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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.4818 of 2016 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… Dhruba Mahakur …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. S. Mohapatra, Advocate For Opp. Parties :M/s. D.K. Mohanty, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 25.11.2022 and Date of Order: 04.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The Present Writ Petition has been filed challenging the order of discharge passed against the Petitioner vide order dated
Legal Reasoning
22.01.2013 under Annexure-5 and the confirmation of the same by the Appellate Authority vide his order under Annexure-6. 2. It is the case of the Petitioner that the Petitioner // 2 // entered into service as a Constable under Opposite Party No.3 where he joined on 15.12.2011. The Petitioner subsequent to his appointment was attached to the office of Opposite Party No.3 and while so continuing, he was granted with three days C.L from 05.07.2012 to 08.07.2012. But the Petitioner could not join after availing such leave and he joined only on 27.08.2012 by producing medical certificate for the period from 08.07.2012 to 26.08.2012 under Annexure-2. 2.1. The Petitioner subsequently was issued with a show- cause on 03.01.2013 under Annexure-3 wherein it is alleged that the Petitioner remained on unauthorised leave from 09.07.2012 to 27.8.2012 and thereafter absconded from his training w.e.f 30.08.2012 without any leave or permission from the competent authority. The Petitioner though submitted a detailed reply under Annexure-4, but without considering the same in its proper perspective, the Petitioner was discharged from his service vide order dated 22.01.2013 under Annexure-5. The Petitioner seeking his re-instatement though moved the appellate authority, but the said appellate authority refused to entertain such prayer vide his order under Annexure-6. The Petitioner against such order though moved Opposite Party No.2 on 05.07.2016, but no Page 2 of 6 // 3 // action was taken by the said authority in considering the grievance of the Petitioner. 2.2. Learned counsel for the Petitioner contended that since the Petitioner because of his illness from 08.07.2012 to 26.07.2012, could not join after availing the leave initially from 05.07.2012 to 08.07.2012, the Petitioner should not have been discharged from his service on the ground of such overstay. It is also contended that after rejection of his prayer for re- instatement, though the petitioner moved Opposite Party no.2 under Annexure-6, but no decision was taken on such plea of the
Legal Reasoning
Petitioner. Accordingly, it is contended that since because of his illness, the Petitioner could not join in his service after availing the leave, the order of discharge passed against the petitioner is not in commensurate with the alleged illegalities committed by the Petitioner. Hence, it is contended that the order of discharge be set aside by this Court with a direction on the Opposite Parties to reinstate the Petitioner. 3. Mr. D.K. Mohanty, learned Additional Standing Counsel, on the other hand, made his submission basing on the stand taken in the counter affidavit. 3.1 It is contended that the petitioner while continuing under Opposite Party No.3, he availed C.L. from 05.07.2012 to 08.07.2012. But after availing such leave, the Petitioner never Page 3 of 6 // 4 // rejoined till he joined on 27.08.2012. The Petitioner after his rejoining, again absconded from the training centre w.e.f 30.08.2012 and never came back to join the duty. Accordingly, the show-cause was issued on 03.01.2013 vide Annexure-3. The Petitioner though submitted his reply to the said show-cause, but in view of the admitted illegalities committed by the Petitioner on taking leave without any intimation in an organisation like the police organisation, the order of discharge has been rightly passed against him by the Opposite Party No.3 and no interference is called for. It is also contended that the prayer of the Petitioner for his re-instatement was not only rejected by the appellate authority, but also by Opposite Party no.2 vide order communicated on 02.07.2014 under Annexure-G to the counter. 4. I have heard Ms. S. Mohapatra, learned counsel appearing for the Petitioner and Mr. D.K. Mohanty, learned Additional Standing Counsel appearing for the State-Opposite Parties. On the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal at the stage of admission. 5. Having heard learned counsel for the Parties and taking into materials available on record, this Court finds that the Petitioner after availing leave from 05.07.2012 to 08.07.2012 Page 4 of 6 // 5 // did not join till 27.08.2012 due to his remaining under treatment from 08.07.2012 to 26.08.2012. The certificate issued by the concerned Medical Officer under Annexure-2 also justifies the period of treatment, the Petitioner remained, after availing the leave from 05.07.2012 to 08.07.2012. But with regard to remaining absent from the training w.e.f 30.8.2012, there is no material available in the record. Since the petitioner absconded from the training w.e.f 30.8.2012 and never rejoined in his training, the show-cause was issued at Annexure-3 on 3.01.2013 and the order of discharge was passed under Annexure-5 on 22.01.2013. However, though it has been stated in the counter affidavit that the prayer for reinstatement of the petitioner has been rejected by the Opposite Party No.2 vide oder issued under Annexure-G, but this Court finds that Opposite Party No.2 has not assigned any reason while rejecting the prayer of the Petitioner for his re-instatement. It is also found that subsequent to the order so communicated vide letter dated 02.07.2014 under Annexure-4, the petitioner has again prayed for reinstatement by making a representation on 05.07.2016 under Annexure-7 before Opposite Party No.2. Therefore, in view of the stand taken by the Petitioner that he could not join due to his illness for the period in question, this Court directs Opposite Party No.2 to reconsider the claim of the petitioner for his Page 5 of 6 // 6 // reinstatement. This Court directs opposite party No.2 to give a personal hearing to the petitioner and allow him to produce relevant document in support of his illness from 09.07.2012 to 22.01.2013. The Opposite Party No.2 shall carry out the aforesaid direction within a period of two months from the date of receipt of this order. 6.
Decision
The Writ Petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 4th January, 2023/sangita Page 6 of 6