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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24407 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Nikunja Kumar Biswal …. Petitioner -versus- State of Orissa & Ors. …. Opposite Parties Advocates appeared in the case through Hybrid Mode: : For Petitioner Mr. Sukanta Kumar Dalai, Adv. For Opposite Parties : Mr. Sailaza Nandan Das, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-11.10.2023 DATE OF JUDGMENT: -18.10.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this writ petition has challenged the action of the Opposite Parties more especially Opposite Party No.2/ Collector, Mayurbhanj in issuing disengagement order dated 6.4.2022 which is not only without authority but also contrary to the service condition and settled principles of law in case of Manas Ranjan Sahu v. State of Odisha1. 12020 ILR (1) CUT-357 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 1 of 18 I. FACTUAL MATRIX OF THE CASE: 2. As per the selection procedure conducted by the District administration, the petitioner was appointed as Gram Rojgar Sevak in the year 2014 vide order dated 22.10.2014 and accordingly, joined the said post. 3. Prior to joining, the petitioner as per conditions of service, he executed an agreement with the Gram Panchayat assigning the terms of the service, so also disciplinary action prescribed thereto. On bare perusal of the agreement, it is clear that the master-servant relationship prevails between the petitioner and Gram Panchayat and in view of the Article 243(g) of the Constitution of India and so also as per provisions under the Odisha Gram Panchayat Act, 2004 and MGNRGS Act, 2005, the petitioner’s service condition has been enumerated by the Notification issued by the State Govt. dated 25.8.2006 and the central Government’s Guidelines, 2013 came up with service conditions of the GRSS. 4. While this was the position, the petitioner in the year 2021 implicated in a vigilance case vide Balasore Vigilance P.S.Case No.09 of 2022 for the offence under Section 7 of the P.C. (Amendment) Act which made him to remain in jail and was subsequently released on bail. 5. In view of the aforesaid sequence of events and keeping in view the initiation of criminal proceeding and detention of Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 2 of 18 petitioner, the authorities i.e. Opposite Party no.2 relying upon the notification dated 06.04.2018 without providing any reasonable opportunity of hearing disengaged the petitioner on 06.04.2022 and hence the Petitioner is constrained to file the present Writ Petition. II. PETITIONER’S SUBMISSIONS: 6. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: 7. On perusal of the language of the notification dated 25.08.2006 which has borne out from the Central Statute and a legislation by the State Govt. in compliance to the provisions it has been indicated that the State Govt. has no role in the engagement of the Gram Rozgar Sevaks and the PRI bodies are the sole authority. Any interference with the affairs of the Gram Panchayat is clear violation of the Article 243(g) of the Constitution of India. 8. Article 243(g) of the Constitution of India gives authority to the respective State Government for enabling appropriate law giving independence to the respective Gram Panchayats of self-governance without any prevailing law the article has no binding effect. But, in the present context, in view of the statutory provisions under the MNREG Act readwith Odisha Gram Panchayat Act and in exercising the authorities under Article 243(g), the State Government has come up with Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 3 of 18 notification dated 25.08.2006 and so also by the Central Government framing MGNREGA Guidelines, 2013 and the relevant provisions are quoted herewith for proper adjudication of the matter. 9. The engagements will be effected by the PRI Bodies, Government will have no role or linkage to the engagement of these personnel, deployment and other related issues. The selection for all the contractual appointments will be done in a fair and transparent manner at the district level under the overall direction, control and supervision of Collector-cum- District Programme coordinator in the capacity of Zilla Parishad. 10. At the cost of repetition, it is once again stated that the aforesaid notifications and guidelines is outcome of not only statutory provisions but also strictly in consonance with the Article 243(g) of the Constitution of India. So in view of the above law is well settled Article 243(g) is a enabling provision and once a law has come out of that by any of the Governments there cannot be any sort of deviation and in the present case both the State Government and Central Government have come up with their respective rules and the Collector who is a public servant has its binding effect on him and there cannot be any sort of deviation. