The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.2682 of 2016 Swarnalata Parida …. Petitioner Ms. B. Pattnaik, Advocate -versus- State of Orissa & Others …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 03.04.2024 Order No. 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. Written notes of submission filed in Court be kept in record. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.17.10.2016 so passed by Opposite Party No.2 under Annexure-4. Vide the said order, Petitioner was disengaged from her services with immediate effect. 4. It is contended that Petitioner being a Diploma Holder, her name was sponsored by the Government under Annexure-1 for his engagement on contract basis under NREGS scheme. Pursuant to the said action of the // 2 // Government in sponsoring the name of the Petitioner, she was engaged as Gram Panchayat Technical Assistant (GPTA) vide order issued on 23.02.2007 under Annexure-1-Series. 4.1. It is contended that while so continuing, Petitioner because of his implication in Lakhanpur P.S. Case No.82 dtd.10.09.2016, was issued with the show cause by Opposite Party No.2 on 21.09.2016 under Annexure-2. Contents of the show case so issued is reproduced hereunder:- “To,
Legal Reasoning
Smt. Swarnalata Parida, GPTA.Lakhanpur Block. Sub: Involvement/arrest of Smt. Swarnalata Parida GPTA,Lakanpur Block in Lakhanpur PS Case No.82 Dtd. 10.09.2016. The following facts reported by I/C Lakhanpur PS vide his L.No.981 dt. 10.09.2016 as well as BDO, Lakhanpur vide his L..No.2523 dt. 14.09.2016. registered 1. That on dt.09.09.2016 on the report of Sri Bharat Kumar Kalo, Asst. Engineer, Lakhanpur Block, the Lakhanpur PS has PS Case No.81/2016 U/S 341/294/353/506 IPC and arrested accused Gurudeb Padhan who is working as Out Source Data Entry Operator and kept at PS custody. vide 2. That on dt.09.09.2016 at about 8.00 PM you abused the police staff and you and your associates fortcibly entered to PS Office and trying to take away the arrestee Gurudeb Padhan, DEO from Police custody but due to sincere steps taken by the police staff you failed from this activity. You terrorize at PS since 8.00.PM to 1.00 AM for which the law full duty hampered. 3. That you instigated the peace loving innocent people and created Law & Order situation with discharging the police from lawful duty and hence the police arrested you on 10.09.2016 at 7.00 AM U/s 34 1/294 / 506 / 353 / 34 IPC r/w 7 Cr.L.A.Act 1932 and forwarded to Court of Page 2 of 8 // 3 // SDJM, Jharsuguda on the same day and kept in Jail custody for more than 48 hours. This is gross misconduct in the part of a contractual employee. You are directed to submit your written statement why you shall not be disengaged from contractual service of GPTA under MGNREGS within seven days from the date of receipt of this show cause notice, failing which it will be presumed that you have no explanation to offer and further course of action shall be taken as per law”. 4.2. It is contended that Petitioner after receipt of the show cause submitted her reply under Annexure-3. But on various other grounds which was not the issue in the show cause issued under Annexure-2, Petitioner was disengaged from her services vide the impugned order dtd17.10.2016 under Annexure-4. 4.3. Learned counsel for the Petitioner contended that the ground on which Petitioner has been disengaged vide the impugned order was not the subject matter of the show cause so issued under Annexure-2, save and except her implication and arrest in the P.S. Case in question. 4.4. It is contended that since no such show cause was ever issued alleging any misappropriation of fund or dereliction of the duty by the Petitioner during her continuance as GPTA, Petitioner should not have been disengaged on the grounds indicated in the impugned order dtd. 17.10.2016 under Annexure-4. 4.5. It is also contended that Petitioner challenging the order under Annexure-4 approached the Tribunal in O.A. No.2682/2016. The Tribunal while issuing notice of the matter on 16.11.2016 passed an interim order staying the operation of order dtd.17.10.2016 and also allowed the Page 3 of 8 // 4 // Petitioner to continue. But on the face of the interim order passed by the Tribunal on 16.11.2016, Petitioner was not allowed to continue and she is going without employment since 17.10.2016. Not only that no further progress has been made to the criminal case, basing on which she was disengaged. 4.6. It is also contended that persons similarly situated and sponsored by the Government vide order under Annexure-1, have been regularized in the meantime on completion of six years of continuous engagement. But Petitioner because of the impugned order was not only disengaged but also she was deprived from being regularly absorbed. 