The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.4316 of 2016 Harihara Pradhan …. Petitioner Dr. J.K. Lenka, Adv. -versus- State of Odisha & Others …. Opposite Parties State Counsel CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 9. 1. This matter is taken up through Hybrid ORDER 23.08.2023 Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. The Petitioner has filed the present Writ Petition inter alia with the following prayer. (a) Quash/set aside the order dt.21.11.2016 at Annexure-10. (b) Quash the termination order dtd.23.05.2013 and 10.01.2014 at Annexure-4,5, & 12 respectively. (c) Quash the Clause-III of order dtd.31.12.2015 at Annexure-9 and direct the respondents to upgrade the services of the applicant to Class-III post. (d) And pass such any other order or orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case. 4. It is contended that the Petitioner was appointed in the Job Contract establishment on 16.01.1981. While so continuing, basing on the letter issued by the Government-Opp. Party No.1 on 23.05.2013 under Annexure-4, the Petitioner was disengaged from his service vide order dt.29.05.2013 under Annexure-5. // 2 // 4.1 Challenging the order of disengagement so issued on 29.05.2013, the Petitioner approached the Tribunal in OA No.1640 of 2013. The Tribunal vide its order dt.05.06.2013 under Annexure-7 while disposing the matter directed Opp. Party No.2 therein to take a decision on the claim of the Petitioner for his reengagement as the order of discharge has been passed in violation of the Principle of Natural justice. After receipt of the order so passed by the Tribunal, Opp. Party No.3 vide his letter dt.02.12.2015 under Annexure-8 though moved the Government-Opp. party No.1 with a request to issue necessary order for reengagement of the petitioner, but prior to receipt of any such clarification/order from the Government, the Petitioner was re-instated in his service vide order dt.31.12.2015 under Annexure-9 with certain terms and conditions. 4.2. Subsequently, when the Government-Opp. party No.1 vide the impugned communication dt.21.11.2016 under Annexure-10 requested Opp. Party No.3 to disengage the Petitioner, the Petitioner approached the Tribunal in the present matter. The Tribunal while admitting the matter vide order dt.25.11.2016 passed an interim order to maintain status quo. Subsequently vide order dt.02.12.2016, the Tribunal while staying the operation of order dt.21.11.2016, allowed the Petitioner to continue in his service till finalization of the O.A. Page 2 of 7 // 3 // 4.3. It is contended that in terms of the order issued under Annexure-8 on 31.12.2015, the Petitioner was allowed to continue in the job contract establishment till he attained the age of superannuation on 31.05.2019. However, even though the Petitioner continued in the job contract establishment till his superannuation on 31.5.2019, but no step was taken by the authority to absorb him in the regular establishment as was done in the case of similarly situated job contract employees by the Government. 4.4. It also contended by the learned counsel for the Petitioner that prior to issuing the order of disengagement under Annexure-8, the Petitioner was never provided with any opportunity of hearing nor the provision contained under Para-688 of the Consolidation Manual, 1973 was followed. Para 688 of the manual reads as follows: 688 : Disciplinary Proceeding- It is necessary that when any job contract employee is proposed to be dismissed or removed or reduced in grade he should be given a reasonable opportunity of showing cause against the action so proposed. Disciplinary proceeding shall be drawn up for the purpose. The nature of punishment to be awarded in respect of such category of offence committed by such employees shall be such that the circumstances of the case justifies and subject to such principles as may be laid down by the Board. Job-contract employees are recruited when there is work and discharged when there is no work. The usual practice is to discharge job-contract employee after the filed work is over till required or on account of reduction of work. the commencement of field work, all the discharged personnel may not be required. In such case, all persons without black mark would be reappointed according to the requirement. Orders in connection with the disposal department proceeding against the job-contract employee should allows be passed by the Deputy Director himself. In no case, this should be delegated to any subordinate authority by the Deputy Director as final orders cannot be passed other than the appointing authority. At Page 3 of 7 // 4 //
Legal Reasoning