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 4 of 18 11. Though the guidelines /rules louds that the petitioner is the employee of Gram Panchayat and the master-servant relationship prevails between them hence interference of the outsiders i.e. officers of the State is not permissible. This principle has been reiterated by a Full Bench judgment of this Court and also recently in the case of Manas Ranjan Sahu v. State of Odisha & others (supra). 12. It is also pertinent to mention here that, in the meantime, while dealing with batch of Writ Petitions relating to disengagement of Gram Rozgar Sevaks by the Collector have been quashed on the ground of authority/competency. In the meantime, while dealing with similar matters, this Court while issuing notice to the opposite parties has been pleased to pass following order in the case of Sujit Kumar Sahoo v. State of Odisha & Ors.2: “As an interim measure/ it is directed that in the event, the work involving the petitioner has not been assigned to anybody else as yet, the petitioner shall be allowed to continue to work till the next date.” 13. In this regard, the petitioners also verified the statutory provisions both under MNREG Act and Odisha Gram Panchayat Act, 1964 and in both the cases there is no such provision either authorizing Collector to disengage the 2I.A.NO.4416 OF 2022 (Odisha High Court) Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 5 of 18 employees or to take any disciplinary action thereto. In fact, the statutory provisions of both the statutes gives power to the authorities to hold guilty of the statutory violations, but in the present case no such occasion has arisen, accordingly the issuance of show cause is also bad in law and without authority. 14. Though the petitioner’s service is governed by a special statute i.e. Odisha Gram Panchayat Act, 1964 and the purpose of the appointment of the petitioner also is governed under another Central statute titled as National Rural Employment Guarantee Act, 2005. On bare perusal of both the statute, nowhere has it been whispered that the Collector has authority for taking disciplinary action against the Gram Rojgar Sevak. On the contrary, the agreement has vested with power for taking disciplinary action after getting feedback from the concerned Gram Panchayat. Accordingly, the present action is not only contrary to the statutory provisions but also without authority and has to be quashed on threshold. It is also pertinent to mention here that, the Gram Panchayat Act provides a particular procedure for taking disciplinary action against their employees after giving reasonable opportunity of hearing. In the present case, the petitioner is not holding civil post and the Collector has no control over him. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 6 of 18 15. In the aforesaid narration of facts and circumstances of the case, since the Collector has exceeded his power and authority in passing the impugned order of removal which is otherwise against the agreement vis-(cid:224)-vis the scheme. The order of the collector is against settled principles of law and contrary to the mandatory requirements of the OGP Act, 1964 and Rules made thereunder. 16. In the present case, the Sarapanch is the appointing authority as the agreement has been executed between the sarapanch and the petitioner. But in a peculiar circumstances show cause has been issued by the Collector and removal order has been issued by the collector which is per se illegal. 17. In the present case when the criminal trial is still continuing as per law, the departmental proceeding should wait till completion of the criminal trial and at least one reasonable opportunity should be granted for any kind of deviation thereto, it warrants for passing of the disengagement. III. SUBMISSIONS OF OPPOSITE PARTY NO.1: 18. Per contra, learned counsel for the Opp. Party No.1 intently made the following submissions: 19. Mahatma Gandhi National Rural Employment Guarantee Act, 2005 came into force on 05.09.2005 with an objective to provide livelihood security of the households in rural areas of the country by providing at least one hundred days of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 7 of 18 guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto. 20. The Guideline was framed in the same year i.e. MGNREGA Operational Guidelines-2005 and under Para 2.2.1(b), a key functionary was named and designated as Gram Rozgar Sevak whose job is to register families, issuing job cards. receiving applications for work, maintaining records, allocating employment and so on. 21. On 25.08.2006, the State Government Panchayati Raj Department, issued instruction vide Letter No.17146, dated 25.08.2006 with respect to the appointment and service conditions of GRS. A decision was taken by the State Government that One Multi-Purpose Assistant (Gram Rozgar Sevak) will be engaged on contractual basis only in that Gram Panchayat which does not have a Gram Panchayat Secretary and will be responsible for proper maintenance of account, database in the computer and to discharge the duties and responsibilities under MNREGA. 