The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 24583 of 2023 An application under Articles 226 and 227 of the Constitution of India) --------------- Bharati Nayak ...… Petitioner -Versus- State of Odisha & Others ..…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner Behera & S. Behera, Advocates : M/s. Ranjan Kumar Rout, A.K. For Opp. Parties : Mr. S. Behera Additional Government Advocate ___________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 3rd January, 2025 SASHIKANTA MISHRA, J. 2. The petitioner has filed this writ application with the following prayer: “The petitioner, therefore, prays that the Hon’ble Court may graciously be pleased to admit this writ petition and issue Rule NISI calling upon the opposite parties to show cause as to why the order of punishment dated 19.04.2021 at Page 1 of 10 Annexure-4 and the order dated 20.10.2022 Annexure-7 shall not be quashed and if the opposite parties fail to show cause or show insufficient cause then the rule be made absolute by quashing both Anneure-4 and Annexure-7 with direction to re-engage the petitioner within such basis as the Hon’ble Court may like to stipulated. And for this act of kindness the petitioner shall as in duty bound ever pray.” 3. The case of the petitioner, briefly stated, is that she was engaged as Gram Rojagar Sevak (GRS) of Ramlenka Grampanchayat under Krushna Prasad Block in Puri district. While working as such, she was called upon to attend the Vigilance office on 03.02.2021 to answer the allegations leveled in a complaint submitted on 02.02.2021 by one Mithun Behera to the effect that she had demanded illegal gratification of ₹10,000/- for preparing bills towards release of funds in respect of construction of road from Balipatpur to Patansi under MNREGA Projects. 4. It is stated that the complaint was registered as an F.I.R in Bhubaneswar Vigilance P.S. Case No.7 of 2021 under Section 7 of the PC (Amendment) Act, 2018. The Page 2 of 10 said case corresponds to VGR Case No.2 of 2021 (T.R. Case No.10 of 2022) of the Court of learned Special Judge, Vigilance, Bhubaneswar. The petitioner was called upon to show cause with regard to the allegations vide letter dated 08.03.2021 of the Collector. She could not submit any reply as she fell ill and remained under treatment. She submitted a representation on 20.04.2021 indicating that she had not received copy of the BDO’s report dated 22.02.2021 as well as the report of the SP (Vigilance), which were essentially required to prepare the show cause. While the matter stood thus, vide order dated 19.04.2021, copy of which is enclosed as Annexure-4, the Collector-cum-CEO, Zilla Parishad, Puri disengaged the petitioner from service with effect from 03.02.2021 by holding that she had not replied to the show case notice containing allegations of misconduct including demand of illegal gratification of ₹10,000/- and that she was arrested on 03.02.2021 and detained in custody for a period of 24 hours. Page 3 of 10 5. The petitioner, being aggrieved, preferred appeal before the Director, Special Projects. The appellate authority directed the Collector-cum-CEO, Zilla Parishad, Puri to submit an enquiry report and the action taken report on the Vigilance case. The report was submitted to the effect that the petitioner during her incumbency as GRS had prepared the bills against the muster roll and had initiated payment to the job seekers of the concerned project including to one Purnachandra Behera, father of the complainant Mithun Behera three days prior to the date of submission of allegation. Further, the matter being sub-judice, the enquiry team refrained from offering any views on the merits of the case. Taking note of the above, the appellate authority held that as the matter is still under investigation by the Superintendent of Police, Vigilance, he was inclined to uphold the order of disengagement passed by the Collector. The appeal was disposed of accordingly. Being thus aggrieved, the petitioner has approached this Court in the present writ application seeking the relief as quoted hereinbefore. Page 4 of 10 6. Counter affidavit has been filed by the Collector, Puri refuting the averments made in the writ application. It is stated that as per report submitted by the BDO, Krushna Prasad Block vide letter dated 23.02.2022, report submitted by the SP (Vigilance) on 05.02.2021 and as per the guidelines of the Government dated 06.04.2018, the petitioner was temporarily disengaged from her contractual service as GRS with effect from the date of detention i.e. 03.02.2021 being in jail custody for a period of 24 hours as she was caught red handed at the time of receiving illegal gratification of ₹10,000/- from one Mithun Behera. Further, the petitioner was also duly heard by the appellate authority in the appeal preferred by her and taking note of the pendency of the investigation, the appellate authority rightly upheld the order of disengagement. 7.