Disciplinary proceeding should always be enquired into expeditiously and deterrent punishment inflicted upon the employee found guilty. Lenient treatment to the employees committing willful acts of mischief and misconducting themselves would only tend to maximize indiscipline. Such cases should be dealt with firmly. Disciplinary proceeding as far as possible should be finally disposed of within a period of three months. A case record shall be maintained for each proceeding from the date of approval of charge. The case record would indicate the day to day processing of the proceeding. A register for disciplinary proceeding shall be maintained in Form No.107 of Appendix B. Final orders in this register should always be attested by a gazette officer.” 4.5. It was also contended that the allegation basing on which Petitioner was disengaged in terms of Annexure-4, is not substantiated as per the information obtained by the Petitioner under the RTI Act vide Annexure-14. From the information so provided, nothing was indicated that the Petitioner has accepted any such objection case after expiry of the period in question. It is accordingly contended that since the provisions contained under Para 668 of the Consolidation Manual was never followed and nothing was found against the Petitioner as revealed from the information provided under the RTI Act the disengagement of the Petitioner for the period from 29.05.2013 to 31.12.2015 is illegal. 4.6. Lastly, learned counsel for the Petitioner contended that since similarly situated job contract employees have already been regularized in their service basing on the decision taken by the Government in its resolution dt.11.05.2005 under Annexure-25, the Petitioner is eligible and entitled to be regularized in his service for the purpose of pension and other pensionary benefits. Page 4 of 7 // 5 //
Legal Reasoning
5. Mr. H.K. Panigrahi, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. party No.3. 5.1. It is contended that during continuance in the job contract establishment, basing on the direction issued by the Government under Annexure-4, Petitioner was disengaged from his service vide order dt.29.05.2013 under Annexure-5. Basing on the order passed by the Tribunal in OA No.1640 of 2013, though Opp. Party No.3 moved the Government seeking clarification with regard to re-engagement of the Petitioner, but the Petitioner was re-engaged prior to receipt of any such clarification vide order dt.31.12.2015 under Annexure- 9. Subsequently vide communication dt.21.11.2016 under Annexure-10, when the Government requested Opp. Party No.3 to disengage the Petitioner, the matter was carried to the Tribunal and pursuant to the interim order passed by the Tribunal on 25.11.2016 as well as 02.12.2016, Petitioner continued in the job contract establishment till he attained the age of superannuation on 31.5.2019. 5.2. It is accordingly contended that since the Petitioner continued in the job contract establishment after his reinstatement on 31.12.2015 by virtue of an interim order passed by the Tribunal, he is not eligible and entitled to get the benefit of regularization as has been extended in favour of the similarly situated job contract employees. Page 5 of 7 // 6 // 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the Petitioner entered into the job contract establishment w.e.f 16.01.1981. While so continuing, basing on the letter issued by the Government on 23.05.2013 under Annexure-4, Petitioner though was disengaged from his service w.e.f 29.05.2013 vide order under Annexure-5, but he was reengaged in his work vide order dt.31.12.2015 under Annexure-9. From the instruction provided to this Court pursuant to the order passed on 25.04.2023, it is found that the Petitioner continued in the job contract establishment till he attained the age of superannuation on 31.05.2019 after his reinstatement. The instruction provided by Mr. B. Panigrahi be kept on record. 6.1. Since it is found that the petitioner continued in the job contract establishment w.e.f 16.01.1981 till he attained the age of superannuation on 31.05.2019, save and except for the break period from 21.05.2013 to 31.12.2015, Petitioner in view of circular issued by the Government on 11.05.2005 under Annexuire-25 is eligible and entitled for his absorption in the regular establishment for the purpose of getting pension and other pensionary benefits. Since by virtue of interim order, the petitioner continued in the job contract establishment and he was allowed to retire on attaining the age of superannuation, the direction issued under Annexure-10 as well as Annexures-4,5 & 12 have lost its force. Not only that the order of disengagement so passed Page 6 of 7 // 7 // against the Petitioner on 29.05.2013 under Annexure-5 was also made in violation of the provisions contained under Paragraph-668 of the consolidation manual and basing on Annexure-12, Petitioner was not disengaged at any point of time. 6.2. In view of the aforesaid analysis, this Court is of the view that the Petitioner is eligible and entitled for his absorption in the regular establishment for the purpose of getting pension and other pensionary benefits. While holding so, this Court directs Opp. party No.3 to take effective steps to absorb the Petitioner in the regular establishment as has been extended in favour of similarly situated job contract employees in terms of Resolution under Annexure-25 within a period of two months from the date of receipt of this order. On such absorption in the regular establishment, consequential steps be taken for sanction of pension and other pensionary benefits as due and admissible in favour of the Petitioner within a further period of two months. The Period for which the Petitioner remained out of engagement from 29.05.013 to 31.12.2015 be regularized on notional basis only. With the aforesaid observation and direction, the Writ
Decision
Petition is disposed of. sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: High Court of Orissa, cuttack Date: 25-Aug-2023 15:32:26 (Biraja Prasanna Satapathy) Judge Page 7 of 7