22. On 06.01.2007, the Panchayati Raj Department issued a letter clarifying that the GRS is never appointed in pursuance of Section 122 and 123 of the OGP (Orissa Gram Panchayat) Act and as such the post of GRS cannot be given the statutory Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 8 of 18 powers, duties and function of G.P. Secretary. Moreover, where there is vacancy of G.P. Secretary, the PEO (Panchayat Executive Officer) is exercising the statutory powers of Secretary. 23. On 02.04 2007, the Panchayati Raj Department issued another letter instructing all the Collectors to fill up the vacant posts of GRS asking the applicants to file an undertaking that they will not claim any permanent absorption in their services. 24. On 05.12.2012, the Panchayati Raj Department instructed the Collector-cum-DPC not to suspend any contractual employee engaged under the MGNREGA, rather, to disengage them on the ground of misconduct/inefficiency after giving them reasonable opportunity of hearing. 25. On 21.03.2013, the Panchayati Raj Department issued instructions on transfer and disengagement of GRS under MGNREGA. The said letter stipulates that Collector will have the power to transfer the GRS from one Gram Panchayat to the other within a specific block. However, under special circumstances, Collector may consider to transfer a GRS on representation (in case of vacancy) from one Block to the other Block within the District. No T.A. shall be allowed in such case and Collector will have the power to disengage the GRS after following due procedure i.e. asking for show cause and giving the opportunity of being heard. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 9 of 18 26. On 15.05.2017, The Panchayati Raj & DW Department reiterated that a Collector-cum-DPC can transfer the GRS from one G.P. to other within the district on administrative ground. On 06.04.2018, the Panchayati Raj & DW Department formulated comprehensive guidelines for selection and engagement of GRS under MGNREGS and this guidelines superseded all the previous instructions and was given effect to immediately. Some of the relevant points of the said Guideline are as follows:- “(i) Cadre:- GRS will form as a district cadre post, (ii) Nature of Engagement: The GRS will be engaged on contractual basis for a period of one year. The selected candidates who join may be engaged in any Gram Panchayat of the concerned District by the Collector-cum- CEO, Zilla Parishad. (iii) Renewal of Contract: The BDO will assess the performance of GRS of each Gram Panchayat every year as per their Job Chart. On the basis of the satisfactory performance and recommendation by the BDO, the contract of GRS may be renewed for another one year by the Collector-cum-CEO, Zilla Parishad; and so on. (iv) Transfer: The post of GRS is transferable in nature within the concerned District. The Collector-cum-CEO, Zilla Parishad is competent to transfer the GRS from one Gram Panchayat to another Gram Panchayat within the District in view of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 10 of 18 of or service exigencies in public consideration of genuine grievance or on administrative ground. (v) Resignation: A GRS may tender his/her resignation from the post by giving a minimum one moth prior notice to the Collector-cum-CEO, Zilla Parishad through the concerned BDO. (vi) Disciplinary Authority: Collector-cum- CEO, Zilla Parishad is the Disciplinary Authority of the GRS and is competent to terminate the contract and disengage the GRS. (vii) Termination:-Upon receipt of an enquiry report form BDO or any other Senior Officer on the allegation against the GRS, if the disciplinary authority i.e., is Collector-cum-CEO, Zilla Parishad satisfied that the charges levelled against the GRS are grievous in nature and proved that the continuo the said GRS is construed detrimental to the interest of the Gram Panchayat and the community as well, the Collector-cum-CEO, Zilla Parishad can terminate the contract & disengage the