Legal Reasoning
law. It is trite law that a person is always presumed to be innocent unless proven guilty. This is the basis of criminal jurisprudence of our country. In the instant case, certain allegations have only been leveled against the petitioner, which have been investigated and culminated in submission of a charge-sheet. Obviously, the same is not akin to proof of his guilt. The matter needs to be tried by the Court and the guilt or otherwise of the petitioner remains to be determined. Before that, the petitioner can only be presumed to be innocent. Under such circumstances taking the drastic step of disengaging the petitioner only on the basis of allegations would suddenly affect her right to livelihood guaranteed under Article 21 of the Constitution. 13. For the forgoing reasons, therefore, this Court is of the considered view that the impugned order passed by Page 9 of 10 the Collector as confirmed by the appellate authority cannot be sustained in the eye of law. 14.
Arguments
Heard Mr. R.K. Rout, learned counsel for the petitioner and Mr. S. Behera learned Addl. Government Advocate for the State. Page 5 of 10 8. Mr. Rout would submit that the petitioner has never been arrested as alleged in the impugned order. In support of his contention as above, Mr. Rout has drawn attention of this Court to the order sheet of T.R. Case No.10 of 2022 of the court of learned Special Judge (Vigilance), Bhubaneswar, copy of which is enclosed as Annexure-8. Mr. Rout further submits that apart from the fact that the petitioner was never arrested, it is a case of taking punitive action against an employee without the allegations being proved. 9. Mr. Behera, on the other hand, submits that a complaint was submitted against the petitioner containing allegation of demand of illegal gratification by the petitioner to one Mithun Behera. Further, a joint inquiry was conducted and a report was submitted before the appellate authority, wherein it was clearly found that the petitioner was caught red-handed by the Vigilance team while accepting illegal gratification of ₹10,000/- from the complainant for preparation of muster roll bill of ₹1,00,000/-. It was also revealed that the father of the Page 6 of 10 complainant namely, Purna Chandra Behera was one of the job seekers of the project in question. He further submits that as per the report submitted by Superintendent of Police (Vigilance), the petitioner was arrested on 03.02.2021 and released on bail 04.02.2021. 10. After hearing learned counsel for the parties and on going through the impugned order under Annexure-4, this Court finds that the petitioner was disengaged mainly on the ground that she was arrested on 03.02.2021 and detained in custody for a period of 24 hours and secondly, she had failed to submit reply to the show cause notice issued to her on 08.03.2021. Firstly, this Court finds from the copy of the order sheet of the case before the Court below that the FIR was received by the Court on 04.02.2021. The order sheet contains the orders passed on 15.03.2021, 19.03.2021, 05.04.2021, 16.04.2021, 01.07.2021, 23.08.2021, 25.10.2021 etc. upto 18.05.2024. There is no mention whatsoever regarding arrest of the petitioner and of being released on bail. It is possible that the petitioner was arrested by the Vigilance Page 7 of 10 Police and also released on bail but then there is no evidence to show that in such event she was detained in custody for 24 hours. Thus, the basic ground which appears to have weighed upon the mind of the Collector while passing the order of disengagement does not appear to be well-founded. 11. Secondly, it appears that some allegations were levelled against the petitioner by one Mithun Behera. The petitioner was called upon to show cause but she did not submit any reply thereto. She however, submitted a representation addressed to the Collector on 20.04.2021 denying the allegations. Be that as it may, the appellate authority has taken note of a joint enquiry report, copy of which has been enclosed as Annexure-E/3 to the counter. Perusal of the report revealed that the petitioner allegedly demanded illegal gratification of ₹10,000/- from the complainant. It is nowhere stated that as to why the complainant was called upon by the petitioner to pay the illegal gratification, even though he himself was not a job seeker, though his father is said to be a job seeker. Page 8 of 10 12. However, this is a matter to be determined by the Vigilance Authorities and the Trial Court. This Court finds that charge-sheet having been submitted on 17.03.2022, the matter is sub-judice before the competent Court of
Decision
In the result, the writ application is allowed. The impugned orders under Annexures-4 and 7 are hereby set aside. The opposite party authorities are directed to reinstate the petitioner in service forthwith. It is made clear that she shall not be entitled to any back wages for the period of her disengagement till her reinstatement on the principle of no work no pay. However, the said period shall be counted notionally for the purpose of grant of other service benefits. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 3rd Day of January, 2025/ Puspanjali Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: OHC, Cuttack Date: 17-Jan-2025 19:14:42 Page 10 of 10