by the mistake committed by the appointing authority in calculating the percentage. Consequentially, direction was given to absorb the petitioner forthwith applying the doctrine of promissory estoppel in the said case. 28. In view of the law and fact, as discussed above, the irresistible conclusion is that the show-cause notice dated 31.03.2015 under Annexure-13 issued by opposite party no.3, the letter dated 09.02.2015 under Annexure-13/1 issued by opposite party no.2 to opposite party no.1 and letter dated 26.03.2015 under Annexure-13/2 issued by the Government of Odisha, Revenue and Disaster Management Department to opposite party no.2 cannot sustain. Therefore, the same are liable to be quashed and hereby quashed. Pursuant to interim order passed on 07.04.2019 by the Odisha Administrative Tribunal since the petitioner is still continuing, he shall be allowed to continue with all service and financial benefits as due and admissible to him in accordance with law.= Page 6 of 7 // 7 // 6.2. In view of such material irregularity on the part of the Opp. parties with regard to initiation of the proceeding against the Petitioner and the decision as cited supra, this court is inclined to quash the order at Annexure-17 as well as the order at Annexure-19. While quashing the same, this Court direct Opp. Party No.3 to re-instate the Petitioner in his service. But it is observed that from the date of dismissal till the order of re-instatement, the Petitioner will not be entitled to get any financial benefit and that period will be treated only on notional basis with extension of service benefits as due and admissible. The direction issued hereinabove by this court shall be complied with by the Opp. party No.3 within a period of three weeks from the date of receipt of this order. The Petitioner is directed to provide a copy of this order before Opp. Party No.3 within a period of seven days from the date of receipt and Opp. party No.3 to act on the same immediately on receipt of the order. The Writ Petition is accordingly allowed and
Arguments
2. Heard Mr. H.N. Mohapatra, learned counsel appearing for the Petitioner and Mr. D.K. Mohanty, learned A.S.C. 3. The Petitioner has filed the present Writ Petition challenging the order of punishment passed against him under Annexure-17 so confirmed by the appellate authority vide order under Annexure-19. 4. It is the case of the Petitioner that the Petitioner on being found suitable, was appointed as a Follower Orderly, vide D.O. No.1517 dt.04.07.1986, where he joined on 04.07.1986. It is contended that while continuing as such, all on a sudden, a proceeding was initiated against him vide Annexure-5 dated 16.09.2022 inter alia with the following charges. // 2 // C H A R G E “F.O. Paramananda Sahoo of Police Signals Estt. Is charged with Gross-Misconduct in that : - While posted gto signals establishment, it was found out during enquiry that he was appointed as Follower Orderly even though he was not fit for appointment as Follower Orderly in respect of age, height, weight ad chest. As such he is not fit to continue in the service. He is therefore directed to show-cause by 24.09.2, as to why he will not be dealot with suitably in the event of charges being held to be proved against him. Any representation that he wishes to make in this regard will be duly considered by the authority competent to pass final orders before passing of such orders.” 4.1. Learned counsel for the Petitioner contended that though the Petitioner participated in the said proceeding and filed his written statement of defence as well as the replies to the 1st and 2nd show-cause, but Opp. Party No.3 without considering anything, passed the impugned order of punishment of removal from service vide order dated 14.09.2005 under Annexure- 17. It is further contended that against such order of punishment though the petitioner filed a detailed appeal before Opp. party No.2 under Annexure-18, but the appellate authority as like the Disciplinary Authority without proper appreciation of the grounds taken in the memo of appeal, confirmed the order of punishment by rejecting the appeal vide order dated 20.05.2006 under Annexure-19. 4.2. Learned counsel for the Petitioner contended that since the Petitioner after facing due recruitment process was appointed as Follower Orderly vide D.O Page 2 of 7 // 3 // No.1517 dated 04.07.1986, where he joined on the very same date, there was no occasion to initiate a proceeding with the charges indicated in Annexure-5 and the said action of the Opp. party No.3 is outcome of mala fide and ill-intention towards the petitioner. It is also contended that after continuing for around 16 years, there was no ground to initiate the proceeding by declaring him unfit with the charge that the Petitioner was not having the required age, height, weight and chest. It is accordingly contended that not only the very initiation of the proceeding under Annexure-5 is bad in the eye of law, but also the order of punishment passed under Annexure-17 and so confirmed under Annexure-19. 5. Mr. D.K. Mohanty, learned A.S.C on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that though the Petitioner was appointed as Follower Orderly vide order dated 04.07.1986, but subsequently on enquiry, it was found that the Petitioner does not have the required age, height, weight and chest. Accordingly, the proceeding was initiated against him on 16.09.2002. 5.1. Learned Additional Government Advocate contended that as provided vide letter dated 02.05.1995 under Annexure-A to the counter, Government is competent to initiate the proceeding, if it is found that the Government servant was not qualified and eligible in terms of the Recruitment Rules for initial Page 3 of 7 // 4 // recruitment of Service or produce a false certificate, in order to secure the appointment, he should not be retained in service. It is also contended that Circular Order No.241/82 vide Annexure-B to the counter affidavit, the Petitioner does not have the prescribed age, height, weight and chest. Accordingly, when it was found on enquiry, the proceeding was initiated against him under Annexure-5. In the said proceeding, the Enquiry Officer after due enquiry held the Petitioner guilty of the charges vide his Enquiry report so submitted under Annexure-9. The Petitioner thereafter was given opportunity to file his reply to the finding of the enquiry report as well as his reply to the proposed order of punishment so issued under Annexure-15. 5.2. It is contended that by following due procedure of law, the Petitioner since was found guilty of the charge, he was removed from his service vide order under Annexure-17 and the appellate authority had also confirmed the same vide order under Annexure-19. Accordingly, it is contended that there is no illegality or irregularity with regard to the order of punishment, so passed against the Petitioner. 6. Having heard learned counsel for the parties and the materials available on record, it is found that by the time the Petitioner was so appointed as a Follower Orderly vide Order No.1517 dated 04.07.1986, Police Circular Order No.241/82 was in force. The Petitioner having come out successful after due measurement of Page 4 of 7 // 5 // his height, weight, chest, as well as his age, was so appointed vide Order dated 04.07.1986. Therefore, it is the view of this Court, there was no occasion on the part of the Opp. party No.3 to initiate a proceeding on the ground indicated in the charge memo under Annexure-5. It is also found that though the proceeding was initiated basing on some enquiry, but copy of such enquiry report was neither enclosed to the charge memo nor it was provided to the Petitioner nor it was provided by the Opposite Parties while filing the counter affidavit. Therefore, in absence of such enquiry report which is the basis of initiation of the proceeding, this court is unable to accept the stand taken in the counter affidavit with regard to initiation of the proceeding against the Petitioner. 6.1. Since the Petitioner was duly selected and appointed vide order dated 04.07.1986, the Petitioner should not have been inflicted with the punishment of removal from service after 19 years of his continuance in service, basing on the charge framed under Annexure-5. Petitioner has also got no latches on his part in being provided with the appointment vide order
Decision
disposed of. sangita (Biraja Prasanna Satapathy) Judge Page 7 of 7