GRS. Before the Collector-cum- CEO, Zilla Parishad should issue show cause notice against the erring GRS specifying the charges attributable to him/her giving reasonable opportunity to show cause in writing within 30 days from receipt of the show cause notice. If the said GRS desires to be heard in person, he/she may be given reasonable opportunity of being heard in person. If the Collector- cum- terminating contract, the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 11 of 18 CEO, Zilla Parishad is inclined to believe that the reply to the show cause submitted by the GRS is not satisfactory and the charges levelled against him tantamount to gross misconduct, the Collector-cum- CEO, Zilla Parishad can terminate the contract and disengage the GRS. (viii) Appeal:- If the GRS is aggrieved on the order of the Collector-cum-CEO, Zilla Parishad, he may prefer appeal within 30 days of such order of the Collector- cum- CEO, Zilla Parishad before the Director, is the Appellate Special Projects who Authority. The Appellate Authority ie. Director, Special Projects may give reasonable opportunity of being heard to the aggrieved GRS and dispose of the appeal within three months of receipt of the appeal under intimation to the parties. The decision of i.e. Director,Special Projects will be final and binding.” Authority Appellate the 27. On 28.08.2018, the Panchayati Raj & Drinking Water Department reiterated that Disciplinary Authority of GRS is the Collector-cum-CEO, Zilla Parishad, and the same authority is also competent to transfer the GRS within the district in view of the administration exigencies. 28. Meanwhile, the Division Bench of this Court while adjudicating whether a Collector of a District Magistrate is competent to transfer a Gram Rozgar Sevak (GRS) engaged as such under Section 18 of the Mahatma Gandhi National Rural Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 12 of 18 Employment Guarantee Act, 2005 (MGNREG Act) read with the MGNREGA’s Operational Guidelines, 2013 has held the following:
Decision
“1. In view of the above statutory framework and set up Operational Guidelines and instructions, the Court is satisfied that the Collector was authorised to issue orders of master of GRS and it was not in violation of any of a provisions of the OGP Act. There is a basic misconception in construing the engagement of the GRS as being covered by the OGP Act whereas it is covered under Section 18 of the MGNREG Act read with issued the Operational thereunder. For the administrative reasons, therefore, the Collector is empowered to transfer within the District a GRS from one GP to another GP. There is thus no illegality attached to the impugned transfer orders.” Guidelines 29. An allegation has been leveled against the petitioner that he has demanded illegal gratification of Rs.5000.- from one complainant Sri BabuPatra of village Katuria. PS-Sarat, District- Mayurbhanj for processing and issue of job cards of 17 persons of village Katuria for their engagement in MGNREGS and other developmental works taken up in GP area. 30. The Superintendent of Police, Vigilance, Balasore Division. Balasore intimated vide letter No.535/V Cr.BD dated Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 13 of 18 30.03.2022 that Balasore Vigilance P.S. Case No. dated 28.03.2022 under Section 7 of the P.C.(Amendment) Act, 2018 had been registered against Sri Nikunja Kumar Biswal, Gram Rozgar Sevak, Labanyadeipur G.P. under Kaptipada Block on the allegation of demanding illegal gratification of Rs.5000/- 31. A trap was laid down by the Vigilance Team and the accused Sri Nikunja Kumar Biswal, GRS, Labanyadcipur GP was caught red handed in front of the GP Office, Labanyadeipur at about 1.10 PM on dated 29.03.2022 while demanding and accepting bribe of Rs.5,000/- from the complainant Sri Patra and the tainted bribe money of Rs.5,000/- was recovered and seized from the possession of the accused Sri Nikunja Kumar Biswal, GRS. Subsequently, Sri Biswal, GRS was forwarded to the Court of Special Judge, Vigilance, Mayurbhanj on 30.03.2022 and remanded to jail custody till 14.03.2022. 