4.7. It is accordingly contended that the impugned order is not sustainable in the eye of law and Petitioner is eligible and entitled to get all service and financial benefits as due and admissible to her. 5. Learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that Petitioner since was engaged on contractual basis, because of her implication in the criminal case, she was issued with the show cause under Annexure-2. After due consideration of her reply so submitted under Annexure-3, since it was found that further continuance of the Petitioner is not in the interest of the Department, she was disengaged vide the impugned order under Annexure-4. Page 4 of 8 // 5 // 5.1. It is also contended that even though the Tribunal while issuing notice of the matter vide order dtd.16.11.2016, passed an interim order by staying the operation of the impugned order and allowed the Petitioner to continue, but the said order was challenged by the State-Machinery before this Court in W.P.(C) No.2943 of 2017. This Court vide order dtd.07.03.2017 while issuing notice of the matter though suspended the interim order granted by the Tribunal, but while disposing the matter ultimately vide
Decision
order dtd.18.07.2019, allowed the interim order to continue pending disposal of the matter in question. 5.2. It is accordingly contended that no illegality or irregularity has been committed by the authority in disengaging the Petitioner from her services on the ground indicated in Annexure-4. 6. To the submission made by learned State Counsel, learned counsel for the Petitioner contended that on the face of the interim order passed on 16.11.2016, Petitioner was never allowed to continue and instead her claim to continue was rejected by the B.D.O., Lakhanpur-Opposite Party No.4 vide his letter dtd.24.11.2016 with the observation that unless the impugned order is cancelled, Petitioner cannot be allowed to continue. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner on being sponsored as a Diploma Holder vide Annexure-1, she was Page 5 of 8 // 6 // engaged as GPTA vide order dtd.23.02.2007 so issued by Opposite Party No.2 under Annexure-1-Series. As further found, Petitioner because of her implication in Lakhanpur P.S. Case No.82 of 2018 dtd. 10.09.2016, was issued with the show cause by Opposite Party No.2 on 21.09.2016 under Annexure-2. The said show cause was only issued directing the Petitioner to give her reply as to why she will not be disengaged because of her implication in the criminal case. 7.1. Petitioner though made her reply under Annexuxre-3 but by taking various other grounds which were not the subject matter of the show cause, Petitioner was disengaged from her services vide order dtd.17.10.2016 under Annexure-4. Since the show cause so issued under Annexure-2 was issued only on the ground that Petitioner is involved in a criminal case and as found from the impugned order, Petitioner was disengaged on the ground of misappropriation of the Govt. money and dereliction of duty during her incumbency as GPTA. Since the show cause issued under Annexure-2 was only with regard to her implication in a criminal case, Petitioner could not have been disengaged from her services on the ground indicated in Annexure-4 which was never the contents of the show cause. 7.2. It is also found that the Tribunal while issuing notice of the matter on 16.11.2016 though stayed the operation of the impugned order and allowed the Petitioner to continue, but Petitioner as found from the Page 6 of 8 // 7 // letter issued by the B.D.O.-Opposite Party No.4 on 24.11.2016 was not allowed to continue. No document has also been filed by the Opp.Parties that Petitioner in the criminal case so initiated was convicted or charge sheeted at least. 7.3. It is also found from the record that the interim order passed by the Tribunal on 16.11.2016, though was assailed by the State in W.P.(C) No.2943 of 2017, but the said interim order was not interfered with by this Court while disposing the matter vide order dtd.18.07.2019. Since the grounds on which Petitioner has been disengaged vide the impugned order was not the subject matter of the show cause issued to the Petitioner under Annexure-2, save and except her implication in the criminal case, as per the considered view of this Court, Petitioner could not have been disengaged on the grounds indicated in Annexure-4. 7.4. Therefore, this Court is inclined to quash the office order dtd.17.10.2016 so passed by Opposite Party No.2 under Annexure-4. While quashing the same, this Court directs Opposite Party No.2 to reinstate the Petitioner in her services within a period of ten (10) days from the date of receipt of this order. Since on the face of the interim order passed by the Tribunal on 16.11.2016 so confirmed by this Court vide order dtd.18.07.2019, Petitioner was not allowed to continue, Petitioner will be entitled to get all the remuneration as due and admissible for the period Page 7 of 8 // 8 // she remained out of employment because of the impugned order in question. 7.5. The entitlement as due and admissible shall also be released in favour of the Petitioner within a period of two (2) months from the date of her reinstatement as directed. Petitioner is permitted to provide copy of this order before Opposite Party No.2 for compliance. Petitioner will also be eligible and entitled to get the benefit of regularization since persons similarly situated and sponsored in the year 2006 have been regularized in the meantime. 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Apr-2024 11:05:55 Page 8 of 8