32. As Sri Biswal, GRS was detained in jail custody for more than 48 hours and the charges leveled against Sri Biswal, GRS is grievous in nature and his involvement in Balasore Vigilance P.S. Case No.09 dated 28.03.2022 under Section 7 of the P.C. (Amendment) Act, 2018 violated the terms and conditions of contractual engagement and his further continuance was detrimental to the bonafide MGNREGS. Therefore, pursuant to the relevant paragraph pertaining to termination as contained in Government in PR & DW Department Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 14 of 18 Guidelines issued vide order No.6681 dated 06.042018 and 7693 dated 29.04.2021, the petitioner Sri Nikunja Kumar Biswal, GRS, Labanyadeipur GP under Kaptipada Block was disengaged from the contractual engagement of GRS vide Order dated 06.04.2022 of the Collector, Mayurbhanj. Therefore, no illegalities have been committed. IV. COURT’S REASONING AND ANALYSIS: 33. As regard the power of the Collector to issue instructions to the Gram Panchayat, a reference can be made to the Circular issued by the Government of Orissa in the Panchayati Raj Department dated 18.08.2007, the relevant portion of which reads as under: "(vi) As the engagement orders of GRS will be given by the Gram Panchayats, they may act as Disciplinary Authorities in respect of such engagement and the Collector may continue to have control over such exercise of powers as may be necessary from time to time. Hence while any disciplinary proceeding is initiated by Gram Panchayat against a Gram Rojgar Sevak, Collectors should be kept intimated and punishment awarded by Gram Panchayat should be approved by Collector keeping in view principle of natural justice, equity and fair play. In pursuant of Section 14 and 18 of the NREG Act, 2005 read with Section 109 and 110 of OGP Act, 1964, the Collector-cum- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 15 of 18 District Programme Coordinator may also direct the GPs to initiate and take disciplinary action against any GRS if in the opinion of the Collector-cum-District Programme co- ordinator, the continuance of the said GRS is detrimental for proper and effective implementation of the provisions of the NREG Act and schemes framed there under. In such an event, the GP will be duty bound to follow the instruction of the Collector-cum- DPC in want of which Section 115/116 of OGP Act will be resorted to against the erring non-official PRI members." 34. Accordingly, it is submitted that the Collector is empowered to issue necessary direction/instruction to the Gram Panchayat, especially when he is of the opinion that the continuance of the GRS is detrimental for proper and effective implementation of the provisions of the NREG Act and schemes framed thereunder. Even otherwise, the Collector has the overall powers of inspection, supervision and control over the Gram Panchayat under Chapter XI of the Orissa Gram Panchayat Act. It is accordingly, submitted by learned counsel for the State that as the appointment/engagement of the petitioner was purely contractual on a consolidated remuneration basis, which can be terminated without any Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 16 of 18 notice, if it is found that there is no satisfactory performance, the petitioner has no vested right to continue in the said post. 35. From the Circular dated 18.08.2017 issued by the Panchayati Raj Department, it is seen that for smooth execution of NREGS works and maintenance of the records/registers in consequence thereof, the State Government decided to engage one Multipurpose Assistant (Gram Rozgar Sevaks) on contractual basis for each Gram Panchayat. The said Circular further provided that though the Gram Panchayat may act as the Disciplinary Authority in respect of such engaged GRS, the Collector may continue to have control over such exercise of powers and also have supervisory role, as may be necessary from time to time. Further, disciplinary proceedings initiated against a GRS should be intimated to the Collector and the punishment awarded by the Gram Panchayat should be approved by him. In view of the above Circular of the State Government, it is abundantly clear that contractual engagement of GRS at the Gram Panchayat level for execution of NREGS works is under the overall administrative control and supervision of the Collector. 36. Moreover, law is well settled that a criminal proceeding and a disciplinary proceeding can be undertaken simultaneously and, therefore, it is not illegal for the disciplinary authority to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 17 of 18 adjudicate the matter prior to the completion of trial in the criminal proceedings. 37. From the conspectus of factual matrix, this Court is unable to accede to the submission of the Petitioner. The rules of service jurisprudence cannot be given go by in such a light and casual manner, rather, they call for due compliance. 38. In light of the aforesaid discussion and having regard to the present position of law, this Court is not inclined to entertain the prayer of the Petitioner. 39. Accordingly, this Writ Petition is dismissed. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 18th Oct., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 18 of 18